21 June 2000

 

General List No. 119

 
     

international Court of Justice

     
 

Aerial Incident of 10 August 1999

 
     

Pakistan

 

v. 

India

     
     
 

Judgement

 
     
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BEFORE:

President: Guillaume;
Judges: Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Al-Khasawnek, Buergenthal;
Judges ad hoc: Pirzada, Reddy

   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2000.06.21_aerial_incident.htm
   
Citation: Aerial Incident of 10 August 1999 (Pak. v. India), 2000 I.C.J. 12 (June 21)
   
Represented By: Pakistan: Mr. Amir A. Shadani, Charge d'affaires a.i., Embassy of Pakistan in the Netherlands, as Acting Agent;
Mr. Jamshed A. Hamid, Legal Adviser, Ministry of Foreign Affairs,
as Co-Agent;
Mr. Moazzam A. Khan, First Secretary, Embassy of Pakistan in the Netherlands, as Deputy Agent;
H.E. Mr. Aziz A. Munshi, Attorney General for Pakistan and Minister of Law, as Chief Counsel;
Sir Elihu Lauterpacht, C.B.E., Q.C., Honorary Professor of International Law, University of Cambridge, Member of the Institut de droit international;
Dr. Fathi Kemicha, Doctor of Law of Paris University, avocat at the Paris Bar;
Mr. Zahid Said, Barrister-at-Law, Ministry of Law, Justice and Human Rights;
Mr. Ross Masud, Deputy Legal Adviser, Ministry of Foreign Affairs,
Mr. Shair Bahadur Khan, Deputy Legal Adviser, Ministry of Foreign Affairs, as Counsel;
Miss Norah Gallagher, Solicitor;

India: H.E. Mr. Prabhakar Menon, Ambassador of India to the Netherlands,
as Agent;
Dr. P. Sreenivasa Rao, Joint Secretary (Legal & Treaties) and Legal Adviser, Ministry of External Affairs, as Co-Agent and Advocate;
Ms M. Manimekalai, Counsellor (Political), Embassy of India in the Netherlands, as Deputy Agent;
H.E. Mr. Soli J. Sorabjee, Attorney General of India, as Chief Counsel and Advocate;
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., Member of the International Law Commission, Emeritus Chichele Professor of Public International Law, University of Oxford, Member of the Institut de droit international;
Mr. Alain Pellet, Professor, University of Paris X-Nanterre, Member and former Chairman of the International Law Commission, as Counsel and Advocates;
Dr. B. S. Murty, Formerly Professor and Dean of Law, Andhra and Osmania Universities, Advocate, Hyderabad;
Mr. B. Sen, Senior Advocate, Supreme Court of India;
Dr. V. S. Mani, Professor of International Space Law, Jawaharlal Nehru University, New Delhi;
Dr. M. Gandhi, Legal Officer (Grade I), Ministry of External Affairs, as Counsel and Experts;
Mr. Vivek Katju, Joint Secretary (IPA), Ministry of External Affairs,
Mr. D. P. Srivastava, Joint Secretary (UNP), Ministry of External Affairs, as Advisers;
Ms Marie Dumee, Temporary Research and Teaching Assistant, University of Paris X-Nanterre, as Research Assistant
 

 
     
 
 
     
 

[p.12]
The Court,

composed as above,

after deliberation,

delivers the following Judgment:


1. On 21 September 1999, the Islamic Republic of Pakistan (hereinafter called "Pakistan") filed in the Registry of the Court an Application instituting proceedings against the Republic of India (hereinafter called "India") in respect of a dispute relating to the destruction, on 10 August 1999, of a Pakistani aircraft.

In its Application, Pakistan founded the jurisdiction of the Court on Article 36, paragraphs 1 and 2, of the Statute and the declarations whereby the two Parties have recognized the compulsory jurisdiction of the Court.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was forthwith communicated to the Indian Government by the Registrar; and, pursuant to paragraph 3 of that Article, all States entitled to appear before the Court were notified of the Application.

3. By letter of 2 November 1999, the Agent of India notified the Court that his Government "wish[ed] to indicate its preliminary objections to the assumption of jurisdiction by the . . . Court . . . on the basis of Pakistan's Application". Those objections, set out in a note appended to the letter, were as follows:


"(i) That Pakistan's Application did not refer to any treaty or convention in force between India and Pakistan which confers jurisdiction upon the Court under Article 36 (1).

(ii) That Pakistan's Application fails to take into consideration the reservations to the Declaration of India dated 15 September, 1974 filed under Article 36 (2) of its Statute. In particular, Pakistan, being a Commonwealth country, is not entitled to invoke the jurisdiction of the Court as sub-paragraph 2 of paragraph 1 of that Declaration excludes all disputes involving India from the jurisdiction of this Court in respect of any State which 'is or has been a Member of the Commonwealth of Nations'. [p 16]

(iii) The Government of India also submits that sub-paragraph 7 of paragraph 1 of its Declaration of 15 September, 1974 bars Pakistan from invoking the jurisdiction of this Court against India concerning any dispute arising from the interpretation or application of a multilateral treaty, unless at the same time all the parties to such a treaty are also joined as parties to the case before the Court. The reference to the UN Charter, which is a multilateral treaty, in the Application of Pakistan as a basis for its claim would clearly fall within the ambit of this reservation. India further asserts that it has not provided any consent or concluded any special agreement with Pakistan which waives this requirement."

4. At a meeting held between the President of the Court and the representatives of the Parties on 10 November 1999, pursuant to Article 31 of the Rules of Court, the Parties provisionally agreed to request the Court to determine separately the question of its jurisdiction in this case before any proceedings on the merits, on the understanding that Pakistan would first present a Memorial dealing exclusively with this question, to which India would have the opportunity of replying in a Counter-Memorial confined to the same question. By letters of 12 November 1999 and 25 November 1999 respectively, the Agent of Pakistan and the Deputy Agent of India confirmed the agreement to the procedure given ad referendum on 10 November 1999.

By Order of 19 November 1999, the Court, taking into account the agreement reached between the Parties, decided that the written pleadings should first be addressed to the question of the jurisdiction of the Court to entertain the Application and fixed 10 January 2000 and 28 February 2000, respectively, as the time-limits for the filing of a Memorial by Pakistan and a Counter-Memorial by India on that question.

The Memorial and the Counter-Memorial were duly filed within the time-limits so prescribed.

5. Since the Court included upon the Bench no judge of the nationality of the Parties, each of them availed itself of the right conferred by Article 31, paragraph 3, of the Statute to proceed to choose a judge ad hoc to sit in the case: Pakistan chose Mr. Syed Sharif Uddin Pirzada for this purpose, and India Mr. B. P. Jeevan Reddy.

6. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court, after ascertaining the views of the Parties, decided that copies of the pleadings and documents annexed should be made accessible to the public on the opening of the oral proceedings.

7. Public sittings were held from 3 to 6 April 2000, at which the Court heard the oral arguments and replies of:

For Pakistan: Mr. Hamid,
H.E. Mr. Munshi,
Sir Elihu Lauterpacht,
Dr. Kemicha.

For India: H.E. Mr. Menon,
H.E. Mr. Sorabjee,
Mr. Brownlie,
Mr. Pellet,
Dr. Sreenivasa Rao.

*[p 17]

8. In the Application, the following requests were made by Pakistan:


"On the basis of the foregoing statement of facts and considerations of law, and while reserving its right to supplement and or to amend this Application, and subject to the presentation to the Court of the relevant evidence and legal argument, Pakistan requests the Court to judge and declare as follows:

(a) that the acts of India (as stated above) constitute breaches of the various obligations under the Charter of the United Nations, customary international law and treaties specified in the body of this Application for which the Republic of India bears exclusive legal responsibility;

(b) that India is under an obligation to make reparations to the Islamic Republic of Pakistan for the loss of the aircraft and as compensation to the heirs of those killed as a result of the breaches of the obligations committed by it under the Charter of the United Nations and relevant rules of customary international law and treaty provisions."

9. In the note attached to its letter of 2 November 1999, the following submissions were presented by India:

"In view of the above, the Government of India respectfully requests the Court:

(i) to adjudge and declare that Pakistan's Application is without any merit to invoke the jurisdiction of the Court against India in view of its status as a Member of the Commonwealth of Nations; and

(ii) to adjudge and declare that Pakistan cannot invoke the jurisdiction of the Court in respect of any claims concerning various provisions of the United Nations Charter, particularly Article 2 (4) as it is evident that all the States parties to the Charter have not been joined in the Application and that, under the circumstances, the reservation made by India in sub-paragraph 7 of paragraph 1 of its declaration would bar the jurisdiction of this Court."

10. In the written proceedings, the Parties presented the following submissions:

On behalf of the Government of Pakistan,

in the Memorial:

"In view of the above submissions, the Government of Pakistan respectfully requests the Court to exercise jurisdiction and proceed to decide the case on merits."

On behalf of the Government of India,

in the Counter-Memorial:

"For the reasons advanced in this Counter-Memorial, India requests the Court

- to adjudge and declare that it lacks jurisdiction over the claims brought against India by the Islamic Republic of Pakistan."

11. At the oral proceedings, the Parties presented the following submissions: [p 18]

On behalf of the Government of Pakistan,

At the close of the sitting of 5 April 2000:

"For the reasons developed in the written pleadings and in the oral proceedings, Pakistan requests the Court:

(i) to dismiss the preliminary objections raised by India;

(ii) to adjudge and declare that it has jurisdiction to decide on the Application filed by Pakistan on 21 September 1999; and

(iii) to fix time-limits for the further proceedings in the case."


On behalf of the Government of India,

At the close of the sitting of 6 April 2000:

"The Government of India therefore respectfully submits that the Court adjudge and declare that it has no jurisdiction to consider the Application of the Government of Pakistan."

***

12. To found the jurisdiction of the Court in this case, Pakistan relied in its Memorial on:

(1) Article 17 of the General Act for Pacific Settlement of International Disputes, signed at Geneva on 26 September 1928 (hereinafter called "the General Act of 1928");

(2) the declarations made by the Parties pursuant to Article 36, paragraph 2, of the Statute of the Court;

(3) paragraph 1 of Article 36 of the said Statute.

India disputes each one of these bases of jurisdiction; the Court will examine them in turn.

**

13. Pakistan begins by citing Article 17 of the General Act of 1928, which provides:

"All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under Article 39, be submitted for decision to the Permanent Court of International Justice, unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal.

It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the Statute of the Permanent Court of International Justice."
Pakistan goes on to point out that, under Article 37 of the Statute of the International Court of Justice:

"Whenever a treaty or convention in force provides for reference of a matter to . . . the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice." [p 19]

Finally, Pakistan recalls that on 21 May 1931 British India had acceded to the General Act of 1928. It considers that India and Pakistan subsequently became parties to the General Act. It followed that the Court had jurisdiction to entertain Pakistan's Application on the basis of Article 17 of the General Act read with Article 37 of the Statute.

14. In reply, India contends, in the first place, that "the General Act of 1928 is no longer in force and that, even if it were, it could not be effectively invoked as a basis for the Court's jurisdiction". It argues that numerous provisions of the General Act, and in particular Articles 6, 7, 9 and 43 to 47 thereof, refer to organs of the League of Nations or to the Permanent Court of International Justice; that, in consequence of the demise of those institutions, the General Act has "lost its original efficacy"; that the United Nations General Assembly so found when in 1949 it adopted a new General Act; that "those parties to the old General Act which have not ratified the new act" cannot rely upon the old Act except "'in so far as it might still be operative', that is, in so far . . . as the amended provisions are not involved"; that Article 17 is among those amended in 1949 and that, as a result, Pakistan cannot invoke it today.

India adds that British India had in 1931

"expressly made [its] acceptance of Chapter II of the [General] Act . . . and, in particular, Article 17 . . . subject to the possibility of 'requir[ing] that the procedure prescribed in Chapter II of the said Act . . . be suspended in respect of any dispute . . . submitted to the Council of the League of Nations' pending a decision of that Council".

That condition would preclude the General Act of 1928 from remaining in force, at least in relation to India, after the demise of the League of Nations.

15. Pakistan contends, on the contrary, that "the General Act survived the demise of the League of Nations". Referring to the joint dissenting opinion of Judges Onyeama, Dillard, Jimenez de Arechaga and Sir Humphrey Waldock in the case concerning Nuclear Tests (Australia v. France)(I.C.J. Reports 1974, pp. 327 et seq.), Pakistan stresses that the General Act of 1928 was
independent of the League of Nations both organically and ideologically; that the disappearance of certain provisions of the General Act or, in certain cases, the impairment of their efficacy, did not affect its application; that, finally, the 1949 revision did not extinguish the original treaty.

16. Secondly, the Parties disagree on the conditions under which they succeeded in 1947 to the rights and obligations of British India, assuming, as Pakistan contends, that the General Act was then still in force and binding on British India.

17. In this regard, India argues that the General Act was an agreement of a political character which, by its nature, was not transmissible. It [p 20] adds that, in any event, it made no notification of succession as provided for in the case of newly independent States by Articles 17 and 22 of the Vienna Convention of 1978 on Succession of States in respect of Treaties, which, on this point, is considered by India to have codified customary law. Furthermore, India points out that it clearly stated in its communication of 18 September 1974 to the Secretary-General of the United Nations that

"the Government of India never regarded themselves as bound by the General Act of 1928 since her Independence in 1947, whether by succession or otherwise. Accordingly, India has never been and is not a party to the General Act of 1928 ever since her Independence."

Nor, continues India, could Pakistan have succeeded to British India in 1947 as party to a political treaty such as the General Act. Nor, moreover, was Pakistan "the continuator of British India"; it accordingly followed, in India's view, that Pakistan could not become party to the General Act, because, under Article 43 of that Act, only States Members of the League of Nations could accede, or "non-Member States to which the Council of the League of Nations has communicated a copy [of the Act] for this purpose".

18. Pakistan, recalling that up to 1947 British India was party to the General Act of 1928, argues on the contrary that, having become independent, India remained party to the Act, for in its case "there was no succession. There was continuity", and that consequently the "views on non-transmission of the so-called political treaties [were] not relevant here". Thus the communication of 18 September 1974 was a subjective statement, which had no objective validity. Pakistan, for its part, is said to have acceded to the General Act in 1947 by automatic succession by virtue of international customary law.

Further, according to Pakistan, the question was expressly settled in relation to both States by Article 4 of the Schedule to the Indian Independence (International Arrangements) Order issued by the Governor-General of India on 14 August 1947, which was stated to have the effect, from 15 August 1947, of an agreement between India and Pakistan; that provision reads as follows:

"Subject to Articles 2 and 3 of this agreement, rights and obligations under all international agreements to which India is a party immediately before the appointed day will devolve upon the Dominion of India and upon the Dominion of Pakistan, and will, if necessary, be apportioned between the two Dominions."

Pakistan points out that Article 2 of the agreement deals with membership of international organizations, while Article 3 concerns treaties having territorial application; that neither of these Articles is applicable here and that the proviso of Article 4 does not apply; and that accord-[p 21]ingly, under the agreement of 1947, Pakistan became a successor State to the General Act of 1928. Moreover, in order to dispel all doubts in this connection, on 30 May 1974 Pakistan addressed a notification of succession to the Secretary-General of the United Nations, stating that "the Government of Pakistan continues to be bound by the accession of British India of the General Act of 1928", while adding that it "[did] not . . . affirm the reservations made by British India".

19. India disputes this interpretation of the Indian Independence (International Arrangements) Order of 14 August 1947 and of the agreement in the Schedule thereto. It points out that Article 4 of the agreement is subject to the provisions of Article 2. Yet this latter Article provides that "[m]embership of all international organisations together with the rights and obligations attaching to such membership, will devolve solely upon the Dominion of India". In the same Article it is stated that "[t]he Dominion of Pakistan will take such steps as may be necessary to apply for membership of such international organisations as it chooses to join." It followed, according to India, that Pakistan could not have succeeded under the Order and agreement of 14 August 1947 to the rights and obligations
acquired by British India by virtue of her membership of the League of Nations.

20. In support of this argument India relies on a judgment rendered by the Supreme Court of Pakistan on 6 June 1961, in which that Court, referring to the provisions of the Schedule to the Order of 1947, stated, inter alia, that

"under these provisions . . . Pakistan . . . did not automatically become a member of the United Nations nor did she succeed to the rights and obligations which attached to India by reason of her membership of the League of Nations at Geneva or the United Nations."

The Supreme Court accordingly held that Pakistan could not have become a party to the instrument at issue before it, namely the 1927 Convention for the Execution of Foreign Arbitral Awards, which had been ratified by British India in 1937. In India's view, "[t]his reasoning [was] transposable in all respects to the General Act of 1928".

For its part, Pakistan observes that the judgment in question was given in "a case in which the Government of Pakistan was not involved" and had "had no opportunity to express its views to the Court", adding:

"we are unaware of the extent to which the Court was sufficiently assisted in the development of its international law argument. . . . In the absence of . . . knowledge about the true nature of the relationship between Pakistan and India after Independence, [and] with India before Independence, the Court could be understood not to have got matters right."

21. India also relies on the report of Expert Committee No. IX on [p 22] Foreign Relations, which in 1947 had been instructed, in connection with the preparation of the above-mentioned Order, "to examine and make recommendations on the effect of partition" on, inter alia, "the existing treaties and engagements between [British] India and other countries and tribes". India refers in particular to Annexure V to the said report, which contained a list of those treaties and engagements. It notes that the General Act of 1928 does not appear on that list. Pakistan, however, observes that other important treaties do not appear on the list, which has "certain very significant omissions".

India further observes that, in any event, even assuming that the 1947 agreement does have the scope claimed for it by Pakistan, it cannot take precedence over the provisions of customary law as codified in the 1978 Vienna Convention on Succession of States in respect of Treaties, as Article 8 of the Convention makes clear.

In short, and as India stated on 18 September 1974 in its communication to the United Nations Secretary-General with regard to Pakistan's notification of succession of 30 May 1974, Pakistan could not have, and did not, become party to the General Act of 1928.

22. Each of the Parties further relies in support of its position on the practice since 1947. In this regard Pakistan recalls inter alia that, under the agreement signed at Simla on 2 July 1972, which entered into force on 4 August of that same year (hereinafter called the "Simla Accord"), the two States declared themselves "resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them" (emphasis added in Pakistan's Memorial). According to Pakistan, "as Chapter II of the General Act . . . [of 1928] was a 'peaceful means' already 'agreed upon' by both [P]arties before the relevant date (2nd July 1972) and created mutually binding obligations between them, the aforementioned provision of the Simla Accord reaffirms and makes the procedure under Article 17 of the General Act of 1928 truly efficacious". That procedure accordingly "continued to be available, in any case till 18 September 1974".

23. For its part, India argues that the Simla Accord

"is no more than an arrangement between India and Pakistan first to enter into negotiations in case of any difference, and following such negotiations, to refer the matter to any other method of settlement to the extent that there is any further and specific agreement between the parties".

It adds that, in any event, India's communication to the United Nations Secretary-General of 18 September 1974 is a clear manifestation of its will not to be bound by the General Act of 1928, stating more particularly in this regard: [p 23]

"while Article 45 of the General Act states that denunciation 'shall be effected by a written notification addressed' to the depository, it does not require this notification to take any particular form. India addressed such notification to the Secretary-General of the United Nations; it goes beyond a simple denunciation but it is not reasonable not to recognize that it is that at least."

Pakistan, for its part, is of the opinion that the said communication, not having been made in accordance with the procedure provided for in Article 45, does not amount to a formal denunciation of the Act.

24. Lastly, India recalls that when British India acceded to the General Act on 21 May 1931 it attached various reservations to that accession. Thus it was stated that:


"the following disputes are excluded from the procedure described in the General Act . . .

(iii) Disputes between the Government of India and the Government of any other Member of the League which is a Member of the British Commonwealth of Nations, all of which disputes shall be settled in such a manner as the parties have agreed or shall agree".
……………………………………………………………………………………………
(v) Disputes with any Party to the General Act who is not a Member of the League of Nations."

India argues that Pakistan "was not and did not become a Member of the League of Nations" and that this latter reservation accordingly excludes any jurisdiction of the Court in this case. It adds that, even assuming that Pakistan were to be regarded as having belonged or belonging to the League of Nations, then the first reservation would become applicable, since the dispute before the Court is between two countries which are members of the Commonwealth.

25. Pakistan, for its part, contends in its Memorial that

"the reservations made by India while becoming a party to the General Act on 21 May 1931 do not fall under the permissible reservations exhaustively set out in Article 39 of the General Act. They are inadmissible and have no legal effect" (original emphasis).

*

26. The Court would observe that the question whether the General Act of 1928 is to be regarded as a convention in force for the purposes of Article 37 of the Statute of the Court has already been raised, but not settled, in previous proceedings before the Court (see I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 348; I.C.J. Pleadings, Trial of Pakistani Prisoners of War (Pakistan v. India), p. 143; case concerning the Aegean Sea Continental Shelf (Greece v. Turkey), I.C.J. Reports 1978, Judg-[p 24]ment of 19 December 1978, p. 17). In the present case, as recalled above, the Parties have made lengthy submissions on this question, as well as on the question whether British India was bound in 1947 by the General Act and, if so, whether India and Pakistan became parties to the Act on their accession to independence. Further, relying on its communication to the United Nations Secretary-General of 18 September 1974 and on the British India reservations of 1931, India denies that the General Act can afford a basis of jurisdiction enabling the Court to entertain a dispute between the two Parties. Clearly, if the Court were to uphold India's position on any one of these grounds, it would no longer be necessary for it to rule on the others.

As the Court pointed out in the case concerning Certain Norwegian Loans, when its jurisdiction is challenged on diverse grounds, "the Court is free to base its decision on the ground which in its judgment is more direct and conclusive" (I.C.J. Reports 1957, p. 25). Thus, in the Aegean Sea Continental Shelf case, the Court stated that:


"although under Article 59 of the Statute 'the decision of the Court has no binding force except between the parties and in respect of that particular case', it is evident that any pronouncement of the Court as to the status of the 1928 Act, whether it were found to be a convention in force or to be no longer in force, may have implications in the relations between States other than [the Parties in the case]" (I.C.J. Reports 1978, pp. 16-17, para. 39).

The Court went on to rule on the effect of a reservation by Greece to the General Act of 1928 without deciding the issue whether that convention was still in force. In the present case, the Court will proceed in similar fashion and begin by examining the communication addressed by India to the United Nations Secretary-General on 18 September 1974.

27. In that communication, the Minister of External Affairs of India declared the following:

"I have the honour to refer to the General Act of 26th September 1928 for the Pacific Settlement of International Disputes, which was accepted for British India by the then His Majesty's Secretary of State for India by a communication addressed to the Secretariat of the League of Nations dated 21st May 1931, and which was later revised on 15th February 1939.

The Government of India never regarded themselves as bound by the General Act of 1928 since her Independence in 1947, whether by succession or otherwise. Accordingly, India has never been and is not a party to the General Act of 1928 ever since her Independence. I write this to make our position absolutely clear on this point so that there is no doubt in any quarter."[p 25]

28. Thus India considered that it had never been party to the General Act of 1928 as an independent State; hence it could not have been expected formally to denounce the Act. Even if, arguendo, the General Act was binding on India, the communication of 18 September 1974 is to be considered in the circumstances of the present case as having served the same legal ends as the notification of denunciation provided for in Article 45 of the Act. On 18 October 1974 the Legal Counsel of the United Nations, acting on instructions from the Secretary-General, informed the member States of the United Nations, together with Liechtenstein, San Marino and Switzerland, of India's "notification". It follows from the foregoing that India, in any event, would have ceased to be bound by the General Act of 1928 at the latest on 16 August 1979, the date on which a denunciation of the General Act under Article 45 thereof would have taken effect. India cannot be regarded as party to the said Act at the date when the Application in the present case was filed by Pakistan. It follows that the Court has no jurisdiction to entertain the Application on the basis of the provisions of Article 17 of the General Act of 1928 and of Article
37 of the Statute.

**

29. Pakistan seeks, secondly, to found the jurisdiction of the Court on the declarations made by the Parties under Article 36, paragraph 2, of the Statute. Pakistan's current declaration was filed with the United Nations Secretary General on 13 September 1960; India's current declaration was filed on 18 September 1974. India disputes that the Court has jurisdiction in this case on the basis of these declarations. It invokes, in support of its position, the reservations contained in subparagraphs (2) and (7) of the first paragraph of its declaration; those reservations are formulated as follows:

"I have the honour to declare, on behalf of the Government of the Republic of India, that they accept, in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special agreement, and on the basis and condition of reciprocity, the jurisdiction of the International Court of Justice over all disputes other than:
………………………………………………………………………………………………
(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations;
………………………………………………………………………………………………
(7) disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction;
………………………………………………………………………………………………
[p 30]
30. With respect to the first of these reservations, relating to States which are or have been members of the Commonwealth (hereinafter called the "Commonwealth reservation"), Pakistan contended in its written pleadings that it "ha[d] no legal effect", on the grounds that: it was in conflict with the "principle of sovereign equality" and the "universality of rights and obligations of members of the United Nations"; it was in breach of "good faith"; and that it was in breach of various provisions of the United Nations Charter and of the Statute of the Court.

In its Memorial, Pakistan claimed in particular that the reservation in question "[was] in excess of the conditions permitted under Article 36 (3) of the Statute", under which, according to Pakistan, "the permissible conditions [to which a declaration may be made subject] have been exhaustively set out [. . .] as (i) on condition of reciprocity on the part of several or certain states or (ii) for a certain time." This reservation was accordingly "illicit". It was, however, "not so central as to constitute 'an essential basis of the consent of India' to be bound by its declaration under the optional clause". Hence acceptance of the Court's jurisdiction under Article 36, paragraph 2, of the Statute would remain valid, the aforementioned reservation not being applicable. Pakistan contended in the alternative, citing Article 1 of the Simla Accord, that, even if the reservation were to be regarded as valid, India would in any case be prevented from invoking it against Pakistan by the operation of estoppel.

In its oral pleadings, Pakistan developed its argument based on Article 36, paragraph 3, of the Statute, contending that reservations which, like the Commonwealth reservation, did not fall within the categories authorized by that provision, should be considered "extra-statutory". On this point it argued that:

"an extra-statutory reservation made by a defendant State may be applied by the Court against a plaintiff State only if there is something in the case which allows the Court to conclude [. . .] that the plaintiff has accepted the reservation. Such acceptance can be inferred in two situations. One is where the plaintiff State has itself made the same or a comparable reservation. The other is when the plaintiff, being confronted by the invocation of the reservation by the defendant State, has shown itself willing to join issue on the interpretation of the content of the reservation, without challenging its opposability to itself. But if the plaintiff challenges the applicability of the reservation [. . .] then the Court must decide, by reference to its content and the circumstances, whether it is applicable or opposable as against the plaintiff."


Pakistan further claimed at the hearings that the reservation was "in any event inapplicable, not because it [was] extra-statutory and unopposable to Pakistan but because it [was] obsolete". In support of this position, [p 27] Pakistan inter alia gave the following account of the historical origins of this reservation:

"it grew out of a conception of what was then called 'the British Commonwealth of Nations'. This was based on the idea that international law was not applicable in relations between the Commonwealth members. The idea was called the 'inter se doctrine'. The Commonwealth was a close-knit family. Disputes between its members were not governed by international law and were not appropriate for settlement in an international court. They were intended to be dealt with in other 'family tribunals' which, in fact, never came into existence . . . the original idea of the inter se doctrine has withered away, and . . . the Commonwealth members, including India, have come to regard each other as ordinary States between whom the normal rules of international law apply and between whom litigation may take place upon an international level, in the ordinary way."

Finally, Pakistan claimed that India's Commonwealth reservation, having thus lost its raison d'etre, could today only be directed at Pakistan. In Pakistan's view:

"the Commonwealth reservation [was] maintained by India only as a bar to actions by Pakistan . . . This discrimination against Pakistan in India's acceptance of the optional clause really amount[ed] to an abuse of right."

31. India rejects Pakistan's line of reasoning. In its Counter-Memorial, it disputed in the following terms the argument in Pakistan's Memorial that the Commonwealth reservation was contrary to the provisions of Article 36, paragraph 3, of the Statute:

"None of the commentators on the jurisdiction of the Court . . . have suggested that the reservation is invalid on this, or any other, ground. Article 36 (3) was envisaged from the beginning as allowing a choice of partners [in regard to which a government was prepared to accept the jurisdiction of the Court] . . ."

On this point, India, in its oral pleadings, stressed the particular importance to be attached, in its view, to ascertaining the intention of the declarant State. It contended that "there is no evidence whatsoever that the reservation [in question] is ultra vires Article 36, paragraph 3" of the Statute and referred to "the fact [. . .] that it has for long been recognized that within the system of the optional clause a State can select its partners". India accordingly concluded that the challenge to the validity of the reservation had no legal basis, that the reservation in question was a classical reservation ratione personae, that it was "stated in unambiguous [p 28] terms", and that it "involved no subversion of Article 36, paragraph 6, or any other provision of the Statute".

India also queried the correctness of the theory of "extra-statutory" reservations put forward by Pakistan, pointing out that "[any] State against which the reservation [were] invoked, [could] escape from it by merely stating that it [was] extra-statutory in character".

As to Pakistan's argument that the Court might hold itself to have jurisdiction on the basis of India's declaration, even if the reservation were inapplicable, India contends that this is unsustainable, because a reservation cannot be severed from the declaration, of which it is an integral part: "The pertinent unilateral act is undoubtedly the Indian declaration as a single instrument, as a unity, and not the reservation taken in isolation."

India also rejects Pakistan's alternative argument based on estoppel, saying that in any event no estoppel relating to the Court's jurisdiction could arise in relation to the Simla Accord, as it "does not contain a compromissory clause".

Finally, in relation to Pakistan's argument that the Commonwealth reservation is obsolete, India points out that there is no support for it in doctrine, and that:

"even if, for the sake of argument, it were to be conceded that the doctrine of obsolescence was applicable to unilateral acts, it could not apply to the circumstances of a reservation made in 1974 and which has for long been a part of the practice of the Indian Government".

32. As to the second reservation relied on by India in this case, namely that concerning multilateral treaties, Pakistan, in the final version of its argument, states that it:

"is not arguing that the [. . .] reservation is void or inapplicable, or not opposable to it. It does not need to. The multilateral treaty reservation is simply irrelevant and Pakistan relies [. . .] on the view that the Court took of the multilateral treaty reservation in the Nicaragua case."

In this connection Pakistan explains that it:

"does not need to invoke the Charter as the substantive basis for its case, which really rests on considerations of customary international law. The fact that customary international law is embodied in the Charter does not weaken the strength of Pakistan's case."

33. For its part, India, in the final version of its argument, rejects Pakistan's thesis in the following terms:
"Even if, as Pakistan now contends, the claims are based upon customary international law, the multilateral convention reservation [p 29] of India will apply wherever there is a reliance upon causes of action which, in the final analysis, are based upon the United Nations Charter."

*

34. The Court will begin by examining the reservation contained in subparagraph (2) of the first paragraph of India's declaration, namely the Commonwealth reservation.

35. In this regard the Court will first address Pakistan's contention that this is an extra-statutory reservation going beyond the conditions allowed for under Article 36, paragraph 3, of the Statute. According to Pakistan, the reservation is neither applicable nor opposable to it in this case, in the absence of acceptance.

36. On this point, the Court recalls in the first place that its jurisdiction "only exists within the limits within which it has been accepted" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series A/B, No. 74, p. 23). As the Court pointed out in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America):

"declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations." (I.C.J. Reports 1984, p. 418, para. 59.)

37. The Court would further observe that paragraph 3 of Article 36 of its Statute has never been regarded as laying down in an exhaustive manner the conditions under which declarations might be made. Already in 1928, the Assembly of the League of Nations, in a resolution adopted by it regarding "the Optional Clause of Article 36 of the Statute of the Permanent Court of International Justice", had indicated that

"attention should once more be drawn to the possibility offered by the terms of that clause to States which do not see their way to accede to it without qualification, to do so subject to appropriate reservations limiting the extent of their commitments, both as regards duration and as regards scope",

explaining that:

"the reservations conceivable may relate, either generally to certain aspects of any kind of dispute, or specifically to certain classes or lists of disputes, and . . . these different kinds of reservation can be legitimately combined" (Resolution adopted on 26 September 1928).

Moreover, when the Statute of the present Court was being drafted, the [p 30] right of a State to attach reservations to its declaration was confirmed, and it was indeed considered unnecessary to clarify the terms of Article 36, paragraph 3, of the Statute on this point:

"The question of reservations calls for an explanation. As is well known, the article has consistently been interpreted in the past as allowing states accepting the jurisdiction of the Court to subject their declarations to reservations. The Subcommittee has considered such interpretation as being henceforth established. It has therefore been considered unnecessary to modify paragraph 3 in order to make express reference to the right of the states to make such reservations." (Report of Sub-Committee D to Committee IV/1 on Article 36 of the Statute of the International Court of Justice, 31 May 1945, UNCIO, Vol. XIII, p. 559.)

38. The Court notes that this right has been recognized in the practice of States, which attach to their declarations of acceptance of the jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute reservations enabling them to define "the parameters of [that] acceptance" (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 453, para. 44). Indeed, since 1929 a number of Commonwealth States have formulated reservations concerning other Commonwealth members, and such reservations are currently to be found in the declarations of eight of those States.

39. For all of the above reasons, the Court cannot accept Pakistan's argument that a reservation such as India's Commonwealth reservation might be regarded as "extra-statutory", because it contravened Article 36, paragraph 3, of the Statute. It need not therefore pursue further the matter of extra-statutory reservations.

40. Nor can the Court accept Pakistan's argument that India's reservation was a discriminatory act constituting an abuse of right because the only purpose of this reservation was to prevent Pakistan from bringing an action against India before the Court. It notes in the first place that the reservation refers generally to States which are or have been members of the Commonwealth. It would add, as it recalled in paragraphs 36 to 39 above, that States are in any event free to limit the scope ratione personae which they wish to give to their acceptance of the compulsory jurisdiction of the Court.

41. The Court will address, secondly, Pakistan's contention that the Commonwealth reservation was obsolete, because members of the Commonwealth of Nations were no longer united by a common allegiance to the Crown, and the modes of dispute settlement originally contemplated had never come into being.

42. The Court at the outset recalls that any declaration "must be interpreted as it stands, having regard to the words actually used" (Anglo-[p 31] Iranian Oil Co., Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105), and that a reservation must be given effect "as it stands" (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 27). Moreover, as the Court stated in the case concerning Fisheries Jurisdiction (Spain v. Canada), it


"will . . . interpret the relevant words of a declaration including a reservation contained therein in a natural and reasonable way, having due regard to the intention of the State concerned at the time when it accepted the compulsory jurisdiction of the Court" (I.C.J. Reports 1998, p. 454, para. 49).

43. The four declarations whereby, since its independence in 1947, India has accepted the compulsory jurisdiction of the Court have all contained a Commonwealth reservation. In its most recent form, that of 18 September 1974, the reservation was amended so as to cover "disputes with the government of any State which is or has been a Member of the Commonwealth of Nations".

44. While the historical reasons for the initial appearance of the Commonwealth reservation in the declarations of certain States under the optional clause may have changed or disappeared, such considerations cannot, however, prevail over the intention of a declarant State, as expressed in the actual text of its declaration. India has repeatedly made clear that it wishes to limit in this manner the scope ratione personae of its acceptance of the Court's jurisdiction. Whatever may have been the reasons for this limitation, the Court is bound to apply it.

*

45. Pakistan has further argued, in the alternative, that, if the reservation were held to be valid, India would in any event be prevented from relying upon it against Pakistan by the operation of estoppel. For this purpose, Pakistan has cited Article 1 of the Simla Accord, paragraph (ii) of which provides inter alia that

"the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them . . ."

The Court regards this provision as an obligation, generally, on the two States to settle their differences by peaceful means, to be mutually agreed by them. The said provision in no way modifies the specific rules governing recourse to any such means, including judicial settlement. Thus the Court cannot interpret that obligation as precluding India from relying, in the present case, on the Commonwealth reservation contained in its declaration. [p 32]

The Court cannot therefore accept the argument in the present case based on estoppel.

*
46. It follows from the foregoing that the Commonwealth reservation contained in subparagraph (2) of the first paragraph of India's declaration of 18 September 1974 may validly be invoked in the present case. Since Pakistan "is . . . a member of the Commonwealth of Nations", the Court finds that it has no jurisdiction to entertain the Application under Article 36, paragraph 2, of the Statute. Hence it is unnecessary for the Court to consider India's objection based on the reservation concerning multilateral treaties contained in subparagraph (7) of the first paragraph of its declaration.

**

47. Finally, Pakistan has sought to found the jurisdiction of the Court on paragraph 1 of Article 36 of the Statute. It stated the following in its Memorial:

"The jurisdiction of the International Court of Justice is also founded on the provision contained in Article 36 (1) of the Statute of the Court which states, 'The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.' [Emphasis added in the original.] The said Article of the Statute is to be read with Article 1 (1); Article 2, paras. 3 and 4; Article 33; Article 36 (3) and Article 92 of the United Nations Charter. The obligations undertaken under Article 1 of the agreement on bilateral relations between India and Pakistan of 2nd July, 1972, reaffirms this basis of jurisdiction in Article (1), which states that 'The principles and purposes of the United Nations Charter shall govern the relations between the two countries'."

At the hearings Pakistan's counsel expressed himself as follows:

"let me very briefly recall the two main grounds on which Pakistan rests jurisdiction: (i) the optional clause; (ii) the General Act. I will not pursue the argument that the Court has jurisdiction under Article 36, paragraph 1, as the case specially provided for in the Charter."

48. The Court observes that the United Nations Charter contains no specific provision of itself conferring compulsory jurisdiction on the Court. In particular, there is no such provision in Articles 1, paragraph 1, 2, paragraphs 3 and 4, 33, 36, paragraph 3, and 92 of the Charter, relied on by Pakistan.[p 33]

49. Pakistan also relied on Article 1 of the Simla Accord, which provides that

"the Government of India and the Government of Pakistan have agreed as follows:

(i) That the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries".

This provision represents an obligation entered into by the two States to respect the principles and purposes of the Charter in their mutual relations. It does not as such entail any obligation on India and Pakistan to submit their disputes to the Court.

50. It follows that the Court has no jurisdiction to entertain the Application on the basis of Article 36, paragraph 1, of the Statute.

***

51. Finally, the Court would recall that


"there is a fundamental distinction between the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law . . . Whether or not States accept the jurisdiction of the Court, they remain in all cases responsible for acts attributable to them that violate the rights of other States." (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456, paras. 55-56.)

52. As the Permanent Court of International Justice had already observed in 1929, and as the present Court has reaffirmed,

"the judicial settlement of international disputes, with a view to which the Court has been established, is simply an alternative to the direct and friendly settlement of such disputes between the Parties;. . . consequently it is for the Court to facilitate, so far as is compatible with its Statute, such direct and friendly settlement" (case concerning the Free Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22, p. 13; see also Frontier Dispute (Burkina Faso v. Republic of Mali), I.C.J. Reports 1986, p. 577, para. 46, and Passage through the Great Belt (Finland v. Denmark), I.C.J. Reports 1991, p. 20).

53. The Court's lack of jurisdiction does not relieve States of their obligation to settle their disputes by peaceful means. The choice of those means admittedly rests with the parties under Article 33 of the United Nations Charter. They are nonetheless under an obligation to seek such a settlement, and to do so in good faith in accordance with Article 2, paragraph 2, of the Charter.

54. As regards India and Pakistan, that obligation was restated more [p 34] particularly in the Simla Accord of 2 July 1972, which provides that "the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them". Moreover, the Lahore Declaration of 21 February 1999 reiterated "the determination of both countries to implementing the Simla Agreement".

55. Accordingly, the Court reminds the Parties of their obligation to settle their disputes by peaceful means, and in particular the dispute arising out of the aerial incident of 10 August 1999, in conformity with the obligations which they have undertaken (cf. Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 456, para. 56).

***
56. For these reasons,

THE COURT,

By fourteen votes to two,

Finds that it has no jurisdiction to entertain the Application filed by the Islamic Republic of Pakistan on 21 September 1999.

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Buergenthal; Judge ad hoc Reddy;

AGAINST: Judge Al-Khasawneh; Judge ad hoc Pirzada.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-first day of June two thousand, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Islamic Republic of Pakistan and the Government of the Republic of India, respectively.

(Signed) Gilbert Guillaume,
President.

(Signed) Philippe Couvreur,
Registrar.

Judges ODA, KOROMA and Judge ad hoc REDDY append separate opinions to the Judgment of the Court. [p 35]

Judge AL-KHASAWNEH and Judge ad hoc PIRZADA append dissenting opinions to the Judgment of the Court.

(Initialled) G. G.
(Initialled) Ph. C. [p 36]


Separate Opinion of Judge Oda

1. I fully support the Court's finding that it has no jurisdiction to entertain the Application filed by Pakistan on 21 September 1999 (instituting proceedings against India in respect of a dispute relating to the destruction, on 10 August 1999, of a Pakistani aircraft) on any of the bases asserted by Pakistan as grounds for the Court's jurisdiction: (i) Article 17 of the General Act of 1928; (ii) the declarations made by both Parties pursuant to Article 36, paragraph 2, of the Court's Statute; and (iii) paragraph 1 of Article 36 of the Court's Statute.

2. I would, however, like to shed light on the General Act of 1928, on which Pakistan relies as one of the grounds for the Court's jurisdiction and which the Court rejects as such.

Pakistan claims that British India (India) acceded to that Act on 21 May 1931 and that Pakistan itself acceded to that Act by automatic succession pursuant to international customary law. The Court, without finding it necessary to decide the issue of whether the General Act of 1928 itself is still in force, states that "India cannot be regarded as a party to the [General Act of 1928] at the date when the Application in the present case was filed by Pakistan" and concludes that "the Court has no jurisdiction to entertain the Application on the basis of the provisions of Article 17 of the General Act of 1928" (see Judgment, paras. 13-28).

I do not disagree with the Court's reasoning rejecting Article 17 of the General Act of 1928 as a basis for the Court's jurisdiction. I, however, see the General Act, which in Pakistan's view is a basis for the Court's jurisdiction, from a different angle.

3. I believe, for my part, that from the outset, the General Act of 1928 could not itself be considered a document which would confer compulsory jurisdiction upon the Court independently from or in addition to the "optional clause" under Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice. This is the point on which [p 37] I take issue with the reasoning adopted by the Court in ruling that Article 17 of the General Act of 1928 cannot constitute a basis of the Court's jurisdiction.

It is pertinent in this respect to take a brief look at how and in what circumstances the General Act, which Pakistan cites as grounds for the Court's jurisdiction, was drafted in 1928 and the related issue of the manner in which the concept of the compulsory jurisdiction of the Permanent Court has developed.

***

4. The Statute of the Permanent Court of International Justice (as approved by the Assembly of the League of Nations on 13 December 1920) entered into force on 2 September 1921 after the "Protocol of Signature of the Statute for the Court" had been ratified by a majority (namely, 27 States) of the Members of the League of Nations (note: the First Annual Report of the Permanent Court shows, on page 124, that 48 Members of the League of Nations had signed the Protocol by 1 June 1925).

Article 36 of the Statute, dealing with the Court's jurisdiction, provides in its paragraph 2 that:

"The Members of the League of Nations and the States mentioned in the Annex to the Covenant may, either when signing or ratifying the protocol to which the present Statute is adjoined, or at a later moment, declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other Member or State accepting the same obligation, the jurisdiction of the Court in all or any of the classes of legal disputes concerning:

(a) The interpretation of a Treaty;

(b) Any question of International Law;

(c) The existence of any fact which, if established, would constitute a breach of an international obligation;

(d) The nature or extent of the reparation to be made for the breach of an international obligation."

The States parties to the Court's Statute could make declarations under Article 36, paragraph 2, the model of which was worded in the Protocol of Signature of the Court as follows:

"Optional Clause

The undersigned, being duly authorised thereto, further declare, on behalf of their Government that, from this date, they accept as compulsory ipso facto and without special Convention, the jurisdiction of the Court in conformity with Article 36, paragraph 2, of the Statute of the Court, under the following conditions . . ."

5. Not many States, in fact, made this declaration in the first few years [p 38] after the Permanent Court was set up. Information maintained by the League of Nations in its early days varied according to the documents consulted. However, the first four volumes of the Annual Report of the P.C.I.J., taken as a whole, would seem to indicate that the following States successively made declarations and became bound by the "optional clause" within a few years of adoption of the Court's Statute: Austria 1921; Denmark 1921; Switzerland 1921; Netherlands 1921; Bulgaria 1921; Sweden 1921; Uruguay 1921; Norway 1921; Portugal 1921; Haiti 1921; Finland 1922; Lithuania 1922; and Estonia 1923 (see the Fourth Annual Report, pp. 120, 416).

This list may not be entirely accurate or complete due to unclear source information, which is conflicting even in the Permanent Court's documents. Yet it was evident that the number of such States making the declaration was not large when compared with the total number of some 50 States that were parties to the Statute of the Permanent Court.

**

6. In these circumstances the Assembly of the League of Nations, in its fifth session in 1924, in order to facilitate acceptance of the compulsory jurisdiction of the Court by as many countries as possible, replied to the question of the legality of making a reservation to the "optional clause". On 2 October 1924 the Assembly passed a resolution in which it considered that "the study of the . . . terms [of Article 36, paragraph 2] shows them to be sufficiently wide to permit States to adhere to the special Protocol, opened for signature in virtue of Article 36, paragraph 2, with the reservations which they regard as indispensable" and recommended States to accede at the earliest possible date to the optional clause (League of Nations Official Journal, Special Supplement No. 23, p, 225; see p. 497: (Annex 30) Annex I (2) to A.135.1924).

7. In parallel with this resolution of 2 October 1924, the Assembly recommended on the same day that all Members of the League of Nations accept the "Protocol for the Pacific Settlement of International Disputes" which the Assembly had drafted out of the desire to "facilitat[e] the complete application of the system provided in the Covenant of the League of Nations for the pacific settlement of disputes between States". Article 3 of the "1924 Protocol" reads:

"The Signatory States undertake to recognise as compulsory, ipso facto and without special agreement, the jurisdiction of the Permanent Court of International Justice in the cases covered by paragraph 2 of Article 36 of the Statute of the Court, but without prejudice to the right of any State, when acceding to the [optional clause] to make reservations compatible with the said clause." (Ibid., p. 225; see p. 498 (Annex 30a) Annex II to A.135.1924.) [p 39]

On reading this text it is clear, however, that the 1924 Protocol was not drafted in order to have the States parties directly bound by the compulsory jurisdiction of the Court but rather to encourage more States to accept the "optional clause" of the Court's Statute without prejudice to the rights of States to make reservations they regarded as indispensable. The drafters of the Protocol apparently did not consider that those States unwilling to adhere to the compulsory jurisdiction of the Court by accepting the "optional clause" of the Statute would in any case assume anew the same obligation simply by acceding to the 1924 Protocol.

Both the Resolution mentioned in paragraph 6 above and another Resolution to which the "1924 Protocol" was annexed dealing with what the Assembly contemplated under a single subject-heading, namely, "Arbitration, Security and Reduction of Armaments: Protocol for the Pacific Settlement of International Disputes", were intended to facilitate adherence to the "optional clause" of the Court's Statute by allowing States to make whatever reservations they regarded as indispensable. They were voted on together by roll-call and were passed by the unanimous vote of the 48 delegates present.

8. In fact, in the first few years after 1924, only a few States (namely, Belgium 1926; Ethiopia 1926; and Germany 1928) were to make declarations under the "optional clause" in response to the appeal in the Resolution that "States accede at the earliest possible date" to that clause; the "1924 Protocol" was not ratified by even one State and thus did not come into force.

**

9. The Assembly in its ninth session in 1928 reiterated its appeal to States to make declarations to accept the compulsory jurisdiction of the Court. In a Resolution adopted on 26 September 1928 regarding the optional clause of Article 36 of the Court's Statute, the Assembly referred to the 1924 Resolution, which, in its view, "ha[d] not so far produced all the effect that [was] to be desired". The Assembly was of the opinion that "in order to facilitate effectively the acceptance of the clause in question, it is expedient to diminish the obstacles which prevent States from committing themselves" and was further convinced that

"attention should once more be drawn to the possibility offered by the terms of that clause to States which do not see their way to accede to it without qualification, to do so subject to appropriate reservations limiting the extent of their commitments, both as regards duration and as regards scope".

The Assembly recommended that "States which have not yet acceded to the optional clause of Article 36 of the Statute . . . should, failing acces[p 40]sion pure and simple, consider, with due regard to their interests, whether they can accede on the conditions above indicated" (League of Nations Official Journal, Special Supplement No. 64, p. 182; see p. 491).

10. Thus, within less than ten years of the founding of the Permanent Court, reservations to the jurisdiction of the Court had become permissible in order to encourage States to accept the Court's compulsory jurisdiction.

A fairly large number of States acceded to the "optional clause" with various types of reservation appended. By 1939, the total number of States which had ratified the "optional clause", and were thus bound by it, was 29. These declarations, each accompanied by various types of reservation, are found in the Annual Reports of the Permanent Court.

India, as one of these States, made a declaration on 19 September 1929 reading:

"On behalf of the Government of India and subject to ratification, I accept as compulsory ipso facto and without special convention on condition of reciprocity the jurisdiction of the Court in conformity with Article 36, paragraph 2, of the Statute of the Court, for a period of ten years and thereafter until such time as notice may be given to terminate the acceptance, over all disputes arising after the ratification of the present declaration with regard to situations or facts subsequent to the said ratification:

other than . . . disputes with the government of any other Member of the League which is a member of the British Commonwealth of Nations, all of which disputes shall be settled in such manner as the Parties have agreed or shall agree . . ." (Sixth Annual Report of the Permanent Court of International Justice (June 15th, 1929-June 15th, 1930), p. 482.)

India's accession to the "optional clause" with the Commonwealth reservation was identical to those of Great Britain (19 September 1929) and other Commonwealth nations such New Zealand (19 September 1929), the Union of South Africa (19 September 1929), Australia (20 September 1929), and Canada (20 September 1929).

*

11. In parallel with the above-mentioned resolution, the Assembly also at its ninth session in 1928 prepared a draft of a General Act for the Pacific Settlement of International Disputes in an attempt to unify the numerous existing bilateral arbitration and conciliation treaties by way of a comprehensive multilateral instrument. The draft suggested new concepts for the "permanent or special conciliation commission" (Chapter I: Conciliation) and the "arbitral tribunal" (Chapter III: Arbitration), both of which could be constituted according to the Act.

The draft of the General Act also provided for the judicial settlement of international legal disputes (Chapter II: Judicial Settlement), namely [p 41] resort to the Permanent Court. A State might accede to the 1928 General Act by choosing one of three formulae: Formula A (all provisions relating to conciliation, judicial settlement and arbitration); Formula B (conciliation and judicial settlement); Formula C (conciliation only) (General Act of 1928, Art. 38). Judicial settlement was in all cases accompanied by resort to conciliation or arbitration.

Article 17, namely the first Article in Chapter II (Judicial Settlement), of the General Act read:

"All disputes with regard to which the parties are in conflict as to their respective rights shall, subject to any reservations which may be made under Article 39, be submitted for decision to the Permanent Court . . . unless the parties agree, in the manner hereinafter provided, to have resort to an arbitral tribunal.

It is understood that the disputes referred to above include in particular those mentioned in Article 36 of the [Court's] Statute."

Article 39 (referred to in the above text) applied not only to the chapter on judicial settlement but also to those on conciliation and arbitration, and read "a Party, in acceding to the present General Act, may make his acceptance conditional upon the reservations exhaustively enumerated in the following paragraph"; those reservations were restricted to three possibilities and did not include anything related to the Commonwealth reservation.

12. It is important to note, however, that in the draft of the General Act judicial settlement (Chapter II) was treated differently from the cases of conciliation and arbitration, in that resort to the existing institution of the Permanent Court itself was not new. This indicates that, as far as resort to the Permanent Court is concerned, the text of the General Act added nothing new to the existing "optional clause" under the Court's Statute. Accession to the General Act under Formula A or B (covering judicial settlement) was not intended to replace acceptance of the "optional clause" or to create any obligation with respect to the Court's jurisdiction. The States parties to the Court's Statute remained free at all times to accept the "optional clause" under the Statute. As far as the compulsory reference of disputes to the Permanent Court is concerned, the General Act did not have any real effect and cannot be considered to impose a new obligation upon those States which acceded to it or to modify the Court's jurisdiction which the States had previously accepted. In other words, the General Act, in its part dealing with judicial settlement (Chapter II), was not intended to replace or be a substitute for Article 36, paragraphs 1 and 2, as a basis for the Court's jurisdiction.

The Assembly, in parallel with the Resolution mentioned in paragraph 9 above, adopted on the same day a resolution urging the Assembly to adopt the General Act.

13. In addition, these provisions regarding judicial settlement show [p 42] that the General Act should have been considered in combination with the Assembly's Resolution, mentioned in paragraph 10 above, which was designed as an appeal to States to accept the compulsory jurisdiction of the Permanent Court, even with such reservations attached as the States might deem indispensable. The General Act cannot be considered as inconsistent with the intended effect of the Resolution - adopted in parallel and on the same date as the Act. I would like to repeat what I said in paragraph 7 above in connection with the 1924 Protocol, which is equally relevant to the General Act, and I quote:

"[t]he drafters of the [1924 Protocol] apparently did not consider that those States unwilling to adhere to the compulsory jurisdiction of the Court by accepting the 'Optional Clause' of the Statute would in any case assume anew the same obligation simply by acceding to the [1924 Protocol]".

14. The General Act of 1928 entered into force on 16 August 1929 after the required number of States (namely, two: Sweden (13 May 1929) and Belgium (18 May 1929)) had acceded to it in 1929. Other States followed suit: 23 States altogether have acceded to the General Act and Latvia's accession on 17 September 1935 was the last of those. (See Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1999, New York, United Nations, 2000.)

In fact, all 23 States which, in the period of several years after 1928, acceded to the General Act of 1928 had, prior to that accession, made declarations under the "optional clause". This is shown in the attached table, which is based on the best available information. It is also noteworthy that the reservations these States attached to their accession to the General Act were in substance the same as those attached to their respective declarations accepting the Court's jurisdiction under the "optional clause".

15. India, which, as I have explained, had already adopted the "optional clause" on 19 September 1929, acceded to the General Act on 21 May 1931, in parallel with Great Britain and other Commonwealth countries, such as Australia, New Zealand, and Canada (note: Canada's accession occurred on 1 July 1931):

"Subject to the following conditions:

1. That the following disputes are excluded from the procedure described in the General Act . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) Disputes between the Government of [India] and the Government of any other Member of the League which is a Member of the British Commonwealth of Nations, all of which disputes shall be settled in such a manner as the parties have agreed or shall agree."

(Note: this reservation was common to all the Commonwealth nations mentioned above.)

[p 43]
 

State

 

Date of Accession to the

General Act of 1928

 

Date of declaration of the

optional clause

Sweden

13 May 1929

18 March 1926

Belgium

18 May 1929

25 September 1925

Denmark

14 April 1930

28 January 1921

Norway

11 June 1930

6 September 1921/22 September 1926

Netherlands

8 August 1930

6 August 1921/22 September 1926

Finland

6 September 1930

3 March 1927

Luxembourg

15 September 1930

1921

Spain

16 September 1930

21 September 1928

Australia

21 May 1931

20 September 1929/14 March 1922

France

21 May 1931

19 September 1929

Great Britain

21 May 1931

19 September 1929

India

21 May 1931

19 September 1929

New Zealand

21 May 1931

19 September 1929

Canada

1 July 1931

20 September 1929/28 July 1930

Estonia

3 September 1931

25 June 1928

Italy

7 September 1931

9 September 1929

Greece

14 September 1931

12 September 1929

Ireland

26 September 1931

14 September 1929

Peru

21 November 1931

19 September 1929

Turkey

26 June 1934

26 June 1934

Switzerland

7 December 1934

7 December 1934

Ethiopia

15 March 1935

12 July 1926

Latvia

17 September 1935

10 September 1929



(Note: the dates shown in the above table have been taken from the Annual Reports of the Permanent Court of International Justice.)

On the eve of the outbreak of war in Europe, India (along with the United Kingdom and some other Commonwealth nations), by means of a communication received at the Secretariat on 15 February 1939, made a declaration stating that:

"India will continue, after the 16th August 1939, to participate in the [General Act] subject to the reservation that, as from that date, the participation of India will not . . . cover disputes arising out of events during the war. The participation of India in the General Act, after the 16th August 1939, will continue, as heretofore, to be subject to the reservations set forth in the instrument of accession in respect of India."

*[p 44]

16. The General Act was revised in 1949 to take account of the new United Nations system. Since that time not one single State has acceded to the General Act in its 1949 revised form. On the contrary, some States have denounced the General Act to which they had previously acceded.

After the Second World War, Pakistan declared, in its notification of succession dated 30 May 1974 (see United Nations Treaty Collection Database, update 13 June 2000) to the Secretary-General, that it "continues to be bound by the accession of British India of the General Act of 1928" and that it "does not, however, affirm the reservations made by British India". This is the only positive action taken in the post-war period by any State in connection with the General Act of 1928.

***

17. I now conclude this extensive discussion of the 1928 General Act by repeating, as I stated in paragraph 2 above, that I agree that the Court has no jurisdiction to entertain the Application of Pakistan on the basis of the provisions of Article 17 of the General Act but I come to this conclusion for different reasons: namely, not because, as the Court maintains, India is presently not a party to the General Act of 1928 as revised in 1949, but because the Act itself cannot be considered a document that would confer compulsory jurisdiction upon the Court independently from or in addition to the "optional clause" under Article 36, paragraph 2, of the Statute of either the Permanent Court or of the present Court. The Court's jurisdiction is conferred only pursuant to Article 36, paragraphs 1 or 2, of its Statute.

(Signed) Shigeru Oda. [p 45]



Separate opinion of Judge Koroma

I entirely agree with the dispositive findings of the Court in this phase of the proceedings and the reasoning which underpins them. There is, however, one aspect of the matter which, in my view, also deserves a response in the light of the importance of this dispute. Pakistan, in its Memorial and in the course of the oral hearings, contended that the destruction of its aircraft by India on 10 August 1999, with the attendant loss of life, and the violation of its territorial integrity by India were in breach of the United Nations Charter, the relevant rules of customary international law and treaties, and accordingly rendered the dispute justiciable.

Thus formulated, there can be no doubt that the acts complained of by Pakistan, and their consequences, raise legal issues involving a conflict of the rights and obligations of the Parties, a conflict capable of being settled by applying international law, which the Court, as a court of law, would have been entitled to do were it competent to do so (Article 38 of the Statute).

However, it is to be observed that it is one thing whether a matter before the Court is justiciable and quite another whether that matter is properly before the Court for it to be entitled to exercise its jurisdiction. In this regard, whether the Court should perform its judicial function in a given dispute or whether it should adjudicate such a dispute on its merits depends entirely on the consent of the parties, which they must have given prior to the institution of the proceedings or in the course of the proceedings themselves.

In other words, the issue whether there is a conflict of legal rights and obligations between parties to a dispute and the application of international law (justiciability) is different from whether the Court has been vested with the necessary authority by the parties to a dispute to apply and interpret the law in relation to that dispute. The Court is forbidden by its Statute and jurisprudence from exercising its jurisdiction in a case in which the parties have not given their consent. It is on this basis that the Court has reached its Judgment. Accordingly, although the function [p 46] of the Court is to apply the law, it cannot impose its jurisdiction on parties. As Judge Lachs stated in another case which came before the Court, such judgment should not be seen as an abdication of the Court's function, but rather a reflection of the system within which the Court is called upon to render justice (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, separate opinion of Judge Lachs, p. 139). On the other hand, the Court is an integral part of the United Nations system; it is entitled to contribute to the peaceful settlement of disputes. Guided by the Charter and its jurisprudence, the Court has judiciously reminded the Parties of the obligation to settle their disputes by peaceful means.

(Signed) Abdul G. Koroma. [p 47]


Separate opinion of Judge Reddy

I agree respectfully with the opinion expressed in the Judgment of this Court that this Court has no jurisdiction to entertain the Application filed by Pakistan on 21 September 1999. I am equally in agreement with the observation made in paragraphs 47 to 51. In particular I wish to emphasize the element of good faith which is required of any State which wishes to settle its disputes with another State as required by Article 33 read with paragraph 2 of Article 2 of the Charter of the United Nations. In this connection, the recitals in the Simla Agreement and Lahore Declaration referred to in paragraph 50 of the Judgment of this Court are of crucial relevance. The Simla Agreement recites that "the two countries (Parties to this case) are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them". The Lahore Declaration, which is as recent as 1999, reiterates "the determination of both countries to implementing the Simla Agreement in letter and spirit". Indeed, the Lahore Declaration goes further and quite significantly refers to the menace of terrorism and "reaffirms their (of the two countries) condemnation of terrorism in all its forms and manifestations and their determination to combat this menace". This addition is not without significance; indeed it refers to a new phenomenon vitiating the relations between the two countries. It is in this context that the "good faith" referred to in paragraph 49 of the Judgment of this Court assumes singular significance. The requirement of "good faith" obliges the two countries to create an atmosphere where the "bilateral negotiations or any other peaceful means mutually agreed upon" can be conducted and carried on meaningfully and in good faith.

I wish the two countries to settle all their differences in the spirit aforementioned and to devote their energies to developing their economies as well as friendly relations between them.

(Signed) B. P. Jeevan Reddy. [p 48]


Dissenting opinion of Judge Al-Khasawneh

Lack of jurisdiction does not relieve Parties of duty to settle dispute through peaceful means - Jurisdiction cannot be invoked on the basis of the United Nations Charter in the absence of consent - Effect of Indian communication of 1974 regarding the General Act - Effect of lack of subsequent reaction to that communication - Conclusion declining jurisdiction, though justifiable, does not possess necessary certainty to fortify it against recurring doubts - Irrelevance of "multilateral treaty" reservation - Justifiable doubts regarding obsolescence of "Commonwealth" reservation - Case not conclusively made for obsolescence - Right of States to make reservation not unlimited - Intention of declarant State to be ascertained from wording of reservation as well as from circumstances - Indian declaration of 1974 - Intended against one State only - Unlike other reservations ratione personae no defensible justification - Extraordinary and exceptional nature of Indian reservation puts it outside purview of permissibility - The issue of separability - Relevance of concepts from major systems of law - Analysis of decision by Indian Supreme Court - Relevance of and analogies from law of treaties - Separability is possible.

1. I regret that in this, the first case in which I participate, I am unable to agree with all the conclusions reached by the majority. Consequently I am unable to join in their decision that the Court has no jurisdiction.

2. Before explaining the reasons that have led me to take this position, I must emphasize that I endorse wholeheartedly the call made by the Court on the two States to settle this dispute, and indeed all the disputes that have plagued their relations since 1947, through peaceful means. The question of jurisdiction is important but it is ultimately a technical matter, and lack of jurisdiction does not in itself indicate that the dispute is not justiciable, nor does it relieve the parties of their duty to pursue peaceful settlement on the basis of international law. I also feel that the call made by the Court is both urgent and appropriate. Its urgency may be measured against the possibilities of dangerous escalation which, on more than one occasion in the recent past, almost brought India and Pakistan to the brink of nuclear confrontation. Its appropriateness, on the other hand, rests on precedent and the fact that in making this call, the Court is acting wholly within its powers, as the principal judicial organ of the United Nations.

3. Within the context of the present case the making of this call is all the more pertinent in view of the disquieting fact that all attempts at pur-[p 49]suing other peaceful means were rejected by the respondent State before the case was brought to the Court.

4. The Court's jurisdiction has been invoked on the grounds that it falls within what is meant by the phrase "all matters specially provided for in the Charter of the United Nations". To the extent that this argument was abandoned by counsel for Pakistan and, more importantly, since the Charter does not provide for compulsory jurisdiction, I find myself in agreement with the majority view.

5. I am also in substantive agreement with my colleagues that the 1928 General Act for the Pacific Settlement of International Disputes does not provide a basis for the Court's jurisdiction in view of the Indian communication of 1974, which, while not constituting a formal denunciation of the said Act, not having been made in accordance with the procedure laid down in Article 45 of the Act, has nevertheless been treated as "a notification" by the Secretary-General of the United Nations. This fact, taken together with the lack of any subsequent reaction by the parties to the Act, including Pakistan - if one is to accept that the latter's communication of 1974 announcing that the Act "continued in force" for Pakistan by way of succession meant that it was party to the General Act - confirms this conclusion.

6. I must add, however, that I share in this conclusion with considerable hesitation, for I continue to believe that the only thing that could be stated with certainty and without too much fear of contradiction with regard to this alleged basis of jurisdiction is that the Dominion of India was bound by the General Act as of 21 May 1931. All else remains in the realm of subjective and contradictory statements, and this includes such questions as whether the Act devolved on Pakistan by automatic succession; whether India continued to be bound by it after its independence by succession or otherwise and - beyond the present case - whether the Act is a political treaty, whether political treaties are transmittable and lastly whether the Act survived the demise of the League of Nations and the conclusion of a revised General Act. By confining itself to the effects of the Indian communication of 1974 and not dealing with these interrelated issues, some of which have appeared before the Court in previous cases, the Court may have achieved mathematical elegance but at the expense of leaving those issues without clarification. In other words the Court based its decision on a conclusion which might be justifiable in the present context, but which falls short of the certainty required to fortify the decision against recurring doubts.

7. The third basis on which the Court's jurisdiction has been invoked is the optional clause system, to which both India and Pakistan are party. Both States have attached various conditions and reservations to their respective declarations accepting the Court's compulsory jurisdiction. Two of them concern us in the present case. Let me refer first to the so-called "multilateral convention" reservation common to both declarations. To the extent that the actions complained of by Pakistan would [p 50] prima facie constitute breaches under customary international law, the reservation is simply irrelevant and cannot bar the Court's jurisdictionFN1.

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FN1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, pp. 424-425, para. 73.
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8. The other reservation, found in the Indian declaration only, is the Commonwealth reservation. As is well known, this reservation has its genesis in a reservation made by the United Kingdom and the six other members of the Commonwealth in 1930 when they became party to the General Act. When the Dominion of India acceded to the General Act in 1931 the reservation was incorporated into the Indian declaration. The rationale for it then was that disputes among Commonwealth members would be settled by a court to be specially created for this purpose but which in fact never came into existence. Notwithstanding this and the further fact that the Commonwealth has since undergone fundamental changes bordering on a metamorphosis, the reservation continued to appear in the declarations made by some Commonwealth countries including recent cases of newly independent States, although the number of States entering such a reservation is quite small. In these circumstances doubts regarding the obsolescence of the reservation are quite justified. I have in mind primarily Judge Ago's dissenting opinion in the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia)FN2, but doubts have also been expressed in the literatureFN3. Against this line of thinking, it has been argued that the doctrine of obsolescence does not apply to unilateral acts. This argument is not without force, except that it is based on the assumption that what starts as a unilateral undertaking goes on being so even when it is transformed into mutual arrangements, raising in other parties to the optional clause system reasonable expectations not dissimilar to those raised under treaty relations. Be this as it may, whilst doubts linger regarding the obsolescence of this reservation, the case has not been conclusively made for obsolescence.

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FN2 I.C.J. Reports 1992, p. 326.
FN3 Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice, pp. 120-122.
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9. The major obstacle to the argument of obsolescence, as far as the present case is concerned, is the repeated insertion of the Commonwealth reservation in successive Indian declarations accepting the Court's compulsory jurisdiction, and it is precisely the maintenance of this reservation and the modifications that were inserted into it that sets the Indian reservation aside from other Commonwealth reservations found in declarations made by other States, and leaves no doubt as to the existence of a conscious will on the part of India to transform the reservation - originally meant as a means of providing for alternative modes of peaceful settlement - into a reservation ratione personae, properly so described, directed against one State only: Pakistan, a State which maintains no similar reservation with regard to India. Thus in 1959 India modified the wording of the reservation to read:

"(2) Disputes with the Government of any State which, on the date of this Declaration, is a Member of the Commonwealth of Nations"FN4.

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FN4 I.C.J. Yearbook 1959-1960, p. 242.
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Omitted from the new version were the words "all of which disputes shall be settled in such manner as the parties have agreed or shall agree" which were contained in previous declarations.

10. In 1974 a new declaration was made by India and again the reservation was maintained, but with a new modification. It now reads:

"(2) disputes with the government of any State which is or has been a Member of the Commonwealth of Nations"FN5.

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FN5 I.C.J. Yearbook 1996-1997, p. 99.
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11. By 1974, Pakistan had left the Commonwealth and the change in the wording was necessary to bar the Court's jurisdiction in disputes with that State, which was in fact trying to invoke that jurisdiction against India. There can be no doubt in the light of those circumstances that the reservation was intended to operate against Pakistan. The only other States that were no longer Members of the Commonwealth were South Africa, but that happened in 1960, and Ireland, which had left the Commonwealth in 1948.

12. The argument has however been made that even if the reservation was directed at Pakistan alone, this would be no more than a classic reservation ratione personae made under a system of compulsory jurisdiction where the practice has permitted a choice of partners, and that therefore the Indian reservation did not amount to discrimination or abuse of rights but is wholly within a declarant State's discretion.

13. I propose now to examine this issue bearing in mind that the Court has never had the opportunity to decide on the validity or otherwise of a reservation excluding disputes ratione personae.

14. As a general comment, it has long been recognized that the practice of the Court has tended to accord States more freedom to enter reservations in their declarations accepting its compulsory jurisdiction than the plain words of Article 36, paragraph 3, of the Statute provide for. One looks in vain for any reflection of the maxim inclusio unius est exclusio alterius. Be this as it may, the fact that a reservation is extra-statutory in the sense that it goes beyond Article 36, paragraph 3, cannot in itself, in view of the existence of settled practice, lead to invalidity. On the other hand, when all allowance is made for political realism and when cognizance is fully taken of the fact that the Court's jurisdiction operates only within the parameters of the declarations and that its jurisdiction has to be proved to the hilt, some room must be left for an objective assessment of the validity or otherwise of the reservations and conditions contained in declarations accepting its jurisdiction. To deny this is to abdicate responsibility. Where the Court strikes a delicate balance between the [p 52] need for care and caution in asserting its jurisdiction on the one hand, and the duty to do justice on the other, has to be decided contextually in each case.

15. Another important consideration to be borne in mind in striking that delicate balance is that the system of international adjudication is not a static one. Indeed, implicit in the very notion of an optional system is a presumption of temporariness. When the concept of an optional clause system was born, it was not possible to gain universal support for a comprehensive system of adjudication and it is still doubtful that such a system can gain support in the foreseeable future, but this should not obscure the need to move towards that ideal.

16. In deciding the validity or otherwise of reservations, the Court cannot be oblivious to the fact that merely to take note of reservations without examining their content can hardly advance the cause of international adjudication. In the realm of questions relating to the determination of its own jurisdiction (la compιtence de la compιtence) the Court has never shied away from rejecting arguments that sought, under the guise of the unilateral nature of declarations, to reserve such matters to the discretion of the declarant State. There is no reason why the same reasoning should not apply to other areas where the Court's jurisdiction is invoked.

17. The distinction drawn between situations that fall under paragraph 6 of Article 36 and the remainder of that Article is an artificial one and, if maintained, will mean that the unity of purpose of the Article will collapse.

18. From the early days of the optional clause system, reservations ratione personae have been made in myriad ways, but they have invariably had a rationale, or at least a reasonably defensible justification. It would not be proper for me to comment on the validity or otherwise of those reservations that have not been considered by the Court - especially as most of them are contained in declarations that have either lapsed or were withdrawn. Suffice it to mention in general that reservations ratione personae meant to provide for alternative ways of peaceful settlement have a rationale that fortifies them against accusations of arbitrariness. Similarly, reservations that made acceptance of compulsory jurisdiction conditional upon a number of State Members of the League of Nations accepting similar commitments also have a justification. Likewise reservations that made recognition of the declarant State a prior condition to adjudication under the optional clause may be said to have a rationale. What sets the Indian Commonwealth reservation apart, as worded in the 1974 declaration, is that it does not even pretend to have a justification. To be sure, any reservation, even if made ratione materiae or rationae temporis or otherwise, will ultimately exclude jurisdiction in respect of disputes between the declarant State and one or more other States. The difference between such reservations and the Commonwealth reservation in this case might be no more than one of more careful con-[p 53]cealment of intent, but declarant States are at least entitled to the benefit of the doubt in this regard. By entering a reservation that cannot be interpreted - when regard is given to its terms and the circumstances in which it was made - except as intended to bar jurisdiction with another State only, and when one also considers that removal of this bar to jurisdiction is not dependent on the fulfilment of an objective condition, and considers further that the State against whom the reservation is intended to operate maintains no similar reservation with regard to the declarant State and is entitled to reasonable expectations of adjudication under the network of engagements that constitutes the optional clause system, one appreciates that the Indian reservation, as presently worded, is of a truly unique nature. The Court could not have been clearer when it stated:

"the unilateral nature of declarations does not signify that the State making the declaration is free to amend the scope and the contents of its solemn commitments as it pleases"FN6.

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FN6 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, p. 418.
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19. An assessment of the terms of the Indian Commonwealth reservation (addition of the words "or has been" a Member of the Commonwealth of Nations), the absence of a reference to alternative means of peaceful settlement agreed upon or to be agreed upon, and a consideration of the circumstances under which the reservation was made together with the actual text, reveal a clear will of arbitrary exclusion and give the reservation an exceptional nature that puts it outside the purview of permissibility. I am compelled therefore to the conclusion that the reservation is invalid and cannot bar the Court's jurisdiction.

20. Having reached this conclusion, I shall now turn to the consequential question of whether the invalid part of the Indian declaration is separable from the rest or, whether, as was argued for India, the declaration and the reservation stand or fall together.

21. The separability of void or invalid reservations from declarations accepting the Court's compulsory jurisdiction is still in most ways terra incognita. The paucity of precedents and the further fact that, on the few occasions when the question was considered - notably in the Certain Norwegian Loans and Interhandel cases, and in the Fisheries Jurisdiction (Spain v. Canada) caseFN7 - it was not settled, are both undoubtedly contributory factors to the lack of authoritative solutions. However, much of [p 54] the uncertainty stems from the very nature of the concept of separability itself, which, though governed by the general principles of interpretation, depends largely on a reconstruction of the parties' probable intention in making the legal act, as well as on another factor, extraneous to the text itself, namely whether continued performance will lead to unjust results for the concerned party after severance of the impugned part.

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FN7 Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 55; Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, pp. 57, 77 and 116; Fisheries Jurisdiction (Spain v. Canada), Jurisidiction of the Court, Judgment, I.C.J. Reports 1998, para. 47.
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22. By contrast to the Court's jurisprudence, a wealth of concepts exists in the major systems of law, and whether these are to be found in the domain of the judicial review of public statutes or of private contracts, they are relevant as general principles of law within the meaning of Article 38, paragraph 1 (c), of the Statute of the Court.

23. Recourse should be had to those concepts and also to the law of treaties (the Vienna Conventions of 1969 and 1986), not only because declarations accepting the Court's compulsory jurisdiction constitute a "network of engagements", but also because the views of some of the judges in the aforementioned cases had the effect of leading the International Law Commission to reopen its consideration of the matter of separability, a process which led in turn to the adoption of Article 44 of the 1969 Vienna Convention on the Law of Treaties, and of the same numbered Article in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, both of which deal with separability.

24. As an example from one of the major systems of law, the Court was kindly invited by the Attorney General for India to consider a case decided by the Supreme Court of India in 1957, in which the underlying principle that:

"The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. If the valid and the invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety."FN8

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FN8 R. M. D. Chamarbaugwalla v. The Union of India, 1957, Supreme Court Reports, pp. 950-951; CR 2000/2, p. 14.
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is said to support India's contention as to inseparability of the reservation from its declaration.

25. A closer look at that decision, far from supporting such a contention, in fact reveals a more complex and less severe test for separability - which relies heavily on United States judicial precedents and authorities - than was suggested to the Court. [p 55]

26. Thus the Indian Supreme Court, in commenting on an earlier decision stated:

"The doctrine of severability rests, as will presently be shown, on a presumed intention of the legislature that if a part of a statute turns out to be void, that should not affect the validity of the rest of it, and that that intention is to be ascertained from the terms of the statute. It is the true nature of the subject-matter of the legislation that is the determining factor, and while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude it."FN9

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FN9 Ibid., p. 944.
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27. As for the test itself, it comprises seven elements, only parts of which were cited in the oral pleadings, i.e., the first element and the first half of the second element. The first element relates to whether the legislature would have enacted the valid part if it had known the invalidity of the rest and is simply irrelevant in the present case.

28. No one has contended that India knew in advance that its Commonwealth reservation was invalid. In fact, India argued that its Commonwealth reservation was not "repugnant to Article 36, paragraph 3, or any other article of the Statute".

29. The second element relating to the valid and invalid portions being so inextricably mixed up that they cannot be separated, is balanced by the rest of the element under the same heading (which was not cited), but which states:

"On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable."FN10

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FN10 R. M. D. Chamarbaugwalla v. The Union of India, 1957, Supreme Court Reports, p. 951.
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Applying this to the Indian declaration, even a cursory perusal would confirm that its various elements are formally classified into distinct headings and apply ratione materiae to separate matters, the integrity of which would not be affected by striking out the impugned reservation.

30. The third element is that even if the valid and invalid parts are distinct, the invalidity of some will result in the invalidity of the whole, if they all form part of a single scheme intended to operate as a whole. This element of the test is more to the point, for here the intention of the legislature or - by analogy - the declarant State comes to the forefront and assumes primacy over the other elements. But in this area also, the Indian argument fails because of the lack of evidence to support the [p 56] claim that the declaration and reservation were intended to operate as a single scheme. Nothing can be more obvious than the fact that ex post facto statements made while this case was being considered before the Court to the effect that the declaration "constitutes an integral whole, an unity, reflecting the intention of the party" cannot substitute retroactively for the total lack of evidence. The only evidence that could be adduced in this respect was the fact that the Commonwealth reservation was maintained in the various declarations made by India accepting compulsory jurisdiction. No firm inference however can be drawn from this practice, save the inference that the reservation was important - perhaps even of considerable importance - to India, but this cannot of itself support a finding that it was the crucial or essential element in India's acceptance of compulsory jurisdiction. In the first place there is a general presumption that States do not act lightly or frivolously and, in the area of formulating the terms of their acceptance of the Court's compulsory jurisdiction, it is reasonable to assume that States attach importance to all the reservations and conditions contained in their declarations, especially if such conditions have withstood the test of time and the even more havoc-wreaking scrutiny of rigorous officials. However, to infer that every reservation that has not been purged or trimmed falls within the ambit of the crucial element of consent is to assume too much.

31. In the Certain Norwegian Loans case Judge Hersch Lauterpacht's often-quoted opinion on the inseparability of the French reservation on domestic jurisdiction from the rest of France's declaration rested on two grounds: the subject-matter of the reservation and the supporting evidence. With respect to the subject-matter, the French reservation, relating as it did to domestic jurisdiction, defined a general attitude towards the concept of compulsory jurisdiction and the limits within which France was ready to accept limitations to its own jurisdiction. His inference as to inseparability was therefore entirely justified. By contrast, the Indian reservation related only to a group of States and could not therefore define a general attitude or a general posture to compulsory jurisdiction. Additionally, the centrality of reserving matters to domestic jurisdiction pertains by definition to the very concept of sovereignty and this fact was supported by statements that had been made in the French Chamber of Deputies. In the present case no evidence could be supplied by India, either with reference to the "legislative history" of the declaration or otherwise, regarding the essential or crucial character of the Commonwealth reservation to India's consent.

32. The remaining elements in the test devised by the Indian Supreme Court - 4, 5, 6 and 7 - deal respectively with the requirement that what is left should not be so thin and truncated; the primacy of substance over formal classification; the requirement that there be no subsequent modification of the valid part amounting to judicial legislation; and the need to look at the legislative history of the Statute, its object, title and pre-[p 57] amble. Applying these elements to the Indian declaration they all argue for separability of the reservation from the declaration.

33. I have delved into the learned arguments in this Indian decision in answer to the call to do so made by the Attorney General for India, but it is unnecessary to delve in like fashion into similar concepts found in other major systems of law. It is reasonable to expect that the solutions devised by those systems would not be radically different from that decision. Suffice it to mention, for example, that under Islamic law, the problem of separability would seem to be governed by the maxim "Ma La Udraku kulluh La Utraku Julloh" - that which cannot be attained in its entirety should not be substantially abandoned. A concept remarkably similar to the Roman law principle ut res magis valeat quam pereat - a document should be given validity wherever possible. It is also similar to what is generally agreed to be one of the basic goals of the law on invalidity, as formulated in the Vienna Conventions of 1969 and 1986, namely "to preserve, whenever possible, the validity of conventional arrangements rather than to altogether destroy it by considerations alien to that goal"FN11.

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FN11 The Concept of Jus Cogens in the Law of Treaties, Rozakis, 1976, p. 124.
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34. To be sure, the law of treaties has had to acknowledge a tension, traceable to the early publicistsFN12, between the need on the one hand to preserve the integrity of treaties and to guard against arbitrary separability, and on the other not to permit States to invoke the very invalidity which they may have caused to be freed from their other obligations. Additionally, as treaties have tended to become more multilateral and heterogeneous in content, the rules governing separability have also tended to become more relaxed.

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FN12 For an historical overview see Codification of International Law, Supplement to the American Journal of International Law, Vol. 29, 1935, pp. 1134-1144.
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35. Reflecting those developments in the field of treaty-making and reconciling, or at least trying to reconcile those tensions, Article 44 of the Vienna Convention on the Law of Treaties, opened the door for the principle of separability of treaty provisions, albeit in suitably guarded terms and subject to cumulative conditions stricter in some respects than those found under the general principles of law referred to in Article 38, paragraph 1 (c), of the Statute.

36. Thus, in paragraph 3 of Article 44, the principle of separability is established in cases where the ground relates solely to particular clauses (which is self-evidently the case with respect to the Commonwealth reservation) and where:

(a) The said clauses are separable from the remainder of the treaty with [p 58] regard to their application - which is again self-evident in the case of the Commonwealth reservation.

(b) It appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole.

The International Law Commission's commentary on what was to become Article 44, paragraph 3 (c), makes it clear that whether the condition is met "would necessarily be a matter to be established by reference to the subject-matter of the clauses, their relation to the other clauses, to the travaux prιparatoires and to the circumstances of the conclusion of the treaty"FN13.

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FN13 Yearbook of the International Law Commission, 1966, Vol. II, p. 238. Sinclair, The Vienna Convention on the Law of Treaties, second edition, pp. 166-167.
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In this regard, the subject-matter of the Commonwealth reservation - being particular to a group of States and not representing a general attitude towards the concept of compulsory jurisdiction such as would be, for example, the exclusion of matters falling within the domestic jurisdiction of the declarant State - does not give rise to an inference that acceptance of the reservation was an essential or crucial basis of consent to submit to compulsory jurisdiction. Moreover, the relationship of the reservation to other reservations or conditions or other parts of the declaration cannot support such an inference. The only inference that can be drawn is that the reservation is readily separable from the remainder of the declaration. As for the travaux prιparatoires (or their equivalent in the area of the optional acceptance of compulsory jurisdiction) no evidence whatsoever was provided by India that, with reference to those sources, its consent depended crucially on inseparability of declaration and reservation.

The words "and to the circumstances of the conclusion of the treaty" may give credence prima facie to the argument that, since the revised version of India's latest declaration in 1974 took place in circumstances where India was trying to avoid Pakistan's invocation of the Court's jurisdiction, it represented an essential basis of India's consent. Again in the absence of supporting evidence and given that the subject-matter of the reservation is confined to a particular class of disputes, any conclusion that goes beyond acknowledging that the reservation was an important - as distinct from an essential - basis of consent would be unwarranted. Indeed the very fact that India chose to renew its declaration - with modifications - under those circumstances would support this conclusion.

(c) Continued performance of the remainder of the treaty would not be [p 59] unjust. As is well known, this condition has been criticized as being inevitably subjective, adding little to the underlying basis of condition (b)FN14. Against this, the rationale for the paragraph seems to be that it is useful to deal with situations where - with the passage of time - certain provisions may gain or lose in importance in a way not foreseen in the negotiations. Whatever the merits or demerits of this condition, it is apparent that the continued binding force of the Indian declaration without the reservation would not be unjust for India, given that Pakistan maintains no such reservation with regard to India. Moreover, while opinions differ as to the obsolescence stricto sensu of the Commonwealth reservation, there can be little doubt that the reservation is losing in relevance as time passesFN15, as can be seen not only from the diminishing number of Commonwealth members who maintain such a reservation but also from the phenomenon - admittedly still in statu nascendi - of greater readiness on the part of States, including Commonwealth members, to submit to compulsory jurisdiction in other fora and under important instruments, for example under the 1982 Law of the Sea Convention and within the framework of the World Trade Organization.

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FN14Capotorti, "L'extinction et la suspension des traitιs", 134 Recueil des Cours 1971, p. 463.
FN15 The literature lends authority to this view, Merrills for example observes "this reservation must be taken to have outlived its usefulness". British Year Book of International Law, 1993, p.
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37. It would seem therefore that the reservation in question is likely to decline further in importance over time, which would support the conclusion that striking out the Commonwealth reservation is unlikely to lead to unjust results for India by reason of the continued performance of its remaining obligations under its declaration.

38. It would follow, therefore, that the reservation is separable from the rest of the declaration.

(Signed) Awn S. Al-Khasawneh. [p 40]


Dissenting opinion of Judge Pirzada

I hold the President and the Judges of the International Court of Justice in high esteem for their erudition and experience. I regret that I find myself obliged to dissent from the reasoning in the Judgment of the [p 61] Court and its conclusion. I am, however, in full agreement with paragraphs 51 to 55 thereof.

Statement of facts

Allegations by Pakistan

1. Pakistan in its Application of 21 September 1999 claims:

"On the 10th day of August 1999 an unarmed Atlantique aircraft of the Pakistan navy was on a routine training mission with sixteen personnel on board. While flying over Pakistan air space it was fired upon with air to air missiles by Indian air force planes, without warning. All sixteen personnel, mostly young naval trainees, on board the aircraft were killed . . . The wreckage of the Atlantique was discovered around 14.55 hrs scattered across the area of a radius of one square kilometre. The wreckage of the plane was about 2 km inside Pakistan territory which is a clear proof that when the aircraft was shot it was well within Pakistan's air space.

By the time the wreckage was found by Pakistan navy's Sea King helicopters there was a gap of about 2½ hours. The Indian helicopters, knowing the actual position of the shooting down of Pakistan's aircraft, sneaked into Pakistan's territory to pick up a few items from the debris." (Application of the Islamic Republic of Pakistan of 21 September 1999.)

In its Memorial, Pakistan referred to subsequent events:

"Pakistan, in conformity with the purposes and principles enshrined in the Charter of the United Nations, did not resort to any retaliatory measures. Instead on 25 August 1999, Pakistan requested the Secretary General of the United Nations, in view of the false and misleading claims made by the Indian side regarding the shooting down of the unarmed Naval aircraft, to send a 'Fact Finding Mission' to the region to ascertain facts about the incident. The Secretary General in his Note dated 3 September 1999 informed the Government of Pakistan that the Indian Government did not see the need for any kind of third party investigations into the incident and, therefore, rejected the request. He regretted that he was unable to send a mission to the region since this was not possible without the full co-operation of all the parties.

Moreover, on August 30, 1999, the Government of Pakistan made a demarche to the Government of India, through its High Commission in Islamabad, demanding that the Government of India should pay an amount of US$ 60.2 million as compensation for the loss of [p 62] the Pakistani Aircraft and for the loss of lives of the personnel on board. India did not respond to Pakistan's demarche but publicly rejected Pakistan's claim closing the door to any possible negotiations, even under the Simla Accord. Nor did India launch any investigation into the incident to establish responsibility or inform Pakistan that it had done so under the existing obligations spelt out in the Agreement between the two countries dated 6th April 1991 on the Prevention of Airspace Violations.

In view of the Indian refusal to settle this dispute through acceptance of a Fact-Finding Mission of the United Nations or any other third party intervention as well as direct bilateral negotiations, the Government of Pakistan has accordingly invoked, in the present Case, the jurisdiction of the International Court of Justice to adjudicate upon the dispute between the two countries and to establish the international responsibility of the Government of India, including the payment of compensation for shooting down the Pakistani aircraft and for the loss of human life, as a consequence of this illegal action." (Memorial of Pakistan, pp. 3-5; emphasis added.)

In the course of the oral proceedings, Mr. Munshi, the Attorney General of Pakistan added:

"The Court, will, of course, be aware that for over half a century a dispute has existed between India and Pakistan regarding the State of Jammu and Kashmir and for the implementation of United Nations resolutions which guaranteed to the people of Jammu and Kashmir their right of self-determination. India has regrettably not implemented the United Nations resolutions which it had agreed to at all material times.
………………………………………………………………………………………………
Immediately after the incident on 10 August, Pakistan informed the President of the Security Council and the Secretary-General of the United Nations. Sensitive to the dangers inherent in the situation, the Secretary-General, on the same day, issued the following statement:

'The Secretary-General regrets the loss of life following the downing of the Pakistani aircraft by the Indian Air Force. He is increasingly concerned at repeated incidents between Indian and Pakistan and urges that the differences between them be resolved by peaceful means. He calls on both countries to exercise maximum restraint. The Secretary-General looks forward to an early resumption of the bilateral dialogue between the two countries in the spirit of the Lahore Declaration'." (CR 2000/1, pp. 14, 15, paras. 5, 6, 9 (Munshi).) [p 63]

Sir Elihu Lauterpacht submitted:

"If the aircraft was not shot down over Pakistan territory it could only have been shot down over the territory of India. That is the stark alternative. Yet, if that were so then surely the logic of India's position would have required it, in order to avoid judicial scrutiny of its behaviour, to have invoked its reservation No. 10, paragraph (d), which excludes 'disputes with India concerning or relating to and I emphasize 'relating to' the airspace superjacent to its land and maritime territory'. If the aircraft had been flying over India and was shot down there, then the dispute would have been one 'relating to' the airspace superjacent to India. India could have invoked the reservation. But India has not done so. Could there be a clearer acknowledgement - no doubt unintended - that the shooting down did not occur in India's airspace? And from this it follows that it could only have been done in Pakistan's airspace - a fact upon which Pakistan's case and India's responsibility both rest." (CR 2000/1, p. 29, para. 9 (Lauterpacht).)

Denial by India

2. India in its Counter-Memorial denied various allegations. Mr. Soli Sorabjee, Attorney-General of India, repudiated the allegations and stated:

"I take this occasion to deny all allegations made by Pakistan with regard to the aerial incident of 10 August 1999 which took place in western India in the Kutch region in the State of Gujarat. Pakistan is solely responsible for the incident and must bear the consequences of its own acts." (CR 2000/2, p. 11 (Sorabjee).)

It is unnecessary at this stage of the preliminary objections to the jurisdiction of the Court to make any comments on the allegations made by Pakistan and the denial thereof by India.

Contention of the Parties

3. The contentions of the Parties, as reflected in the Memorial and the Counter-Memorial and their oral submissions, will be dealt with hereunder.

*[p 64]

Effect of the Indian Independence Act, Indian Independence (International Arrangements) Order 1947 and the devolution of the General Act of 1928 on India and Pakistan

Indian Independence Act

4. Section 1(1) of the Indian Independence Act 1947 reads:

"As from the 15th day of August 1947, two Independent Dominions shall be set up in IndiaFN1 to be known respectively as India and Pakistan." (Emphasis added.)

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FN1 India means undivided British India.
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The then British Prime Minister, Mr. Attlee, stated before the House of Commons:

"With regard to the status of these two Dominions, the names were not meant to make any difference between them. They were two successor States and both of them would be Dominions in the fullest sense of the term." (A. N. Aiyar, Constitutional Laws of India and Pakistan, 1947 ed., p. 53.)

On 14 July 1947, dealing with the defence of the North West Frontier, the British Prime Minister said:

"This is a matter that is very much in the minds of the Members of both Successor Governments, and there is a Joint Defence Council to consider it. I should not like to go further than to say that the Government would be perfectly willing to go into discussions with the Successor Government on any matter of common defence." (Official Report nr. 440 C 127; emphasis added.)

The words with the Successor Government refer to Pakistan as the North West Frontier is within its territory.

United Nations

5. On membership and representation of India and Pakistan in the United Nations, the legal opinion prepared by Assistant Secretary-General Kerno, issued to the press on 12 August 1947, stated as follows:

"In international law, the situation is analogous to the separation of the Irish Free State from Great Britain, and of Belgium from the Netherlands. In these cases, the portion which separated, was considered new State; the remaining portion continued as an existing State with all of the rights and duties which it had before." (Marjorie M Whiteman, Digest of International law ,Vol. 2, p. 800.)

Pakistan did not subscribe to the view of the Secretariat of the United [p 65] Nations that it was a new State, and that view had been criticized by Professor D. P. O'Connell in his leading work on State succession, as follows:

"The opinion of the Secretariat has been criticized as drawing an improper analogy from the cases of the Irish Free State and Belgium. In those cases the old sovereigns actively participated in the act which created the new States. The creation of Pakistan, on the other hand, was not the act of India, nor did India directly participate in it. It was a division enacted by a constitutional superior, and in no sense of the word could it be considered that there was any secession on the part of Pakistan. Both the Dominions were in the position of new States." (D. P. O'Connell, State Succession in Municipal Law and International Law, Vol. 1, p. 8.)

On being admitted to the membership of the United Nations the Representative of Pakistan declared as follows, in August 1947:

"In one sense, the admission of Pakistan to the United Nations is not the admission of a new member. Until August 15 of this year, Pakistan and India constituted one State. On August 15 they agreed to constitute themselves into two separate sovereign States. One chose to continue to call itself by the old name of India, which had applied to the whole of the country, and the other elected to call itself by the name of Pakistan. Inasmuch as Pakistan had been a part of India, it was, in effect, under the latter name, a signatory to the Treaty of Versailles and an original Member of the League of Nations . . . In the same sense, Pakistan, as a part of India, participated in the San Francisco Conference in 1945 and became a signatory to the United Nations Charter. Therefore, Pakistan is not a new Member of the United Nations, but a co-successor to a Member State which was one of the founders of the Organization." (I.C.J. Pleadings, Trial of Pakistani Prisoners of War, p. 79.)

Other international organizations

6. In introducing the subject of admission of Pakistan to the International Telecommunication Conference held at Atlantic City in 1947, the Argentine delegate, speaking at the sixth plenary session of the Conference 4 September 1947, said:

"The case of Pakistan is 'sui generis', which we repeat, in our judgment, does not imply the necessity of a formal 'admission' apart from the Madrid Convention, or, still less, the necessity of a precise and prescribed 'adherence'. On the contrary, the fact we must face is this: a Member of the International Telecommunication Union, British India, has been divided into two neighbouring states which today form part of the 'Commonwealth' of British nations under [p 66] conditions of absolute legal equality. One of these dominions, India, retains its old constitutional and political name; the other acquires a new designation: Pakistan. But the two states are, in reality, the legitimate successors to the rights and commitments acquired by British India within the International Telecommunication Union when it signed the Madrid Convention." (Marjorie Whiteman, Digest of International Law, Vol. 2, p. 803.)

"The Chairman having observed that no objection to the opinion expressed by the Argentine delegation had been raised, the Conference members unanimously agreed that Pakistan should be considered as admitted to the Telecommunication Conference." (Ibid., p. 804.)

Treaty of Peace with Japan

7. "In the Treaty of Peace with Japan the language of articles 11 and 25 taken together confines the exercise of this power to the following Governments, which have already signed and ratified the Treaty of Peace with Japan: Australia, Canada, France, the Netherlands, New Zealand, Pakistan, the United Kingdom and the United States. With respect to the participation of Pakistan it is the view of the Governments concerned that Pakistan was entitled under international law to seek and be accorded the rights and obligations which attached to British India as a participant in the war against Japan. Thus in regard to the Treaty of Peace itself, Pakistan acquired the position of a power formerly at war with Japan. Similarly Pakistan is entitled to be regarded for the purpose of article 11 of the treaty as having been represented on the IMTFE and is therefore entitled to exercise the rights conferred by article 11 of the treaty.

It is not the position of the Governments concerned that India's vote was transferred to Pakistan. Had India signed and ratified the Treaty of Peace with Japan, both India and Pakistan would, in the view of the Governments concerned, have been eligible to participate in decisions with respect to persons sentenced by the International Military Tribunal for the Far East." [Department of State press release 246, May 12, 1954, XXX Bulletin, Department of State, No. 778, May 24, 1954, p. 802.] (Marjorie Whiteman, Digest of International Law, Vol. 2, p. 806.)

India objected to the inclusion of Pakistan.

The Joint Under-Secretary of State for Foreign Affairs, Douglas Dodds-Parker, in answer to that part of a question concerning Pakistan's inclusion in the clemency arrangements, stated: [p 67]

"As regards Pakistan, the position is that Pakistan is entitled under international law to seek and be accorded the rights and obligations which attached to undivided India as a participant in the war against Japan. Pakistan is accordingly regarded for the purposes of the Peace treaty as having been represented on the International Military Tribunal for the Far East and, since she signed and ratified the Treaty, is entitled to participate in the Treaty's procedures for granting clemency." (528 H.C. Deb. (5th ser.) cols. 15-16 (May 24, 1954.) (Ibid., p. 806.)

In his article "Law of Treaties in the Contemporary Practice of India", Upendra Baxi concludes that:

"The significance of these incidents lies in the implication that for some purposes, such as membership of a few international organisations, British India was held to mean both 'India' and 'Pakistan' and that these states were regarded as having 'legally' succeeded to British India." (Indian Year Book of International Affairs 1965, p. 166.)

The position of India and Pakistan has been summed up by Dr. Nagendra Singh in his Foreword to Succession in International Law by T. T. Poulose:

"this is, perhaps, the only study which has attempted a detailed examination of the question of the personality of India prior to 1947. Pakistan was the first to raise this question at the United Nations and to claim that both India and Pakistan were 'co-successors' of the original international personality of India which disappeared in 1947. Somehow to this day, the exact nature of India's original international personality, and the controversy that India and Pakistan are both successor States, have been allowed to remain shrouded in mystery. Dr. Poulose has examined both these questions threadbare and evolved a new concept called plural succession. While the conclusions are entirely his own and one may not share his views, the conclusion is inescapable, that he has offered a meaningful explanation to these complicated questions which have some theoretical importance." (T. T. Poulose, Succession in International Law, Foreword.)

Indian Independence (International Arrangements) Act 1947

8. After the passing of the Indian Independence Act and before the two Dominions came into existence, a Partition Council was set up which was composed of the representatives of the two future Dominions.

Expert Committee No. IX dealt with foreign relations. The terms of reference of the committee, are given in the Partition Proceedings (Vol. III, see pp. 156 and 171):[p 68]

"To examine and make recommendations on the effect of partition - (i) on the relations of the successor Governments with each other, and with other countries (including the countries of British Commonwealth and border tribes)." (I.C.J. Pleadings, Trial of Pakistani Prisoners of War, pp. 76, 77.)

The Committee had before it the views expressed by Sir Dhiren Mitra (an Indian Jurist), then Solicitor to the Government of India on the rights and obligations of India and Pakistan under the existing treaties of the three categories namely:

(a) treaties of exclusive interest to Pakistan,

(b) treaties of exclusive interest to India, and

(c) treaties of common interest as quoted below.

"The Treaties falling under category (a) . . . will bind Pakistan and will not devolve upon the Dominion of India. The Afghan Treaties regarding boundaries run with the land and will bind Pakistan as the successor in interest in the territory effected. (For a discussion of similar questions, see Schwarzenberger, International Law, Vol. 1, p. 77.)

The Treaties falling under category (b) will of course devolve on the Dominion of India.

(c) Treaties of common interest to both will have effect as if the Treaty was effected after consultation between the Governments of the two Dominions in accordance with the procedure indicated in McNair on Treaties, page 70 (b).

Though the Dominion of India will continue the international personality of present India, according to my note, it does not follow that the Dominion of Pakistan will have no international personality of her own dating from the 15th August 1947. As a matter of fact, she will have such personality."

This committee submitted its report which came up before a higher committee called the Steering Committee. The Steering Committee's note on the juridical position regarding the international personality and its effect on international obligations appearing on page 291 of the Partition Proceedings reads:

"The attached note on the juridical position regarding the international personality of India and Pakistan and its effect on international obligations has been prepared by Mr. Patel and is based on a summary of the correspondence exchanged between the Secretary of State for India and His Excellency the Governor-General. Mr. Mohammed Ali (Pakistan) does not subscribe to the view set in it. He considers . . . that the present Government of India will disappear altogether as an entity and will be succeeded by two independent Dominions of equal international status both of whom will be eligible to lay claims to the rights and obligations of the [p 69] present Government of India." (I.C.J. Pleadings, Trial of Pakistani Prisoners of War, pp. 77, 78.)

This note was submitted to the Partition Council. On page 292 of the Partition Proceedings it is stated:

"Pakistan's viewpoint was, however, that both Dominions should assume all international obligations and enjoy all rights arising out of treaties and agreements negotiated by the existing Government of India or by His Majesty's Government acting on behalf of the Dominions overseas. The practical advantage of this course would be that Pakistan would not have to negotiate afresh in regard to such matters."

9. Consequently, the Indian Independence (International Arrangements) Order, 1947, was promulgated by the Governor-General of (British) India. The said Order provided, inter alia, that rights and obligations under international agreements having exclusive application to areas comprised by the Dominion of India shall devolve on India and likewise, those having exclusive territorial application to areas comprising the Dominion of Pakistan shall devolve upon that dominion. Besides, such agreements to which India was a party immediately before the appointed day, were to devolve upon both India and Pakistan and if necessary be apportioned between the two countries. Such treaties were listed in the 'Partition Proceedings'. This list mentioned 627 treaties.

The International Law Association Handbook, entitled The Effect of Independence on Treaties, published by Stevens in 1965, contains the following statement on page 92:

"When India became independent in 1947, a list had been drawn up of 627 treaties, etc. binding on India. Of these, eleven affected India, exclusively, 191 affected Pakistan and 425 were of common interest. Professor Alexandrowicz, in his lectures at the Hague Academy, delivered in 1961, lists a large number of treaties made with the Indian Princes before Great Britain took over the territory, including some made by the East India Company. Very few of these treaties are included in the total number of 627, but this is not necessarily significant because . . . the International Court in the Rights to Passage Case [I.C.J. Reports 1960, p. 6] upheld the succession of both India and British India to a treaty between the Portuguese and the Marathas, which is not included in the list, nor did the list include the large number of treaties made by Princely States which subsisted until 1947. It may be that the actual lists should be greatly increased to include India's succession to treaties made by the pre-British sovereigns on various parts of Indian territory.

Thus the International Court of Justice recognized, in the Right of [p 70] Passage case, that the list is not exhaustive, and upheld the succession of India and British India to a treaty not included in the list." (I.C.J. Pleadings, Trial of Pakistani Prisoners of War, pp. 84, 85.)

The list of treaties in Volume III was prepared in great haste and it did not include all the treaties binding on India and/or Pakistan. The General Act for the Pacific Settlement of Disputes of 1928 might have been inadvertently not included in the list but devolved upon India and Pakistan and both are bound by the said Act. Reference may also be made to the Indian Prime Minister's statement:

"Soon after independence, India notified all states with which she had treaty relations that she would continue to honour treaties. This is evidenced by Prime Minister Nehru's categorical statement in a letter to the Prime Minister of People's Republic of China (26 September 1959):

'When the British relinquished power and India attained freedom on 15th August, 1947, the new Government of India inherited the treaty obligations of undivided India. They wished to assure all countries with which the British government of undivided India had treaties and agreements that the new Government of India would abide by the obligations arising from them'." (Upendra Baxi, "Law Treaties in the Contemporary Practice of India", The Indian Year Book of International Affairs 1965, pp. 171-172; The Effect of Independence on Treaties, International Law Association 1965, p. 94.)

Case of Yangtze, decided by the Supreme Court of Pakistan, is distinguishable

10. Reliance was placed by Mr. Soli Sorabjee, Attorney-General of India on Messrs. Yangtze (London) Ltd. v. Barlas Brothers, PLD 1961, SC 573 (CR 2000/2, p. 15).

India cited passages from the judgment of the Pakistan Supreme Court to show that under Clause 4 of the Indian Independence (International Arrangements) Order, 1947, Pakistan was not successor to all kinds of international agreements entered into by or on behalf of British India.

First, the case pertained to a foreign award given by the London Court of Arbitration which was sought to be enforced in Pakistan under the Arbitration (Protocol and Convention) Act, 1937.

Secondly, that the Supreme Court had held that the conditions laid down in that Act for the enforcement of the award had not been fulfilled. [p 71]

The Court in the same Judgment further observed as follows:

"In matters pertaining to international arrangements, the courts should act in aid of the executive authority and should neither say nor do anything which might cause embarrassment to that authority in the conduct of its international relations. Thus if the notification contemplated under the Act had been issued, the national court would have been bound to hold that the conditions prescribed for treating an award as a foreign award had been fulfilled and would not have been entitled to go behind the notification and investigate whether reciprocal provisions did in fact also exist in the notified country." (I.C.J. Pleadings, Trial of Pakistani Prisoners of War, p. 94.)

The Supreme Court of Pakistan was dealing with the Arbitration (Protocol and Convention) Act 1937 and made observations in the nature of obiter dicta about the Indian Independence (International Arrangements) Order 1947. The matter was between private parties. In any case, dealing with such an issue, notice ought to have been issued by the Court to the Attorney-General under O27A R 1 of Civil Procedure Code and Order XXIX, rule 1 of the Supreme Court Rules. In the absence of such notice, validity of the decision of the Court is open to question. In the case of Sherpao, PLD 1992, SC 723, it was held that non-compliance of the provisions of notice renders proceedings defective.

11. In the later decision, Superintendent, Land Customs (Khyber Agency) v. Zewar Khan, PLD 1969, SC 485, the Supreme Court, wherein the appellant was represented by the Attorney-General (Pirzada) held as under:

"In International Law too Pakistan was accepted and recognised as a successor Government and the inheritor of his Majesty's Government in the United Kingdom. This was made abundantly clear by the following statement of the then Secretary of State for Commonwealth Relations, made in the British House of Commons on the 30th June 1950:

'It is His Majesty's Government view that Pakistan is in international law the inheritor of the rights and duties of the old Government of India and of His Majesty's Government in the United Kingdom, in these territories and that the Durand Line is the international frontier.'

This was followed in 1956 by a statement of Sir Anthony Eden, the then Prime Minister of the United Kingdom to the following effect:

'In 1947, Pakistan came into existence as a new sovereign independent member of the Commonwealth. The British Government regard her as having, with full consent of the overwhelming majority of the Pushto-speaking peoples concerned both in the admin-[p 72]istered and non-administered areas, succeeded to the exercise of the powers formerly exercised by the Crown in the Indian North-West Frontier of the subcontinent.'" (The All Pakistan Legal Decisions, 1969, [Vol. XXI], pp. 508, 509 SC.)

Both Judgments (1961 and 1969) were written by Justice Hamoodur Rahman. In 1969 he was the Chief Justice of Pakistan. India's contention on the basis of the judgment of the Supreme Court of Pakistan in the Yangtze case is untenable.

12. I am therefore of the opinion that by virtue of the Indian Independence Act and the Indian Independence (International Arrangements) Order of 1947, British India was divided into two independent States, India and Pakistan, and both were successor States and that the Pacific Settlement of International Disputes, the General Act of 1928 devolved upon and continues to apply to India and Pakistan.

*

India and Pakistan - 1947 to 1999

Estoppel

13. In June 1947, when British India was to be partitioned and two independent Dominions - India and Pakistan - were to be established, the British Government considered questions about judicial forums to deal with the various problems arising out of partition and also with the demarcation of the boundaries of the two States. The British Foreign Office examined the issues whether the matters could be referred to the International Court of Justice. Reference to the Court was ruled out for the following reasons:

(a) Boundaries in such a case are not a question of international law to which the Court is confined.

(b) The Court can only decide disputes "between Parties already recognized internationally as States" (The Transfer of Power, H.M. Stationary Office, Vol. XI, No. 71, p. 135.)

Eventually it was decided to establish an Arbitral Tribunal to deal with the problems arising out of partition. Mr. Jinnah (Pakistan) suggested that the Chairman of the Arbitral Tribunal should be a member of the Judicial Committee of the Privy Council. Pandit Nehru (India) suggested that three Judges of the Federal Court of British India should constitute the Arbitral Tribunal (ibid., p. 328). In the end there was agreement that the Arbitral Tribunal should be composed of Sir Patrick Spens as Chairman and two High Court Judges, one Muslim and one Hindu, as members (ibid., p. 853). [p 73]

So far as demarcation of boundaries was concerned, a Tribunal consisted of five members, two from India, two from Pakistan, and Sir Cyril Radcliffe as Chairman. India and Pakistan, both were dissatisfied with the awards, but accepted them.

14. On 23 June 1948 an Agreement relating to air services was signed between India and Pakistan. Article XI, paragraphs (A) and (B), provide:

"(A) If any dispute arises between the Contracting Parties relating to the interpretation or application of the present Agreement, the Contracting Parties shall in the first place endeavour to settle it by negotiation between themselves.

(B) If the Contracting Parties fail to reach a settlement by negotiation,

(i) they may agree to refer the dispute for decision to an arbitral tribunal appointed by agreement between them or to some other person or body; or

(ii) if they do not so agree or if, having agreed to refer the dispute to an arbitral tribunal, they cannot reach agreement as to its composition, either Contracting Party may submit the dispute for decision to any tribunal competent to decide it which may hereafter be established within the International Civil Aviation Organization or, if there is no such tribunal, to the council of the said Organization, or failing that, to the International Court of Justice." (United Nations Treaty Series, Vol. 28, 1949, I. No. 423, p. 158.)

At that time, both were Dominions and members of the Commonwealth, but it was agreed that the dispute could be referred to the International Court of Justice if no forum is available.

15. In 1950, Mr. Liaquat Ali Khan, the former Prime Minister of Pakistan urged India to refer the Canal Water Dispute to the International Court of Justice. He said:

"Under the Optional Clause the Government of India have agreed to accept the jurisdiction of the International Court on the application of countries which are not members of the Commonwealth. The exception doubtless contemplated that there would be Commonwealth machinery equally suited to the judicial settlement of disputes. While such Commonwealth machinery is lacking it would be anomalous to deny to a sister member of the British Commonwealth the friendly means of judicial settlement that is offered by India to countries outside the Commonwealth." (Letter dated August 23, 1950 from Mr. Liaquat Ali Khan to Shri Nehru.) (R. P. Anand, Compul-[p 74]sory Jurisdiction of the International Court of Justice, p. 239; emphasis added.)

"though India admitted her Canal Water dispute with Pakistan to be a justiciable dispute, she preferred to refer the dispute in the first place to a tribunal consisting of two judges from India and two judges from Pakistan. If such tribunal came to be deadlocked, she proposed to settle those parts of the dispute which would not be finally decided through negotiations, and failing that, to submit them to arbitration or even to the International Court of Justice." (Letter dated October 27, 1950, from Mr. Nehru, Prime Minister of India, to the Pakistan Prime Minister.) (Ibid., p. 255.)

16. In 1952 when a disagreement arose between India and Pakistan concerning the interpretation of application or the Chicago Convention, India brought it to the ICAO Council. The matter was ultimately settled by negotiation between the parties (The Canadian Year Book of International Law, 1974, p. 136).

17. India and Pakistan signed an Agreement on 23 October 1959. Clause 8 thereof reads as follows:

"It was agreed that all outstanding boundary disputes on the East Pakistan-India and West Pakistan-India border raised so far by either country should be referred to an impartial tribunal consisting of three members, for settlement and implementation of that settlement by demarcation on the ground and by exchange of territorial jurisdiction, if any. Any dispute which may have been referred to the tribunal can be withdrawn by mutual agreement." (The Indian Journal of International Law, Vol. I, 1960-1961, p. 137.)

18. In or about 1960 the Indus Water Dispute resulted in a Treaty between India and Pakistan through mediation of the President of the World Bank.

19. In 1965 a dispute arose between India and Pakistan over Rann of Kutch. On 18 August 1965 the Prime Minister of India stated in the Lok Sabha:

"Although we were quite sure that the boundary was already well-settled and the only question that remained was that of demarcation, Pakistan contested that position. Therefore, the situation had to be resolved by negotiations and, failing that, by the verdict of an impartial tribunal." (R. P. Anand, Studies in International Adjudication, p. 223.)

Eventually, an International Tribunal was established. India nominated Ambassador Ales Bebler, judge of the Constitutional Court of Yugoslavia, and Pakistan nominated Ambassador Nasrollah Entezam of Iran and a former President of the United Nations General Assembly. As [p 75] the two Governments failed to agree on the selection of the Tribunal Chairman, the United Nations Secretary-General, at the request of the two Governments, nominated Judge Gunnar Lagergren, President of the Court of Appeal for Western Sweden, as Chairman. (Ibid., p. 225.)

In 1968 the Tribunal gave its award. India and Pakistan, though dissatisfied thereby, accepted the award.

20. In September 1965 there was war between India and Pakistan. The Security Council brought about cease-fire. On 10 January 1966, India and Pakistan signed the Tashkent Declaration in the presence of the Soviet Premier who mediated between them.

21. On and from 4 February 1971 India suspended overflights of Pakistan civil aircrafts over Indian territory which disrupted the vital airlink between West and East Pakistan. On 3 March 1971 Pakistan filed a complaint against India before the Council of the International Civil Aviation Organisation for the alleged breach of the 1944 Chicago Convention on International Air Services Transit Agreement. India raised preliminary objection as to the jurisdiction of the ICAO to entertain the complaint. Oral hearings took place on 29 July 1971; Palkhiwala appeared for India and Pirzada represented Pakistan. The objection raised by India was overruled. On or about 30 August 1971 India filed an Appeal before this Court. Pakistan raised preliminary objection as to the jurisdiction of the Court to entertain the Appeal. Oral hearings took place in June and on 7 July 1972. The Court, by its Order, held that the Court had jurisdiction to entertain the Appeal and that the ICAO Council was competent to entertain Pakistan's complaint. Before Council could go into merits, the Parties held negotiations and the complaint was not pursued. (Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 46.)

22. On 11 May 1973 Pakistan filed an Application before the Court regarding Prisoners of War under the Convention on Genocide and the General Act for Pacific Settlement of International Disputes 1928, inter alia, on the following grounds:

"On 21 November 1971, taking advantage of the international situation in East Pakistan, and acting in breach of her obligations under the United Nations Charter, the Government of India launched direct armed attacks against Pakistan's Eastern Province. These armed attacks continued to mount until Pakistan was forced to take measures in self-defence. The fighting spread to West Pakistan and resulted in a state of war between India and Pakistan on 3 December 1971. India notified the existence of a state of war to Pakistan through the Government of Switzerland on 4 December 1971.
……………………………………………………………………………………………
[p 76]
On 16 December 1971, India made a cease-fire call which was accepted by Pakistan and hostilities ceased at 14.30 hours GMT on 17 December 1971. The Security Council of the United Nations took cognisance of the matter on 21 December 1971.
………………………………………………………………………………………………
In January 1972, over 92,000 Pakistani prisoners of war and civilian internees, who were under Indian custody, were transferred to Prisoner of War Camps in India." (Application of Pakistan to the International Court of Justice dated 11 May 1973, I.C.J. Pleadings, Pakistani Prisoners of War, pp. 3, 4.)

On 24 June 1973 India, in its communication to the Court , inter alia, pleaded:

"Attention, in this respect, is also invited to Article 1, clause (ii), of the Simla Agreement 1972, which was signed by the President of Pakistan and the Prime Minister of India on 2 July 1972 and, after having been considered by representative Assemblies of the two countries, was ratified and is in force. This clause provides 'that the two countries are resolved to settle their differences by peaceful means through bilateral negotiations or by any other peaceful means mutually agreed upon between them' (emphasis added). In so far as the repatriation of prisoners of war and civilian internees is concerned, Article 6 of the Simla Agreement does provide for negotiations between the countries concerned to settle the related questions. The subject-matter of Pakistan's Application must, therefore, be considered and resolved in conformity with the provisions of the Simla Agreement and in consultation with the parties concerned. No bilateral or trilateral negotiations have yet taken place on the subject-matter of Pakistan's Application." (Ibid., p. 149; emphasis added.)

In the said communication, India raised pleas, inter alia, that the General Act of 1928 is not in force, and assuming that the Act of 1928 is still in force, Pakistan is not a party thereto. India did not appear before the Court, but in view of India's communication of 24 June 1973, the Attorney-General of Pakistan (Mr. Yahya Baktiyar) made detailed submissions about the devolution of the General Act of 1928 on India and Pakistan (Third Public Sittings, 26 June 1973).

Subsequently, negotiations took place between India and Pakistan and the Application was withdrawn by Pakistan (Trial of Pakistani Prisoners of War, Order of 15 December 1973, I.C.J. Reports 1973, p. 348).

23. On 30 May 1974, Mr. Z. A. Bhutto, the Prime Minister of Pakistan filed a declaration with the United Nations Secretary-General in view of India's objections to the 1928 Act in the case concerning Trial of Pakistani Prisoners of War. [p 77]

(a) That Pakistan has been a separate party to the General Act of 1928 from the date of her Independence, i.e., 14th August 1947;

(b) In order to dispel all doubts, Pakistan notified that it continues to be bound by the accession of British India of the General Act of 1928.

24. To counter the above declaration of Pakistan and in view of the pleas raised by Pakistan in the Court in the case concerning Trial of Pakistani Prisoners of War, in September 1974 India sent three communications to the United Nations Secretary-General; (i) contesting the position taken by Pakistan in the letter of 30 May 1974, (ii) the so-called Commonwealth reservation and (iii) India's assertions regarding the General Act of 1928.

The circumstances in which Pakistan left the Commonwealth in 1972 are well known. India added the words "has been a member of the Commonwealth of Nations" in its reservation in September 1974. This was obviously an arbitrary and discriminatory act aimed at Pakistan.

The Simla Agreement and the Lahore Declaration

25. The Simla Agreement (2 July 1972) and the Lahore Declaration (21 February 1999) reinforce the applicability of principles and purposes of the United Nations Charter. Paragraph 1 of Article 1 of the Charter makes it incumbent upon the parties to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of peace.

It must also be noticed and noted that the Lahore Declaration was signed by India in February 1999 after the Indian communication of 18 September 1974.

The terms "any other peaceful means mutually agreed upon between them", in the Simla Accord, in their ordinary and natural meaning refer to any means for peaceful settlement whether in a bilateral treaty agreed upon before 2 July 1972 or which may have been available by agreement after that date. Chapter II of the General Act for peaceful settlement "already agreed upon" by both the Parties before 2 July 1972 creates mutually binding obligations between them and the procedure under Article 17 of the General Act of 1928 is available. India and Pakistan have become Parties to several multilateral treaties since 2 July 1972, and all means for peaceful settlement of disputes stated therein are binding.

The interpretation put by India on the words in the Simla Accord and the Lahore Declaration is restrictive, narrow and unreasonable.

26. It is clear that between 1947 and 1999 India and Pakistan settled their disputes (i) by negotiations, (ii) through mediation of third parties, (iii) through arbitral or judicial tribunals, (iv) had agreed to have access [p 78] to the International Court of Justice if no other forum was available, (v) the Parties even filed an appeal or applications before the Court. In these circumstances, the conduct of India is covered by the doctrine of estoppel.

A considerable weight of authority supports the view that estoppel is a general principle of international law, resting on principles of good faith and consistency. (Judges Alfaro and Fitzmaurice in the case concerning Temple of Preah Vihear, I.C.J. Reports 1962, pp. 39-51, 61-65; Prof. Ian Brownlie, Principles of Public International Law, p. 646).

*

India's Commonwealth reservation is obsolete

27. Lord Rosebery, in a speech in Adelaide in 1884, had described the Empire as a "Commonwealth of Nations".

28. The term "Commonwealth" has no single fixed meaning. It is used in two main senses: first, to denote an association of independent member States; secondly, to include territories which are in various ways dependent on those independent members. The Commonwealth evolved from the British Empire, which came to be called the British Commonwealth of Nations in the 1920s; the latter designation was also ambiguous, usually (though not always) referred to the United Kingdom and the self-governing Dominions. (See, S. A. de Smith, "The United Kingdom and Commonwealth", Constitutional and Administrative Law, p. 649.)

29. The development of dominion status is a torturous, oft-told tale. By 1926 the following Commonwealth countries were called self-governing dominions: Canada, Australia, New Zealand, South Africa (which left the Commonwealth in 1961), the Irish Free State (which became known as Eire in 1937 and seceded from the Commonwealth, under the name of the Republic of Ireland, in 1949) and Newfoundland (which relinquished its self-governing institutions after a financial collapse in 1933 and joined Canada as its tenth province in 1949). In the Report of the Inter-Imperial Relations Committee (the Balfour Report) of the Imperial Conference held in 1926, it was declared that the United Kingdom and the Dominions were:

"equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations" (S. A. de Smith, "The United Kingdom and Commonwealth", Constitutional and Administrative Law, pp. 657, 658).

30. Some elements of inequality could be eliminated only by imperial [p 79] legislation. It was necessary to pass the Statute of Westminster 1931 in order to remove the Dominions from the definition of "colony" (Sect. 11), to abolish the doctrine of legislative repugnancy and to exclude Dominion Parliaments from the restrictive operation of the Colonial Laws Validity Act 1865 (Sect. 2), to declare that Dominion Parliaments had extraterritorial powers (Sect. 3) and to provide that no future United Kingdom Act was to extend or be deemed to extend to a Dominion as part of its law unless the request and consent of the Dominion concerned were expressly recited in the Act in question (S. A. de Smith, "The United Kingdom and Commonwealth", Constitutional and Administrative Law, pp. 658, 659).

Inter se doctrine and the optional clause

31. When, about a decade after the launching of the League of Nations, the British Dominions faced the question of accepting the optional clause in the Statute of the Permanent Court of International Justice, they adopted a common policy with respect to disputes inter se. The latter, by the view which prevailed, were not international disputes within the meaning of the Statute, since the relations between the autonomous Dominions (or between any of them and the United Kingdom) were not international. An Imperial Conference of 1926 had thought it would then be premature for the Dominions to accept the optional clause. By the understanding reached, there was not to be a move in this matter by any Dominion before discussion with the others. Canada initiated such discussion in 1929. The sequel was acceptance of the optional clause by all the Dominions. All except the Irish Free State, however, reserved disputes inter se. (See, The American Journal of International Law, Vol. 51, 1957, p. 612.)

Privy Council

32. The Privy Council was the apex Court of Appeal in the Commonwealth. An advisory opinion of the Privy Council had been sought twice in disputes between Commonwealth members. (Re Cape Breton (1846), 5 Moo.P.C. 259 (annexation of Cape Breton to Nova Scotia); Re Labrador Boundary Dispute (1927) 137 L.T., 187.).

Proposed Commonwealth Court of Appeal

33. As early as 1929, an Imperial Conference had recommended that there be a Commonwealth tribunal. More explicit conference proposals of 1930 looked to a plan whereby there would be, not a continuing machinery such as a permanent court, but boards chosen by the disputant States for the adjudication of particular disputes. All of the persons [p 80] composing such boards were to be from within the Commonwealth. (See, The American Journal of International Law, p. 613.)

The Commonwealth Prime Ministers' Conference in 1962 expressed the hope that the regular appointment of judges from other Commonwealth countries would strengthen the Judicial Committee and emphasize its importance as a Commonwealth link. It might have done so a generation ago, but it is obviously too late now. A proposal was made in or about 1966 to set up a peripatetic Commonwealth Court composed of judges from various Commonwealth countries. Its jurisdiction would be twofold: (i) as a final Court of Appeal in certain cases from the courts of the Commonwealth countries, and (ii) to determine justiciable disputes between Commonwealth countries. Some countries expressed their approval, but the majority was not interested. (See O. Hood Phillips, Constitutional and Administrative Law, pp. 828, 829.)

India and Pakistan

34. Sir Stafford Cripps, during the debate on the Indian Independence Bill said:

"India and Pakistan will take their places proudly in the comity of free and independent nations of the world, strengthened, we believe by the close ties of friendship with which they will be greeted as new Members of the British Commonwealth of Nations; and it is, I am sure, the hope of all of us that this membership of our Commonwealth which they will share, will help them in the future to keep close to one another, and that the time will come when their present bitterness and opposition may be engulfed in the single purpose of the progress and prosperity of all the peoples of the Indian continent, whatever their race or creed. And, in that great forward journey upon the two new members of the British Commonwealth of Nations will embark on 15th August next, which will become an historic day, we wish them 'God speed' and assure them that we may ever be by their side in time of difficulty to extend a helping hand. Their leaders who have struggled and suffered for the faith that was in them through long and hard years, we salute now as fellow-workers in the cause of world peace and progress. May the sun which is now rising on their independence, never set upon their freedom and prosperity." (Liquidation of British Empire [Parliamentary Debates on the Indian Independence], ed. by Ashiq Hussain Batalvi, p. 287.)

On 16 July 1947, the Earl of Listowel, the Secretary State of India, stated before the House of Lords: [p 81]

"Both Dominions will start their career of full independence as partners in the British family of nations, and will share with the other Members of the Commonwealth the advantages. The Membership of the Commonwealth will impose a moral obligation to remain in peace." (Ibid., p. 348; emphasis added.)

The India (Consequential Provision) Act 1949 recognizes that India is a Republic while remaining a member of the Commonwealth. In 1955, Pakistan also announced her intention of becoming a Republic while remaining a full member of the Commonwealth. The Pakistan (Consequential Provision) Act 1956 made provision as regards the operation of existing law relating to Pakistan view of this new status, and the Commonwealth Prime Ministers in London issued a declaration in 1955 similar to that of 1949, in which reference is made to "the member nations of the Commonwealth", the "Commonwealth countries" and "the United Kingdom and other Commonwealth countries". (See O. Hood Philipps, Constitutional and Administrative Law, 1967, pp. 806, 807.)

35. The symbol of Commonwealth association is the Queen and Head of the Commonwealth, rather than the Crown. The Queen has adopted a new personal flag, initial E and Crown within a chaplet of roses, for use where the Royal Standard (especially associated with the United Kingdom) is inappropriate.

36. There can be no more fitting words about the present Commonwealth than those spoken by Her Majesty Queen Elizabeth II in a Christmas broadcast from New Zealand in 1953:

"The Commonwealth bears no resemblance to the empires of the past. It is an entirely new conception built on the highest qualities of the spirit of man: friendship, loyalty and the desire for freedom and peace." (Commonwealth Yearbook 1987, p. 5.)

37. In the pamphlet "Britain and the Commonwealth" published in 1997 with a foreword by Tony Blair, the British Prime Minister, it is observed that:

"The Commonwealth has changed dramatically since the 1931 Statute of Westminster. A club of self-governing British Dominions grouped around Britain has become a modern association of independent equals and a forum for all its members to tackle challenges and problems together. These include the need to promote sustainable economic and social development; to alleviate poverty; to provide universal access to education; to protect the environment; to combat criminal activities such as drug trafficking and money laundering; to fight communicable diseases; and to support the United Nations and other international institutions in the search for peace and stability in the world."

38. Without any disrespect to the Commonwealth, reference may be made to its graphic description by S. A. de Smith: [p 82]

"Over-enthusiastic descriptions of the Commonwealth - 'a family of like-minded nations, speaking the same political language and voluntarily co-operating on matters of common concern . . .' have led to a reaction. Nowadays the Commonwealth is apt to be dismissed as a gigantic farce, as the emperor who had no clothes, as the disembodied grin on the face of the Cheshire cat." (S. A. de Smith, Constitutional and Administrative law, p. 667.)

39. The circumstances in which some of the countries have retained Commonwealth reservation are distinguishable.

40. On 18 September 1974, India's declaration excluded "disputes with the Government of any state which is or has been a Member of Commonwealth of Nations". India's declaration prior to 1974 excluded:

"disputes with the Government of any country which on the date of this Declaration is a member of the Commonwealth of Nations, all of which disputes shall be settled in such manner as the parties have agreed or shall agree".

In the context and circumstances, the words "has been a Member of the Commonwealth of Nations" were added on 18 September 1974 to exclude disputes with Pakistan only, as (i) Pakistan had left the Commonwealth in or about 1972 in the circumstances well known, and (ii) in the Trial of Pakistani Prisoners of War case in 1973, vital issues had been raised by Pakistan in its Application against India before the Court. At that time, dissociation of Eire and South-Africa from the Commonwealth was almost a past and closed matter.

"Nor was India averse in principle in 1949 to the proposal that there should be recourse to this Court in connection with the treatment by South Africa, another Commonwealth country at that time, of Indians in that territory." (CR 2000/1, p. 35, (Lauterpacht).)

Further in 1948 and 1950, India had agreed that access to the International Court of Justice could be had if no other forum is available. As stated earlier, India is estopped from invoking the Commonwealth reservation. The reservation of India, purporting to exclude Pakistan and Pakistan only, is per se discriminatory, arbitrary and invalid.

41. R. P. Anand observes in his book Compulsory Jurisdiction of the International Court of Justice:

"Probably this reservation, which was originally intended to emphasize the absence of an international element in the relations of the members of the Commonwealth, is now obsolete and in default of any corresponding machinery within the Commonwealth, produces results contrary to the purposes which inspired it." (P. 249.) [p 83]

42. I therefore endorse the views expressed by Judge Ago in the Nauru case in 1992:

"It is therefore most likely that it [the United Kingdom] would not, by itself, have raised insurmountable obstacles. Particularly since the clause excluding from the acceptance of the compulsory jurisdiction of the International Court of Justice disputes with States Members of the Commonwealth - a clause originally inserted in the declaration in anticipation of the establishment of a special court for the Commonwealth - could easily have been regarded as obsolete, since that expectation has never been fulfilled." (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 327, para. 5.)

*

Commonwealth reservation is severable from the Indian declaration of September 1974

43. In the Norwegian Loans case, Sir Hersch Lauterpacht concluded that "the automatic reservation was invalid and could not be separated from the Acceptance as such".

However, the Judge propounded the doctrine of severability and observed:

"That general principle of law is that it is legitimate - and perhaps obligatory - to sever an invalid condition from the rest of the instrument and to treat the latter as valid provided that having regard to the intention of the parties and the nature of the instrument the condition in question does not constitute an essential part of the instrument. Utile non debet per inutile vitiari. The same applies also to provisions and reservations relating to the jurisdiction of the Court." (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, pp. 56, 57.)

44. In the Interhandel case President Klaestad observed:

"The question of a similar French reservation was discussed in one Separate and two Dissenting Opinions appended to the Judgment in the Norwegian Loans case. But the Court did not consider and decide this question and was not in a position to do so, since the question of the validity of the reservation was not in dispute between the Parties, who had not laid it before the Court and had not argued it."

"These considerations have led me to the conclusion that the Court, both by its Statute and by the Charter, is prevented from acting upon that part of the Reservation which is in conflict with [p 84] Article 36, paragraph 6, of the Statute, but that this circumstance does not necessarily imply that it is impossible for the Court to give effect to the other parts of the Declaration of Acceptance which are in conformity with the Statute. Part (a) of the Fourth Preliminary Objection should therefore in my view be rejected." (Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, p. 78.)

45. As K. R. Simmonds has summed up:

"Both the Judges, Judge Klaestad and Judge Armand-Ugon, seem to have decided that the automatic reservation was only a secondary or an accessory stipulation to a basically valid acceptance of the Court's jurisdiction under the Optional Clause; the jurisdiction of the Court would be sufficiently upheld by treating the reservation as inoperative and severable from the document upon which the Court must rely" (footnote omitted). (K. R. Simmonds, "The Interhandel Case", The International and Comparative Law Quarterly, Vol. 10, 1961, p. 526).

46. Reliance was placed by India on the decision of the Supreme Court in RMDC v. India 1957 SCR 930 (CR 2000/2, p. 14, (Sorabjee)). In that case, the Supreme Court considered the doctrine of severability and laid down as many as seven principles. But on the application of the said principles it was held that the impugned provisions were severable.

47. In the subsequent case, Harakchand v. Union of India, it was held:

"The matter is clearly put in Cooley on Constitution Limitations, 8th edn. at p. 360: 'It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same Act, but not connected with or dependent on others which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that fact does not authorise the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other.

Applying the test to the present case we are of opinion that the provisions held to be invalid are not inextricably bound up with the remaining provisions of the Act." (AIR 1970 Supreme Court 1453 (V 57C 308).)

48. Article 44 of the Vienna Convention on the Law of Treaties recognizes separability of clauses in the Treaty.

49. T. O. Elias, in his book The Modern Law of Treaties, expresses the view that "only the clauses affected by an alleged ground of invalidity, if distinct and separable, and not an essential basis of the treaty, may be eliminated, the remainder being kept in force" (p. 140).

50. In the cases of Belios v. Switzerland (1988), (ECHR Series A, No. 132) and Loizidou v. Turkey (1995), (ECHR Series A, No. 310), the European Court of Human Rights treated the objectionable reservation as severable.

51. In the case concerning Fisheries Jurisdiction (Spain v. Canada), Judge Bedjaoui in his dissenting opinion observed that:

"And treaty law, as codified in 1969, enshrines in Article 44 of the Vienna Convention - admittedly with certain exceptions - the principle of separability of the various provisions contained in a treaty. I really cannot see why a declaration should wholly escape this principle." (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, dissenting opinion of Judge Bedjaoui, para. 60.)

"This issue has in fact been raised in a number of cases, including the Norwegian Loans and Interhandel cases, and some judges have evoked and accepted the principle of separability. (cf. Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, pp. 55-59; Interhandel, Preliminary Objections, Judgment, I.C.J. Reports 1959, pp. 57, 77-78, 116-117.)" (Ibid., para. 61.)

52. Having regard to recognised principles of the doctrine of severability, clause (2), "disputes with the government of any State which is or has been a Member of the Commonwealth of Nations" can be separated from the rest in the declaration of India of 18 September 1974.

The "Commonwealth members reservation" is not so central as to constitute "an essential basis of the consent of India" to be bound by its declaration under the optional clause. It is not made in good faith. It serves no rational or legitimate purpose, as there exists no separate

procedure for the compulsory jurisdiction of disputes between Commonwealth countries. It is purposeless and of no legal effect. Hence its severance does not affect the validity of rest of India's declaration under Article 36, paragraph 2, of the Statute.

*

No valid denunciation by India of the General Act of 1928

53. In the communication of 18 September 1974 India asserted:

(a) The Government of India never regarded themselves as bound by the General Act (of 1928) since her Independence by succession or otherwise; [p 86]

(b) Accordingly, India has never been and is not a party to the General Act of 1928 since her Independence.

54. The said Communication was sent by India to counter the Communication of Pakistan of 30 May 1974 whereby Pakistan expressed its intention to be bound by the General Act. Such plea had already been raised by Pakistan before the Court in the case Trial of Pakistani of Prisoners of War of 1973.

Pakistan has rightly urged about the Indian Communication:

"The first that it is declaratory - and declaratory only. It is a statement made in 1974 that as from an event in 1947 - that is to say, 27 years previously, India's independence - India was not a party to the General Act 'it is not and never has been'.

The second point follows closely from the first. It is that India's concern to make the position absolutely clear '. . . so that there is no doubt in any quarter', was merely a statement of its own view of the legal position. It was a subjective statement which might or might not have had objective validity (though, in so far as relevant, Pakistan says that it had no objective validity). Moreover, it was not a denunciation of the General Act - and this was so far two reasons. First, in India's view there was no General Act to denounce. Second, even if there was, India did not formally denounce it in the manner provided for in Article 45 of the General Act . . . Consistent with the logic of its position, India did not use words of denunciation because that would have implied that India regarded itself as committed to the General Act at the time of the denunciation, which it denied. India could have done, if it had wished to denounce the General Act, it could have done as both France and Britain did and denounced the General Act formally, but it chose not to do so." (CR 2000/1, p. 54 (Lauterpacht).)

55. The assertions made by India in the said Communication are erroneous, misconceived and illegal. The said Communication cannot be deemed to be a denunciation. There is no material before the Court that any State party to the General Act treated India's Communication as denunciation. The Communication does not comply with the provisions of Article 45 of the General Act. In the joint dissenting opinion in the case of Nuclear Tests, dated 20 December 1974), reference was made to India's letter of 24 June 1973 (mentioned in para. 22 above) and Pakistan's declaration, but no notice was taken of India's Communication of 18 September 1974:

"In the case concerning Trial of Pakistani Prisoners of War, by a letter of 24 June 1973 India informed the Court of its view that the 1928 Act had ceased to be a treaty in force upon the disappearance [p 87] of the organs of the League of Nations. Pakistan, however, expressed a contrary view and has since addressed to the Secretary-General a letter from the Prime Minister of Pakistan affirming that she considers the Act as continuing in force. Again, although the United Kingdom, in a letter of 6 February 1974, referred to doubts having been raised as to the continued legal force of the Act and notified the Secretary-General of its denunciation of the Act in conformity with the provisions of paragraph 2 of Article 45, it did so in terms which do not prejudge the question of the continuance in force of the Act.

Moreover, it is axiomatic that the termination of a multilateral treaty requires the express or tacit consent of all the parties, a requirement which is manifestly not fulfilled in the present instance." (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 344, para. 70.)

Reference may also be made to the practice of the Secretary-General of the United Nations with regard to multilateral treaties:

"The International Law Commission in 1966 described this practice as follows:

'In the absence of any clause on reservations in agreements concluded after the General Assembly resolution on reservations to multilateral conventions, the Secretary-General adheres to the provisions of that resolution and communicates to the States concerned the text of the reservation accompanying an instrument of 0ratification or accession without passing on the legal effect of such documents, and "leaving it to each State to draw legal consequences from such communications". He transmits the observations received on reservations to the States concerned, also without comment. A general table is kept up to date for each convention, showing the reservations made and the observations transmitted thereon by the States concerned. A State which has deposited an instrument accompanied by reservations is counted among the parties required for the entry into force of the agreement.' (Official Records, Twenty-first Session, Supplement No. 9 (A/6309/Rev.I), p. 37.)" (I.C.J. Pleadings, Trial of Pakistani Prisoners of War, pp. 87, 88.)

56. The Government of India must have known the notifications of France and the United Kingdom. The language of the notifications was clear and categorical and specific mention therein was made about denunciation. The omission thereof from the Indian Communication was not cogently and plausibly explained by India.

Prof. Rosenne states that "where the right of denunciation is reserved, the State concerned must take a positive step to exercise it" (Shabtai Rosenne, The Law and Practice of the International Court of Justice, Vol. II, p. 82). [p 88]

57. Further, the applicable rule is, as approved by the Court in the North Sea Continental Shelf case, 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 al all (I.C.J. Reports 1969, para. 28).

58. Mere affirmation by India that it was not bound by the General Act, which is denied by Pakistan, is unilateral and its validity cannot be determined by the Court at the preliminary stage. Reference may be made to the finding of the Court in the Appeal by India against Pakistan, re: ICAO, which is res judicata.

"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, so as to exclude ipso facto and a priori the competence of the Council." (Appeal Relating to the Jurisdiction of the ICAO Council, Judgment, I.C.J. Reports 1972, p. 64, para. 31.)

59. I am therefore of the opinion that the General Act of 1928 has not been validly denounced by India and it continues to be bound by the said Act.

*

Effect of the General Act of 1928 on India's reservation

60. The 1928 Act contains a strict code of rules regulating the making of reservations. This aspect has been dealt with in paragraph 82 of the joint dissenting opinion in the Nuclear Tests case:

"In the present instance, this objection is reinforced by the fact that the 1928 Act contains a strict code of rules regulating the making of reservations, whereas no such rules govern the making of reservations to acceptances of the Court's jurisdiction under the optional clause. These rules, which are to be found in Articles 39, 40, 41, 43 and 45 of the Act, impose restrictions, inter alia, on the kinds [p 89] of reservations that are admissible and the times at which they may be made and at which they will take effect. In addition, a State accepting jurisdiction under the optional clause may fix for itself the period for which its declaration is to run and may even make it terminable at any time by giving notice, whereas Article 45 (1) of the Act prescribes that the Act is to remain in force for successive fixed periods of five years unless denounced at least six months before the expiry of the current period. That the framers of the 1928 Act deliberately differentiated its rιgime in regard to reservations from that of the optional clause is clear; for the Assembly of the League, when adopting the Act, simultaneously in another resolution drew the attention of States to the wide possibilities of limiting the extent of commitments under the optional clause 'both as regards duration and as regards scope'. Consequently, to admit that reservations made by a State under the uncontrolled and extremely flexible system of the optional clause may automatically modify the conditions under which it accepted jurisdiction under the 1928 Act would run directly counter to the strict system of reservations deliberately provided for in the Act." (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 349, para. 82.)

61. The reservations made by India to Article 17 of the General Act are prohibited by that Act and are without legal effect because the operation of Article 17 of the General Act is subject to Article 39.

Article 39 provides:

"1. In addition to the power given in the preceding article, a Party, in acceding to the present General Act, may make his acceptance conditional upon the reservations exhaustively enumerated in the following paragraph. These reservations must be indicated at the time of accession.

2. These reservations may be such as to exclude from the procedure described in the present Act:

(a) disputes arising out of facts prior to the accession either of the Party making the reservation of or any other Party with whom the said Party may have a dispute;

(b) disputes concerning questions which by international law are solely within the domestic jurisdiction of States;

(c) disputes concerning particular cases or clearly specified subject-matters, such as territorial status, or disputes falling within clearly defined categories.

3. If one of the parties to a dispute has made a reservation, the other parties may enforce the same reservation in regard to that Party. [p 90]

4. In the case of Parties who have acceded to the provisions of the present General Act relating to judicial settlement or to arbitration, such reservations as they may have made shall, unless otherwise expressly stated, be deemed not to apply to the procedure of conciliation."

The reservations made by India do not fall under the permissible reservations exhaustively set out in Article 39 of the General Act.

62. I would also draw the attention to Article 41 of the General Act which reads as follows:

"Disputes relating to the interpretation or application of the present General Act, including those concerning the classification of disputes and the scope of reservations, shall be submitted to the Permanent Court of International Justice."

This jurisdiction is saved to the present Court by virtue of Article 37 of the Statute. Consequently, since questions of interpretation and application of the General Act have arisen, including those concerning the scope of reservations and their admissibility, the International Court of Justice has jurisdiction to determine the matter.

63. The Court has jurisdiction under Article 17 of the General Act, notwithstanding India's reservation as was held by the Court in the Appeal relating to ICAO Council, Judgment, I.C.J. Reports 1972, p. 53 and, in view of the observations made in this behalf in the joint dissenting opinion in the case concerning Nuclear Test, (Australia v. France), I.C.J. Reports 1974, p. 253, paras. 91, 94, 95 and 97.

64. In any case, there is lack of good faith on the part of India. In the case between Cameroon v. Nigeria, the Court has set out the principle of good faith:

"The Court observes that the principle of good faith is a well-established principle of international law. It is set forth in Article 2, paragraph 2, of the Charter of the United Nations; it is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969. (Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 296, para. 38.)

65. In view of these considerations, I am of the opinion that the Court is competent to exercise jurisdiction under Articles 17, 39 and 41 of the General Act, read with Article 36, paragraph 1, and Article 37 of the Statute.

Without prejudice to the above, the following observations may be made.

*[p 91]

Reservations

General observations

66. Some general remarks may be made as to the reservations. The observations made by two distinguished former Presidents of the Court may be reproduced.

Dr. Nagendra Singh (India):

"Over the years however, States have come to attach more and more exceptions and reservations and exclusions to their declarations of acceptance until today the declaration of India, for example, contains eleven separate reservations one of which is subdivided into five subsections . . .

Yet when such an acceptance is so whittled away, or hedged around with reservations and exclusions, that the actual kernel of jurisdiction remaining is minimal, the effect of such a gesture can hardly be regarded as encouraging . . . the apparent simplicity of the optional clause, a simplicity which appears to have been intended by its creators, has disappeared under the shadow of a thicket of overlapping and interconnecting reservations, making the task of the Court based on optional clause jurisdiction in some cases an extremely difficult one" (Judge Nagendra Singh, The Role and Record of the International Court of Justice, pp. 19, 20).

Sir Muhammad Zafrulla Khan (Pakistan):

"In other words, and this is the point which it is worth stressing, as the composition of the United Nations has become wider, the idea of compulsory judicial settlement, which was favoured by so many of the States gathered at San Francisco in 1945, has also found increased acceptance, but at a markedly slower rate. The system of compulsory judicial settlement was of course not built in as an integral part of the United Nations peace-keeping machine; but it is to be feared that widespread hesitation in the acceptance of that system may betray certain reserve with regard to the general principle of judicial settlement of disputes, which, as we have seen, was built into the United Nations system.

Another discouraging tendency, the seeds of which were sown in 1946, is that of depositing declarations of acceptance of the Court's compulsory jurisdiction subject to reservations. Reservations of this kind have been before the Court on more than one occasion, and have been the subject of severe criticism. Nevertheless, although in recent years there has been some improvement in this respect, there are still deposited with the Secretary-General, and not withdrawn, declarations of this kind which, as recognitions of jurisdiction, are no more than the shadow without the substance." (Ibid., p. 294.) [p 92]

In view of the observations aforesaid, validity of India's reservations is open to question.

*

Article 36, paragraph 2, of the Statute of the Court and the Indian reservation

67. Pakistan has tried to establish that a reservation which is not permissible under Article 36, paragraph 3, of the Statute has no legal effect when objection is taken to it by the applicant State. Such a reservation has been described as ultra vires of Article 36 of the Statute or an extra-statutory reservation.

68. During the oral submissions Pakistan pleaded:

"(a) the Commonwealth reservation which India claims to invoke, lies outside the range of reservations which are permitted by Article 36, paragraph 3, of the Statute. The language of this paragraph is clear. Declarations shall be made either unconditionally or upon two possible conditions: reciprocity or for a certain time. I shall refer to reservations which fall outside the permitted scope as 'extra-statutory'. I shall submit that an extra-statutory reservation made by a defendant State may be applied by the Court against a plaintiff State only if there is something in the case which allows the Court to conclude, and I emphasize to conclude, that the plaintiff has accepted the reservation. Such acceptance can be inferred in two situations. One is where the plaintiff State has itself made the same or a comparable reservation. The other is when the plaintiff, being confronted by the invocation of the reservation by the defendant State, has shown itself willing to join issue on the interpretation of the content of the reservation, without challenging its opposability to itself. But if the plaintiff challenges the applicability of the reservation, and I emphasize this, then the Court must decide, by reference to its content and the circumstances, whether it is applicable or opposable as against the plaintiff." (CR 2000/1, pp. 17, 18 (Munshi).)

"The obvious answer - an answer Pakistan is now challenging - is that the State practice has modified the express terms of Article 36, paragraph 3, and people generally have come to believe that any kind of reservation is permissible with the possible exception, perhaps, of reservations which seek to deprive the Court of the right to determine questions relating to its own jurisdiction - the so-called automatic reservations.

The first comment to be made on this is that the number of States [p 93] concerned is limited. One hundred and eight-five States are parties to the Statute of the Court. Sixty States are parties to the optional clause. Of these, 23 have signed without any extra-statutory reservations. Of the 37 who have signed with reservations that fall outside the range of Article 36, paragraph 3, 14 have made these reservations relating either to matters of domestic jurisdiction, which hardly amounts to a reservation in the real sense, or have excluded disputes for which other means of settlement exist. So the number of States with real extra-statutory reservations seems to amount to no more than 23 (the same number as those who have not made extra-statutory reservations). Those 23 represent only about 38 per cent of the signatories of the parties to the Statute. It would not seem proper, therefore, to allow so unrepresentative a number of States to have the power of amending the clear text of Article 36, paragraph 3, of the Statute." (CR 2000/1, pp. 17, 18 (Munshi).)

69. Pakistan's pleas may be examined in the context of the Judgments of the Court. In the recent case concerning Fisheries Jurisdiction (Spain v. Canada), the Court gave effect to a Canadian reservation to the optional clause relating to fisheries conservation and management matters. That reservation apparently fell outside the ambit of reservations permitted by Article 36, paragraph 3. The Court described Spain's position regarding the relevant reservation as follows:

"Spain appears at times to contend that Canada's reservation is invalid or inoperative by reason of incompatibility with the Court's Statute, the Charter of the United Nations and with international law. However, Spain's position mainly appears to be that these claimed incompatibilities require an interpretation to be given to paragraph 2 (d) of the declaration different from that advanced by Canada." (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, para. 40.)

Having referred to the Spanish arguments, which showed that Spain's main dispute with Canada related to the interpretation of the reservation, the Court stated:

"Accordingly, the Court concludes that Spain contends that the 'interpretation' of paragraph 2 (d) of its declaration sought for by Canada would not only be an anti-statutory interpretation, but also an anti-Charter interpretation and an anti-general international law interpretation, and thus should not be accepted. The issue for the Court is consequently to determine whether the meaning to be accorded to the Canadian reservation allows the Court to declare [p 94] that it has jurisdiction to adjudicate upon the dispute brought before it by Spain's Application." (Ibid., para. 41.)

70. The Court therefore did not examine the validity or applicability of the Canadian reservation by noting that both States recognized "a wide liberty in formulating their declarations".

In the case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240), Australia, as defendant, invoked the terms of its reservation excluding disputes "in regard to which the parties thereto have agreed or shall agree to have recourse to some other method of peaceful settlement". That was a reservation evidently outside the terms of Article 36, paragraph 3. The Court rejected the argument on the ground that no relevant alternative existed. The Court noted that Nauru's declaration also contained a similar reservation and thus assumed willingness on the part of the two countries to accept and give effect to the reservation.

71. In the Nicaragua case, the Court merely interpreted the second type of condition permitted under Article 36, paragraph 3, i.e. "for a certain time". It stated:

"In particular, it [a declarant State] may limit its effect to disputes arising after a certain date; or it may specify how long the declaration itself shall remain in force, or what notice (if any) will be required to terminate it." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J.Reports 1984, p. 418, para. 59.)

The Court, in explaining the kind of reservations that may be made, limited itself to examples which fall clearly within the range permitted by Article 36, paragraph 3.

72. Reference can also be made, in this context, to the decisions of the Court in the cases of Certain Norwegian Loans and the Interhandel. The validity or applicability of the automatic reservation was not adjudicated upon. In the words of Professor Ian Brownlie:

"In principle this form of reservation is incompatible with the Statute of the Court, since it contradicts the power of the Court to determine its own jurisdiction and is not a genuine acceptance of jurisdiction ante hoc. (Footnote: The Court has avoided the issue when it has been raised, as in the Case of Certain Norwegian Loans, ICJ Reports (1957), 9; and the Interhandel case, ibid. (1959), 6. However, a number of judges have held the reservation to be illegal; see ICJ Reports (1957), 42 ff. (Lauterpacht), 68-70 (Guerrero); ibid. (1959), 55-9 (Spender), 76-8 (Klaestad), 92-4 (Armand-Ugon), 97 ff.)" (Prof. Ian Brownlie, Principles of Public International Law, Fifth Edition, p. 723.)

73. The comments of Professor Rosenne may also be mentioned:[p 95]

"The Norwegian Loans, Interhandel and Right of Passage (Preliminary Objections) cases are three principal instances of judicial discussion of the validity of a reservation. In each of those instances it was argued that a particular reservation was incompatible with the optional clause, so that the whole declaration was ineffective to establish the compulsory jurisdiction. Although the parties argued the cases on the basis of the compatibility of the reservation with the system of the compulsory jurisdiction, the Court did not place itself on the same basis.

This leads to the conclusion that if, in principle and in practice, reservations other than those envisaged in Article 36, paragraph 3, of the Statute are not in themselves inadmissible, the validity of any specific reservation is a matter to be decided in each case." (Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. II, Jurisdiction, pp. 770, 771.)

74. Pakistan's contentions as to inapplicability and/or lack of opposability to Pakistan of India's Commonwealth reservation are not inconsistent with the decisions of the Court involving anti-statutory reservations. Moreover, views expressed by some of the Judge of the Court in their opinions in the Fisheries Jurisdiction case (reproduced hereafter in paras. 89-91) support the contention of Pakistan. Reference may also be made to the following:

"The expectation was that a general system of compulsory jurisdiction would be generated as declarations multiplied. The conception was sound enough, but the conditions in which the system has functioned have reduced its effectiveness. The negative factors are generally the lack of confidence in international adjudication on the part of governments, the practice accepted by the Court, of making declarations, subject to various reservations and conditions, frequently arbitrary in extent, and ambiguous in form, and the tactical advantages of staying out of the system." (Prof. Ian Brownlie, Principles of Public International Law, p. 721.)

R. P. Anand, the well known Indian writer, states:

"As we have said earlier, the Optional Clause does not stand by itself. It is an integral part of the Statute and adherence to the Optional Clause means adherence to the whole of the Statute. It does not appear to be open to states in their unilateral declarations to make their acceptance of jurisdiction conditional upon non-application of constitutional provisions of the Court's Statute. The Court is required, both by Article 92 of the Charter and Article I of the Statute, to function in accordance with the Statute. Indeed, the old Court, even though it was not bound by such an express injunction to observe the Statute, held in the Free Zones case that it had no power to depart from the terms of the Statute on the proposal of the [p 96] parties to a case. The Optional Clause, therefore, although it leaves to an individual state large discretion as to the terms on which it accepts the compulsory jurisdiction, does not permit a state to make a declaration which is incompatible with the fixed constitutional provisions of the Court's Statute." (R. P. Anand, Compulsory Jurisdiction of the International Court of Justice, p. 189.)

Declarations

75. In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court held that the declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements and a State is either free do so unconditionally or to qualify it with conditions or reservations. The Court also held that in fact, the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States and in the establishment of this network of engagements, which constitutes the optional clause system, the principle of good faith plays an important role. Paragraphs 59 and 60 of the Judgment are to be read together.

"One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 418, para. 60.)

Rule of interpretation

76. An interpretation which leads to something unreasonable is contrary to the rule laid down by the Permanent Court and this Court:

"By the Permanent Court in the Polish Postal Service in Danzig (P.C.I.J., Series B., No. 11, p. 39)

'It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd.' [p 97]

This rule was approved in the Advisory Opinion of this Court : (Competence of the General Assembly for the Admission of a State to the United Nations, I.C.J. Reports 1950, at page 8." (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 95.))

77. I am therefore of the opinion that the principle of good faith is lacking in India's declaration and that the interpretation put by India on its reservation is unreasonable.

*

Charter of the United Nations

78. Pakistan in its Memorial invoked the jurisdiction of the Court on the basis of Article 36, paragraph 1, of the Statute of the Court read with Article 1, paragraph 1, Article 2, paragraphs 3 and 4; Article 33, Article 36, paragraph 3 and Article 92 of the United Nations Charter.

79. The Preamble of the Charter was referred to and relied upon by Judge ad hoc Ajibola in his separate opinion in the Genocide case:

"The pioneering Member States that met in San Francisco to draft the United Nations Charter devoted a great deal of effort to ensuring that peace, security, justice and the pacific settlement of disputes would be ensured and thoroughly incorporated into the Charter. Hence they spelt out, in clear terms, some of their goals and aspirations to ensure the supremacy of international law, peace, security and justice among all nations." (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 391.)

80. Judge Weeramantry dealt with the purposes of the United Nations in his separate opinion in the Maritime Delimitation case:

"The Charter of the United Nations in Article 1 sets out as one of the Purposes of the United Nations that 'To maintain international peace and security' it shall 'bring about by peaceful means, and in conformity with the principles of justice and international law, [the] adjustment or settlement of international disputes . . .' The International Court of Justice has been set up within that framework as one of the principal organs of the United Nations and is thus obliged to act in the adjustment and settlement of international disputes 'in conformity with the principles of justice and international law'." (Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993, p. 241, para. 99.) [p 98]

81. In the declaration appended by Judge Ni in this case, he stated the following:

"it can also be argued that it is provided in Article 92 of the United Nations Charter that the International Court of Justice shall be the principal judicial organ of the United Nations which is given the power, under Article 36 of the Court's Statute, to settle 'all legal disputes concerning (a) the interpretation of a treaty; (b) any question of international law . . .' " (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 20).

82. Judge ad hoc Ajibola appended a dissenting opinion in which the following was stated:

"To me, the fundamental focus and obligation as judges of the Court must be to do justice in accordance with the spirit of Article 1 of the Charter: to maintain international peace and security; to take effective measures to prevent and remove all threats to peace; to suppress all threats of aggression or any form of breaches of peace in any part of the world within the spirit of the Charter and in accordance with international law.

To me, justice requires prompt action to prevent deterioration of peaceful co-existence among nations of the world. No one goes to sleep when the house is burning.

Finally, justice of this case requires that we should act in consonance and within the spirit and content of Article 2 (3) of the Charter, which states:

'All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered'." (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 93; emphasis added.)

83. Dr. Nagendra Singh has written an instructive and illuminating account of The Role and Record of the International Court of Justice. His analysis and conclusions may be summed up:

"If we turn to the Statute of the Court, which it must be recalled is an integral part of the Charter, there are again a number of provisions which throw a light on the relationship between the Court and the United Nations. [p 99]

Article 38 of the Statute states that the function is 'to decide in accordance with international law such disputes as are submitted to it'. The essential point to notice is that the Court, although it is an organ of the United Nations, is not limited to applying some sort of 'United Nations law', but is entitled and indeed bound to apply general international law in force between all States. Speaking in very general terms, it is undoubtedly for the Court to apply the purposes and principles of the United Nations as stated in Articles 1 and 2 of the Charter, but it is bound to do so by giving decisions 'in accordance with international law'." (Judge Nagendra Singh, The Role and Record of the International Court of Justice, p. 43.)

"The International Court of Justice has proved to be one of the successful organs of the United Nations. Yet for certain periods of its history it has been regrettably under-used. This has been formally recognized by this Assembly, and here I need only cite resolution 3232 (XXIX), adopted in 1974, and the Manila Declaration, approved in 1982, both of which devote lengthy paragraphs to exhorting States to take a positive and active attitude to the role of the Court in the peaceful settlement of disputes. The same concern is evident in the recent valuable study on the role of the Court produced by the Asian-African Legal Consultative Committee, which has been circulated to the Assembly. What all these exhortations call for, in fact, is that States make the possibility of judicial settlement a constant of their diplomacy." (Ibid., p. 317.)

84. I am therefore of the opinion that in the circumstances of the case the Court ought to have acted in consonance with the spirit and content of the relevant Articles of the Charter. as reflected in the aforesaid opinions of the judges of the Court, especially under Article 2, paragraph 3, of the Charter as opined by Judge Ajibola.

*

Breaches of the obligations of customary international law by India

85. In its Application of 21 September 1999, Pakistan sets out the following in the legal grounds on which the claim is based:

"(3) Breaches of the obligations of customary international law not to use force against another State

India committed breaches of the obligations imposed on States by customary international law not to use force against another State. By attacking and shooting down Pakistan's unarmed aircraft inside [p 100] Pakistan's air space, without warning and without any provocation on its part, constitute serious breach of that obligation.

(4) Breaches of the obligation of customary international law not to violate the sovereignty of another State

The incursion into Pakistan's air space by the Indian air force jet fighters and their attack on, and shooting down of, unarmed Pakistan's naval aircraft on routine training mission inside Pakistan air space constitutes violation of Pakistan's sovereignty and breach by India of its obligation under customary international law." (Application of Pakistan of 21 September 1999, pp. 4, 6.)

In the oral submissions it was asserted:

"Pakistan does not abandon the contention that reference may properly be made to the United Nations Charter, and particularly to Article 4, paragraph 2, as a confirmation and crystallization of the general rules of customary international law on the substantive issues raised by the facts in the present case" (CR 2000/1, p. 44, para. 54 (Lauterpacht)).

86. The findings of the Court in the Nicaragua case in 1984 are fully applicable to the circumstances of the case:

"It may be first noted that the multilateral treaty reservation could not bar adjudication by the Court of all Nicaragua's claims, because Nicaragua, in its Application, does not confine those claims only to violations of the four multilateral conventions referred to above (paragraph 68). On the contrary, Nicaragua invokes a number of principles of customary and general international law that, according to the Application, have been violated by the United States. The Court cannot dismiss the claims of Nicaragua under principles of customary and general international law, simply because such principles have been enshrined in the texts of the conventions relied upon by Nicaragua." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 423, 424, 425, paras. 71,74.)

87. Judge Lachs in his separate opinion in the Lockerbie case (Libya v. United Kingdom) rightly observed "[t]here is no doubt that the Court's task is 'to ensure respect for international law . . .' It is its principal guardian." (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya Arab Jamahiriya v. United Kingdom), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, pp. 26, 27.)

88. Reference may be made to the illuminating observations by Judge [p 101] Weeramantry in his dissenting opinion in the case of Fisheries Jurisdiction (Spain v. Canada):

"So, also, any matter that arises for adjudication within optional clause territory would be governed strictly by the rules of the United Nations Charter and the Statute of the Court. One cannot contract out of them by reservations, however, framed. The basic principles of international law hold sway within this haven of legality, and cannot be displaced at the wish of the consenting State." (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, dissenting opinion of Vice-President Weeramantry, para. 22.)

"If, then, a State should assert that another State has sought to impose upon the applicant State a submission to the unilateral exercise of its penal jurisdiction on the high seas, to violate the basic principle of freedom of the high seas, to violate the peremptory norm of international law proscribing the use of force, to violate thereby a fundamental principle of the United Nations Charter, to violate the well-established principle of the complainant State's exclusive sovereignty on the high seas over vessels carrying its national flag, to endanger the lives of its seamen by a violation of universally accepted conventions relating to the safety of lives at seas - can all these alleged fundamental violations of international law, which would engage the jurisdiction of the Court under the general principle of submission, be swept away by the mere assertion that all these were done as a measure of conservation of fisheries resources? Reservations do not constitute a vanishing point of legality with the consensual system." (Ibid., para. 25.)

"It may indeed be argued, on the contrary, that the preservation of legality within the system would strengthen rather than undermine its integrity. I do not think it is open to the Court, if a violation of a bedrock principle of international law is brought to its attention, to pass by this illegality on the basis that it is subsumed within the reservations clause. Such an approach could well weaken not only the authority of the Court, but also the integrity of the entire system of international law, which is a seamless web, and cannot be applied in bits and pieces. It is within this seamless fabric of international law that the entire optional clause system functions, and that consent to the Court's jurisdiction must be construed." (Ibid., para. 54.)

89. Reference may also be made to the weighty observations by Judge Vereshchetin in his dissenting opinion in the same case:

"It is common knowledge that 'jurisdiction of the Court is based [p 102] on the consent of the parties'.There are a number of rules of international law which circumscribe the principle of consent. Once a State has given its consent to the jurisdiction of the Court, be that in the form of a special agreement (compromis), a jurisdictional clause of a treaty, or in the form of a declaration of acceptance of the optional clause, its freedom in respect of the Court's ceases to be unlimited; still less, can it be absolute. As the case may be, it is constrained by general rules of international law (pacta sunt servanda), specific rules of the treaty in question (the terms of the compromissory clause), the Statute and procedural rules of the Court.

Certainly, a State making a reservation sometimes does so because it 'lack[s] confidence as to the compatibility of certain of its actions with international law' . . . and for that reason wishes to evade the scrutiny of its conduct by the Court. However, it is one thing when the legality of certain actions may be seen as doubtful, and quite a different thing when the actions whose examination by the Court a State seeks to avoid, by making a reservation, are clearly contrary to the Charter of the United Nations, the Statute of the Court or to erga omnes obligations under international law. Being confronted with such a dilemma, it is for the Court to draw a distinction between these two different legal situations, which may lead to different conclusions as to the validity or admissibility of the reservation in question.

….Equally, in my view, the Court cannot give effect to a reservation which expressly exempts from its jurisdiction the examination of conduct manifestly inconsistent with the basics of international law. An objection to the Court's jurisdiction based on a reservation tainted with such a defect must be rejected by the Court as inadmissible. Recognition by the Court of the operation of a reservation of this kind might be viewed as tantamount to legal endorsement of what in fact should be considered as an abuse of the right of a State not to be sued without its consent before an international tribunal. Generally, reservations and conditions must not undermine the very raison d'κtre of the optional clause system." (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, dissenting opinion of Judge Vereshchetin, paras. 10, 11.)

90. The following observations of Judge Bedjaoui in the Fisheries Jurisdiction case are relevant:

"However, a State's freedom to attach reservations or conditions to its declaration must be exercised in conformity with the Statute and Rules of Court, with the Charter of the United Nations, and [p 103] more generally with international law and with what I may venture to call 'l'ordre public international'. Just as the acts of a State, and more generally its conduct, in whatever area of international relations, must conform to existing international legal norms, so the formulation of a reservation, which is no more than one element of such conduct, must also comply with these norms." (Ibid, dissenting opinion of Judge Bedjaoui, tr., para. 43.)
………………………………………………………………………………………………
"I do not see why the Court should hesitate to reject, or to declare inadmissible, or not opposable, or even invalid or null and void, a reservation the purpose or effect of which is to nullify or distort one or more of the provisions of the Statute or Rules of Court which govern international judicial proceedings, and to establish some sort of ad hoc judicial procedure suiting or benefiting the author of the reservation alone;
………………………………………………………………………………………………
I do not see why the Court should allow itself to consider a reservation which, while appearing to set specific limits to the Court's jurisdiction, is in the final analysis incompatible with respect for the integrity of the declaration as a whole, since, while international law undeniably confers freedom of consent and the declaration implies recognition of the Court's jurisdiction, a reservation made within this framework must also respect the consistency and the integrity of the optional clause 'system'." (Ibid., para. 44.)
………………………………………………………………………………………………
"The backbone of the optional clause 'system' consists in good faith among declarant States. Upon this principle depends the freedom of a State to formulate a reservation." (Ibid., para. 52.)

91. Judge ad hoc Torres Bernαrdez observed the following:

"Article 36, paragraph 2, of the Statute establishes a veritable 'system of jurisdiction', termed 'compulsory jurisdiction', which is of an optional nature in that States parties to the Statute are completely free to participate in it or to refrain from doing so. Naturally, when the Court examines cases submitted to it, it is with States' declarations of acceptance of its compulsory jurisdiction that the Court concerns itself. But declarations are only the means by which States which so desire participate in the system, to a greater or lesser extent and for longer or shorter periods of time. Declarations, which are unilateral acts by States, are but a means of implementing a system founded on agreement, namely the Statute of the Court, which forms an integral part of the Charter of the United Nations. As Article 2, paragraph 2, of the Charter makes clear, all Members, in order to ensure to all of them the rights and benefits resulting from [p 104] membership, 'shall fulfil in good faith the obligations assumed by them in accordance with the present Charter'." (Ibid., dissenting opinion of Judge ad hoc Torres Bernαrdez, tr., para. 144.)

92. I am therefore of the view that, among others, the allegations made by Pakistan, that India committed breaches of obligations of customary international law not to use force and not to violate the sovereignty of another State, ought to have engaged the jurisdiction of the Court.

*

Caution and restraint, creativity and realism

93. In view of the consensual nature of its jurisdiction, the Court generally shows judicial caution and restraint. However, in due course of time, principles of constructive creativity and progressive realism could be evolved by the Court as are reflected in the dissenting opinions of the judges of the Court in the Fisheries Jurisdiction case, which have been extensively quoted by me herein above.

94. As R. P. Anand puts it:

"it is the duty of the International Court, as the principal judicial organ of the United Nations and of the international community, to avoid petrifying legal rules which may have originated in circumstances which no longer exist, and to be conscious of the new trends and tendencies and future needs of the society in determining the law. The conditions under which the classical, traditional law of nations developed, the views which it contained and the interests which it protected, have all greatly changed. In fact the very nature of the international community, which consisted of a comparatively homogeneous, Western, . . . family of nations, has been widened to include peoples with different cultures, civilizations, ideologies, and interests. Law, it must be remembered, is not a constant in a society, but is a function. In order that it may be effective, it ought to change with changes in views, powers, and interests in the community. As Judge Moreno Quintana said in the Right of Passage over Indian Territory case: 'As judge of its own law - the United Nations Charter, and judge of its own age - the age of national independence, the International Court of Justice cannot turn its back upon the world as it is. "International law must adapt itself to political necessities."'" (R. P. Anand, Studies in International Adjudication, p. 181.)

"In view of the dangers of even a limited use of force in the [p 105] present-day world because of the possibility of its developing into a nuclear catastrophe, the International Court may be the best guarantor of these rights." (Ibid., p. 34.)

95. K. R. Simmonds's observations about the Court may also be reproduced:

"If one accepts that the effectiveness of the Court depends to a substantial degree upon the scope of the jurisdiction conferred upon it, then one must see the problem of compulsory jurisdiction as crucial in the future development of the Court's work. To avoid or postpone an inevitable examination and appraisal of such a crucial problem, whatever the pressure of the extra-legal motives, cannot be justified on grounds of law or of policy and must aggravate the problem itself." (K. R. Simmonds, "The Interhandel Case", The International and Comparative Law Quarterly, Vol. 10, 1961, p. 547.)

96. In this respect, reference may be made to the concise comments made by Professor Kooijmans, now a Judge of the International Court of Justice, in his contribution to the Colloquium on Increasing the Effectiveness of the International Court of Justice:

"In view of the consensual basis of its jurisdiction, the Court may find itself situated between Scylla and Charybdis once this jurisdiction is contested. If it assumes too easily that it has jurisdiction, it may deter States from considering the Court as a useful mechanism for dispute settlement; if it finds that it has no jurisdiction, on the basis of a too restrictive interpretation of the jurisdictional clauses, it may marginalize itself. The actual result, however, will be the same, whether there is a decision on the merits or not; the Court will not have been able to carry out its main function - the settlement of the dispute. If the Court denies that it has jurisdiction, the dispute will be allowed to remain simmering; if the Court assumes that it has jurisdiction, in spite of the respondent's vigorous contestations, there is a fair chance that the defaulted party will not comply with the decision on the merits." (Increasing the Effectiveness of the International Court of Justice, Proceedings of the ICJ/UNITAR Colloquium to celebrate the 50th Anniversary of the Court, ed. by Connie Peck and Roy S. Lee, p. 59.)

*

Conclusion: India's preliminary objections to the jurisdiction of the Court ought to have been rejected

97. For the reasons set out above, my view is that the Court ought to have rejected the preliminary objections to the jurisdiction of the Court [p 106] by the Government of India and ought to have entertained the Application filed by the Islamic Republic of Pakistan on 21 September 1999.

Effective measures to secure peace, security and justice

98. Without prejudice to the aforesaid, I am in full agreement with the views of the Court expressed in paragraphs 51 to 55 of the Judgment.

99. I would like to emphasize that the Parties are under an obligation to settle in good faith their disputes, including the dispute regarding the State of Jammu and Kashmir and in particular the dispute arising out of the aerial incident of 10 August 1999.

100. Nelson Mandela, the veteran leader, has publicly acknowledged that he got immense inspiration from his heroes, Quaid-e-Azam Mohamed Ali Jinnah and Mahatma Gandhi. Both believed in the rule of law and justice. In the new Millennium, let India and Pakistan keep in view the ideals of the two great leaders and take prompt and effective measures to secure peace, security and justice in South Asia.

(Signed) Syed Sharifuddin Pirzada.



 

 
     

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