India and Icj Project

7/29/2019 India and Icj Project

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INTERNATIONAL COURT OF JUSTICE & INDIA

PROJECT WORK

INTERNATIONAL COURT OF JUSTICE AND INDIA

PUBLIC INTERNATIONAL LAW

PALLAVI BAJPAI

LLM 1ST YEAR

ROLL NO. 26

SUBMITTED TO: V. BALAKISTA REDDY

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CONTENTS

S.

No

TOPIC PAGENO.

1 INTRODUCTION 3-162 RIGHT OF PASSAGE OVER INDIAN TERRITORY,PORTUGAL V

INDIA,195517-24

Facts of the caseSubmissions by the Party bringing in the casePreliminary Objections raised by the govt. of IndiaContentions by both the parties and courts considerations over themJudgmentContribution

3 Appeal relating to the jurisdiction of I.C.A.O council, Pakistan v india,1971 25-34

Points discussedFacts of the caseMain contentions by the partiesAppellate jurisdiction of the courtObservations by the courtJurisdiction of I.C.A.O councilJudgmentContribution

4 Trail of Pakistani prisoners of war, Pakistan v India ,1973 35-38

Facts of the caseCourts observationsJudgmentContribution

5 Aerial incidence, Pakistan v india,1999 39-49

Main principles discussedFacts of the caseJurisdiction based upon three issuesPreliminary objections by India regarding jurisdictionContentions by both the parties

Observations by the courtJudgmentContributionPoints on which court did not adjudicate

6 Conclusion 50-517 Bibliography 52


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INTRODUCTION:

United Nations was formally established on 24 October 1945.fifty one countries came

together for promoting peace throughout the world through mutual cooperation1.The

UN was founded after World War II to replace the league of nation, to stop wars

between countries, and to provide a platform for dialogue. It contains multiple

subsidiary organizations to carry out its missions. The UN consists of the

representatives of almost all member states of which there are currently 193 members.

UN charter lays down certain guidelines which are to be followed by all the memberstates.it delineates 4 main purposes:

1. The maintenance of international peace and security.

2. To develop friendly cooperation between countries.

3. To settle international disputes and respect human rights.

4. To serve as a center for all peaceful national activities.

UN does not make or declare any laws but provides guidelines in order to prevent

conflict between nations .it believes that all the nations of the whole world have a say

for its rights whatever be the states status.2

Chapter 3 article 7 talks about the organs of the UN. There are 6 main organs of the

UN, which are:

a) General assembly

b) Security council

1 Shaw on international law, sixth edition

2 http://www.un.org/en/documents/charter/

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c) The economic and social council

d) Trustee council

e) International court of justice

WORLD COURT:

The world court, which is the most important international court, the common name

of the permanent court of justice and presently the international court of justice. The

permanent court of justice was established in 1920 under the auspices of the League

of Nations. In 1946, it was replaced by the international court of justice, which was

made the principal judicial organ of the United Nations, by the article 92 of UN

charter3. The international court of justice is organized in accordance with the statute

of international court of justice which is a part of the United Nations charter.

International court of justice commenced its working from April, 1946.

UN has 6 principal organs, international court is the only one not located in New

York.it presides at The Hague (Netherlands).

The courts role is to settle international disputes submitted to it the states inaccordance with the international law and to give advisory opinion on the legal

question referred to it by the organs of the UN and specialized agencies.

International court is the most important court both politically and scholar. The court

is composed of 15 judges, who are elected for a term of 9 years by the general

assembly and the Security Council. It is assisted by a registry which is its

administrative organ. Official language of the court is English and French.

The basic document which defines the functions and rules, composition of

international court of justice is the statute of ICJ which is annexed to the charter of the

3 The International Court of Justice shall be the principal judicial organ of the United Nations. It

shall function in accordance with the annexed Statute, which is based upon the Statute of the

Permanent Court of International Justice and forms an integral part of the present Charter.


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United Nations.

The statute can be amended by two third majority vote in the general and ratified by

two third of the states.4

STATUTE OF INTERNATIONAL COURF JUSTICE:

S No. TOPIC ARTICLE1 ORGANISATION OF THE COURT 2-332 COMPETENCE OF THE COURT 34-383 PROCEDURE 39-644 ADVISORY OPINION 65-685 AMENDMENT 69-70

MEMBERS OF THE COURT:

The International Court of Justice is composed of 15 judges elected to nine-year terms

of office by the United Nations General Assembly and the Security Council. These

organs vote simultaneously but separately. In order to be elected, a candidate must

receive an absolute majority of the votes in both bodies. This sometimes makes it

necessary for a number of rounds of voting to be carried out.

In order to ensure a measure of continuity, one third of the Court is elected every

three years. Judges are eligible for re-election. Should a judge die or resign during his

or her term of office, a special election is held as soon as possible to choose a judge to

fill the unexpired part of the term.

Elections are held in New York (United States of America) on the occasion of the

annual autumn session of the General Assembly. The judges elected at a triennial

election enter upon their term of office on 6 February of the following year, after

4 Article 69: Amendments to the present Statute shall be effected by the same procedure as is providedby the Charter of the United Nations for amendments to that Charter, subject however to any provisions which

the General Assembly upon recommendation of the Security Council may adopt concerning the participation

of states which are parties to the present Statute but are not Members of the United Nations.

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which the Court proceeds to elect by secret ballot a President and a Vice-President to

hold office for three years.

All States parties to the Statute of the Court have the right to propose candidates.

These proposals are made not by the government of the State concerned, but by a

group consisting of the members of the Permanent Court of Arbitration) designated

by that State, i.e. by the four jurists who can be called upon to serve as members of an

arbitral tribunal under the Hague Conventions of 1899 and 1907. In the case of

countries not represented on the Permanent Court of Arbitration, nominations are

made by a group constituted in the same way. Each group can propose up to four

candidates, not more than two of whom may be of its own nationality, whilst theothers may be from any country whatsoever, whether a party to the Statute or not and

whether or not it has declared that it accepts the compulsory jurisdiction of the ICJ.

The names of candidates must be communicated to the Secretary-General of the

United Nations within a time-limit laid down by him/her.

Judges must be elected from among persons of high moral character, who possess the

qualifications required in their respective countries for appointment to the highest

judicial offices, or are jurisconsults of recognized competence in international law.

The Court may not include more than one national of the same State. Moreover, the

Court as a whole must represent the main forms of civilization and the principal legal

systems of the world.

In practice this principle has found expression in the distribution of membership of

the Court among the principal regions of the globe. Today this distribution is as

follows: Africa 3, Latin America and the Caribbean 2, Asia 3, Western Europe and

other States 5, Eastern Europe 2, which corresponds to that of membership of the

Security Council. Although there is no entitlement to membership on the part of any

country, the Court has always included judges of the nationality of the permanent

members of the Security Council.


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Once elected, a Member of the Court is a delegate neither of the government of his

own country nor of that of any other State. Unlike most other organs of international

organizations, the Court is not composed of representatives of governments. Members

of the Court are independent judges whose first task, before taking up their duties, is

to make a solemn declaration in open court that they will exercise their powers

impartially and conscientiously.

In order to guarantee his or her independence, no Member of the Court can be

dismissed unless, in the unanimous opinion of the other Members, he /she no longer

fulfils the required conditions. This has in fact never happened.

No Member of the Court may engage in any other occupation during his/her term.

He/she is not allowed to exercise any political or administrative function, nor to act as

agent, counsel or advocate in any case. Any doubts with regard to this question are

settled by decision of the Court.

A Member of the Court, when engaged on the business of the Court, enjoys privileges

and immunities comparable with those of the head of a diplomatic mission. In The

Hague, the President takes precedence over the doyen of the diplomatic corps, after

which precedencealternates between judges and ambassadors. Each Member of the

Court receives an annual salary consisting of a base salary (which for 2010 amounts

to US$166,596) and post adjustment, with a special supplementary allowance of

US$15,000 for the President. The post adjustment multiplier changes every month

and is dependent on the UN exchange rate between the US Dollar and the Euro. On

leaving the Court, they receive annual pensions which, after a nine-year term of

office, amount to 50 per cent of the annual base salary.

Although the Court is deemed to be permanently in session, only its President is

obliged to reside in The Hague. However, the other Members of the Court are

required to be permanently at its disposal except during judicial vacations or leave of

absence, or when they are prevented from attending by illness or other serious

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reasons. In practice, the majority of Court Members reside in The Hague and all will

normally spend the greater part of the year there.5

PRESIDENCY AT THE COURTS: The President and the Vice-President are

elected by the Members of the Court every three years by secret ballot. The election is

held on the date on which Members of the Court elected at a triennial election are to

begin their terms of office or shortly thereafter. An absolute majority is required and

there are no conditions with regard to nationality. The President and the Vice-

President may be re-elected.

The President presides at all meetings of the Court; he/she directs its work and

supervises its administration, with the assistance of a Budgetary and Administrative

Committee and of various other committees, all composed of Members of the Court.

During judicial deliberations, the President has a casting vote in the event of votes

being equally divided.

In The Hague, where he/she is obliged to reside, the President of the Court takes

precedence over the doyen of the diplomatic corps.

The President receives a special supplementary allowance of 15,000 dollars per

annum, in addition to his/her annual salary.

The Vice-President replaces the President in his/her absence, in the event of his/her

inability to exercise his/her duties, or in the event of a vacancy in the presidency. For

this purpose he/she receives a daily allowance. In the absence of the Vice-President,

this role devolves upon the senior judge.

On 6 February 2012 the Court elected Judge Peter Tomka (Slovakia) to be President

and Judge Bernardo Seplveda-Amor (Mexico) to be Vice-president

5 http://www.ICJ-cij.org/court/index.php?p1=1&p2=2


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CHAMBERS AND COMMITTEES OF THE COURT:

The court self-sufficiently discharges all the duties as a full court 6.but at times it may

also seek assistance from permanent or temporary chambers.

The court consists of three types chambers:

1 The chamber of summary procedure, which comprises of 5 judges,

president, vice president, and 2 substitutes which the court requires by virtue

of article 29 of the statute.7

2. A chamber of 3 judges to deal with certain categories of cases like labour or

communications8

3. A chamber to deal with a case.9After formally consulting the parties regarding

the number of its members and informally regarding their name - who will then sit

in all phases of the case until its final conclusion, even if in the meantime they

cease to be Members of the Court.

There are three committees of international court:

6 Bench of 9 judges excluding adhoc judges

7 Article 29: With a view to the speedy dispatch of business, the Court shall form

annually a chamber composed of five judges which, at the request of the parties,

may hear and determine cases by summary procedure. In addition, two judges

shall be selected for the purpose of replacing judges who find it impossible to sit.

8 Article 26,para1: 1. The Court may from time to time form one or more

chambers, composed of three or more judges as the Court may determine, fordealing with particular categories of cases; for example, labour cases and cases

relating to transit and communications.

9 Article 26,para 2: The Court may at any time form a chamber for dealing with a

particular case. The number of judges to constitute such a chamber shall be

determined by the Court with the approval of the parties.

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1) Budgetary and administration committee: it deals with decisions to be taken by the

court on administrative matters.

2) Rules committee: this committee advises the court on the procedural issues and

working method.

Library committee: this committee looks over the program of acquisition for the

library of the court and supervising the on-going modernization of its services.

JURISDICTION:

The International Court of Justice acts as a world court. The Court has a dual

jurisdiction : it decides, in accordance with international law, disputes of a legal

nature that are submitted to it by States 10and it gives advisory opinions on legal

questions at the request of the organs of the United Nations or specialized agencies

authorized to make such a request11

India is a charter member of the United Nations and participates in all its specialized

agencies.it has contributed its troops to UN for carrying out its peace keeping

obligations.

India was a founding member of the United Nations, joining in October 1945, two

years before acquiring independence from the United Kingdom. In 1953, the chief

delegate of India at the time, Vijaya Lakshmi Pandit was elected the first woman

President of the UN General Assembly.

As a prominent member of the Non-Aligned Movement that started in 1955, India had

traditionally represented the interests of the developing nations (or third world

nations, as they were known at that time) and supported the struggle against

colonialism and apartheid, its struggle towards global disarmament and the ending of

the arms race, and towards the creation of a more equitable international economic

10 Contentious cases

11 Advisory cases


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order.12

India has been elected 7 times to the UN Security Council. India has been seeking a

permanent seat on the un security council as a member of the G4, an organization

composed of Brazil, Germany, Japan, and India, all who are currently seeking

permanent representation. India makes a number of claims to justify its demand. India

has the world's second largest population and is the world's largest liberal democracy.

It is also the world's ninth largest economy and third largest in terms of purchasing

power parity. Currently, India maintains the world's third largest armed force. India is

the third largest contributor of troops to United Nations peacekeeping missions after

Bangladesh and Pakistan. Although in absolute numbers the troops supplied by India

are only 3000 more than that from Nepal, a small country in comparison with India.

India is regular contributor to United Nations peacekeeping missions. The number of

troops contributing to UN peacekeeping operations as of March 2007 was 9,471. It

also suffered the death of 127 soldiers, who died while serving on peacekeeping

missions.

India is one of the main contributors to the UN regular budget. Indian contribution to

United Nations Democracy Fund was USD 16 million for 2009.

India has a permanent mission to the UN, which is led by the Permanent

Representative, Hardeep Singh Puri. India, running unopposed in the Asian Group,

was elected as a non-permanent member of the United Nations Security Council after

it garnered 187 votes in the then-192 member General Assembly.

India has a keen interest in the un as it is continuously making more responsive to the

needs of the member states.

The charter of the United Nations provides that all members of the UN shall ipso

facto become party to the international court of justice.

12 http://www.un.int/india/india un.html

11
http://www.un.int/india/india%20un.htmlhttp://www.un.int/india/india%20un.html


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DECLARATIONS RECOGNISING THE JURISDICTION OF

INTERNATIONAL COURT OF JUSTICE

The states party to the international court of justice may recognize as compulsory

and without special agreement the jurisdiction of the court in relation to any other

state accepting the same13 .The states which have recognized the courts jurisdiction

has a right to bring any other state which also accepted the jurisdiction.

India on 14 September, 1954 made a declaration regarding its acceptance of

jurisdiction which was replaced by the declaration of 18 September, 1974 which is

followed presently.

India accepted ICJs jurisdiction in relation to art 36, Para 2 over all disputes other

13 Article 36 ICJ statute:

1. The jurisdiction of the Court comprises all cases which the parties refer to itand all matters specially provided for in the Charter of the United Nations or intreaties and conventions in force.

2. The states parties to the present Statute may at any time declare that theyrecognize as compulsory ipso facto and without special agreement, in relation toany other state accepting the same obligation, the jurisdiction of the Court in all

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 aninternational obligation;

d. the nature or extent of the reparation to be made for the breach of aninternational obligation.

3. The declarations referred to above may be made unconditionally or oncondition of reciprocity on the part of several or certain states, or for a certaintime.

4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmitcopies thereof to the parties to the Statute and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and whichare still in force shall be deemed, as between the parties to the present Statute, to be acceptances of thecompulsory jurisdiction of the International Court of Justice for the period which they still have to run and inaccordance with their terms.

6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decisionof the Court.


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than the following:

1) disputes in regard to which the parties to the dispute have agreed or shall agree to

have recourse to some other method or methods of settlement;

(2) disputes with the government of any State which is or has been a Member of the

Commonwealth of Nations;

(3) disputes in regard to matters which are essentially within the domestic jurisdiction

of the Republic of India;

(4) disputes relating to or connected with facts or situations of hostilities, armed

conflicts, individual or collective actions taken in self-defence, resistance to

aggression, fulfilment of obligations imposed by international bodies, and other

similar or related acts, measures or situations in which India is, has been or may in

future be involved;

(5) disputes with regard to which any other party to a dispute has accepted the

compulsory jurisdiction of the International Court of Justice exclusively for or in

relation to the purposes of such dispute; or where the acceptance of the Court's

compulsory jurisdiction on behalf of a party to the dispute was deposited or ratified

less than 12 months prior to the filing of the application bringing the dispute beforethe Court;

(6) disputes where the jurisdiction of the Court is or may be founded on the basis of a

treaty concluded under the auspices of the League of Nations, unless the Government

of India specially agree to jurisdiction in each case;

(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;

(8) disputes with the Government of any State with which, on the date of an

application to bring a dispute before the Court, the Government of India has no

diplomatic relations or which has not been recognized by the Government of India;

(9) disputes with non-sovereign States or territories;

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(10) disputes with India concerning or relating to:

(a) the status of its territory or the modification or delimitation of its frontiers or any

other matter concerning boundaries;

(b) the territorial sea, the continental shelf and the margins, the exclusive fishery

zone, the exclusive economic zone, and other zones of national maritime jurisdiction

including for the regulation and control of marine pollution and the conduct of

scientific research by foreign vessels;

(c) the condition and status of its islands, bays and gulfs and that of the bays and gulfsthat for historical reasons belong to it;

(d) the airspace superadjcent to its land and maritime territory; and

(e) the determination and delimitation of its maritime boundaries.

(11) Disputes prior to the date of this declaration, including any dispute the

foundations, reasons, facts, causes, origins, definitions, allegations or bases of which

existed prior to this date, even if they are submitted14

India has shown extra ordinary participation at the international court of justice and to

the other organs of the UN .from time immemorial eminent judges, scholars; leaders

have held leading positions at various organs of UN and have contributed their share.

There have been few distinguished personalities who have held the bench at the world

court. They are Sir Benegal Rao, Nagendra Singh, Raghunandan swarup pathak and

Justice Dalveer Bhandari.

Name Posts Years of servingSir benegal rao Judge 1952-53Nagendra singh Judge,president,vice 1973-88

14 http://www.ICJ-cij.org/court/index.php?p1=1


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presidentRaghunandan swarup

pathak

Judge 1989-91

Dalveer bhandari Judge 2012

B N Rau served India as a representing delegate in the United Nations. From 1949 to

1952 he was India's Permanent Representative to the U.N., till he was appointed as a

Judge of the International Court in The Hague. He also served as the president of the

United Nations Security Council in 195015.

Justice Raghunandan Pathak was the 18th chief justice of India .he served as a judge at

international court of justice for three years.

Judge Nagendra Singh was associated with the world court from 1972 till his death in

1988, first as a judge and then from 1985 as a president .he took an exalted view of

the court, he was anxious that the court did not arrogate to itself the power to make

laws. The most outstanding and significant contribution of justice Nagendra Singh is

enriching the jurisprudence of the court in his opinion in the case Nicaragua v

USA.His contribution as the president of the court to the judgment is reflected in his

stand ,on the legal customary rules on general principles of international law.

He is equally challenging and through provoking dissenting opinion, as an ad hoc

judge of international court of justice, in the appeal relating to the jurisdiction of

I.C.A.O council India v Pakistan; over ruling the weighty objections of India based

on the councils serious breaches of procedural norms.

His separate individual opinion in Libyan Arab Jamahiriya v Malta also was

influencing on the world court.16

15 http://en.wikipedia.org/wiki/Judges_of_the_International_Court_of_Justice

16 Book:nagendra singh of the world court: contribution and development by v c

govindaraj

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Justice Bhandaris significant contributions to constitutional law, environmental law,

human rights jurisprudence, gender justice, rule of law, protection of fundamental

rights, protection of Intellectual Property Rights and to comparative law are widelyrecognised. He is also a member of leading international academic and legal bodies

and is closely associated with a large number of Committees dealing with various

aspects of International Law such as: Human Rights, Biotechnology, Sustainable

Development, Securities Regulation, Trade, Nuclear Weapons, Non-Proliferation &

Contemporary International Law and Space.

Acknowledging his outstanding contribution, the North-western University School of

Law, Chicago, US while celebrating its 150 Years (1859-2009) selected Dr. Justice

Bhandari as one of its 16 most illustrious and distinguished alumni.17

HYPOTHESIS:

International court of justice being a chariot of UN is expected to carry on its

shoulders the task of fulfilling the principles of UN .As part of my legal study I would

like to focus on the functioning of ICJ and its effectiveness with respect to the Indian

context.

RESEARCH METHODOLOGY USED:

The researcher in this project has adopted doctrinal type of research. Throughout the

17 http://www.un.int/india/press%20release%202012/press03.pdf


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project the case study type of research had been adopted to ascertain the grounds,

causal factors, and contributions of international court of justice in the international

regime with reference to Indian context. The study is basically focused on the library

work and internet survey.

To further elucidate the relationship between India and international court of justice,

the Indian cases brought at ICJ are discussed in the preceding chapters.

CASE 1-RIGHT OF PASSAGE OVER INDIAN TERRITORY

PORTUGAL V INDIA, 1955

FACTS OF THE CASE:

This case was referred to by an application filed on 22 December, 1955.

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The district of Daman comprises, in addition to its littoral territory, 2 parcels of

territory completely surrounded by the territory of India which constitutes enclaves:

Dadra and Nagar aveli.

It is in respect of the communications between those enclaves that the question arises

of the right of passage in favor of Portugal through Indian Territory and a correlative

obligation binding upon India.

The issue in Dadra on 21-22 July 1954 resulted in the overthrow of Portugal

authority in that enclave .this created tension in the surrounding Indian Territory

.thereafter all passage was suspended by India.

Thus Portugal was placed in a position in which it became impossible for it to

exercise its sovereignty rights over the enclaves.

SUBMISSIONS BY THE PARTY BRINGING IN THE CASE TO ICJ18

1 it requested the Court to adjudge and declare that a right of passage was possessed

by Portugal and must be respected by India.

2 Portugal asked the court adjudge and declare that India had not complied with the

Obligations incumbent upon it by virtue of the right of passage.

3 Portugal also requested the court to decide that India must end the measures by

which it opposed the exercise of the right of passage or that there should be a

temporary suspension of the right.

PRILIMINARY OBJECTIONS RAISED BY GOVERNMENT OF INDIA:19

The First Preliminary Objection was to the effect that a condition in the Portuguese

18 Cases and materials on international law, seventh edition by David Harris

19 : http://www.ICJ-cij.org/
http://www.icj-cij.org/http://www.icj-cij.org/


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Declaration of December 19th,1955, accepting the jurisdiction of the Court renewed

for that Government "the right to exclude from the scope of the present Declaration at

any time during its validity any given categories of disputes by notifying the

Secretary- General of the United Nations and with effect from the moment of such

notification" and was incompatible with the object and purpose of the Optional

Clause, with the result that the Declaration of Acceptance was invalid.

The Second Preliminary Objection was bad on the allegation that the Portuguese

Application of Iceberg 22nd 1955, was filed before a copy of the Declaration of

Portugal accepting the compulsory jurisdiction of the Court could be transmitted toother Fatties to the Statute by. The Secretary-General in compliance with Article 36,

paragraph 4, of the Statute. The filing of the Application had thus violated the

equality, mutuality and reciprocity to which India was entitled under the Optional

Clause and under the express condition

Of reciprocity contained in its Declaration of February 28th, 1940, accepting the

compulsory jurisdiction of the court.

The Third Preliminary Objection was based on the absence, prior to the filing of the

Application, of diplomatic negotiations which would have made it possible to define

the subject matter of the claim.

The Fourth Preliminary Objection requested the Court to declare that since India had

ignored the Portuguese Declaration before the Application was filed, India had been

unable to avail itself on the basis of reciprocity of the condition in the Portuguese

Declaration enabling it to exclude: from the jurisdiction of the Court the dispute

which was the subject matter of the Application.

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The fifth Preliminary Objection was based on the reservation in the Indian

Declaration of Acceptance 'which excludes from the jurisdiction of the Court disputesin regard to questions which by international law fall exclusively within the

jurisdiction of the Government of India. That Government asserted that the facts and

the legal considerations adduced before the Court did not permit the conclusion that

there was

a reasonably arguable case for the contention that the subject matter of the dispute

was outside its domestic jurisdiction.

Finally, in The Sixth Preliminary Objection, the Government of India contended that

the Court was without jurisdiction on the ground that India's Declaration of

Acceptance was limited to "disputes arising after February 5th 1930 with regard to

situations or facts subsequent to the same date." The Government of India argued:

first, that the dispute submitted to the Court by Portugal did not arise after February

5th, 1930 and, secondly, that in any case, it was a dispute with regard to situations and

facts prior to that date.

CONTENTIONS BY BOTH THE PARTIES AND COURTS CONSIDERATIONS

OVER THEM:

The right invoked by Portugal for the first submission was only to the extent

necessary for the exercise of its sovereignty over the enclaves. The court referred that

it was not contended that passage was accompanied by any immunity and made clear

such passage remained subject to the regulation and control of India, which must be

exercised in good faith, India being under an obligation not to prevent the transit

necessary for the exercise of Portuguese sovereignty.


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The Court then considered the date with reference to which it must ascertain whether

the right invoked existed or did not exist.

Portugal had previously invited the court to hold that arguments of India concerning

its right to adopt an attitude of neutrality, the application of the United Nations

Charter and the existence in the enclaves of a local government were without

foundation. The Court, however, considered that it was no part of its judicial function

to declare in the operative part of its Judgment that any of those arguments was or

was not well founded.

India had contended that the right of passage claimed by Portugal was too vague and

contradictory to enable the Court to pass judgment upon it by the application of the

legal rules enumerated in Article 38 (1) of the Statute.

Portugal had relied on the Treaty of Poona of 1779 for claiming the right of passage

over the Indian Territory. India had objected that what was alleged to be the Treaty of

1779 was not validly entered into and never became in law a treaty binding upon the

Marathas. The Court, however, found that the Marathas did not at any time cast any

doubt upon the validity or binding character of the Treaty. India had further

contended that the Treaty did not operate to transfer sovereignty over the assigned

villages to Portugal but only conferred, with respect to the villages, a revenue grant.

The Court was unable to conclude from an examination of the various texts of the

Treaty of 1779 that the language employed therein was intended to transfer

sovereignty; the expressions used in the treaty, on the other hand, established that

what was granted to the Portuguese was only a revenue tenure, and not a single

instance had been brought to the notice of the Court in which such a grant had been

construed as amounting to a cession of sovereignty. There could, therefore, be no

question of any enclave or of any right of passage for the purpose of exercising

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sovereignty over enclaves.

The Court found that the situation underwent a change with the advent of the Britishas

Sovereign of that part of the country in place of the Marathas: Portuguese sovereignty

over the villages had been recognized by the British in fact and by implication and

had subsequently been tacitly recognized by India. As a consequence the villages had

acquired the character of Portuguese enclaves within Indian Territory and there had

developed between the Portuguese and the territorial sovereign with regard to passage

to the enclaves a practice upon which Portugal relied for the purpose of establishing

the right of passage claimed by it. It had been objected on behalf of India that no local

custom could be established between only two States, but the Court found it difficult

to see why the number of States between which a local custom might be established

on the basis of long practice must necessarily be larger than two.

The court observed that with regard to private persons, civil officials and goods in

general there existed during the British and post-British periods a constant and

uniform practice allowing free passage between daman and the enclaves. This

practice having continued over a period extending, beyond a century and a quarter

unaffected by the change in regime in respect of the intervening territory which

occurred when India became independent, the court is, in view of all the

circumstances of the case, satisfied that the practice was accepted as law by the

parties and has given rise to a right and a correlative obligation.

As regards armed forces, armed police and arms and ammunition, the position was

different. The court is, therefore, of the view that no right of passage in favour of

Portugal involving a correlative obligation on India has been established in respect of

armed forces, armed police, and the arms and ammunitions. The course of dealing

established between the Portuguese and the British authorities with respect to the


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passage of these categories excludes the existence of any such right. The practice was

established shows that, with regard to these categories .it was well understood that

passage could take place only by permission of the British authorities .this situation

continued during the post British period.

As regards arms and ammunition, the Treaty of 1878 and rules framed under the

Indian

Arms Act of 1878 prohibited the importation of arms, ammunition or military stores

from

Portuguese India and its export to Portuguese India without a special licence.Subsequent

Practice showed that this provision applied to transit between Daman and the

enclaves.

The finding of the Court that the practice established between the Parties had required

for the passage of armed forces, armed police and arms and ammunition the

permission of the British or Indian authorities rendered it unnecessary for the Court to

determine whether or not, in the absence of the practice that actually prevailed,

general international custom or general principles of law recognized by civilized

nations, which had also been invoked by Portugal, could have been relied upon by

Portugal in support of its claim to a right of passage in respect of these categories.

The Court was dealing with a concrete case having special features: historically the

case went back to a period when, and related to a region in which, the relations

between neighbouring States were not regulated by precisely formulated rules States,

which was accepted by the Parties as governing the relations between them, the Court

must attribute decisive effect to that practice. The Court was, therefore, of the view

that no right of passage in favour of Portugal involving a correlative obligation on

India had been established in respect of armed forces, armed police and arms and

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ammunition.

Having found that Portugal had in 1954 a right of passage over intervening IndianTerritory between Daman and the enclaves in respect of private persons, civil officials

and goods in general, the court will proceed to consider whether India has acted

contrary to its obligation resulting from Portugals right of passage in respect of any

of these categories.

The events that took place in Dadra on 21-22 July 1954 resulted in the overthrow of

Portuguese authority in that enclave. This created tension in the surrounding Indian

Territory. Thereafter all passage was suspended by India. India contends that this

became necessary in view of the abnormal situation which had arisen in Dadra.

In view the tension then prevailing in intervening Indian Territory, the court is unable

to hold that Indias refusal of passage to the proposed delegation and its refusal of

visas to Portuguese nationals of European origin and to native Indian Portuguese in

the employ of the Portuguese government was action contrary to its obligation

resulting from Portugals right of passage. Portugals claim of right of passage is

subject to full recognition and exercise of Indian sovereignty over the intervening

territory and without any immunity in favour of Portugal. The court is of the view that

Indias refusal of passage in those cases was, in the circumstances, covered by its

regulation and control of the right of passage of Portugal.

JUDGEMENT:

Following upon the Application, the Court was seized of six preliminary objections

raised by the Government of India. By a Judgment given on 26November 1957, the

Court rejected the first four objections and joined the fifth and sixth objections to the

Merits.


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The President and Judges Basdevant, Badawi, Kojevnikov and Spiropoulos appended

Declarations, to the Judgment of the Court. Judge Wellington Koo appended a

Separate Opinion. Judges Winiarski and Badawi appended a Joint Dissenting

Opinion. Judges Armand-Ugon, Moreno Quintana and Sir Percy Spender, and Judges

ad ~SocC hagla andFernandes, appended Dissenting Opinions.

In its Judgment, the Court:

a) rejected the Fifth Preliminary Objection by 13 votes to 2;

(b) Rejected the Sixth Preliminary Objection by 11 votes to 4;

(c) found, by 1 l votes to 4, that Portugal had in 1954 a right of passage overintervening Indian territory between the enclaves of Dadra and Nagar-Aveli and the

coastal district of Daman and between these enclaves, to the extent necessary for the

exercise of Portuguese sovereignty over the enclaves and subject to the regulation and

control of India, in respect of private persons, civil officials and goods in general;

(6) found, by 8 votes to 7, that Portugal did not have in 1954 such a right of passage

in respect of armed forces, armed police and arms and ammunition;

(e) Found, by 9 votes to 6, that India had not acted contrary to its obligations resulting

from Portugal's right of passage in respect of private persons, civil -officials and

goods in general.

CONTRIBUTION:

The court considered that general customs do play role as the source of international

law, through which the court settles disputes.

The court by not sticking to the traditional rules which govern the decisions of ICJ,

moved a step forward and took a lenient move by considering the informal treaties

also ,here the court relied on the fact that there was a treaty signed between the

Portuguese and the Marathas, which was followed by the British also.so on this basis

declared that there was a right of passage .The court even recognised that for a custom

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to be established it is not necessary that there should be an exact number of states, a

custom can even be established between two states, as the court did in this case.


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CASE 2-APPEAL RELATING TO THE JURISDICTION OF I.C.A.O

COUNCIL

INDIA V PAKISTAN, 1971

POINTS TO BE DISCUSSED:

1) Appellate jurisdiction of the international court of justice.

2) Jurisdiction of the council of the international civil aviation organisation.

3) ICJ may review council assertion of jurisdiction through interlocutory appeal.

4) I.C.A.O has jurisdiction to decide merits of dispute between India and

Pakistan under Chicago convention.5) Appeal relating to the jurisdiction of the I.C.A.O council.

FACTS OF THE CASE:

Shortly after achieving their independence, both India and Pakistan became parties to

the Convention on International Civil Aviation of 1944' (the Chicago Convention)

and the International Air Services

Transit Agreement, Under the Chicago Convention, "each contracting State agrees

that all aircraft of other contracting States not engaged in scheduled international air

service shall have the right to make flights into or in transit non-stop across its

territory and to make stops for non-traffic purposes without the necessity of obtaining

prior permission."'

The Transit Agreement guarantees similar privileges of over flight and non-traffic

stops for scheduled service .The Convention also established the International Civil

Aviation Organization (ICAO) to supervise the rights and Obligations created by the

treaties and provided that disputes arising under the treaties be settled by the ICAO

Council. Appeals from the Council's decisions were to be taken either to the

Permanent Court of International Justice or to an ad hoc arbitral tribunal.'

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When fighting broke out between India and Pakistan in 1965 in Kashmir, India

suspended the over flight and stopping privileges guaranteed to Pakistan under the

treaties' After the Tashkent Declaration ended fighting early in 1966, Prime MinisterGandhi and President Ayub Khan exchanged notes partially restoring the status quo.

India insisted, however, that these notes did not revive the suspended treaties, but

rather produced a "Special Agreement" revocable at will by either party or requiring

prior permission forall overflights or stops.

Aircraft operations between the two countries continued on this uncertain basis until

February, 1971, when an Indian airliner was hijacked to Pakistan and destroyed,

allegedly with the silent cooperation of the Pakistani government. India purported to

revoke the "Special Agreement" and accordingly refused to allow over flights or stops

by Pakistani aircraft, even with prior permission. In March, Pakistan filed both an

Application and a Complaint with the ICAO Council20, demanding relief from the

Indian action. India answered with preliminary objections to the jurisdiction of the

Council, which were rejected by that body in July. In August, India's application for

appeal from the Council's decision to accept jurisdiction was filed with the ICJ.

MAIN CONTENSIONS OF THE PARTIES:

Pakistan civil aircraft had the right to overfly the Indian Territory on the basis of

1) International Civil Aviation Convention

2) International Air Services Transit Agreement

Both of which were signed in Chicago 1944.

20 (a) an Application under Article 84 of the Chicago Convention and Article II,

Section 2, of the Transit Agreement, (b) a Complaint under Article II, Section I, ofthe Transit Agreement. India having raised preliminary objections to its

jurisdiction, the Council declared itself competent by decisions given on 29 July

1971. On 30 August 1971 India appealed from those decisions, founding its right

to do so and the Court's jurisdiction to entertain the appeal on Article 84 of the

Chicago Convention and Article II, Section 2, of the Transit Agreement (hereinafter

called "the jurisdictional clauses of the Treaties".


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Hostilities interrupting overflights broke out between the two countries in August

1965, but in February 1966 they came to an agreement that there should be an

immediate resumption of overflights on the same basis as before 1 August 1965.

Pakistan interpreted that undertaking as meaning that overflights would be resumed

on the basis of the Convention and Transit Agreement, but India maintained that those

two Treaties had been suspended during the hostilities and were never as such

revived, and that overflights were resumed on the basis of a special regime according

to which they could take place only after permission had been granted by India.Pakistan denied that any such regime ever came into existence and maintained that

the Treaties had never ceased to be applicable since 1966.21

APPELLATE JURISDICTION OF THE COURT:

India founded ICJ jurisdiction on article 84 of the Convention 22, article II of the

Transit Agreement23,'" and articles 36 and 37 of the ICJ Statute. Pakistan objected to

21 Para 1-12 of the judgment

22 "If any disagreement between two or more contracting States relating to theinterpretation or application of this Convention and its Annexes cannot be settledby negotiation, it shall, on the application of any State concerned in thedisagreement, be decided by the Council. . . . Any contracting State may, subjectto Article 85, appeal from the decision of the Council to an ad hoe arbitral tribunal. . . or to thePermanent Court of International Justice." Art. 85 deals with the procedure forestablishing an arbitral tribunal.23 ARTICLE II SEC 1 :A Contracting State which deems that action by anotherContracting State under this Agreement is causing injustice or hardship to it, mayrequest the Council to examine the situation. The Council shall thereupon inquireinto the matter, and shall call the States concerned into consultation. Should suchconsultation fail to resolve the difficulty, the Council may make appropriatefindings and recommendations to the Contracting States concerned. If thereaftera Contracting State concerned shall in the opinion of the Council unreasonably failto take suitable corrective action, the Council may recommend to the Assembly ofthe above-mentioned Organization that such Contracting State be suspendedfrom its rights and privileges under this Agreement until such action has beentaken. The Assembly by a two-thirds vote may so suspend such Contracting Statefor such period of time as itmay deem proper or until the Council shall find that corrective action has been

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the Court's jurisdiction on a number of grounds, several of which were summarily

rejected by the majority24. The Court did deal at some length, however, with three

major objections to its own jurisdictionFirst, in its Counter-Memorial, Pakistan noted the difference between an Application

and a Complaint under the ICAO Rules for the Settlement of Differences and claimed

that while the Court had the

Power to review ICAO Council action on the former, it had no jurisdiction to review

action taken on the latter. An Application has traditionally been viewed as the proper

form for challenging acts by Parties in violation of the Convention. The Rules and the

Convention outline the procedure to be followed by the Council in reaching a

decision on an Application, the remedies available for failure to comply with the

decision, and the procedure for appeal .A Complaint, on the other hand, is the proper

form for protesting behaviour which, though not technically illegal under the terms of

the treaties, might nevertheless cause hardship or injury to another party The crucial

difference is that the Council does not reach binding decisions on Complaints, but

only makes "findings and recommendations." Pakistan argued that since there are no

provisions in the Rules or the treaties for appeal from Council action on a Complaint

and since it is impossible to review a non-binding recommendation, the Court had no

power to review the Council's jurisdiction in this case. The Court agreed that its

appellate jurisdiction may in some cases depend on the nature of the action in the

tribunal below, but it went on to reason that, since an Application as well as a

Complaint had been filed and since the facts alleged in both were identical, it would

be absurd for the Court to hold that the Council had properly asserted jurisdiction

over one and not the other3 While the Court seems thus to have adhered to a

taken bySuch State.

24 Many of these objections, such as Pakistan's attempt to take advantage of areservation in the Indian declaration under the ICJ Statute, were properly rejectedby the Court as irrelevant unless the jurisdictional clauses of the treaties inquestion were found to be inadequate.


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transactional theory of pleading, it should be cautioned than it did not vote on this

issue separately and at least one judge who joined with the majority in the result

indicated in a separate opinion that he would not have voted to accept jurisdiction

over a Complaint that had been submitted alone. The possibility that the Court might

deny appellate jurisdiction in such a situation should not be ignored. The second

major objection to the Court's jurisdiction was raised in the Rejoinder by Pakistan, the

final written pleading submitted to the Court. Pakistan claimed that India's reliance on

the jurisdictional clauses of the Convention and the Transit Agreement in appealing to

the ICJ contradicted the basic Indian contention that the treaties were no longer in

effect between the two parties. The Court recognized that, if accepted, such circularlogic would make it impossible for any nation claiming termination of a treaty to

contest jurisdiction under its terms. None of the three judges who dissented from the

Court's decision to accept jurisdiction relied on this argument in their opinions.

The final and most compelling argument against ICJ jurisdiction was not raised by

Pakistan until the oral arguments, where the chief counsel for Pakistan suggested that

the ICJ's appellate jurisdiction applied only to final decisions of the ICAO Council

and not to preliminary orders and rulings .The language of article 84 of the

Convention offers support for this objection, since it refers simply to "appeal from the

decision of the Council" .A narrow reading of this clause would indicate that

preliminary decisions of the Council are not subject to immediate appeal. In fact, the

Court agreed that this view "would certainly have to be regarded as correct in respect

of any procedural or otherwise genuinely interlocutory decisions of the Council." In

distinguishing a decision on jurisdiction from other decisions on preliminary matters,

the Court relied on a series of policy arguments.

OBSERVATIONS BY THE COURT:

The first rationale offered by the Court is that a decision on jurisdiction, in contrast to

other preliminary decisions, "is a substantial question crucially affecting the position

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of the parties to the case," so that for purposes of appellate review, a "final decision of

the Council as to its competence should not be distinguished from a final decision on

the merits."3" In his concurring opinion, Judge Lachs amplified this explanation withthe suggestion that the ICJ should usually exercise restraint in accepting jurisdiction,

but not in cases where it acts as a court of appeal. In such cases, "to apply a restrictive

interpretation of rights of appeal-and thus of powers of the court of appeal would

obviously entail an extensive interpretation of the powers of the 'court of first

instance., In a variation of the same theme, Judge Dillard pointed out that the Court

should be concerned with protecting a litigant from the expense and vexation of

defending on the merits before a tribunal which has no jurisdiction.

JURISDCITION OF I.C.A.O:

As the Court pointed out, jurisdiction of the Council to hear this case depends on the

existence of a "disagreement relating to the interpretation or application" of the

Convention or the Transit Agreement.

India advanced two arguments against the existence of such a dispute. First, it argued

that since the treaties as between India and Pakistan had been either suspended or

terminated, there could be no dispute concerning their interpretation or application.

Secondly, India argued that, while the Council certainly had jurisdiction to settle

disputes about the application and interpretation of the treaties, it could not decide

disputes concerning termination and suspension.25The Court was swayed by neither

argument. It chose to view the first as simply an Indian reply to Pakistani charges that

India had violated the Convention. The Court made a series of "observations"

generally critical of the Indian denial of the continued validity of the treaties, an

action somewhat inconsistent with its theory of interlocutory appeal. Rather, the

Court emphasized that India could not be permitted to void the effect of the treaties'

jurisdictional clauses by a unilateral declaration that the treaties were no longer

25 India relied on the theory that the primarily technical and non-legal functionsof ICAO indicate that parties to the Convention did not intend that the Councilshould decide complex legal issues.


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operative, To the argument that the Council had no jurisdiction over disputes

involving termination, the Court replied by noting that India had again made the

"assumption that the Treaties have in fact been validly terminated or suspended.". The

Court refrained from adjudicating the issue of the extent of Council jurisdiction of

disputes over termination, since it depended largely on the result of questions yet to

be litigated before the Council. Having thus upheld the jurisdiction of the ICAO

Council over the dispute, the Court returned the case to the Council for decision on

the merits."

JUDGEMENT:In its judgment in the case concerning the Appeal relating to the Jurisdiction of the

ICAO Council (India v. Pakistan), the Court, by 13 votes to 3, rejected the

Government of Pakistan's objections on the question of its competence and found that

it had jurisdiction to entertain India's appeal.

By 14 votes to 2, it held the Council of the International Civil Aviation Organization

to be competent to entertain the Application and Complaint laid before it by the

Government of Pakistan on 3 March 1971, and in consequence rejected the appeal

made to the Court by the Government of India against the decision of the Council

assuming jurisdiction in those respects.

For these proceedings the Court was composed as follows: Vice-President Ammoun

(Acting President), President Sir Muhammad Zafrulla Khan, Judges Sir Gerald

Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petrn, Lachs, Onyeama, Dillard,

Ignacio-Pinto, de Castro, Morozov and Jimnez de Archaga, and Judge ad hoc

Nagendra Singh.

President Sir Muhammad Zafrulla Khan and Judge Lachs appended Declarations to

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the Judgment.

Judges Petrn, Onyeama, Dillard, de Castro and Jimnez de Archaga appended

Separate Opinions.

Judge Morozov and Judge ad hocNagendra Singh appended Dissenting Opinions.

The objections to the Court's jurisdiction based on the alleged inapplicability of the

Treaties as such or of their jurisdictional clauses could not be sustained. The Court

was therefore invested with jurisdiction under those clauses and it became irrelevant

to consider objections to other possible bases of the Court's jurisdiction.

Furthermore, since it was the first time any matter had come to the Court on appeal,

the Court observed that in thus providing for an appeal to the Court from the

decisions of the ICAO Council, the Treaties had enabled a certain measure of

supervision by the Court of the validity of the Council's acts and that, from that

standpoint, there was no ground for distinguishing between supervision as to

jurisdiction and supervision as to merits.

DECLARATIONS AND SEPARATE OR DISSENTING OPINIONS:

Judge Morozov and Judge ad hocNagendra Singh (Dissenting Opinions) were unable

to concur in the Court's decision on the jurisdiction of the ICAO Council.

President Sir Muhammad Zafrulla Khan (Declaration) and Judges Petrn and

Onyeama (Separate Opinions) were unable to concur in the Court's decision on its

own jurisdiction.

Judge Jimnez de Archaga (Separate Opinion) concurred in the operative clause of

the Judgment but did not approve the Court's conclusion as to its jurisdiction to hear

an Application.

Judges Lachs (Declaration), Dillard and de Castro (Separate Opinions) added further


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observations.

CONTRIBUTION:

Court pointed out several times; it would be absurd to allow nations to decide

unilaterally that they were no longer subject to jurisdictional clauses in treaties which

they have ceased to regard as operative. If a defendant nation could legitimately

refuse to submit to international adjudication merely by declaring that the treaty

conferring jurisdiction had been terminated or suspended, then the principle of

submission to the jurisdiction of an international tribunal would become a virtual

nullity. There can be little question that the Court reached the correct decision on this

issue.

The Court's wisdom on the issue of its own jurisdiction over an interlocutory appeal is

far more difficult to establish. In this country, it has long been the rule that the right of

appeal in the federal system is generally delayed until after a final decision by the

court of first instance, Efficiency of judicial administration and avoidance of the

dangers of prejudgment of the merits which may arise with piecemeal adjudication

have been the traditional justifications for this final decision rule. The former

justification has little relevance to the practice of a court which has recently been

handling only one or two cases annually, but the danger of piecemeal adjudication

would seem to be just as great in the international context as in the federal system.

The Court did recognize the problem with its statement that it "must avoid not only

any expression of opinion on the merits of the case, but any pronouncements which

might prejudge, or appear to prejudge, the eventual decision of the Council."

Unfortunately, by discussing India's argument on the merits to an unnecessary extent,

the Court failed to follow its own advice26 .More significantly, the extent to which the

Court delved into the substantive aspects of the dispute in dismissing India's challenge

26 Judge Nagrenda Singh is obviously referring to these digressions when hecriticizes the Court for giving the impression ofdiscussing more than merely the

jurisdictional issue..

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to Council jurisdiction may indicate that the Court underestimated the incompatibility

of a policy of liberal interlocutory appeal, even on jurisdictional questions, and even-

handed judgment on the merits.The result of the case suggests that the ICJ weighed heavily the need to protect the

sovereignty of nations involved in international adjudication. This concern for

sovereignty is understandable and justifiable since nations must be guaranteed respect

for their sovereignty if they are ever to surrender enough of it to allow for a system of

international judicial dispute settlement. On a purely theoretical level, the argument in

favour of liberal interlocutory review of jurisdictional matters by the ICJ thus seems

very compelling. The danger of piecemeal adjudication must be assigned a relatively

insignificant value if it can be avoided only by implementing a procedure that would

entail

Forcing international parties to sacrifice more of their sovereignty than might be

worth their while. The Court is indeed justified in its apparent sentiment that resort to

international tribunals is still a sufficiently new practice among nations that it should

be protected and buffered from careless destruction by adherence to a less valuable

and far narrower principle, such as avoidance of piecemeal adjudication.

Modifying the traditional notions ofcompetence de la competence, the Court could

reasonably have held that the Council's decision with regard to its own jurisdiction

would have presumptive validity until final decision, after which the ICJ could

exercise its power to hear appeals on all issues, including that of Jurisdiction.27

27 The fault in the Court's actual approach is further dramatically emphasized bythe cost incurred by Pakistan during the pendency of the interlocutory appeal.With its civilian aircraft forced to circumnavigate the Indian subcontinent tomaintain the air-link between the two part of the formerly divided nation, thegovernment of Pakistan estimated a loss per week of $63o,oo0. Annexes at 30.

Of course it would be unfair to assume that India's apparent lack of concern for aspeedy resolution of the ICAO dispute and its role in the revolution in Bengla Deshwere merely coincidental. Its success in delaying through the interlocutory appealdevice might have been a clearwarning in itself to the Court on the ways in which a determined litigant mighttake advantage of such a privilege for purposes having little to do with the suititself. It is also interesting to note that had Pakistan complied with the proceduralrules of the ICJ by filing preliminary objections to the ICJ's jurisdiction, the


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Even if the Court reached the correct result on the issue of its own jurisdiction the

majority opinion would still be difficult to defend against criticism of its failure to

clearly set forth the rationale for allowing liberal interlocutory appeal. The opinion

conveys a sense that the Court was struggling to at least some extent with the

admittedly difficult problem of striking the proper balance between important

countervailing considerations, but the Court failed to make its analysis explicit. This

is especially disappointing in an opinion which was the Court's first in an appellate

capacity. The Court failed to take full advantage of an important opportunity to

discuss the function and purpose of its new role in the international legal process28.

proceeding would have been even further prolonged. The Court took disapprovingnote of this irregularity,but carefully stated that it in no way prejudiced the Pakistani case. Opinion at 52.

The Court's extreme tolerance of procedural sloppiness throughout the case canperhaps best be explained in terms of the dramatic political devlcopmentsoccurring during the time of the litigation. By the time oral arguments had beenheard in July, 1972, East Pakistan had become Bengla Desh. As a result, the legaldispute between India andPakistan over the Chicago Convention had lost much of its urgency. WithPakistan's need for speedy adjudication of the controversy now out ofconsideration to some extent,the Court quite possibly became more interested incondemning the Indian theory of unilateral termination than in dealing with minorinfringements of formal requirements.28 Harvard International Law Journal / Vol. 14

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CASE 3-TRIAL OF PAKISTANI PRISNORS OF WAR

PAKISTAN V INDIA, 1973

FACTS OF THE CASE:

In 1971, a rebellion was suppressed by Pakistani armed forces in east Bengal, which

was then part of Pakistan. Shortly afterwards, hostilities broke out between India and

Pakistan, and Indian forces took control of East Bengal (which later declared itself

independent as the State of Bangladesh).

During the fighting, Indian forces took a number of Pakistani prisoners of war.

In May 1973, Pakistan, believing that India was proposing to transfer some of these

prisoners of war to Bangladesh for trial for acts of genocide and crimes against

humanity, Pakistan sought to prevent this transfer by instituting proceedings against

India on the basis of certain provisions of the Convention on the Prevention and

Punishment of the Crime of Genocide of 9December 1948 .At the same time,

Pakistan sought interim measures of protection to prevent the transfer of the prisoners

of war. India rejected the Court's jurisdiction.

Pakistan on the basis of article 41 of the statute and article 66 of the rules of the court,

plead the court indicate the following interim measure of protection:

1) That the process of repatriation of prisoners of war and civilian internees in

accordance with international law, which has already begun, should not be interrupted

by virtue of charges of genocide against a certain number of individuals detained in

India.

2) That such individuals, as are in the custody of India and are charged with alleged

acts of genocide, should not be transferred to 'Bangladesh' for trial till such time as

Pakistan's claim to exclusive jurisdiction and the lack of jurisdiction of any other

Government or authority in this respect has been adjudged by the Court;"


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India being the absent party to the case wrote a letter on 23 may, 1973 to the

ambassador of the neither land declining to consent to the jurisdiction of the Court in

the case, and claimed that without such consent the Court could proceed with it, and

that there was no legal basis whatever for the jurisdiction of the Court in the case.

On 11 July, 1973 Pakistan informed the court that there are expectations of

negotiations between the two states in near future and Pakistan asked the court to

postpone further consideration of its request for interim measures in order to facilitate

those negotiations.Government of Pakistan further asks the Court to fix time-limits for the filing of

written pleadings.

COURTS OBSERVATIONS:

The court considered that it was Pakistan which requested the Court to indicate

interim measures of protection on the basis that the circumstances

Of the case and it is of the essence of a request for interim measures of protection that

it asks for a decision by the Court as a matter of urgency, as it is expressly recognized

by the Court in Article 66, paragraph 2, of the Rules of Court.

Now the Government of Pakistan asks the Court to postpone further consideration of

its request for the indication of interim measures signifies that the Court no longer has

before it a request for interim measures which is to be treated as a matter of urgency;

And so the Court is not therefore called upon to pronounce upon the request. Having

regard to Article 66, paragraph 1, of the Rules of Court which provides that a request

for the indication of interim measures of protection may be made at any time during

the proceedings in the case in

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Connection with which it is made, therefore the present case the Court must first of

al1 satisfy itself that it has jurisdiction to entertain the dispute;

Accordingly,

By 8 votes to 4,

Decides that the written proceedings shall first be addressed to the question of the

jurisdiction of the Court to entertain the dispute, then on request for extension of time

by Pakistan to submit memorial the court granted time.

Later on 14 December, 1974 Pakistan informed about the negotiations between the

Government of Pakistan and the Government of India which had resulted in an

agreement signed at New Delhi on 28 August 1973,

And, requested the Court to make an Order officially recording discontinuance of the

proceedings in this case.

On the other side Government of India, while it has addressed certain

communications to the Court through its Ambassador in The Hague has not yet taken

any step in the proceedings;

Therefore the court on 15 December, 1974 Places on record the discontinuance by

the Government of Pakistan Of the proceedings instituted by the Application filed on

11 May 1973.

On 13 July 1973, the Court held(14 to 1) that, since urgency was of the essence of a

request for interim measures, Pakistan, by asking for postponement, had indicated that

its request no longer concerned a matter of urgency and the Court was therefore not

called upon to pronounce on that request. Subsequently, the proceedings were

discontinued at the request of Pakistan on 15 December, 1974.

Justice Nagendra Singh gave separate opinion and justice Petren gave dissenting


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opinion.

CONTRIBUTION:

The court gave importance to the interim measure which requires immediate steps to

be taken, and so considered the first thing in this case.

It emphasised on the elementary and basic principle of judicial propriety which

governs the exercise of the judicial function, particularly in inter- state disputes, that

no court of law can adjudicate on the rights and responsibilities of a third State,

(a) Without giving that State a hearing, and

(b) Without obtaining its clear consent.The court even extended its precious time so that the parties could reach an amicable

settlement of the dispute.

The separate and dissenting opinions also hold weightage. The separate opinion of

Nagendra Singh postulates that request for postponement in relation to interim

measures can only have the legal effect of withdrawal, which must take priority over

al1 other considerations, particularly when India had declined to be present and has,

therefore, no say in regard to the request of Pakistan. He asserted that when agreeing

to postponement of further consideration of the request for interim measures and

finding that it is not therefore called Upon to pronounce thereon, should have declined

to deal any further with the case, as judicial propriety does not permit the Court to

advance any further therein.

Whereas the dissenting opinion says that the foremost question which the court must

have taken into consideration should have been regarding jurisdiction, and the court

adjudicated without appointing an ad hoc judge of Pakistan which is one of the

essentials for settling of disputes at the world court. Judge Petren also raised a point

regarding the attitudes of the two Governments in question gives the impression that

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it is much rather the intervention of the mediator than that of the international judge

which would be more likely to help them resolve the series of disagreements between

them.

CASE 4-AERIAL INCIDENCE OF 1999

PAKISTAN V INDIA,1999

MAIN PRINCIPLES DISCUSSED:

1 The Jurisdiction of ICJ was discussed.

2 general act for pacific settlement of international disputes.

3. Treaty succession.

4. Common wealth and multilateral-treaty reservation in optional clause declaration.

5. UN charter as basis of jurisdiction.

6. Effect of obligation to settle disputes by peaceful means.

FACTS OF THE CASE


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Pakistan's Application of September 21, 1999, requested the Court to declare that

India is responsible under international law for the shooting down, on August 10,

1999, an unarmed aircraft of the Pakistani navy allegedly by Indian air force planes.

The aerial incident resulted in the death of all 16 personnel on board who allegedly

were on a routine training mission over Pakistani territory.

Pakistan also maintained that Indian air force helicopters violated its territorial

integrity by visiting the aircraft's crash site inside Pakistan territory, in an attempt to

pick up items from the debris immediately after the incident.

In Pakistan's view, the actions of the Indian air force violated its sovereignty and

breached India's obligation to refrain from the threat or use of force under Article 2,

paragraph 4 of the UN Charter, other treaties and customary international law.

Pakistan also claimed that India's actions constituted breaches of the 1991 Agreement

on Prevention of Air Space Violations29 between both countries for which India must

bear international responsibility.

Article 1 of the 1991 Agreement obligates both countries to ensure that violations ofeach other's air space do not take place and provides that if any violation occurs

inadvertently, the incident is to be investigated promptly and the other side informed

of the results without delay.

Pakistan asked the Court to hold that India is obligated to make reparations to it for

the loss of the navy aircraft and to the heirs of the Pakistani servicemen.

Pakistan brought this issue to ICJ on the bases of jurisdiction based upon three

29 See Agreement on Prevention of Air Space Violations, Apr. 6, 1991, Pak.-India. Article 1 obligatesboth countries to ensure that violations of each other's air space do not take place, and provides that

if any violation occurs, the incident is to be investigated promptly, with the other side to be informed

of the results without delay

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points:

1. Pakistan relied on Article 17 of the 1928 General Act for Pacific Settlement of

Disputes as providing jurisdiction to the ICJ as successor to the Permanent Court of

International Justice (PCIJ), which functioned between 1922 and 1945. Article 17

provides that all disputes with regard to which the parties to the General Act are in

conflict as to their respective rights are to be submitted for decision to the PCIJ

(currently the ICJ, as Article 37 of the ICJ Statute provides).

2. As an additional basis of the Court's jurisdiction, Pakistan relied on the declarations

made by the two States accepting the Court's compulsory jurisdiction under Article

36(2) of the ICJ Statute. That provision, known as the "Optional Clause," provides

that States Parties to the ICJ Statute may at any time file with the UN Secretary-

General declarations stating that they recognize as compulsory, without special

agreement, in relation to any other State accepting the same obligation, the Court's

jurisdiction over all legal disputes concerning the interpretation of a treaty, any

question of international law, the existence of any fact which, if established, would

constitute a breach of an international obligation, or the nature or extent of the

reparation to be made for the breach of an international obligation.

3. Finally, Pakistan invoked Article 36, paragraph 1 of the ICJ Statute as a basis of

jurisdiction. According to this provision, the Court's jurisdiction comprises all matters

specially provided for in the UN Charter or in treaties and conventions in force.

Preliminary objections of India regarding jurisdiction:

1. India contested the jurisdiction and referred to a communication of September 18,

1974, addressed to the UN Secretary-General stating that India "never regarded


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[itself] as bound by the General Act of 1928 since [its] Independence in 1947,

whether by succession or otherwise."

2. India challenged the Court's jurisdiction, invoking a reservation contained in its

declaration of September 18, 1974, which excludes from jurisdiction "disputes with

the government of any State which is or has been a Member of the Commonwealth of

Nations.

3. India emphasised that the Charter and a bilateral treaty relied on by Pakistan do not

contain any specific provision of itself conferring compulsory jurisdiction on the

Court.

CONTENSIONS BY BOTH THE PARTIES:

India argued that, with the demise of the League organs and the PCIJ30, to which the

general Act refers, the act had lost its original efficacy. In support of this argument,

India invoked the UN General Assembly's adoption of the Revised General Act in

194931

. India also characterized the General Act as an agreement of a politicalcharacter and, as such, not automatically binding on successor states like India and

Pakistan. Noting that it had made no notification of succession as required by Articles

17 and 22 of the 1978 Vienna Convention on Succession of States in Respect of

Treaties32, India referred to a communication of September 18, 1974, addressed to the

30 Although the PCIJ was created by the League of Nations and operated under its

auspices, the PCIJ's Statute was not part of the League Covenant, and the Court

was not a statutory organ of the League.

31 Sega Res. 268A (III) (Apr.28, 1949), at 10. For the text of the Revised General

Act, see 71 UNTS 101. Article 17 is among the provisions that were amended by

the new, 1949 act. See Aerial Incident Judgment.

32 Vienna Convention on Succession of States in Respect of Treaties, opened

forsignatureAug. 23, 1978, UN Doc. A/CONF 80/31, 17 ILM 1488 (1978).

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UN Secretary-General, stating that India "never regarded itself as bound by the

General Act of 1928 since its Independence in 1947, whether by succession or

otherwise

33

.

Pakistan argued that India's communication of September 1974 was a subjective

statement devoid of objective validity and that the emergence of an independent India

was not a case of state succession, but of continuity of the same state-namely, British

India before 1947 and independent India thereafter. As for its own status, Pakistan

believed that it had succeeded automatically to the General Act in 1947 based on

customary international law and, in any event, through its notification of succession

addressed to the Secretary-General on May 30, 1974.34

India and Pakistan also advanced differing interpretations of the practice of the two

countries since 1947. Pakistan claimed that the General Act qualified as a peaceful

33 Aerial incident Judgment,. India's communication was issued while different ICJ

proceedings instituted against it by Pakistan were pending.

34 See Aerial Incident Judgment,. In this connection, the parties also disagreed on

the interpretation of a schedule to the Indian Independence (International

Arrangements) Order issued by India's governor-general on August 14, 1947,

which was stated to have the effect of an agreement between the two countriesconcerning treaty succession. According to Pakistan's interpretation, it had

succeeded to the rights and obligations under all international agreements to

which British India was a party. In India's view, however, Pakistan could not have

succeeded, under the 1947 order and agreement, to British India's rights and

obligations by virtue of British India's membership of the League of Nations;

Pakistan needed to submit a new, independent application for membership in the

United Nations. In support of its view, India referred to judgment issued by the

Supreme Court of Pakistan on June 6, 1961, which found, in considering Pakistan's

status in relation to the 1927 Convention for the Execution of Foreign Arbitral

Awards, that Pakistan did not automatically become a member of the United

Nations or succeed to the rights and obligations of British India deriving from itsmembership in the League of Nations or the United Nations. Pakistan claimed that

this judgment could not be relied upon, because Pakistan had not had an

opportunity in the case to express its views to the Supreme Court. See id., paras.

18-20; Yangtze (London) Ltd. v. Barlas Bros. (Karachi), Sup. Ct., Civ. Appeal No.

139, Judgment of June 6, 1961 (Pak.); see also Materials on Succession of States,

UN Doc. ST/LEG/SER.B/14, at 133-41 (1967).


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means to settle their differences mutually agreed upon between them referred to in the

Shimla Accord of July 2, 1972, which reaffirmed the General Act's procedure.

India maintained that the Shimla Accord represented no more than an arrangement

between the two countries to resort to negotiations before referring any difference to

some other method of settlement through a further and specific agreement between

the parties.35

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