I Introduction
The case came up before the ICJ on 21 September 1999 with the filing
by Pakistan of an application instituting proceedings against India, raising
a dispute relating to the destruction, on 10 August 1999, of a Pakistani
aircraft. The Pakistani application alleged that on 10 August 1999, "an
unarmed Atlantique aircraft of the Pakistan navy ... on a routine training
mission with sixteen personnel on board" was shot down with air to air
missiles by Indian air force planes, without warning, while it was flying
over Pakistan air space, killing all sixteen personnel on board the aircraft.
It further alleged that soon after the shooting down of the aircraft, Indian
helicopters "sneaked into Pakistan's territory to pick up a few items from
the debris...in order to produce 'evidence* for [India's] initial claim that
the Atlantique had been shot down over Indian air space." The Application
contended that these acts on part of India constituted breaches of
obligations under article 2(4) of the UN Charter, the bilateral agreement
of 6 April 1991 on prevention of air space violations, and international
customary law principles relating to non-use offeree and inviolability of
state sovereignty. Pakistan, therefore, requested the court to adjudge and
declare that "the acts of India constituted breaches of these obligations
for which India bears exclusive legal responsibility" and that "India is
1. Article 36(1) of the ICJ statute states as follows: "the jurisdiction of the Court
comprises all cases which the parties refer to it and all matters specifically provided
for in the Charter of the United Nations or in treaties and conventions in force."
2. Article 36 (2) of the statute provides : "The states parties to the present Statute
may at any time declare that they recognise as compulsory ipso facto and without
special agreement, in relation to any other state accepting the same obligation, the
jurisdiction of the Court in ail 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.
Article 36 (3) - which is a related provision - states: "The declarations referred to
above may be made unconditionally or on condition of reciprocity on the part of
several or certain states, or for a certain time."
Pakistan did not take any retaliatory action against India, but instead it
took up the matter with the UN Secretary-General, who expressed his
inability to send a mission to the region because India did not see any
need for any kind of third party investigations into the incident. It also
referred to the 30 August 1999 demarche of Pakistan to India demanding
that the latter should pay the former an amount of US $ 60.2 million as
compensation for the loss of the Pakistani aircraft and for the loss of lives
of the personnel on board. The Memorial further alleged that India did not
officially respond to the Pakistani demarche, but "publicly rejected" the
claim, "closing the door to any possible negotiations, even under the
Simla Accord," nor did it launch any investigation into the incident,
contrary to its obligations under the 1991 Agreement on Prevention of
Airspace Violations.
In its Counter-Memorial, India squarely denied the Pakistani version
of facts of the Atlantique incident and asserted that "Pakistan is entirely
responsible for its own acts." India's written pleading "reserve[d] its right
to counter specifically all allegations made by Pakistan." Pursuant to the
court's directive, it confined itself to issues of jurisdiction. During its
opening arguments in response to the opening arguments made by the
counsel for Pakistan, India's counsel clarified that the incident took place
not in Pakistani territory, but "in western India in the Kutch region in the
state of Gujarat" and reasserted that "Pakistan is solely responsible for
the incident and must bear the consequences of its own acts." 3
The oral proceedings were held for four days from 3 to 6 April 2000.
Pakistan opened the first round of oral arguments, India replying them,
and then Pakistan following with its second round, with India making its
response thereto and holding the advantage of having the last word.
Surprisingly, there were no questions from the Bench put to the parties
for further clarification - which is unusual in the practice of the ICJ. Was
this indicative of the near-unanimous verdict in favour of India, which
eventually materialised? One wonders, in retrospect, if it was not so.
3. See, e.g., the oral statement before the court by India's chief counsel, Mr. Soli
Sorabjee, CR 2000/2, at p. 11,
matter to any other method of settlement to the extent that there was any
further and specific agreement between the parties. At any rate, India
argued, its communication to the UN Secretary-General of 18 September
1974 was a clear manifestation of its will not to be bound by the General
Act of 1928 since its independence. Whereas in Pakistan's view, this
communication did not amount to a formal denunciation of the Act, as it
had not been made in accordance with the procedure provided for in
article 45 of the Act.
Finally, India also drew the court's attention to the reservations made
by British India when it acceded to the General Act of 1928 in 1931,
particularly the Commonwealth reservation and that relating to non-
members of the League of Nations^. It contended that even assuming that
Pakistan be deemed a party to the Act, these reservations would have
effectively barred the court from exercising its jurisdiction in this case
under the Act. On its part, Pakistan argued that these reservations were
inadmissible and invalid because they were not reservations permissible
under article 39 of the General Act.
The Court in its judgement observed that the question whether the
General Act of 1928 continued to be a treaty in force to enable the court
to exercise its jurisdiction thereunder, "has already been raised, but not
settled", in earlier cases before it.6 The court asserted that when its
jurisdiction was challenged on diverse grounds, it need not pronounce on
all the grounds argued before it, but "the court is free to base its decision
on the ground, which in its judgement is more direct and conclusive". 7
It recalled that in the Aegean Sea Continental Shelf case it had decided
not to rule on the issue of whether or not the General Act was in force,
but looked into the attitudes of the parties to the case in respect of the
Act.8 In its view, the crucial issue in the present case is India's position
in respect of the General Act. The court held that India's communication
to the UN Secretary-General of 18 September 1974 made it abundantly
5. "[T]he 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."
6. The court referred to ICJ Pleadings, Nuclear Tests, vol. II, at 348; ICJ
Pleadings, Trial of Pakistani Prisoners of War (Pakistan v. India), at 143; Aegean
Sea Continental Shelf (Greece v. Turkey), ICJ Reports 1978 at 17.
7. See, para 26 of the judgement. The court was quoting its earlier ruling in the
Certain Norwegian Loans case, ICJ Reports 1957 at 25.
8. ICJ Reports 1978, at 16-17.
clear that the independent India never considered itself to be a party to the
General Act and hence it could not have formally denounced the Act. At
any rate, the 18 September 1974 communication could 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." And on that count, "India, in any event, would have ceased to be
bound by the General Act 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." Thus "India cannot be regarded as a party to the said
Act" at the date on which the present case commenced, and consequently
the court lacked jurisdiction to entertain this case on the basis of article
17 of the General Act of 1928.9
its stand and now contended that its argument was not that India's
Commonwealth reservation was illegal, but that it was not opposable
(applicable) to Pakistan, since it was an "extra-statutory" reservation not
specifically provided for in article 36(3) of the statute. As an 'extra-
statutory' reservation, it would only apply vis-a-vis states that had accepted
it; and Pakistan had not accepted it. Further, Pakistan argued, the
reservation, in any event, would not apply in respect of Pakistan because
it was 'obsolete'. Tracing the origins of the Commonwealth reservation,
to the idea of the "inter se* doctrine, Pakistan pointed out that "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 normal rules of international law
apply and between whom litigation may take place upon an international
level, in the ordinary way." 10
In Pakistan's view, the Commonwealth reservation as worded in
India's declaration was specifically directed at Pakistan and that it was,
therefore, discriminatory, and amounted to an abuse of right by India.
India stoutly defended the validity and applicability of the
Commonwealth reservation. It pointed out that none of the commentators
on the jurisdiction of the court ever suggested that the reservation was
invalid. Article 36(3) specifically permitted a choice of partners (i.e.
states in respect of which a government was prepared to accept the court's
jurisdiction). The Commonwealth reservation was a reservation as to the
court's jurisdiction ratione personae, provided for in article 36(3) of the
statute. India also pointed to the illogic of the so-called theory of
opposability of 'extra-statutory' reservations, as such a theory would
permit any state (against which a reservation was invoked) to turn around
any time and claim that it had not 'accepted' reservation and hence the
reservation could not apply.
India also contested that argument that the optional clause declaration
minus the impugned reservation could be acted upon by the court to found
its jurisdiction. A reservation could not be severed from the declaration,
of which it was an integral part. India's, declaration must be taken as 'a
single instrument, as a unity'. 1 ] No estoppel would apply in respect of the
Commonwealth reservation vis-a-vis the Simla Agreement, argued India,
because the Simla Agreement did not contain a compromissory clause
conferring specific jurisdiction on any tribunal for settlement of disputes.
Countering the argument of obsolescence of the Commonwealth
reservation,, India pointed out that the reservation made in 1974 had been
apart of the practice of India: it had been made in earlier Indian declarations
12. Paragraph 36 of the judgement. The court quoted from its predecessor's ruling
in Phosphates in Morocco, PCIJ Series A/B, No. 74 (1938) at 23.
13. Id. The court cited its observations in the Nicaragua case (jurisdiction), ICJ
Reports 1984, at 418:
"[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."
14. Paragraph 37 of the judgement. The court cited in support the resolution
adopted by the League Assembly in 1928 on Optional Clause of article 36 of the
statute of the PCIJ, and the position adopted by the San Francisco Conference on
International Organisation, 1945, Doc. UNCIO, vol. XIII, at 559.
15. Paragraph 38 of the judgement.
16. Paragraph 40 of the judgement.
The court also rejected Pakistan's argument that India was estopped
from invoking the Commonwealth reservation in view of its undertaking
under article 1, paragraph (ii) of the Simla Agreement. In its view, the
general obligation embodied in that 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." 18
In the result, the court found that it had no jurisdiction to entertain the
case under article 36(2) of the statute. It, therefore, found it unnecessary
to deal with India's objection based on multilateral treaties reservation. 19
Before parting with the proceeding, the court gave the parties some
gratuitous advice as well. First of all, it drew the attention of the parties
to the fact 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". 23
The Court reminded them:
The court emphasised that as regards India and Pakistan this obligation
had a special significance, as it had been underscored by the Simla
Agreement of 2 July 1972 as well as by the Lahore Declaration of 21
February 1999. "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." 25
V Comments
The above portrayal of the proceedings and the court's rulings thereon,
permits one to make a few comments on both the proceedings as well as
the court's judgement.
Issues of substance
28. To be fair to the court, it justified its decision not to pronounce upon the status
of the General Act of 1928 in the Aegean Sea Continental Shelf Case thus:
"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]" (ICJ Reports 1978,
at 16-17).
Issues of procedure
This should be read along with paragraph 2 of the same article: "The
application shall specify as far as possible the legal grounds upon which
the jurisdiction of the Court is said to be based; it shall also specify the
precise nature of the claim, together with a succinct statement of the facts
and grounds on which the claim is based." What is not clear, however, is
the implication of the phrase 'as far as possible'. There could be two
hypothetical situations. In one case, the applicant decides not to refer to
any jurisdictional ground at all, as none exists, and leave the other party
to decide whether or not to appear before the court. If the other party
appears and accepts the court's jurisdiction for the purpose of the case,
the court draws its jurisdiction by virtue of forum prorogatum, on the
basis of the conduct of parties. This is the situation covered by article
38(5). In another case, the applicant decides deliberately not to reveal any
of its cards relating to the court's jurisdiction, but simply refers to article
36 (1) and (2) of the court's statute, as it is in any case obliged to reveal
the jurisdictional grounds only 'as far as possible'. Pakistan's application
of 21 September 1999 did precisely this. It was an act in breach of the
principle of good faith on the part of Pakistan not to have specifically
referred to the General Act of 1928 and other grounds of jurisdiction
invoked in its Memorial subsequently. On the other hand, the court itself
does not acquit itself well in this episode. Having tested the issues of
jurisdiction on the basis of the General Act of 1928 in the POWs case
earlier, taking notice of India's optional clause declaration of 1974 filed
with the court, and at any rate in view of India's letter in response to
Pakistan's application, the court could have terminated the proceedings
for lack of jurisdiction, instead of proceeding with them and writing a
judgement with an overwhelming 14 to 2 majority (effectively only one
substantive member of the court dissented).
It is precisely to foreclose totally such wanton misuse of the court's
procedure, that article 38(5) was incorporated in the Rules of Court in
V.S.Mani*