| |
[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]
(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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------
FN4
I.C.J. Yearbook 1959-1960, p. 242.
------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------
FN5
I.C.J. Yearbook 1996-1997, p. 99.
------------------------------------------------------------------------------------------------------------
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.
------------------------------------------------------------------------------------------------------------
FN6
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), I.C.J. Reports 1984, p. 418.
------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------------------------
FN8
R. M. D. Chamarbaugwalla v. The Union of India, 1957, Supreme Court Reports,
pp. 950-951; CR 2000/2, p. 14.
------------------------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------------------------
FN9
Ibid., p. 944.
------------------------------------------------------------------------------------------------------------
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
------------------------------------------------------------------------------------------------------------
FN10 R. M. D. Chamarbaugwalla v. The Union of India, 1957, Supreme Court
Reports, p. 951.
------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
FN11
The Concept of Jus Cogens in the Law of Treaties, Rozakis, 1976, p. 124.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
FN12
For an historical overview see Codification of International Law, Supplement
to the American Journal of International Law, Vol. 29, 1935, pp. 1134-1144.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.
---------------------------------------------------------------------------------------------------------------------
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.)
------------------------------------------------------------------------------------------------------------
FN1
India means undivided British India.
------------------------------------------------------------------------------------------------------------
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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