ORAL ARGUMENTS
MINUTES OF THE PUBLIC SITTiNGS
heldat the PeacePalace, The Hague,
frorn 19 June3tJuly, and 18August1972,
Vice-PresidenrArnrnounpresiding FIRST PUBLIC SITTING (19 VI 72, 3 p.m.)
Presenr: Vice-PresidenAMMOUN ,cting President;PresidenSir Muham-
mad ZAFRULLA KHAN; Judges Sir Gerald FITZMAUIUCE P,ADILLANERVO,
FORSTERG , ROS,BENGZON, PETRÉN,LACHS,ONYEAMA D,ILLARO ,GNACIO-
PINTO, DE CASTROM , OROZOV J,IM~NEZDE ARÉCHAGA Judge ad hoc NAGEN-
DRA SINGH; RegistrurAQUARONE.
Alsopresent:
For the Governmentof India:
H.E. Lt. General Yadavindra Singh, Ambassador of India at The Hague,
asAgent;
Dr. S. P. Jagota, Joint Secretary and Legal Adviser,Ministry of External
Affairs, Government ofIndia,as Deputy Agent and Counsel;
Mr. T. S. Ramamurti, Fint Secretary, Embassy of India, The Hague, us
Deputy Agent;
MI. N. A. Palkhivala, Senior Advocate, Supreme Court of IndiaasChief
Counsel;
Mr. B- S. Gidwani.. ..utv Director General of Civil Aviation. Govern.
ment of India,
Mr. Y. S. Chitale, Advocate, Supreme Court of India,
~ ~ - ~ - ~drasekhara Rao. .ee-l Adviser. Permanent Mission of India
to the United ~atibns, New York,as Counsel;'
Mr. 1.R. Menon, Civil Aviation Department, Govemment of India, as
Expert.
For the Governmentof Pakistan:
H.E. Mr. J. G. Kharas, Ambassador of Pakistan ta the Netherlands, as
Agent;
MI. S. T. Joshua, Secretary of EmbassasDeputy Agent;
Mr. Yahya Bakhtiar, Attorney-General of Pakistanas Chief Counsel;
Mr. Zahid Said, Deputy Legal Adviser, Ministry for Foreign Affairs,
Mr. K. M. H. Darabu, Assistant Director, Department of Civil Aviation,
as Counsel. ICA0 COUNCIL
OPENING OF THE ORAL PROCEEDINGS
Le VICE-PRÉSIDENT faisant fonction de Président: La Cour se réunit
aujourd'hui à l'effet de connaître de l'appel concernant la compétence du
Conseil de i'organisation de l'aviation civile internationale dans l'affaire
entre l'Inde et le Pakistan.
Le Président &tant le national de l'une des Parties en cause, il a cédéla
présidenceau Vice-Présidenten application de l'article 13, paragraphe 1, du
-~~-~men~ de ~a~ ~ ~;
L'instance avait&teintroduite, le 31aoilt 1971,px uoc rcquétcdu Gouvcr-
ncment indien interietünt amel de la décisiondu 29 iuillct 1971du Conseil dc
i'aviation civile inkuationale, décision ayant rejejé les exceptions prélimi-
naires opposées par le Gouvernement indien à la requêteet à la plainte dont
le Gouvernement pakistanais avait saisi le Conseil le 3mars 1971.
Les pièces de la procédure écrite ayant étédeposéesdans les délaisfixés,
I'aiTaireest en état.
La Cour ne comptant pas sur lesiègeunjuge de la nationalité de l'appelant,
le Gouvernement de l'Inde a désignéM. Nagendra Singhcomme juge ad hoc,
en application de l'article 31, paragraphe 2, du Statut.
Le Gouvernement du Pakistan a fait savoir m'il n'avait vas d'obiection à
cette désignation.
J'invite en conséquence M. Nagendra Singh à prononcer l'engagement
solennel prévu à l'article 20 du Statut de la Cour.
Mr. NAGENDRA SINGH: 1 solemnly declare that 1 will perform my
duties and exercise my powen as judge honourably, faithfully,impartially and
conscientiously.
Le VICE-PR~sIDENT: Je prends acte de la déclaration que vient de
prononcer M. Nagendra Singh et le déclare installéen ses fonctions de juge
ad hoc en la présente instance.
Je dois indiauer aue la Cour. tenant comrtte de l'article 44. oara~raohe 3.
de son ~èglernént. ci avecl'assentiment des Parties, a autorisequc dzs cejoui
les piécesde la procedure &rite soient mises Qla disposition du public.
Ayant constaté la rése en cel'audience des agents des Parties et de leun
conseils respectifs, jedéclare la présente prockd&e orale ouverte. STATEMENT OF LT. OENERAL YADAVINDRA SINOH 503
STATEMENT OF LT. GENERAI. YADAVINDRA, SINGH
AGENT FOR THE GOVERNMENT OF INDIA
Lt. General YADAVINDRA SINGH: Mr. President and honourable
Members of the Courl, it is an honour and privilege for me to appear before
this honourable Court as the Aeent of the Government of Ïndia in the
Appeal Rehfing fo the ~urisdicrion-ofthe ICA0 Council (Indio v. Pakistan).
I would kst of al1like to convey to the honourable Courl the meetings of the
Government of India and mv own. India resoects the rule of law and has
dcep e,tecm for thi.; highcst judisinl orwn of the internaiional cummiinity.
ExceIlencies, in the preient cdsc. the Government of India hds comc in
ao~eal aeainst the decisjon rendered bv the Council of theInternational Civil
.. ~ - .
Aviation Organizïtion on 29 July 1971,i!n the preliminary ohjeciions raiscd
by India in relation to the A~plicarion and the Coinplaini filcd by the Ciovern-
nient of Pakistan on3 ~arch 1971.
~he written pleadings of the parties are already before the honourahle
Court. For the presentation of India's case my Government kas deputed
their Counsel who are sitting by my side. It is now my pleasant duty to
introduce them to you. MI. N. A. Palkhivala, Senior Counsel, Supreme
Court of India, who is an eminent lawyer and is well known bath in India
and abroad. is our Chief Counsel for the case. He is assisted bv Dr. S. P.
Jagota, whois the Legal Adviser to the Ministry of External ~ffa's, Govern-
ment of India, Mr. B. S. Gidwani, who is Deputy Director General of Civil
Aviation. Government of India. MI. Y. S. chitale. who is an eminent advo-
cate of the Supreme Court of india, and Mr. P. C. Rao, who is the Legal
Adviser to the Permanent Mission of India to the United Nations in New
York. They will be assisted by MI. 1. R. Menon, who is an expert in civil
aviation matters.
My Government has requested Chief Counsel Mr. N. A. Palkhivala to
present the whole of India's case himself. Therefore, 1 beg leave, MI. Presi-
dent, for the Chief Counsel of India to address this honourable Court. ARGUMENT OF MR. PALKHIVALA
CHlEF COUNSEL FOR THE GOVERNMENT OF INDIA
Mr. PALKHIVALA: Mr. President and honourable Members of the
Court. I am happy and feel greatly honoured to be able to address this
distinguished Court. In this oral proceeding 1begleave to repeat and reaffirm
al1 the statements and submissions contained in India's pleadings, namely
the Memorial and the Reply. 1 would like to elaborate some of the points
which need elaboration and would like to out in orooer ners~ective the real
.~ ~e ~r~~ .
issues which arise in this appeal.
This appeal, Mr. President, is from the decision of the ICAO Council on
the preliminary objections raised by India regarding the jurisdiction of the
Council to entertain an Application and a Complaint filed by Pakistan
against India following upon a hijacking incident which took place on 30
January 1971 and which resulted in the destruction of the Indian aircraft at
Lahore in Pakistan on 2 February 1971.As a result of this hijacking incident
India suspended the right of Pakistan to overtly Iodia, and that document
would befound at page 78, sepro. of India's Memorial. The material words
are: "the Government of lndia have decided to suspend, with immediate
effect, the overtlight of al1 Pakistani aircraft, civil or military, over the terri-
tory of India".
1think, Mr. President, and honourable Judges, you wiUnot in thiscase be
troubled with the question as to who is right and who is wrong, you will not
be reallv called unon to decide the issue whether ~nd~a w~ ~iustified or
unjustifiéd in suspéndingthis righr of overflying. As 1sec the is&. the real
issue beforc this Court is: did the ICA0 Council hl\e jurisdiction IO go into
the merit\ of this dispute. or. by the very tcrins of 11,Charter. wü? the ICA0
Council incompeteni Io entertain the Applicatiun and the Complaini of
Pakistan'! 1shall leave for the moment the C:omplainr of Pakistnn to be dealt
with at a later stage and shall confine my arguments to the Application of
Pakistan before the ICAO Council.
When that Application of Pakistan was filed, lndia raised two major
nreliminarv obiections. One was that on the material date. which was 4
~ebruary 1971,*unwhich date this note of India on page 75, r;tpr<iof India's
Memorial. w3s promulg~ted. the Chicago Con\,ention, whtch is the Conten-
lion on Intcrnational Civil Aviation of 1944.ind whiih for thesakeof brevity
I shall cal1 hercaftcr "the Con\,enliunM. and the Intcrnational Air Services
Transir Agreement of 1944 which 1 shiill hereaftcr L.~II"the Transit Agree-
ment", were not in force between lndia and Pakistan. Alternatively, Ïndia
argued that assuming they were in force between the two countries, the
Convention and the Transit Agreement had been susgended by India on
4 February 1971 in exercise of ifs right under a rule of international law,
which is well established and is reiterated in the latest pronouncement ofthis
honourable Court.
These two contentions were both summarily rejected by the ICAO Council,
without assigning any reasons, within a few hours of the arguments being
concluded. Some of the members of the Council asked for time to consider
the arguments urged by India, but the Council thought fit not to give any
time but to proceed to a decision straight away. Logically the point which ARGUMENT OF MR. PALKHIVALA 505
should come first is the point that on 4 February 1971 the Convention and
the Transit Agreement were not in force between India and Pakistan. and
alternatively should come the second point that assuming they were in force,
even then there was a right under international law, which India exercised.
of suspending these two treaties as against Pakistan. But with your leave, 1
should like to take up the second point first, because that, as 1 see it, goes
to the root of the matter and would enable this honourable Court to lay
down a principle which would apply to a large number of international
treaties which are in force, and where today, as a result of this decision of
the ICAO Council, the countries would not know which exactly is the right
forumfor them to go to in a case like this. And, therefore, 1 propose to take
first this point: assuming, against India, that the Convention and the Transit
Agreement were in operation as between India and Pakistan on 4 February
1971, and India suspended these two treaties vis-à-vis Pakistan, did the
ICAO Council have jurisdiction to deal with a dispute pertaining to such
suspension?
After 1 have finished with this point, 1 shall deal with the question of the
special rkgime which was in force between India and Pakistan on 4 February
1971. 1 will not repeat hereafter that the whole of the argument on the first
point is on the assumption against myself that the Convention and the
Transit Agreement were in force on 4 February 1971, which assumption,
in India's submission, is really erroneous.
Now ~roceeding on that assumotion. mav.1re.uest the President and the
honourible ~embers of the court 10 turn to the operative uords of the
Convention, uhich confei jurisdiciion on the Council in certain cases. The
Convention isset out in Indis's Memorial. ai Dace299.stt~ra.and the relevant
article of the Convention, Article 84, is ai page-322, supra. Article 84 runs as
follows:
"Sertlemenr of Dispures
If any disagreement between two or more contracting States relating
to the interprelation or application of this Convention and its Annexes
cannot be settled by negotiation, it shall, on the application of any
State concerned in the disagreement, be decided by the Council. No
member of the Council shall vote in the consideration by the Council
of any dispute to which it is a Party. Any contracting State may, subject
to Article 85. aooeal from the decision of the Council to an ad hoc
arbitral trib~"nl'~~recd upon with the oiher parties to the dispute or to
the Permanent Court of Internaiional Justice. Any such appeal shall be
notifid Io the Council u,ithin siht. da.s of receiot of notificdtion of the
decision of the Council."
The jurisdictional words are "any disagreement ... ielating to the inter-
pretation or application of this Convention". These words, "interpretation"
and "application", are express words delimiting, circumscribing, the juris-
diction of the Council. They are not merely express words, but they are
expressive and exolicit words. They leave no douht as to what are the limits
ofthe Council's'jurisdiction in dealing with international disputes. The
jurisdiction of the Council to deal with disputes under the Transit Agreement
is couched in equally expressive and explicit words. At page 328, supra, of
India's Memorial is Article II, Section 2, of the Transit Agreement, which
runs as follows:
"ifany disagreement between two or more contracting States rclnting to the interuretation or anolication of this Aereement cannot be settled
by ncgotiation, the provis;ons ofchapter XVÏII of the ahove-mcntioned
Convention shall he nppliiühlc in the samc manner as provided therein
with reference to any disagreement relating to the interpretation or
application of the above-mentioned Convention."
So whatever would be this honourable Court's decision regarding the
limits of the Council's jurisdiction under the Convention would equally apply
to the question of the limits of the Council's jurisdiction under the Transit
Agreemerlt. At page 330, supra, of India's Memorial are the Rules framed by
the Council for the Settlement of Differences, which apply to the cases filed
by Pakistan against India. Of these Rules, the relevant Rule is that contained
in Article 1,~arag-an.(1)..
"The Rules of Parts 1 and III shall govern the settlement of the fol-
lowing disagreements between Contracting States which may he referred
to the Council:
(a) Ans dissgreemcnt between tuo or more Contracting States
relating to the interprcration or application of the Convention on Inter-
national Civil Aviation (hereinafter called 'the Convention') and its
Annexes. . .;
(b) Any disagreement hetween two or more Contracting States
relating to the interpretation or application of the International Air
Services Transit Agreement and of the International Air Transport
Agreement (hereinafter respectively called 'Transit Agreement' and
'Transport Agreement') (Article II, Section 2, of the Transit Agreement;
Article IV, Section 3, of the Transport Agreement)."
The argument which 1 vrovose to urge hefor- this honourable Court
would centre round three propositions:
The first proposition is that a dispute relating to termination or suspension
is nota dispute relatina to interuretation or au~lication.
~ccondly, the lirst proposition is unassailable in any eveni when the tîr-
minntion or suspension is effecrcd, not under a provision of the trcaty. but in
cxercisc of the right of a sobereign Statc under a rule of international law
dehors the treaty, and suspension in the prcsenr case \va$eilècted undcr such
a rulc of international lasr,.
Thirdly, thcrc are inhercnr limitations on the Counsil's iurisdiction nhiih
support and reinforce the argument regarding the scope oi the words "inter-
pretation" or "application". Further, the doctrine of inherent limitations
provides an independent and separate ground for holding the Council's
jurisdiction to be excluded in matters which may seemingly fall within the
words "interpretation" or "application".
May 1 take these three propositions in order. The first proposition, Mr.
President, is that there is a clear conceptual difference between termination
and suspension on the one hand, and interpretation and application on the
other. The concepts in law have ielled: they have crystdllized. Decided cases
and statutory hisiors. the practicc of the Gate.. and a vüst number of inter-
ndtionsl treatier. leai,e no douht thai uhen nations talk of "interpretation" or
"application" they do not have in mind termination or suspension.
'~othing would have heen easier than to provide in these multilateral
treaties, the Convention and the Transit Agreement, that any dispure per-
taining to these treaties shall be dealt with by the Council. Why put in the
words "interpretation" or "application" unless the idea of the nations is to AR OU ME^ OF MR. PALKHIVALA 507
limit, circumscribe and confine the jurisdiction of the Council to cases which
alone are intended to be dealt with by the Council. and not cases of the tvoe
that have corne before this auguht body. not s~ie; which ordinary men. not
familiar with jurisprudence and techniclilirie~of inirrn3iionril law, w<iuldbe
unable to deal with?
In support of my basic proposition regarding the distinction between
"termination" and "suspension" on the one hand, and "application" and
"interpretation" on the other, may 1request this honourable court to turn to
the most important document on bilateral and multilateral treaties, the
Vienna Convention on the Law of Treaties. A number of nations are parties
to this Convention; India and Pakistan are no!. But the legal concepts dealt
with by the Vienna Convention and the validity of the conceptual differences
which it has codified, do not depend upon the number of nations which
subscribe to this Convention. The lack of support by India and Pakistan
would not derogate from the validity of the conceptual differences ernbodied
in this very famous treaty.
A mos~ ~ienificant distinction is made bv the Vienna Conventio~ ~~tween -~ ~ -
"interpretatLnwand "application" on thgone hand, and "suspension" and
"termination" on the other. Part III of the Vienna Convention has the
heading: "Observance, Applicarion and Inrerpretation of Treaties." Part V of
the Vienna Convention has the heading: "Invalidity, Termination and
Suspension of the Operation of Treaties."
Part IiI deals with ouestions of avolication and interoretation. Part V deals
with questions of termination and';uspension. 1think these words are con-
ceptually so strikingly different. They do not overlap, they deal with separate
and distinct subiect-matters. and therefore the ~ienna convention deals
with them in separate and distinct chapters.
The basicpointis that when one talks of "interpretation" or "application"
of a treaty, one necessarily postulates, presupposes, the continued existence
and operation of the treaty. In other words, it is only a treaty which is in
operation, which is in existence between two States, which can fall to be
inter.reted or ao.~red. If a treatv has ceased to be in ooeration as a result of
either termination or suspension; there is nothing to inierpret and nothing to
apply. This is the basic proposition on which 1 submit the conceptual dif-
ference is founded, as is iliustrated by the Vienna Convention.
The word "application" is quite different fromthe word "operation". It is
not as if the ICA0 Council has been given the right to deal with disputes
relating to the operation of the treaty, ihe duration,of the treaty. ~uesiions
pertaining to operation are questions which occupy an area where suspension
and termination play their part, because the whole effect of suspension or
termination is to put an end, permanently or temporarily. to the opera-
tion of the treaty. So the concept of operation goes with the concepts of
suspension and termination. On the other hand, the concept of application,
whicb is auite different from the conceot of ooeration. oresuDooses the
continued operation of the treaty. The juhsdicti& of thif~~0'~ouncil is
limited to disputes which are in the field of application, and not in the field of
ln rhis conneciion may Ijusr illustrate what type of quesiions u,illgo before
the Council. So far 3s the word "interpreiation" is concerned. it u,ould be a
work of suoererorration to illustrate cases of interoretation.
Cases of'application of the treaty which can gobefore the Council may be
illustrated by taking a fewexamples of disputes between nations regarding the
application of the Convention or the Transit Agreement. 1shall take a few of the articles of the Convention to illustrate what are the
types of dispute pertaining to the application of the Convention which would
go before the ICAO Council.
At vaee 300. suora. of India's Memorial you have Article 5 of the Conven-
tion. ~&t ~riiclë confers the right on aircraft on non-scheduled flights to
ovefly or make non-traffic landings in the territory of a contracting State:
"Each contractine Stateaarees that al1aircraft of the other contractinz
States, being aircraft not engaged in scheduled international .. . services
shall have the right, subject to the observance of the terms of this Con-
vention, to make flights into or in transit non-stop across its territory
and to make stops for non-trafic purposes without the necessity of
ohtaining prior permission, and subject to the right of the State flown
over to require landing."
This right to overfiy or to make non-traffic stopshas to be exercised suhject to
the provisions of the Convention, and the question of application would
arise when one tries to aoolv the relevant ~rovisions of the Convention to an
existing state of affairs. .. .
The circumstances may differ from country to country, and the question
will he: how will vou aonlv the vrovisions of the articles to the facts existinz
in a particular cobntry? if ihere isa dispute as tu the üpplicittiun of the CO;
vention to the facts ex~stingin a given country, that dispute gocs to the ICAO
Council
For example, if one turns to page 301, supra, the Memorial, Article 9, one
can see immediately how questions would arise of application of Article 9:
"IEvervl contractine State mav. for reasons of militarv necessitv or
pubiic &-ty, restrict or prohibi<;niformly the aircrart 0.fother siales
from flyingover certain areas of its territory. provided that nu distinction
in thi~i~ ~ct is made between ~~ ~aircraft of the State whose territorv
is involved. engaged in international schçdulcd airlinc ser\ices, and the
a~rcraftof the other controctina States likewise engaged. Such prohibited
area~ shall h~ ~f-reasonahle e;tent and location-so as not to interfere
unnecessarily with air navigation. Descriptions of such prohihited areas
in the territory of a contractine State. as well as any suhseauent alter-
ations therein; shall he commu~icated as soon as possible to the other
contracting States and to the International Civil Aviation Organization."
Two nations may have a disputa as to whether in one of them military
necessitv or bublic safetv reauires restrictions or ~rohibitions of the tvDe
mentio&d in'~rticle 9. ~hese'questions, which are questions of f~cts, wohd
he deslt with by the Council. A question m;iyarise whcthcr any distinction is
heina made between the aircraft of the State imvosine the restriction or
proh;bition and the aircraft of other States. This kind 8f discrimination is
prohibited by Article 9. OneState may say "1have not indulged in discrimina-
tion". another State mavsav "No. on thesc facts vou have". Thar is the case
of apblication of the ~rëaty..
Or a dispute may arise whether the prohibited areas under Article 9 are
reasonable in extent and location. A dispute as to reasonahleness would go
before the ICAO Council.
Article 1l says:
"Subject to the provisions of this Convention. the laws and regulations
of a contracting State relating to the admission to or departure from its ARGUMENT OP MR. PALKHIVALA 509
territory of aircraft engaged in international air navigation, or to the
operation and navigation of such aircraft while within its territory, shall
be aoolied to the aircraft of al1 contractina States without distinction
as to'nationa~it~, and shall be complied With by such aircraft upon
entering or departing from or while within the territory of that State"
(Memorial, Annex H, p. 302, supra).
The whole object of Article 11 is to prevent discrimination between the
aircraft of one country as compared to aircraft of another. On a given set of
circumstances has there been discrimination or not? That is a question of
application of Article 11which will be decided by the Council.
And, finally, Article 16:
"The appropriate authorities of each of the contracting States shall
have the right, without unreasonable delay, to search [the]aircraft of the
other contracting States on landing or departure, and to inspect the
certificates and other documents prescribed by this Convention" (ibid.,
p. 303, siipra).
A dispute may arise as to the application of Article 16. Does a particular
State indulge in "unreasonable delay" in seasching the aircraft of other
States?
One or two examples mav be taken from the Transit Agreement which
.
begins in India's ~emorial ai page 327, supra.
The Transit Agreement is the counterpart of the Convention. The rights of
ovefivina and makina non-traffic landinas which are cooferred on non-
sched"lri services by Ihe Conventiun are Gnferred on scheduled services by
the Transit Agreement. Subsianti~lly the right 1sthe same, namely, IO overfly
and make non-trafic landinm. This riaht is conferred bv Article 1,Section 1.
of the Transit Agreement onscheduledair services:
"Each contracting State grants to the otber contracting States the
following freedoms of the air in respect of scheduled international air
services:
(1) The privilegc to ily across ifs terrltory without landing;
(2) Thc privilege 10 land for non-traffic purposcs.
The privileges of this section shall not be applicable with respect to
airports utilized for military purposes to the exclusion of any scheduled
international air services. In areas of active hostilities or of military
occupation, and in time of war along the supply routes leading to such
areas, the exercise of such privileges shall be subject to the approval of
the competent military authorities" (ibid., Annex 1, p. 327, supra).
Now here, for example, a dispute may arise as to the application of this
article. In a given case are there "active hostilities"1s it a case of"military
occupation"? Likewise a question may arise under the same Article 1, Section
3, which reads as follows:
"A contractine tat t erantina to the airlines of inother contracting
State the privil&e to stop fornon-traffic purposes may require such
airlines to offerreasonable commercial service at the points at which such
stops are made" (ibid.).
A dispute may arise as to the application of Section 3. 1s the commercial
service required by the State a reasonable service, or is the demand unrea-
sonable? The final instance from Section 4 of the Transit Agreement:
"Each contracting State may, subject to the provisions of this Agree-
ment,
(1) Designate the route Io he followed within its territory by any inter-
nationalair service andthe airports which any such service may use;
(2) Impose or permit to be imposed on any such iervice jus1 and reason-
able charges for the use of such airports and othcr facilitier(ihid.).
Whether the charges imposed by a State are 'just and reasonable" is a
question of application of the Transit Agreement. The honourahle Court will
see that these questions of application of the Convention and the Transit
Aereement are auestions which arise in the normal day-to-day operation
ofthe treaties. arc questions which dcal with the reiation of the provi-
sions of the treaties to an existing set of fdcts,uahich are far remo~ed from
the region which the ICA0 Council ha sought to bringu,ithin iis jiirisdiction:
the region of international confrontation beiween States-maybc political
confrontation, maybe military confrontation. In ihose cases onc deals with
comnlex auestion whichthis Court can de~i with but not the ICA0 Council.
No-one \vas nlore conscious of the express Iirnitations on ils jurisdiction thdn
the ICAOCouncil itselfwhenit stdrted functioning Whcn originally the ICA0
Council was soueht to be brouaht inIo existence.fhe suanestion was Io aive it
the jurisdiction& deal with alidisputes pertaini& to theconvention aRd the
Transit Agreement. But this proposal was ultimately negatived and the
iurisdiction was exnresslv limited to two categories of auestions only: aues-
;ions pertaining to.inierprctûtion and questions pertaining to applicatio~.
The Council itself u,as fairly and reasonably conscious of th:\ very clear
limitation on ils jurisdiction. India's Memorial. p~gc51, siipru.piragraph RI,
reproduces x rcsoluti<~nof the ICA0 Cuuncil uhich is of very grerit impor-
tance and significance. 1subinit. in the solution of the problem whiih Facesthis
honourable Court. 1quote paragraph 81:
"It is also significant that the very First session of the ICAO Assembly
exoresslv drew attention to the fact that the iurisdiction of the Council
under Article 84 of the Convention is limite; to decisions on disagree-
ment relatina to the interpretation or application of the Convention.
Attention miy he drawn- in this connection to resolution AI-23.
adopted at the First session by the ICAO Assembly in 1947 [their very
&st session]. The resolution reads as follows:
'Al-23: Aurhorizarionro the CouncUto art asan Arbitral Body
Whereax the Interim Agreement on International Civil Aviation
provides, under Article III, Section 6 (S),that one of the functions of the
Council shall be:
"When expressly requested by al1 the parties concerned, act as an
arbitral bodv on anv differences arisina amonc Member Statesrelatina
Io internsti<;nal civ.il aviation matter;whishmay be submitted to it.
The Cuuncil may render an advisory report or, if the parties conccrned
so exnresslv decide. thev mav obliaate themselves in advance to
accepithe decision of the couniil. ~hëprocedurc Io govern the arbitral
procecdings shall be determined in agreement between the Council and
al1the interested parties."
Whereas the Convention on International Civil Aviation contains no
such provision and the competence of the Council of the Organization ARGUMENT OF MR. PALKHIVALA 511
in the settlement of disoutes. as accnrded to it bv Article 84 of the Con-
vention, is limited ta decisibns on disagreements relating to the inter-
pretation or application of the Convention and its Annexes;
Now therefore the First Assembiy resolves:
(1) That pending further discussion and ultimate decision by the Organi-
zation as to the methods of dealine with international disoutes in the
field of civil aviation, the councilbe authorized to act asan arbitral
body on any differences arising among Contracting States relating
to international civil aviation-matte2 submitted 70 it, when ex-
pressly requested ta do sa by al1parties ta such differences;' " [and
the rest is not relevant].
The puint 1ani seeking ro niake by re3ùinç [hi> resnlurion of the Council
in irs First Se,siois that rhe Council u,ûs conscioiis that depirting frorn the
earlier suggestion or proposal, in the Convention as it emerged in the final
shape a very limited jurisdiction was given ta the Council, only disputes as ta
application or interpretation. The Council says that this means that there
would be a large area where it would have no jurisdiction under Article 84.
Therefore, let us resolve, says the Council, that we may act as an arbitral
body if, apart from the obligatory provisions of the Convention, two States
which are in disaareementchoose to refer the disoute ta us.
India and ~ak;stün could have chnsen a\ ï'm<rtter of sepiirate arbitral
ngreement ro xppolnr the ICA0 Council 3s the arbitrat<ir, butwe hai,s chosen
nul ta dosai. We hdving chosen nor ro do sci,theCouncil'r lirnitcd juriidi~tfon
under Article 84 of the Convention ininidequiire in scopc to covïr the type
of dispute u,hich arises in the present cïse.
1 have finkhed u,ith niy tir\! propi)siiion, namely the sonceptudl diiïercncc
betxeen "applicütion" and "intcrpretarion" on the one hand, and "tcrrninti-
tion" and "su5pension" on the other.
Thesecond orooosition is that in anv event and anv view of the matter.
when the rigbtof ;uspension or terminaiion is exerciseddehors t.hetreaty, and
not in pursuance of a provision of the treaty itself, a dispute regarding such
suspension or termination cannot possibly involve a dispute as fo inter-
pretation or application of the treaty. The distinction is between a treaty
itself conferring the right to suspend or terminate it, and a treaty not con-
ferring such a riaht but the right beina exercised. asthis honourable Court said
in the-~omibia case, "outside of thCtreatyw. 1f the right is exercised outside
of the treaty, ex hypothesi you arenot interpreting or applyingthe treaty.
To say that the right is exercised dehors the treatv and at the same time to
say it involves a quéstion of interpretation or appïication of the treaty, is a
contradiction in terms.
So the second proposition hinges around this-whatever may be this
honourable Court's decision in another casewhere a suspension or termina-
lion is brought about by virtue of a provision contained in the treaty itself,
the decision in this case must take into account the fact that India has chosen
to exercise a right under a rule of international law to suspend the treaty on
grounds of material breach by Pakistan.
You will forgive me for reoeating- .is. that at the moment the auestion is
not whether 1ndia isright or wrong; at the moment the question isnot wbether
India will be able to substantiate the case on merits. 1 am confident India
would be able to substantiate its case on merits before a ornoer forum. But at
the moment 1am on a very limited question. If a right is exercised by a State512 ICA0 COUNCIL
of susoendinc!a treatv. and that rieht owes itssource not to the treatv but to a
rule of interkttionaflaw outside-of the treaty, is it possible to &y that a
dispute uertaining to such suspension or termination involves the question of
a..lication or interoreration of the treatv? 1submit not.
In thir connecrio" may 1requesr the l;ono~irableCourt Io be good enough
IO turn once agtütnto the Vienn;i Convention which the Cour! dealt with last
veiir ln an Advisorv Oninion deli\,ered iust 363 da..>X-.. 2t June 1971.To the
éxtentto which it Eoniers a right ta suspend or terminate a treaty for material
breach by the other State, the Vienna Convention only codifies a well-
established orinciole of international law. 1shall read that Judement later.
The vie& convention draws a sharp distinction between the right of
susuension or termination given by the treaty itself and exercised in terms of
the-treatv. and the rieht ofsusoension or termination not eiv-n bv the treatv
but exercised dehorsthe treaty.'
The right to be exercised dehorsthe treaty is embodied in Articles 42 and 60
of the Vienna Convention. The rieht of suswnsion or termination which is
conferred by the treaty itself is deaït with by'Articles54 and 57 of the Vienna
Convention. Article 42 says:
"1. The validity of a treaty or of the consent of a State to bebound
hy a treaty may be impeached only through the application of the present
Convention.
2. The termination of a treaty, its denunciation or the withdrawal of
a party, may take place only as a result of the application of the provi-
sions of the treaty or [the word 'or' is the crucial wordl, of the present
Convention. The same rule applies to suspension of the operation of a
treaty."
In other words, Article 42 expressly postulates Iwo distinct and different
rights of suspension/termination. The right may be one which is to be found
in the provision of the treaty itself or the right may be outside of the treaty.
When it is outside of the treatv that rieht owes its source to a rule of inter-
national law, a well-settled ruie which'is codified by this Convention. And
Article 60 deals specifically with this right under international law to suspend
or terminate a treaty, and~itreads as fdlows:
"1. A material breach of a bilateral treaty by one of the parties
eotitles the other to invoke the breach as a ground for terminating the
treaty or suspending its operation in whole or in part.
2. A material breach of a mullilateral treaty by one of the parties
entitles:
(a) the other parties by unanimous agreement ta suspend the operation
of the treaty or to terminate it either:
(i) in the relations between themselves and the defaultingState, or
(ii) as between al1the parties;
(6) a party specially aiïected by the breach ta invoke it as a ground for
suspending the operation of the treaty in whole or in part in the
relations between itself and the defaulting State;".
lndia has exercised its right under international law whjch is codified in
Article 60, clause 2, subciause (b). Omitting the irrelevant words, the right is
this:
"A material breach of a multilaterai treaty by one of the parties ARGUMENT OP MR. PALKHIVALA 513
entitles. .. a party specially affected by the breach to invoke it as a
ground for suspending the operation of the treaty in whole or in part in
the relations between itself and the defaulting State."
India has not denounced the Convention or the Transit Agreement, it
continues to be a party to the treaties. All that it has done is that vis-à-vis
Pakistan it has suspended them in whole or in oart. 1 say in whole. but it is
irrelcvanl whcther it is in whole or in pan. On ihe qucst;on of ihe ~ouncil's
jurisdiction this particulîr question or whcthcr the suspension 1sin whole or in
oart will have no bearing
Since the right claimedis overflying, and that right was definitelysuspended,
it becomes irrelevant to consider whether the other rights which are not in
dispute were suspended or not. In my submission they were, but that is. as 1
said, irrelevant to consider, and unless the honourable Court calls upon me
ro deal with this question of whole or part, 1 propose to leave it as being
irrelevant to this A~peal.
India has exercisédthis right un accourit of3 rnaterial brclich by Pakistan,
the material brcach being a Tactto u hich 1shitll refer Ilitcr, no1urirha vicw to
iustif~inaIndia's conduct. because thishonourableCourt isnot called mon to
Consfde;the validity of the justification for suspension, but only to show
that as a law-abiding nation, India has observed the norms of good inter-
national behaviour, and acted in good faith. But the point 1am on just now
is that India has chosen to exercise this right under international law, codified
in Article 60, clause 2, subclause (b), of suspending the treaty vis-à-vis
Pakistan alone. And therefore the question of interpretation or application
of the treatyex hyporhesicannot arise.
By contrast, if you look at Articles 54 and 57 you find the provisions which
deal with the suspension or termination of a treaty in exercise of a right
conferred by the treaty itself. If 1may read Article 54:
Termination of or withdrawal from a treaty under its own
provisions, or by consent of the party.
"The termination of a treaty, or the withdrawal of a party may take
place,
(a) in conformity with the provisions of the treaty or
(b) at any time by consent of al1the parties after consultation with the
other contracting States."
When the termination is in conformity with the provisions of the treaty,
in a given case, which is not the case here, a difficult question may arise, as
to whether such termination involves a question as to the application of the
treaty. It might be said that this very treaty is being applied at the stage of
termination. 1am not sue~estins it would he covered by the words "aoplica-
tion" and "interpretatioi;'. 1 am only indicating thaïs possible argument
may be urged which may ultimately be rejected or rnay be accepted. that in
a given case where the termination or suspension is in terms of the treaty
itself, you are cailed upon to interpret the treaty or to apply the treaty. That
question does oot arise here. Just as Article 54 dealt with termination,
Article 57 of the Vienna Convention deals with suspension, suspension in
terms of the treaty when the treaty itself confers the right to suspend:
"The operation of a treaty in regard to dl the parties orto a particular
party may be suspended,
(a)in conformity with the provisions of the treaty, or514 ICAO COUNCIL
(b) at any time by consent of al1the parties after consultation with the
other contracting States."
Mav 1summarize the argument I have iust finished. When the susoension
or termination of the treïty isundcr ï rulc (if internarioiial lau,hat you are
applying is the rule of international lau. Yaiu are not applying the treïty at
all. Thercfore therecsn be no dispute as to the application of the ireaty. The
question of interpreihiion cannot arise because there is no clïuse of the
rreaty which deals \*,irhsujpension or termin3tion under which any righi a1
al1isexercised. Bycontrast, when a party seeks to exercise the right to suspend
or terminate the treaty under an express provisiori which deals with the
suspension or termination, one may or may not be able to Say (1make no
submission on that ooint because it is not relevant to this ..nea... that in that
case a dispute ariscs 3s10 ~n1erpret3oon or applicïtic,n of the clïii,e which is
in the ireïty itselfand uhich is invi~kcdto hring about su5pcnsion or termi-
nation,
The Courr aaournedfrom 4.20 p.m. 10 4.50 p.m,
One word more about the Vienna Convention before 1 pass on to the
Advisory Opinion of this Court in the Namibia case. In the Vienna Conven-
tion ihere is a ~rovision for resolution of international disoutes. and those
honourable ~ud'~esand others who werc concerned with th; formulation of
the various provisions and the cnunciation of the principles underlying the
Vienna Convention will recall the grrat difiiculiy which the framers had in
trying to mtke the nations ïgree upon a forum for the resolution of the dis-
puies. In the Vienna Conveniion there is Article 65.which deïls with iheques-
tion asto what is to hanoen when a Statehas exercised its rinht to susvend or
terminate a trctty ouiside of the tresty, the right king foiinrled on Û.rule of
international Iïw as emhodied in ihe Viennï Convention itsclf:
"1. A pïrty which, under ihc provisions of the present Convention,
invoker eithcr a defec! iiirs consent io bc bound by a treaty or a ground
for im~eachinr the \,aliditv of a treaty. terminatincil.u,ithdrawing from
it ors;spendiig its operaiion, must notify the other parties of itsdaim.
The notification shall indicate the measure proposed to be taken with
respect to the treaty and the reasonstherefor.
2. If, after the expiry of a period which, except in cases of special
urgency, shall not be less than three months after the receipt of the
notification, no party has raised any objection. the party making the
notification may carry out in the manner provided in Article 67 the
measure which it has proposed.
3. If, however, objection has been raised by any other party, [like,
for example, the objection of Pakistan here] the parties shall seek a
solution through the means indicated in Article 33 of the Charter of the
United Nations."
Article33 of the Charter of the United Nations provides that "the parties
to any dispute, the continuance of which is likely to endanger the maintenance
of international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement,
resort to regional agencies or arrangements, or other peaceful means of their
own choice". The significant words are "of their own choice". In other
words it is consent to the jurisdiction of a certain forum which is the very ARGUMENT OF MR. PALKHIVALA 515
foundation of compulsoryadjudication in international law. There can be no
arhitration without the consent of both the parties. 1 shall cite the cases,
includinasome iudpments of the distinguished Judges who are Dresent todav.
which have emphaiized that in the absence of clear consent there can be
competence of a forum to adjudicate upon a dispute. If the procedure is not
followed under Article33 of the Charter of the United Nations, or if it is
followed and it fails, then Article 66 of the Vienna Convention may come
into operation.
Even apart from the Vienna Convention, to which the two countries are
not parties, we could, under the Statute of this Court, agree to refer the
dispute to this honourable Court, but to ask the ICAO Council to do duty
for the International Court of Justice is, 1am afraid, to put it mildly, putting
a strain on that Council which it just cannot possibly bear.
The honourdble Court has only to look at the type of pleadings in this
case to consider whether, MI. President, you and your learned colleagues
could ever think it possible that this dispute could he decided hy the ICAO
Council, which consists of people untrained in law, who have, in fact, no
familiarity either with law or with court work. 1have nothing to say against
the Council, it is performing excellent functions, but it is performing those
functions,as 1shall make clear later, purely as an administrative body. To ask
an administrative body to decide complicated questions of international
law-what are the r.,hts of the two States? when can susnension he iustified?
did 1ridi.ihave the righr under inicrnïtional IL\\ ti~cfici ihz suspension'! - is
trying IO read ason\eiii into the iurisdiciion ~131l\eof the Con\enrion and the
~Lansit Agreement. which consent does not exist and has never existed,
May 1iow requéstthe honourable Court to come to the Advisory Opinion
dated 21 June 1971in the Namibia case. 1would like 10refer to paragraphs 91
to 98 of the Advisory Opinion. They are at pages 46 to 48 of thé brinted
-ny...-...
If 1 may say so, with respect, these paragraphs admirably sum UP the
uhole point un-derinternntion;il Iïw \\hich 1h-<\.ebeînstrupgling Io csiahli\h,
nïmcly the right (ifa Stnie to siirpend a ircdiy in the ehercisei>iï righr uuibide
the treaty.
Paragraph 91:
"One of the fundamental principles governing the international rela-
tionshiv thus established is that a nartv which disowns or does not fulfil
its owi obligations cannot be recognized as retaining the rights which it
claims to derive from the relationship."
1 shall omit patagraphs 92 and 93 which apply this principle to the facts of
that case.
1 come to paragraph 94:
"In examining this action of the General Assembly it is appropriate to
have regard to the general principles of international law regulating
termination of a treatv relationshi~ on account of breach. For even ifthe
mandate is viewed as h;ivint: the iharacrer <ifan in\iiiuiion, ;is is m3in-
taincd, iidepends on thosc international agreements \\hich crcïicd the
syslem and regulïted irs ,ipplis.iii,?n. As thc (:ouri indicaicd in 19hZ'thi,
Mandate, like prnciially al1orhcr iimildr hlandates' uas ''1speiial type
tifinstrument composirc in nature and insiituting ï novcl international
régime. It incoroorates a definite agreement. ...' ... The Court stated
coiclusively in .'.. [the earlier] ~udgment [that is the one reported in516 ]CAO COUNCIL
I.C.J. Reports19621 that the Mandate '... in fact and in law, is an inter-
national agreement having the character of a treaty or convention' ...
The rules laid down by the Vienna Convention on the Law of Treaties
[this is the important passage: The rules laid down by the Vienna Con-
vention on the Law of Treaties] conceming termination of a treaty
relationship on account of breach (adopted without a dissenting vote)
may in many respects be considered as a codification of existing custom-
ary law on the subject. In the light of these rules, only a material breach
of a treaty justifies termination, such breach being definas:
(O) a repudiation of the treaty not sanctioned by the present Conven-
tion; or
(b) the violation of a provision essential to the accomplishmmt of the
object or purpose of the treaty."
Paragraph 95:
"General Assembly resolution 2145 (XXD determines that both forms
of material breach had occurred in this case. Bv stressins that South
Africa 'has, in fact, disavnwed the Mandate', ihe ~eneral Assembly
declared in fact that it had repudiated it. The resolution in question is
therefore to be viewed as the exercise of the rinht to terminate a relation-
ship in case of a deliberate and persistent vioration of obligations which
destroys the very object and purpose of that relationship."
Paragraph 96:
"It has been contended that the Covenant of the League of Nations
did not confer on the Council of the League power to terminate a
mandate for misconduct of the mandatory andthat no such power could
therefore he exercised by the United Nations, since it could not derive
from the League greater powers than the latter itself had. For this objec-
tion to prevail it would be necessary to show tliat the mandates system,
as established under the League, excluded the application of the general
principle of law that a right of termination on account of breach must
be uresumed to exist in respect of al1treaties, exceasregards ~rnvisions
reliting to the protection "f the human per;on contîined in triaties of a
hummitarian charricter (as indicated in Art. 60, para. 5. of the Vicnna
Convention). The silence of a treaty as to the existence of such a right
cannot beinterpreted as implying the exclusion of a right which haAts
source outside of the treaty, in general international law, and is depen-
dent on the occurrence of circumstances which are not normally envis-
aged when a treaty is concluded."
This passage is of great significance in the present case because the Conven-
tion and the Transit Agreement are silent on the question as to what is to
happen in the case of a material breach by a State and what are the rights of
the other State in such an event.
The Convention and the Transit Agreement are silent but the silence of the
Treaties does not exclude this right which is outside of the treaty.
May 1read paragraph 98:
"98. President Wilson's proposed draft did not include a specific
provision for revocation, on the assumption that mandates were revoc-
able. What was proposed was a special procedure resewing 'tn the
people of any such remtory or governmental unit the right to appeal to ARGUMENT OP MR. PALKHIVALA 517
the League for ... redress or correction of any breach of the mandate
by the mandatory State or agency or for the substitution of some other
State or aaencv, as mandatorr'. That this soecial right of aoo..l was not
insertcd in thc.~ovenant ciinno1 bc interPretcd as ekluding the applica-
tion of the gcneral principlc of Iaw according to which ü po\icr of tcrmi-
nation on account of breach, even if unexpressed, must be presumed to
existas inherent in any mandate, as indeed in any agreement."
Even in the dissenting opinion of Sir Gerald Fitzmaurice, if 1 read it right,
the above principle is not questioned. The learned Judge says that you must
make a distinction between institutions on the one haÏ~dand contracts and
treaties on the other. What may justify the termination or suspension of a
treaty or a contract would not necessarily justify the endingof an institution.
That Ùoint does not arise in the oresent case. What 1 am at oains to make
clear is that even Sir Gerald ~itzmaurice, in his learned opinion, does not
say that there is no such right of suspension in respect of a treaty or a con-
tract: but what the learned Jud~e-.avs is that to an institution you must aoo.. .
3 diffcrcnr norm, or ;idiffcrcnr principle.
May 1requcst attention 10 the dissentin': opinionof Sir Cicrdld Fit~niauricc,
the relevant passage hcing al pages 266 and 267, paragraphs 68 and 69:
"68. In support of this view, comparisons are drawn with the position
in regard to riva telaw contracts and ordinarv international treaties and
agre&nents,.& 10 uhich itniAs be said [that.is uhxt the Irïrned Judge
sdysl that fundamental breachcs by onc part). \vil1rcle35ethe other from
its own obligations, and thus, in effect, put an end ta the treaty or
contract."
Therefore, so far as the question of a treaty is concerned, there is nu dissent,
no dissent on the point that in the case of a material breach by one party a
situation would be brought about where the otherparty can put an end to the
treaty or contract.
"The analogv is however misleadine on this oarticular auestion. where
the contractuai situation is different ?rom the'institutional [the iearned
Judge regarded the mandate as an institution, not to be equated with a
treaty or a contract],-so that what may be true in the one case cannot
simply be translated and applied to the other without inadmissible
distortions ...
69. There is no doubt a genuine difficultv here. inasmuch as a régime
like thÿt of'thc mandstcs r)y,teni seems to have a foot buth in thcinsÏitu-
tional and the sontrxctiial ficld. Biit it i\ necessary to adhcre ro xt le351a
minimum of consistencv. If, on the basis of contractual princioles,
fundanicntal hrL.:ishcsjii;tifv iinil~tcr.il revocation, then equülly iii the
cïsc that contractual principlw require th31 a ncw pxty Io a sontract
cannot he imoosed on an existing one without the latter's consent
(novation). since in the present case one of the alleged fundamental
breaches is precisely the evident non-acceptance of this new party, and of
anv duty of accountabilitv to it (such an acceotance heina ex hvoothesi.
. .
on contrïctïal principles, not ohlig.iti)ry)a tot;il inconsisrensy is rebealcd
as lying 31 the rooi of the wholc Opinion of rhc Court in one of its most
essential aspects."
1am reading this passage hecause Pakistan, in my suhmission erroneously,
reads this opinion as if it negatived the right under international law tu518 ICA0 COUNCII
suspend or terminate a treaty for material breach on the part of the other
State. This opinion does not say anything of that sort. It rests on the distinc-
tion between a treaty or contract on the one hand and an institution on the
other, which distinction was material in Namibia's case but has no relevance
to the present case. Therefore there is nothing in the dissenting opinion of
Sir Gerald Fitzmaurice which supports Pakistan in the stand they have
chosen to take in the present case.
Secondly, Sir Gerald Fitmaurice does not Say, and in fact the occasion
never arose for the learned Judge to say, that questions as Io interpretation or
application can emhrace and cover termination or suspension.
Thirdly, even putting the case at the highest against myself, assuming the
International Court of Justice were one day to come to the conclusion,
reversing its own opinion, that there is no such right in international law to
terminate or suspend, that would only go to the merits of the termination or
suspension, that cannot confer jurisdiction on the Council to decide the
question of validity of termination or suspension. This honourable Court
will appreciate that the whole pleading of Pakistan, if 1 may say so with
great respect to my learned friend, proceeds on ;iconfusion between the
question of validity of suspension and the question of jurisdiction to go into
the validity issue.
If the Council has no jurisdiction to deal with the case of suspension or
termination dehors the treaty, in the exercise of a right asserted to exist
outside the treaty, the Council cannot decide whether such a right exists,
what are the limits of ihat right, were the limits of that right observed in the
vresent case. were the conditions ~recedent to the exercise of that rieht in~ ~ ~
~nternational laiv ,aii\tied in this case. These are queriions which the nppro- u~~~~ ~ ~
priate forum can dedl uith but no1the Council.Thercforc itis,!or to the nuint
to sav that India exceeded the ri~ht or India has no such rieht. becau.~ Whe~~~-- ~ ~ ~ ~ ~
you have dealt with that question you have not answercd the queition ai to
the limits of the Council's jurisdiction. The quesiion siill s!arcs me in the face:
what are the limits of the Council's jurisdiction, can it at al1 go into the
question of the validity of the suspension? Therefore, assuming even Sir
Gerald Fitmaurice has said-the learned Judne has not-that there is no
such right. it\iould only mean that ms suspension would be pronounced to be
wrongful by a court of conipcrent juriidiction, but that cannot, 1 rcpeat,
confer jurisdiction on the Council to dccidc this guesiion.
Pakistan has relied upon a footnote, which is footnote 42, to paragraph 67
in the dissenting opinion of Sir Gerald Fitzmaurice, and that footnote is this:
"Note the intentional use of the phrase 'in treating it as terminated'
and not 'in putting an end to it'. There is an important conceptual
difference. Strictly speaking, al1 that one Party alleging fundamental
breaches by the other can do, is to declare that it no longer considers
itself bound to continue performing irs own part of the contract, which il
will regard as terminated. But whether the contract has. in the obiective
sense, come to an end, is another matter and does not necessarily ?ollow
(certainly not from the unilateral declaration of that party)-or there
would be an al1too easy way out of inconvenient contracts."
This footnote dealswith the auestion which aaain would be relevant in the
appropriate forum which is entitled to deal with-questions of suspension and
termination in exercise of a right outside the treaty-the right having its
source in international law. But 1 fail to see what relevance this footnote-can
have when the question jsof the Council's jurisdjction. ARGUMENT OP MR. PALKHIVALA 519
The United States, in its written submission to this Court in the Namibia
case, sets out the position in its written pleading at page 856, continued at
page 857, of Volume 1,of the Pleadings, Oral Arguments, Documenfs in the
Namibia case. It is headed Section IV:
"A Maferial Breach of a Treaty Entitles the Other Party to Suspend its
Operafionsin Wholeor inPart
A second relevant rule of treaty law, codified in Article 60 of the
Convention.~.~~eals~with termination or susnension of the oneration o~ a ~
treaty aî a consequence ofits breach. Paragraph 3of that Article rcstricts
its application to cases of material hresch, which is defined as:
..
'(a) a repudiation of the treaty .. .,or
(b) the violation of a provision essential to the accomplishment of the
object or purpose of the treaty.'
The basic principle embodied in the Article is that the material breach
of a treaty on one side may give rise to a right on the other side to
abronate the treatv or susoend its oneration in whole or in oart. The
com~entüry to thécorresponding ariiclc in the Iiarvard drafi humnia-
rirei traditional international Inwdoctrine reg~rding breÿch and demon-
strates that the orinciole has been recomized in municioal courts since
late in the eighteenth century. [Then a htation is given.l'~he Internatio-
nal Law Commission's 1966 Commentary on its Draft Articles on the
Law of Treaties stated that 'the eeat maioritv o. iur-sts' recomized the
principle expressed in Article 60 [ofthe vienna Convention which 1have
already readl. At the Conference on the Law ot Treaties, in which South
~frica narticinated. no deleeation denied the orinciole in the rather
cxtenriie debite in'the ~i,m$ittee of the whoie; no'dclegntion voted
against the adoption of the article in the Plenïry. The foregoiiig cvidcnce
is more thdn su~licientto e5tahlirh ihdt the orinci~le in Articlc 60 mav be
regarded as representing existing Iaw."
The reason why 1am reading this is, not that a pleading would be relevant
for this honourable Court's consideration, but this particular pleading
summarizes, more hriefly and more lucidly than 1 orally can, the reasons
why the principle embodied in Article 60of the Vienna Convention should be
treated as representing well settled existing international law regarding
treaties, and as dealing with an inherent right, which right is not ta he treated
as excluded although the treaty may be silent about it, namely the right of
suspension and termination in an appropriate case.
May 1 read further from the same written pleading of the United States:
"The fact that the Mandate is not a treaty hetween States does not
affect the applicïbility to it of the treûty la\v.conraincd in the Tre3ties
Convention. Article 3 of the Convention provides that any ol the rulcs
set forth in the Convention may be applied 10treaties betucen States and
international organi7;itions \here such riiles would be applicable 'undcr
internatioiidl Iaw independently of thc Convention'."
SirGerald Fitzmaurice did not reject the first submission that under a rule
of international law tbere is the rieht of susoension or termination. What the
leamcd Judge rcjected was the second plei that this rule which is applicable
to tredties should bc applied to mandates, which are institutions as niuch as
they are treaties, orevenmore institutions than treaties.
My endeavour is to point out that the unanimous opinion of the honnur- ARGUMENT OF MR. PALKHIVALA 521
party to nbrogate unilaicr~lly the relationihip, Lord 4lcNair kas s~id:
'...thc more elementiry a proposition is. the more diflicult itoften is to
cite jiidicial authority forit'(Lam.of ïiearies, 1961, p. 554). Howevcr,
thcrc are also othcr auihoritative pronouncementr supporting thij
proposition. Thur, Judge Anztlotti said in his dissenring opinion in the
case concerninri Divercion of Ilurrr frvni rlie Riirr Afeuse (Serier AIE,
No. 70, 1937, pT4at p. 50): '1am convinced that the principle underlying
this submission (inadimplenti non es! adimplendum) is so just, so equi-
table, so universally recognized, tbat it must be recognized in interna-
tional relations also. In any case it is one of those "general principles of
law recognized by civilized nations" wbich the Court applies in virtue of
Article 38 of its Statute.' More recently, Sir Humphrey Waldock, as
Special Rapporteur on the Law of Treaties of the International Law
Commission, expressed the idea in the following terms: 'Nor is it easy
to see how the rule could he otherwise, since good sense and equity
rebel at the idea of a State being held to the'performance of its obli-
gations under a treaty which the other contracting party is refusing to
respect .. .'."
The final'citation 1 would like to make from Volume IIof the Pleadings
in the Namibia case is one passage at page 623, where Mr. Stevenson of the
United States answered a question put by a judge of the Court. First, the
question of Judge Sir Gerald Fitzmaurice:
"It has been maintained on behalf of the United States that fundamental
breaches of a contract by one ~arty entitle the other to put an end to it.
- would like to know how. in ,our .iew. exactlv this would work in
practice. For instance, it is evident that if a party could put an end to a
eontract merely by alleging fundamental breaches of it, and despite the
denials of the other party, whether on the factsor asregards theexistence
of the obligation, there would always be an obvious and easy way out
of contracts which one of the parties found onerous or inconvenient.
What safeeuards would vou institute in order to Drevent this, and how
would or ihould such safeguards apply in the international field in the
relations between States or between States and international organiza-
tions?"
And the reply of Mr. Stevenson of the United States:
"The doctrine of material breach as a basis of terminating a contract is a
doctrine of municipal contract law which has been reflected in interna-
tional treaty law. Obviously not every breach of a contract would
justify the other party of terminating the contract, but only a breach of
such significance as in the words of Article 60 (3) of the Vienna Conven-
tion on the Law of Treaties, would constitute a 'violation of a provision
essential to the accomplishment of the object or purpose of the treaty'.
If the party alleging hreach were held by an international tribunal not
to have established the material breach, the termination would not be
legally justified and a party which had terminated the treaty on the basis
of an alleged breach would be liable for an unjustified repudiation of a
contract. The fact that in the international as opposed to a municipal
leaal svstem the other Darty cannot be assured of bringing a case in-
volving material breach before an international tribunal, except where
both parties have accepted the compulsory jurisdiction of an interna-522 ICAO COUNCIL
tional tribunal is a nroblem relatine to the efficacv of international law
and institutions genérallyand not spëcially to the Goblem of the material
breach doctrine. The best safeguard against misuse of the doctrine of
material breach would he throueh the extension of the com~ulsorv
jurisdiction of the International Court of Justice or other appropriate
international tribunals over legal disputes arising between States or be-
tween States and international oreanizations. at least with resDect to
those disputes which relate to interiretafion, application and termination
of international agreements."
This reply, which is commendable for its brevity and precision, sets out the
correct position in international law and 1would like to adopt it as my own
argument in this case. 1 shall highlight the essential points made by MI.
Stevenson in reply ta the learned Judge, Sir Gerald Fitzmaurice. First, MI.
Stevenson says that this right under international law does exist. It is true that
you are exposing a nation ta the possibility of having the treaty suspended or
reuudiated uniustifiably-that risk you run. But that is the risk wbich is
atiendant upo" the inadequacy of international institutions. We have not
reached thestage when international law is enforced in every case where a
wrong is done, just as, at least in the theory of the law, wrongs under civil law
are remedied and redress is given in municipal courts. And Mr. Stevenson
says that the remedy lies not in ignoring this principle of international law
but in brinaina about an evolution of international law where com~ulsory
arbitration,-fa; example at the hands of the Internzrtional Court of Justice.
may be made binding on different nations. But yoii cannot Say there is no
such right of suspension; the right exists though there is this inadequacy,
infirmity, of the machinery available for redress in the event of awrong being
done.
It is rather interestina that Mr. Stevenson drans a distinction between
three types of disputes. Disputes relating to (O) interpretation, (b) applica-
tion and (c) termination. What is covered by the Convention and the Transit
Agreement are the first two categories, not the third. And termination is put
by Mr. Stevenson as conceptually separate and distinct from interpretation
and application.
1 have finished with Namibia's case and if 1 may formulate now three
propositions laid down in the Namibia case which are of direct relevance to
the present Appeal:
First, Article 60 of the Vienna Convention, which gives the rigbt to termi-
nate or sus~end a treaty ta a nation as a sovereian -tate. embodies a general
rulc of cxis~inginternaiional lau.
Secondly. this right has ils source outside of the treaty and ttis not tu be
held as necniived or excludrd merely bccriiise the treaiy is silent on the point
and does ;ot confer sucb a right.
And thirdly, this right of suspension or termination can be exercised
unilaterally,i.e., without the consent of the other party to the treaty.
The first nrouosition is in uaraarauhs 94 and 95: the second uro~os. .on
in paragrapl; 96. and the ihirdproiosition in paragrnph 101.
On thcse thrcc propositions there is nu dissent. On the other two proposi-
tions there is a dissent, andthose are the propositions concerning a mandate.
1shall leave them because they are of no relevance here.
This hrings me to the end of the second point 1 was urging-namely that
in any event in cases where a right of termination or suspension is exercised
dehors the treaty, there cannot ex hypothesi be a question of interpretation or ARGUMENT OF MR. PALKHIVALA 523
application of the treaty, because you are applying a rule of international
law outside the treaty, you are not applying the treaty at all.
Now 1come to the third point which is a point of great interest and which
applies to a large number of councils, tribunals, ad hocbodies which are
limited, if one may say so with respect, both in knowledge of international
jurisprudence and limited so far as their functions, duties and powers are
concerned. The third proposition is what 1 may call the doctrine of the in-
herent limitations. May I read India's Reply, paragraph 60. The heading of
the Chapter is, "Inherent Limitations on the Council's Jurisdiction",
"A. Composition, Powers and Functions of the Council
..
60. The'~~~licant submits that the vital point missed in the Respop
dent's Counter-Memorial is tbat the Council has inherent limitations on
ils jurisdiction, arising no1 only from the vcry word, of the Convention
and the Transit Agreement sonferring the jurisdiction but inherent in the
very composition and character, duties and functions of.the Council,
It is inconceivable that the contracting States intended the Counul,
which is not expected to consist of trained lawyers, jurists or judges, to
decide questions of international law, ~togo into the legal rights and
wrongs of political confrontations between States, to decide whether tt+e
conduct of a State was such as to justify termination or suspension of:a
treaty hy the State which is specially affected by a material breach by
~~-~~er~State. ~.d ~o~oro~ornce uoon the validitv of a sovereim State's
exercise of its right under internaiional law to ierminate or suspend a
treaty. Only a Court of International Law, duly equipped ~nd -ual--ied
to weigh the evi.dence in its legal aspect and to lay down principles of
international law, can deal with such disputes. The Council is clearly not
such a body. Kt performs extremely useful functions in its own area
which is far removed~fr~ ~tha~ of a Court of International Law.
61. 1" short, the inherent limitations on the Council'sjurisdiction arc
reilected in ils composiiion, its limited pouers and functions; and the
limiis of its jurisdiction are expressly circumscribed by the clear provision
in the Convention and the Transit Agreement thdt only disputes relating
to 'interpretation' or 'a~plication' would be decided by the Couniil, or
disoutesrelatine to 'action under' the Transit ~meement.
r ~ ~ ~ ~~ ~ ~-~ ~ ~ ~
62. The very points of international law iaised. by the Respondent in
ils Counter-Memorial,~hallenging the right of lndia to suspend the
Convention and the Transit Agreement,-themselves afford striking
examples of the type of questions .of far-reaching significance which
arise when a sovereign State chooses to exercise its right under inter-
national law to terminate or suspend a treaty. The Council is not al al1
equipped to deal with the relative merits of the rival suhmissions in
international law made hy the Applicant ~n~ the Respondent."
Lei u, now go again to the Convention tosee how limited thc powers and
functions of the Council arc and whatit~composition is. A body cnmposed as
the Council is could not ~ossibly have hren intended Io deal with cnmplicated
questions of international law. It is inconceivable-I use the word "incon-
ceivahle" advisedly, and 1think that word does not oventate the case.
Would the honourable Court be pleased to turn to lndia's Memorial, pages
~-~-3~-~ suora. Wha~ ~s t~is Council? This nuestion of inherent limita-
tions is a ve;y important factor, because when ~comi tothe authorities 1hope
to make good this point that ultimately what will decide the limit of Juns-
diction is-what the-pirties who agreed to confer.the jurisdiction intended.524 CAO COUNCIL
Nations have am~~- to allow this Council. innocent of the comolexities of
international la~. 10 deîl with disputes regrirding application or interpreta-
tinn, knowing full wcll that the more far-reaching ibsues under international
law of susoeniion or termination will not be comvrised in these words "inter-
pretation or a~blication". If the law were to be iaid down today differently,
nations would think ten times before signing a treaty where a body of laymeo
are to decide ouetions of international law.
Please turn'to page 310, supra, of India's Memorial. It is Part II of the
Convention and the heading is "International Civil Aviation Organization".
Mav 1 at the out~~ ~make one ooint which. in mv submission. is of areat
sighfiwncc. The Council is an administrative body, itis not a judicial body-1
put it at the verv forefrontof this third proposition nhout inherent limitations.
Ït is not equipped, and it is not expected to be equipped, to discharge the
functions of a judicial forum and one has only to look at its functions, its
duties, its powers, to see that it is a purely administrative body. In the course
of administratiori of this Convention it cm deal with questions of inter-
pretation or application. But there is al1the difierence in the world between
ai administrative body decidina certain disputes regarding a.pli..tion and
inrerpretrition and an internatiokil court of ~usticed&ling with questions of
international law and the rights and powers of a sovereign State. First. 1shdl
read Article 43:
"An organization to be named the International Civil Aviation
Oreanizatiori is formed bv the Convention. It is madeuo of an Assemblv, . .
i: a Council, and s;ch othe; bodies as may be necessary."
The Council,therefore is a part of this Organization. Article 44 reads as
follows: . .
"The aims and objectives of the Organization are to develop the
principles and techniques of international air navigation and to foster
. the planning and development of international air transport so as to:
(a) Insure the safe and orderly growth of international civil aviation
throughout the world;
(b) Encourage the arts of aircraft design and operatioo for peaceful
c--r----.
(c) Encourage the development of airways, airports, and air naviga-
tion facilities for international civil aviation:
(d) Meet the needs of the peoples of the world for safe, regular,
, efficient and economic air transport;
, le) Prevent economic waste cansed by unreasonable comoetition:
if nsure that the rights of contracting States are fully reipected and
i that every contracting State has a fair opportunity to operate intema-
tional airlines; ,
(g)Avoid discrimination between contracting States;
(h) Promote safety of flight in international air navigation;
(i)Promote generally the development of al1aspects of international
civil aeronautics." (Memorial, Annex H, pp. 310-311,supra.)
Now the Council, which is a part of the Organization, has these objectives.
These arethe obiectives of an administrative bodv. It is in order to imolement
and effectuate these objectives, that the ~ouncil-has a limited jurisdiction Io
deal uith questions of interpretation and application. How can it possibly
bring in questions of sovereign rights and international law?
,' ïhere are two bodies-the Assembly and the Council. 1shall not waste any ARGUMENT OF MR. PALKHIVALA 525
time on dealing with the provisions relating to the Assembly. 1 shall only
read one sentence in Article 48, clause(a) :
"The Assembly shall meet not less than once in three years and shall
be convened by the Council at a suitable time and place. Extraordinary
meetings of the Assembly may he held atany time upon the cal1of the
Council or at the request of any ten contracting Statesaddressed to the
Secretary General." (Zhid p. 312.)
If the Assembly is to meet "not less than once in three years", the real
administrative work al1falls on the Council, and it is the Council which has,
therefore, to discharge the functions and achieve the objectives of a purely
administrative nature set out in Article 44.
Now comes a verv interestine and sienificant nrovision in Article 50 re-
garding the composiiion of the ?ouncil.~hi CO& will see that the Council,
consists not of individuals, but of States. Can the learned judges conceive
of a iudicial court dealine witb international law which consists not of human
bei&s but of States? ~ould you please turn to Article 50,clause (a) :
"The Coiincil ihall be a pcrmiinent body responsihle to the Asssmbly.
Ir shall be compuicd of tweniy-\even cuntriiçting States eleçteki by the
Asscmbls. An eleslion shd1 be held nt ihe first mcctinr uf the Assembly
and thereafter every three years, and the members if the Council so
elected shall hold officeuntil the next following election(Zbid p.,313.)
Twenty-seven contracting States constitute or compose the Council. India
is one of the 27 States, so India can nominate "A" today, "B" tomorrow. In
fact our nominees, like the nominees of most of the other countries, are
completely innocent, as 1 said, of any knowledge of any branch of the law,
leave aside international law. A State can change its representative any time.
Does not one perceive here the inherent limitations on the jurisdiction of the
Council arising from t& very composition of the Council?
Articles 54 and 55. which deal resnectivelv with the mandatorv functions
dnd the permissive fiinctions of the Council, give 3 clear iden of !!lis1the
<:ouncil ii wppoied tu do. These t\vo Articles le3i.e no douhi thnt it is an
administraiive bodv and ndt a iudicisl ïuthoritv üt311.Arti~.le54. "hlanda-
tory Functions of Council", says:
"The Council shall:
u, Submit annual reports to the Assenibly;
(h, Carr) out the directions ol the Assenibly and dibcharçe the diities
and obli-ations which are laid on it bv this Convention:
(c) Determine its organization and rules of procedure;
(d) Appoint and define the duties of an Air Transport Committee,
which shall be chosen from amone the re~resentatives of the members
of the Council, and which shall be;esponslble toit;
(e) Establish an Air Navigation Commission, in accordance with the
provisions of Chapter X;
(f) Administer the finances of the Organization in accordance with
the provisions of Chapters XII and XV;
.... Determine the emoluments of the President of the Council;
(h, Appuint a chicf execut:ïe olficer who sh311be cîlled the Secretiiry
Gener;il, and m;tke provision for the appointment of such uther person-
nel as may be necessary, in accordance with the provisions of Chapter
XT; (i) Reauest. collect. examine and oublish information relatine to the
;id&ncemént of air navigation and ihe operaiion of internatignal air
services, including information about the costs of operation and parti-
culars of subsidies oaid to airlines from oublic funds:'
(j) Report to contracting States [NOWthis is'where the function
comes in where my learned friend would like the Council to deal with
' my case as a sovereign State] any infraction of this Convention as well
as any failure to carry out recommendations or determinations of the
Council;
(k) Renort to the Assemblv anv infraction of this Convention where
~ ~ ~ ~
ac'ontrüctjng State has failed Cotakeappropriate action within a reason-
able rime aftcr notice of the infraction;" (ihid., pp. 314-315).
The clauses (j) and (k) are very im~ortant from our ooint of view. If mv
case ever goes back to the ~ouncjl, it-would be under ij) and (k) that thé
Council would be discharging ils functions. In other words, it would be
reporting to the contracting States or to the Assemblv the auestion whether.
&der international law, India had the right to suspend the convention; wa;
the right duly exercised, etc.
These questions of vast cnmplexity on which hiahlv trained min& and
highly equipped courts may have a difference of opinion are supposed io be
dedt with by the Council. My point is that thc type of report contempliited
by Article 54 is regarding an infraction, which meüns that the Convention
continues to be inoperation, but if there is a breach or an infraction of a
particular part of it; it is only that which will go by way of official report to
the Assembly orto the olher States.
The Court rose at 6.5p.m. ARGUMENT OF MR. PALKHIVALA
SECOND PUBLIC SITTING (20 VI 72, 10 am.)
Presenc [Seesitting of 19 VI 72.1
Mr. PALKHIVALA: May ilplcase the honour~ble Court, 1 \\as al page
315, supra, of Indiü's Memorial, and 1uas reüding Article 54 of the Conven-
tion which sets out thc mdndatorv functions of the Council. The Iart clauses 1
rcad wcre clauses (JJ and (kj oithis Article which are the only ones under
which the Council would be miiking a report in rcspcct of this case. assuming
it hadjurisdiction to deal with this case.
~hc~followclnures(l,, (ml and in) which dcal uith the adoption of inler-
national standards and recommended practices. recomnicndations of the
Air Navigation Commission. and the consideration of anv other matter
which maj be referred by the contracting States.
Article 55 scts out the permissive functions of the Council. Thosc pcrmissive
functions deal with facilitatina international air transport. dcleaatina to the
Air Navigïtion Commission iddirional dulies, conducting rese&ch;nto al1
aspects of air transport and air navirarion. which are of international impor-
tance, and communicating the results of the research to the contractina
parties, factlitating the cxcrhangeof inforniation betiveen contructing partie;
studying any matters aliecting the organiwtion and operation of international
air transport, and investigation at the request of any contracting State of any
situation which may appear to present avoidable obstacles in the develop-
ment of international air navigation.
1have read these clauses in order to substantiate mv ooint that the Council
is a purely administrative body as regards the composiiinn of the Council to
which 1 have referred carlicr. the Council consists not of individuals, but of
Statcs.
Now, in the contcxt of these mandatory functions in Articlc 54, and
pcrmissivc funciions in Article 55, this honourablc Court will have toconsider
what kind of burden in the realm ofjudici31 adjudication was intended by the
contracting States to be borne by this Council.
Lct us nou turn to the verbatim notes of the proceedings before the Coun-
cil.1 have nuthing against the representntives who sat on the Council. In Tact
no blame attaches to them; I do not scck to criticize them at dl, nor to
condemn them for what they have done, 1only Saythat thcse gentlemen were.
from the vcry nature of the functions they wcrc inicndcd by the Convention
to discharge; wholly unfit to go into the question which unfortunatcly Paki-
stan soughi to raise bcfore them. And. in the spirit not of criticizing but with
a view to makina this honourable Court understand what type of atmos~here
prevailed, what iind of mental outlook was brought to be& by the respiesen-
tatives, may 1 request the Court to turn to India's Memorial, at page 258,
supra.
The case was heard on 27 and 28 July and both parties finished their
addresses in two days. It was India's request that some time should be given
to the members of the Council to read the verbatim notes of the whole argu-
ment. It was also~n~i.~ed ~ ~ ~ ~~ ~ - -~ ~~ ~r that manv of the eentlemen
who sat on the Council were unable, quite frankly,to wigh and Gpreciate
what was being said before them: would it be right that they should deal
with this mattir without even understanding what the full argument was?But within 24 hours of the closing of the argument, rejecting India's request
that a hrief memorandum of arguments may be prepared or that verbatim
notes mav be exneditiousiv made available to the members. further reiectine
India's request thai ai least the difirent governmrnis may be consulied as to
what they proposed to do in a matter which would involve the construction
of perhaps a hundred international treaties rejecting al1 that, the Council
came to a decision within 24 hours, after a discussion which is most significant
because it completely proves the point 1have heen making. They came to the
conclusion that India was wrong and they had jurisdiction to deal with the
matter.
1 am going to read some of the interesting passages which have a direct
bearing on the proposition 1 am just now submittiiig. 1 may make it clear
that 1am not dealing with the point of irregularity, just now, in the method
and manner of arriving at the decision. 1 am not on that. 1 am on the point
that the verr discussion which took place in the Council. the deliberations
which preceded the decision of the ~ouncil, would leave no doubt that this
Council was never intended hy the parties to deal with questions of inter-
national law.
To Savetime 1will read out only a few select passages.
Please turn to page 258, supra, of India's Memorial. This is the day when
the arguments are over and the counsel for India and Pakistan have with-
drawn and now the deliberations of the Council begin.
At page 258, supra, first line:
"To that extent 1 shall therefore not be able to support [one member
says] any positive action on the substance of the matter. For me it is
essential to obtain legal advice on the arguments which have heen
presented before so participating."
This is, 1 am glad to Say, the representative of the United Kingdom who
says: 1 am sorry, my sense of justice prevents me from giving a decision
unless 1 know whether the counsel is right or wrong in what he has been
saying, and 1have no means of knowing it.
Then, at paragraph 99,another representative of anothercountry:
"1 should like to express almost the same view as the Representative
of the United Kinedom has exoressed. because 1 too am not a lawver.
During these two daYs we havé heard many things linked very clo;ely
to international law and 1too would like to have the possibility of con-
sulting my Administration."
Then paragraph 102:
"Air Vice Marshal Riissell: [Some of these representatives are Air
Marshals, some of them are Colonels, some of them are civil servants,
not perhaps more than one of them a lawyer.] What 1said, MI. President,
was that 1 could not oarticioate in a substantive decision at this time.
unfortunately being without iegal training myself and not having had thé
opportunity to seek legal advice. 1was not asking for time. 1was simply
savine that 1was. unhaoo..v...ot in a position toevaluate from a strictlv
le& Point of view the presentations which have been made to us."
Then, on the next ca.e -59, .su.ra, second line. Air Marshal Russell:
"1 am not a lawver and at this ~articular moment 1am Derhaos a little
bit somy and 3 littie bit glad that.1 rini ïolawyer, but iiis n Tactthat 1
am not and it would be unre~sonable-l ihink that is the right wurd-for ARGUMENT OF MR. PALKHIVALA 529
me here and now to express, on behalf of mycountry, asubstantiveview
on matters of quite complex law. AI11 am saying is that, for hetter or
worse, 1 am not in a position todo so."
What this honourable Court is asked to do hv Pakistan is to hold that this
Council shoulddcîl with the various points ~hilh have bcen rtiscd. Whcn the
members themselve, say thai they are unfit to dcïl u,ith them, is ilso unrca-
sonable to expect them todo so.
On the same page 259, paragraph 110, last eight lines-this is annther
representative-Mr. Agésilas:
"1 thcrcfnrc bclicve thdt, ïs the Rcpresentative of Bclgium stid, a
dcfcrmcnt of cight dtys would hclp iiccrtain number of Our collc~gucs
ro obtîin advice or instructions and it uould ccrtainly bc desirable that
the largcst possible nuniher of Council members be in a position to
pïrticipîte in the taking oî dccisinn. 1,for one, would have noobjection
to an interval of the orde..."
ln othcr uords the members Say: we are no1equipprrl to participare in this
discussion. Samc pagc 259,paragraph 112,liist four lines:
"The question is simple and I think national adm:nistrations and lcgûl
services h3ve had sufiicient time10 make up thcir minds on the validity
of the oreliminarv ohiection.-iust as India and Pakistan have been able to
make kritten sul;miskions."
Now this is very interesting. What this rather frank and open-hearted
member says is that governments have to make up their minds. They who
hear the case, who would have heard the evidence, do not make up their
minds; somebody else makes up their minds for them. Not one member says
so, at least six members say openly that they have no minds of their own tn
make up-their Governments have to make up their minds.
Page 260, paragraph 114,last three lines. Now to thisparticular gentleman
the question whether the Council has jurisdiction or not is a simple one
which has to be resnlved in this manner:
"Perhaos 1 am noinn to he a little brutal. but the auestion is as simple
as this: 1; the ~ounc; going to survive or die! Is'it going to takc-its
responsibilities or refuse them'! For mc thc problcm is no more compli-
cated than that."
So the member savs: 1am not concerned with th& o~.~~ion ~f ~nternational
law, 1 am not concerned with what is the correct meaning of the wnrds
"application", "interpretation". 1am only concerned with this: if one country
savstn mv Council. "~ake on the resoonsihilitv". am 1eoi-~-to take it on or
nit? ~hali 1deny the responsibility? if 1deny'ihc rcsponsibility, the Council
will dic. If the Council is to survivWC mus! take a11the responsibility which
is offercd to us. This is the body beforc whom 1am asked to rake my inicr-
national disputes to bc adjurlicared on mcrirs.
May 1requesr you to turn IOpage 262; anothcr rcsprcsentiitivc of a memher
State of the Council. Mr. Mueizi. We h3d cited the Namibia caFe and the
Vienna ~onvention,'and this 7s what this gentleman says about the legal
arguments, the cases, and the Vienna Convention:
"... The Namibia case and al1the other cases that have heen cited and
the Vienna Convention are the things which put us off. These are the
things about which we need to consult lawyers whose business is much wider than our business here. If we are to make consultations, to make
sure that our advisers are going to look into al1these matters that have
been discussed yesterday and today, we need enough time. This is not
something you can do after getting a suminary of our deliberations
'yesterday and today, sending it to your Government and saying 'Will
you give me a reply within 5 days?' It would take time. Either we delay
the decision for 3 or 4 weeks and get advice on the implications of the
Vienna Convention and al1the cases which have been mentioned, or we
take a decision now. basine it on the documents we - ~ave. -..e. ..t~~~.
depends on what we'considir to be the function of this Council. If the
function of this Council is to deal with al1aspects of international law,
if Our decisions must take due account of al1the international decisions
which have been made, of al1the cases which have been cited here, then
we have got to have time to examine these thinns and aet Drooer advice.
but if wë are expected to deal only with the mittcrs-de& ùith in thé
Chicago Convention, in the Transit Agreement and in the Rules for the
Settlcment of Dilierences. we can take a decision todav. Thines u,hich
put us off are matters which are not defined here. or-instance it was
being argued that a convention could be suspended by one State iii
respect of another State or terminated bv one State in resoect of another
tat tTehis is the sort of thing about which 1am in doubt. 1myself did not
know this could be done and 1 was prepared to deal with the matter
recognizing that 1 am ignorant of anything outside the Convention. 1
would prefer to take a decision today, Mr. President ..."
-
The gentleman, after saying al1this, says in effect: "1 am prepared to take
a decision today. But if we are to defer it, the period of deferment should be
longanough to permit sufficient consideration of the arguments."
Another interesting passage on page 263, paragraph 124, last six lines:
"Then. of course,'there will have to bea meeting of lawyers Ithis is a
Colonel who represented another Statel specialized in international law,
which will take 5 or 6 weeks. 1therefore am in favour of taking a decision
today ..."
In other words, matters areso complex that highly specialized lawyers will
Jake 6 weeks to deal with it.
"1 therefore am in favour of taking a decision today, hlr. I'resident. or
in the extreme, 6 weeks from now, so thai OUI ûdministrations can study
. . the new elements, and onlv the new elements, introduced inthe masterlv
presentations of the Cou&els foi Pakistan and India."
Then cornes another Major, page 263, paragraph 126, who is again quite
frank and who does not seem to have a good opinion about lawers. What he
says is: . .A
"1was going to say practically the same as the Representative of Spain.
Eight or 10 days would be of no use to me. I shall bave to wait 3 or 4
weeks for the detailed minutes. 1would then have to send them to my
country, the lawyers would meet-usually there are four of them, each
with a different point of view. This would take 2 or 3 months, and 1 do
not tbink that would.be fair to the parties to the dispute."
- ...
Now consider the approach--ihir is ihe administrative approach. 1am not
blaming this gentleman at all. 1repeat, the blanic attaches to thosc who will ARGUMENT OP MR. PALKHIVALA 531
try to make !hem discharge functions which they are not appointed or quali-
fied or equipped to discharge.
"On the other hand, 1 am not a lawyer, but 1understand that law is the
natural order of things, and 1do not think it necessary to go into further
details. As other Representatives have said, the Council either is or is
not competent to deal with this question. 1have formed an opinion and 1
am ready to vote immediately."
The gentlcm3n says: the malters are complex, 1do not understand rhem, 1
am not equipped. 1 am not a la\iysr. four Iaivyers will takc different views.
Rut the auestion is sim~le. "Has the Council jurisdiction or not?" To such a
simple question, 1cnn give 3 s~mpleansu,er, Iam ready ro vote.
Now th15 the second ddy of the hearing; the lirst ddy of the heariiig was
occuoied whollv hv arguments. The second day of the hearinc!left some time
for the cc~unciito~del~berdte,and 1 have reacÏthe dçliberati&ns of the after-
nonn of the second day of hedring. Now comes the final day when the decision
is made and India's oleas are reiected.-29 Julv 1971.The relevant D3ssaae-
are from page 271, supra,onwarhs, pziragraph 4, MI. Borisov:
"MI. President, the Soviet Union was not a member of the Council
when the Council previously discussed this question, first in Montreal
and then in Vienna. It is quite clear that heing present for the first time
at a Council meeting on this auestion 1met with some nuances on which
1.like ~e~resentîti\Tes of some cither sountrics, have to consul1 with my
comi>ctcnrorgûns. 1reqiiejt lime for iuch consultation after receiving the
~~mblete records from the Secretariat. 1 believe that a week or 10 davs
wouid he necessary for this."
The Soviet Representative again is honest enough to Say, "1 cannot make
the decision, 1 must have some time. You cannot ask me to make a decisioo
now-how &il11 decide?"
Paragraph 6, Major Charry:
"1would like to have the Leeal Bureau exnlain to us whether a decision
taken today would not be valid, as the ~epiesentative of India says. May
1hear what the legal secretariat has to say on this point?"
That is, the legal secretariat of the ICA0 Council. In other words, the
memhers of the Council seek advice on what the correct position is from their
Secretariat.
Then paragraph 10 on the same page 271, last three lines:
". ..1am quite sure that they will need several months. So may 1reiter-
ate-1 am ready totakeavote today but 1 shall not ohject to a delay if the
time given is meaningful."
Now this gentleman again says that time would he needed, but it could be
several weeks or months-so either you decide here and now and decide
whichever way you like, or give a meaningful time lapse so that the matter
may he fully considered.
On page 272, paragraph 16, MI. Butler, the Representative of the United
States says:
"There is iust one noint 1 would like to make here and that is a
reminder thai we sit here as representatives of governments. We are not
individual members of the Council. Our Governments are membe~ of the Council and even though the Council may be sitting in a judicial
capacity at this time, we sit as 27 governments, not as individuals. If
26 governments are prepared to go to a decision today, it is the decision
of those governments, not of the individuais who sit at this Council
table, and 1think it is important for us to remember this. We are unlike
the members of the World Court, for example, which sits in a judicial
capacity; they sit in personal capacity as judges not responsihle to
national administrations. Here we represent governments, and it is
important for al1of us to remember this."
The implications of what Mr. Butler has quite rightly said on behalf of the
United States Government are important. The members of the Council are
the governments, not the individuals.
Now if this honourableCourt wereto hold that my appeal should be rejected
-and 1 go hack to hearing on merits before the Council-what 1 shall be
driven to is this: that for the first time oerhaus inthe his.orv -f iurisorudence
the trial will be held with al1the judgés in obsenria.The governments are to
decide but they do not hear me. Individuals hear me, but they do not decide.
Now what is beina said bv the re~resentatives aives a clue to what reallv were
the functions of this coincil. It kas never intended thatthis Council ihould
deal with rights of sovereign States under international law, because no
iud~e can decide a matter in absenriawhen he has not even the onnortunitv
of hearing what the parties have ta say. 1repeat that 1 am not at thémorne&
on the point of irregularity in procedure: 1 am only on the point that this is
the no;mal nrocedure. this is the ordinarv administrative vrocedure which
show sihat bas intended IObe the limit toihe ~ouncil's juri;diction.
Then Air Vice hlarshal Russell says on the ssme page 272, supra. pdrdgrdph
18, last three lines (Annexes to the Mernorial):
"... the Represeniaiivc of India uas sûying ihat for reiisons uhich he
gave 3 decision taken now would not bc takcn legall!t, in itpossible for
nie to be îdvised on how this point should he determined 3s a point of
The President of the ICAO Council himself says, at page 273, paragraph 19:
"1 think the Representative of India said that the decision would be
vitiated; those werethe words that he used. 1think the Secreiary General
feels that he cannot say that he agrees or disagrees with that position.
This Council has to take a decision itself. If Representatives cannot
decide by themselves, 1 suppose they will have to check with their own
administrations. As the Representative of the United States just said,
Council members are sitting as re~resentatives of governments. 1imagine
also that if the decision ofthe ~ouncil on this question waS contesjed,
there is always a superior body to which India could apply."
-fortunately that is the position.
On the same page 273, paragraph 21,Tam reading what the President of the
ICAO Council said:
"That of course. is a matter of ooinion. 1thinktbat one noint Council
member; are now considering is this: was something briught forward
in the hearing itself that was different fromthe written presentations and
required them to seek further instructions?'
This is very important. In other words, the individuals who are supposed to ARGUMENT OF MR. PALKHIVALA 533
be myjudges only act on their instructions-and instructions from individuals
who have never heard my oral argument.
Then, paragraph 22-another Representative of a different State, Mr.
Ollassa-
"1 consider what the Representative of India said [isl an assertion.
The Government of India, like any other government, can make al1the
assertions it likes. In any event, after having read and re-read the docu-
ments, and though 1didnot hear al1that has been said here [the Member
said '1 did not hear al1 that has been said here'l. 1 find that the areu-
ments brought forward were, as the ~e~resentati; of Belgium said, &st
an illustration of the preliminary objections we have received."
He also says that he is taking his instructions only from his administration
or his government: that is on the same page (p. 273), last six lines:
"We had these documents in Vienna; administrations have had time
to read them. The explanations given here perhaps are considered by
certain members of the Council to supplement what was said in the
preliminary objections, but they may equally he considered siinply as
illustrating what was suhmitted in writing. At al1 events, that is what
the People's Repuhlic of the Congo thinks; what has been said merely
illustrates the preliminary objections."
Then page 274, about the tenth or twelfth line from the top:
"The question remains the same as it was in Vienna. The arguments have
not changed it and they cannot change the solution."
In other words, the gentleman says that whatever may he thearguments
they cannot change the.solution which their governments have decided upon,
namely that the Council must go on with the case. Then the first new para-
graph on page 274, supra, the last two lines-". ..the question is clear to
everyhody, at any rate to governments who have had the preliminary objec-
tions to read".
On page 276 comes the Representative of Czechoslovakia, who said:
please defer the matter so that we who do not understand what is being
argued may consider it; and on page 276, the Representative of Czechoslo-
vakia says, in paragraph 29: ". ..permit me to propose deferment of the
Council's decision until 10 August 1971." That is supported hy the Soviet
Union.
NOWcomes the interesting voting on page 277, in paragraph 42:
"The Presidenr:1s there further discussion hefore we go to the vote?
Then 1will take a vote on the Czechoslovak proposal that the decision
of the Council on this auestion be deferred until 10 Aueusf. Those in
favour please raise their hands. Opposed. Eightin favour [of deferment],
no opposition. but ... [becausel 14 votes ... [are required to carry a
resolution]... the proposal has failed."
So eight members ask for time, nobody opposes the question of giving time,
but because eight ask for time and not 14which is the majority, the Council
consisting of 27 members, the proposal fails.
This shows you what are intended to be the limits of the Council's juris-
diction, when this type of voting pattern determines the rights of nations'
exjsiing sovereign powers.534 ICA0 COUNCIL
Then, another gentleman, Dr. Bradûeld, says on page 277-the last para-
graph-
"We are in a position to state our opinion in a vote taken on this
matter today. We wish to reiterate the point made bv the Representative
of the ~nited States that this Council i;a Council of~tates, not of indivi-
duals, and the opinion of Australia that the Council has competence to
consider the disvute is an oninion of Australia as a State after considera-
tion of the papirs suhmitted by India by appropriate legal authorities in
Australia. 1, as Representative here in the Council, may not have the
qualifications to express a legal opinion..."
1 shall omit other pages and may 1 request the honourahle Court to come
straight now to pages 287 and 288, supra.
Page 287, paragraph 142 (to Save time 1shall omit some of the other sen-
tences 1had in mind to quote):
"AirVice Marshd Russell: 1 should like to record that 1 ahstained
from voting as heing unable to participate at this time in a decision
which turns entirely on points of law. 1 would have heen in the same
position on anv proriosal for a decision on a question of substance today.
6 am not, myséli,sufficientlyadvised on the merits of the legal arguments
which have been presented. although of course 1 accept that other
Representatives are so prepared."
The Representative of the United Kingdom is so conscientious, he says 1 am
sorry 1will not vote because frankly you are asking metovoteon something1
do not understand.
If this is the difficultv of the Council in understandine the
regarding the matter on6 of its jurisdiction, what would b&the;; difficulties
if they had to decide the complicated questions on merits-what is material
breach: in what cases in international law can vou suso.nd? Ca- vo. sus~ ~ ~
a contract if the contract does not expressly provide for the power of su6en-
sion? If on a preliminary point the Council finds itself completely unqualified
to deal with the mattericonsider what would beits predicament if it is asked
to deal with the merits.
The last passage at page 288, paragraph 146, Mr. Diallo:
"Mr. President. mv deleaation voted for the comoetence of the Coun-
cilto de31with the ihree ~uestions put ro us. ~his'in no way prcjudges
the porition we sh311take on the substance of the disagreement. 1did not
bclieve Ithatl 1had to abstain to make cleûr mv Govcrnmcni's neurriilitv
towards-the two countries that have this disagreement, because we think
it is more than a question of being on one side or the other. It is a
question of saving the truth, of respecting the law and jurisprudence
already established hy the Council. If the Council declared itself incom-
petent on this question of overiïight which two Contracting States are
contesting, we think that in futureit would no longer be sure on what it
[is... compentent and. .. [what it is not]."
In other words, Mr. Diallo has a very simple solution. If a Council starts
deciding what cases are within its jurisdiction and what cases are not, look
at the amount of trouble it will have every time. The best thing is to say that
vou are cornnetent because then vou eliminate al1trouble in the future. This
is what the respresentative saYs-he says that if the Council declares itself
incornpetent on this question of ovedlights, which the two Contracting ARGUMENT OF MR. PALKHlVALA 535
States are contesting, in future it would be no longer sure on what points it
is competent and on what points it is not competent. The gentleman voted
in favour of jurisdiction for two reasons: first, if you go into the question of
competence you will have cases time and again in the future where the
question of competence will be raised, and you will have the trouble of
deciding this question every time. Get rid of that trouble by saying at the
very outset that you are competent. The second reason why the gentleman
voted in favour of the Council's jurisdiction is that if Pakistan is not allowed
to overfly India it will be discrimination, and discrimination is prohibited by
the Convention.
The representative did not appreciate that he waS not dealing with the
question of jurisdiction at al1when he was dealing with the point of discri-
mination.
1 have read, 1 think, enough ta satisfy this honourable Court that when
you read these verbatim notes of the proceedings before the Council you are
taken back into the happy, naive world as it existed before the ungodly
.unele of the law was created. Aaain. repeatina that 1 am ap~ortioning no
blame to the reprcsentativcs;-th& xrc king Cvery u\clul piiçe of woÏk in
thcir own legitimatc ,phsrr-I \vould like finally Io sumniari~e. The represcn-
~ativ~ ~from whose deliherations 1 have auoted. fall into four catezories.
First, the category of those whose governkents'had made up their kinds
which way they wanted to vote before the oral arguments took place and
they stuck to that decision made before the oral hearing. Now when govern-
ments make up their minds, in more cases than not it would he the Civil
Aviation Ministry, not the Ministry of Justice, because these questions are
normally dealt with in the Civil Aviation Ministry.
The second category is of representatives who could not understand what
was going on, but who thougbt they would like to consult their govern-
ments. or take instructions from their aove-nments as to which wüv they . .
should decide.
The third category is of those who wanted legal advice from the secretariat
of the ICA0 Council. This is like a court askina -he Clerk or Reais-rar which
way it should decide.
And, fouitbly, those who knew that the problems were so vast and the
arguments were of such complexity that they would need weeks and months
to study. But these representatives, who came from aviation ministries,
whose national airlines have made popular the slogan, "Fly now, pay later",
chose to act on the orinciole "Decide now, deliberate later". And therefore
they say "Let's makithe decision now, the deliberations can take their course
in our law or jusfice ministries". In this context perhaps the observations of
Judge Gros in~theNamibia case at page 326may not he inapposite:
"Ta deal with the problem by a rejection not giving reasons, and
without adequate examination, is ta confuse the preliminary with the
prima facie. A preliminary question is the subject of exhaustive treat-
ment and final decision; a prima facie examination can never, by defini-
tion, bethoroughgoing, and can never lead but to a provisional decision."
In orher words. ifa point is prcliminitry you do no1 deal with it on the basis
of prima facie impression. Would this honourable Court süy in the contcnt of
what I have ooinrcd out-the conrtttution of the Counsil, the type olgenlle-
men who are appointed by their aviation ministries-would yousay that this
body wasintended by the contracting States to deal with the type ofquestions
which arise and which are going to occupy this Court for a few days? Am 1to deal with those questions Ihere? If 1 am to deal with them there, forgive
me for saying it would be a mockery of international adjudication. We may
as well not have adjudication and let each State decide for itself what it will
do. Adjudication must command respect. The Council is not 9 court-it is
again not their fault. 1 have pointed out only somepassages, but it isnotas
if1 have chosen deliberately the passages which support me and left out
others. If anv of the iudges would be oleased to en throueh the w-ole ver-
batim notes,ihey would gnd the whole>s of one pattern.
The positive aspects 1 have already placed before this Court, namely that
the words "a~nlication" and "inter~retation" do not cover sumension and
. .
termin3lion and, in any eient. they do no1 whcn the right of <unpension or
terniinaiion i. cxercised dehorr the trîütv founded in ilrule of international
law.
II ic interesting10 look ai Pskistan's Counter-hlemoriûl and sec its answers
to thii argument. 1shïll deal with them point by point.
Wo~ld you rileaw turn to Pûkistan's Counter-Mzmùrial. vauc 383...i~-ru, . . .
paragraph 38;and the discussion which goes up to paragraph 44 at page
385. 1 shall read paragraphs 38 and 41 together as they deal with the same
point.
"38. Article 60 of the Vienna Convention deals with the termination
or suspension of a treaty. Paragraph 4 of the said Article provides that
such a~rightis without p;ejudiceto &y provision in a treatyapplicable in
the event of the breach. Secondly, the right of unilateral termination or
suspension of a treÿty exists only in the case of its material breach by the
other party. Third1y;if one party claims suspension or termination-of a
treaty on the alleged grounds of material breach, and the other party
objects thereto, then the Darty allegin- m-terial breach cannot act as a
jiidge in itiown cniire and uililnlerilllysuspend the treüty; the i.wc mus1
be ietlled either by the consent of the pilrtics or mus1be rciolved through
third-p;irty settlement. And fourthly. huch ï riuht is subject to the doc-
trine of proportionate and/or disproportionate-reprisal.
41. As submitted above, when one party claims suspension of the
treaty on the grounds of 'material breach' and the other party objects
thereto, the former is obliged to settle the issue by consent of the parties
or by resort to third-party settlement. In the instant case, India cannot
act as a judge in its own cause and arbitrarily suspend the agreements
in question. The principle nenlojrrdex Nz re srra is a general principle of
law recognized in thejurisprudence of the Court."
The proposition is that you cannot suspend a contract, except with the
consent of the other Pa~.y or after a third-~artv settlement or adjudication.
The question of consent may be treated as.having been set jt rest by the
Advisory Opinion in the Nomibia case, paragraph 101, where there is a
passage which 1would like to read-just two sentences of that passage:
"To contend, on the basis of the principle of unanimity which applied
, in the League of Nations, that in this case revocation would only take
place with the concurrence of the Mandatory, would not only run
, contrary ta the general principle oflaw governing termination on account
: of breach, but also postulate an impossibility. For obvious reasons, the ARGUMENT OF MR. PALKHIVALA 537
consent of the wrongdoer to such a form of termination cannot be
required" (I.C.J. Reports 1971, p. 48).
1think the niaticrissoobviousth~t perhaps itrcïlly does no1necd clabora-
lion. If1 ïm nsked ta iake the consent of the country wh~chI regard as the
wrongdoer, 1shall never be ;thle tu suspend or terminate any treïty; then one
can forget about one's right under iniernstional laiv Io suspend or terminale
a treaty. It is like saying that you cannot prosecute a thief without his consent
-not that 1 am attributing anything ta the other side, for whom 1 have
respect and personal regard. 1 am talking generally of the legal position. Or
it is like savina that you cannot terminate a contract in civil law when the
other pariy-h3; committcd a brcach unlesr the other party ionscnt, Io such
tcrmination. To ask the wrongdoer to gi\,c hi.;ionscnt and make the righi of
the aaerieved oartv devendent uoon the consent of the wronadoer is ta
abroGtc the right "f suipension or termindiion aliogether This honourable
Court hïs rcgïrded the position as obvious. w itwould be .Iu,ork of supercro-
-ation to sav anvthinn more about it.
In this case ihere 7s a passage in the separate opinion of Judge Dillard
(I.C.J. Reports 1971, p. 168),which 1think has a direct bearing on what 1have
iust read.-~his oassaee sums uv. if 1 mav .av .a. heautifullv. the lenal orin-
ciple, and how it ca&ot possibl; be otherwise. 1t is not possible to conceive
of a law where the consent of the wrongdoer is required before you can sus-
pend or terminate. At page 168,this is what the learned Judge says:
"Law and what is legally permitted may be determined hy what a
court decides, but they are not only what a court decides. Law 'goes on'
every day without adjudication of any kind. In answer to a question put
by a judge in the oral proceedings, Counsel for the United States, in a
written reply ... declared:
'The fact that in the internationalas oovosed to a munici~al legai
system the other party cannot he assuredo-f bringing a case involvrng
material breach before an international tribunal except where both
oarties have accevted the comuulsorv iurisdiction of an international
iribunal is a problem relating io theéfficacy of international law and
institutions generally and not especially ta the problem of the material
breach doctrine.'
It is part of the weakness of the international legal order that com-
pulsory jurisdiction to decide legal issues is not part of the system. To
say thk 'snot tu [this in\ihaiIam relying on] that deciiions rakcn hy
States in conformity uith thcir good faith underiianding of what
international law either requires or permits are outside a legal frame of
reference even if another State abjects and despite the absence of
adjudication."
What the learned judge points out is, that where a State in ils bona fide
understanding of principles of international law makes a decision, it may be
that another State will abject to it, it may he that there is no third-party
adjudication, but it does not mean that what it has done is illegal. There are
millions of commercial contracts entered into in the world every year. of
which innumerahle contracts are terminated hy one party on the ground of
breach by another-unilateral decision, no third-party adjudication, no
arhitration, no court. 1s it suggested that al1 these businessmen are acting
illegally? This example of the simple contract is very important. ln fact, thewhole basis of this right of suspension or termination is analogous to the
civil law of contract. It iswell settled that a contract can he terminated by one
party when there is a material breach by the other party, and the same prin-
ciple applies to an international treaty, and, as the learned Judge says, the
"law 'aoes on'" without the reauirement of an adiudication every minute. All
business would come to a standstiil if you did nht give this elementary right
to a party to terminate a contract on the ground of material breach by the
other.
Now the point Pakistan is urging-Pakistan's assertion is very categorical
and very clear-is that you must exercise your right of suspension in oneof
two ways, and there is no third way: (1) you consult me, and if 1agree, you
can suspend; (2) you go to an international forum, mayhe an arbitration,
mayhe a court, maybe a council, and when it decides that you are right, then
alone you can susoend. This way the rieht under international law iseither
abrogafed alcogether, or if is denuded oJits very basic ufility, because there
are emergent situations which need to be dealt with. If 1 am asked to wait
until somecourt decides the matter. the very mischief which 1seek to orevent
would he done. If there is no compulsory arbitration that is the infirmity of
international jurisprudence, it has nothing todo with the rights of sovereign
States.
Further, if Pakistan's contention 1sright, the Vienna Conveniion will have
to be rewritten. because it siys tod~y exactly the oppo~ite of what Paki\tan is
savina. What Pakistan is advancina as a nrooosition of law is unheard of in
inierrÏationa1 jurisprudence. The cincent of the wrong-doer and the neccssity
of having a rhird-party settlement heforc you can suspend, are things unknoirn
to practices of nations, text-books on international law, decided cases and
i~ ~~ ~ ~o~ ~ ~~ ~ ~ ~ ~ ~
Look nt Articles 60.65 and 66 of thc Vicnna Con\ention in the contexr of
whal Pakistan has put forward a? its ples in paragraphs 38 and 41 of the
Counter-Memorinl, u,hich 1have jus1 read. Article 60 of the Vicnna Convcn-
lion, u,hich confers the right Io suspend or terminate a treaty is, as this
honourable Court has said. 3 codification of an existina-rule of international
law. Article 65is to be readwith Article 60. It says:
"1. A party which, under the provisions of the present Convention,
invokes either a defect in its consent to be bound by a treaty or a ground
for imoeachinn the validity of a treatv. terminatinn it. withdrawin~ from
it or s"spendiig its operaiion, must notify the otherparties of its-claim
[the obligation is to notify]. The notification shall indicate the measure
proposed to be taken with respect to the treaty andthe reasons therefor.
2. If, after the expiry of a period which, except in cases of special
urgency, shall not he less than three months after the receipt of the
notification, no party has raised any objection, the party making the
notification may carry out in the manner provided in article 67 the
measure which it has proposed.
3. If, however, objection has been raised hy any other party, the
parties shall seek a solution through the means indicated in Article 33
of the Charter of the United Nations."
The rest is not relevant.
Now 1would like to make a few comments on Article 65. First, the require-
ment ofeivine notice to the other oar. .and waitine for three months. exceot
in cases Ofs&cial urgency, is not a requirement fint ter natio law alxisting
today. This particular provision is a super-imposition, which eminent jurists, AROUMENI OF MR. PALKHIVALA 539
in the interests of international peace and international undentanding and
goodwill, have sought to introduce now as a rule of law to be embodied in the
Convention.
So this requiremeot of notification is not a requirement 1 have to adhere
to, because firstly, 1am not a party to the Vienna Convention, and secondly,
the Convention has not yet come into operation. In fact it is not even sug-
-este~ b~.Pakistan that it is bindina-on me. so 1 will not take un . . more
time on that point.
The second point about Article 65 is that it requires no notification in
cases of specialurgency. The Stïtc which suspends the treüty hüs to decide-
needless to say, in good faith-a* to whether itis a case of specinl urgency or
not.
The third thing about Article 65 is that IIdoes no1 provide for third-party
seitlemcnt. It only rays that you try to follou, the procedure of Article 33 of
the Charter. Now Article 33 of the Charter. which the honournble Court is
familiar with, says that you shall seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements. or other veaceful means. This again is a reanire-
ment which is soight to be superimposed by Article 65. ~ndia'srights inder
international law have no such superimposition attached to them.
This is made even clearer when you go to Article 66. It draws a distinction
between cases where compulsory adjudication by this honourable Court is
provided for and cases where compulsory adjudication by this Court is not
provided for, and suspension is a case where compulsory adjudication, even
by this honourable Court, is not provided for in Article 66. May 1 read
Article 66:
"If, under paragraph 3 of article 65, no solution has been reached
within a period of 12 months following the date on which the objection
was raised, the following procedures shall be followed:
(a) any one of the parties to a dispute concerning the application or the
interpretation of article 53 or 64 may, by a written application,
submit it to the International Court of Justice for a decision unless
the parties by common consent agree to submit the dispute to
arbitration;"
In the absence of arbitration, this honourable Court has jurisdiction in
cases where Articles 53 and 64 apply, and it is a jurisdiction conferred by
consent; it is a case of compulsory third-party settlement. What are those
Articles? Those are Articles which deal with peremptory norms of general
international law, called juscogens. Articles 53 and 64 deal with those cases
where a peremptory norm of general international law is violated by a
treaty. If the norm existed at the time when the treaty was entered into,
Article 53 applies. Article 64 deals with the complementary case where the
peremptory norm of international law comes into existence after the treaty
has been entered into. Article 53:
"A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law."
Article 64:
"If a new peremptory norm of general international law emerges,
anv existin- treatv which is in conflict with that norm becomes void and
terminates." It is only in these cases that, under Article 66, there is compulsory third-
party settlement at the hands of this honourable Court. Now turn to clause
(b) of Article 66, which applies in my case:
"(b) any oneof the parties to a dispute conceming the application or
the interpretation of any of the other articles in Part V ... [the other
article in Part Vis Article 60 under which you suspend or terminatel. ..
may set in motion the procedure specified in the Annex to the Conven-
tion by suhmitting a request to that effect ta the Secretary-General of the
United Nations."
The Annex deal; with the Conciliation Commission which bas not yet been
established. Clause 1 says: "1. A list of conciliators consisting of qualified
jurists shall be drawn up and maintained hy the Secretary-General of the
United Nations."
Atid then Clause ? says rhat thcre will befour conciliators üppninrcd, Iwo by
one party. tu,o by the other. The next sentence sayi thu: "The four concilia-
tors shall . .. an~oint a firth conciliaior chosen fruni the liit. who shall be
chairman." ~ll'ihese conciliators are to be from the list of qualified jurists
maintained by the Secretary-General of the United Nations and this body will
be called the Conciliation Commission. Clauses 6 and 7 of this Annex deal
with the functions and powers of the ConciliationCommission:
"6~ T~e Commissio~ - - ~~~ ~ort within twelve months of its consti-
tution. Its report shall be deiosited with the Secretary-General and
transmitted to the oarties to the dispute. The report of the Commission,
includinr!anv conciusions stated therein renardino the facts or auestions
of law, shalfnit be hinding upon the parces and it shall have no other
character than that of recommendations submitted for the consideration
of the parties in order to facilitate an amicable settlement of the dispute."
The point 1 am urging is this. Even under the Vienna Convention, which
has superimposed restrictions on the right of a sovereign State under inter-
national law to susoend or terminate a treaty, there is no compulsory third-
party settlement. ~hat is 6rovided for is onlytlilit you go before the Concilia-
tion Commission, whose recommendïtions are not binding on you and they
can only make recommendations; and even those Conciliation Commission
Members are qualifiedjurists.
The Court adjourned from 11.20 a.m. fo 11.50a.m.
1 havejust read to the Court Article 66 and the Annex of the Vienna Con-
vention and 1was pointing out that the most significant feature of Article 66
is that whereas in other cases the nations agreed ta compulsory third-party
settlement at the hands of this Court, the nations did oot agree to this third-
party settlement, even at the hands of this Couit, in cases where they exercise
their right of suspension or termination of a treaty, which is a right founded
on international law.
For yem the most eminent iurists of the world strueded, and struggled
hard, to brine about some degree ofharmony bctu,een narrons, some of whom
wanted compulsory adjudication and others did not. Ultimately, but for the
via media of the formula ~\~olvedin Article 66 and the Annex. there would
have been no Vienna Convention at all.
Please turn to the United Nations Conference on the Law of Treaties, first
session, March-May 1968, page 356, paragraph 38. ARGUMENT OF MR. PALKHtVALA 541
Judge Jiménezde Aréchaga, the leader of the Uruguayan delegation as he
then was, points out how from the point of view of his State, there would be
problems, even if, where you have no third-party adjudication or compulsory
settlement, you provide for the giving of the notice or notification, as in
Article 65. This is what is said on hehalf of Uruguay in paragraph 38, at page
356:
"A State which alleted a hreach of a treatv bv other States would
normally do so in good faith; it would really be the victim of a breach
of the treaty by another party. Ifcould not, however, immediately cease
to aonlv the treatv: it would have to initiate the orocedure laid down in
articlé 62 [whichCbrresponds to our present hiicle 651 and await the
result before being relieved of its obligations."
Then Judge Jimenez de Arechaga requests the Commission to deal with this
point and see that injustice is not caused.
By using the words "except in case of urgency", the Commission has taken
care of urgent or ernergency situations where you can suspend even without
notice to the other party.
May 1 draw the honourable Court's attention to the United Nations
Conference on the Law of Treaties, Second Session, April-May 1969, page
256, paragraphs 15 and 16:
"15. MI. DE CASTRO (Spain) said that the results achieved at the
first session had been most encouraging and it would indeed be unfortu-
nate if the Conference now failed to adopt a convention on the law of
treaties. [In fact the Convention was on the verge of not being agreed
upon at al1and the learned Judge says it would be a pity if we are not
going to have some agreed solution.] At the first session, a number of
deleaations had obiected to Part V of the draft on the mound that. in
their~vieu. its adosion u,ould upset the \tabiiity of treilÏy relalionh. On
the oiher hand, a1 le:ist one irnp~~rtantdelegation had indicated that it
could not suoDort the convention unless ~rovision was made for the
cumpulsory ;éttlement JI disputes ahoutthe validity of international
treîties. The two-thirds majority required for ~duptitin of the convention
mi-ht not be secured unless some formula which met those two ooints
of vieiv.were tncluded in the convention Thuse were the con~iderdtion\
which hdd prompted the Spanish delsgation to wbmit ils own proposal
for a new article 62. .. Icorresoondina to the present Article 651.
16. Agreement on a Gocedure for the settlement of disputes iikely to
satisfy a rnajority of States would he difficult to achieve, since [mark the
words] States werenaturallv reluctant to suhmit to an international body
matters of vital concern to-them, particularly if they were not convinced
that the international body concerned would act impartially in settling
disputes. Moreover, care would have to be taken to separate purely legal
disputes from essentially political controversies."
It is inconceivable that nations consented to give to numerous small
administrative bodies the jurisdiction which they decided not to give even to
the International Court of Justice in the Vienna Convention, namely com-
pulsory jurisdiction to deal with disputes relating to the exercise by a sover-
eign State of its right to suspend or terminate a treaty.
1 submit that this is a very significant aspect. You have cle'arevidence of
years and years of discussions and debate, negotiations, attempts to reach
undentanding between States, on the question whether the International542 ICAO COUNCIL
Court of Justice should be given the jurisdiction,.asa matter of compulsory
third-party settlement, to deal with cases where disputes arise when one
State exercises its right to suspend or terminate a treaty on account of mate-
rial hreach hy another Party.
Ultimately the States did not want even that. So, in the Vienna Convention
tbere is no such provision. and inthe case of a breach bv one State the other
State has a right io suspend or terminatc the treaty withoht going through any
rhird-pdny settlemcnt procedure. 1 ask again, is it conccivablc that the same
nations. which foueht so vehementlv to Drotect their sovere- - riehts and not
permit conipulsor; third-party set;lemént 10 be imposed upon rhemselves,
would agree to go to the small ddminislrdtive bodics and let them deal with
the disputes? Does it make any sense in the background of the Vienna Con-
vention deliberations, which went on for years and years? 1find it inconceiv-
able-unless the nations are split personalities or they entered into aii these
treaties comoletelv ienorant of what thev were dealine-with. which is not a
presumptionto &made against nations.
It is not the question of the ICAO Council only. There must he scores of
treaties. bilateral and multilateral. where administrative bodies like the
ICAO ~ouncil are givenjurisdiction to deal with disputes pertaining to inter-
pretation or application. This point, 1 submit, is of the greatest significance
when the Court comes to consider what reallv did the-nations consent to
when they gave their consent to submit to the limited jurisdiction of the
ICAO Council?
May 1 refer you to the book on TheLaw of Treaties by Rosenne, 1970
edition, pages 77 to 87. One paragraph, which begins at the foot of page 77
and is continued on page 78:
"That problem-the problem of third partv determination of treatv-
law dispuies-had dogged the codiliîition\r,ork of the Internationalab
Commission and in fact its exiitencr. and hesitation in facing up to it,
was. as we have seen. one of the factors which held uo Dromess on the
lawof treaties befori 1962.Two of the previous ~~ecial Rapporteurs,
Sir Hersch Lauterpacht and Sir Gerald Fitzmaurice, had firmly proposed
hrinnina the whole matter within the comoulsorv iurisdiction of the
~nte&aï!onal Court of Justice asan instance of las; résort. coupled n,ith
presumprions unfavourable to the claimant State ifit dcclined to submit
a concrete case to adiudication. Sir Humo.rev .as more euarded. but
nevertheless in 1963Partly retained this element of judicial settlekent
as the final resort. The International Law Commission refused to go so
far and left matters at the comoromise. which now aooears in article 65
of the Vienna Convention, in.this respect virtuall; 'unchanged. That
compromise ishased on Article 33 of the Charter of the United Nations,
although it goes beyond it in one respect at least. Strictly speaking, that
provision only applies to disputes of a relatively grave nature to which
Chapter VI of the Charter itself refers; under article 65 of the Vienna
Convention, however. this is extended to al1 disputes relatine to the
invalidity or termination of tre~ties, whether or nbt that dispuÏe is one
which endangers international peïce and security."
In the book by B. P. Sinha, entitled Unilateral Denunciarion of Treaty
becauseofprior ViolationsofObligations by OtherParty. one relevant passage
is at page 206:
"It is well established in international law that a violation of a treaty,
irrespective of its effects, does not ipso facto operate to annul the obliga- ARGUMENT OF MR. PALKHlVALA 543
tions either of the innocent party or of the defaulting party. It merely
endows an innocent party with certain alternatives or rights of action.
An innocent party may choose to opt ta regard a violated treaty as
subsisting and thus condone or ignore breaches of obligations by other
party or parties. It may decide to do no more than to lodge a diplomatic
protest with the guilty party. It may seek the remedy of specific perfor-
mance or it may demand reparations in adequate form for damages
caused hy violations, or both. It may simultaneously make a diplomatic
protest and seek the remedies of specific performance and indemnity.
It may choose to resort to unilateral suspension of a part or whole of its
obligations under a violated treaty or, under certain valid conditions,
it may resort to unilateral denunciation."
Now this paragraph points out what are the alternatives open to the
aggrieved State. Pakistan says 1 should have gone to third-party settlement,
1should have nezotiated. Well. these arenot obligato.y co~rses ofaction. The
choice is mine, Gd if 1 choose ta resort to the alternative of suspending or
terminating the contract, only a forum which is competent to deal with this
dispute can go into the matter on merits, and no-one else.
In the same book (pp. 209, 210) there is aparagraph whichI shouldlike to
read to this honourable Court:
"The concept of sovcreignty continues to frustrate the proicsr uf third
party adjudication of disputes rel.ltiveto tre2ty interprcratiun and appli-
cation. Althoueh it is almost universallv recoanised that these disoutes
are suir~ble fi,; third pari? adjudicaiiin, thefart remains thai under
international law a pÿrty 111a trcaty, in the xbsence of an agreement, has
the riaht to refuse IO submit ro third Dartv adiudic.ition of di$r>iites
resulthg from divergences of opinion- relative- ta interpretation or
application of treaty norms. The admission of such a right is tantamount
tothe recognition of go-it-alone or unilateralism not only in regard to
the determination of the occurrence and nature of a treaty violation but
also in respect of the need and necessity for reprisals. The advent of the
World Court at The Hague and the United Nations has not basically
altered these realities."
It is a sad commentary on the stage we have reached in international
co-operation, but there it is, that nations are still unwilling ta submit ta third-
party settlement when the dispute is as to the exercise of their sovereign
rights, and this basic fact is, in my submission, the most fundamental point
which should determine the Court's approach ta the question as to the scope
of the words "interpretation" and "application".
"Besides, parties to treaties have traditionally been reluctant to seek
or submit to third party adjudicatory processes for the settlement of
disputes pertaining to treaty application. The most usual method for the
settlement of such disputes has been diplomatic negotiations. Although
there are several instances of the exercise of the right of unilateral denun-
ciation, in no instance did a denouncing party seek or receive a prior
authorization or approval from an international judicial authority."
This is very important. There is no recorded instance in the history of
international jurisprudence where, when the sovereign right of a State ta
suspend or terminate a treaty has been exercised, an administrativebody has
dealt with the matter on the ground that it is a matter of interpretation or
appl>lication.544 [CAO COUNCIL
In short, al1nations have aone so far on the basis that they have the riaht to
suspend or terminate withoÜt waiting for third-party settlement first, and as
the learned author says, there are several instances of their exercise of the
right of unilateral denunciation, but no instance where a denouncing party
sought or received a prior authorization or approval from an international
judicial authority.
1 am reading further on page 210:
"The fear of the abuse of the right of unilateral denunciation appears
to be exa--erated. lThis fear that nations would li-.tlv mala fide exercise
this right of suspension and termination appears to be exaggerated.]
There is no denying the fact that this right is liable ta be used as a pretext
by contractantsofinterna agriemnents ta relieve themselves of their
solemnly undertaken obligations. However, the sanction of self-interest
has, as a whole, operated to deter the use of this right in a reckless
manner. There are cases where contracting parties showed disinterest in
violated treaties and thus let them fade away or fall into desuetude. In
some cases complaining parties contemplated or threatened to invoke
this right but preferred to terminate their obligations in accordance with
the termination clauses stipulated in the treaties. Although for more than
one hundred and fifty years the general consensus has been in support
of this ri-ht .150v.arsl-..arties to international a-reements have. on the
wholc, made 3sparing usc of this right. '1few ipectacular instances of the
invocation ur excrcise of this right exist.Riit rhcy ought not to he con-
fused with the normal pattern of behaviour of states in this regard."
When this Court construes the words "interpretation" or "application", 1do
submit it will decide the matter not on the basis that nations will act in bad
faith. There willbe stray cases of dishonest invocation of the right to suspend,
but the Court will deal with the matter on the basis that you must assume
honesty and bona fides on the part of nations. The presumption is of bona
fides, not of mala fides. and that construction will be out uoon the iurisdiction
clause which will be consistent with this presumption. aii ion so not lightly
exercise this right of suspension and termination-as the author says for 150
years this riaht has been recoanized. but it has been verv soarinalv used. The
iimits of théCouncii's jurisdiction cannot change when in a pariicular case
it is alleged by the wrong-doer that the aggrieved party has not acted bona
fide.
If the Coiincil h;ii juri5diction ta déalwith the m.ittcr, itwill dcal u,ith it
in a11cases whcthcr the e.~erciseis bona ndc or ni;il:fidc. If it hiis no juris-
diction 10 deil *,:th this disniireilcannot de31uith itwhcther the exercise of
the right i>bona fidc or nicilclide. In othcr words, the I.niits ol'jiirisdiction do
not depend on the question as io what would bc the ultimarc dectsion on the
facts of a case. because that makes nonsense of the whole basic concept of
jurisdiction. Jurisdictian is at the thrçih<il.i~ithcr you h~vcjiirisdiction ai
the thrcihold oryou havenor; 2nd if the ICA0 Couiicil hdr no jurisdicrion 31
the thréshold ro deal nith questions of su\pen\ion undcr intcrnationül Iüw,
then surely it cannot be itivested with jurisdiction because my opponent
chooses ta say that 1 have not acted bona fide. If the law were difierent, in
every case the wrong-doer can always say: no, the aggrieved party is really not
aggrieved, it is acting mala fide, and therefore every one of the small admin-
istrative bodies will start deciding these questions of suspension under inter-
national law. .
1 am emphasizing this because Pakistan has, curiously enough, confused ARGUMENT OF MR. PALKHIVALA 545
the merits of the dispute with the question of jurisdiction. It has started with
the premise that on merits India is wrong, and then wants to draw the con-
clusion that the Council has jurisdiction to deal with it.Itis really reversing
the process of rational thought.
On page 210, in MI. Sinha's book, may 1 read the last paragraph:
"The concept of unilateral denunciation is essentially analogous Io
oneofthegeneralprinciplesoflaw of contract of most civilised states that
an innocent party has the right to be relieved of its obligations hecause
of suhstantial hreaches of obligations on the part of another party. Since
the consent of states is evidenced not only hy specific provisions in
treaties and hy practice on international level but also hy the general
manifestations of leaal consensus or conscience in foro domestico it is
rca,onablc to majntain thnt pri\,ate law analog? in respect of unilateral
denunciiition sign~ticsth31 ihis concept heing in accord with the gencriil
manifestations of the iuridical conscience of humanity ... has the
implied support or approval of states."
May 1also refcr in this conncçrion to the Yearhookujrhr I»rern~~rionalI.uiv
Commi.y.yioir1,966.Volume II. pages 262 iind 263. This Yeurhookof rlfcIffr~r-
noiionul I.uivCommij~ion hm sunirnartzed the diltiiiiliies whi~.hthe Cornmis-
sion faced when dealing ii,iih the qucriion of cornpulaor) judiciiil iertlement.
I may read a feu sentences, in paragr~phç 3and 4 on pages 262 dnd 261:
"ln 1963, some tiiembcrj uf the Conirnission uere sirongly in Fd\,our
of recomnicnding char rhc applicaiion of the present drtiçlc\ shoiild be
made subject tocompulsor~~ judicial settlement by the International
Court of Justice, if the parties did not agree upon another means of
settlement. Other memhers, however, pointed out that the Geneva
Conventions on the Law of the Sea and the two Vienna Conventions
respectively on Diplornatic and on Consular Relations did not provide
for compulsory jurisdiction. While not disputing the value of recourse
to the International Court of Justice as a means of settling disputes
arising under the present articles, these memhers expressed the view
that in the present state of international practice it would not be realistic
for the Commission to put forward this solution of the procedural
problem."
The Law Commission found it unrealistic to suggest Io the States that even
the International Court of Justice should have compulsory jurisdiction;
while Pakistao finds it quite realistic to say that the ICA0 Council should
have such a jurisdiction.
"After giving prolonged consideration ta the question [I am reading
furtherl. the Commission concluded that its appropriate course was, i
first. to-nrovide a nrocedure reauirine a oartv which invoked the nullitv
of the tréaty or a Gound for ter&inatrng jt tonotify [to]the other parties
and give them a proper opportunity ... [of stating] their views [etc.]."
The otheraspect of this passage, which 1wouldalso like toemphasize here, is
that it shows that it is not a part of international law, as alleged hy Pakistan,
that you must have third-party settlement hefore you exercise your right of
suspension, because if that were the law, there would have heen no difficulty
facine the Law Co~mission in codifvine that law.
There is no such ]au, and ihere ha.; ne\,er been iuch a principlc of inter-
national lais. hlever in the htstory of inicrnationnl131vhas II becn a principlcthat before you have a third-party settlement you cannot exercise your right
of suspension. That is proved by the various passages 1 have read, and they
show that Pakistan's submission in law is completely unfounded.
May 1 refer to one interesting passage from Whiteman's Digest of Inter-
national Law, Volume 14, pages 273 and 275. It is true that in Our case we
are dealing with a hijacking incident. Maybe a time will came when nations
will realise that India was right in treating such an incident, not by itself but
in conjunction with the reaction of the wrong-doing State ta such an incident,
as a matter of grave concern, and perhaps the world is already drifting
towards that point of view.
it may be a coincidence, but not without significance, that the hearing of
this case began before this honourahle Court on the day when, for the first
time in world history, the airlines the world over decided not to Ay as a
protest against this word-wide evil.
In Whiteman's Volume 14, they were dealing with a much greater danger
to humanitv than hiahjackina. namelv the danger of nuclear warfare. and the
question w:;s regar~ini the E\;uclea%SI Blinfreaty. 1963.The United State5
\va\ d5ked. "Well you have this rreaty uiih Russia. bu1ruppoic Rurs~awere
to do somethina which would amount to a material breach. would the United
States ask for ai adjudication, settlement, etc., or would iipromptly suspend
and repudiate the treaty?" The United States gave an answer which, as a
matter of orinci~le. amlies eauallv to al1treaties. Although the mavitv of the
situation would'not be the same in the case of other trea-ties, the priiciple is
the same. Page 473 of Whitemon's Digest of International Law, Volume 14:
"Article IV of the Treaty Banning Nuclear Weapon Tests in the
Atmosphere, in Outer Space and Under Water, signed August 5, 1963,
on behalf of the United States, the United Kingdom, and the Union of
Soviet Socialist Republics,...
... Senator Humphrey of Minnesota asked thesecretary thefollowing
ouestion: 'Mr. Secretarv. if the Soviets were to ahrogate the treatv and
were to have an explosion in one of the prohibited e&ironments-let us
Sayin the atmosphere or under water and we knew it-would we have to
wait 90 days hefore we can respond with Our answer either to test or to
leave the obligations of the treaty?
Secretary Rusk replied:
'1t is our view that we would not have to wait 90 days, because the
obligation of the Soviet Union not to test in the prohibited environment
is central to the very purposes and existence of this agreement, and it is
clearly established through precedents of American practice and inter-
national law over many decades that where the essential consideration
in a treaty or agreement fails through violation on the other side that
we ourselves are freed from those limitations'."
He goes on ta Say that he would make available to the Committee a legal
brief on the matter. This legal brief is set out on page 474:
"The question has been raised whether the United States would have
ta give 3 months' notice prior ta witbdrawing if another party conducted
nuclear weapon tests in the atmosphere, or committed someother act in
plain violation of the treaty. The answer is 'no'.
A breach of treaty obligations hy one party is considered in inter-
national law to give other parties the right to terminate their obligations
under the treaty. Article IV is not intended as a reStriction of that right." ARGUMENT OF MR. PALKHIVALA 547
Article IV provided that 90 days' notice would have ta be given for with-
drawal from the treaty, andthe legal note says that Article IV is not intended
to be a restriction on the rightunder international law. 1am emphasizing this
because one of the points of Pakistan is that 1 should have followed the
procedure of denunciation which requires one year's notice. In other words,
if any of the other States commit a breach, 1 must, with the patience of Job,
undergo and endure al1 that isinflicted on me and wait for 12months, that
js the right way to react to a material breach!
"The three original parties recognised that events other than violations
of the treaty might jeopardize a country's 'supreme interests' and
require that country to resume testing in the prohibited environments.
Article IV permits withdrawal, upon 3 months' notice, in this case. If
another oa.ty .iolated the treaty. the United States could treat the
violation as an 'extraordinary eveni' within the meaning of ArticleIV, or
it could withdraw from the treaty immediately."
And then the legal brief quotes certain passages from Lauterpacht's Inter-
national Law:
"In international law, violation of a treaty by one party makes the
treaty voidable at the option of the other parties. 1.Lauterpocht,'Oppen-
heim'sInternational Law' 947 (8th edition 1955); see also Restatement,
Foreign Relations, section 162 ... [this is the important passage].
Whether there has been a violation, and whether it is serious enough to
. justify termination is for each party, acting in good faith, to decide."
It is not the wrong-doer who decides whether the breach is material or not,
it is the aggrieved party which decides in good faith whether the breach is
material or not. So Pakistan's opinion as to its own conduct is irrelevant.
What is relevant is India's opinion as to the seriousness of Pakistan's conduct
following upon the highjacking incident. All that the law requires is that you
must act in good faith, and there is no circumstance whatever to suggest
that India has not acted in good faith.
1 have finished with Pakistan's plea in their Counter-Memorial that there
should be a third-party settlement procedure followed before India could
exercise the right of suspension. May 1 go back to that Counter-Memorial
and deal with the other ooint that India cannot be a judge in its own cause.
This matter can be disposed of very briefly. lt is wrong tosay that India was
acting as a judge. lndia made an administrative decision, not a judicial
decision.
When a country suspends or terminates a treaty because of material
breach by another State, it is not acting as a judge, it is discharging no
judicial function. The well-known maxim that a man cannot be a judge in
h~ ~ ~ ~cau~~~~-~ ~t oos.iblv a. .. .It makes an administrative decision. If
Pakistan is right here. thcn the right olsuspcn5ion and termination an never
be exercised. You citn never exercisc il wiihout first going to compulsory
jurisdiction procedure and hïving itthird pdrty to decide whether you are
entitled to suspend or not. Isthat the rule of international Iaw? 1have cired
authorities which cledrly negativc this view, and I am no1 au,are of any case.
any text-book or any practice supporting the view that a nation has no right
as a sovereign State to judge for itself whether the conduct of another State
amounts to a material breach or not.
So to invoke the doctrine nemojudex in re sua, a man cannot be ajudge in
his own cause, is really to abrogate this right under international law to take548 ICAO COUNCIL
administrative action u,ithout waiting for third-party settlement or third-
Party adjudication. That finishes the objections raised by Pakistan in para-
praphs 38 and 41 on panes 383 and 3R4, JIIP~Ooflheir Counter-Memorial.
- I~come to the next objection, which is-at page 384. supra, of Pakistan's
Counter-Memorial. paragraph 39:
"Article 95 of the Convention, and Article Iil of the Transit Agrèe
ment, expressly provide the procedure for denunciation and the method
by which a narty may withdraw therefrom. India cannot thus unilate-
rally denounce, ierminate or suspend the Convention and the Transit
Agreement save in conformity with the provisions of the aforementioned
agreements."
This noint of Pakistan rests on theassum~tion that the rie-t e-~e.-~ .~ndia
is circumscribed and limited by Article 95 Ofthe Convention and Article III
of the Transit Agreement, and India has no right of suspension outside those
Articles. Apart from the fact that this proposition, with respect to Pakistan,
is unstateable, the real point is that, even assuming Pakistan were right, this
question can only be decided by a comnetent forum which has the rirht to go
in10 the merits and validity of the suspension. If rhere is a competent forum
which ha$ the jurisdiction ro go into the t,ïlidity of suspension, of the justifi-
cation for the susnension, Pakistan an argue a11thiit before thar forum. but
today we are on ihe limited point whethër the ICAO Council has theGris-
diction to deal with it. On the point whether the ICAO Council has juris-
diction. is it at al1relevant whether 1 exercise my right validly or invalidly,
justifiably or unjustifiably? Al1these are questions which go to the merits of
the dispute, not to the question of the jurisdiction of the ICAO Council. So
al1this is irrelevant. Apart from its being irrelevant. ma..1 point out how it
will not bear scrutiny.Article 95 of thëconvention at page 325, supra, of
India's Memorial, reads thus:
''(a) Any contracting State may give notice of denunciation of this
Convention three years after its coming into effect by notification
addressed to the Govemment of the United States of America, which
shall at once inform each of the contracting States.
(b) Denunciation shall take effect one year from the date of the
receipt of the notification and shall operate only as regards the State
effecting the denunciation."
Now there are four answers to this point urged by Pakistan.
The first is that the concept of denunciation embodied in Article 95 is
wholly difierent from the concept of suspension. This Article does not deal
with the right of suspension at au. It has no concern with the doctrine of
material breach. What 1am invoking is the right to suspend or terminate on
account of material breach by the other party. By contrast this Article deals
with acase where there may be no breach at al], material or immaterial, but
a nation says "1 am sick and tired of ICAO, kindly let me get out. 1 do not
allege anv breach aaainst anvbodv. 1 iust do not want to continue in~ ~ ~ ~ ~
0rGnizîiion." lt wil then incoke ~rriile 95.
The second point is thnt denunciation under Article 95 mems complete
u,ithdrnwal of the State denouncing, from the Convention. In other words,
denunciation is iigsinst al1other parties IO the Convention. That is why it is
said that the United States of Amcrica "shall al once inform each of the
contracting States". It applies where 1 want to get out of the Organization
and cease to be a party to the Convention. The Article from itsvery nature ARGUMENT OF MR. PALKHIVALA 549
can have no application when 1want to suspend or terminate the treaty, not
as against al1 the other contracting States, but only as against a particular
State which is the wrongdoer.
The third point is the time-factor-the two cumulative time-limits men-
tioned here. First, no right of denunciation for three years. What happens if
there is a material hreach during the period of three years? Supposing in the
very first year of the operation of the treaty there is a material breach hy one
State. do 1 wait for three vears before exercisine mv right as a sovereign
tat te ?he other time-facto; is that the notice must lie O? one year. ~ndto
this one-year requirement there is no exception-no emergency, no urgency,
no impending disaster is put here as an exception to the one-year period of the
notice. Surely this Article cannot deal with cases of material breach requiring
prompt action.
Fourthly, and lastly, if the whole Convention is silent on the question of
suspension or termination for material breach and it only deals with denun-
ciation which is a different concept, as held in paragraph 96 of the Advisory
Ovinion of this honourable Court in the Namibia case. the silence of the
treaty does not negative or exclude the existence of such aright.
1read nowparagraph 40 of that Counter-Memorial:
"The Respondent contends that the allegations of the Government of
India in relation ta the hijacking incident, quite apart from the fact that
these are false, do not relate to the breach of the Convention or the
Transit ~greement, let alone any 'material breach' thereof. No question
therefore arises regarding the suspension of the Convention or Transit
Agreement on the grounds of 'material breach'. It is not oDento India to
a;bitrarily suspendthe operation of these agreements onthe basis of a
hare and unjustified assertion which, in reality, has no bearing on the
obligations under the Convention and the Transit Agreement. In
the events that have happened it is clear that India has not acted in
good faith."
1cannot conceive of an independent mind saying that "it is clear that India
has not acted in good faith". You may say that lndia has taken a wrong view
of what is its right under international law. 1 would be able to satisfy the
appropriate forum that it is the right view. But the allegation of mala fides is
wholly groundless.
To athibute lack of good faith to your opponent is easy. But the point at
issue again is this:I am not shirking this question of good faith, 1 shall deal
with the auestion of the ci~cumstances in which India act~ ~ ~ ~~ ~~iustifica-
tion lndiahad for its action. 1 shall deal with that later, unless the court asks
me not to deal with it. But although 1 vrovose to deal with it later, at the
outset 1 want to sav two thines ..out thisoarti.ular-~~~~~.~ ~ ~First. like vara-
gr3ph 39, pardgrïph 40 alio sulkrs ïroni the infirmiiy of mixing iip the nieritc
of the dispute with the ICA0 Coiincil'sjuri\dictii,n. The uholc appe~l bcfore
ihis Coiirt is on the ouejtion of the Council's i*iri~ ~c~ion. not the nierits of
the case. Pakistan, ail the time, mixes up the questionof jurisdiction with
merits. If Pakistan is able to substantiate its assertion that there was no
material breach on its part, a court of competent jurisdiction-if there is such
a court before whom the parties go-will decide in Pakistan's favour. But
what hearing has this assertion on the question ofthe limits of the ICA0
Council's jurisdiction? This is my first answer.
My second answer to paragraph 40 is that, as 1 have already pointed out
by reading the relevant passages, it is for the aggrieved State to decide, notfor the wrongdoing State, as to whether there has been a material hreach.
Now Pakistan's decidina this matter in its own favour is irrelevant. It is lndia
which has taken actionvit is India u,hich ha to decide according to its lighrs
as ro u,hcthcr the conduct of Pakistan amounted tu a niarcrial hreach and
India has decidcd this on thc corrcn understandina and application of inter-
national -~~.~ -
Thirdly, if Pakistan alleges that India cannot decide for itself whether there
has been a material breach. can it be suggzsted that Pakistan can decide this
question for itself? If neither India nor Pàkistan can decide for itself whether
there has been a material breach, does ic therefore follow that the ICAO
Council has iurisdiction to decide this auestion?
When y,>; çome to paragraph 40 and the other paragraphs, WC are miles
away from rhc real issue arising in rhis apeiil, the rcal issue heing norjusrifica-
lion for India's condiict. not the mcrits of the case. hut the limits ofthe ICAO
Council's jurisdiction.My submission is that ap&t from the fact that India
has acted in absolute good faith and there has been a material breach on the
part of Pakistan. this ~articular olea of Pakistan is whollv irrelevant to the
question arising in this appeal. Afier I have tinished the lcral argument. 1
shall 30 to the facis and show whst I1aki;ran's condrict has been in rhis case.
In ;aramaph 41 two other points are made hv Pakistan. One is that the
~dvi'ory Opinion of the permanent Court of international Justice in the
Treafy ofLausannecase applies here. 1 have gone through that case and I will
not troublethe Court bv Kadina it. The case has no relevance to what vou are
to consider. In rhat ci16 the pznt uns iihethcr the conccpt of unrinimiry of
opinion u3s s2tisfied when the Siate a.h~ch!vasinterested in the dispute itself
votcd ügainst the majority vie\\,. What the Court said is thït when a treaty
rcfers to unanimity of opinion. itmeans unanimity of opinion excluding the
intcrested Statcs. Thc rclc\,ünt püssage is in P.C.I.J., SeB.eA'o.12and 1am
reading the Advisory Opinion at pages 32 and 33:
"The votes of the representatives of the Parties are not, therefore, to
he taken into account in ascertaining whether there is unanimity, but the
representatives will take part in the vote, for they form part of the
Council and. like the other reoresentatives. thev are entitled and are in
duty hound to take part in thédeliberalions ofthat body. The terms of
paragraphs 6 and 7 of Article 15 of the Covenant and of the new clause
to he inserted in Article 16,clearly show that in the cases therein contem-
plated the representatives of the Parties may take part in the voting and
that is only for the purpose of determining whether unanimous agree-
ment has heen reached that their votes are not counted ..."
Then Pakistan cites a passage from the Law Commission's Commentary
which says that in Article 60 of the Vienna Convention the right to suspend
or terminate-
"... is not a right arhitrarily to pronounce the treaty terminated. If
the other parry contesrs the breach or its character 3s'material hreach'.
there \vil1be a 'dificrencc'bctwccn the parties with regard to which the
normal obligations incumbent upon the parties undcr UN Charter and
under general international law to seek a solution.. .will apply".
Now that means that under Article 33 of the United Nations Charter we
have to follow the procedure. But how does that give jurisdiction to the
ICAO Council? It is difficult to see what is the relevance of this quotation.
The Court roseut 1p.m. ARGUMENT OF MU. PALKHIVALA
THIRD PUBLIC SITTING (21 VI 72,11.15 am.)
Present: [SeeSitting 19VI 72, Judge Lachs absent.]
Le VICE-PRÉSIDENT, faisant fonction de Président: Le conseil de I'ïnde
a indiqua à I'audience d'hier qu'il examinerait les circonstances dans les-
quelles l'Inde a agi après le détournement de l'avion et la manière dont elle
oeut iustifier son action. Le conseil de l'Inde a aiouté: «Je traiterai de cela
plus krd i moins que la Cour me demande de nëpas en parler».
Apre? en avoir délibéré ,3Cour a décidéque peuvcnt etre exposé,les seuls
faits oertinents nour la solution de la auestion de como6tence et qu'ils doivent
en to.ut cds étrc traités brii-vement. Nous allons donc reprendre maintenant
l'audience et j'annonce qu'il n'y aura pas de suspension Çrant donne que la
séancea été ouverteun peu tard.
Mr. PALKHIVALA: Mav it olease the honourable Court. Yesterday 1 had
been replying to ~akistan's-vaiious points dealing with the question as to
whether the ICAO Council had jurisdiction to deal with the matter on the
ground that the words "interoretation" and "aoolication" are wide enouah
;O cover "suspension", and, according to ~akistan, further, the suspension
effected by India was illegal and unjustified.
1 had finished the ooint dealt with in Pakistan's Counter-Memorial in
paragraph 41.
May 1 say a few words about the remaining points made by Pakistan on
the same issue.
The next point, made by Pakistîn in paragraph 42 of ils Counter-Memo-
rial, is that India could not suspend the agreements but should have pursued
its reniedv before the ICAO Council under the Convention and the Transit
~greemeits. 1 submit this is patently erroneous because the well-settled
international law is that these various remedies available to the aggrieved
State are alternative remedies and it is ooen to the State to make its own
choice. If India made the choice, as in faci it did, of suspending the treaties,
it is not to the ooint to say that another-remedy, another mode of redress,
was open to ïncfia.
The next point made by Pakistan is in paragraph 43 of the Counter-
Memorial. Pakistan says that India must be treated as having forfeited, so to
speak, its right to suspend the treaties because after the hijacking incident it
sent a letter dated 4 February 1971 to the ICAO Council and the letter
contains this paragraph:
"The Government of India would like to reiterate its declared policy
of condemning and curbing acts of unlawful seizure of aircraft and
unlawful interference with civil aviation. It deplores the detention of
nasseneers and crew members in Pakistan for a neriod of two davs and
ihe dekction of the hijacked aircraft. This is contrary to the principles
of the Chicago Convention and other international conventions, Article
11 o~ the~ ~ ~en~ion~on ~ffences and Certain Other Actscommitted on
Board Aircrafl, signed at Tokyo on 14September 1963, Article 9 of the
Convention for the Suooression of Unlawful Seizure of Aircraft adopted
at The Hague on 16thl)ecember 1970."
Pakistan's plea is that because India wrote this letter to the ICAO Council552 ICAO COUNCLL
it means that, having regard to the principle which is set out in Article 45 of
the Vienna Convention, India could no longer invoke the material breach by
Pakistan as a eround for susnendinz the treatv. What we have done in this
iaragraph is nit to invoke thk ICA^ ~ounci<s jurisdiction to deal with the
disnute. We have not done that at all. We have merely reported to the ICAO
~. . .~-~~ certain incident which was contrarv to the s&it and the letter of
variousinternational treaties and 1 submit it is impossible to say that this
letter amounts to acauiescing in the jurisdiction of the ICA0 Council.
-~~. ~-~~ ~ ~ ~~ ~~ ~ica-~Co~vention is referred to. but so are the treaties
signed at Tokyo and at The Hague in 1963 and 1970;respectively. To these
two treaties-the Tokyo andThe Hague Treaties-neither India nor Pakistan
is a party, The very fact, therefore,-that we have invoked those two other
treaties-the Tokyo andThe Hague Treaties-shows that the treaties referred
to in the letter are not the treaties which India regards as being in force
between hdia and Pakistan. The treaties referred to here are those which
have a bearing on safety of international aviation; and the Chicago Conven-
tion is referred to here in that context as heing . treaty which has a bearing
on the s~feiyof international aviation.
The ICAO Council 1s.so to speak, the kecper of the u,orlJ's conscience, io
far a5 stfetv of international aviation 1sconcerned. Ir is ro the Council in that
capacity, that this communication is addressed.
Finally, putting the case at the highest in favour of Pakistan, it would only
mean that there is a point which Pakistan may argue on the merits of suspen-
sion, but it has no bearing on the question of theICAO Council's jurisdiction
to go into the merits of suspension.
The final point, which perhaps may be rightly described as a desperate
point, is the one contained in paragraph 44 of Pakistan's Counter-Memorial.
It is that by lodging an appeal to this Court India has acquiesced in the
continuation of the treaties between india and Pakistan. The simple answer
to that point is that India is still a party to the Convention and the Transit
Agreement and it honours these two treaties and treÿts them as in operation
vis-à-vis the other contracting States, other than Pakistan. If the ICAO
Council gives a wrong judgment, if it assumes jurisdiction which it does
not possess under the treaties, surely by India filing an appeal which is pro-
vided for bv the treaties themselves. it cannot be said that India acauiesced
in the continued operation of the treaties vis-à-vis Pakistan. If ~akistan were
right, the result can only be descrihed as ahsurd: India must accept theICAO
~ouncil's decision and not take the matter in appeal; or alternatively it can
go to this Court but merely to suffer dismissal of the appeal on the ground
that it has acquiesced in the operation of the treaties vis-&-visPakistan.
After that, Pakistan, in paragraph 45, tries ta explain away the Namibia
case on the ground that that case dealt with only that situation -where a
certain authority, like the United Nations. has supervisory powers over a
State, like the South Africa State, and this decision would have no bearing
here since India does not possess supervisory powers nver Pakistan.
The passages 1 have read from the Namibia Opinion leave no doubt that
these two points-first the point of the right under international law to
suspend or terminate a treaty on the ground of material breach, and the
second point that the United Nations had supervisory powers over South
Africa are seoarate and distinct. 1thinkit would be an injustice to the learned
judges-wh6 have written their very clear opinions-to say that they have
not observed the distinction between the two. Everyjudge who has dealt with
the matter in his opinion, either dissenting or'concurring, has borne in mind ARGUMENT OF MR. PALKHIVALA 553
the distinction between these two arguments. which are seoarate and distinct.
In the Advisory Opinion of the ~iurt, pü;agraphs 94 afid 95 deül with the
question of the right of suspension and ternunation on the ground of material
breach. Paraurdohs 102 and 103 deül \rith the other auestion. namclv the
supervisory fGnciions and powers of the United ~ationsover Sokh frica a.
Further, the two points were kept separate and distinct, both in oral
pleadings andin the written pleadings.
In the oral statement of the Secretary-General of the United Nations,
which is to be found in Volume II of the Pleadings, Oral Arguments, Docu-
ments of the Namibia case, at pages 53 and 58, it will be found that the
representative of the United Nations treats these two points as separdte and
distinct.
Sir Gerald Fitzmaurice put a question which is the fourth question in the
same Volume Ilof the Pleadings, al page 63, and the learned Judge's question
iSthis:
"Assembly resolution 2145 appears to be based upon, andto embody,
what is in effect ajudgment of law, namely that fundamental breacbes of
the Mandate for South West Africa have occurred. leeallv iustifvine its
revocdtion or termination. 1.; it the ~ecretary-Gei;er;;l's >;ew rhat-the
Assembly has the powcr to miike legal determinations of this kind-ihat
is ofï kind ihat wo~ld normallv füll within the orovincc of ü court of
law, such as this Court? Ifso,-where, in his vGw, would the line of
distinction come between the judicial functions of the Assemhly, if it
had such functions, and those of this Court which is equally a main
organ of the United Nations, and its principal organ?"
The ansuer, itis intercsting to note, of the representative of the United
Nation* deal, vsiih the two points sepacltely, at page 490 of Volumc II.The
power under iniernational Iüw to terniindie on ground of marerial breach is
dealt with in paragraph 59 on page 490, and the second poircr, that isthe
Dower 10 terniinate the Mandate in the excrcise of the United Nation$ suner-
kisory authority is dealt with in paragraph 60:
"ln a second role, that of the supervisory authority of the Mandate
for South West Africa, the General Assembly must clearly have had the
right to make determinations both of fact and of law, as the'ahsence of
such a right would haverendered its authority nugatory."
This is the second rol,. Aoartfrom the iüst one which is.under international
law, as a contracting Party.
And finally, the United States Government in its written pleadings, as well
as in oral areuments before the Court. has keot these two ooints seoarate and
distinct. In Volume II of the ~leadinis, page501, the oral statement by Mr.
Stevenson, on behalf of the United States, iüst deals with the rigbt of susuen-
sion under international law on the ground of material breach and then he
says:
"Now even if the Court were not to accept the argument that termina-
tion of South Africa's rights under the Mandate by the General Assem-
blv was iustified bv the treatv doctrine of material breach. it is mv
g&ernm;nt's view {ha1the CiencriilAssemhly had the right totcrmina<é
South Africa's rights in the General Assembly's capacity as successor to
the League of Nations supervisory responsibility."
So the point made by Pakistan in paragraph 45 is clearly erroneous. Inparagraph 46 Pakistan refers to Judge Hardy Dillard's observations which 1
have already read (I.C.J. Reports 1971, p. 168).Then it refers to Judge Sir
Gerald Fitzmaurice's observations in paragraph 47, which 1 have already
dealt with, and 1have pointed out how the learned judge, if 1read bis opinion
correctly, does not dispute the proposition of international law which 1 have
been advancing earlier. .That finishes the points.made by Pakistan on this
particular issue.
One question which is directly linked with the question ofthe jurisdiction
clause is: what is the riehl canon of interoretation to be avolied to the iuris-
diction clause! In othcr-words. how do iou conrtrue the iv'urds"inreGrera-
tion" or "application". On that pi~inritwould be difiiculi to improve upon
uhat Sir Gerald Fitzmaurice has said in I.C.J. Reporrs 1962. The relevant
passage is at page 473, and I am invoking this principleas the right principlc
io be adopted when ihe question is wheiher any internationdl body has bwn
given compulsoryjurisdiction. The words ofthe learned Judge are:
"Moreover, quite apart from any question of onus of proof,' a duty
lies upon the Court, before it may assumejurisdiction, ta be conclusively
satisfied-satisfied beyond a reasonable doubt-that jurisdiction does
exist. If a reasonable doubt-and still more if a very serious douht, to
put it no higher-is revealed as existinz, then, because of the urinciple of
ionsent as Ïhc indispcnsdble foundarion of international jurisdictio~. the
conclusion would hiive to bc reïchcd rhar jurisdiction is nui cstabli~hed.
In short; the doubt would, accordin~ to the-normal canons for the
interpretation of jurisdictional clauses, have ta be resolved against the
existence of jurisdiction."
The Council, instead of bearing in mind this proposition, acted in exactly
the contrary manner. Many representatives had grave doubts, and the
Council, instead of resolving the doubts agaiust the existence of jurisdiction,
decided that the best thing was to sweep the doubts under the carpet. The
next passage which again lays down the correct principle to be applied to
jurisdiction clauses, particularly when the jurisdiction is compulsory, is a
passage in the British Year Book of InternationalLan,, 1958,Volume XXXIV,
at page 88. This is an article by Judge Sir Gerald Fitzmaurice, where the
learned Judgesays:
"Ta su; up-what is required, if injustice is not ta be done to the one
Party or the other, is neither restricted nor liberal interpretations of
jurisdictional clauses, but strict proof of consent."
"Strict piobf of consent." The matter is not in the realm of semantics, and
the auestion is not of liberal or strict interoretation. The matter has to rest on
this -foundation': strict proof that the parties to the Convention and the
Transit Agreement consented to give ta this administrative body the right to
decide whether the exercise of their ri~ht under international law as sovereim
States to suspend or terminate a tr&ty could be adjudicated upon bi that
body. And in the same-case the learned Judge has, on page 89, the last 12
lines, elahoratedthis point a littlfurther:
"If inference is piled on inference, and reference on reference, then
the connexion between the point of depafture and the point of emer-
gence, though it may tecbnically exist, may be inadequate to support the
inference of true consent. Particularly is this the case where a consent
given, primarily and ostensibly in relation to a given class of case, is held ARGUMENT OF MR. PALKHlVALA 555
by such a process of reference to be applicable to other classes of disputes
which were certainly not in the immediate contemplation of the State
concerned when it gave itsarbitral undertaking." ", i;,
1 submit that it is reasonablv clear that it was not in the contemplation &f
the contracting States when ihey signed the Convention and the pàniit
Agreement ta let this body decide questions of international law and ex'eictse
of sovereign rights.
The next-authority 1 would like to refer to is P.C.I.J., Series A, No. 2;<a&
60. If1 may read just one passage from the opinion of Judge Moore: .,...~
. ,
"The international judicial tribunals so far created have been tribunals
of limited powers. Therefore no presumption in favor of their juris-
diction may be indulged. Their jurisdiction must always affumatively
appear on the face of the ~cord."
If this proposition applies to judicial tribunals, which are created with
limited powers, 1 submit it applies afortiori to administrative bodies like the
ICA0 Council.
The final passage in my support which 1 would like to refer to is thèone
reported in I.C.J. Reports 1950a ,t page8, where the Opinion of this hopo"r-
able Court quotes a passage from an earlier Judgment ofthe Permanent ,.
Court of International Justice: , .,, ;/.
"As the Permanent Court said in the caseconcerning thePolish Posfal
Service,in Danzig (P.C.I.J., Series B. No. II, p. 39):
'It is a cardinal principle of interpretationthat words must be inter-
. preted in the sense which they would normally have in tbeir context,
unless such interpretation would lead to something unreasonable or
absurd.' " .,.;;j-
These are the relevant cases on the point of the right principle of construc-
tion to be applied to a jurisdiction clause. . . .
1 would now like to deal with the cases cited by Pakistan and show how
they do not supportits case. Pakistan has dealt with these cases in its Counter-
Memorial in paragraphs 49 to 55, pages 386-389,supra.
The first case thev bavereferred to is the case of Certain Exoenses of the2
~ ~
U,iirc.dNario~~N s.ow the passüge there \ays: "In the interpretation of a multi-
Interal tresty . . .its particular provisions should reieive a broad and liberal
interoretation." , ,
~hat bring. me to n vcry important point. There isa van diiïerencc betiieen
the rule of con5truction to be applicd tu a jurisdiction clause, of ivhich the
foundstion is strict proof of consent, and the rule ta be applied Io tlic general
provisions of a treaty, which must be the rule which gives enèct tu the inren-
tion of the treaty und makes it uorkablc. In short, rhat the learned Judge is
referring to heréas "hroad and liberal interoretation" is not a orinciole tobe
appliedio a jurisdiction clause.This is the missed in ~akisisn's ~ountcr-
Memorial. Thts passage from the Certain E.vpensesof rhe United Natio,zscisc
has no bearine on the auestion of construiné a iurisdiction clause."The
second case w6ch has been referred to by ~akistan is Interprefation of Peace
Treaties, a Judgment of this Court reported in I.C.J. Reports 1950, and the
relevant passage is at page 74. In that case the question was whether on the
facts of the case it could be held that a disputeexisted between the Parties and
the'court said that on the facts of the case a dispute did exist.
This case har no bearing here, because it has never been disputed by Indiathat a dispute does exist between India and Pakistan. 1find Pakistan having
quoted at least three cases which are al1cases on the question: did a dispute
exist? Nobody says in the present case that a dispute does not erist between
India and Pakistan. The real point in this case is not as to the existence of a
dispute, the real point in this case is: does the dispute relate to interpretation
or application of the treaty?
The Judgment in I.C.J. Reports 1950 shows tbat the Court was not con-
cerned with termination or susoension.
The next case referred to by ~akistnn is the case reportcd in 1924,P.C.I.J.,
Series A. No. 2. the relevant passage being at pages II and 12-that is the
MavrommarisPalesrtne Concessionscase. In that case also the Court is dealing
with the question as to whether a dispute existed between the rival parties,
and the Court defines what a dispute is by saying:
"A dispute is a disagreement on a point of law or fact, a conflict of
legal views or of interests between two persons. The present suit berween
Great Britain and Greece ccrtainly possesses these charocteristin."
The other case cited by Pakistan is the Factory at Chorzdw case which is
reported in 1927, P.C.I.J., Series A, No. 9. Now there the treaty was con-
tinuing, there was no question of the treaty being suspended or terminated and
the Court did not consider and was not called upon to consider whetber a
dispute pertaining to termination or suspension is a dispute as to interpreta-
tion or application.
"Should differences of opinion respecting the construction and
application of Articles 6 to 22 arise between the German and Polish
Governments. they shall be submitted to the Permanent Court of Inter-
national Justice."
That is how the treaty read, and then the Court goes on to say that-
"... when such a power to go into the question is given to the Court the
doctrine of effective interpretation brings in the power to award repara-
tions."
-
The doctrine of effective interpretation has been invoked by Pakistan at
more places than one, both in its Counter-Memorial and in its Rejoinder, and
1shall deal with it separately, as a distinct point.
Before 1 came to that, I shall go on with Pakistan's Counter-Memorial
which deals with the SouthWest Africa case, 1962, at page 388, supra, para-
graph 51.That case is, in my submission, very important and supports what 1
am saying. The case is reported in I.C.J. Reports 1962,beginning at page 319
and the relevant passages are at pages 326, 332-335, 343and 347. Ethiopia
and Liberia filed Applications, alleging that South Africa had committed
various breaches of the Mandate and under Article 7 of the Mandate al1
disputes pertaining to interpretation or application of the Mandate could
corne before this honourable Court. 1 will read first Article 7, which is setout
inthe Judgment at page 343:
"The question which calls for the Court's consideration is whetber
the dispute is a 'dispute' as envisaged in Article 7 of the Mandate and
within the meaning of Article 36 of the Statute of the Court. ..
The Resoondent's contention runs counter to the natural and ordinarv
meaning o'the provisions of Article 7 of the Mandate. whicb mentiorÏs
'any dispute wbatever' arising between the Mandatory and another ARGUMENT OP MR. PALKHIVALA 557:
Member of the League of Nations 'relating to the.interpretation or the
application of the provisons of the Mandate'." .
Ethiopia and Liberia raised certain points purely on merits and they said
that South Africa had failed to discharge its obligations under the Mandate.
So the dispute was whethcr un a propeFinterpretati<in and application of the
Mandate, South Africa had conimitrcd breïchcs. South Africa filcd Prclimi-
narv Obiections and raised two points amona others. It raised the Doint that
the- aidat t should not be regarded as a Geaty at all, and therefore, the
jurisdiction ofthis Court, under Articles 36 and 37 of the Statute of the Court,
could not be invoked, because they refer to treaties. The second point which
South Africa made was that in any event the treaty was not in force, whereas
Articles 36 and 37 of the Statute of the Court referred to treaties in force.
The Court ruled that the treaties were in force and that the Court would
deal with the questions on merits which had been raised by Ethiopia and
Liberia.
The Applications made by Ethiopia and Liberia, which start at page 322 of
the I.C.J. Reports 1962 make it clear that there was no dispute raised by
Ethiopia or Liheria as regards the termination or suspension of the Mandate.
In fact they proceeded on the bdsis that the Mandate did exist and continued
in operation.
Then one finds. on oage 326, South Africa raising the point that (a) the
Mandate is not a ireat;; and (b) in any event it is nolonger a treaty in force.
At page 332 the Court cornes to the final conclusion that the Mandate is a
treaty.
On page 333 is the passage which directly supports what 1 am saying:
"The Resoondent lthat is South Africal further argues.that the
c~rualties arising from the deinise of the Ledg~e of Sdtions are not
thcreforc confinrd to thc prov.sions rclating to supcrvi>ioii by the
Leciguci)ver the Mandate hut includc Article 7 hy which the Respondent
agrced to s~bmit to the jurisdiction of the Permanent Court of Inter-
national Jiisticc in any dispute uhïrever bctu,ecn it üs M<inrlat<ir).and
another Member of the Leasue of Nations relatinn to the interoretarion
or the application of the provisions of the an date .Now cornes the
important sentence.] If the object of Article 7 of the Mandate is the
submission to the Court of disputes relating to the interpretation or the
application of the Mandate, it naturally follows that no Application
based on Article 7 could he accepted unless the. .. Mandate, of which
Article 7 isa part, is in force."
The last sentence leaves no doubtthat the Court held that once the Mandate
itself ceases to be in force no annlication based on the iurisdiction clause.
which deals with disputes pertaining to "interpretation'; or "application";
can possibly be accepted by the Court. TheCourt continues:
"This proDosition, moreover, constitutes the very hasis of the Applica-
tions to the Court.
Similar contentions were advanced hy the Respondent in 1950,and the
Court in its Advisory Opinion ruled:
'The authoritv which the Union Government exercises over the
Tcrritory is basid un the Mandate. II the Mïndatc Iapscd, as the
Union <;overnment contends, rhc I.ltter's authorits would cqu3lly have
Iïuscd. 'ro retain the r:chts dcrivrd from the Mandate and Io dcnv thc
obligations thereundercould not bejustified.' "558 ICAO COUNCIL
And the Court goes on to quote from the earlier case, on page 334:
"Naving regard to Article 37 of the Statute of the International Court
.; of Justice, and Article 80, paragraph 1, of the Charter, the Court is of
....opinion that this clause in the Mandate is still in force and that, there-
$1:fore, the Union of South Africa is under an obligation to accept the
..>compulsory jurisdiction of the Court according to ..,. [these] provi-
:.:‘siens.";
a..This case. which is the one caseo thdealinn with the clause "dis~utes relatin~
to the intcrprctarion or application", is relevant. Pakistan has cited il.1useit-
as an authority in support of my own submissions. May 1 formulate what
emerees from this case.-to the extent to which it is relevant to our case.
(1j~he ~pplications of Ethiopia and Liberia rüised disputesrelating to the
inrerprct:ition or application of the Mandate, and not to ifs trrmination.
(21 Thc Rcs~ondent challenaed this Court'., iurisdiciion on the around that
th; Mandate was not a treati and that, in aiy event, the an date having
come to an end there was nothing to interpret or apply under Article 7 of the
Mandate. and there was no treatv in force within the meanine of Art- .es 36
anil.37 of the Statute of the CO&
(3) The Court ruled that: (a) the continued existence of the Mandate had
alreadv heen decided bv the Court in an earlier case and that decision was
cl&1{right; and (6) tie Respoudent could not exercise al1the rights of the
mandatory and yet dispute the existence of the Mandate.
(4) The Court did not hold-and this is imnortant-that a disnute relatine
toihc termination of the Mandate is a disputérclating to ifs iiite;preiation or
application. On the contrnry. the Court expressly held, at p~gc 333, that if the
an date had come to an end. no aoolication based on the article dealine
with disputes as to "interpretation3' "application" could be accepted bi
the Court.
- -.(5) There was no question of inherent limitations on the Court's juris-
diction, unlike the ICAO Council. In fact, it was the only court in the world
which could possibly havejurisdiction in the matter.
:.(6) Anv disoute as to this Court's iurisdiction is settled b. this Court's own
d&i;ion i~rt.'36, para. 6, of the ~taiiite of the Court).
It is dificult to see how this casc çan possibly help Pakistan.
Thc (ither case cited bv Pnkistan is the decision of the Housc of Lords in
Heyrnan v. Darwins. It ls the case reported in Ail England Reports, 1942,
Volume 1, at page 337, and I should like to read the relevant passages at
.-~~~~.39. 344.3.5 and 353.
This casc has heen pressed into service hy Pakistan on the ground that any
disoute oertaining 10 termination could be decidcd hy thc arbitrator-in the
nreient case the ICA0 Council.
. ~ ~ ~
In this Housc of Lords case it uas held and, if 1mdy say so with respect,
rinhtly held, thnt the arhitration clause covcrcd disputes pertnining IO termi-
nat~ - - ~-~e contract. B~ ~vou will see how widelv the arbitration clause
was framed. In fact this caslisan excellent exampli of how widely framed
your jurisdiction clause should be if you want the jurisdiction to be exercised
.. théd.simated bodv on auestions of termination or susnension.
The woris of the arbitrati'on clause are set out at page 3j9 of thisjudgment,
in the speech of Lord Chancellor Simon. This is the arbitration clause:
"If any dispute shall arise between the parties hereto in respect of this
agreement or anyof the provisions herein contained or anything arising ARGUMENT OP MR. PALKHIVALA 559
hereout the same shall be referred for arbitration in accordance with the
provisions of the Arbitration Act, 1889,or any then subsisting statutory
modification thereof."
Contrast the words of our treaties-disputes relating to interpretation or
application-with the words of this arbitration clause: "... any dispute . ..
in>esoect of this agreement or any of the provisions herein contained or
anything arising herëout ..." It was on this clause that the House of Lords
held that a dispute as to termination could he decided by the arhitrator. and
everv Law Lord makes it a point to state expressly that his decision turns on
the &ide scope of the arbitrition clause.
Fint Viscount Simon, the Lord Chancellor, at page 339,last paragraph:
"The answer to the question whether a dispute falls within an arbitra-
tion clause in a contract must depend on (a) what is the dispute, and(6)
what disoutes the arbitration clause covers. To takeIbJ first. the lanauaae
of~the ;bitration clause in this agreement is as broad ai can well Ge
imagined. lt embraces any dispute hetween the parties 'in respect of' the
agreement or in respect of any provision in the agreement or in respect
of anything arising out of it."
Viscount Simon, at page 344,says:
"Notwithstandina t-e -eneral validity of the above observations, the
governing consideration in cvery case must be the prcçise tcrms of the
lan-uag~ in which the arbitration clause is framcd."
In Lord Macmillan's speech at page 345,last but one paragraph:
"Arbitration clauses in contracts vary [very] widely in their language,
for there is no limitation on the liberty of contracting parties to define
as thev olease the matters which they desire to suhmit to arbitration.
Sometjkes the reference is confined to practicai questions arising in the
course of the execution of the contract; sometimes the most ample
lan- -ae is used so as to emhrace any question which may arise hetween
the parties in any way relating to the contract. ~onsequently, many of
the reported cases are concerned with the interpretation of the scope of
the teÏms of reference. for an arbitrator has jurisdiction only to deter-
mine such matters as, on a sound interpretation of the terms of reference,
the parties have agreed to refer to him."
In our case, to borrow the words of the learned Law Lord, the arbitral
clause is restricted so as to take in and cover only those questions which arise
in the course of the execution of the treaty.
One more quotation from page 353,from the speech of Lord Wright:
"1 should prefer to put it that the existence of his jurisdiction in this,
as in other cases, is to bedetermined hy the words of the suhmission. 1
see no objection to the suhmission of the question whether there ever
was a contract at al1 or whether. if there was. it had heen avoided or
ended. parties may submit to arbitrarion any,or almost any question.
In aeneral, hou,cver, the submission is limited to questions arising upon
or Ünder or out of a contract which would prima facie include questions
whether it has been ended and if sa, what damages are recoverable ..."
1 rely on this case, Mr. President, as showing by contrast what kind of
jurisdiction clause there should he if the ICA0 Council was intended to have
theconsent of the States to decide the type of question which arises here.560 ICA0 COUNCIL
1 now come to the principle of effectiveinterpretation invoked hy Pakistan.
The answer to this plea of effective interpretation is a fairly simple one. The
doctrine of effective interpretation can never be the foundation for the
establishment of iurisdiction which otherwise does not exist. It can onlv
enable a court toextend its jurisdiction beyond what is stated on a strict
construction of the words, and that extension is on the ground that the parties
must have intended to consent to such additional oowers heing exercised in
order to givc effecti\,e scop to the adjudication p;ocedure. ~nother nords,
if thcrc is a partic~llir dispute uhich i\ outsidç ihc jurisdiction clyouecïn
never estahlish iurisdiction bv invokinn the effective interoretation 6;inciole.
But if there isa dispute whiih is c!eaGy within the jurisdiction'cl~use, like,
for example, a dispute as to whether there has been a breach of an existing
contract, then an incidental power may he inferred to award reparations or
damages. Such incidental powers may he invoked under the doctrine of
effective interpretation.
May 1refer to MI. Shihata's book on ThePower of theInternational Court
to Determine ifs Own Jurisdiction, published in 1965. The relevant passage
isat pages 194 and 195:
"ln interprrting jurirdictionlil instriinients, the Intern~tional Court
hu.i rclied on the principle oi elfeciive irttrrpreiat.o.. pcrh~p, more
than on anv other traditional method. This Ginci~le. sometimesreferred
to in pract-ice as interpretation hy necessiiy implication, has certainly
enabled the Court to extend its jurisdiction to certain areas despite lack
of oroof that the parties soecificallv acceoted the Court's vower.to
adjidicate them. 1t-is particilarly r&ponsihle for the estahliLhment of
jurisdiction over questions incident ta the merits of a dispute already
within the Court's jurisdiction.
The extension ofjurisdiction hy necessary implication (that is, for the
piirpose of making the original acceptance of jurisdiction fully effective)
normallv assumes that some substantive iurisdiction has alreadv heen
conferre-d on the Court. It has always hien relied upon to justify the
extension, rather than the original establishment of jurisdiction."
If,as in the present case, the jurisdiction to deal with questions of suspen-
sion and termination does not exist, one cannot invoke the principle of
effective interoretation to vest such a iurisdiction in the ICA0 Council.
Thcrc is a \'cry intercsting dirciisslon on this topic inBririch Year Book
oflnrernariunal Lnw. 1949, V~ilumeXXVI. Tcn pages are relevant, p3ges 73
to 83. but as n conccssion Io the shortne>r of human lire 1sh;ill read onlv a
few sentences from page 83, fourth line from the top. This is an article-by
Professor Lauterpacht on "Restrictive Interpretation and the Principle of
Effectiveness in the Interpretation of Treaties":
"On the other hand, the principle of effectivenessis in the last resort no
more than an indication of intention, to be interpreted in good faith, of
the parties. It is the intention of the authors of the legal rule in question
-whether it be a contract, a treaty, or a statutc-which is the starting-
point and the goal of al1interpretation."
In other words, even the doctrine of effective interpretation ultimately
rests on the foundation that the parties must have intended as a matter of
necessary implication to confer such a jurisdiction. ARGUMENT OF MR. PALKHIVALA 561
Again on page 83, last five lines:
"The law-creating autonomy and independence of judicial activity
mav he an unavoidable and heneficent necessitv. But thev are so onlv
on condition that the judge does not consciousl; and deliberately usu&
the function of legislation. That fact sets a natural limit even to a prin-
cipleascogent as that of effectiveness.It isaprinciple whichcangivelifeand
vigour to an intention which iscontroversial, hesitant, or obscure. It can-
not be a substitute forintention;it certainly cannot claim to replace it."
To sum up. First, that the doctrine of effective interpretation can never be
the foundation of jurisdiction. In the present case, Pakistan is seeking to
make it a foundation.
Secondly, the doctrine of effectiveinterpretation can apply only to make, so
to speak, clear what was the unexpressed intention of the parties. It can never
be a substitute for the intention or for the consent which is absent. In the
oresent case. 1suhmit. where the consent is natentlv absent-a consent which
ihe entire hi;tory of sovereign States over thépîst many yeîrs has shown they
are unwilling to yive even to the highest court in the world-l sdy thdt where
such a consentis sougbt to be invoked hy the back-door, on the ground that
the principle of effective interpretation supports such a plea, it is a misuse of
that principle.
Thirdlv. this doctrine of effective interoretation has heen annlied hv the
World court to its o\rn jurisdiction. ~hen tlic World Court hadjurisd~ction
to decide quertions of breach it has held that ithad the inçidcntiiljurisdiction
to award reoaration. To seek to aoolv this ~rinciole to administrativebodies
to whom eipressly limited poweriare giveh is, 1 suhmit, trying to invoke a
new principle unknown to international law.
1 have taken some time over this, hecause Pakistan has cited a number of
cases which can he easily explained and do not even have to he dealt witb at
length once these three points which 1 have made are borne in mind.
Pakistan has dealt with cases where the InternationalCourt undouhtedlv had
jurisdiction to hear the dispute on merits. The question wîs, "What w3s the
relief it could give?'And on the principle of eiïective interpretation il gave
that relief which made litication in the International Court nienninef.il. This
principle would have no aiplication here.
Without reading the cases cited by Pakistan, 1 may merely refer to them
as tbev anoear in Pakistan's Counter-Memorial on Dace 389, suDra, nara-
graph; 54'nnd 55. The first case referred to by F'akista" i;the case if ~érrain
Germanlnrererrr in Polirh UpperSilesiu, reported in P.C.I.J., ScrierA, No. 9,
p. 23. It wûs a cïse where the Permanent Court hïd jurisdiction to dcal with
the dispute, and it said that, incidental to that jurisdiction, it would have the
power to îward reparuion. The second case is the Free Zones case which is
reooned in P.C.I.J.. SerierA. No. 22. n. 13. ivherc again the Court, admit-
tedly having jurisdiction to hear the di'spute, said that, on the facts of that
case, the jurisdiction extended to granting a certain relief. The third case is the
Corfu Channel case. renorted in I.C.J. Reports 1949, p. 26. There again, the
~0th having jurisdiction to deal with the dispute on merits, iaid that by
invoking the principle of efictive interprefation, il would award compensa-
tion.
ln our case, when would this principle of efictive interpretation bc capable
of being invoked? It would he, if the ICA0 Council had jurisdiction to deal
with the ouestion of sus~ension and termination and Pakistan had raised the
point about compensation. Eveothere, the principle would not help Pakistan,562 ICAO COUNCIL
correctly speaking; but 1 am saying that in such a casethere is a possibility of
somebody arguing that the principle can be invoked. Here it is unarguable.
Now that brings me to the end of the specific points raised by Pakistan
regarding the lega1,position as to the ICAO Councii's jurisdiction. 1 would
like this honourable Court to note two propositions, as they emerge from the
pleadings, so that 1 may be able thereby to limit and narrow the issues be-
tween the two Parties.
Firs't. Pakistan has disouted the factum of susoension in Seotember 1965.
\ihen military hostilities broke OUI.Secondly, ~a-kistan ha< nit disputed thé
factum of suipension in February 1971but has contended that /a, India had
no riaht to suspend the treaty and therefore the sus~ension was illeaal and
inefféctivcand the treaties continued in operation and i hl a dispute relating
Io suspension is 3 d~sputc rclating Io intcrpretat~on or application of the
treary.
(India's submission is thar a dispute rcgarding the validity or cficctivcncss
of, or legal justification for, suspension, is a di5purc relidting to the inter-
oretarion or application ofa rulc of international law dehors the trcatics.)
- The aforesaid two propositions clearly appear in the written pleadings
before the ICAO Council, the oral argument before the ICAO Council and
the written pleadings before this honourable Court. In India's Memorial,
page 128, supra, the relevant paragraphs are 17, 19and 20. and paragraph 23
also, on page 129, which represent Pakistan's case before the ICAO Council
on this question of suspension in 1971. The factum not being disputed, the
legal right to suspend is disputed and the efficacyin Lawof the suspension is
disputed. And what is said is that suspension is a matter of interpretation
and application.
On page 128, paragraph 17:
"Since the Convention and the Transit Agreement can only be termi-
nated or sus~ended in accordance with the exDress orovisionç ~rovided
therein for this purpose, India cannot unilaterally Grport to denounce
the Convention and the Transit Agreement except in those terms."
Paragraph 19:
"Assuming that the question exists regarding termination or suspen-
sion of the Convention as between India and Pakistan, the Council still
has iurisdiction since a disaereement reeardine the continuance in force
~~ ~ ~ ~
of a~reaty is a disagrecme~r regardin; the application of ihar Treaty.
Furthcr it also involves a question of ils interpretation."
Paraa~-h . 20:
"The abrogation, tcrminarion or suspension of an internarional
treaty can take place only in accordance with recognizcd principles of
international law. i.c., in conformity with the provisions of the treüty.
Therefore. the Conve--~on and the Transi~ ~--eement ca- onlv b~~ ~~ ~ ~
abrogated, terminated or suspended in accordance with the express
orovisions ~rovided therein for this Durpose. ... This being the case,
Ïndia cannot abrogate, or terminate oÏ &pend the convention and the
Transit Agreement vis-à-vis Pakistan .. .>'
Page 129, paragraph 23:
"The termination of the Convention and the Transit Agreement can
only take place in accordance with the recognised principles of inter-
national law, Le., in conformity with the provisions of :.. multilateral
treaties." ..564 ICA0 COUNCIL
conferred on administrative bodies, they would hereafter have the right to
deal with auestions of sovereianty, international law and the tvoe of auestions
which con&etely arise in thi; c&e. It is true that normallinationS do not
suspend or terminate treaties lightly. But a State is not going to sign a treaty
on the footing that the possibility of the treaty having to be suspended is a
remote one. Otherwise, why did nations react so violently to the sensible
proposal that the International Court of Justice should, as a matter of com-
pulsory iurisdiction. deal with these questions? If States react so violentlv.
despitë the fact that'the chance of suspension or termination is aremoteone;
to the suggestion that this Court should be clothed with such compulsory
jurisdiction, one wonders whether any nation would have the temerity to sign
a treaty where the same jurisdiction is sought to be given to relatively small
administrative bodies.
Thirdly: a decision against me on the ground so far covered would unsettle
the existing understanding and practice of nations. The claim of Pakistan to
have this matter adjudicated by the ICAO Council is a claim without a
precedent. Although there are so many similar treaties in operation, never
has such a claim been made, never bas any council or analogous body
upheld such a claim. So the understanding and practice of States would be
unsettled and there would be a serious set-back to the orderly growth and
develonment of international law.
~ouithly, in order to maintain the rule of law, governments must be of
laws and not of men. In order to maintain the rule of international law, inter-
national courts must be of men and not of governments. This principle
would have to be reversed and an international court of justice can hereafter
consist of governments and not men, like the ICAO Council.
Finally, a decision on this point against me would bring the very concept
and machinery of international adjudication into-forgive my using the
word-contempt. 1 have read out to the Court the verbatim record of the
proceedings beiore the Council. If this were to be the forum for international
adjudication. would it bring the concept and machinçry uf intsrnittional
adjudication into respect? 1 have taken some pains and some tinle to deal
wilh the matter, because it does not concern merely this hijacking or over-
flying business. In fact perhaps both countries could have overflying later,
with benefit to each. The real issue in this appeal is of the most far-reaching
importance and it transcendsthis transient dispute between lndia and Pakistan.
Your decision will be of great importance in the development of international
law.
Mav I eo onto the next noint. which is a brief one--the wint oeculiar to
the ~mnilaint as distinct 'from'the Application made b; ~akiitan. Roth
Pakistan and India were agreed before the ICAO Council that the agreements
on the ouestion of its iurisdiction reaardina the Annlication would a~nlv to
the coiplaint. If it Las no jurisdGtion ;O deal'kith the ~pplica~ik~, it
undoubtedly has no jurisdiction to deal with the Complaint. But there is one
point about the Comolaint which is an additional oint for holdin~ that the
~ouncil had no jurisdiction, and that additional point is the one 1;hall now
deal with.
Please turn to India's Memorial, page 328, supra, Article II, Section 1 of
the Transit Agreement:
"A contracting State which deems that action by another contracting
State under this Agreement is causing injustice or hardship to it .. ."
[such a State may file a Complaint]. . . AROUMXNTOF MR. PALKHIVALA 567
jurisdiction as it is to the principle of compulsory jurisdiction itself. It is this
basic objection of States to compulsory jurisdiction which has to he taken
into account in deciding the scope and amhit of the clause which does . .
provide for limited compulsory jurisdiction in the ICA0 Council.
The third point in answer is that the reason why the right of appeal'is
provided to this Court is that there are matters of vast importance-financial
and commercial importance-which arise as a result of interpretation or
application of the treaties, and the ohject of providing for an appeal ta this
Court was to saregunrd the nations against the possibility of a urong decision
on such matters ai the hands of the ICA0 Council. Thus, the idea of providing
an appeal ro tliis Court was not to surrcndcr the sovereign righf of a Statc IO
effect susoension to the comvulsor~ jurisdiction of any forum but the idea
mas ta saieguard the contrasting p;i;ties agsinst the pojsibility oferror on the
pari of the ICA0 Council in other important fields.
This finisher the arrumenr on the first ground and I need hardly îdd rhar
this argument, if accected is hy itself suffisent to dispose of the whole appeal.
But there is an alternative ground of appeal which, again hy itself;is
sufficient to dispose of the whole appeal, in case the decision is in my favou-
and that is the ground of the Special Régime. It is an independent separate
ground on which we challenge the jurisdiction of.the ICAO Council. Very
briefly stated, this ground of objection to the ICAO Council is that after the
mil~~ ~-,h~ ~ ~ ~~ ~ ~ ~ ~ ~~ ~ ~~wo~countries in Seotember 1965. when an
attempt was made to make the two countries come closer together, and when
the Tashkent Declaration was signed on 10 January 1966, the result of al1
that was ~ ~ to r~ ~ve th~ con~ ~tion or the ~ransit Aereement as hetween
therwocnuntrics-those two rrea~tieshad heen surpcndei on the outbreak of
hostiliiies and the tuspension continued even alter the Tashkent Declaration
of January 1966. But ihe two countries entering into a hilateral arrangement
which 1 shall hereafter cal1 "the Special Régime", which is evidenced hy
some very crucial documents of February 1966, and is further evidenced by
the consistent practice of the two countries right from February 1966 up to
January 1971, when the hijacking incident took place.
Therefore. the nlea which we made before the ICAO Council was that,
assuming lndia cokmitted a breach, the brexch wa\ of the bilateral agreement
or the "Speci~l Régime" which hadcommenced in February 1966and which
continued in overation UV to the material date when the dispute arase be-
tween the two Countries \(,hich !sent Io the ICAO Council.
Ii is comnton ground between the Iwo Parties that the ICAO Coiincil had
no iurirdiction IO deal with sny auestion relaring Io a bilateral treaty. There-
fore, if 1 succeed in establishing that there ;as the bilateral trëaty-the
"Special Régimew-between the two countries, 1 have estahlished my case
that the ICAO Council had no jurisdiction ta deal with the dispute. This
"Special Régime" is such, in its terms, that it excludes clearly the operation
of the Convention and the Transit Agreement, at least so far as the question
of overflying and making non-traffic landings is concerned. The terms of the
"Special Régime" are completely inconsistent with the provisions of the
two treaties regarding overûying and non-traffic landings.
At the commencement of my argument on this point, may 1 state one
important fact. At the time when military hostilities broke out in September
1965there were tbree agreements in operation-that is common ground-the
Convention, the Transit Agreement and the Bilateral Agreement of 1948
between India and Pakistan, which is set out at page 110, supra, of India's
Memorial. This Bilateral Agreement of 1948is an agreement under which thetwocountriesoperated their national airlines in each other's State. It even had
trafic rights in Pakistan. The air trafic between the two countries was
managed by the national airlines of the two countries and also by other
foreign airlines. So Air India (Al) had not only the right to overfly, but the
right to land in Pakistan, even for traffic purposes, and likewise Pakistan
international Airlines (PIA) had a corresponding right to overfiy and to land
in lndia even for traffic purposes.
1 am not disputing that the Agreement of 1948 was consistent with the
Convention and the Transit Agreement. There is apoint to be made about the
1948 Azreement which 1 shall make when 1 come to the later develo~ments
and de2 with Pakistïn's allegalion that normal conditions prior Io ~eptenibçr
1965 urrc restorrd-the facl is rhey urre not rîstored and the Agreement of
1948 was never revived after its sus~ension.
The inilitary hostiliiies which broke out are refrrrcd ro in paragraph 12of
Lndia'sMemorial. According to India, Pakistan made a massive armed attiick
on Indian territorv:.,ccordinz to Pakistan. India made an armed attack on
Pakistan territory. However, both the co&tries are in complete agreement
that military hostilities did break out and, for the purpose of this appeal, that
is suficient: When the militarv hostilities broke out. India took one imoortant
step which is set out in lndia's Memorial at page' 120, supra. It is a'crucial
document and 1shall read il. It is the notification issued by the Government
of lndia on 6 September 1965:
"Whereas the Central Government is of opinion that in the interests of
thepublicsafety and tranquillity, the issue of an order under clause (6)
of sub-section (1) of section 6 of the Aircraft Act, 1934 ... is expedient:
Now, therefore, in exercise of the powers conferred by clause (6) of
sub~s~ ~ ~~~(I. ,f the said section 6. the Central Government herebr
directs that no iiircraft regirtered in ~akistaii. or belonging toor opernied
by the Government of P~kistan or persons u ho are nationals of Pakistan.
shall be flown over any portion of~ndia."
The effect of this particular notification is clear; il wholly negatives
Pakistan's right to overfly lndia or to make non-traffic or traffic landings.
Landinns are not referred to here. but the com~ulsions of neoaraphy would
leave n: doubt ihït landings would be equally prohihited bëcLse if you
cannoi cross thc border of Indiï and wnnot fly over lndian terriiory al ïII. it
is imoossible IO have anv landinas. This notilication. which is of 6 Seotcmber
1965:near the comniencement O? niiliixy hostiliiies, continued in oierntion.
After sorne dayr of m~lilnryhostillties there >vas ï cease-firc and, ultim2rely,
the Tashkeni Declaration u,as signe* bv the two sountr~es. This Declaralion
is set out at page 352, supra, ofIndia'; Memorial, and is dated 10 January
1966.The relevant portion of il is clause VI which is at page 353:
"The Prime Minister of India and the President of Pakistan have
agreed to consider measures towards the restoration of economic and
trade relations, communications, as well as cultural exchanges between
India and Pakistan, and to take measures to implement the existing
agreements between India and Pakistan."
The material words are: ". .. to consider measures towards the restoration
~f ~ ~. communications'l. and ".. . to take measures to imnlement the
existing agreements ...".
It is clear thatthe Tashkent Declaration itselt did not revive any agreement
or treaty, but it provided that measures would be taken thereaftei to imple- ARGUMENT OF MR. PALKHIVALA 569
ment the existing agreements and to consider restoration of communications.
Therefore. this is an expression of intention of the Parties regarding future
action; it represents in no sense a decision to revive any agreëment-on the
next page, Le., 354 of the Memorial, are the two letters, one addressed by the
Prime Minister of lndia to the President of Pakistan, dated 3 February 1966,
and the reply dated 7 February 1966 from the President of Pakistan to the
Prime Minister of India. The wording of these letters is, from Pakistan's
ooint of view. important and that has been referred to in half a dozen vlaces.
ind thcrefore 1should like to deal u,ith itin somc Jctail.
First, the Primc Minister of India writes to the Prcsidcnt of I'akistan:
"Our Foreign Minister and Defence Minister, on their return from
Tashkent, informed us of your desire for the early resumption of over-
flights of Pakistani and Indian aircraft across each other's territory. We
had thought that this matter would be settled at a meeting between the
Ministers of both countries within a few days along with other prohlems
connectedwith the restoration of communications. As it appears that
such a meeting might take some time, we would be agreeable to an
immediate resumption of over-flights across each other's territory on
the same basis as that prior to 1st August 1965. Instructions arc being
issued to our civil and military authorities accordingly.";
and the President of Pakistan replies:
"Your Hiah Commissioner. Mr. Kewal Sineh. has delivered vour
message to me in Larkana this afternoon. 1 ai ilad to learn of ;OUI
constructive decision in a matter which is of high henefit to India and
Pakistan. 1 am also issuine immediate instructions to Our Civil and
Military authorities to permit the resumption of air flights of Indian and
Pakistani planes across each other's territories on the same basis as that
.rior to ... First of Au-ust 1965."
Aftcr theic t\\o letteri coiiles an important document uliich is ritp;igc 120
of the Slemorid subniitted by the Government of India. It !sanothcr notitica-
tion dated 10 Fcbru~ry 1966,and it 1sthe single muit important doc~mcnt. in
my submission, on rhis p3rticular aspect of the mattcr. At paye 120,the first
notification. ivhich 1 ha\,e ïlready read. is of 6 Sepreinber 1965.The second
notification of IOFebruary 1966amends the exlier notificatiun-
"lV/tereo~ the Ccntr~l Governmciit is of opinion that in the intcrcsts
of the public s3fety and tranqiiillity it is necessary so to do:
Now, therefore, in exercise of the powers conferred by clause (b) of
'subsection (1) of Section 6 of the Aircraft Act, ... the Central Govern-
ment hereby makes the following amendment to the notification of the
Government of Indiain thelate Ministry of Civil Aviation No. GSR 1299
dated the 6th September, 1965,namely:
In the said notification, after the words 'any portion of India', the
following words shall be inserted, namely:
'except with the permission of the Central Government and in accor-
dance with the terms and conditions of such permission'."
Therefore, if one reads now the amended notification as it came into force
on 10 February 1966, the material parts would be this: "... no aircraft
registered in Pakistan, or belonging to or operated by the Government of
Pakistan or versons who are nationals of Pakistan. shall be flown over anv
portion of Indm cvcept with the permission of the Centrül Government and in
accordancc with the term, and conditions of such permi>sion". .The effect of these Iwo notifications. rcadtogcthcr, isthar the prohibition on
Pakistîn aircraft overflying India conrinued. but with the exception thar in the
event of the Govcrnmcnr of India giving ils permirsion, overflying could be
donc in accordancc with thc terms and conditions of th31permission.
.New in order to appreciate, in the right perspective, this question of the
îpecial régime, 1 would request this Court to considei separately three
questionsthat clarify the three aspects which go to make up this one issue.
First, did Iodia have the right under international law to suspend the
tre~tie~ ~n -.r..~-~r 1965? ~~
Secondly, did India in fact suspend the treaties at that time?
Thirdly, did the treaties continue under susvension after Februarv 1966and
did a sp&ial régimecommence in that month?
On the pleadings of India and Pakistan these three questions clearly
emerge; the formulation of the three questions, which 1 believe is accurate,
itself shows how the ICAO Council had no jurisdiction to deal with any of the
three questions. The question of the ICAO Council's jurisdiction is to a large
extent clarified, if not solved, by a precise formulation of the issues which
would have to go before the ICAO Council in the event of this appeal being
lost.
The first question, did India have the right under international law to
suspend the treaties on the outbreak of military hostilities in September 1965,
is clearly a question of interpretation and application of international law,
and not of the treaties.
The second question, did India in fact suspend the treaties at that time
--that is, in September 1965-is a question which goes to the factum of
suspension, in other words, it goes to the operation of the treaties, and not
the aoolication of the treaties. 1 have alreadv made mv submission on the
clear distinction between the conceptsof operation of a tieaty and application
of a treaty. If a Council has no jurisdiction to deal with questions of suspen-
sion, it would obviously haveno jurisdiction to decide on the factum of
suspension.
The third question, did the treaties continue under suspension after Febru-
arv 1966.a,d-~~~~a-~oecial réeimecommence in that month. are also ouestions
outside the ICAO ~'ouncil's~urisdiction for the reasons 1 have already given
regarding question two, and for the additional reason that the ICAO Council
hai no jurkdicrion IO considcr any dispute rcgarding a bilateral trcary, and
the special régime whichIndia pleaded uas a bilateral treaty.
Having formulated the three questions, and made my submission that each
one of tbem was outside the ICAO Council's jurisdiction, and that therefore
really the questions do not fall to be considered, 1 shall nevertheless proceed
t4 make my submissions on each of them to show how, both on facts and in
law. Pakistan is mistaken in savine thatthe three auestions should he decided
against Indm and in furthcr saiing ihat ihe 1~~0'council iç thc right forum
to decide the questions one wîy or the orher.
Thc first oucstion which I shüll deîl u,ith is the rinhr IO sus~end a trcary in
limes (if miiitîry hcistilities. Now Pakistan's poinÏis a simple one on ibis
issue. Pakistan says ihar there is a provision in the Convention, that is Article
69. which deals with situations like those of war. and therefore you csnnot
take any action exçept under Article 89, and if you takc action under Article
89. you are encluding international Iîw-you are excludingany question of a
right king exercised dehors the treaty, and since you have acted under the
treaty the ICAO Council has jurisdiction to deal with the dispute. This is
Pakistan's argument. ARGUMENTOF MR. PALKHIVALA 571
Article 89 of the Convention, which is in India's Memorial, at page 323,
supra, says:
"War and Emergency Conditions
In case of war, the provisions of this Convention shall not affect the
freedom of action of anv of the contracting States affected, whether as
belligcrenis or as neutrais. The same principle shall apply in the case of
any contracting State which declarcs statc of national emergency and
notifies the fact to the Council."
Now, the material word-the most significant word-in this Article is the
word "affect"-the "provisions of this Convention shall not affect the free-
dom of action of any of the contracting States". 1shall request the Court to
compare Article 89 of the Convention with Article 73 of the Vienna Con-
vention.
Alticle 73 of the Vienna Convention runs as follows:
"The provisions of the present Convention shall not prejudge any
question that may aise in regard to a treaty from a succession of States
or from the international responsibility of a State or from the outbreak of
hostilities between States."
Article 89 of the Chicago Convention is very similar to Article 73 of the
Vienna Convention. These two Articles do not confer a right, they merely
declare that existing rights outside the treaty remain unaffected. This is not
my gloss-the Chicago Convention expressly says that the freedom of action
shall not be affected. The mistake made by Pakistan is to think that under
Article 89 of the Chicago Convention some right is conferred which is exer-
cised bv India. There is no riaht conferred. Article 89 merelv declares that
such rights as lndia may havëunder international law-~tatépractice, State
usage, custom of nations in times of helligerency-dl those customs, rights,
practices, remain unimpaired.
Now when lndia acted on the outbreak of military hostilities and promul-
gated the notification of 6 September 1965 prohibiting Pakistan from over-
flying India, it was not exercising any right under Article 89, it was exercising
its right under international law, practice and usage; which right is left
undisturbed by Article 89.
The Court's decision on this Article is again of great importance because
it will apply equally to Article 73 of the ~iënna ~oiventioo.. 1submit, under
the Vienna Convention also, if a State is to suspend a treaty vis-a-vis another
State which is at war with the first State. such suspension would be the exer-
cise of a right, not under Article 73 of the ~ienna Convention, but under
international law, practice and usage.
In short, the function of Article 89 of the Chicago Convention, like the
function of~Article ~3 of ~ ~ V~enna Convention. is merelv to leave undis-
turbed rights outside the treaty in certain situaiions. ~hat are the rights
outside the Chicago Convention or the Vienna Convention? A nation has the
right undouhted1;to suspend the operation of treaties vis-à-vis another State
with whom there is astate of hostility or war. This is a matter of State practice
and usage; there areno clear-cut principles of law regulating the exercise of
this right, but nations have from time immemorial exercised this right and it
has become now a matter of State practice and usage of which any court
would take judicial note. In McNair's Law of Treaties, the relevant discus-
sion is from page 724to page 728.1 have the 1961 edition here. At page 726it
is said : "Multi-partite rreaties fo which one or more neufral States are parties.
These treaties, while remaining in operation during the war between
Great Britain and the neutral parties, were regarded as being in suspense
during the war as between Great Britain and enemy parties. In some
auarten the view was held that upon the conclusion of veace these
Lreaties would automatically revive-as between Great ri taiand any
enemy parties, and that they could only be annulled or varied by agree-
ment between the belligerents where that could be done without iniurina
the rights of neutral parties, so that it was unnecessary to revivëthem
specifically by the Treaty of Peace. However that may be, a number of
such treaties were specifically revived by the Treaties of Peace, for
instance. .."
In Julius Stone's Legal Controis of International Conpict, 1954edition, the
relevant discussion is on pages 447-450. Page 448:
"Oppenheim suggests that where such treaties have many other States
besides the belligerents as parties. and establish common rules for the
permanent conduct of the-parties, they remain in force, even though
the belligerents may be compelled hy war conditions to suspend their
operation in whole or in part."
Page 449:
"Further than that State practice has not been uniform, tending, if
anything, to treat al1 inter-belligerent treaty relations, including those
of a multilateral and lenislative character. as abroaated bv war. and
requiring express renewaïif they areto be maintainecafter thépeace."
Just one other passage from Bin Cheng's book on TheLaw of Internatio~tal
Air Transport, 1962 edition. The author here quntes from'Judges Anzilotti
and Huber in the Wimbledoncase and the quotation is as follows:
"In this resoect. it must be remembered that international conventions
and more p&licularl.v rhose reldting 10 comfnerce 2nd rommunicarions
are generally concludcd having regard IO normal pcacécondiii«ns. If.
as the result of a war. a neutral or belligerent State is faced with the
necessity of taking extraordinary measuÏes temporarily affecting the
application of such conventions in order to protect its neutrality or for
the Durooses of national defence. it is entitled to do so even if no exoress
reseivaiions are made in the convention. This right possessed b; al1
nations, which is based on generally accepted usage, cannot lose its
raison d'étresimply because it may in some cases have been abused ...
The right of a State to adopt the course which it considers best suited to
the exigencies of its security and to the maintenance of its integrity, is so
essential a right that, in case of doubt, treaty stipulations cannot be
interpreted as limiting it, even though these stipulations do not conflict
with such an interpretation."
Now in the case of communications-and the Convention and the Transit
Aareérnentdeal with communications-the whole basis is neaceful conditions.
~f'ihere is war, or there are military hostilities, the whole foundation for the
continuity of the treaty is displaced. The Convention and the Transit Agree-
ment do.not choose to define what the rights of the ~arties'willbe in the event
of war or military hostilities. 1t'merelysays that whatever their rights are, the
States can exercise them. In short, Article 89permits al1the freedoms availahle ARGUMENT OF MR. PALKHIVALA 573
to a State under State oractice and international law. and one of those riahts
is the right of suspension. Therefore, 1 submit, 1ndia had clearly the Zght
dehors treaties to suspend them and Pakistan's contention that India had no
such riaht-and its right was onlv under Article 894s misconceived.
1corne now to the sëcond quesiion: did India in fact suspend the treaties in
September 1965? As 1 stated yesterday, while Pakistan has not disputed the
factum of sus~ension in 1971. it has disouted the factum of susoension in
September 1965, and that is why it becomes necessary to deal with it here. 1
submit the record leaves no doubt that India did suspend the treaties vis-à-vis
Pakistan in Seotember 1965.
The uhole is~znce of the Convention and the Transit Agreement 1s the
righi IO o\,ertly another Sraie's territory withoui th~t Siatc's prior permission,
and the right to make non-trttiic landings in another State's tcrritory without
th31 Stïtc's prior pcrmission.
In India's Memorial ai page 300, rupru, is Article 5of the Convention:
"Each contracring State agrees that al1aircrafi of the other coniracting
States, heing aircrdft not engaged in scheduled international air services
shall have the right, subject to the observance of the terms of this
Convention, 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 corresponding provision is Article 1,section 1, of the Transit Agreement,
which is at page 327.
The right is "without the necessity of obtaining prior permission". Ifprior
permission is needed, then the Convention is not in operation. 1 need not
repeat that the suspension may be partial, qua overflying and landing, but it
is not relevant to coosider whether it was total or partial in this case. It is
enough to note that, at least so far as overflying and landing are concerned,
there was clearly suspension, because the two notifications, which we have
seen at page 120, supra, of India's Memorial, expressly say that Pakistan
shall not overfly India except with the permission of the Government of
India.
Another question may arise: why should it not be regarded, as Pakistan
says, as a breach? My answer is that suspension and breach are not mutually
exclusive concepts. Suspension is an act of a sovereign State which temporar-
ily suspends the operation of the treaty, wholly or in part, that is, puts the
treaty in a state of suspended animation. If the suspension is justified, it
involves no breach. If it is unjustified it does. So hy asking the question-as
Pakistan has asked-has India committed a breach?-the question whether
India has suspended the treaty, or not, is not answered, because the point of
breach goes to the merits of the justification for suspension. It has nothjng
to do with the factum of suspension. Io an ao~ropria.. fo.um the question
can be considered: has India sus~ended rightly or wrongly? But the question
of a breach, orno breach, has no bearing whatever on the factum of suspen-
sion.
Now ho~ ~id India act in t~ ~~matter? In th- ~xerc~ ~~o~ its riaht as a
sovereign State it promulgated a law. The notification is the law. ~tiromul-
gated a law which destroved the whole essence and fouridation of the Con-
vention and the Transit-~~reemeot, vis-à-vis Pakistan, at least so far as
overflying and landings are concerned.'The act of prornulgating a law which
effectually suspends a treaty is an act of a sovereign State. If this is not sus-
pension, it is difficult to see what would be. If by an administrative order aState could suspend, if by merely writing to Pakistan: "Please note the
treaty is Suspended" India could suspend, surely this is an a fortiori case of
suspension, where the suspension takes the shape and form, not merely of a
communication to the other State, but the promulgation of a binding law
which goes completely counter to the very essence of the treaties. And the
conduct of the parties after this, 1 submit, leaves no doubt that there was
suspension. In other words. my argument about the factum of susoension
do& not merelv rest at what 1have so far said. but it is further sunnorted and-
firtified by thésubsequent conduct of the twb States from~ebruar~ 1966to
Februar,' 1971.and that conduct 1shall deal u,ith under the third auestion.
to which 1come now directlv.
The third question is: didthe suspension continue after January 1966-the
Tashkent Declaration-and did a special rbgime commence in February
Pakistsn's whole case is that, as a result of the two letters between the
Prime Minister of India and the President of Pakistan, flights were restored
on the old basis and the old treaties and agreements were-revived. The first
thing to be noted is thal out of the three treaties one was, admittedly, not
re-animated, and that is the Bilateral Agreement of 1948 under which the
Pakistan national airline came to India for traffic landings and Indian natio-
nal airlines landed in Pakistan for traffic purposes. Out of the three agree-
ments one was clearly never revived. That has been admittedly the position
since September 1965. So, first of all, it is clear that the old basis was not
revived-the Bilateral Agreement of 1948 was a very important part of the
old basis.
This undisputed fact is set out in India's Memorial, page 30, supra, para-
graph 14:
"The Air Services Agreement of 1948, which wils suspended in 1965
as doresaid, has never been revived. Sincc 1965 the airlines of Pakistan
have never operated within India and the airlines of India havenever
operated within Pakistan; the traffic bctwecn the twocountricscontinues
to be handlcd only by thirdcounrry airlines iinril this date.''
Now therefore out of the three treaties, one admittedly has remained sus-
oended UD to date. . .
If the old basis had been restored, the notification of Septemher 1965would
have been repealed-it could not have continued as a prohibition on Pakistan
aircraft overflyina India. If the notification of Se~tember 1965 orohibiting
Pakistan from Gverilying India had been repeaied, Pakistan could have
argued thatthe two treaties, the Convention and the Transi? Agreement, were
restored and the suscension ended. But the notification was not reoealed. On
the contrary the not/ficstion of February 1966continued the prohibition with
one exception only. i.e., the permission of the Ciovernment of India. Now
these are two comoletely contradictory and inconsistent documents. the
Convention saying no permission should be asked for, and the notification
sayingPakistan shall ask for permission, otherwise Pakistan shall not overfly.
Tbese two contradictory and comoletely inconsistent documents are stated
by Pakistan to lead stiljto the infe;en&that the Convention was revived! It
is extremely difficult to SM hy whilt process of mental gymnastics one could
come to this conclusion.
The sienals whi~ ~ ~~ ~ ~ out at oaae 117. .su,ra.. aeain ~ ~ ~it clear that
whcn wi;h the permission of the ~iv<mmentof India Pakistan could overfly
India. it was to be done on a reciprocal basis and on a provisiorialbasis. There ARGUMENT OF MR. PALKHIVALA 577
.8.Continued attempts to foment, through sabotage - and infiltration.
disturbances in ~animu and ~ashmire.-
(9) Intensive hate-propiganda ag~insi India on the Radio and in the
Press. whiçh continues unsbiitçd 10 this dsy."
The next pardgrdph points out hou thc suspciision cimiinued :igainst this
background. The Courr, 1 need hardly ûdd. \\,il1m3ke a shsrp di$tinction
between inferences. which each Psrtv can draw in his oun Pavuur. ïnd basic
facts. Though ~akistan does disputéIndia's inference that ~akistan has not
CO-operated, and it does say generally that thefault is al1 India's-that is a
matter of inference. But the basic facts which are set out in paragraphs 22
and 23 are not denied. Pakistan's reply is in the Counter-Memorial. para-
graph 15. Without disputing one single basic fact, Pakistan's reply in its
Counter-Memorial. paragraph 15, is as follows:
"After the Tashkent Declaration attempts were made to normalize
relations and towards that end telecommunications were revived. The
Indus Water Treaty of 1960 was implemented. The dispute over the
Rann of Kutch was referred to an International Arbitration Tribunal
and was resolved. Overflights were resumed on the same basis as that
prior to 1August 1965.The Government of India had agreed in February
1966 to forego their alleged right ta demand prior settlement of out-
standing issues and consented to resume mutual overflights. However,
in snite of al1nossible efforts bv Pakistan. relations did not f.llv .rnorove
because of lndia's intransigeke and its iefusal ta resolve the Kashmir
disoute which is the basic cause of tension between the two countries.
~akistan has alwavs been readv and willine to settle oeacefullv al1
disputes with 1ndia through the. accepted iniernational Procediir& of
negotiation, mediation and arbitration. Pakistan had also proposed the
establishment of a self-executine machinerv for the resolution of al1
&standing disputes but the ~overnment ofindia rejected it."
What is relevant is not to find out where the blame lies, but to take into
account the admitted fact that relations between India and Pakistan did not
become normal. So it is not like two other countries which may have a war
and then become members of a common market. The confrontation and the
hostility, unfortunately continue, and it is against that background that this
Court will consider the plea of continued suspension of the two treaties from
1965 up to date.
The various bans imoosed hv Pakistan are listed in oaraaraoh 23 of India's
Memorial. The questions of ~ashmir, the Rann of utc ci, the Indus River
are not relevant to the commercial bans which 1have referred ta in paragraph
23 of India's Memorial. When on the same basis Pakistan savs that over-
flying was restored, as it was prior to 1965,it ignores the essentiai fact that the
traffic between the two countries, through their own national airlines was
never restored. So to sav that the "basis" was the same as before is a clear
mis-statement of fact.
Against this background, you will kindly consider the question of the
continued susnension. Here aeai-. Pakistan asserts that there was no sus-
pension, or continuation of suspension, after 1965. 1 assert to the contrary.
Let the Court look at the basic facts and then decide for itself, because a
mere assertjon by one Party would help nobody-we could keep on asserting
until the end of time what our particular stand is.
The material breach of basic facts is set out in India's Memorial, paragraph
20. page 32, supra: "The material features of the Convention and the Transit Agreement
are the two cumulative rights-
(i) to overfly, and
(ii) to land for non-traffic purposes,
both without the necessity of ohtaining prior permission of the Govern-
ment of the other State. Neither of these two rights was restored, as
between India and Pakistan, at any time after Septemher 1965. Under
the Special Agreement of 1966 overflying was permitted only with the
permission of the Government of India (or Pakistan, as the case may be)
and in accordance with the terms and conditions of such permission. The
right to land for traffic or non-traffic purposes was not revived at al1in
anv form: and was not covered bv the Soecial Aereement of 1966.
~akistan had to seek India's special ad hLc permKsion in case any
Pakistan aircraft wanted to land in India for non-traffic Durvoses. Thus,
the Special Agreement of 1966 and the practice of thé two countries
after that date were wholly inconsistent with the Convention and the
Transit Agreement, and leave no douht whatever that those two treaties
which had been suspended in 1965, were not revived as hetween India
and Pakistan."
In this paragraph India has set out four basic facts. First, that under the
Convention and the Transit Agreement there is the right to overfly and to
land for non-traffic purposes without obtaining prior permission, and this
right was not restored. Secondly, after 1966 overflying was allowed by each
Government only with its permission to the other country's aircraft. Pakistan
could not overRy India without the Indian Government's permission.
Thirdly. avart from the question of overflying, the right to land was not
restored ai all. and fourthiy. ifever any ~akisÏan aircrait wanted to land il
had IOtake the express permission of the Governmeni of India.
These four basic fdcrs are not disnuted bv Pakistan in its Coiinter-Memo-
rial. The relevant paragraphs in theCounter-~emorial are 13, 21, 32, 34 and
35, in which Pakistan does not allege that its planes overflew India without
India's permission after 1966 or that they landed in India without India's
permission; Pakistan kept on repeating its interence that the treaties were
still in operation, but it did not dispute the crucial basic facts. Pakistan's
Counter-Memorial. paragravh 13. sets out the Prime Minister's letter. There
is a dispute as to the consthction of the letter: what do the words "same
basis" mean? If 1may read paragraph 13:
"On 3 February 1966 the Prime Minister of India wrote to the Presi-
dent of Pakistan as follows . ..
In reply, the President of Pakistan, inter alia, stated...
It is thus clear that in view of the decision at the highest level, over-
flights across each other's territory were resumed on the hasis of the
Convention and the Transit Agreement which even by India's own
admission were in operation between the Parties prior to 1 August
1965.''
It is a matter of inference, but again the basic facts are not disputed here.
Paragraph 14:
"Moreover the conduct of India, subsequent Io the armed contlict of
1965.show that the Convention and the Transit Agreement continued
to he in operation between the two countries."Then again, if you turn to page 469, the second sentence:
"India's Notification dated 10 Februarv 1966 which nrovided that
'~akisran flights over India could take plaie only with ~hc'~ermissionof
the Central Govcrnment and in accordance with the rerms and condi-
tions of such permission' could not absolve India from its obligations
under the Convention and the Transit Agreement."
This reasrms the very important position that both Parties are agreed that
India's municipal law-that is, the notification of February 19664s in-
consisteiit with the two treaties.
With chat as the starting point, just consider what further steps India took.
This notification, completely inconsistent with the two treaties, was, as 1said
in my Memorial, acted upon for sixyears, and Pakistan had to get permission
every tirne. Does it not establish my case that the suspension of the two
treaties did not end?
Further, this particular notification, which has been referred to in the
various passages 1 have just read, was not only promulgated in India. it was
oromuleated to the world bv beina communicated to the iCAO Council and
communicated to al1the airfines wio get what are called aeronautical infor-
mation circulars. The aeronautical information circulars are issued by al1
countries which are concerned with international aviation, and these circülars
issued by India specifically mention the fact that, as distinct from other
countries, Pakirtan was prohibited from overliying India.
Please turn to India's Reply, page 433, supra. This is the Government of
India's Aeronautical Information Circular No. 27 of 1965, dated 8 September
1965,which says:
"Attention of al1concerned is invited to Notification No. G.S.R. 1299
dated the 6th September, 1965 ... issued by the Government of India,
Ministry of Civil Aviation. renroduced below ..."
Now this aeronauiical information circular goes to the ICA0 Council and
itgoe, toal1the airlines or the world. It reproduces in full the notification of
6 Se~tember 1965.which 1have alrcadv reüd. ~ro.i.itina alt-aethe- Pakistan
aircÏaft from ove;flying India.
When in February 1966 the prohibition continued, but with the exception
of cases where the Indian Government expressly gave permission, that was
also made the subject-matter of another aeronautical information circular,
and that circular is set out on page 434, supra, of India's Reply. It is dated
21 February 1966:
"[The] Attention of al1concerned is invited to Notification ... dated
10 February, 1966.. .jssued by the Government of India.. . This is
to be read with A.I.C. [that is, Aeronautical Information Circular]
No. 27/1965."
This circular reproduces in full the second notification of 10February 1966.
Further, there are lists, which are published periodically, which are also
called aeronautical information circulars in which India sets out-and that
is the usual practice of al1 nations-a list of al1the relevant circulars which
aircraft of different nationalities have to bear in mind as representing the
correct legal and factual position in India, ifthey want to come to India. That
is at page 435, supra, of India's Reply. Just by way of example, we have set
out two circulars giving the lists of the relevant notifications in force: one of
2 March 1970, which is at page 435 of India's Reply and the other of 15
lanuas. 1971,which is at page 441, supra. ARGUMENT OF MR. FALKHIVALA 581
1shall refer to the first circular at page 435: the date is given 2 March 1970,
and then the words: "The following circular is hereby oromulgated for infor-
maiion, guidance and neccssdryact;on."~hcn comethc~words:~~~~cron~utical
Jnf<irmdiinnCirculars: curreni as on 1st March 1970." The whole list 1sgiven.
The Court is concerned with the entry on page 437, supra, where the numher
~ ~ ~ ~fir~t column is "27". the date is 8-9-1965and the title of the circular is:
"~otification-prohibition of Flights-Pakistan (G.S.R. 12991." It is
referred to as "orohibition": is it consistent with the Convention and the
Transit ~ereement? Omittina three items on the same naee. vou h.ve a
reference Cothe second aeronautical circular: there the number is "8", the
date is 21-2-1966: "Notification-Prohibition of Flights-Pakistan."
Now the important thing to notice is that even the second notification of
Fehruary 1966which said that Pakistan can overfly with the permission of the
Government of India, is described in these official aeronautical circulars as:
"Prohibition of flights-Pakistan." The lists which we published in 1966,
1967, 1968, 1969, 1970and 1971al1contain reference to these twoprohihitions
on Pakistan in the list of circulars in effect. We have annexed only two of
these lists to Savethe time of the Court.
The second circular annexed is the latest oneup to the date of the filing of
this appeal, and that is the one dated 15 January 1971. The circular is on
page 441,si~pra.
Now, here again one finds the notification prohibiting Pakistani flights on
page 442, last entry: "Notification-Prohibition of Flights-Pakistan." The
second notification ison page 443, the fourth item: "Notification-Prohibi-
tion of Flights-Pakistan." Thus to the whole world lndia proclaimed frnm
1965 up to the present date, whenever these aeronautical circulars had to go
out tn different countries that so far as Pakistan is concerned there is nrohibi-
tion. 1think, Mr. President, you will forgive me for saying that in the.light of
this evidence still to maintain that the Convention and the Transit Agreement
were in o~eration for al1these vears between the two countries is iust to shut
one's eye; to undisputed and indisputable basic facts.
Pakistan does not dispute that these aeronautical information circulars
were issued, they cannot dispute it-in fact they have reached the whole
world-and they kept on reaching the world year after year because the list
was published every year of the current notifications in force-Pakistan's
'answer is "Well, you put it in the aeronautical information circular, but you
didnot put it in the aeronautical information publication". When 1come to
theadditional documents' which are going to be placed before the Court, 1
shall ooint out how com~letelv misconceived this olea on fact is. but at the
momént it is sufficient to'say chat the n~tifications'bein~ wholly i'nconsistent
with the two treaties and the notifications being made known to the world at
large for six years are facts which are undisputed.
Now at this stage, the stage of the Counter-Memorial, as the Court has
already seen. we had no dispute that in every case Pakistan had to ask for
permission.
When we filed our Reply to Pakistan's Counter-Memorial we chose to
point out examples-and we gave a few-where Pakistan expressly asked for
permission for landing and, in some cases, the permission was given and in
others India denied that permission. That is set out on page 409, supra, of
India's Reply. Paragraph 18sets out specificcases as follows:
1 Seepp. 719-742,infra.582 ICA0 COUNCIL
"After the Tashkent Declaration in 1966, there was not a single
case in which Indian aircraft overRew Pakistan, or made a non-traffic
halt in Pakistan. without the permission of the Pakistan Government.
Further, there not a single case in which Pakistan aircraft overflew
India, or made a non-traffic halt in Iodia, without the permission of the
Indian Government. In some cases, the permission asked for was
refused or granted subject to special conditions."
Then examples are given how if Pakistan wanted to land at Delhi, or at any
other place, they asked for permission and we have given the details, which 1
need not read, of how either the permission was granted or refused. When
we say this, Pakistan files a Rejoinder where, for the first time, they dispute
what they did not dispute in the Counter-Memorial and they say "No, we
always overflew India without permissionw-an assertion made without a
single example cited.
1would like to be very fair and very courteous to my ovvonents. but 1 am
afraid that hcre the bounds of fairngs to the Court ha& been transccnded.
You hate an opportunity of filing a Counter-hlcmorial. 1 tell my lenrned
fricnds, you do no1dispute the most essential basic faas. then in vour Reioin-
der, for the first tirne,-you choose to dispute them and even that denial is
without a single example being cited to Pakistan aircraft landing in India
without permission. or overflyinc!India without vermission. Because of this
startling~ and surp'rising pr&&e adopted b; Pakistan, we have now
additional documents. If ever there was a case where additional documents
have to be admitted in the interest of justice it is this. because vou have an
amazing situation where a pany having a full opportunity ofdeiying a mosr
crucial fact, chooses not to deny it in the Counter-Mernorial. but chooses to
say somethina about it in its final Rejoinder.
i\low while-~aki5tan in its final ~cjoinder has nor given one sin& example
where they overtlew lndia or landed in lndia without permission, bacause of
the bare denial. unsupported by facts, we have been comvelled to vresent
some documents where we have given specific example; of permissions
sought by Pakistan. This contradicts their statement of fact, which is patently
false, that in no case did they ask for permission.
1will come to those facts later, but before that 1wouldlike the Court tolook
at the summary at pages 413 and 414, supra, of India's Reply. 1 would be.
saving the time of theCourt if, instead of presenting an oral argument which
must unavoidably contain some repetition, 1 would read what is stated there
and make brief comments on each clause as 1 go along. It is just two pages,
but it sets out the whole case in a nutshell. The propositions are set out on
pages 413 and 414 of India's Reply. 1 will omit the first seven lines of para-
graph 25and read clause (1):
"(1) The Tashkent Declaration did not confer an isolated right as
reeards aviation. It embodied a oackaee deal. It was not onen to
either India or Plikistan to disregkd some of the material proGisions
of the Declararion and claim the benefits of the other provisions. It
is a historical fact that Pakistan refused to respect and observe the
terms of the Tashkent Declaration, and therefore the status quo
anle the armed conEict was never restored. Pakistan's refusal to
abide by the Tashkent Declaration is proved by the basic facts set
out in paragraphs 22 and 23 of the Applicant's Memorial!'
I have pointed out how in its Counter-Memorial Pakistan has not disputed
those basic facts. To continue with the quotation: ARGUMENT OF MR. PALKHlVALA 583
"Further, ArticleVI of the Tashkent Declaration merely stated that
the Prime Minister of India and the President of Pakistan 'have
agrecd to considcr messures towards the restoration of economic
and trîde relations, communtcîtions, ... and to takc meawrcs Io
imnlement the existinrr agreements hetween India and Pakistan'.
~he Tashkent ~eclara~ionitself did not embody any agreement or
decision to revive the Convention and the Transit Agreement as
hetween the two countries.
(2) The letters between the Prime Mioister of India and the President
of Pakistan in February 1966referred to resumption of overliights
'on the same hasis as that ri or to 1st August 1965'. This 'basis'
related to the fixing of routes, procedures foi ohtaining permission,
etc., and the hasis was not the Convention or the Transit Agree-
ment ..."
Now here il 1m3y pause for a minute, the word "basis" is used both hy thc
Prime Minister of India and the Prcsidcnt of Pdkistan. The \bord isambiguous
1 concede that. Surelv then it is not merelv the assertion of one Party or the
other which can decide what "basis" meah, but the basic facts can decide it.
The simple fact of the matter here is that the "hasis" did not mean that the
overflights were ta be resumed within theframework of the two treaties. What
the "basis" was is indicated in Pakistan's own signal, which is very important
on this point and which is ta be found on page 118, supra, of India's Memo-
rial. It is India's case that the word "basis" meant the routes and the proce-
dures. The hasis on which flights were to he restored was that the old routes
would hecome availahle, the old procedures would hecome availahle, but
not that the rights under the two treaties would he availablenow ta India or
Pakistan. In other words, the "basis" was not the rights and the freedoms
under the two treaties, the "hasis" was a matter of routes and procedures and
this is exactly what Pakistan itself understood the word "basis" to mean,
as you will see from their signal in India's Memorial, page 118. It is a signal
from the Director-General of Civil Aviation, Pakistan, to DGCA, India
and the first sentence is relevant:
"Para one in accordance with agreement hetween Our Governments
al1routes and orocedures which existed ri oto lüst August were to be
restored ..."
"All routes and procedures.. .were to he restorer-that is correct. It is a
far cry from restoring routes and procedures ta restoringfreedoms andrights
under Iwo international treaties.
Surely the overflights could take place on the same routes and following
the old procedures, but with the permission of the Government of India, so
far as Our countrv is concerned. and the nermission of the Government of
Pakistan, so far as their country is concerned. There is no inconsistency
between reviving the old hasis of routes and procedures and letting the two
treaties remain in suspension. In fact for six years this is exactly what hap-
pened. The routes were revived, the procedures were revived, but not the
freedoms and rights under the two treaties.
Then, 1 read further, on page 413, supra, of India's Reply, clause 3 of
paragraph 25:
"The sue--~tio~~o~ the Reso.~de~ ~i~ its Counter-Memorial that the
'basis' on which overflights iere resumed was the Convention and the
Transit Agreement. is patently erroneous, as is shown by the following facts: [Now, these are important facts and 1 would like the Court's
attention to be specifically drawn to the significance of each, as 1 go
along.]
(a) The essence of the Convention and the Transit Agreement is the
cumulative andinseverable rights to overfly across each other's
territory and to land in each other's territory for non-traffic pur-
poses. These rights constituted a single, indivisiblearrangement or
bargain. The aforesaid letters in February 1966 referred merely to
overflights and did not at al1 deal with the right ta land in each
other's territory."
This is a noint of nreat imoortance to mv case. It is common ground between
India and 13akistaithat théletters of ~ebruary 1966betuccn the two cuuntries
rcferrcd only to ovrrflights; thcy did not rcfcr IO Iandings at üII. Now, the.
two treaties-the convention and the Transit Aareement-deal with two
cumulative inseverable rights which constitute a siogle bargain between
contracting States. The two freedoms are put together in a single sentence in
both the convention and the Transit ~grëement. How can one possibly say
that the letters of February 1966 revived the Convention and the Transit
Agreement when, on the very face of the letters, they referred only ta over-
flyingandnot tolanding.Thecountriesdid not say a word in the two letters so
far as landing goes. Now, if the idea was ta revive the two treaties, did the
President of Pakistan and the Prime Minister of India suffer from such
ienorance of the Enelish lana-aae-.and were thev so ill-versed in the wavs of
d'iplomacy,that the; could not express themselves? They could not telliach
other: the treaties are revived? Did they have to use the word "basis" when
thev wanted ta revive international treaties? 1s that the wav international
treaties are revived? Now, my point is that the very fact that fhe two treaties
dealt with two cumulative rights comprising a single bargain, and the letters
referred only to one aspect, one part, of the bargain-shows that the intention
could not have been to refer to the treaties when the word "basis" was used.
Equally important is the second clause, on page 414, supra, clause (b),
which 1read:
"l.), While the aforesaid letters exoressed the willineness of the Prime
Minister of India and the ~Lsident of ~akistin ta resume over-
îlights, the actual terms of the Agreement were later embodied in
the signals exchanged between the two countries and the Notifica-
tion dated 10 February 1966 issued by India. The signals and the
Notification show that the resumption of overflights was on a
nrovisional basis and on a basisof reciorocitv and 'with the oermis-
sion of the Central Government and in accordance with thé terms
and conditions of such uermission'. Such a basis for havina over-
flights is in flat contradiction to the basis provided for ovërflying
under the Convention and the Transit Agreement under which the
freedom of overflying has to be on an enduring basis and wirhour
rhepermission of~theCovernment concerned. (I will say no more
about this because 1 have covered this point, 1 hope, adequately
already.]
.c,The Notification of 10 Februarv 1966 was issued bv India to
implement and give legal shape Cothe special ~greement of 1966
and it was declaratory of the understanding of the two Govern-
ments with regard to the resumption of overflights." ARGUMENT OF MR. FALKHIVALA 585
If 1 may pause here for a minute. There is a notification published by the
Government of India on 10 February 1966. Pakistan is immediately made
aware of tbat notification. That notification is completely inconsistent
-Pakistan does not disnute that-with the Convention and the Transit
Agreement. If the understanding between the two Governments was to revive
the two treaties, would you expect Pakistan to make no protest? Would it
quietly accept the notification? There was no protest frnm Pakistan. Now, if
municipal law-the law of India4ategorically says something which is
contrary to the two treaties. and Pakistan does not protest. and that law-the
notification-is ~ontem~oraneous evidence of what the parties intended by
the word "basis" used in the Prime Minister's letter, does it teave any room
for doubt as to whetber the parties intended the two treaties to be revived?
This iscontempor~nenus evidènce.The signals arc of the first half of Fehruxry,
the revival, according IO Pakistan, of the treaties isiitthe same timc, and
India's notificütion is at the same rime. The notificationsineles out Pdkistan
for a specific prohibition, and no other country of the woad. 1 say, in the
light of this evidence, it is unstatable that the two treaties were revived. 1read
further in clause (c):
"(c) ... The Notification was embodied in the Aeronautical Informa-
tion Circulars issued bv India which were circulated to ICA0
and given internationaldistrib"tion visualised in Annex 15 of the
Convention. There was no protest or objection by Pakistan or any
other oartv arainst the Notification or anv Circulars embodvinp.
. .-
the Notification uhich ncgativcd the freedoni of overflying und&
the Convention and the Transit Agreement. [In the Rejoinder
these basic facts are not disputed.] . i/
(d) Between 1966 and 1971 Pakistan aircraft invariably cornfilied
with the said Notification dated 10 February 1966, and overflew
India onlv with the ~ermission of the Indian Government. Further.
on a number of occxsions betucen 1966 and 1971 Pakistan asked
for express permission IO let its aircrnft land in Indis. [Thc rcfer-
ence is made to the examples cited earlier in this Reply.] Such
request for permission would have been wholly unnecessary if the
Convention and the Transit Agreement had heen in operation
between the two countries after 1966, as suggested by the Respon-
dent. Further, permission to land for non-trafic purposes was in
fact refused in several cases by India, as mentioned ante, in
negation of the freedom assured by the Convention and the
Transit Agreement. It is inconceivable that Pakistan would have
asked for permission or accepted the refusal without protest, as it
did, if the two treaties had been in operation between India and
Pakistan."
This fact remains undisputed in Pakistan's Rejoinder-that even wben per-
mission Poland was refused to Pakistan there was no protest.
Now, on these facts my submission is that 1 have proved the case that be-
tween India and Pakistan the suspension of the Convention and the Transit
Agreement continued.
1 come now to the two s~ecific instances which are soueht to be ~ressed
into servicc hy Paki5tan to ihow that the Convention and fransit agrkment
were rcvived as between the Iwo countries. Thcy have no specific instance
-no1 a single one-of ovcrflvinr or landina in India without the Indian
~ovemmen?~ permission. ~owever, they cite two cases unconnected withovefiying or with landing, but which, according to them, show that there was
revival of the two treaties: Pakistan's Counter-Mcmorial, paragraph 14, Erst
incident is in clause (a):
"In 1969,an Indian aircraft met with an accident in East Pakistan. In
accordance with the vrovisions of the Convention. Pakistan investiaated
ihe accident. lnvoking Annîx 13 to ihe convention, India nominatëd its
represenintive on the enquiry and requested Pakistan IO grant the
necessary facilities to the Indian representative and advisers."
Now this ... "lnvoking Annex 13 to the Convention, India nominated
its representative ..." is a false statement. 1 have contradicted it in my
~eply, and in the Rejoinder my contradiction is accepted. Surely, in pleading
before the Court, Parties should be a little more careful how they state the
basic facts.
"Pakistan afforded full facilities to India in accordance with the
Convention and Annex 13. During the course of the investigation, the
Pakistan Insoector examined the Dutv Air Traffic Controller of Calcutta
Airport in &der to ascertain whetherihe provisions of ICA0 Document
4444 had been complied with by them"
Now the simvle facts are these. An Indian aircraft crashed in Pakistan.
~akistan-in fairness to it it must he said-gave al1 facilities for a proper
investigation. Our representatives went to Pakistan; we never invoked the
Convention for claiming the right to go to Pakistan. There was an investiaa-
ti&nand some findings uerc giten. 1nsÏeadof taking up your lime and arguing
this orally, if 1 may just request you ro iurn to a few sentence, in [ndiii's
Reply which are set out on page 410, paragraph 21, clause (i):
"Pakistan's alleaation that 'Iovokinrr Annex 13 to the Convention.
India nominated ilrepresentative on the enquiry and requested ~akistan
to grant the necessary facilities to the lndian representative and advisers'
is incorrect. The first intimation of the accident referred to was received
from Pakistan which sent a signal to India stating, inrer alia-
'Nature of the accident not known. Aircraft destroyed. Awaiting nomi-
nation of yr representative.'
In reply, the D.G.C.A., India, sent a signal stating, inrer alia-
'V.N. Kapur Controller ofAeronautica1 Inspection Calcutta nominated
as our representative on the inquiry. Please advise the place and date
on which his presence is required.'
The two telegrams referred to ahove make it clear that it was Pakistan
which invited India to nominate its representative and there was no
question of India 'invoking' Annex 13 to the Convention."
1need not read the rest.
Then we point out that actually, even apart from the Convention, most
civilized countries have their own municipal laws under which they provide
for investigation into an accident. India and Pakistan certainly have snch a
provision in their law. Pakistan law is Rule 77A under which you hold an
investigation into the crash of an aircraft, and you invite the foreign country
to which the aircraft helongs to send representatives to participate in the
enquiry. Pakistan's law is set out in India's Reply at page 411, supra, and if
1may read the four lines following Rule 77A before 1close for the day: AROUMENT OF MR. PALKHIVALA 587
"It may be noted that the foregoing Rule [Le., Pakistan's Municipal
Law] envisages participation in inquiries and investigations by a repre-
sentative of the country of registration, regardless of the question
whether such a country is a party to the Convention or not..
TheCourt rose of1p.m. FIFTH PUBLIC SITTING (23 VI 72, 10 am.)
PresenC [See sitting of 19 VI 72, Judge Lachs absent.]
Mr. PALKHIVALA: May it please the honourable Court. Yesterday 1
dealt with the first of the two events relied upon by Pakistan in its Counrer-
Memorial for suaaestina that the Convention and the Transit Aereement
continued in opeiition between the two countriesnfter February 1566. The
tirst event which Pakistnn relies upon uras the crash of an Lndian aircraft in
East Pakistan in resoect of which Pakistan ordcred an investiaïtion inta the
causes of the crashand India sent its representatives to participate in that
investigation. Pakistan's contention is that because you send someone to
oarticioate in the investiaation it means vou regard the Convention and the
'îransit Agreement as being in operation betwgn the two countries.
Now, on that point, 1 had requested the Court's attention to India's Reply,
~araara~h 21, oaae 410, suora.and that is where 1 was when the Court rose
yesterday. 1 hÜd &ad clausi fi), which points out th31 Pakistan's allegation
that India invoked Aniiex 13to the Convention for the purpose of nominating
its representative on the enauirv to be held in Pakistan is clearly incorrect. It
was ~akistan which sent a signal, as set out in paragraph 21 of lndia's Reply,
at page 410. India, in reply, sent one MI. V. N. Kapur. India did not invoke
any urovision of the Convention for takina part in the enauiry.
~he second point is set out in clause (i).inIndia's ~e~l t~e ame p3ra-
grnph. Il is pointed out in that paragraph that civilized nations have their
own municipal laws under which investigations are made into crashes of
aircraft whether belonging to the countiholding the inve~tigation or toa
foreign country. India ha.<such a Iaw. Pakistan has such a Iïw. which is sel
out in that clause fi') of Indiî's Kcply. paraaraoh 21. and the lasi sentence
.... -.
on page 410, clausi iii), paragraph 21, is relevant. It kay be noted that the
foregoing rule-tbat is the Pakistan rule providing for an investigation into
an air crash-envisanes narticination in enauiries and investiaations b~ a
representative of the &uniry of iegistration regardless of the quesrion wheÏher
such country is a party to the Convention or not.
WCfurther point out, in the same paragraph 21, that al1 over the world
the same practice is followed, whether thccountry is asignatory to the Con-
vention or not. We give, for example. the instance of an lndian aircraft
meeting with an accident in Neoal in hiarch 1958whcn. also. India's reoresen-
tative Gent to Nepal to participate in the investigation, although Nepal is
not a party to the Convention. Pakistan says in the Rejoinder they are not
aware of this incident. Possiblv they are not: but the whole file referrina to
the accident in Nepal. where 1"dia participatcd in the enquiry uithout ~ëpal
being 3 party to the Convention, is availablc hcrc for inspection by my learned
friends.
The last thing pointed out about this incident by India is in clause (v) of
paragraph 21, at page 411, supra,of India's Reply, where we point out that
Pakistan's considering whether the Indian pilot had followed the provisions
of ICA0 Document 4444 does not mean that between India and Pakistan the
Convention was in operation. These provisions lay down the norms, the
standards, of safe, efficient and competent aviation, and, whether you are a
party to the Convention or not, youwould naturally follow these provisions ARGUMENT OF MR. PALKHLVALA 589
which are for safety in aviation. We would follow those standards and norms
wherever our aircraft flies, in any part of the world. If it Aiesover Pakistani
we would follow the same norms of safe, efficient aviation, whether the
Convention is in force between Pakistan and India or not.
Sa, to conclude from India following the safety norms that it went on the
basis of the Convention being in force between India and Pakistan is really
to state the unstatahle.
The second incident, which is referred to in Pakistan's Counter-Memorial
-and the only other-is the one set out on page 374,supra,paragraph 14,
clause (b). That incident, as related by Pakistan is as follows:
"(b) During the Middle EastISouth East Asia Regional Air Navigation
Meeting held in Manila in November-Decemher 1968,an informal
meeting took place hetween the representatives of Pakistan and
India on 21 November 1968 under the Chairmanship of the Presi-
dent of the ICAO Council to resolve the matter concernina the
houndary hetween Lahore and Delhi Flight Information ~egions.
It was agreed that the Civil Aviation Administrations of the two
countries~should meet under the ausoices of ICAO to resolve the
niaricr. The maiter involvcd \\asthc implenicnrïrion of reconimen-
dïtlon, of ilic Liniited I<rgioiialAir Naviy~tiun >leciing hcld in Ge-
neta in 1965.A meeting u,iisïciordingly held in I3ïngkuk in 1971."
Now, the ansuer to that is, again, fairly simplc. India and Pdkisran con-
rinucd to bc parties ru ilie Convention. IIis only as bcrween the t5r.ocountries
inrrr je that the Convcnrion stand; ruspcndcd. The good oiliccs of ICA0 and
iis Prcdent are alway, available for any assistance Iiidili or I'akist.tn may
want. As rhc Cuurt i$ probïbly aivare, the Flight Informxtion Rcgiuii is the
re-ion which cames within a Darticular station. Su~~ose a. .ircraft flies
(rom one country to ïnuthrr, if is a niartcr of agreement bcitveen the itvo
couniries as to the diriancc up to uhich the first country will direct and a\rist
the aircraft alid beyond tvhich ihc orher country~s g-ouiid staR\\ill tlkc ovcr.
On ihis poinr cuuntrier havc to &grecheciiuse, other\r,isc, there nould be a
certain intcrval ur nrea whcn the plane ivillbc \r.irhuut sny arsirtlincc from the
ground.
There was a dispute between India and Pakistan as to the extent to which
Pakistan should give guidance ta the aircraft in the air, and beyond what
boundary or point India should take over. For this, under the good offices
of the ICAO President, thecountriesmet in Bangkok and an informal meeting
was held hetween India and Pakistan under the chairmanship of the ICAO
President and the delegations of the two countries agreed ta make certain
recommendations to their Governments. These recommendations have no
relevaitce ta the qiiestion i~fopsratioii of the C:on\cniii~n heiiieen thc IWO
countrics. This issct out in plraçraph 22 uf India'; Keply.
Incidentallv. the date 1971. mentioned b\ Piikistan. is insorreci. lt hhould
be 1970, whek'the meeting was held in ~angkok.
Now, neither of these two incidents has any relevance to the real question
arisine hetween the Parties. namelv. did India and Pakistan revive the Con-
vention and the Transit ~LreemeGafter February 1966?The two incidents
referred to by Pakistan havenothing to do witb either overflying or landing in
each other's territory.
There is just one more thing which 1 shoiild like to point out, which 1
mentioned yesterday but 1would now like to give the precise references. 1had
mentioned yesterday that in India's Memorial, paragraph 20, page 32, supra,India had set out four basic facts ~r~ ~w~ich i-~wants this honourable Court
to draw the inference that the Convention and the~r&sit~greementcontin-
ued under suspension from 1965 onwards up to date. Two of the facts which
are mentioned in paragraph 20 of India's Memorial are, that for overflying,
Pakistan had always to ask Iodia's permission; it is only permission, not
special permission which you ask for on each occasion, bccause you may ask
for permission for the next six mooths. So what India says is-1 am repeating
the exact words:
"Under the Special Agreement of 1966 [that is the Special Rkgime]
overflying was permitted only with the permission of the Government of
India. .. [I am emphasizing the word 'permission']."
By contrast, Iodia points out, using words accurately, 1 hope, that when it
cornes to landinrr -or non-trafi~ ~~~~ ~r ~ ~ F - - ~ had to seek India's
special .. . permission . ..", because laiiding has to be for each airçraft
separaiely. On scheduled services, Pakiçtan did no1 land in lndia after 1965
and India did no1 land in Pakistan. But if a dane on a non-schcduled flinht
wanted to land, it had to be with special pçr&ission, special to thnt particu'lar
plane. and it could no1 be gcncral permisrion for a period of, say, six months.
ln its ~ounter-~emorial. wbat ~akistan has done is this. It has said nothina
about tbe question of landing at all-in other words, not contradicted the
fact that for landing, special permission was necessary. As far as overflying
is concerned, Pakistan says that no "special permission" was necessary. n ut
that is not controverting or denying what India has said, because India has
never alleged that special permission was necessary for overiiying. All that
India has said is that permission was necessary.
If 1may refer to Pakistan's Counter-Memorial, page 377, supro, paragraph
21:
"Pakistan maintains that ovedights across eacb other's territory
were restored and resumed on the same basis as that prior to 1 August
1965. It is denied that the overiiights were restored on a provisional
basis or on the basisof reciprocity or were subject to special permission
as alleged by India."
India has made no such allegation. The real allegation of India that over-
Byinghad to be with the "permission" of India, not "special permission", that
fact stands uncontradicted; and about landings, as 1 have already said,
Pakist.~~~~~ ~ ~~ ~~ ~e~e~t at all.~ ~~ ~ ~ ~ ~
In this state of afiairs, it becomes necessary. when you look at Pakistan's
Rejoinder, to see whether Pakistan is entitled now to bring in material which
it never did at the stage of the Counter-Memorial. 1have no objection to it
being looked at; it is factually wrong. All that 1want is that, according to the
elementarynotions of natural justice, 1should have an opportunity of meeting
a point which Pakistan had the chance of making at the stage of the Counter-
Mernorial and chose not to make at that stage.
1must Sayin fairness to Pakistan, they do not object to the production of
new documents by Indial. What they do say, is that the notes which 1 have
annexed to the new documents cannot go as a part of the written pleadings,
according to the Rules of this Court. Pakistan is right there-1 am willing
that the notes be withdrawn. 1shall use the notes as part of my oral argument.
The object of those notes was not to go beyond the Rules of the Court; the
object was to assist the Court in understanding why these documents are
1 See pp. 719-742 and p. 787.infra. ARGUMENT OP MR. PALKHIVALA 591
sought to he nut hefore the Court at this stage. The documents which are
proiosed to b; producrd fall into proups A to~. The honourable Coiirt will
direct thdi the noteç he withdrawn. and only the b~sic documents will go on
record under the Rules of the Court.
Among the new basic documents which India has iüed in Court, Group A
deals with Pakistan's case which is set out for the fust time in its Rejoinder
on page 463, supra,and the case is this 1fmay read paragraph 18:
"The statement made in Parama~h 18 of the Ren.. bv.the Au~licant
is denied. It is stared that there Trr two types of aircraft operario(a,
ssheduled and (hl non-schedulcd. In rcspest of schedulcd services no
permission is required under the Transit Agreement for either non-traffic
landings of for flying across the territories of the parties to the Agree-
ment. [Now the sentence.] There is not a single case where permission
was sought by either Pakistan or India in respect of scheduled services
for making non-traffic landings or flying across other's territory."
This allegation that permission was not sought hy either country in a single
case after1965 for scheduled services. either in resoect of overf.vi-z or in
respect of laoding, is a factually incorrect statementWe have chosen not to
hurden the Court's record with a voluminous mass of material which would
cover al1the cases; we have picked out at random a few examples. In Group
A are the documents which show-they are photostat copies-Pakistan's
national airlines seeking permission for overflights for scheduled services. In
Group B are documents under which Pakistan has granted permission to
India for overflights for scheduled services. That disposes of the scheduled
services point.
As regards non-scheduled services, Pakistan says in paragraph 18 of its
Rejoinder:
"ln the case of non-scheduled services, ni) prior permirsion is required
for making non-tratfic Iïndingr under Article 5of thc Convention. [That
is correct.-under the Convention no ~ermission is reauired.1 However.
in respect of overflights of non-scheduied flights, ttat tvirflown has
a right to require landings in its territory. [Now the important sentence.]
It is denied that prior permission was requested for non-scheduled
flights ta make non-traffic landings in India. As regards instances
enumerated in Paragraph 18 by the Applicant, it is stated that the in-
stances firstlv. relate to non-scheduled flightsand secondlv. relate to
obtaining ~LDefence Clearances as req&ed under the Air Defence
Regulations laid down in the Aeronautical Information Publication of
1ndia and apply to al1aircraft irrespectiveof their nationaliand do not
apply to Pakistan aircraft only. The Air Defence Clearance does not
constitute 'prior permission' aslleged by the Applicant."
What I have just read involves two propositions. First,it iovolves the pro-
position that in respect of non-scheduled services, for landing no permission
was asked for. "It is denied that prior permission was requested for non-
scheduled flights ta make non-traffic landings in Iodia": this statement is
factually untrue. India has given five specific examples in its Reply to show
that permission was asked for after 1966 for landings in respect of non-
scheduledflights. Further instances are in Groups C and D of the new docu-
ments. In Group C we have placed the documents where Pakistan sought
permission for landings in respect of non-scheduled flights, and in Group D
are the documents showing that Pakistan granted permission to India for
landings for non-scheduled flights. Therefore these Groups C and D, in ARGUMENT OF MR. PALKHIVALA 593
fore. Pakistan's own conduct is cleady aga.ns. the theory which it chooses to
propound before the Court.
WChave pot alsothe acron3uiicïl information publications of othernations
also which prohihit overflichtj of Isriiel and certain othcr countrin and do
not nch~~sh~ ~~ ~ ~ ~ications in their aeronautical information oublications.
sithe plea of ~akistan-that 1have published the notifications;n the wrong
nlace-that 1have ~ublished them Pakistan does not dispute, but it says that
1 have published <hem in the wrong place, is contrary to Pakistan's own
practice and the practice of other countries. Those aeronautical information
publications of Pakistan, India and other countries are available for inspec-
tion hy my learned friends and hy the Court.
Group E deals with this point. There we have given instances of Pakistan,
Iraq and Egypt prohihiting overflights of certain countries likeIsrael, Rhode-
sia or the United States of America, while those prohibitions are not con-
tained in their aeronautical information publications. The truth of the matter
is that what 1have done is the correct thing and it is doue by other countries.
Group Fi, not my document. It 1, a documcnt rïfcrred ta in paragraph 78
of I'ikisran's Rejoinder. They rely on the Josument, but on a proper re.tding
of the document it su~oorts me. Because Pakistan has chosen not to annex
the docunient, u,hich iihür relied upon, 1am plxcint: it hrfore the Court.
With these prelimin.iry wi~rds.may 1rcquest the Court IO omit the notes
snd merelv look at the basic new documents. Groupr A to C. 1will not read
every doc;ment in every group but only one documënt in each Group to Save
the Court's time.
Take Group A, that is, Pakistan seeking India's permission for overflights
for scheduled aircraft. Group A.l is the document of February 1967 where
Pakistan International Airlines Corporation, which, like Indian Airlines and
Air India. is a 100Dercent. government-owned corporation, asked for India's
7~rmiss~ ~ ~o o~ ~ ~ , India-for a certain neriod: and the words are. in the
last but oneline: "You are reqiieitcd to plchsegive us neceiwry permission."
Then, in Group B. ).ou have the cases where Pakistan granted permission
to India for ovcrfliehts owr P~kistan bv Air India. that 1s. India's national
airline, and if 1 may read again only one document, that is, B.l, the third
line: "Permission accorded to ... India to operate to their scheduled service
overfl.ine-akistan territorv on the nrescribed ... Iroutesl .. .". etc.
Then, group C deals wifh ~akisian seeking permission for landings for
non-scheduled fligh.s. For an example, 1 want to take out the one which is
the longest.
So far as C.6 is concerned, 1 have got the original file of the basic docu-
ments. The whole iiie is here, but, since the documents are numerous, we
have kept the original file for inspection by my learned friends, and 1 shall
only state the summary of those documents in my own words since the notes
will disappear from the record. Out of this file of several documents the one
placed before the Court is C.6. Now the facts of the incident are these. On
3 Novemher 1969 the DGCA Pakistan requested the DGCA India to
confirm that there would be no objection to theferry flightof aBeaver Aircraft
AP.AVH from Lahore to Dacca on 617 November morning with technical
landing at Delhi.
On 4 November 1969, DGCA Pakistan was informed that the matter
was under consideration. On 5 Novemher, Pakistan followed up the earlier
request with a diplomatic note. They also sent a signal on 6 Novemher
requesting to "rush" permission.
The request to "rush" permission was repeated by the DGCA Pakistanon the afternoon on 7 November, giving a revised itinerary of the proposed
flight oe 8 November. India decided to turn down Pakistan's request to
operate the flight Lahore/Delhi/Dacca. Accordingly, DGCA Pakistan was
informed by a signal on the evening of the 7th that the fiight would have ta
be from Karachi via Ahmedabad-Calcutta. The DGCA Pakistan was
also asked by signal ta furnish a new itinerary with the stipulation that the
flight should not-repeat, should not-operate without clearance from
DGCA India.
On rcceipt of this signal, DGCA Pakisran replied,on 8Sovembcr, to rhe
effect th31 the proposcd fiight \\as on thc route Lahore Delhi,Uacia. :ind
furnizhed a rev~%d itinersry for 9 Novcmber. The DGCA Indi3 seni hxk
a signal disapproving of the-flight Lahore/Delbi/Dacca and insisted that the
flight should be routed from Karachi via Ahmedabad and Calcutta. The
DGCA Pakistan stated that the aircraft was stationed at Lahore and
requestcd again for clearance of the flight from Lahore via Delhi.
On 10 November an explanation was furnished by DGCA Pakistan
whv the aircraft could not flv from Karachi via Ahmedabad. and aaain
rçiaotcd that the pcrnlission &hl he granted. The rcqucst \ws iurncd down
by lndis finally on10 Novcmbcr 1969. Yer nly le.rnied friend 5aJ.schdt in no
case did heask for ~crmission for landina in India for non-scheduled fliclits.
So far as D is concerned. ue have givcn-hcrc an c~nmple of Pakistan
ing permission toIndid for Ianding in Pakisran oniinon-rchcdulcd ilighr.
"E sets out the entries from Jep~esen's Airww Manual, which is the
standard iiirwiy manual. uhich shOt;s thnt l?ikistin has proh!bitcd o\.cr-
flying by Rhodesian and liraeli aircrafr. Yow this prohihitii~n, uhich is in
force. is no1 in Pakisrnn's aeronaurical infurmarion ~ublication (,\IP). 3s 1
have alrcady pointed out. though it niny ucll bc the subjcct-riinrter of an
acronauiical information circular. jus1as Indm hls made a similar prohibition
against Pakistan the subject-matter of a circular.
The next document in "En pertains to Iraq.Iraq has also prohihited aircraft
of the United States of America from overflying or landing in Iraq, but you
will not find that prohibition in the AIP Iraq. And, finally, Egypt hasrobib-
'ited aircraft of Inael, South Africa and Portugal, but this prohibition is not
in the AIP Egypt, thoughit may well be the suhject-matter of circulars.
Finally, in E, you have document E.4, wbich sets out the front page of
AIP India. II savs in hold letters what 1have alreadv said: "Consult Notams
and aeronautical information circulars for latest information." In the AIP
itself we have got a~aragraph which is re~roduced in E.5, which points out
how this type ofinfoÏrnat~on~wil1be foundin the circulars and those circulars
would contain notifications issued under the the Indian Aircraft Act and
Rules.
Groub F is the document which is referred to bv Pakistan in nara.ra~-.
78 of its~ejoinder.
Group G deals with the air defence clearance regulations wbich Pakistan
has invoked and which are comnletelv irrelevant to the auestion of oermission
for overfiying. In this Group wépoint out how these defence regulaiions came
into forceonly in 1968,and they apply to al1aircraft, Indian and non-Indian,
and they apply only to certain defined areas where certain defence activities
-.-, -- carrieo....
Having finished with these new documents, the final point 1 have to make
about the s~ecial remme is this. The s~ccial réaime, as set out in the notifica-
tionr \\,hichare reproduced on page 12O,sripra,oflndia's Mernorial, Annexure
3, uas that Pakistan was prohibitcd from ovrrflying India except wifh the ARGUMENT OF MR. PALKHlVALA 595
permission of the Indirin Govcrnment. Aftcr the htjacking incident. al1thai the
Indian Government did \\,as to wiihdraw thlit permission, which it was
undoubrcdlv cntitlerl to do. The ~rohihition on I'akistan aircraft overflvina
and landingin India was in force as early as September 1965.~ermission.wai
given from time to time, either general permission or special permission,
between February 1966 and February 1971, and in February 1971 that
permission was withdrawn-that is al1that happened in reality. Now, if this
permission was wrongly withdrawn, it isadispute pertaining to the bilateral
aereement or the soecial réeimeof 1966. At the time of the votine before the
ICAO Council, ~akistan accepted the position that the Council had no juris-
diction to deal with disputes pertaining to bilateral agreements. It is only if
this Court cames to the conclusion that there was-no soecial rkeime or
bilateral agreement from February 1966onwards that the s;bmission 1 have
already made will arise for decision, namely that in that event the Coiirt will
be pleased to hold that the Convention and the Transit Agreement which
were, on that reading of the situation, in operation, suspended in February
1971.
In short. if the soecial reeime argument is reiected. the necessarv corollarv
is that the konveniion undïhe ~rdisit grc ce m endtcontinued ln force ub
ro Fchruary 1971.In that cvcnt those two treatrcs should be held to have heen
susoended bv India in Februarv 1971
~his corniletes the argumen; as to the Cnuncil's jurisdiciion. Thcre isjust
onc point 1shoiild like ro rcvcrt to and ihat 1sthe point aboiii the Compla~nr.
No action was taken by India under the Transit Agreement. 1shall only say a
few words about it. In that connection 1 would request the Court to turn to
India's Reply, where we have set out a certain document of the ICAO
Council. The ooint. as the Court will be oleased to recall. is this: if a State
has suspendedthe ~ransit Agreement, it cànnot be said tobea case of action
rmder the Transit Agreement, whereas a Complaint is competent only in
cases where action istaken under the Transit ~beement. ~h& is the special
point peculiar to the Complaint of Pakistan as distinct from its Application
before the ICAO Council. Now. on that point India's Reply, paragraph 76,
quotes a relevant extract from a document of ICAO:
"Termination or suspension of the Transit Agreement, or cven a
breach of the Transit Agreement, cannot be the subject-matter of a
Complaint under Section 1 of Article II. Dr. Eugene Pepin, the then
Director of the Legal Bureau of ICAO, in reply to a question from the
Chairman of the Working Group nominated by the Council for pre-
paring the Rules for the Settlement of Differences, gave the following
answer at the Working Group meeting on 14July 1952:
'...in the Air Transoort and Air Transit A-reements there is a case
of complaints which involve no1 something wrongly done in respect
to the provisions of the Convention but something donc in accordance
or in ounuance to the orovisions of the Ameements but which causes
hardship or injusticet8 another Party. ~herefore 1 think there isa
fundamental difference between a disagreement, which is something
contrary to the Convention, and a complaint which is something
exactly pursuant to the Convention but which causes injustice'."
This opinion clearly supports the proposition 1 have been urging, namely
that the case of suspension cannot be said to be a case of action under the
Transit Agreement. There are other documents of the ICAO Council, whicharenoton record, which express exactly the same view and they are after this
document in point of tirne.
1come now to the final submission in the case. If 1am right in what 1 have
so far submitted, this final point does not arise for consideration. It can be an
additional groundfor resting the Court's decision in my favour, but it neednot
be dealt with, if 1am right on the first and101 second preliminary objection.
The final submission is this. Assuming that the ICA0 Council had jurisdiction
to deal with the case, they have dealt with the case in a manner and have
followed a method which clearly vitiates the decision in law. This will involve
only a look a1the admirted facts and 31the Rules of the Council. sihich ithad
Io observe in coming to a decision.
Mav 1request the Court to turn Io India's Mernorial. page 54, sripro,p:îra-
graph 93. In particular, 1 refer to the three grounds whtch are set out there in
support of the submission that the rnanner and rnethod adopted by the Coun-
cil vitiated the decision:
"(1) The decision of the Council wasvitiated bythefact that thequestions
were framed in the wrong manner. The propositions put to vote
were framed in a negative manner. namelv. ~'~.e.ouici1 has no
jurisdiction .. .'insic-adof being frarned in a positive way, narnely,
'The Council har jurisdtcrion ...'."
Now, before the voting began India pointed out that the propositions
should not be framed as they were. 1 shall now mention how this type of
framing of the questions is wrong and how, in fact, it kas resulted in a mis-
carriage of justice. The Rules for the Settlement of Differences (India's
Memorial, Annex J) deal with the question as to how an application or a
complaint is to be dealt with. Article 52 of the Convention sets out what
should be the voting pattern in order to support a proposition.
First of all, 1 refer to India's Memorial, page 314, supra, Article52, which
reads: "Decisions by the Council shall require approval by a majority of its
members." Now, this is the crucial basis for approval of a resolution. It
requires approval by a majority of its members. The number of members of
the Council is 27, and what is needed is a majority of this number, which
means that 14 must be in favour of a .ro.osition.
Nu~vborne may vote. sornc may ab,tdin from voiing. To take the concrere
case of the Complaint, the propositioii before the Cuuncil %vasthat the Coun-
cil had no iurisdictiun to deal with the Coniolaint. The number \\,ho voted in
support oithe view that the Council hadjthdiction to deal with the Com-
plaint, was 13.
If you would kindly turn to the facts as they are set out in clause 2 of
paragraph 93 of India's Memorial:
"The decision of the Council as regards the Complaint is directly
contrarv to Article 52 of the Convention which orovides that 'decisions
by the ~ouncil shall require approval by a majority of its members'. The
Council's decision that ilhad jurisdiction to consider the Respondent's
Complaint was no1supported by a majority ofthe Members of theCoun-
cil. As regards the Council's decision on the Complaint, the Applicant
submits that there was gross miscarriage of justice as a result of the
auestion having been been wrongl~ framed. If the auestion had heen
r.~ghtl~frdmed ind ifthe propositi~n that the Council had ~urisdictlon 10
consider the Respondent', Cornplatnt hdd been put 10 vute. the dn.i\ion
of the Council would have heen in favour of the Ao~ii..nt on the same
pattern of voting." ARGUMENT OF MR. PALKHlVALA 597
The Court will find the oattern of votina in India's Memorial. at .aae.-86,
srrpro.The Court will kindly recall that thé proposition put to vote was thisi
the Council has no jurisdiction to deal with the Complaint. If 1 read para-
graph 135 1think it will make it clear:
"We go noiv to the nexi questicin, concerning Carc No. 2: [ihat 1. ;e
Coniplainr] thxi the Council h3s 110 Jurisdistion to consider P3kisian's
Ciimnlxini. The Comnlaint h:is to do uith the Transir Arrecmenr:
therefore only those Sidtes that are parties to that ~greemeit, except
India, are entitled to vote. 1 will ask those who think that the Council
has no jurisdiction to consider Pakistan's Complaint to so indicate by
saying 'Yes' [so if you say 'Yes' itmeans Council has no jurisdinion]
and those who disagree with that to say 'No' .. ."
Therefore, if a member says "Yes" it means Council has no jurisdiction, and
if a member says "No" it means the Council has jurisdiction.
Thirteen people said "No"-that means the Council has jurisdiction; and
the United States said "YesW-that means the Council has no jurisdiction.
Then the final decision, as set out by the President, is on page 287, sirpra,
paragraph 137: "There was one vote in favour [that is saying Council had no
jurisdiction], 13 votes ogoinsrand 3 abstetrtions."
What is the practical outcome of this voting? Thirteen people said that the
Council had jurisdiction to deal with the Complaint. Suppose the proposition
had he-.~~-r~~~ t~e a~firmative form: the Council had iurisdiction to deal
with the Complaint; then 13would have voted in favour and the proposition
would have been lost hecause, under the Rules of the Council the majority
of the members have to vote in favour, otherwise the proposition is lost.
The Council has a curious rule-that, although the parties to the Transit
Agreement are fewer in number than parties to the Convention, it is the total
number of members of the Council of which the majority must vote in favour
of a proposition even in cases arising under the Transit Agreement. I will not
waste your time arguing this in detail because this is common ground and it
is not disputed even by the ICAO Council. The ICAO Council accepts the
proposition that 14 must vote in favour of a proposition before it can be
carried even in cases arising under the Transit Agreement.
The point at issue, therefore, so far as the Complaint is concerned is a very
simple one. The Council itself accepts the position that 14must vote in sup-
port of a proposition. 1 repeat that if the proposition had been put this way:
the Council has jurisdiction to deal with the Complaint, then 13, on the
actual pattern of voting, would have voted in support and the proposition
would have been lost. Because the proposition was put in the negative way
-the Council has no jurisdiction-that proposition was also lost, because 14
did not support it. Thus on the same pattern of voting, 1 lose or 1 win. just
depending on which way the question is framed. That shows the importance
of framing the question in the right way.
My point is that it is for the party which goes before the Council to prove
ailirmatively that the council has jurisdiction. On that point there is a lumi-
nous passage in the opinions of Judges Sir Percy Spender and Sir Gerald
Fitzmaurice, in the Sorrrh West Afiico cases:
"... we must begin by recalling that, since the burden of establishing the
iurisdiction of the Court lies on the na.tv . assertinrr it. and this must be
ktablished conclusively ... it is for the Applicaits to show that the
Mandate 1s beyond reasonable doubt a 'treaty or convention in force' ARGUMENT OF MR. PALKHIVALA 599
where by a majority of the votes available in the Council the matter is decided.
So if any judge abstains from voting it can be a mark against me, bis mere
abstention is enounh to prejudice my case. And the point hereisnot whether
you un count up the votes 3nd dererkine iihich way ihe Jecision uould have
gonc ifeverybody had been gi\cn rime; the point is thiir justice rnust nor only
be done, but must be seen to be done.
1 cannot conceive of a decision which would be upheld by an appellate
coun when, as the record shows, numerous members told the learned
President of the Council they had not understood what had been araued and
they \iould like to hiibe tirni. fven uhcn tirne uiis aslied for ona rîsolutinn
moved by Czechoilovakia and supported by Russiï, not one lotcd agdinst
tirne heing given. l'he Court \riIl rïcdll that. The resoluriun \%aslost hecause
only eight persons voied for defcrring the decision.
In other words, there ij nobody aho sny,, let the maticr no1 be dcferred:
but others abstained. Merely because the others abstained, time was not
given, and the rerolution nioved hy C~echoslov;iki;i f~rdefcrririg the de.',sion
\vas lost. Now the poiiit is thaitihere isa body sittingiis a body of 27, and 14
members have to vote in favour of a proposition, itis necessary that every-
body must have the chance of voting-not voting as mechanical robots, but
voting as minds having been applied to the problem before coming to a
decision in the matter. There was no decision in law. The process of decision-
making was not adhered to, as is required by the judicial process; that
process was flouted.
india has ouoted vanous oassanes from renresentatives of the United Kina-
dom. ~zech~.;lovakia. the ~oviet-[!nion and Ugandü. uho say that the! ii&
not in a position ro decide tliis rnarter, plabe give us tinie. Those piibages are
nll set out in Indin's Slernorial, p3r~gr:iph 96.To shuu, hoii. gra\e and ncll-
founded the obje~tion of these gentlenien U:I<,1have IOread ifci<seniences.
Firsi, in Air hlarshal Kiissell'sst;iiernent-the reprezcniiitivc of the United
Kingdom:
"1 could not regard it as reasonable for me, myself, to participate in a
decision here and now on the merits of the Preliininary Objection. which
for me turns entirely on questions of law. To that extent 1;hall therefore
not be able to support any positive action on the substance of the matter.
For me it is essential to obtain legal advice on the arguments which have
been presented before so participating .. ."
Now the Court will make a distinction between this case and the cases
where the judge abstains from voting, as for example in the United States,
where Justice Frankfurter was asked to deal with a matter involving the
making of raucous noises on the Street. He said in effect: "My own feelings
are so strongly engaged in the matter-1 have been myself a victim of these
noises by people who have no civic sense-that 1 will not decide this matter."
That kind of abstention is a different thing. where a iudae beinn- -uip~..
and able to decide, cbooses not to decide. BU t^is is a cisewhere a man who
was supposed to judge says: 1 want to decide but 1 am not in a position to
decide today: todav is not the time for me to decide because 1want to study
and u~de~ ~ ~ ~ A& v-- the Council eoes-to a decisinn
The representative of Czechoslovakia says "I am not a lawyer ... 1 too
would like to have the possibility of consulting my Administration". The
Soviet Union representative says ''1 must request time for such consultation
after receiving the complete records from the Secretariat. 1 believe that a600 ICA0 COUNCIL
week or ten days would be necessary ...". The representative for Uganda
says:
"1 myself would be prepared to take a decision now and it would then
be understood that my decision would be limited ta my knowledge of the
Convention, the Transit Agreement and the Rules for the Settlement of
Diferences."
He then goes on to say that if the decision had to be that day he would not
take into account the Namibia case and the other principles of international
law argued. So the representative from Uganda says that relevant arguments
which have been urged, on international law, the Namibia case, etc., would be
ignored by him if the decision had to he rendered that day-and therefore he
says: if you give time, give sufficient time to examine al1these things. 1read
furtherfrom the representative of Uganda's statement:
"If the function of the Council isto deal with al1 aspects of inter-
national law, if Our decisions must take due account of al1the interna-
tional decisions which have heen made, of al1the cases which have been
cited here, then we have got ta havetime ta examine these things and get
proper advice."
These quotations show that the most elementary principles of natural
justice were Routed, natural justice which requires that a man who acts as a
judge must have the chance ta consider what he has ta decide, andif he wants
time to decide he should have the time. If this is nota miscarriage of justice
it isdifficult to Say what would be. The decision is therefore, on the very
face of it, unsustainable, even assuming the Council had jurisdiction.
The Court adjoirrnedfrom 11.20 o.m. to 12p.m. QUESTIONS BY SIR GERALD FITZMAURICE 601
QUESTIONS BY JUDGE SIR GERALD FITZMAURICE
Le VICE-PRESIDENT faisant fonction de Président: Avant que je donne
la parole M. le conseil principal de l'Inde, sir Gerald Fitzmaurice voudrait
poser un certain nombre de questions.
Judge Sir Gerald FITZMAURICE: Mr. Palkhivala. 1amnot now so much
intending to ask you questions ta which Iexpect specificanswers. Iam putting
to you certain points which occurred to me as 1 listened to your argument,
-and 1hooe that vou mav be able to deal with them later on. durinn. v-.h.os, . .
the secondiound of speeches.
NOWamongst the contentions you advdnced in support of the view that
the Council of ICA0 has no iurisdiction in this case vou mdintained that
there are certain inherent limitations on th21 jurisdiction,-2nd in pdrticular
that the Council hîs no cornpetence to deïl wiih rnatters that tnvol\,e qiiesiions
of international law.
On that büsis SOU h;i\,eargucd thxi ivhercïs ihc Council is competent under
Arricle 84 of the Chicago Convent~on Io deal with maiteri in\'ol\,ing the
iniernrerîtii)n or ï~~lication of thît Con\,cnt~i>n. itcould not be cntitled IO go
into Questions of iirmination or suspension because-and here 1 cite yoür
own words taken from page 524, srcpra, where you said this speaking of the
Council:
". . .il[the Council] sdiidciil ii'ithquestions of :nierprctïti<in or applicit-
tion. Bïi therr i, 311the difircnce in the trorld betwecn un iidminisir<itive
body deciding certain disputes regarding application and interpretation
and an international court of justice dealing with questions of interna-
tional law and the rights and powers of a sovereign State."
From thts itwould seeni to follow thai, in your view, whcreîs questions
relïting to the terminaiion or suspension of treaties are questions of inier-
national law. qucrtionsrelîting IOthe interpretntion or ïpplicütion uftreaties
are no! questions of ~nternittionîl law.
Now whït 1 want to put io you is wheiherthisreïlly i.y ~our coniention,
-namely that auestions of treaty interpretation and application are not
questions of inteknational law. If, on the other hand, that iinor your conten-
tion, then what, sa far as any ii~herenrlimitations on thejurisdiction of the
Councilare concerned. is the basis of the distinction vou seem to make hetween
interpreiaiion or application (uhich yo~ süy are matter> within thc Ciiuncil's
inhcrenl juri<diction) and termination or suspension (whicli you say are not
mdtters within its inherent powers)?
~o~tinuine -he~ ~-~~~~oa~t.~f what 1 want to sav: the ooint 1 have iust
put is of course, as you will realize, quite separate from another of your
orincipal contentions. namely that the notion of the interpretation or applica-
lion of a treaty is quite distinct from, anddoesnotcompÏise, that of itstermi-
nation or suspension, andto that proposition 1now came.
Viewed as an abshact question of law, 1 express no opinion on it one way
or the other, except to draw your attention to the possibiliry-in case you care
to consider its implications-that it rnay itself involve a question of treaty
interpretation.
But leaving that on one side, the point 1want to put to you is this: As yousaid yesterday MI. Palkhivala, it is argued on behalf of Pakistan that not only
does the Chicaeo-Convention not ~rovide for susoension but..b~~imo..catio..
it rulesitout, because the rele\,ant article, Article 89, mercly provides that in
case of war or orher declared staK of national emergency, the provisions or
the Convention "shall not affect the freedom of action-of any of the con-
tracting States". In other words, according to this argument, States are per-
mitted, in the circumstances indicated, to disresard the provisions of the
Convention so long as the emergency lasts, but (Pakistan contends) there is
no suspension of the basic obligation,-and when the emzrgency ceases, this
licence to disregard automatically ceases also.
Now tbis argument mav or mav not be correct. and 1 sav notbine about
that, especiallyas it seemsio me to be one that appertains tothe meri& of the
case. But the question I have been asking myself is this: does not this argu-
ment-whether correct or incorrect-does it not itself involve a question of
the interpretation and application of Article 89 of the Convention? In short,
precisely as part of the process of determining whether the argument is
correct or not. do vou not have to interoret and ao~lv.. .icl- 89?Or do vou
suggest, MI. ~alkhivala. that Article 89 js wholly irrelevant? Yet you you-elf
gave us your own interpretation of tbat Article yesterday. This point has been
troubling me a good deal, and 1would much appreciaie bearing your views
upon it in due course.
Continuing: there isanother way in which the same basic idea can be put
-or which involves a different aspect of it. Pakistan alleges that there has
been a breach of the Convention by India hecause, the emergency being over
(or so Pakistan contends), India has nonetheless continued to withhold what
would normally have been Pakistan's rights under the Convention. This is
the essence of the question that Pakistan has submitted to the Council of
ICAO.
Now here aaa-n it is auite immaterial whether tbis contention is correct on
it5 merits or nor. The relevant point is, so IIseems lu me, does not an allcsa-
lion thsr rhere has been a breilch of 3 convention necessarily involve ît the
least a question of the inrerpreration of that convention,-for how else do
you decide whether the allegatinn is correct or not? On page SM),supra, you
yourself cited "a dispute as to whether there has been a breach" as an example
of a dispute which. other things being equal, would be "clearly within the
jurisdiction clause". The context was different, but the principle was the
same.
Pleasenotethataccording to thepakistani point of viewthe relevance of this
issue would not be affected by the correctness or otherwise of India's conten-
tion that her action was in any event justified under general principles of
international law.-for what Pakistan has submitted to the Council is
whether-irrespective of that-the Indian action is justified under the Con-
vention; and rhar question, so Pakistan contends, is a question which neces-
sarily involves the interpretation of the Convention, and must therefore be
within the cornpetence of the Council under Article 84.
But this is not the end of the matter,-for it is not only Pakistan that
alleges a breach of the Convention (bv India). It is also India which alleges
a breach-a material breach-by ~='kcstan,as justifying India's attitude and
action. Now, if the Council of ICA0 does have jurisdiction in this we, it is
precisely these allegations and counter-allegations of breaches of the Con-
vention bv both Parties which it wniild have to eo into:-and cnnse-
quently, the question which 1 ask myself is this: how Gould it be possible for
the Council to consider these matters without interpreting and applying the QUESITONS BK SIR GERALD FITZMAURICE 603
relevant provisions of the Convention under which the breaches are said to
arise. whatever these mav be?-and if this is so. then must not the issues
submitted by Pskistan to Ïhe~ouncil necessarily involve-to use the language
or Article 84 or the Convention-s "disagrecment .. .relating Io the inter-
oretation or aoolication of this Convention". and hence be within the
jurisdiction of ihe Council? This seems Io me to be precisely the argument
contained in paragraph 55 of Pakistan's Counter-Memorial (p. 389, supra),
and you did not appear to me to deal specifically with that paragraph, as
such, Mr. Palkhivala, or with the contention set out in the last three sentences
of it.
As 1 said, 1do not expect any reply now, but perhaps you will be able to
deal with those points later in the course of the oral hearings.
Mr. PALKHIVALA: 1 am grateful to you, Judge Sir Gerald Fitzmaurice,
for enabling me to have the opportunity of clarifying these significant points,
and 1 shall, with the permission of the Court, deal with them next week. In
fact,ifthe President willpermit me, 1would like to deal with them on Monday
hefore my learned friend begins the address or, if the Court prefers, 1 shall
deal with them not on Monday, but when 1 come to reply to my learned
friend.
Le VICE-PRÉSIDENT: Je voudrais poser la question à M. i'agent du
Pakistan pour qu'il nous dise lui-mêmece qu'il préfere. Voudra-t-il prendre
la parole dès le début de l'audience pour la plaidoirie du Pakistan, ou bien
ac.~~-era-t-il .~e M. Paikhivala ouisse réoondre à ces auestions avant au'il
ne prenne la parole? J'adresse ~a'~uestio; M. l'agent du Pakistan, auquel
je laisse &idemment la possibilitéde répondre plus tard, s'ille désire.
Mr. KHARAS: Mr. President and the honourable Members of the Courts
as fresh evidence has now been submitted by the Indian counsel, wemay have
to file certain documents' to controvert the argument. For this purpose we
are trying to obtain the necessary material, which is likely to take some time.
We regret, therefore, that we would be unable to commence Ourargument on
Tuesday, 27 June, as previously indicated. With the Court's permission,
therefore, we would like to commence our argument on Thursday, 29 June.
Le VICE-PRÉSIDENT: La question quej'ai voulu vous poser est celle-ci:
des points ont étésoulevés par M. le juge sir Gerald Fitzmaurice. M. le
conseil principaldei'Indea dit qu'il répondrait plus tard, mais la question se
pose de savoir si vous accepteriez qu'il réponde avant que vous preniez la
oarole la semaine orochaine. Voilà la auestion au. i-.Dose.Si vous oouvez v
répondre maintenant, nous vous écoutons; sinon, vous pouvez peut-être
fairevotre rkponseen temps voulu mais de façon que M. le conseil de l'Inde
sache à quoi s'en tenir.
Mr. KHARAS: May 1, with your permission, consult my Chief Counsel
for a moment.
We have no objection, Mr. President. At any time that the Indian coun-
sel would like to give the reply he may do so.
Le VICE-PRÉSIDENT: Monsieur l'agent du Pakistan, vous venez de dire
oue vous seriez oblieéde commencer votre olaidoirie ieudi et non Dasmardi.
parce qu'il y a des recherches à faire. La lettre de M: l'agent de f'1nde a éti
présentée le19 de ce mois. Vous Y avez répondu immédiatement le 20 en
disant que vous étiezen train de recueillir des renseignements sur les docu-
1 Seepp. 743-765,inb.ments dont il s'agit. Donc un certain nombre dejours sont déjàpassésdepuis
que la demande a étéformulée et que vous en avez étésaisi. La Cour avait
exprimé le désir que les plaidoiries aui seraient faites aient toute la clarté
mais également toute la brièvetéposiible et il semble que peut-être, sivous
faisiez un effort, vous pourriez commencer les plaidoiries mardi. Si les docu-
ments nesont Dasarrivés - il faut évidemmenttout prévoir -. vous pourriez
rc'pondreh hl.'13ngentde I'lnde ou1 XI leconse11de l'Inde en ce qui concerne
ces points lors du secound tour de pldidoirie< qui aura probablenient lieu.
Mais, évidemment, notre vŒuest que vous puissiez commencer mardi etque
vous fassiez accélérer l'envoides documents que vous avez déjà demandés
depuis un certain temps. Tel est le vŒu que j'exprime. J'espère que vous
pourrez le réaliser.
MI. KHARAS: Whatever theCourt desires. We would be only too happy
ta accede to the request and that would mean that we would be prepared to
start on Tuesday, 27 June.
Le VICE-PRÉSIDENT: Je vous remercie, Monsieur le représentant du
Pakistan. Je voudrais ajouter aue vous Douvez évidemment commencer, le
caséchéant,avec d'auties poiss. ~'apr& ce que vous avez dit, votre plai-
doirie demandera deux à trois jours. Vous pouvez de votre cOtécommencer
Darun certain nombre de points aui ont étédéiàexposéspar la ~artie indienne
et en arriver, à la fin, si-c'est indispensable, aux autres points qui ont été
soulevéspar les documents que I'Inde a présentéset au sujet desquels vous
avez déjàrqu une indication du point de vue dela Cour. ARGUMENT OF MR. PALKHIVALA
ARGUMENT OF MR. PALKHIVALA (cont.)
CHIEP COUNSEL FOR THE GOVERNMENT OF lNDlA
hlr. PALKHIVALA: The suhmirsion 1\vas making totheCoiirt isrcgard-
ing the mdnner and mcthod eniplo)cd hy theCouncil inreachingitsdeciston,
and in India's suhmission the manner and method were such as to vitiate the
decision.1 had finished with the first point which is set out in India's Memo-
rial at page 54supra, paragraph 93, which says that the mistake made hy the
Council-a mimake which is er-ve and serious enouah t- vitiate the deci-
sion--\va%to franic the propoç~tionsin the ncgdtivc, and the suhmirsionL had
m3de uar that the matier is not une merely of griimmar or semlinticr, the
matter is one of the basic auuroach to the auestion of iurisdiction. The
propo~itions ;is frlimsd reilccted the approsch 'f rhc ~ouncil to the qucjtion
ofjurisdiciion,ahieh approüch i, direcily conirary to the correct appruach as
laid down hs this honourablc Caiuri. On thlit point 1\iould rcuucst the Court
kindly ta tuin toIudia3s Memorial at pages 280 and 281, supra.-~he approach
of the Council, which proceeds on the footing of assumption of jurisdiction
and throws the onus on India of proving that the Council had no jurisdiction,
is an approach which is clearly reflected in paragraphs 62, 70 and 71. 1will
read paragraph 62:
"The Presidene No, 1 am sorry, Pakistan has not said anything.
Pakistan has, of course, replied to India but the Council was working on
the basis that it had iurisdiction. India comes with the oreliminarv
objection: you have no jurisdiction. The Council has to decide on the
position of India.If the Council does not accept it, we continue as we
were."
The material words are that "the Council was working on the bais that it
had jurisdiction".
Paragraph 70contains the statement of Mr. Clark:
"It would seem clear, at least to my Delegation, that by adopting this
resolution the Council wasactinaas if it had iurisdiction in this case. If we
now have a challenge to that jurisdiction, itwould be,.we would submit,
a question which would have ta he upheld by the Council by a statutory
mai.rit.. hecause the Council has alreadv. in adoutinp. this resolution,
ac1r.das !fit had jurisdiciion and now wé have a Fhallengc ta the juris-
diction. So in my viciv there is no qucstion thït rhc rtatutory riiajiirity
rcauired is to u~hold thc challenae to the iurisdiction rarher than Io
affirm the fact that the Council dois have jur&diction."
And then the President continues in paragraph 71:
"That is how 1saw the issue and in non-juridical language 1 said that
we would continue as we were before the preliminary objection was
filed, unless hy 14votes the Council decided otherwise."
Now these paragraphs leave no doubt that the President and, at least some
of the other members who spoke, go on the assumption of jurisdiction and
want to put the onus on India, contrary to the rule of international law thatthe Party coming before the tribunal has to give strict proof of consent to the
tribunal's jurisdiction.
The second mound for saving that the Council's decision is vitiated by the
manner and mëthod emp1o;ed-is the one set out in paragraph Y3 of ~ndia's
hlemorial, where the point has been made, and 1have dedt with it, thît the
wrong frdming of the question resulied in the Council's deciding in favour of
jurisdiction regarding the Complaint, vhereas on the sdme pattern of voting
the decision would have been that the Couiicil hîd no jurisdiction tu deal
uith ihe Comolîint. if the oronorition hnd been out in the affirmative.On
that point 1 have ilready'drawn attention to the voting pattern. What
remains to be done is now, regarding this secondground, to draw the Court's
attention to the summary of documents and facts, as set out in India's Reply
at page 430,siipm, paragraph 78,which reads:
"The Applicant submits that, under Article 52 of the Convention, the
Council would have to observe the requirement of approval by a major-
ity of the total number of its members for any decision taken, even
where, in accordance with Article 66 (b) of the Convention, some of the
Council Members did not have the right to vote because they had not
accepted the Transit Agreement. This position of the Applicant has
been clarified in a Memorandum of 10 Au~ust 1971 submitted bv the
Sccretary-General of ICA0 to the ~eprescn~ati\es on the ~ouiicil: The
Pre\ident of the Council also rc~c.ttediy mainiaincd thît a statu:ory
maioritv of 14 votes is necessarv for anv-decision of the Council. since
there are 27 memberso?the coincil îs'it is constitutedaiprssenl. The
Applicant reiteratcs thît the dccision of the Council in regard to Pîki-
stan's Complaint was supported by 13 members only, whereas the
minimum number required ...is 14;and hence the decision was invalid
in law."
The third point set out in India's Memorial in paragraph 93, clause 3, is
the point about time not being given to the members when the members
specifically asked for time. In that connection 1 would like to refer, to com-
plete the record on this point, ta a passage in India's Memorial, page 277,
supra, paragraph 42. This is the voting on the proposal for deferment, for
postponement of the case before the decision is reached. The actual motion
to defer the decision is in paragraph29 on page 276, where the representative
of Czechoslovakia says: "After the consultation, permit me to propose
deferment of the Council's decision until 10 August 1971.Thank you." And
the next oaranraoh reads: "30. ThePresidenf:1s that orooosal suooorted?
~upported byfhe Soviet Union. ..." So the motion ii du'lypropoied and
duly supported, or seconded. In paragraph 42,on page 277,is the voting and1
will read this paragraph:
"42. The President: 1s there further discussion before we go to tbe
vote? Then 1 will take a vote on the Czechoslovak proposal that the
decision of the Council on this question be deferred until 10 August.
Those in favour please raise their hands. Opposed. Eight in favour, no
opposition, but of course 14 votes have not been obtained, and so the
. proposal has failed."
This is the poin1 am emphasizing-that eight specifically and affirmatively
asked forthe postponement. nota single State ovposed the orooosal, and yet
the proposal was lost on the ground chat is wasiot carried by-a majority of
14. So witbout a single member raising his voice in support of the position ARGUMENT OF MR. PALUHIVALA 607
that the Council must straightaway go ta a decision and not let the various
govemments consider the matter, the matter is put to a vote and decided.
This is most extraordinary and 1 submit it amounts to gross miscarriage of
justice.
That finishes the three points which are set out in India's Memorial-the
three grounds on which we Say that the method and manner vitiated the
decision.
The fourth ground is set out in India's Reply at page 430, supra, paragraph
79:
"The decision of the Council was further vitiated by the fact that the
orooositions out ta vote 5 in resoect of Pakistan's Aoo..cation and
~om~laint aere ncither iniroduced'nor seconded hy iiny nicmber of the
Council 3srcquired in Rules 41 and 46 of the 'Kules of Proccdure for the
Council'."
Footnote 5 is relevant: "The President of the Council who put the proposi-
tions to vote is not a member of the Council, and no one seconded the
propositions." What the Rules of Procedure of the Council require is that (a)
a proposal can be moved only by a memher of the Council and hy iio non-
member. The President of the Council is a non-member, and it was he who
moved the propositions. The Rules of Procedure further require that the
proposition must he seconded by a member. No one seconded the proposition
in this case. The relevant Rules are set out in India's Reply, at page 455,
supra,-the relevant Rules are 41 and 46 of the Rules of Procedure of the
Council:
"Rule 41. Any Member of the Council may introduce a motion or
amendment thereto, subject to the following rules ..." [the following
rules are not relevant, but the relevant part is what 1 have just read]:
"Any Member of the Council may introduce a motion ... [no non-
Member]."
Rule 46 on the same page says: "With the exception of motions and amend-
ments relative to nominations, no motion or amendment shall he voted on,
unless it has heen seconded."
Here the facts are clear. No Memher moved any of the motions and it was
not seconded hv .nvb.dv. You will find that on oaae 267. suo... of India's
Memorial, paragraph 21 "The President then LxGessed his intention of
putting to a vote the following propositions hased on the preliminary objec-
tion:", and then the voting isgiven on the next page, and~the actual discus-
sion is from pages 278 up to 287. 1will not read these ten pages. You will
notice from those pages that it was only the President, a non-Member, who
moved the resolution. and no one seconded it. Therefore. under the Rules of
Procedure for the ~ouncil the decision is patently vitiated:
The final point which is apparent from the record of the proceedings is that
whereas under the Rules which are hinding on the Council, every decision
has to be supported by reasons, in this case, the Council gave a decision
without any reasons at all. The decision of the Council will he found in
Pakistan's Counter-Memorial. page 398, supro, because by the time we had
prepared our Memorial the decision had not been received hy us. The heading
is: "Decision of the Council dated 29 July 1971 .. ."The facts are setout in
the fust paragraph, and the second paragraph States: "On 29 July 1971, the
Council decided not to accept the Preliminary Objections aforesaid." Please turn to India's Memorial to look at the relevant Rules which require
reasons to be given for the decision. These are "Rules for the Settlement of
Differences", under which Rules these proceedings took place. One Rule
which is relevant is Article 5 on page 331,silpra:
"Preliminary Objecrion and Action Thereon
(1) If the respondent questions the jurisdiction of the Council to handle
the matter presented hy theapplicant, he shall filea preliminary objection
setting out the basis of the objection.",
and clause (4) of thesame article:
"(4) Ifa preliminary objection has been filed, the Council, after hearing
the parties, shall decide the question as a preliminary issue before any
further steps are taken..."
Soit is a decision of the Council on the preliminary issue. Every decision has
to be supported by reasons as set out in Article 15(2) on page 334:
"The decision of the Council shall he in writing and shall contain:
.........................
(v) the conclusions of the Council together with its reasons for reaching
them;".
My submission is, that under the Rules of the Council, a decision rendered
without reasons for reaching it is not a decision according to law. It is not a
decision according to law, hecause these Rules are binding Rules and, so to
soeak. have the same force as the Charter of the Council itself. The Council
<as towork within the framework of these Rules. The Charter of the Council,
of which the Rules are a part, does not permit the Council to come to con-
clusions without reasons;and here theyhave come to conclusions without
any reasons at all. In fact-the entirc Verbatim Record is hefore the Court-
not one single reason is given. Only the propositions were put to the vote by
the President, nothing more, and the votes are taken. This is no way to reach a
decision. In the eye of the law it is no decision. These are the five distinct and
independent grounds on which 1 submit that the decision of the Council is
vitiated in law.
For the convenience of the Court, and in order that ihe argument which has
ranged over a wide field may not have its most signifiant aspects lost, 1have
tried to prepare a summary of the submissions orally urged before the Court,
and 1 would like to state this summary on the first two points, namely the
point regarding thespecial régimeand thepoint regardingUthe scope of inter-
pretation" or "application". Mr. President, although 1 had expected to be
able to finish today, 1think1 will need about half an hour next week (perhaps
hefore my learned friend hegins, in fairness to him) when 1can (a) deal with
Sir Gerald Fitzmaurice's points, and (b) give a brief summary of the argu-
ment on the third point (decision vitiated by illegal manner and method)
which 1have urged today, because it will not be possible for me to finish the
summary today. If the Court pleases 1 can do it on Monday, or on Tuesday
before my learned friend begins. 1 will continue until I o'clock, or as long as
theCourt would like me to, today.
Le VICE-PRÉsIDENT: Monsieur Palkhivala, vous avez fait évidemment
de louables efforts afin d'êtreaussi bref que possible tout en exposant les
points que vous aviez à défendred'une façon très claire. Maintenant, c'est un
second effort que je vous demanderai de faire, si vous voulez bien, pour que ARGUMENT OF MR. PALKHIVALA 609
vous puissiez terminer votre plaidoiriece matin. La Cour serait disoosée à
prolonger l'audience mais évidemmentdans une mesure qui serait acceptable.
Donc vous avez la parole pour terminer votre plidoirie ce maiin, espérant
que vous pouvez le fairedans un laps de temps qui ne sera pas trop long.
Mr. PALKHNALA: 1shall certainly bow to the Court's ruling and 1shall
finish my argument today, subject only to giving a carefully worded reply to
the points made by Sir Gerald Fitzmaurice nextweek.
SUMMARY OF THE SUBMISSIONS MADE ON BEHALF OF INDIA
The jurisdiction of the ICA0 Council is a strictly limited one. It extends
only to disagreements "relating to the interpretation or application" of the
Convention or the Transit Agreement. Any other types of disputes or dis-
aer~ ~en~s are outsi~e~the comoet.~ce o~ the Council.
Furihcr, the Council hds no jurisdiction whatcver in cases of disputes as to
bilateral aarecmcnts betuecn ri<,> States. At the tin~eof i,otin~ hy the Council
members,the Respondent accepted the position that the ~o;ncil had no
jurisdiction ta handle any dispute under a special régimeor a bilateral agree-
ment.
The Council should have held, on the following two grounds, that the
Application and the Complaint were incompetent and not maintainable and
that the Council had no jurisdiction, ta hear them and handle the matters
contained therein.
Thefrsf grorrnd:fhe questionof overflyitrgwasgovernedorrlyby the special
agreement-the speciarlégime-of 1966, regarding whichthe Corrncilhad no
jurisdiction.
The question of Indian aircraft overflying Pakistan and Pakistan aircraft
overiiying India has continued to be governed since February 1966,not bythe
Convention or the Transit Agreement, but hy the special régime of 1966,
which was brought into operation in the following circumstances:
Before military hostilities broke out between India and Pakistan, in Sep-
tember 1965, three agreements were in operation between the two countries:
the Convention, the Transit Agreement and the India-Pakistan Bilateral Air
Services Agreement of 1948.
Bv a notification dated 6 Seotember 1965. which is the law of India. the
Govemment of India put a total prohibition on any Pakistan aircraft over-
flyina any portion of India. The eiïect of this notification was necessarily to
susoénd théooeration of al1the aforesaid three treaties and since then none
of the three treaties has heen revived at any time between the two countries.
The Tashkent Declaration merely stated that measures would be taken to
implement the existing agreements, but normalcy was not restored and most
of the measures contemplated hy the Tashkent Declaration for restoring
goodwill and CO-operation were never implemented.
In the letters exchaneed between the Prime Minister of India and the
Presidcnt of Pakistan. in~ebruary 1966. itis mcntioned thlt the tu,o States
were acreelible to Iin immediaie resumption of o\,erflights acre% exh other's
territorv on the same basis as that orior to 1Aueust 1965.But the exoression
"the same basis" did not mean thai the overflighïs would be within théframe-
work of the three treaties. It really meant that al1 routes and procedures
which existed orior to 1 Auausl 1965 would be restored. as is actuallv stated
in the signal &am DGCA Pakistan to DGCA lndia on 9 ~ebruari 1966.
That the agreement was not to restore the three treaties is conclusively proved
hy the following facts: Firstlv. the bilateral agreement of 1948 was admittedlv never revived.
Since 1965 the airlines of ~akistan have never operated within India and the
airlines of India have never operated within Pakistan; the traffic between the
two countries continues to be handled only by third-country airlines until
this date.
Secondly, the essence of the Convention and the Transit Agreement is the
cumulative and inseverablerights to overflyacross each other's territory, and
to land iri each other's territory for non-trafic purposes. These rights con-
stituted a single, indivisible arrangement or bargain. The aforesaid letters, in
February 1966,referred merely to overflights and did not at al1deal with the
right to land in each other's territory.
Thirdly, the signals exchanged between the twocountries in February 1966
show that the resumption of overflights was on a provisional hasis and on a
basis of reciprocity. The most significant document is India's notification
dated 10 February 1966 which amended the aforesaid notification of 6 Sep-
tember 1965 and provided that the prohibition on Pakistan aircraft over-
flyingany portion of 1ndia would continue "except with the permission of the
Central Government"-that is, the Government of India-"and in accor-
dance with the terms and conditions of such permission".
Pakistan does not dispute that this notification is directly contrary to the
Convention and the Transit Agreement under which the freedom of over-
flying is assured without the permission of the covernment concerned. The
said-n<itification of 10 ~ehrbary 1966 liffords-unequivocal conteniporary
ewdence as iou,hat the parties really intcnded 3s thc blisisfor rcstoring over-
flighis in Fcbruary 1966. It uas cle3rly the basis of a sricciïl r2piine which
negatived any question ofrevival of theconvention or the~ransit Agreement.
Fourthly, the notification of 10 February 1966 which gave legal shape ta
the special régimewas embodied in the Aeronautical Information Circulars
-AlCs-issued by India which were circulated to ICAO and given inter-
national dirtribution. There was no protest or objection by Pakistan or any
other Party against the notification or any circulars embodying the notifica-
tion which expressly negatived the freedom of overflying under the Conven-
tion and the Transit Agreement. The AICs specifically referred to the notifi-
cations as dealing with "prohibition of flights-Pakistan".
Fifthlv. between 1966and 1971. Pakistan liircraft o~~.f~e~ T~-~~~nl- with
the permission of the 1ndian ~ovérnment, both on scheduled as well non-
scheduled flights. Further, during that period. Pakistan always asked for
soecial oermission to let its aircrajt land in 1ndia a~ ~ ~~h~ ~ ~ r~~~n was. in
fact, refused by India in several cases. Likewise, India overflew or landed in
Pakistan only with the uermission of the Pakistan Government.
On the pleadings before this Court, three questions have been put in issue:
did India have the right under international law ta suspend the treaties in
September 1965?Did India, in fact, suspend the treaties at that time? Did the
treaties continue under suspension after February 1966, and did the special
régimecommence in that month?
The ICAO Council has no jurisdiction to deal with any of the three
auestions. since the auestions involve either the internretation or aonlication
;>finternational law,'or relate to the suspension of tieaties in the éxerciseof
the right of a sovereign State outside of the treaties, or relate to a bilateral
As regards the first question. lndia had the riahi tosuspcnd theconvention
and the Transit Agreement under intcrnationiil law and under u.ell-established
State practice and usage. Article 89 of the Convention. like Article 73 of the AROUMENT OF MR. PALKHIVALA 611
Vienna Convention, doe5 not confer any right It only leavet untouched and
undirturbed rights under intzrn3tion~l I31v and State pr;ictice ~nd usïge. The
suspension of the treaties by India was an exercise of such rights dehirs the
treaties.
As regards the second question, the factum of suspension of the Convention
and the Transit Agreement is conclusively proved by the aforesaid notifica-
tion of 6 September 1965, read with the notification of 10 February 1966,
which expressly prohibited Pakistan aircraft from overflying India, thus
necessarilv rulinn out anv auestion of landinzs in India. exceot with the
permission of the Indian i;o;,ernment. The saidn<itific3ti<insare'relicd upon
hy Indiü, no1as üjiistific~tion for non-perforniance of the Conveniion and the
Transit Agreement, as is wrongly suggested by Pakistan, but as clear con-
temporary uncontradicted evidence of the special régime which commenced
in February 1966.
Asregards the third question, the continuation of suspension afterFebruary
1966 and the commencement <ifthe special régime in that month are con-
clusively proved by the facts referred to herein above.
After the hijacking incident, on 4 February 1971, India merely refused to
give permission to any Pakistan aircraft to overfly India. This withdrawal of
permission was entirely within the competence of India undqr the special
régime and was effected bona fide and with full justification. The dispute
raised by Pakistan relating to this withdrawal was a dispute relating to the
special régimeand was clearly outside the jurisdiction of the ICA0 Council.
Thesecondground: therewasriodisagreementrelating to the "interpretation"
or "application" of the Conventionor the Transit Agreement.
If it is held that there was no special régimeand tbat the Convention and
the Transit Agreement were in ooeration at the commencement of Februarv
1971,Indix suhmits ihat its action on 4 February 1971constituted s~,~ension
of the tilo treatici. l1aki>tan, uhile net d~spuring the Lctum of suspension
in February 1971, has contended that: a, India had no right to suspend the
treaties and. therefore, the suspension \\,aillcgiil. incffective and the trîÿties
cont~nued in operaiion, 2nd (h, a disputé relaiing io suspension isa dispute
.relating to inteioretation or a~olication of the treaties
. 1ndi.is~bniit;: the firit prop;>sition i$that a dispute rcloting to termination
,or suspension is notiidispute relating io interpretütion or application.
Secondly, the iüst proposition is unassailable in any event when the termi-
nation or SusDension is effected not under a provision of the treaty but in
exercise of the right of a sovereign State under a rule of international law
dehors the treatv.
Thirdly, thcri are inherent Iiinitations on the Council's jurisdiction u,hich
support and rïinforce the argument rcgÿrding the icope of the words "inter-
pretaiion" or "a~nlication". Further, the doctrine of inherent limitation
provides an indePendent and separate ground for holding the Council's
jurisdiction to be excluded in matters which may seemingly fall within the
words "interpretation" or "application".
There is no disameement between India and Pakistan relatinn to the inter-
pretntion or appli&tion of the Con\ention or the Transit ~g~cement The
words "interpretation" 3nd "ïpplic.u~on" poçtuldte and pre-suppose the
continued existence and operationof the treaty as between two tat teWs.hen
the treaty is terminated, or suspended in whole or in part, as between two
States, any dispute relating to such termination or suspension cannot be
referred to the Council, since in such a case no question of interpretation or
application can possibly arise, theie being no treaty in operation as betweenthe two States. The words of limitation in the jurisdiction clause-"inter-
pretation" and "application"-are not only express words of limitation. they
ire expressive and explicit.
The conceptual difference between interpretation and application on the
one hand, and suspension and termination on the other, is so well settled
that it should be treated as being beyond the pale of controversy. The signi-
ficant example of this conceptual difference is provided by the Vienna Con-
vention on the Law of Treaties. The heading of Part II If the ViennaConven-
tion is: "Observance, Application and Interpretation of Treaties", and the
heading of Part V is: "Invalidity, Termination and Suspension of the Opera-
tion of Treaties." These two subject-matters are treated as separate and
distinct.
Furiher, rhcre is a shorp distinction beiacen the "applicaiion" of a treaty,
and "operîtion" of a treiity. Suspension or termination akts the operation
of the treaiy. The Coiincil's jurisdiction is resrricted to disputes relating to
application and docs not embrace disputes relating 10operation.
In the prcsent casc. the suspension was clearly under a rule of intern3tional
law which confers the riaht on a sovereian State to susoend the heatv on
ground of matcrial breach hy another conCracting Srate. ~he existence of rhis
right was exprersly upheld in the decision of rhis Court, handcd down iast
sear. in theNamihia ca%e.This rule of international Iaw is codified in Articles
42 and 60 of the Vienna Convention, as distinct from the rigbt of suspension
or termination which may begiven by the treaty itself and which is dealt with
by Articles 54 and 57 of the Vienna Convention. The Namibia case has
further laid down that: (a) since the aforesaid right under international law
bas its source outside of the treaty, it is not to he treated as excluded hecause
the treaty is silent on the point; and (b) this right under international law
can be exercised unilaterally, that is, without the consent of the other party
to the treaty.
The inherent limitations on the Council's jurisdiction cry aloud for
~ecoe-ition.
The Council has inherent limitations on its jurisdiction, arising not only
fromthe very words of the Convention and the Transit Agreement conferring
thejurisdiction, but inherent in the very composition and character, duties and
functions, of the Council. It is most significant that the mernbers of the
Council are States and not individuals: and the States are mostlv reoresented
by nominees of their Aviation ~inistries. It is inconceivahle ihat'the con-
tracting States intended the Council, which is not expected to consist of
trained lawvers, iurists or iudws. to decide auestions of international law. to
go into the 1egal;ighrs ancÏwronk of politi&l confrontation berween m ta tes,
and to pronounce upon the validity of a sovereign Siste's cxerci5eof ils right
under international law to terminate or suspend a treaty. The Council
performs extremely useful functions in ils own area. which is far removed
from that of a court of international law. The Council is an administrative
body and no1ajudicial one.
~urisdicrion simply does not cxist outside the scope of the consent given by
the parties to the treaty. Consequently, jurisdiciion ought, a1 the verv least,
not to be assumed in cases in which there is room for anv serious doubt as to
whethcr consent was given. and wherher it covers the iispure. Jurisdiction
ought only to be assumed if itis qiiite clear that thc parties have agreed to ils
cxercise in relation to the dispute before the Council. Thc doctrine of elfeclive
interpretat~on has no relevance to this wse. That doctrine, which has becn
invoked for cxtending the jurisdiction of rhis Court to incidental or conse- ARGUMENT OF MR. PALKHIVALA 613
quential matters arising from disputes which are clearly within the jurisdiction
of this Court. cannot be invoked to establish or confer iurisdiction in resoect
oia dispuie ahich is outsidc the j.irisdiction clau,e.
The many )ex,' hibrory of the delihcritions oi n3iion, whiuh prcceded the
final drafr of the Vlenna Convention \hous ho\\ reluciüni the n:itioni are to
give sompuliory jurisdict.on, cten io the Internationd Coitrt of Jusiicc. Fven
~nder ihe Vienna Convention thii Court hlis no compul\ory juriidiction in i
case where the State has exercised its ri-ht under international taw to susnend
or terminate a treaty. It is inconceivable that nations gave to the administra-
tive body, namely the ICAO Council,that compulsory jurisdiction which they
have refused to eive even to this Court,
A dispute re&rding the vaiidity and effectiveness of, or legal justification
for, the suspension of a treaty is a dispute relating to the interpretation or
aonlication of a rule of international law outside of the treatv. and conse-
Géntly the Council has no jurisdiction to deal with the disputéhhich arises
in the present case.
If this Court were to hold that disputesas to terrnination or suspension by a
sovereign State in exercise of its righlunder a rule of international law, which
has its source outside the treaty, can be adjudicated upon under the juris-
diction clause. which deals onlv with disoutes relatine to internretation or
application of the treaty, the fofiowing consequences would ensue:
Firstly, there are scores of international treaties in existence today which
confer such limited iurisdiction on various bodies most of whom are admin-
istrative in charact&. These bodies would al1 have jurisdiction to deal with
complicated questions of international law and the right of suspension, under
inteÏnational law, granted to sovereign States: ajurisdiction which was never
in the contemplation of the contracting States.
Secondly, the decision of this Court would unsettle the existing under-
standing and practice of nations. No decision, no authority, no State practice
and no practice or understanding of any body or tribunal, under any similar
treaty, supports the proposition of Pakistan that a question relating to the
termination or susoension bv a sovereien -tate. under a rule of international
la*,,153 question rclaiing to intcrprer~tion or ~pplication of thc tient).
Thirdly. hereniier Siateî \vil1hc mo3t rïluctinr IO sign ;in) tre;ity cunfcrring
similar iurisdiction on bodies established under the treatv. Thus the cause of
internaiional CO-operationwould be impeded and retarded instead of being
promoted.
Fourthly, in order to maintain the rule of law, governments must he of
laws and not of men. In order to maintain the rule of international law,
international courts must be of men and not of governments. The ICAO
Council is composed of governments which involves adjudication by "remote
contro13'-to use a phrase of modern technology.
Fifthly, to ask the Parties in this case to deal with their complex questions
for adiudication at the hands of a council which is uatentlv uneauiuued and
unquaiified to deal with the subject-matter, woufd be only t; biing the
concept and machinery of international adjudication into disrespect.
Summarvof thearaumenronthemannerondmethodemoloved -. b. the Coirncil
in reachingiti decision,whichhasvitiatedrhedecision.
There are five grounds on which the manner and method employed by the
Council should he treated as having gone to vitiate the decision
The first ground is that the ~ou&il formulated the propositions which
were put to the vote in a negative manner, instead of forrnulating them in a
positive manner. This formulation of the propositions was not a mattermerely of crrammar or of semantics. it was a matter which went to the basic
~ ~ ~ ~~~-~
appro-ach which was brought to bear on the preliminary objections of India.
The formulation of the propositions. as the Yresident of the Council himself
indicated, reflected the aooroach of the Council which was that the nre-
sumptionis of jurisdiction ÿnd it i$for India to rebut the pre*ump~ion. fhis
wrong approach, as rellected in the wroog formulation of the pro~ositions.
'
vitiated the entire judicial process and the final decisioo reached in the case.
The second ground: the formulation of the proposition in the wrong
manner, namely in the negative form, resulted in the proposition regarding
iurisdiction to deal with the Comolaint beina decided in a manner which ~as~ ~ ~ ~ ~.-
ëxactly the contrary of the marine rn which the question would have been
decided on the same pattern of voting had the proposition been framed in
the positive way. It was only 13 States which declared their support for the
proposition that the Council had jurisdiction and those 13 States fall short
of the requisite number of 14 which is required to carry any proposition
under the Rules bindina on the Council. So if the nrooosition had been ~ ~ - ~- - ~ ~ ~
framed thus-whether the Council hasjurisdiction to de31&th the Complaint
of Pakistan-the proposition wuuld have been lort.
The third cround: the Council was acting as a bodv which had to ~ b-~
judicial in it; approach and in its decision-making piocess. There were
representatives of the member States who asked for time to consider the
matter and who said that thev wanted to take oart in the decision-makine
process, they did not want to-abstain from thedecision-making process. 6
was decided that no time would he given and the Council should oroceed
to a decision straipht awav. The most crucial fact on this asoect of the matter
is that when the pÏoposalio postpone the hearing to enablethe ~overnments
to consider the arguments urged by India was put to vote, 8 members SUD-
oorted the ulea for oostoonement and not a sinale member onnosed the
proposition-for pos<pon&nent; and yet because-14 did not support rr---- the--
proposal for postponement, the proposal was lost.
There was not that functioning of the judicial process which must precede
any decision, and the decision therefore was of representatives who did not
understand, on their own admission, the pros and cons of the issue. The
decision was further vitiated by the fact that other members abstained who
would have voted one way or the other if they had time to consider the merits
of the preliminaryobjections and then come to a decision.
The fourth ground of objection is that Rules 41 and 46 of the Rules of
Procedure of the Council require that every proposal must he moved by a
member of the Council, and, secondly, it must be seconded by another
member. In the oresent case. no member of the Council moved anv of the
propositions regirding India's preliminary objections. The propositions were
moved by the Prcsident of the Council who is not a member of the Council,
and, further, no one seconded anv of the orooositions.
Fifth, and finally, the Rules for the ~ettlement of Differences require that
the Council must give reasons for its decision. In the present case the
Council has given a decision without any reasons at all, and such a decision is
no decision in law.
1 am grateful to you, MI. President, for the patience and courtesy with
which 1have been heard. QUESTIONBYmGE IIMÉNEZ DE ~CHACIA 615
QUESTiON BY JUDGE JIMENEZ DE ARP.CHAGA
Le VICE-PRÉSIDENT: Je dois vous remercier et je vais donner la parole
à M. le juge Jiménez de Aréchaga qui a une question à poser.
Judge JIMÉNEZ DE ARÉCHAGA: 1 will appreciate it if in your oral
reolv vou examine the auestion of the iurisdictionof this C~~~ ~ ~-entertain
aiipieal against a deciiion of the ICAO Council withrespect to a Complaint
submitted under Section 1 of ArticleiI of the Transit Agreement.
Le VICE-PRÉSIDENT: A cette question il est également possible de
rbpondre au d6but de la séanceprochaine si M. l'agent du Pakistan y consent.
L'audience est renvoyée à mardi 10 heures du matin pour entendre les
réponses du conseil de l'Inde si M. l'agent du Pakistan qui prendra la oarole
cejour-là n'y voit pas d'inconvénient.
The Court rose af 1.20p.m. SIXTH PUBLIC SITTING (27 VI 72, 10 am.)
Present: [See sitting of 19 VI 72.1
ARGUMENT OF MR. PALKHIVALA (eont.)
CHlEF COUNSEL FOR THE OOVERNMENT OF INDIA
Le VICE-PRÉSIDENT faisant fonction de Président: Je souhaite savoir
si M. Palkhivaladésire prendre tout de suite la parole afin de rkpondre aux
questionsqui ont étéposéespar M. le jugesir Gerald Fitzmauriceet par M. le
juge Jiménezde Aréchaga ou bien si M. l'agent du Pakistan a l'intention de
présenter tout d'abord les conseils du Pakistan. Peut-êtrey a-t-il un accord
entre vous. Je m'en remet< a vous.
Mr. PALKHIVALA: 1 have taken the oermission of the Counsel for
Pîkistan to give my reply now to the points put to me by Judge Sir Cicrnld
Fitzrnauricc and the question p.11to me by Judgc Jiniénezde Aréchîga.
May it please the honourable Court. My submissions on the points put to
me by Judge Sir Gerald Fitzmaurice on 23June 1972are as follows:
II is not my contention thüt qiicstions relîting Io the interpretlition or
application oftrelities arc not questions of international Iaw. Disputes rclating
IO intr'rpreiation or appl~cation of treîties may involve questions of inier-
national law, and the ICA0 Council h;isjurisdiction to dedl with intcrn;itional
law to the extent that it becomes necessary to do so in interpreting or applying
the Convention and the Transit Agreement.
When 1 said that the inherent limitations on the Council's jurisdiction
-which are implicit in its composition, powen and functions and explicit
in the delimitine iurisdictional words "interoretation" and "ao..ication" of
the treaties-mr;de the Council incompetent'to deal with questions of inter-
national law, 1 meant, in the universe of discourse, international law, which
is the source of titles.wers and riehts of sovereien States dehors the two
treaties (hereinafter réfirred to in ~ecGons1to IV "subsrantive inrernafional
law"). The right of a State to suspend a treaty on the ground of material
breach is a ruje of such Substantive international law. Neither interoretation
nor application of the two treaties can involve any question of sibstantive
international law. The ICAO Council is a principal administrative organ of
ICAO which is a functional international oreanization. Bv contrast. the
International Court of Justicejs the principal-judicial orgin of the inter-
national community. Unlike the ICAO Council's jurisdiction, this Court's
iurisdiction covers not onlv "the interoretation of a treatv" but embraces
"any question of international law" ri. 36 of the Statute of the Court); and
it can apply and deal with al1the principles, the entire gamut, of international
law. (Art. 38 of the Statute of thecourt.)
~hbs, while the International Court if~ustice has no inherent limitations
on its jurisdiction butcan take the whole field of international law as its ARGUME~T OF MR. PALKHIVALA 617
province, ICA0 Council has inherent limitations on its jurisdiction ansing
from:
(a) its being the cbief administrative organ of a functional international
organization;
(b) its being composed not of Iawyers, judges or jurists, but of governments
or States;
(c) its quasi-judicial functions being expressly restncted to adjudicating
upon disputes relating on1y to the interpretation or application of the
two treaties:
(d, al1 substaniive iniernation:il law and rights ariring thcrcunder being
cxcluded from the Council'sjurisdiction by express jurisdictiondl words.
The aforesaid factors form the basis for excludine from the Council's
jurisdiction al1rules of international law other than tbise which are relevant
for the limited purpose of interpreting or applying the two treaties.
The real test is not whether the aoolicant asks for the treaties to be aonlied
or intcrprctcd. Thc Council's jurirdiciion cannot depend upon thc f&h or
wording of the applicant's claini. Thc real test is, in adjudicating upon ihe
merits of the diso.te. .ould the Council be reauired to interoretor aoolv a
rulc of siibstünti\,c intcrnütional law. .l'hginherent limitations on thc coin-
cil'sjurisdiction prccludc 5uch ü~ljudication.
It is true that since there is a dispute as to the interpretation of the words
"interpretation or application", which occur in the Convention and in the
Transit Agreement, the Council would have to construe these two words in
the first instance. But the words "intervretation" and "avolication" are
jurisdictionül u,ords; ihe jurisd,ction of ihc Council is res;ricted to cases
covcrcd by thusc words properly construed. The Council cannot enlarge its
own iurisdiction bv erroneouslv construinr! these two words which delimit
itsjuiisdiction. ~uch erroneous issumptionof jurisdiction would be corrected
by this Court on appeal.
The vossibility of termination or susoension of a treaty involvine a auestion
of the ;ntcrprct~tion or application or'the vcry trcïty may arise iherc ïction
is raken under a provi,ion contained in the trcaty for iermination or suspen-
sion. But that possibility cannot arise when the termination or susvension is
under substantive international law.
About Article 89 of the Convention the following points may be noted:
(i) In any view of the matter, Article 89 is irrelevant for determining the
~ouncil's jurisdiction; and the question of ils intcrprciation or applica-
lion cannot posribly arisc in this case. Either the treaties ucre suspcndcd
in 1971or they have been under susoension since 1965.
(a) If they were suspended in 1971,Article 89 would have no application
since it deals only witb war and national emergency, neither of
which existed in 1971when suspension was effected by India on the
ground of material breach.
(b) If the treaties have beeo under suspension since 1965, no question
can arise of interoretinn or a.. .ina-Article89 in 1971after Pakistan
kas accepied and acquksccd in thc suspcnsion for six ycars. (See thc
separateopinion of Vice-Prcsidcnt Alfaro in TempleofPreah Vihear,
Cambodia and Thailaiid. Merits. Juda.enr. I.C.J. Re~oris 1962.
p. 6, at pp. 39 and 40.) ~ven on Pakistan's argument, Article 89 would have relevance only
so far as India's Notifications dated 6 September 1965and 10 February
1966 are concerned. But those Notifications are not even the subject-
matter of the dispute raised in Pakistan's Application and Complaint
before the Council.
(ii) India's action is not founded on Article 89, either in 1965or in 1971.The
suspension of the treaties was under a rule of substantive international
law and the dispute in essence is as to the application of the rule of
substantive international law. A Court competent to deal with substan-
tive international law alone can deal with this disoute.
(iii) Eveii assuming Article 89 is relevant, it is only relevant for considering
whether it leaves untouched the rights of the contracting States under
substantive international law. If. on its oroDer construclion. it does. the
Council cannotclaim jurisdiaion to d&l &th the merits of the disPute
relating to suspension under substantiveinternational law on the ground
that the Council was called uoon to internret Article 89. In otherwords.
Article 89 cannot support the plea of jirisdiction regarding a disputé
which centres round a rule of substantiveinternational law. The substance
of the matter is the riaht under substantive international law. Article 89
ib alleged by ~akistiin-to eclipre that right.A forum cumpetent to deal
u,itIisubstantivr international law can consider the question whether the
riaht of*umension under thît Iiiwis ecliosed bv Article 89. The Council
is;ncompe~ent to deal with substantive <nterna.tionallaw, and it cannot
assume thar jurisdiction under the guise of interpreting or applying
Article 89.
Suppose the Council did came to the co~iclusion that Article 89
merely leaves al1rights under substantive international law untouched,
where would it get the jurisdiction to deal with the question whether
such substantive international law empowered India to suspend the
treaties? In other words, if apart from Article 89, the Council has no
iurisdiction to deal with the auestion of substantive international law.
how could the absence of juriidiction be cured by invoking Article 891
The crucial point against the Council exercising jurisdiction would still
remain, namely that the operation of the treati& had been suspended,
- and therefore neither Article 89nor any other article cal1for application
or interpretation.
(iv) Article 89 being irrelevant it hasnot been referred to in India's Mernorial
at all.1 place my interpretation of Article 89 before the Court only to
show that on its right construction it had no bearing on the question of
the Council's jurisdiction.
UI
The crux of the matter is that the treatiesmustbe in operation before any
question of interpretation'or application can arise. Therefore, any breach of
the treaty in operation may be adjudicated upon by the Council where it
-involves a disagreement as to inter~retation or ao~lication of the treatv. If
the operîtion ;fa trcÿty has been iuspended or Gkminated, ihe ~urisdiciion
of the Council cannot bc invoked on the ground thai there hïs been a breach
of the treaty. This would be a sound conclusion in anv event in cases where
the suspension or termination is in the exercise of a right under substantive
international law. The jurisdiction is limited to questions of "interpretation"
or "a~olicdtion": and "breach" is not a iurisdictional Tactat al1 wherc no
question of the interpretation or application of the tieaty is involved. ARGUMENT OF MR. FALKHIVALA 619
The field of adjudication hy the Council is CO-extensivewith the area ofthe
treaties. as distinct from the area of substantive international law: and the
jurisdiciion of the Council is CO-terminouswith the operation of thétreatiei.
The competence of the Council ends where the operation of the treaties ends,
since the Council has competence only within the framework of the treaties.
Further, there is a well-estahlished distinction in law between the power
todo a thing and the righr todo it.
In Civil Law a licensor may have no righf torevokealicence but he has the
power ta revoke it, and the exercise of the power, without the right.to do sa,
still makes the revocation effective and terminates the licence, even though
the revocation mav he wroneful and mav eive rise to a claim for damaees.
In substantive international law a sovereign Statehas thepower ta suspend
a treaty. The exercise of the power effecfively puts an end to the operation of
the treatv. leavine nothine in the treatv to interoret or aoolv. ~he~ouncil is
not the iirum to-decide whether the power ha; been rghily exercised, i.e.,
whether India had the.right to suspend the treaties in the circumstances of the
'case.
In short, whereas the Council has the jurisdiction ta interpret and apply
the treaties so long as they are in operation in order to decide whether there
has been a hreach or not: it has no iurisdiction to deal with the termination
or suspension of the operation of the treaties under a rule of substantive
international law. This absence of jurisdiction is not cured by the Applicant
alleeine that the termination or sus~ension is in hreach of thetreaties.
is \s;dge Sir Gerûld ~itzmauriieh3s put it, irrespective of the curréctness
or otherwise of India's contenti~~nthat hcr action u,as judtied under gencral
principles of international Iïw, "what Pdkirran hai suhmitted to the Council
ir iihethcr ... the Indian actioii is jiistified under theConir,zrio,z;and rhor
question, so Pakihtün contcnds, is a ~iie.<tionrvhich necesslirrly involves the
hterpretation of the Convention, and must therefore be within the compe-
tence of the Council under Article 84".
My answer to the above point is that under Article 84 there must be dis-
ameement between two contractine States hefore the Council can assume
jirisdiction. ln the present case theri is no disagreement at ïII between India
and Pûkistün on the question as to whethcr India's action-suspcn.;ion-is
iustificd undcr the C'oniZcntion.In TactIndia ïnd Pakisran areacrecd rh~t the
Suspension is not justified under the Convention. India has neveLasserted that
the suspension was justified under that treaty. The whole case of India
throuahout has been that the susnension was iustified onlv under a rule of
subst<itivc international Iüu,.~hu'jnoil-jusiiti&tion of suspension under the
Convention h3s never bern the whject-niatter of any disagreement, and the
question of interpreting the Convention on such a point does not arise.
India's Memorial and Reply make it clear that the material hreaches by
Pakistan are referred to only to indicate the circumstances in which India
suspended the treaties, andthat they have no relevance ta the question of the
Council's jurisdiction.
The allegations and counter-allegations of breaches made by India and
Pakistan against each other have no strict relevance ta the question of the
Council's jurisdiction. They would have real relevance only if a question
arises before an appropriateforum as to whether the suspension of the treaties
by India was justified on a proper application of the rule of substantiveinternational Iaw. If India's allegations against Pakistanare correct, India's
action in suspending the treaties would be justified under substantive inter-
national 1aw.-lfI'akistan7s aliegations against India are correct, India may be
regarded as having committed a breach of the rule of substantive international
law deallng with the right of suspension. In either event. no question of
interpretation or application of the treaties would be involved, since India's
action hes effectively put an end-to the operation of the treaties vis-à-vis
Pakistan.
The last three sentences of paragraph 55 in Pakistan's Counter-Memorial
run as follows:
"in the instant case, India is claiming that the Convention and the
Traosit Agreement have been suspended or terminated by it. On the
other hand, Pakistan maintains that the Convention and the Transit
Agreement continue to be operative between the Parties and India
canriot unilaterally suspend or terminate the treaties. The assertion of
India and the denial by Pakistan is certainly a disameement and raises
the question of application or non-application or iaterpretation of the
provisions of these agreements."
The fiist sentence contains a half-truth; in order to make it complete, it
needs the addition of the words, "as a sovereign State under a rule of inter-
national taw dehors,the treaties".
The second sentence raises the question whether the treaties continued to
be operative, and that, in the context of India's claimex hypothesi raises the
question of the ambit of the power of a sovereign State under substantive
international law to suspend a treaty.
The third sentenceconfuses the question of applying and interpretinga rule
of substantive international law with the question of applying and inter-
preting the treaties. It overlooks that the rival contentions make the issue
really centre round the application and interpretation of the relevant rule of
substantive international law on which alone the action of India has been
entirely founded.
The fnllowina is the subkission of India on the auestion raised bv Judee
.Jim&&de ~r&haga regarding the jurisdiction of this court to entekain &
appeal against the decision of the ICA0 Council on the Com~laint filed by
~akistaninder Section 1of Article II of the Transit ~ereemeni.
A complaint may be made under Section 1 of ~rticL 11;~arding "action
by annther contracting State under this Agreement". Section 2 of Article II
nrovides that in the event of disameement between two or more contractine
States relating to thc interpretaricn or application of fhc Transit ~~recmcn<
the provirions of Chapfer XVlII of the Convention shall be applicable. Chap-
ter XVlll of thc Convention containr Article 84 which deals with adiudication
by the Council and the right of appeal from the decision of the ~ouncil to
this Court.
In the oresent case there was a disameement between India and Pakistan
regarding the interpretation of ~ectio'l of Article II of the Transit Agree-
ment. The Council accepted Pakistan's interpretation of the words "action
under this Agreement" and beld that susoension of the Aereement. wbicb is
the very antshesis of the concept of "action under this'Agreemektw must
nevertheless be treated as covered by those words. Since that decision is on
a point of disagreement as to the correct interpretation of the phrase "action
under this Agreement" an appeal lies to this Court against that decision
under Section 2 of Article IIof the Transit Agreement read with Article 84 ARGUMENT OF MR. PALKHIVALA 621.
of the Chicago Convention. Sirice there is a dispute as to the interpretation
of the words "action under this Agreement" the Council would have to
construe those words in the fist instance, but those words are jurisdictional
words. The iurisdiction of the Council to entertain comolaints is restricted to
cases covcrfd by those words properly çonsirued. The Council cÿnnot cnluge
il.; ou,n jurisdiction10 enrertüiii complainis by erroneously construing the
words "action under this Agreement". Such erroneous assumotion of iuris-
diction tvould have Io be co;reL.ted hy this Court on appe31.~he s~bmiision
made above i.;supportcd by the Note prcsentcd by the Secretary-Gcncrdl of
ICA0 to the Council at ils sevent,,-fourth sessionin 1971. which i,annexed
a5 Annex C IO India's Reply. The niaierial portion ofthat Noie is parüpraph
5.3 at page 450. supro, of india's Reply. In that Note the Sccrciary-General
of ICA0 has clearly accc~ted the nosition that an aoocnl does lie to this
Council from a decision "f the ~o;iicil on a compla;n~t. Itmdy be further
notcd that in this sdsc the Complaint and the Application under Sections 1
and 2 of Arricle II of the Transit Aprccmcnt were liled togeiher and were
heard together. India's preliminary%bjeciions uere bdsed on tu.0 main
grounds, whish uerc common ((1bath the Application and the Complaint.
The suhiect-rnattïr of the Cuiiiul~iiiiuas cxacrly the same as the subiect-
matter of ihe Applicationand the reliefs asked for in the two procee&ngs
were also almost identical. The additional preliminary objection in the case
of the Comnlaint was on the moiind that sus~ensionof theTransit Agreement
could no1 possibly be con,tried .~s"action undcr this Agreement" and there-
fore the Coiincil had nojurisdiction to enterrain the Coniplainr.
After the Application and the Complaint were heard together a single
decision dated 30 July 1971 was given by the Council, which applied both to
the Application and the Complaint. Even in this Court only one appeal has
been filed a~ainst a sinale decisionof the Council Covering both the ADDiica-
tion and th; ~omplainÏ. In the circumstancw: the ~~pliclirion and the corn-
plaint virtudlly constitute one proceeding in substance. India siibmits that
apart from the fact rhat evcn if Pakistan h3d filed the Complaint ülonc, this
Court would have had jurisdict on 10 enrerrain an appcal, the prescnr case
is an afortior ciscfor coming Io the sdmeconciusion. STATEMENT OF MR. KHARAS
AGENT FOR THE GOVERNMEN OP PAKISTAN
MI. KHARAS: MI. President and honourable Members of the Court. 1
conrider it both an honour and a privile10 apperir as Agent for theove in-
ment of Pakistan before this distinguished Court. As a Member of the United
Nations. Pakistan has always striven to maintain. strennthen and abbvethe
prinçiples of the Charter. ~akistan has. therefore. alwiiys attached gral value
and importance to the dccisions of the United Nations and the various bodies
of thai Orcani~ation, includinn ihis honourable Court. which is the orincina1
judicial organ of the United ~ations.
For the presentation of Our case the Government of Pakistan has deputed
MI. Yahya Bakhtiar, SeniorAdvocate of the Supreme Court of Pakjstan, and
Attorney-General for Pakistan, as the Chief Counsel. He willbe assisted by
MI. Zahid Said, the Deputy Legal Adviser of the Ministry for Foreign
Affairs of the Government of Pakistan and by MI. K. M. H. Darabu, Leaal
Adviser of the Department of Civil ~vi~tion,~~ovemment of Pakiston.. -
Mr. President,lrequcst thal you may kindly cal1upon Mr. Yahya Bakhtiar
10 riresent Pakistan's case. ARGUMENT OF MR. BAKHTIAR
ARGUMENT OF MR. BAKHTIAR
CHIEZ COUNSEL FOR THE OOVERNMENT OF PAKlSTAN
Mr. HAKIITIAK: Mr. President and honourable Members of the Court, it
is indeed a maner of oride for me to a..wr before this honourable Cowt to
represent my country in this case.
MI. President, 1 bave had the honour and pleasure of watching and
listening to the proceedings of this Court for the last week. 1wasreally im-
pressed by the courtesy shown by the Judges to counsel and the freedom
which is allowed to a counsel to present his case. It was indeed perhaps due
to that latitude. which vou so kindly give to the counsels, that the Chief
Counsel of ~ndia, who iery ably aüd;ery eloquently represented India's
case, had the courage to advise you not to decide the case according to your
understanding of international law. but to keep the principles of expediency
in mind, to think of the consequen&s if you decide the c&e-1 do not know
whether 1 have correctly interpreted his viewpoint, but he stated that if you
do not decide as he interpretsthe law, as he suggests, the consequences will be
very grave, that nations will not enter into treaties-bilateand multilateral
treaties.
1 have been thinking why nations enter into treaties. We al1 know that
India, or for that matter Pakistan, did not enter into these treaties to do a
favour to mankind. It was for their own personal benefit and 1do not think
that when a nation enters into treaties it surrenders its sovereignty or its
sovereign powers. 1think that by entering into treaties we extend the scope
of our sovereignty, the horizon of our sovereign power. Without these
treaties lndia could not flv al1 over the world, land wherever they wanted;
they would remain isolate<i,and the same thing would happen 10 l>akistan.
Mr. President. 1do not want to take long over my introductory remÿrks.
1shall try to be as brief aspossible an10quote as few books as possible.
In the first place, Mr. President, the nature of the dispute. as given in the
Indian Memorial is that on 3 March 1971Pakistan presented an Application
and a Cornolaint to the [CAO Council under Articles 2 and 21 respectively
of the ~ouncil's Rules for the Settlement of Differences as approvedby it on
4 April 1957.Jt is stated that in the Application and the Complaint, Paki-
stan claimed that under the Convention on International Civil Aviation,
1944, and the International Air Services Transit Agreement, 1944, Pakistani
aircraft had the right to overiiy India and to make stops in India for non-
traffic Durooses. The same substantial reliefs were claimed in both the
~pplicÿtion and the Cornplaint.
India's case was, according to india's Memorial. that the Convention and
the Transit Agreement were suspended, not terminated, as 1sstated therein.
as between Gdia and ~akistai wholly, or in any event in relation to all
flights and landings for non-traffic purposes. India raised preliminary objec-
tions and submitted, inrer alia, that since the Council's jurisdiction was
limited to disputes relating to interpretation or application of the two
treaties, it had no jurisdiction since the disagreement between India and
Pakistan related to suspension of the treaties.
On 29 July 1971 the Council rejected the preliminary objection both with
regard to the Application and the Complaint. One appeal had been filed, 1would respectfully submit, against two decision, of the Council The distin-
guished Chief Counscl for India, while discussing the question of manner and
method by which the Council arrived at decisions, stated thar in one case
there was-a majority, in another csse there u,cre only 13 votes: two distinct
decisiuni uere givcn. but only one appeal had ken hled, and this is for the
Court IO deiermine-which a.n-al is competent or whether an appe. .can be
filed against two decisions.
The appeal of the Applicant questions the validity of orders both with
regard ta their material conclusions as well as with regard ta the manner in
which the conclusions were arrived at. India's stand has been that India and
Pakistan both were parties to the Convention and the Transit Agreement
until 6 September 1965 and that India and Pakistan entered into a bilateral
Air Services Agreement in 1948. The latter is a treatv betweenthe two coun-
tries atid deïlt-uith the right to overfly each other'; territories and to make
stops in each uther's territory for traffic and non-trafic purposci. The Con-
vention. the Transit Arrcement and the Bilateral Acreement of 1948
between the two countrieç were suspended during the armed conflict of 1965
and were never revived, and after the Tashkent Declaration, signed on 10
January 1966, overflights were resumed under a Special Agreement of
1966. This Special Agreement of 1966 was given a legal form in the Govern-
ment of India's notification of 10 February 1966 read with their previous
notification of 6 September 1965. Under the Special Agreement and the
notification, it was obligatory for the Pakistani aireraft, before overflying
Indian territory, to take prior permission from the Government of India.
The Special Agreement of 1966 was provisional and it was on the basis of
reciprocitywhichentitled each State to revoke its permission at any time. On
4 February 1971 India withdrew the permission for Pakistani aircraft to
overflv rndia becauseof the conduct of Pakistan in relation to the hiiackine of
an~fndiin aircr~ft. The alternative stxnd of the ~overnr&f if lndi<i was chat
if iiuïs ass~nicd that the Coiiverition and the Transit Agreenieni werc in
opcration at the lime of suspension of ovcrflights of Paktstan airirdft, that is.
on 4 February 1971, India had the right to suspend the Convention and the
treaties, as against Paki5tan. for material bresch thcreof in eucrcisc of hcr
right. as a sovereign State. under a rule of international law which is well
esïablished as a resilt of the latest pronouncement of this honourable Court.
The material breach being Pakistan's conduct in relation to the hijacking
incident. which constituted a threat to safetv and securitv of international
civil air transport and amounted to materLsl breach oiobligaiions of a
contracting State under the Convention and the Transit Agreement.
India's prcliminary objection before the ICA0 Cnuncil was that it had no
jurisdiction to handle the matter presented by Pakistan. Firstly. that thc
jurisdiction of the lCAO Council wns limited to disagreements relating to the
interpretation or application of the Convention and Transit Agreement, and
did not extend to any 'disputes or disagreements relating to termination or
suspension of the Convention or Transit Agreement by one State vis-&-vis
another State. This eround was further elaborated before this honourable
Court and here itwai addcd thal the Council had inherent liniitations with
regard to ils jiirisdictioIt was contended that the j~risdiction of the Council
shnuld be limited because of the incomDetencv of those who constituted the
Council, in understanding international-law. -
Mr. President, 1 want to reserve my right to give a full-reply to what my
learned friend stated, but 1 will now make some observations. It was stated
that the jurisdiction of the ICA0 Council is confined to interpreting ARGUMENT OP MR. BAKHTIAR 625
international law to some extent-that extent is that it will not interpret
substantive law. What is left by this procedure-superficial interpretations?
1 do not know. 1will deal with this after1have read his statement in detail.
In the first instance, it was stated that because the Council lacked under-
standine of international law. and was a nurelv administrative bodv. it is not
fit ta decide judicial matters.'~he next point was that there existe;a Special
Agreement between Iodia and Pakistan which governs overflights and as the
suecial Arreement was inconsistent with the Convention and the Transit
~greement, the Council had no jurisdiction to handle any dispute arising
from this Agreement. Then it was suggested that even if the treaties were in
force as hetween India and Pakistan, India suspended them because of
"material breach by Pakistan". Before the Council, the words "material
breach" were not mentioned. It was argued that any dispute regarding termi-
nation or suspension of a treaty for material breach was outside the juris-
diction of the Council, which is only empowered to decide disagreements
regarding the interpretation or application of treaties. It was also suggested
in relation to the Complaint of Pakistan that even if the Transit Agreement
was in force between lndia and Pakistan, the act of suspension of this treaty
was dehors the treaty and not an action under the treaty as envisaged in
Section 1. Article II. of the Transit Aereement. Therefore Pakistan's Com-
plaint wk not mainiainable. ~owever,-in the appeal, the jurisdiction of this
honourable Court is beinginvoked under Articles 36 and 37 of the Statute of
the Court. and under ~rticle 84of the Convention and Section 2. Article 11.of
the ~ransil Agreement.
Pakistan's stand has been sufficiently explained, in its written pleadings,
on al1the ooints oostulated bv the learned Chief Counsel of India. Thev are
reaffirmed'and reiterated, thirefore 1 will not go on repeating or reading
again the pleadings.
Some of the arguments which were advanced in this court may cal1 for
some comment, but before 1 deal with some of them, 1 will seek permission
from this honourahle Court ta make my submissions on the question of
iurisdiction of this Court withegard to the oresent aoneal of India. 1think the
iearned Chief Counsel for 1ndia was very 'diplomaiiC in not replying to the
objections which we have raised in our written pleadingsas to thejurisdiction
of this Court.
IfI may bc pcrmittcd. I will gu, in detail, into the question ofjurisdiction.
hlr. Prcdent, the firît article on u hich this appeal is founded 1sArticle 84
of the Convcniion. This has been reoroduced in Indiï's Memort31 at Dace 27.
supra. The Article appears in chaiter XVIII of the Convention under thé
title "Disputes and Defaults" and runs as follows:
"Sertlement of disputes
If anv disaareement between two or more contractinz States relatine
io the kterpretation or application of this Convention ÿnd ifs ~nnexcs
cannot bc scttled by ncgotiarion [I particularly draw your attention to
the u,ord 'settled'l. it shall. on the annliciition of anv Stnte concerncd in
the disagreement.-be decided by the ~ouncil. No mcmbcr of the Co~ncil
shall vote in the consideration by rhc Coiincil of any dispute to which it
isa nartv. Anv con tract in^State mav. suhiect to Article 85.a..>ea.lrom
rhe deciiion 2 the ~ounc71 to an odhoc irbitral tribunal agreed upon
with the other parties to the dispute or iohc Permanent Court of Inter-
national Juîticc. Any such appenl shall be noriiied to the Council uithin626 ICAO COUNCIL
sixty days of receipt of the notification of the decision of the Council."
(Emphasis added.)
What 1humblv want to submit is that the intention clearlv was that aooeal
shall lie to this ~burt from the final ordcr of the Council aninor from in;er/m
ordcrs or orders made disposing of any objection u,ith regard to the juris-
diction of the Council. Thcv arc not actuallv called "decisions" but the word~ ~
..de:~iion" could bc uied inonc articlc or thc other.
Ilere, Mr. Presideni and honourable .Memhcrs of the Court, you will be
lea as cto see that only one dccision is nientioned-"the dccisiun". It does
no1 say "any dccision"of the Council. The Articlc redd with Article 18of thc
Kules for ihe Settlcmcnt of 1)iIïerences providei for only one appeal against
a decision of the Council u,hich is oven not under Article 5 but iinder Article
15 of the Rules. The word "settlement" ought to mean that when the matter
could no1 be finally settled by negotiations, then it would be decided by the
Council.
Before negotiations, supposing a question about proof as regard to the
jurisdiction is raised, and a decision is given. This decision will not come
within Article 84. because it savs: first. there shoulbe settlement bv neeotia-
lions, failing which the ~ounciiwill decide. The whole thing points tk thefinal
decision, and the only decision. The scheme of the Convention is such that a
quick decision has to be taken on preliminary objections and no appeal lies
therefrom. If appeal is allowed from every order, or any order of the Council
-and we have seen the proceedings, there have been 10to 12 orders-defer-
ment not aareed to: ao to the International Court ofJustice: adiournmentnot
allowed: go to the International Court of Justice-that will iefeat the very
purpose of the Convention.
One country may suffer a lot-ils planes may be stopped, as in the case of
Pakistan. Every month the Pakisfan national airline is suffering a loss of two
million dollar?. It is very easy to go on raising objections, getting them
decided and aooeals addressed to this honourable Court. This is no1 the
scheme of thc'fonventiun. the Trdnsit Agreement and the Kulei for the
Settlcment of Diîferenccs. The idea was ihai only one appeïl u,ill IICirom the
final dccision, and not from intcrim orders, whether they arc cïlled decisions
or not. And similarly. Article 18 of the Council Kulcs nlso indiçates the
narrow scope of appeals, and that also show thdt appeal doei not lie against
0n this point 1 am further strengthened by the arguments of my learned
friend, the distinguished Chief Counsel of India. He stated that no reasons
had been aiven bv the Council in disoosina of the oreliminarv obiection with
regard toiurisdiction, and 1 say yes: thire was ;io need for ii.You give
reason when an appeal is provided for. If an appeal is not provided for, you
are not bound to give reasons. Secondly, that decision is taken under Article
5 of the Rules for the Settlement of Differences. An appeal lies against a
decision taken under Article 15 of those Rules. On page 334, supra, of the
Memorial, one finds that only a decision given under Article 15 could be
appealed against to this honourable Court. Article 15reads as follows:
"Decision
(1) After hearingarguments, or after consideration of the report of the
Committee, as the case may be, the Council shall render ils decision
[again in singular, a decision].
(2) The decision of the Council shall be in writing and shall contain: ARGUMENT OF MR. BAKHTIAR
ii) [ne date on which it is delivered;
(ii)a list of the Memhers of the Council participating;
(iii) the names of the parties and their agents;
(iv) a summary of the proceedings;
(v) the conclusions of the Council together with its reasons for
reaching them;
(vi) its decision, if any, in regard ta costs;
(vii)a statement of the voting in Council showing whether the conclu-
sions were unanimous or hy a majority vote, and if by a majority,
giving the number of Members of the Council who voted in favour
of the conclusions and the number of those who voted against or
ahstained.
(3) Any Memher of the Council who voted against the majority
opinion may have its views recorded in the form of a dissenting opinion
which shall be attached to the decision of Council.
(4) The decision of the Council shall be rendered at a meeting of the
Council called forthat purpose which shall be held as soon as practicable
after the close of the proceedings.
(5) No Memher of the Council shall vote in the consideration by the
Council of any dispute to which it is a party."
Now 1will respectfully draw your attention to Article 5, which is on page
331 of the Memorial:
"Preliminary Objection and Action Thereon
(1) If the respondent questions the jurisdiction of the Council to
handle the matter presented by the applicant, he shall file a preliminary
ohjection setting out the hasis of the objection.
(2) Such preliminary objections shall be filed in a special pleading at
the latest before the expiry of the time-limit set for the delivery of the
counter-memorial.
(3) Upon a preliminary ohjection heing filed the proceedings on the
merits shall he suspended and, with respect to the time-limit fixed under
Article 3(1) (c),time shall cease to run from the moment the preliminaiy
objection is filed until the objection is decided hy the Council.
(4) If a preliminary objection has been filed, the Council, after hearing
the parties, shall decide the question [emphasis again on thequestion] as
a preliminary issue hefore anyfurther steps are taken under these Rules."
This Article, that is Article 5, is a code hy itself; it provides the entire
procedure for disposing of preliminary objections regarding jurisdiction and
a decision has to he taken under this. As 1 was respectfully submitting, the
decision against which the Government of India has appealed ta this honour-
able Court was taken under Article 5 and not Article 15. and that does not
provide for any appeal.
Apart from our submission that the exercise of jurisdiction, other than
assumotion of iurisdiction bv the ICA0 Council, does not constitute the
decisiin contemplated by ~rticle 84, there isanother reason for our conten-
tion that appeal against action of the Council in assuming jurisdiction in
such a dispute was not provided for by the authors of the Convention. The
reason is the universally estahlished rule of international law that every inter-
national tribunal has the jurisdiction to determine its own jurisdiction. Some
authorities could he cited on it. Very hriefly, 1 will refer on the subject to628 ICAO COUNCIL
Rosenne's book The Law and Practice of the International Court, Volume 1,
page 438, 1963 edition, wherein he says:
"The fundamental principle of international law governing these
asuects is tbat an international tribunal is master of its own jurisdiction.
it is &day an established principle of international law that every
international tribunalhas jurisdiction to determine its own jurisdiction
,. such determination acquiring the force of rcsjudicata."
This honourable Court'%decision in the .Tortehohn~case, is reported I.C.J.
Reports 1953.The main decision is on page 111,but Ishall refer to the relevant
portion on page 119. This dccision of the International Court of Justice
rejected the contention ofCuntcmala ihat consequelit upon the ehpiry of the
declliration accepting the compulsory jurisdiction of the Court, after the
filina of the Aonlication. the Court could no longer enjoy jurisdiction to
determine its O& jurisdiction. The Court held that:
"Since the Alabama case, it has generally been recognised, following
the earlier orecedents. that. in the absence of anv ameement to the con-
trary, an ini~rnational trib"nal has the rightto décideas to its own juris-
diction and has the power to interpretfor tbispurpose the instruments
which govern that juiisdiction."
The Court will kindly mark the words "and has the power to interpret for
this purpose the instruments which govern that jurisdiction".
"This nrinci.le. which is acce~ted .- aeneralinternational law in the matter
of arbitration. assumes particiilar force whcn rhc international tribunal is no
longer anarbitral tribtinal. but isan inrtitiition which ha%been pre-established
by an international instrument defining its jurisdiction and regulating its
operation and is, in the present case, the principal judicial organ of the
United Nations."
1 think that could aonlv to the ICAO Council what would also apply to
this honourable court: "~onsequently theCourt has no hesitation to adhdi-
cate on the question of its own jurisdiction in cases in which a dispute has
arisen. In this res~ect. the disDutewent beyond theinterpretationand applica-
tion of paragraph 2 of ~rticle 36."
The next provision on which India founds jurisdiction of this honourable
Court is Article II of the Transit Agreement-this also appears on page 27,
supra, of India's Memorial. India relies on this provision to found its appeal
against the decision of the Council rejecting India's preliminary objec!ion to
the jurisdiction of the Council with regard to Pakistan's Complaint. Pakistan
had filed the Complaint under Section 1of Article Il , hich does not provide
for appeal against any findings or rccommendations of theCouncil. Would the
Court please turn to Section 1:
"A contractine-State which deems that action by another contractina
State under this Agreement is caubing injustice O; hardship to il,ma;
request the Council toexdmine the si1uatit)n.The Council shnll thereupon
inauire into the matter. and shall cal1the States concerned into consulta-
tion. ~hould such consultation fail to resolve the difficuliy. the Council
may makeappropriate findings and recommendîtions to the contracting
States concerned. If thereafter a contractina State concerned shall in the
opinion of the Council unreasonably faii to take suitable corrective
action, the Council may recommend to the Assembly of the ahove-
mentioned Organization tbat such contracting State be suspended from ARGUMENTOF MR. BAKHTIAR 629
its ridts and privileges under this Agreement until such action has heen
taken. The Assemhly by a two-thirds vote may so suspend such con-
tracting state for such period of time as it may deem proper or until the
Council shall find that corrective action has heen taken by such State."
A Complaint was filed hy Pakistan with the ICA0 Council under this
provision. No appeal is provided for against any of the findings or recom-
mendations of the Council made under Section 1, Article II, of the Transit
Agreement. Section 2 reads:
"If any disagreement between two or more contracting States relating
to the interpretation or application of this Agreement cannot he settled
hy negotiatioo, the provisions of Chapter XVIIIof the ahove-mentioned
Convention shall he ap~licahle in the same manner as provided therein
with reference to an;-disagreement relating ta the Gterpretation or
application of the ahove-meiitioned Convention:"
Section 2 deals with interpretat ion and application if there is disagreement,
while Section 1deals with the Comnlaint-Section 2 is not at al1annlicahle to
Pakistan's Complaint. Section 2. hy reference, adopts and incorporates the
~rovisions of Article 84 of the Convention, and al1 my submissions with
;egard ta appeal against the deçision of the Council under Article 84 will
apply to the Complaint also, which 1 have just submitted. That is merely a
ruling of the Council on preliminary objections, and no appeal lies, nor is
any appeal provided for. And also my suhmission that the Council had
jurisdiction ta determine the question of its own jurisdiction, will apply.
Now, Mr. President, 1 will go to the next provision, under which India
founds jurisdiction of this Court. It is Article 36 of this honourahle Court's
Statute. given on page 28, supra, of India's Memorial:
"1. The jurisdiction of the Court comprises al1cases which the parties
refer to it and al1 matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force."
This is Section1 of Article 36 and Iodia has relied on this section. No case
has heen referred by the parties to the Court, and it is also not India's case
that the appeal pertained to any matters specially provided for in the Charter
of the United Nations. This Section relates to the original jurisdiction of the
Court. India, however, in her Appeal relied on the last part of Section 1
which confers jurisdiction on the Court in matters ".. .provided for ... in
t~eaties and conventions in foice". 1 respectfully draw the attention of the
Court to paragraph 37 of India's Reply, page 419, supra:
"While statine that Article 36 of the Statute of the Court is irrelevant
to this case, the-~espondenr contends that 'Article 36 (1) relarcs ta the
original jurisdiction of the Court and c<lniprises '.al1 cases which the
nartiesrefer toil".The Parties havc no1rererred anv case to the Court in
its original jurisdiction under this provision'. The Respondent has
chosen ta ignore the latter part of paragraph 1 of Article 36 of the
Statute which hrings within the jurisdiction of the Court
,. ,'al1matters specially provided for in the Charter of the United Nations
or in treaties and conventions in force'."
Now what is important from my point of view is the next sentence: "The
ChicagoConvention and the Transit Agreement are 'treaties and Conventions
in force'."630 ICA0COUNCIL
1do not know what his argument will be.That they are in force, though not
between India and Pakistan? But when 1 am brought in appeal before this
honourable Court, they have to be in force as between us. If they are not in
force between India and Pakistan then no appeal lies. If it is in force, then the
Council had jurisdiction-that makes al1the difference. He is trying to hlow
hot and cold in the same breath. So, Mr. Presideut, on this point, this
admission of India may kindly he noted, hecause 1will have to come back
to it when 1 make my submission on other points.
May 1 also respectfully draw the Court's attention to various averments
made in India's pleadings, hecause having noted down this-when they say
that the Transit Aereement and the Convention are treaties in force. - -. , ...
India's case hefore rhheCouncil and this honourable Court, in the pleadings
they Sayagain and again that these treaties and conventions are not in force.
~hévaie susoended. ïhev are terminated. So 1 res~ectfullv draw the at~~-~~~~.~.
of the courtin 1ndia's ~emorial, page 26, supra,io the f&lowing. Here India
States her own case-of course this is repeated everywhere:
"Subject of the Dispute
3. In the Application and the Complaint Pakistan claimed thai under
the Convention on International Civil Aviation. 1944('the Conv~ ~io~~~~~.~
and the International Air Services Transit ~greement; 1944('the ~ransii
Agreement'), Pakistan aircraft had the right to overiiy India and to make
stons in India for non-trafic DurDoses.The same substantial reliefs were
clairned in hoth the ~pplication andthe Cornplaint. India's case was that
the Convention and the Transit Agreement were suspended, as between
India and Pakistan, wholly or in any event in relation to overflights and
landings for non-traffic purposeS ..."
The Court adiournedfrom 11.20 a.m. to 11.45 a.m.
Mr. President, when 1 was dealing with the appeal, 1 mentioned Article 15
and Article 5 of the Council's Rules for the Settlement of Differences, 1should
also have drawn the attention of the honourable Court on that point to
Article 18 of those Rules. If 1 may be permitted, 1 shall read from the lndian
Memorial, page 335, supra, Article 18 of the Council's Rules:
"Notification and Appeal
(1) The decision of the Council shall be notified forthwith to al1
parties concerned and shall be puhlished. A copy of the decision shall
also be communicated to al1States previously notified under Article 3
(1) (b).
(2) Decisions~re~dered on cases submitted under Article 1(1) ... 1a. and
(b; are subject to îppeal pursuînl to ~rticlc 84 of the Convention. ?\ny
such îppeal $hall be notilied to rhc Council through the Secretîry General
u,irhin cixty days of receipt of notifi~.ationof the desision of the Coun-
cil,"
Now, theCourt will be pleased to note that only decisions under Article 1
(1) (aJ and (b) are appealable-not al1decisions.
Now, if you will kindly refer to page 330, supra, which gives the sort of
decision which could be appealed against: ARGUMENT OF MR. BAKHTIAR
"Scope of Rules
Article 1
(1) The Rules of Parts 1 and III shall govern the settlement of the
following disagreements between Contracting States which may be
referred to the Council:
(a) Any disagreement between two or more Contracting States
relating to the interpretation or application of the Convention on
International Civil Aviation (hereinafter called 'the Convention') and
ifs Annexes (Articles 84to 88 of the Convention);
IbJ Anv disagreement hetween Iwo or more Contractine tat te;
reiating to the interpretation or application of the ~nternatiinal Air
Services Transit Agreement and of the International Air Transport
Agreement (hereinafter respectively called 'Transit Agreement' and
'Transport Agreement') (Article II, Section 2 of the Transit Agree-
ment; Article IV, Section 3 of the Transport Agreement)."
It becomes sa obvious, in the first instance, that appeal against complaint
has not been provided for because the next section to deal with complaint
says:
"(2) The rules of Parts II and III shall govern the consideration of any
complaint regarding an action taken by a State party to the Transit
Aereement and under that Aereement. which another State nartv to the
siuile Agreement decms to u~uiuse injustice or hardship rd rt'(~riiclc II.
Section I),or regarding a similar action undcr the Transport Agreement
(Article IV, Section Z)."
So. the Court willsec that. in the first olac.. on.v those ~ ~~s~on~, which ~ ~ ~
madéunder Application, not ~omplaint; are appealable.
Secondly, it clearly says that only appeals on merit. with regard to decisions
on the auestion of inter~retation and aoolica..on. are ani>ealable. On the
cquestion'of jurisdiction, 'if any decision is given, 'and ecen if we cal1 it a
decision and not an order, that is not appealahle. Clearly such appeals have
been ruled out, no provision ha9 been madefor them.
Now, Mr. President, with your permission 1 will go hack to my submis-
sions on Article 36, paragraph 1, of this Court's Statute. 1was suhmitting that
whereas lndia. before this honourahle Court. had emohasized that the Transit
Agrccmcnt and the Convcnlion are in forcc ind thekfore they arccntitled IO
come to this Court in appeal, they have tnken a diffcrent stand hefore the
Council. savine that these treaties are not in force. therefore. the Council had
no juriidiciioc On that, 1 have just read out lndia's caséfrom their own
Memorial, and, before that, 1 read their Reply where they said that these
treaties are in force.
This point is not controverted hy India and 1 need not draw the Court's
attention to other passages in their pleadings, wherein it has been emphasized
again and again that the Convention and the Transit Agreement were
suspended.
1 may just refer to the pages-on page 30, supra, paragraph 12, of the
Indiao Memorial again it is stated that they were suspended; on page 33,
paragraph 24, of the Indian Mïmorial it is again stated that they were not
revived; on page 36 of the Indian Memorial, paragraph 29, it is stated that
they were suspended with immediate effect, and, on the same page, paragraph
30. it issaid that is was assumed that they were in force, but which they do not632 ICAO COUNCIL
admit; again, on page 37, paragraph 32 of the Indian Memorial, it is stated
that they remained suspended as hetween India and Pakistan; on page 46,
paragraph 62, it is again mentioned that these agreements were suspended.
To 5um up, on page 51, paragraph 79, of the Indian Memorial, it is stated
that the scheme of the aforesaid Article is simple and clear, so long as the
Convention and the Transit Agreement continued to be in operation as
between thetwo States any disagreement as to the construction of the Article
or the application of the ~rticleto the existing state of fact can be referred to
the Council. Likewise, any action taken under the Transit Agreement can be
referrcd to the Council, but, if a State has terminated or sus~ended the Con-
vention or the Transit Aereement vis-à-vis another ~ta;.. there cannot
possibly he any question orinterpretation or application ofihe treaty or of
action under the treaty, and the Council is not the forum for deciding such
disputes.
Before this Court, the only reply to Pakistan's objection on the point was as
given on page 424. supra, paragraph 57, of India's Reply. "The Applicant
denies the Respondent's contention that, even hy lodging an appeal under
Article 84 of the Convention or Article II of the Transit Agreement, and
Article 37 of the Statute of the Court, India has acquiesced in the coniinued
operation of the treatiesV'-again, they have gone hack on it. "The present
appeal arises from the decision of the Council andthe challenge hy means of
an aopeal to the iurisdiction of the Council to hear Pakistan's ADDi..ation
and cornplaint and cûnnot hc construerl 3s acqiiiescence on the part of lndta
in the coniinued operaiion of the 5aid ircatics as bctwcen India and Pnkistan."
So. India denies the continued operation of treaties when they come to
challenge the jurisdiction of the ~ouncil but assert that the treaties were in
force in order to found thejurisdiction of this honourable Court.
1will not take more time of the honourable Court on Article36, Section 1,
of the Statute.
Now, 1go to Section 2, on which lndia has also relied in their appeal before
this Court.
That section states:
"The States ~arties to the oresent Statute mav at anv time declare that
they recognize as compulsory ipsofurro snd without sprsial agreement,
in relation to nny other State îcccpiing the same obligation, ihe juri5-
diciion of the Court in XIIlcaal disoutes concernine... ."land then details
are given] (India's ~emori2, p. 28, supra).
,The Court may be pleased to note that in the Yearbook 1970-1971 of this
honourable Court it is indicated at page 65 that Pakistan had filed its declara-
tion without any comparable reseivation in respect of dl legal issues and
Pakistan's declaration states:
"The Government of Pakistan recognizes as compulsory ipso facto
and without special agreement in relation to any other State accepting
the same obligation, the jurisdiction of the International Court of
Justice in al1 legal disputes after 24 June 1948, arising, conceming ...
[and they give the details]."
Whereas, Pakistan suhmitted to the decision of this Court without any
reservation concemine disoutes with Commonwealth Members. India. in its
declaration of 14 ~epGmbér 1959,which dso appears in the same ~eaibook,
made reservations about submitting to the jurisdiction of this Court in the
following words: "... disputes with the government of any State which, on ARGUMENTOP MR. BAKHTIAR 633
the date of this declaration, is Member of the Commonwealth of Nations."
(Ibid..o.54.)
It Lates "on the date of this declaration, is a Memher of the Common-
wealth". Pakistan was a member of the Commonwealth until recently and on
the date when India filed the declaration. In al1disputes between India and
Pakistan, Pakistan has always wanted to submit legal questions to theCourt;
and there were many disputes. India put in this reservation merely to stop
Pakistan from coming ta thishonourable Court. India had no dispute with
Canada, New Zealand or any other country of the Commonwealth, only
Pakistan, and they did not want any dispute ta be hrought before this Court.
This reservation was accordingly, specifically put in for that purpose.
Now 1ask respectfully: supposing the Council had made a decision against
me and 1 had come in appeal, and India had tumed around and said "No,
there is a reservation as far as this article is concerned, you are out. We are
not subject to the jurisdiction of the Court." If this stand could be taken by
India, 1 think Pakistan has a right ta rely on the reservation of India and
submit that this honourahle Courthas no jurisdiction under this section of the
Statute to hear their pleas.
Now on that noint. Mr. President. we have alreadv cited some cases. The
Ceriain Nurwcgiu,~l.ou,>s case, I.C.J. Rej,oris 1957,pdge, 23 and 24 and ilso
the Anglu-Iranion Oil Co. c3.e. I.C.J. K<,puris19S2, page 103. siippuri me in
the contention that a party can rely on the reservation made by the opposite
party in matters of jurisdiction.
Now, lastly, the provision oii which India has relied ta found the juris-
diction of this Court is Article 37, which reads:
"Whenever a treaty or ccinvention in force provides for reference of a
matter to a tribunal to have been instituted bv the Leazue of Nations. or
to the Perni~nent Court of 1niernation;il ~isticc. the miitirr ,hall.' a$
betueen the parti- ta the prcscnt Statutc, hc rçfcrredta>ihe International
Court of Ju\tice" (Indiin h~emoridi, p. 28, sltpra).
Now this by itself does not give any right of appeal, but it has ta be read
with Article 84 which provides for appeal to the Permanent Court of Inter-
national Justice. In my submission if appeals are nat allowed under Article
84, then this Article cannot help India at all. Apart from that, may 1 submit
that Article 37, being a transitional provision of the Statute, speaks of "as
between the parties to the present Statute". The Statute was promulgated '
before Pakistan came into existence. Pakistan came into heing on 14 August
1947 and the Statute was signed in San Francisco on 26 June 1945, so,
Pakistan was not an original party to the Statute. This also ousts the juris-
diction of the Court. . .
Some other Judgments-the Aerial Incident case could be cited in support
of my contention, which is in I.C.J. Reports1959 at pages 139, 140 and 142
and, similarly, the case between Cambodia and Thailand, I.C.J. Reports 1961,
pages 27-32, where the Aeriol Incidentcase was reconsidered hy this honour-
able Court and that decision is also applicable. The decision and logic
conveved in these cases which deal with Article 36, uar.gra-h 5, ~DD~V with
equal force IO the provisions of ,\rt!cle37 also. IIIthe case ofsrares b&ming
parties to the Statute nfier the demiseof the Permanent Court, no transforma-
tion under the provision could take place, simply because there was no
transitory situation to be dealt with under Article 37 of the Statute.
Then there is also the case in I.C.J. Reports1952 where it is stated,io.the
individual opinion of Judge Levi Carneiro, at page 54: "; .;! Even when the634 [CAO COUNCIL
organ %hich was formerly compeicnt has been abolished, ils powers cannot
hc regarded as autumaticdlly tranrfcrred ta the ncivorgan which replaces il."
This is also cited in the case of Ethionia v.South Africa and Liheria v.
SouthAfricain the I.C.J. Reports 1962 at pages 602-603.
MI. President, having dealt with this question, 1will now make brief sub-
missions on the oral arguments presented to this honourable Court by the
learned Chief Counsel of India.
His first ground in his pleadings was that the Convention and the Transit
Agreement were suspended and not in force as between India and Pakistan
and, therefore, therewas no disagreement with regard ta interpretation and
application of these treaties; overflying after 10 February 1966 was governed
by a Special Agreemen: of 1966. Therefore, the ICAO Council had no juris-
diction under the SpecialAgreement to settlethe dispute.
My submissions on this point are: that India has not produced a single
document which clearly shows that the Transit Agreement and the Conven-
tion were suspended. The Chief Counsel of India cas produced several docu-
ments' before the honourable Court from which he wants the Court to infer
that they were suspended. No document clearlv savs that the Convention and
the Transit ~greement ~eresus~ended, no notificaiion says they weresuspend-
ed, no order that the Government of India has produced says that they were
terminated or suspended. He merely wants thecourt to infer from &tain
documents, by putting his own interpretation on those documents, that they
were suspended.
India has also, in my humble ouinion. confused the rieht of a oartv under
the Convention and the Transit ~greement with the exercise of that right.
When a treaty or a convention is in force, then the party has a right under that
treaty or convention. That right may or may not he exercised-it is a dif-
ferent matter. If 1do not exercise my rights or the right is notexercisable at a
particular moment, that will not mean that it is not in force. Now, let us take
an example. Pakistani planes fly, because they cannot fly over India at the
moment, around Ceylan over the Maldive Islands. Suppose that the Maldive
Islands and Pakistan are both parties to the Convention; the Maldive Islands
have no airline, their planes would not therefore fly over Pakistan, but
Pakistani planes would fly over the Maidive Islands. 1s there any difference
between this situation, because the Maldive planes are not flying over Paki-
stan, andthe situation between Pakistan and India. The right is there, but the
right is not exercised.
1respectfully draw the Court's attention to this difference which they have
tried to confuse: the exercise of the right and the rieht itself. When vou
suspend the operation of a treaty you do not terminaie it. To suspendthe
operation of a treaty is one thing, suspending a treaty is another-there is no
such notion or concept in international law or any other law that you suspend
something and cal1 it terminated. Suspension is different from termination.
Suspension, whenever it is used, is used in the sense that its operation is
suspended but the treaty remains in force. When it is terminated the treaty
no longerremains in force.
1 will be making my submission on this point in due course but for the
present 1 would respectfully ask the Court to consider why India should
terminate or suspend, as they cal1it, the treaty under a rule of international
law dehors the Treaty.
No good reason, no cause has been shown hy India, for acting under a rule
-
l Seepp. 719-742,infra. ARGUMENT OF MR. BAKHTIAR 635
of general international law outside the Treaty. Article 89 of the Convention
gave India the freedom of action that they wanted, dl that they wanted to
achieve is given under that Article. 1 would respectfully draw the Court's
attention to that Article again.
Article 89 deals with war and emergency conditions:
"In case of war, the provisions of this Convention shall not affectthe
freedom of action of any other contracting State affected, whether as
belliaerents or as neutrals. The same ~rinciole shall ~DDIY in the case of
any contracting Stïtc which declarer a state of nariunal emergency and
notifies the fact to the Couricil" (Indian Mcmorial, p. 323, supra).
It is not denied by India that because of war these were suspended. They
Say that during the hostilities of 1965, when Pakistan attacked India, this
step was taken. It is also not denied by India that they declared a national
emergency.
Now the point is, Mr. President, do nations act in accordance with law if
they can help it or not? Sovereigri power is exercised only when the law creates
an obstacle, or when a treaty creates an obstacle, and then, in their own
interesrs. thev sav well. we will do awav with the treatv. we will terminate it.
But ifthe lai. it& givcs the po\r,cr and the freedom f& ïIIthiit you \r,ant to
do, India'i freedom of action Io sarry out war eiforts and defencc plans si,uld
be csrried out fullv. under .Article89. This Article al\e them 311 the freedoni
of action, sa, in théfirst place, how can it be presumëd that this action of India
was under international law and not under Article 89.
This has been admitted bv the learned Chief Counsel for India-that
~rticle 89 gives them al1the fréedom.1draw the attention of the Court to the
verbatim transcript (pp. 572-573,supra), where the Chief Counsel of India
"In short, Article 89 permits al1the freedoms available to a State under
State practice and international law, and one of those rights is the right
of suspension. Therefore, 1 submit, India has clearly the right dehors
treaties to suspend them and Pakistan's contention that India had no
such right-and its right was only under Article 894s misconceived."
Having considered, and having admitted, that what they wanted ta achieve
under international law could also beachieved under Article 89, has he given
us any good reason why, when Article 89 was there, he should resort to the
rule of international law?
1 humbly submit that nations do not act in a perverse manner. They want
to have the eoodwill of the world and if thev can achieve somethina in
accordancç wTtha treÿty in rhcir own international commitnienr, thcywill
no1resort toany rule of international lawoutside theTreaty or giveeïpresrion
to their sovereign powers for a purpose which they can achieve under the
agreement. Again, Mr. President, you will kindly note that, whilereferring
to the rules of international law, the learned Chief Counsel dealt with at
length the various conditions imposed on the exercise of that right under
international law. He referred to various provisions of the Vienna Convention,
saying that lndia is not a party to it, but that it is international law codified
and hehad theright to rely on that. Those conditions, if1remember correctly,
related to material breach and to the question of good faith and also notice
to the other State of several months-to rely or to take a step under inter-
national law those conditions had to be fulfilled, whereas, under Article 89,
there were no such conditions, there were no such restrictions. It merely saidthat if there is war you can declare anational emergency, your freedom of
action is guaranteed to you-all that you have to do is inform the Tactof the
emersencv to the ICA0 Council. Even the auestion of good faith is not
invo1;ed. ;Owhyshould India, with this weapon in her handTresort to a rule of
internïtional Iaw"dehors the Treaty" and s3y that wewspended it under that?
I rcspectfully ask the Court: does Articlc 89 not permit India to suspend
operation of the ireîty? That suspension would be in accordancc with Article
89 itself, but it would be suspension of the operation ofciplrt of the treaty
-the treaty would remain in force.
My next submission on this point is that there is a general rule of law,
which is also a rule of international law, that if the law requires that a thing is
to be done in a particular manner, then that thing can be done only in that
manner or not at all. The treaty is binding on India, it gives India freedom,
allows it to exercise its freedom. India says: No, 1will not exercise that free-
dom in accordance with the law but in another manner. 1 have the choice, 1
am the sovereign Power, 1can choose one remedy or the other. The law says
"now-if the law itself has provided that it should be done in a particular
manner. then it shallbe done in that manner ornot at all.
If &ay, 1will draw the Court's attention to ajudgment of the Privy Coun-
cil of England (A.I.R., 1936,p. 253) where an observation appears:
"The rule which applies in a different and not less well-recognized
rule, namely, that where a power is given to do a certain thing in a
certain way the thing must be done in that way or not at all. Other
methods of performance are necessarily forbidden." (Ibid., p. 257.)
India is a party to a Convention-she is committed to the Convention.'The
Convention gives much the same freedom and the same remedy which India
thinks she has under general international law. If the rule says you must
perform your duty and exercise your right in the manner provided by the
Convention, it has no scope and no choice to go outside the Convention and
rely on a rule of general international law.
Again India has emphasized that because of this war and this attack on
India by Pakistan they suspended the treaty. Oppenheim, in his book Inrer-
national Law, Volume II, Seventh Edition, on page 305 says: "Multilateral
treaties arenot referred to in the Peace Treaties, and it must be asnimed that
their continued existence was not deemed to be affected by the outbreak of
war." This is also a rule of internritjonïl Iaw u,hich havc to keep in mind.
Now without going in10 the merits of the case. hur to illu~trate a principle
of international Iaw, 1will also draw your kind attention ro uhar rhe lenrned
counsel raid bcfore the Court: India says thÿt Pakistan attacked her in 1965.
Pakistan says that lndia attacked. but that that is itnmaterial for the consi-
derîtion of the Court. 1 sav that it is material. Whatever India or Pakistan
say, the Court may not accëpt, but what the newspapers reported and what
was the true position has now been mentioned in Lord McNair's book, The
Legal Effects of War, 1966, Fourth Edition. In the Appendix, Lord McNair
States: "The fiehtine on both sides of the cease-fire line in Kashmir was not
accornpanied b; an; declaration of war, nor was there any such declaratioii
by India when India attacked into Pakistan territory on 6 September 119651."
Now having attacked into my territory on 6 septe&ber 1965:this honourable
Court will also take into consideration, under a rule of international law,
that an aggressor cannot be allowed to take advantage of his own act of
aggression. If you attack me and at the same time say you have the right,
under international law, to suspend treaties and take advantage of getting China-at that time India had declared a national emergency and had
informed the ICAO Council, so this is reference to that] and letter No.
21A/7 62 dated Novemher 29th, 1962wherehy intimation was given that
the President of the Revublic of India has declared by oroclamation
under the Indian constit~tion ihai a grave emergcncy exfsr; wherchy the
security of India iithrcatened and that, under ihese circumst~ncei, the
Government of India ma). not find it possible Io comply with imy or al1
proviiions of the Convçntiun un Internationiil Civil Aviation and the
Inrernaiional Air Services Transit Agreement.
2. Desvite this notification. as .ou are aware. the Government of
India ha; consistcntly adhercd io ii ohligaiionr thder the Convention
on International Civil Aviation and the International Air Serviccs
Transit Agreement. However, the recent aggression on India by the
armed forces of Pakistan places on the Government of India heavy
burdenç with regard ta their own security and the safety of aircraft
through the countrv's airsvace. Therefore. the oresent danger couoled
with ihe continued ihreat of extended aggiession on Indian territor; by
the People's Republic of China again entails the possihility that the
Government of India mav not be able to comolv with anv or al1vrovi-
sions of the Convention on International ~ivcl ~viation and theinter-
national Air Services Transit Agreement. It will be the continued
endeavour of the Government of India to adhere as far as oossible to the
provisions of the Convention on International Civil ~viaiion and Inter-
national Air Services Transit Agreement, but to the extent they are
unahle to do soit will be directlv an result of the emergencv referred to
above, created by the continuid threat of aggression-by ihe People's
Republic of China, and now extended and heightened by the Pakistan
aggression."
Mr. President. this letter was circulated bv the ICAO Council to al1 the
contracting tat téand was sent ta Pakistan aiso. 1 have the original with me
and this letter from the International Civil Aviation Or-anization. Montreal
says:
"Ll/8-651192-Suhject: Article 89 of the ChicagoConvention. Action
required: None. For information. 17 September.
1have the honour to inform you that a letter dated 9 Septemher 1965 of
which a copy is attache* was received from the Government of India.
The cable referred to in the first oaraaraoh was notified to vou in mv
communication E1/8-621232 of 20'~ec&nber 1962. The statement made
in the letter with reference to the Convention on International Civil
Aviation vresumablv relates to the orovision of Article 89 thereof. As
regirds the Inierniitional Air Services Transi1 Agreement thcre is no
provision corrcsponding to Article P9 of the Chicago Convention. The
Pre\ident of the Council acting under this delegaiion of authoritv con-
ferred on him uhen the ~~unCil is not in seasiin decidcd to transmit a
copy of the letter from India 10 al1contracting States. Thc Govcrnmcnt
of India has been requested that upon termination of the emergency,
notice of the fact be sent to the Council."
With these documents before this honourable Court, can if still be said that
Xndia acted under a rule of international law by suspending or terminating
the treaty when they had in fact taken action under Article 89, and informed
the ICAO Council accordingly as required under Article 89. The ICAO ARGUMENT OF MR. BAKHTIAR 639
Council ircatcd that action under Article89,and sent a copy of iheir covering
letter to lndia. and they ncver protested or objecled ihdt, as far as Pakisisn
concerned. thev had susoended or terminated the treaties. As far as the rest
of the world isconcerned. itis Article89: we are treaied on the same footing.
First, actionma5taken again\i Pakisrdn bccause Pükistdn hdd, according IO
India. attacked her. Pakistani olanes were banned-no other action was
takenon 6 Septcmbcr against pld.ncsufany othcr country-and, thinkingthat
Pakistan might rurh to the ICA0 Council. thii letter was sent.
Mr. President. I hone 1have bcen able to show that lndia hïd susoended
the operation ofsi>me~provisionï of the trcaty unrlcr Article 89. The question
of suspension of treaticsunder intcrnationil 1aw \\ilnot, 1think, arise and 1
do not have to go into al1those arguments. Sufficient details were aiven in our
plcadings, ~ejinder and ~oiintci-~emorial. thcrefore 1will nit \siste the
time of the Court by going into ;iny furthcr discussion on the point oi u,hethcr
the treatv was sus~endedor not. The facts are before the Court and it would
be vcry diffic~lt f"r the Court, façed with a11the iiverwhclming evideiice rhat
this action India hnd t&cn unrler Ariiclc 89, and al1 those documents they
haveproduced, could be interpreted as if they were documents under Article
89, consistent with Article89, where there are notifications, regulations, and
signals.
To suooort mv argument further. 1 would also like to draw the Court's
attention io the ~askent ~eclaration-1ndia has relied on it, and Pakistan
also. ArticleVI of the Tashkent Declaration of 10 January 1966 appears on
page 353,supra, of India's Memorial:
"The Prime Minister of India and the President of Pakistan have
agreed to consider measures towards the restoration of economic and
trade relations, communications, as well as cultural exchanges between
India and Pakistan, and to take measures to implement the existing
agreements between India and Pakistan."
The Court will please note that reference is made to "existing agreements
between India and Pakistan". This Declaration was signed on 10 January
1966. India's claim is that, in ariy case o6 September 1965 at the outbreak
of hostilities, this was suspended by India and they draw attention to the
notification of 6 September 1965 when Pakistan overflights were banned.
Yet here. four months later in Tashkent. India sig.ed the Declaration where
rcfcrence is made to comm~nicrtiun, treîries as "existing treatics". and they
will implement thosc. Thii is also one of the grounds which 1 would respect-
fully draw your attention to in order to show that these treaties were not
terminated or suspended in the sense that India says, but they were in
existence, and steps were taken to implement them. Otherwise, the person
who drafted this Declaration would have said that the suspended treaty shall
be revived-not that the existing Agreements shall be implemented.
Then, the Court may he pleased ta tum to page 354, supra, of India's
Mernorial-letters from the two heads of Governments, first, the letter from
the Prime Minister of India, and then the letter from the President of
Pakistan:
"Our Foreign Minister and Defence Minister. on their return from
Tashkent, informed us of your desire for the early resumption of over-
flights of Pakistaniand Indian aircraft across eachother's territory. We
had thought thit this matter would be settled at a meeting between the
Ministers of both countries within a few days along with other problems connected with the restoration of communications. As it appears that
such a meeting might take some time, we would he agreeable to an
immediateresumption of over-ilights acrosseach other's territory on the
same hasis as that prior to 1stAugust 1965.''
"Resunipiion", and "on the sanie bais". India aclmits ihat these rrealirs
ncrc in existence, and the Prime Minihter suggesis ihiit these be implemented
". ..on the same hasis as that orior to 1Aueust 1965". So this is not asnecial
agreement that India refers tolit means an-implementation of the ~ashkent
Declaration, the existing treaties.
Similarly, the President of Pakistan in his letter to the Prime Minister of
Jndia says:
"Your High Commissioner. Mr. Kewal Sinah. ha. delivered vour
message to me in Larkana this afternoon. 1 am ilad to leam of ;OUI
constructive decision in a matter which is of high benefit to India and
Pakistan. 1 am also issuina immediate instructions to Our Civil and
Miliiary authorities 10permit rhc resumption of air flights of Indian and
Pakistani planes across cach oiher's terriiorics on the rame basis asihal
prior Io the First of August 1965."
Both have aareed: now if it had been a soecial agreement. then the terms
would have been drafted, and under law, it hould have to héregistered with
the United Nations. There was no special agreement at all-this was a step
taken by them only to implement the existing treaties, which existed before
the war and after the war. The Tashkent Declaration says that they were
existing treaties.
They have heen at pains to Say that "the same basis" referred to a matter
of routes or other details but that was not sa, "the same hasis" referred to the
treaty itself, the routes did not remain the same. Whenever we wanted to go
on a particular route there were objections before we were allowed. 1 do not
want to go into detail, but 1could show, you see, that they had nothing todo
with routes-for routes you had to get permission anyway under Article 68 of
the Convention. That is a different nrovision altoeether. If thev sav thev have
this permission under inicrnalional'lïw. that. 1 wzl hiimbly submii, is Wrony.
Wiih regard to the designation of routes and airporrs. sec pdge 318. supra,
of thc Mernorial. Article 68 of the Convention reads as follows:
"Each contracting State may, suhject to the provisions of this Con-
vention, designate the route to be followed within its territory by any
international air service and the airports which any such service may
use."
So Pakistan International Airlines had to submit their schedules and their
routes, they had to examine them, ask their permission, and they Say yes,
approved, not approved, go by another'route; we Saywe go by Delhi, as we
want to stop there from Lahore. They Sayno, go from Karachi, don't stop at
Delhi. So this has been going on since 1968,it is nothing to do with "the same
basis"-"the same basis" only referred to the Convention and the treaty
itself.
Another point or argument in support of my submission that the treaties
existed and were in force al1 along is an arbitrationl which was referred to
Professor Pierre A. Lalive of Geneva University. This is a case involving the
1 Sce pp. 74&765,idra. ARGUMENT OF MR. BAKHnAR 641
Indian Company Dalmia Cement Co. Ltd., which fiied a claim against the
National Bank of Pakistan. The parties agreed and it was referred to, as 1
mentioned, Professor Lalive of Geneva University, who was the sole arbi-
trator. The arbitrator went into this question-itwas after the wars of 1965
and 1967-and hoth the parties brought al1 sorts of evidence hefore the
arbitrator andin hisAward, paragraphs 48 and 49, it States:
Mr. PALKHlVALA: 1 do not know what the procedure is, but can my
learned friend refer to new documents, of which 1 have no notice-which
are not on the record?
Mr. BAKHTIAR: This is a judgment of an international tribunal. You
filed hundreds of documents, and 1did not object. If you object, 1leave it to
the Court-if. after 1 have read it, the Court thinks that this is something
which may not be on the record, 1 have no objection, they can rule it out.
But this deals with a specific issue, whether the treaties were in existence or
not and is an opinion just like an opinion of any other author could be.
Professor Lalive is an expert on international law and he says the second
factor which remains to be examined is the continued existence of treaties
between the two countries.
Then, in pdragraph 49. ..
Le VICE-PRÉSIDENT: M. Bakhtiar. voulez-vous nous indiauer dans
quelles conditions le texte dont vous faite; étata été publié,ur étiter toute
confusion ou tout désaccord?
Mr. BAKHTIAR: It is-~u~- an international commercial award: it is a
precedent of a tribunal orai arbitrator to which 1 am referring. 1 do not
exactly know whether it has been published, but 1 have got the original copy,
nhotostat coD."iened hv~,rofe:;sor Lalive himself. before me. and it must he
inthe lihrary of this Court. But we have pot otheicopies prepared.
Lc VICE-I'K~SIDENT: D'inp çec conditions. M. Bskhtiar, peut-ètre
serait-il uttlc ou judicieux de rcn$,o)er ILdiscussii~nsur la base dccc documcnr
jus au'^ce que la auestion ait 616lairil rsoir au'unc ~ubiicdti~~nait eu lieu.
ioitque la-partie-adverse accepte que ce document soit discutéaprrs qu'ii
lui ait étécommuniqué.
Mr. BAKHTIAR: As it may please the Court; 1 will not refer to it any
more.
Mr. President.1was iust suhniittine a little while aeo that India has referred
to many documents-iome documeks were prodiced before the close of
pleadings, some after that-and 1 submitted that if you will kindly consider
them in the lieht of mv suhmissions that India had. in fact. taken action under
Article 89, ha<laicordingly informcd the ICA0 coiincil, thcn sll ihcir actions
being consistcnr iviih the Convention and Article 89 thercof will not rhow
that the treatv was susoended or te'rminated but will be action under the
treaty itself, Ündcr the convention iiself. justified bg the Con\,cntion itsclf,
so long as the emergency lagted. Our grievanc&\vas that after the cmergency,
India had taken this sten to ban Our danes in 1971.
1 have already drawn'the attention of the Court to Article 68. In the Reply,
paragraph 18, on page 409, supra, certain instances are given:
"Case 1. Year 1966
On 7 June 1966, the D.G.C.A., Pakistan, sent to the D.G.C.A., India,
a signal requesting permission for landing at Delhi (Palam) International
Airport for non-traffic purposes by Pakistan aircraft AP-AMC wbich ARGUMI~NTOF MR. BAKHTIAR 643
Then the entire schedule is given of the Pakistan International Airline planes
which were to overfly.
Then there is a further signal:
"We dgrec to raumptioii of tiverilights by schedulcd services ellcctive
10 Februarv 1966. We note the dctail, of oicrfli-hi\ of\chedulcd services
that PIAC Propose to resume."
This is clear. MI. President. normal vermission is asked. information is
conveyed and chis information'is noted. ~hey had no objection to the sched-
ules which were submitted, though under Article 68 they could have ohjected.
But to sav that we asked for oermission in each and everv case and vrior
permission was required is noi gathered from the record, although on this
point the learned counsel changed his position by saying that they had ad hoc
Dermission. and sometimes savine that oermission was taken for six months.
but the reiord only showed,.alÏthat Ge know is, that after the ~ashkent
declaration they were resumed. Schedules were sent, they were approved,
there were no objections, and in non-scheduled cases, we know, the route had
to he approved, though the transcripts show that sometimes they accepted
the route, sometimes they did not.
But, al1 the same, if any permission was necessary, that could be covered
under Article 89, would be consistent witb the provisions of Article 89 or any
action taken under Article 89. It could not be said that because permission
was sought, therefore this was an action under international law or that the
treaty was suspended.
1 have already made my submissions on the areas of this regulation, Mr.
President, and my next point will be to deal with the ground of material
breach. If you will permit me 1 wjll make my submission on that tomorrow.
The Cour!rose a! 1p.m. SEVENTH PUBLIC SITTING (28 VI 72, 10 am.)
Present: [See sitting of 19 VI 72.1
MI. BAKHTIAR: MI. President and Members of the honourable Court:
yesterday 1 concluded my submissions on the main point advanced by India,
that the treaties were not in existence, that they were suspended and that
action taken by India was under the rule of international law and not under
Article 89.
1 referred, MI. President, to a document which India sent to the ICAO
Council, who took action on it, treating it as action under Article 89. Now
since there was an objection as to whether it was published or not1 respect-
fullv draw vour attention to the United Nations Juridical Yearbook 1965.
whéreon page 282 reference is made to this communication of the ~overn:
ment of India to the ICAO Council-a similar communication was also sent
by the Government of Pakistan-and it says:
"Assembly, iifteenth session, Minutes of the plenary meetings...
(6) Communicationsfrom the Governmentsof India andi'akistan reaord-
ing cornpliancew;ththe Convention on~n~ernationaC l ivil ~viatioi and
with the Internationalir Services Transit Agreement
[On 30 September 1965, the Council noted the communications
received fromthe Governments of India and Pakistan indicating that an
emergencv had been declared and that thev mirrht therefore be unable
to comply with any or al1of the provisions of CheConvention and the
International Air Services Transit Agreement. Copies of these com-
munications were sent to al1Contracting States and the Governments of
India and Pakistan were requested to notify the Council when the
emergency terminated.l'>
The Court will be pleased to note how the ICAO Council treated this.
They called it "Communications from the Governments of India and Pakistan
regarding compliance with the Convention on International Civil Aviation
and with the International Air Services Transit Agreement". They had
complied with it-they cannot say that we did not comply with it and we took
action under a general rule of international law.
Again, MI. President, as the Council had asked them to communicate
when the emereencv was revoked. Ind.a-~~-v informed and notified the
ciuncil th& it Kad ievoked the emergency. ~hjs appears on page 259 of the
UnitedNations Yearbook 1968.
Now, if you will permit me, 1 will proceed with my submissions on the
second ground: the ground of material breach, which, actually, the learned
Chief Counsel for India argued first, and very elahorately, for almost three
days. This ground was that even if treaties were in existence, they were
suspended because Pakistan was guilty of a material breach. This action of
India was under a rule of international law and the suspension was thus
dehors the treaties. On this. 1submitted, we put forward many arguments.
My answer, 1am afraid, is going to bebrief on this point also.
My averments in the Counter-Memorial and Rejoinder are reiterated
-and 1humbly submit that those objections raised on this ground have not646 ICAO COUNCIL
asylum to these two criminals, the Government of Pakistan have made
clear their direct involvement in it.
The encouragement and support given ta the two persans by the
Government of Pakistan directly led ta the blowing up of the aircraft on
the 2nd February. The Pakistan authorities neither made any effortto
restrain them from blowing up the aircraft, nor did they, according to
reports, make even an attempt ta Save the aircraft despite the fact that
under the estahlished international law and practice it was the respon-
sibility of Pakistan to return immediately the hijacked aircraft with the
baggage, cargo and mail.
The Hiah Commission of India stronely protests against the action of
the ~ove~nment of Paki.ri3n in extendin~~assistanccand support to, and
cvcn encnuriiging, thcse Iwo criminals and for their failure ta prorcct the
aircraft and the cargo. haanacreand mail.
The Government of 1;dia-claim damages [this is important-what
they claimed, what their protest was] in respect of the destroyed aircraft
as well as for the cargo, baggage and mail and the loss resulting from the
detention of the aircraft in Pakistan.
The Government of India hold the Government of Pakistan wholly
responsible for any conseauences that may follow from this deplorable
inc/dent and hopc thdt thcbovernmcnt of~akisian will refrain in future
from a\>i,ting, inciring iir encour~ging siich incidents in the itirerest of
peace and harmony hetween the two couritries.
The High commission of India avails itself of this opportunity to
renew ta the Ministry of Foreign Affairs of the Government of Pakistan
the assurances of its highestconsideration."
Mr. President. vou have kindlv noted that India onlv wanted to be com:
~ ~ ~~ ~ ~
pensated and wakd Pakistan thkt in future rliey should not do such a thing.
Thcrc was no mention, no warning. no hint in rhis letter that they propused
to take action in the nature of sÜspending or terminating the treaty. The
hreach is not mentioned, nor have they mentioned that because of Pakistan's
objectionahle behaviour they were going ta suspend the treaties.
Then, after this note, Mr. President, 1 would like to draw your attention to
the Indian Memorial again, page 36, supra, paragraph 29. 1 am saying this
hecause 1do not want ta go into the incident of hijacking. 1 am not going into
the merits of the case. but on the oint of material breach. mv learned friend
was appealing ta convince the court that his good faith is io he presumed.
Good faith is an essential part of this doctrine. Whether it is to he presumed,
whether it is iust a mere alle~ation thnt 1 am nuiltv of this incident or not
guilty, or my conduct was such that it invited this action on the part of India,
it is sufficient if 1repudiate it. After that the question will be open again to the
Court to consider so that on that point alone, to show thatthe question of
good faith is relevant, 1 am respectfully drawing your attention to paragraph
29 of the Indian Memorial, on page 36:
"The Applicant was greatly perturbed'over the hijacking of their aircraft
in Pakistan and the unwillingness of the Respondent to come to the
assistance of the innocent passëngers and crew,to restore the possession
of the aircraft ta ils commander, ta allow the passengers and the crew ta
continue their journey promptly ta India, ta investigate into the act of
hijacking and ta take the hijackers into custody, and ta Savethe aircraft,
cargo, mail and property from being destroyed at the hands of the
hijackers. The plane was hlown up on the evening of 2 Fehruary 1971. ARGUMENT OF MR. RAKHTlAR 647
The Applicant addressed a note to the Respondent on 3 February 1971.
The ~pplicant strongly protested againsi the conduct of the Kespundent
in relation to ihe hijacking incident, claimed damsgcs for the dcstroycd
aircraft, cargo, baggage and mail, and for the loss resulting from the
detention of the aircraft in Pakistan. [Now kindly mark the words after
this.] When no positive and satisfactory response was made by the
Respondent, the Applicant decided on 4 February 1971 'to suspend,
with immediate effect, the overiïight of al1 Pakistani aircraft, civil or
military, over the territory of India'; and sent a note to this effect to the
Respondent."
MI. President, India's case is that they claimed damages-the plane was
blown up, they protested, they sent a Note claiming damages on 3 February
1971, but "when no positive and satisfactory response was made by the
Respondent3'-within how many days, we expect not even a few hours, this
Note was received by the Government of Pakistan on 3 February 1971in the
evenitig-this is ou;casc, ihoiigh thcy havc no cvidsnse that ie received it
on that dîy ît311 on 3 Fcbruïry in thecvcning WC rccrived the Sute and on
4 February in the morning they rake action uipending al1Ournighis. Taking
al1rhir, they s~hmit thst uur action, our conduct, wds not in accordancc uith
the norms of intern3tionnl bchaviour. llow is thcir ï~xion, i\e ïsk, consistent
u,ith the norms of intcrnïtiunal I~ehîviour or civili'erl drcenciej? You do not
even give a State few hours when you claim damages to pay you, straight-
away you suspend the planes, straightaway you put an end to their fligbts.
This was the case before the Council. They claimed damages, they gave a
warning, they protested, we were willing to meet them, to negotiate with
them, to compensate them, if we were guilty or not, so on this point of good
faith-you may kindly note that, when they rely on international law, they
have to show good faith and the provisions of the Vienna Convention make
it obligatory for them, and 1 will be coming to that point, to show that when
they take action, before that, they give a warning to the other Party, they
send a note that this is the action they are going to take. They have not
mentioned that they were going to suspend the treaty or terminate it.
Now. even after that. Pakistan was willing, as 1 pointed out iust now, to
come to some understanding with India, to rësume ;IIflights. M;. ~resident,
1 do not want to go into the details of the incident, it is not my intention to
say that 1was right and they were wrong, but as the case has come before the
Court in the pleadings, the plane is hijacked from Kashmir-1 say Kashmir
is a disputed territory, the United Nations says it is a disputed territory, India
says "No, it is an integral part of India". Very well, it is an integral part of
India, so its people belong to India. They are Indian nationals, then, who
hijacked the plane from Indian territory and brought it to my country. They
brine.it. 1trv to rescue al1the ~assengers-to rescue them 1offer the hiiackers
asylim-1 t;y tosavetheir baigageaid the plane for Iwo days and make greot
eiïorts. This is al1on the record. an cnquiry is being held and people havc becn
prosrcuted. Still 1am blünied for ürranging al1this hijacking. Under ordinary
law or international law, for am of private individuals, a State cannot he
held respon,ible anywsy, but we beltc\,e these individuals bclonged to thcir
State, according to their understanding. So this case, as has now been proved,
was actually engineered by India, because these two persons have now been
tried by a very high-powered special court presided over by the senior judge
of the Supreme Court of Pakistan. These persons belonged to the Indian
security force, and were actually employed to hijack the plane in Srinagar648 ICAO COUNCIL
Airporr. They hijacked rhe plane and said thtt Pdkistan had conspired. Any-
way, without going into that, the re3l nioiive \vas thal sume sorr ufsgitation
or dissati~facriun. mheiher iruas a mistake of the Pokisian Central Ciovern-
ment or not, was'going on in East Pakistan. They thought we were creating
a movement, an agitation in Kashmir or in other areas, and we thought that
they were creating dissatisfaction against the Central Government in East
Pakistan, which is called Bangla-Desh. Indian motive was ta break the only
vital link of communication between East and West Pakistan. As the Court
is aware. Pakistan is a countrv divided into two rerions. two areas. with
India's 1;200 niiles' orea intervéning; rhey wanied 10 bre3k 1hi.rvital l/nk of
air service and the) uere looking for somc cxclise, some preiexi laipui 3n end
to it. This hijacking incidentwas just a pretext.
1 am not going into the details, 1 am not making bald assertions, 1 am
coming back to the pleadings. 1 said that when 1 waoted to came to some
understanding on this incident. to pay them com~ensation. to aooloeize for
my niiscc)ndt.ct. if1 have becn guilt) oiany misconduct, 1said, "lit's >&le the
issue" and lhev said "No". I respc~tfull? drdw the :tttention of ilie Coiirt IO
the lndian Mçmorial, page 102. slipru,p~ragraph 9. Mr. I'resident, before I
read thir. you uill kindly reclll th11 iheir case \vas ihai the flying of Indion
aircraft over Pakistïn bruiight thcm danger-the security of internation.il air
transport, that was one of the reasons why they stopped. Now that reason
has disappeared; here they Say:
"in any view of the matter, resum~tion of overflights for Pakistan
aircraft oier Indian temtory would now be inconceiv~ble in view of the
massacre and genocide of unarmed civilians in East Bengal."
Well, Mr. Presideni, is ihis a mnterinl hre3r.h or ibthis the expressian of
Indian syinpathy and support, which impelled lndia ro srop the overr3ying of
mv ~Iancs? 1 ani uilling IO compensait them, 1 am niIlina to a~olouizc if 1
have misconducted mGelf, whaiever demands of theirs are put-befoie me 1
am willing ta accept; 1 am willing to negotiate, as already submitted, to the
ICAO Council by a resolution of 8 April which called upon the parties to
negotiate. We expressed our willingness, India expressed their willingness,
but then India went back on it. Because of this resolution their parliament
passed a.resolution that we must support East Bengd. East Bengal had some
resentment against the Central Government or the central authority of
Pakistan, to see that no essential supplies, after the cyclone appeared, after .
the communal rioting there, the Central Government should not be in a
position to rush essential supplies to East Pakistan. that was the main aim,
so that the resentment against the Central Government is enhanced or
increased in Bangla-Desh or East Pakistan.
So here is a clear motive. How do they say that this is a breach due to
misconduct on the part of Pakistan when they clearly give out the motive
which was at the back of their mind, and that was to see that Pakistan was
split into two pieces, somehow, and that East Pakistan is separated. So 1
submit, Mr. President, that this point of a material breach is an afterthought
and the Court may be pleased ta look through the preliminary objections,'as
fled before the Council. They appear on pages 98-109, supra, of the Indian
Memorial. All the'pleadings do not mention material breach at all, this is
taken for the first tirne;-whether they can take it for the first time is for. this
honourable Court to judge. The Council were not bound when the point
waînot iaken in their pleading-they had Eeen vaguely argued hefore that- ARGUMENT OF MR. BAKHTIAR 649
to give any verdict or any iinding on that, or to take it into consideration at
all.
As 1 iust submitted Mr. President. a St.t~ ~ ~n~t~~~-~eld liable for the
actionsof private indibiduals, particularly when the individual belongs ta the
State which claims to be agmieved, and ifthe State in which this incident takes
nlace makes everv effort. Whicha normal nerson or a normal State would do.
ihen this State Annot be held liable. Pakistan, in their ~ounter-~emorial;
page 376,supra, paragraphs 18 and 19, give their version of the incident. We
made every possible effort to Save the plane-we actually succeeded in
rescuing al1the passengers, we put them up in a first-class hotel, and two days
later they were sent across the Indian border to India. The airport was
crowded with people and we riished there-people openly had their sym-
pathies with the Kashmir Liheration Movement in Pakistan. We not only
had people who had sympathized with the Kashmir Liberation Movement,
but there were thousands and thousands of Kashmiri refugees living there-
they were taken in, they were deceived, they got enthusiastic about this
hijacking, they rushed to the airport. The Government of Pakistan made
every effort, took every step to see that the plane was not destroyed, but in
spite of al1their efforts, the plane was destroyed by them, we could not help
it-the hiiackin- incident and the destruction of the lan ne-but nowhere did
we hclir of an action in suçh çirciimstances as taken hy India.
On th31 point. .\Ir. I'rrsident-rhe action of privîte individuals--a govcrn-
ment or 3 State cînnot be hcld liable if the Statç makes evers elFort to sec that
damage is not caused. Briggs, in his book The Law of-~ations, Second
Edition, pages 711and 712, supports me on this point.
Now. Mr. President. the ooint emohasized bv the distinguished Chief
~ounsel f~rIndiî was that the'provisiun.~of the vieha ~onvcnzon cmbodicd
and codificd thc generlrl rulcs of international Inw,2nd that under those rules
of international law, dehors the treatv, Pakistan was res~onsible-how can he
say that-it was not consistent with the rules of international law, of inter-
national behaviour. According to India, 1 had committed a hreach of inter-
national law-nat of a treaty, not of any provision of the treaty-1 bad
misconducted myself by no1 conforming to the provisions and rules of inter-
national law, and therefore that entitled India to suspend or terminate the
treaty. But the doctrine of material breach cannot be invoked by India,
because this doctrine depends on the breach of a provision of the treaty.
They have not pointed out tbal this provision of the Convention or rhat
~rovision of the treatv was violated bv Pakistan. and therefore this entitles
india to suspend the ireîiy. The! say ihat I ha& misconducted my5elf. my
conduct =,ashighly objcctionablc under the general rules of internationnl law.
So the Vicnna Convention docs not help Indis on this score; Article 60, para-
grlrph 3, claiisc (hj srates: [dcfining breach] "the violaiion of a provision
esseniial to ihe accompli~hment of the objcct or purpose of the treary". Thcy
did not rioint out anv orovision of the treatv which 1have violaied. and 11is
not surprising that Ïndia has either failed to point out any provision or
deliberately did not want to, but if India does point out a provision of the
treaty which 1 am supposed to have violated, then the jurisdiction of the
ICA0 Council, under Article 84, will be attacked straightaway, because the
question of interpretation and application of the provisions which 1 am
supposed to have violated would arise and this would have to be considered
by the Council. That was one of the main reasons why they deliberately
either did not Say that 1 had violated any provision of the Convention, or
have not been in a position to point one out. But even if they show that any rule of international law is violated by me, the case will not bejustified under
the codified international law as given in the Vienna Convention, because
that clearly says that the breach must be of a provision of the treaty or
convention.
My next submission on this material breach point, Mr. President, is based
on Article 54 of the Convention. 1 particularly draw the attention of the
Court ta clauses (j)and (k) of the Convention, which are given on page 315,
supra,of India's Memorial:
"~andhfory Funcrionsof Council
The Council shall: fIwill go straight to(j)on page 3151
(j) Report ta contracting Slates any infraction of this Convention,
as well as any failure to carry out recommendations or determinations
of the Council:
(k, Report to the Assembly any infraction of this Convcniion wherea
coniracting Stüte has fsiled tu tnkcappropri<iteaction urithiü relisonable
time after notice of this infraction."
Violation ofa provision of a treaty, in my humble submission, is the same
thing as infraction of a treaty. I1 were guilty of violating any provision of
the treaty under the rule of international law as codified in the Vienna
Convention. tben mv case was covered bv Article 54. In other words. Ind.a -
has remedy,' under Article 54, to report io the Council. The Council would
have asked me, asked Pakistan, to take this action under (il :f 1 had failed.
the Council would have reported the matter to the ~ssembly under (k). S&
infraction or breach is covered by the treaty itself-theris a remedy provided
for that; a remedy is provided for that breach, for my misconduct-for
whatever fault 1 may have been guilty there is a remedy in this Convention
itself; India is committed to this Convention, 1 am committed to this Con-
vention. In view of this, India has no scope or choice or alternative to go
dehors this treaty, as they say, and claim some remedy under the general rules
of international law. Neither India nor Pakistan are parties to the Vienna
Convention, but we accept the general rules of international law, if they are
codified, they are binding on me. 1am not going ta repudiate and say, well
this part1accept-this is part of international law, and the other part1reject
because 1 am not a party to the Vienna Convention. When it comes to the
- matter of notice,3 months' notice has to be given, India says this is a super-
imposition-this is not part of international law-and says she is not a party
ta the Convention, it is not binding on her. But the other part is international
law-1 am the iudae as to what is and is not international law-that is in~ ~-
national law, that is codified, that is binding on Pakistan; whatever you say
is correct, but here you come under Article 54 of the Convention itself. MY
argument is the main argument, did you or did you not have a remedy under
Article 54 to report the matter to the Assembly, to the Council? After that the
Council would have taken action against me.
On this ooint. Sir. 1 would res~ectfullv draw vour attention to oararanh 4
of Article 60 of the ~onvention;'this alio supports my contention. ~riicie 60
has been relied upon by the learned counsel for India. The kst three para-
araohs were mentioned. but then we come to na. -.aoh 4. w,ich States: "The
Torégoingparagraphs are without prejudice to any provision in the treaty
applicable in the event of a breach." There is a provision in the treaty in the
event of breach which could be resorted ta: that is Article 54.so these~eneral
rules of international law as codified in the'Vienna convention are subject to ARGUMENT OF. MR. BAKHnAR 651
the treaty itself, to the Convention itself. They could not say: "we are going
to take action under international law because we are hound hy international
law"; but should they say that they are hound by their own treaty comrnit-
ments, that their actionis suhject toany provision withregardto hreachin that
Convention itself.
Again 1 would just like ta draw the attention of the Court to Article 26 of
the Vienna Convention. This also creates some difficulty for India. Article
27 states the maxim uacta sunt servanda: "Every treaty in force is bindinp.
upon rhc parties to itand miist I,c perfurined by fhem in goiid faith." ~herc;
forc, Mr. President, if rheConvciition is binding on Indin, then Article 54 and
Article 89 are bath hindina on India, and india ciinnot act out of thüt oosition.
My last suhmission, oithis point, is also with regard to Article 60 of the
Vienna Convention. Paragraph 1 of Article 60 states:
"A material hreach of a bilateral treaty hy one of the parties entitles
the other ta invoke the breach as a ground for terminating the treaty
or suspending its operation in whole or in part."
The words which 1 humhlv want to emohasise are "entitles the other to
invoke the hreach as a ground for terminat;ngw, ipsf oacto the treaty does not
came to an end. This gives only the right to invoke the hreach as a ground
for terminating-you inly invoke, the Ïight is of invoking, the right is not of
terminating, and this right has to be invoked before that appropriate forum,
and, for this, 1would also rely on the interpretation of this provision hy the
United Nations Conference on the Law of Treaties, First and Second Sessions,
pages 74 and 75. They are also of the same view-that the right is of invoking
only, not of terminating or suspending and this right is to he invoked before
the appropriateforum. Now, it was emphasised hy the learned Chief Counsel
of India that he can prove his case before the appropriate forum, he can
justify it, but this is not the place for it. The ICA0 Council is not the place
for it. Where is the forum? He will not ooint out. but he savs he can iustifv it
if there is an appropriate forum. My humble submission is-that if théreis-no
forum, if there is no remedy, then there is no wrong, then there is no right;
they have no right, 1have not doiie any wrong, if itcannot he redressed before
an appropriate forum. This is a very well-known maxim-where there is no
remedy, there is no wrong. So India cannot say that a forum is not known,
ÿ forum is not available, you have committed a breach, 1 have the right to
invoke this breach as a right for terminating it, but 1 do not know where to
invoke il, 1do not hother about it-no, that cannot he done.
Then, lastly, Mr. President, you may kindly note paragraph 4 of Article 65
of the Vienna Convention:
"Nothing in the foregoingparagraphs shall affect the rights or obliga-
tions of the parties under any provisions in force hinding the parties with
regard to the settlement of disputes."
Again, India bds herself in difficulties, they cannot get out of this provi-
sion. The Convention and the Transport Agreement contain such provisons,
as have been pninted out in my suhmissions, through which the disputes
could he settled.
MI. President, 1 will not say any more on this point, suhject ta what my
learned friend mav .av...nd. if necessarv... 1 mav make some suhmission in
my rejoinder.
Now, 1 go to the next point, the last point taken up hy India, that is, themanner and method of making the dedsion vitiating it. Five grounds, five
objections on this point were raised before the honourable Court.
The first objection was that the Council was a purely administrative body
composed of inwmpetent perrons in so far as their knowledge of international
law was concerned.
The second objection was that the voting which took place in the Council
on the oroposal for the deferment of the decision was lost due to the manner
in whiih voting took place.
Before 1 go to the third, fourth and fifth objections, 1 would like to deal
with these two objections first, that is, that the body was purely administrative
and the members of the Council were incomoetent because of lack of know-
~-~- ~~~~~~-
ledge on their part of international law, or of any law at all, and secondly,
that the voting which took place in the Council on the proposal of Czechoslo-
v--~a. ~-r~~~.erment of the-decision. was lost due to the manner in which t~-~~
voting took place.
Mr. President, if we seriously consider this point, is he attacking the
manner, the method, or the convention itself, the treaty itself, the law, the
regulations? Those he is attacking. His quarrel is with the law, the treaty
which he has signed. He is hurt by that, that he hiassigned something with
open eyes. Now he finds that that Council could have people who could be
incompetent, according to him, who would not be qualified in law. The
Security Council does not have lawyers and they take far more important
decisions, and decisions ofa judicial nature also sometimes. The same applies
to the General Assembly. The same applies to every other body. 1s he
quarreliiig with the law, or is he quarreling with the procedure that was
adopted? He has not pointed out a single provision or any rule which the
Chairman or the Committee or the Council violated. He said they are not
qualified.1 do not want to go into detail on this point, but is it necessary for a
judge to be a lawyer? These we have, there is no doubt, particularly in al1the
higher courts we have .lawyers and jurists who preside over benches, but,
originally, it was not necessary. The qualification of the judge was his
impartiality, his character, his integrity, his commonsense, tben it was the
duty of counsel to assist him, to help him, so that he could apply his open
mind and interpret law with the help of counsel. This is how originally the
judge came into existence, and even today we have honorary magistrates.
We have, al1 over the world, executive administrative bodies performing
judicial functions. 1 know the jurists have been protesting against it, but, for
the past 30, 40, 50 years, this has been going on. This may not be desirable,
but, in this modern age with the planned economy, these powers have to be
deleaated to experts in different fields, who, while performing their expert
dutiés, may nlso perforni some lirtle judiciïl function. They have no oiher
alternative to that. We arc trying to find one. E\.eryhody is rrying to find an
alternative but cannot find it. So his quarrel is basically with the scheme of the
Convention. That these people could be appointed becauie their qualification
is no! thîr thcy should bc lawyers. or rhat they were no1 Iîu,ycrs, thnt is no1
his ground; his ground is that these people are incompetent, but did he not
know when he simed the Coven~i~n that incomoetent oeoole. accordine to -
his~notion of competency, would be sitting hcre to deiide'these questions?
Did hc not know thal Article 84 conferred jud1ci31powers and functions on
the Council. when he sianed the Convention? Was he not îwnre of that facl?
If he was, then he caniot quarrel, he cannot coniplain now at this stage.
before this Court-nor there. Of course you were afraid, you would not tell
them they were incompetent: you would be telling the Council that they ARGUMENTOF MR. BAKHTIAR 653
were incompetent; but is this a valid ground? 1 would bumbly submit that
this is no ground at ail because their action, their qualifications, were in
accordance with the provisions of the Convention-the Convention never
required that these people should be lawyers, or learned in law or in inter-
national law.
.5im;larly, the next point \vas that the mmncr in which the deferment vote
wïs takcn \iîs highly obicctionable. What hd~~cncd in the Council niecting
was that one of-the mimbers, perhaps ~z~cboslovakia, moved that thé
decision should be postponed, deferred-it was not. Eight members voted
for it. The rest did not, they abstained. Now, the rules of procedure of the
Council are that no motion can be carried unless it is supported by the
majority of the members. In an international organization we find that many
countries do not want to annoy anothercountry so,instead of voting against,
when they want to defeat a motion, they abstain. India has done this on
hundreds of occasions in international organizations-they abstained just to
defeat the motion. You cannot quarrel with this procedure, that when certain
members abstain you fail to get the deferment by getting 14 votes. This was
the procedure. The Chairman did not do anything, eight voted, none voted
against it. Those who wanted to vote against it abstained in order not to
annoy India. This is the normal procedure in international organizations.
You cannot quarrel with this proposition because the law allows it, the rules
allow it and this was strictly in accordance with their own procedure-the
motion had to be supported by the majority of the members; if the motion
was not supported by the majority of the members it fell through.
The emohasis that this was a ~urelv administrative bodv. 1 would humbly
submit, isnot correct. lndia kno&stli3t any pcrson who rca<lsthis Convention
ïnd has î littlc kno\\lcdgc of laiv will know rhat the judtcial fiincrion \%,as
entrusted to the Cuuncil-Chaotcr 18. which me3ns Ariiclcr 84-88. relütcs
clearly to judicial functions, and; on that1 will respectfully draw the attention
of the Court to Bin Cheng's book The Law of International Air Transport,
1962edition, page 52. He says tbat this function is a purely judicial function.
He wrote that book in 1962,so 1 suppose that in ten years India should bave
learned that this was purely a judicial function.
Again, tbere is a book by Buergenthal which is called The Law-making in
the Internarional Civil Aviation Organizafion, 1969, page 8. He has said the
same thing-that these are judicial functions which the Council performs.
So India was aware of this no.ition-that -~~ the~C~ ~ ~l nerformed iudicial
functions. This cannot be their grievance-that they were not aware that
judicial functions would be performed by them, or that these people would
not be acquainted with the-rules of international law, and that-tberefore
India has suffered Ourmiscarriage ofjustice.
The next ground which our objections wiIl take, upon the manner and
method of arriving at the decision, is that the questions were formulated in a
manner which, when put to vote, prejudiced the Applicant.
Mr. President, on this point, some of the submissions which 1 made
yesterday are relevant. The questions were not formulated in a manner
which, when put to vote, prejuùiced the Applicaot. The manner in which
they were put was: the Council has no jurisdiction. India says they should
bave heen put: the Council has iurisdiction. because. .under international
la\!,, when 3-parti. gocs bcforc an o;ganizationit first proves thüt thît Organi-
7;ition has jurisdiction and, after that, thc other Party mdy mîke objection
whcthcr it has iurisdiction or not. But in this cîsc India sîv the Council
formulated the questions and found that it has no jurisdictio" They shouldnot have put it in this form. Those members of the Council may have bcen
ignorant of internationîl law but they were men of commonsense, intelligent
people, highly qualified technicians and experts in their own lield. They were
not imbeciles who did nor know what was happening or what they iicre doing
or which uay they were voting. If it is the case of India that these people
made a mistake-by no they meant yes, and by yes they meant no-that is
different. Otherwise what difference does it make whether this question was
put in one form or the other to intelligent people, to experts, and, if the
honourable Court will see the proceedings, it will find that they knew what
t~ ~ ~ ~.~~~ine.
Éut apnrt frOm that, the point is thal the scheme of the Convention is a bit
different. This isthe law, under that, anyway, the jurisdiction of the Council
is presumed, so thît when an Application is made the Council will proceed.
but if anybody has any objection to the jurisdiction. tht party \hall file an
obiection under Article 5 of the Kules for the Settlement of DitFerences. On
331, sirpro,of India's Memoriai:
"Preliminary Objectionand Action Thereon
(1) If the respondent questions the jurisdiction of the Council to
handle the matter presented by the applicant, he shdl file a preliminary
objection setting out the basis of the objection."
Now hc has set out the basis of his objection; itis his objection that forms
a question or a motion; it is his objection that has to be put bcfore the House,
and ir isfor him to muster uo the malo~ity ~f the House to succeed. Otherwise.
like the President said. thev will oroceed with the case as if thev have the
jurisdiction, if India had iot mhe this Application they would-have pro-
ceeded, but India did make this Application and their Application was that
the Council has no jurisdiction, sothat had to be put &fore the Council:
India said that there is no jurisdiction; what do you Say? That was the
question.
They voted, India only got 1vote-it fell through. It is immaterial whether
1 got 20 votes or 1got 18 votes, but lndia got 1 vote on that point, none on
the other, on both the motions, and they fell through, but 1 will come to
voting later.
My humble suhmission, Mr. President, was that the manner of arriving
at a decision. or the manner in which the question was formulated, was
srrictly in accordance with the Rules themsclves. which govern the formula-
tion of such questions. On this point 1could aiso refer to the background of
this cîse: rhat whcn the Aoolicîtion and the Com~lnint were filed before the
Council. the lndian ~geni'was called, a meeting was held in Vienna on 8
April. and a resolution was passed calling on the Parties tu iiegotiatc. India
accepted that, Pakistan accepted that. Does that not amount to a submission
to the jurisdiction of the Council? Later, India filed a preliminary objection
-much later, so when the President of the Council says: that we have
proceeded on the assumption that we had jurisdiction, he was perfectly right.
You have submitted to the iurisdiction. He said neeotiate. You said: ves. we
arewilli"ito negotiate. id the speech of the 1nd:anAgent which is part of
the record4 do not know whether it is available here or no1 but 1 have got
a copy 1 can supply. He said that the time is short, we willfile our counter-
memorial, we will file our objection-the time is short: they did not object
to the resolution as such, they did not object to the jurisdiction as such. He
says; six weeks or eight weeks will not be enough, give us more time. But as
the Council had decided, we submit, we accept, we honour. Those were ARGUMEXTOF MR. BAKH~AR 655
îvermenis, those u,cre sratemenis made before the Council-and then they
agreed to ncpotiate. Under rhese circiimstanccs to condcmn the Council or
the Chairman bv sa.ine--hat he did not follow the ~rocedure. he assumed
jurisdiction, is unfair.
Then, Mr. President, another objection that was raised was: that the
motion was moved by the President of the Council and that it was not
supported by another Member. This also is not a valid objection. First of all,
1again respectfullydraw the attention of the Court to Article 5 of the Rules
..- ~--~S~ ~ ~~~n~ of Differences. which is a nrocedure for disoosine.of an-
urgent objection of that kind, ai objection iertaining to jurisdiction. This
decision or this action, as 1have already submitted, was taken under Article
5. Article 5 does not require tbat a motion in the form of a resolution is to
be moved and in turn be supported. Article 5 says that:
"(1) if the respondeut questions the jurisdiction of the Council to
handle the matter presented hy the applicant, he shall file a preliminary
objection setting out the basis of the objection.
(2) Such preliminary objection shall be filed in a special pleading at
the latest hefore the expiry of the time-limit set for the delivery of the
counter-memorial.
(3) Upon a preliminary objection being filed, the proceedings on the
merits shall be suspended and, with respect to the time-limit fixed under
Article 3 (1) (c),time shall cease to run from the moment the preliminary
- -.~~io~ is filed until the obiection is decided bv the Council.
(4) If a preliminary objection hîs been Iiled, the Council aftcr heîring
the narties. [ihat is a11they Iiad to do] shall decide that question [not the
motion-&.& question] as a preliminary issue before any further steps
are taken under these Rules."
Decide the question: now may 1 respectfully draw the Court's attention
to the Rules of Procedure of the ICA0 Council. Rule 24 reauires "a maioritv
of the Members of the Council sball constitute a quorum for the condict of
the business of the Council." Then Rule 25 says:
"The President sball convene meetings of the Council, he shall
preside at and declare the opening and closing of each meeting, direct
the discussion, accord the right to speak, put questions and announce
the decision."
He has to put the question and announce the decision. That is exactly what
he did. He out the ouestion-there is no auestion of movine a resolution or a
motion, to 'besupp6rted by another member and then put to the vote.
1will a-ain read Rule 25,clause (a) :
"The President shall convene meetings of the Council, he shall preside
at and declare the ooening and closing of each meeting, direct the
discussion, accord the;ightto speak, ~ut~uestions and [there is no 'or'
with it; it is said together, put questions and] announce the decision."
So, stnctly in accordance with this Rule, the President has acted. When the
ouestion was broueht before the Council. he afforded the oarties a hearing,
written pleadings w&realso filcd 2nd no wire objections, and after thît he put
the question and the Council deçidcd.
The last eround was. Mr. President. thît the decision uïs not in accordance
with ~rtic6 15of the Rules for the ~ettlement of Differences. 1 have already
dealt with this point so 1will not takea lot of your time, except to see whetherthis was a decision under Article 15 or Article 5. These Rules, and the way
they are arranged, should be considered and noted. Chapter 1 deals with the
scope of rules; Chapter II is on disagreements and deals with Applications
and the form in which they have to he filed before the Council; Chapter III
covers action upon the receipt of Applications-under this Chapter cornes
Article 5. At this stage you make an objection with regard to jurisdiction
and you file an Application. After that is disposed of, under that Article, the
question has to be decided. Then the proceedings start under Chapter IV
and the decision is given under thischapter.
1will therefore respectfully submit that the decision, under Article 15,had
nothing ta do with the disposal of a preliminary objection with regard ta
jurisdiction. That is a final decision for which reasons have to be given, and,
under Article 5, in disposing of the preliminary objection with regard ta
iurisdiction. the ouestion shallbe ut. bv the President or the Chairman of the
kouncil and member io voie. ~e'did thnt and throughnui ni). case has been
that no apwnl licsagainit lhnt. and Iamsupported and fortificd on this paint
also-tha-(if appeal had been provided, they would have said: give reasons
for it. By not providing for reasons in one article and providing for them in
another shows that there is appeal under oneand not under the other.
Now, Mr. President, 1have some brief submissions to make on the com-
plaint to the Application. It is stated that only 13 votes were in favour of
Pakistan, and Article 52 of the Convention required a majority of members
of the Council to support a motion. 1will first submit that Article 52(Memo-
rial, p. 314,supra) deals with application under the Convention. It says:
"Decisions by the Council shall require approval by a majority of its
members. The Council may delegate authority with respect to any
particular matter to a committee of its members. Decisions of any
Cornmittee of the Council may be appealed to the Council by any
interested contracting State."
The main thing is: "Decisions by the Council shall require approval by a
majority of its members."
Now with that the Court may he pleased to read Article 66, which deals
with the functionsrelating to other agreements:
"(a) The Organization shall also carry out the functions placed upon
it bv the International Air Services Transit Agreement and by the
~nteinational AirTransport Agreement drawn up at Chicago on ~ëcem-
ber 7, 1944, in accordance with the terms and conditions therein set
forth.
Ihl Members of the Assemblv and the Council who have nnt ac-
,~, ~- , ~~-
cepted the ~nteinational A& Services Transit Agreement or the Ïnter-
national Air Transport Agreement drawn up at Chicago on December 7,
1944,shall not have the right ta vote on any questions referred to the
Assembly or Council under the provisions of the relevant Agreement."
Now it is not disputed that out of 27 members of the Council, 7 had not
signed the Transit Agreement-they were not entitled to vote. 19 were en-
titled to vote; were 20 entitled to vote? So the spirit of Article 52 is that a
majority should vote-only those who are competent ta vote-that majority
will be less than even 13.If in this case it is accepted-1 am not accepting it,
my ground is different also, but supposing, as he suggests, that a majority
should havevoted, the total number is 19,is 20, although 13voted. Certainly
the Court may he pleased ta consider that supposing only 13members of that ARGUMENT OF MR. BAKHTIAR 657
number have simed this agreement. then would the Court olace an absurd
interpretaiion on it and s& that no decision could ever be'carried out be
cause, of those 12memberi who signcd, hupposing only 10voted in favour of
a mention and this majority nieant the entire Council of 27, that means,
under the Transit Agreement, no decision could ever be carried out. It so
happens that 20 are inembers, but supposing that 12or 13had been members?
Neither the Council nor this honourable Court has so far inter~reted this
provision. The Secretariat of the ICA0 Council gave the view thatthe major-
ity means of the entire Council, but 1think that is on the face of it wrong and
the Court will not make anv absurd interoretation on a orovision of this
nature. When the provision of one law is incorporated in ànother law, that
provision becornes part of the other and when it says majority, it means the
maioritv of the signatories of the Transit Agreement. It is verv sim~le. 1 do
no; know how thëy could pos>iblyadvance ïhis argument, but: al1the same,
1would furthcr like ro dr3w the attention of the Court ro my submission that
the Council had out the auestion of India's obiection-the Council has no
jurisdiction-to vote; it wis India's duty, 1ndia.s-goad fortune or bad fortune
or misfortune to have obtained a majority. They got only 1 vote-it fell
through. 1 do not have to get majority there. It was his motion that Council
had no jurisdiction that fell through. He cannnt say that Pakistan got 13
votes. He failed to get 14votes, if his argument.is accepted. He should have
aot 14votes for his motion. accordinc to the orocedure. and then he would
iave been successful. Tosa; that 14votes wer'not cast in favour of Pakistan
is the wrong approach to the problem. The objection was from India, that
the Council had no iurisdiction: that was the auestion which was out to the
housc, that o.as the-question on which votes Here asked for and onlr I vote
was given that it has no jurisdiciion, whereîs he had to gct 14votes according
to his reading of ~rticle~52.
The Court adiournedfrom 11.20 to 11.50 am. QUESTIONS BK JUDGES ONYEAMA, PETREN,
JIMENEZ DE ARECHAGA D,ILLARD AND SIR GERALD
FITZMAURICE
Le VICE-PRÉSIDENT faisant fonction de President: Monsieur le conseil
principal, jevoudrais vous demander de retarder votre plaidoirie pour donner
le temps h un certain nombre de juges de poser des questions. Je vais donc
commencerpar donner laparole aux juges qui ont des questions Aposer, sàit
vous-même soit aux deux Parties.
Judge ONYEAMA: These questions are directed to the Chief Counsel
of India. inview of the point made by the Chief Counsel of Pakistan regarding
the competence of theappeal now before the Court, 1would like the chi&
Counsel of India, if he would be so good, ta express his views on the signifi-
cance of the words "... if any disagreement cannot be settled by negotia-
tion ..."in Article 84 of the Convention.
What interpretation would he give to those words as applied ta the dis-
agreement which the Council is empowered to decide, and from which an
appeal can be brought to this Court as provided in Article 841
Would such a disagreement, in his view, include a conflict of views on a
preliminaty objection to the jurisdiction of the Council?
Judae PETRÉN: Mv question is directed to bath Parties. It isthe followina
one: under Article 84 bfihc Chicago Convention, the decirionof the ICAO
Coiincil, against urhich nppedli may bc brought, arc decisions rclating to the
internret3tion or ïrinlication of the Convention. Article 86 thcn pru\,idcs
thatc "Unless the ~ouncil decides otherwise any decision by the ~ouncil on
whether an international airline is operating in conformity with the provisions
of this Convention shall remain in effect unless reversed on appeal", but
that "On any othermatter, decisionsof the Coiincil shall, if appealed beom,
suspended until the appeal is decided". Do the Parties in the present case
consider that the exoression "anv other matter" in Article 86 is to be read
literûlly, and regardcd as including, for example, d~isions by \<hich the
Council, in the course of procccdings bcfore it, ndmits or rcjects an applicd-
lion to filccvidence. or do the 1'3rtie3ci~nrider ihat Article 86 ciinnot rcfcr to
any decisions of the Council other than those defined in Article 84, i.e.,
decisions relating to the interpretatioor application of the Convention?
This ends my question. It has in a way heen indirectly touched upon during
the pleadings, but 1should be grateful to counsel if they would be good
enough ta address themselves in their replies directly ta the poin1have
now raised.
Judee JIMÉNEZ DE ARÉCHAGA: Mr. Bakhtiar. in Part II of its
~ounkr-~emorial, under the heading "Jurisdiction of the International
Court of Justice" the Gnvernment of Pakistan made the following remarks:
(1) In paragraph 23 it stated:
"The Appeal of the Government of India against the decision of the
Council in respect of the Application of Pakistan could be founded, if at
al], on the followingprovisions:
(a) Article 37 of the Statute;
(b) Article 84 of the Convention;
(c) ArticleII ,ection 2, ofthe Transit Agreement." QUESTIONS BY MEMBERSOP THE COURT 659
(2) In paragraph 24 of the Counter-Mernorial the invocation by India of
Article 36 of the Statute of the Court was declared to be irrelevant and
misconceived.
(3) In paragraph 25 it was said:
"lt is suhmitted that the Appeal of the Government of India in respect
of the dccision of the Council in Pakistan's Complaint is incompetent
and not maintainable. . ."
on various grounds which 1 omit.
From these statements it would appear that:
(1) Pakistan did not raise formally an objection against the jurisdiction
of the Court to entertain the appeal with respect to the Application and it
enumerated the legal titles providing for such jurisdiction.
(2) Pakistan disputed the relevance in the case of Article 36 of the Statute
and recalled India's reservation to its own declaration of acceptance of the
comoulsorv iurisdiction of the Court. This observation. however, did not
appear to bein the nature of an objection ta the jurisdiition, because India
had not relied upon nor invoked as the basis of the Court's jurisdiction in
this case the declaration made by Pakistan accepting the compulsory
jiirisdiction of the Court under Article 36 (2) of the Statute.
(3) Finally, Pakistan raised a partial objection to the jurisdiction of the
Court: it opposed the Court's jurisdiction to entertain the appeal against the
decision of the ICAO Council with regard to the Complaint, as distinct from
the Application.
In the statement you made yesterday, MI. Bakhtiar, you advanced two
observations which go against the Court's jurisdiction in the present case:
(1) You disouted the aoolicabilitv of Article 37 of the Staiute to Pakistan,
because your 'ountry becake a paGy to the Statute after the demise of the
Permanent Court of International Justice. This argument coincides with the
second preliminary objection which was raised by the Government of Spain
in the BarcelonaTraction case, apreliminary objection which was dealt with
in a Judgment of this Court on 24 July 1964.
(2) You asserted that none of the decisions which were adopted by the
ICAO Council on 29 July 1971 are subject to appeal and therefore it would
appear now that the Court would not possess, according to you, any jurjs-
diction to exercise in the oresent case. not only with regard to the Complaint
but also with respect to the ~pplication. It would app2r that you are raising
new points concerning the jurisdiction of the Court. Therefore, my questions
are as follows:
(1) 1s the Government of Pakistan now raisina. at the oral oroceedings,
fo&al objections against the jurisdiction of the Court or werë you sirnply
suggesting certain questions which in your view the Court ought to take into
account when examinina. motu oroorio.its own iurisdiction.
If the snswer to thir i"cstio, is;n the sensc of the firit alternative. that is
to say, if you arc raising formal objections agîinsr the jurisdiction of the
Court. then mv second auestion follows.
(2) Are there any re&ons why suçh formîl objections to the jurisdiction
of the Court wcre not raised within the timc-limit esiahlishcd for that purpose
in Article 62. nara-.n~h 1..of the Rules of Proccdure of the Court, so as [O
allow the preiiminary procedure provided for in that Article to be irnple-
mented? Judge DILLARD: My questions are directed to the Chief Counsel of
India. Mr. Palkhivala, in order to be sure that 1 have thoroughly understood
the theoretical imolications flowina from vour basic aooroaCh..~ would like
to put the fnllow~ngfour questio's, which 1 believe can be answered quite
simply:
(1) Does it not follow from your theory that in sofor osthejurisdictionof
the Council of the ICAO is concerned it is completely irrelevant whether
India's asserted suspension of the Convention and Transit Agreement was
or was nnt in conformity with the priciples of international law.
(2) Does it not also follow from your theory tliat the mere factum of
suspension-1 use your term at page 611, supra,-once officially proclaimed
by India should suffice in and of itself, according to you, to preclude the
Council of the ICAO from entertaining the Application and Complaint of
Pakistan. In other words, is it not immaterial whether Pakistan agreed or
disagreed with the "fact" of suspension since, if the Council were to consider
that disagreement it would necessarily be endowed with jurisdiction, ac-
cording to your position.
(3) Are not the composition and characteristics of the Council also irrele-
vant inasmuch as the Council itself. no matter hou, constituted would. ac-
cording to ?ou, be u,ithout any power to entertain the Application and
Complaint. Put more concretely, even if the Council were composed of 27
of the rnost eminent jurists of the u,orld it would still, as a comoosite bodv.
be without iurisdictional oower.
(4) 1shan preface this iast question with a brief comment inspired by my
own researches inro the records of the Chicago Convention which. on this
ooint. have oroved abortive. If 1 understood vou correctlv the.m~t~er ~ ~~ ~-~ ~ ~ ~ ~
composition'and characteristics of the ~nuncii was elaborated upon in order
to justify the inference that it was unreasonable to supose that the nations of
the world ivould confer on the Council the power to decide any disagreement
relating to termination and suspension. or even questions of substantive
international law.
The great diligence you have displayed in the preparation of your case
prompts me to ask whether we may not assume that you have discovered no
positive evidence fortifying the inference you have sought to draw, namely
that the nations, including in particular India, in ratifying or adopting the
Convention and Transit Agreement did so with the understanding that the
jurisdiction of the ICAO Council was limited in a manner which excluded any
disagreement relating to termination or suspension.
Judge Sir Gerald FITZMAURICE: My questions are also addressed to
Chief Counsel for lndia arising out of the latter part of his statement. 1wish
iüst to put two points to you regarding that part of you argument in which
ynu have alleged irregularities in the procedure of the Council of ICAO. You
have laid much stress on the fact that the delegates in the Council were not
given sufficient time to obtain instructions. But equally you have stressed
that the members of the Council were not the individual delegates but their
governments.
This king so, is not the real question this,-namely nor whether the
delegates, once they go1 10 the meet'Lng,had time ro consider the marrer, but
whether the govcrnmenrs had rime ro consider it and instruct their delegales
before the Council's meeting opened? Looking ar ilfrom that ooint of view 1
notice that Pakistan's cornplaint to the ~ouncil was presentid on 3 ~arch'
1971. and that India's Objection to this Complaint was submitted to the QUESTIONS BK MEMBERSOF THE COURT 661
Council on 28 May 1971. and uras not heard by the Council until nearly the
end of July-two months later. The governments, therefore, had an overall
period of practically five months in which to consider the matter and give
the necessary instructions to their delegates,-andquite two months they had
even after the filing of India's Objection. They must have redized that legal
issues would be involved, and could, if need be, have attached legal advisers
to their delegations. In consequence, a telegram or telephone cal1from their
delegations should have been enough to enable the latter to be told how to
vote. In these circumstances, and this is my question, is it really possible to
attrihute responsihility to the Council as such rather than'to the individual
governments?
Second question: You have argued that various irregularities in the
Council's procedure vitiated the voting, and therefore the Council's decision
to assume jurisdiction.
The point 1want to put to you is this: the matter having now been brought
to this Court, would these iiregularities, assuming them to have occurred,
any longer matter7 For if the Court thinks that, in law, the Council had no
jurisdiction to entertain Pakistan's claim, then the fact that the Council
reached an opposite conclusion by irregular methods clearly becomes irrele-
vant. But is this not equally the case if the Court considers that there was
jurisdiction, whether or not the Council's own decision to that effect was
irregularly come to? In short, if the existence or non-existence of jurisdiction
is an objectivequestionof law which it is now for this Court to determine, can
the outcome hefore the Court be affected or altered by irregularities in the
way the Council dealt with it? Even if the decision in the Council had gone in
favour of India, it would still have been open to appeal on the part of Paki-
stan.
And mv final ooint is this: arisine out of the answer vou gave the other
day to on; of m;previous points, 1should like to put thicfurther question to
you. In making the distinction you seemed to make between substantive and
non-substantive international law. and in olacin- treatv interoretation in the
latter category, is it your contention that treaty interpretation4nwhich the
whole of therights and obligations of the parties in a given case may depend-
is a sort of subsidiarv or hwer-level international law. not on a n.r a.ali-
tatively with some kind of higher international law-and if so, can you cite
any authorit~. judicial or other, in which such a distinction is made?
Le VICE-PRÉSIDENT: Telles sont les questions qui devaient êtreposées
par MM. les juges. Maintenant puis-je demander d'abord à M. le conseil
principal du Pakistan -je m'adresserai ensuite A M. le conseil principal de
1'Inde-quand il peut répondre aux questions qui le concernent. Pourra-t-il
le faire avant de terminer sa plaidoirie ou bien, le cas échkant,au second tour
de plaidoiries?
MI. BAKHTIAR: 1 should orefer to renlv to the auestion directed to me
in my second reily orthe rejoiider, after ihave heard'the counsel for India.
Whether that comes tomorrow or the day after depends on his reply. At the
moment, 1will not be in a position to reply, but after he has made his sub-
mission, 1shall make an effort to reply to the questions which are directed to
me.
MI. PALKHIVALA: Mr. President, may 1request the Court to permit me
to deal with these questions the day after tomorrow, that is, Friday when,
again witb your permission, 1 would like to give my reply to the various
points raised by my learned friend yesterday and today. The reason why 1am asking for one day's break isa three-fold reason. First: the verbatim notes
reach us at 9 p.m., therefore 1 shall get the verbatim notes of my learned
friend's arguments today only late tonight. Secondly: my learned friend has
eiven us a comoilation of new documents1 which he wants to ~o~o-~re~ ~-~~~--.
and that compilation came to us this morning at 10 o'clock. 1 have not even
looked at the compilation of the new documents. Thirdly. some very simifi-
cant and important questions have been raised, if 1 may say so, h; the
honourable Members of this Court, and 1 would like to give them a carefully
considered reply. And if 1 am to do al1 these-reply to my learned friend,
deal with his new documents and, most important, deal with the questions
framed by the honourable Judges, one day's grace would be about the
minimum that 1would require in order to manage to cope with thiswork.
Le VICE-PRÉSIDENT: Donc M. le conseil principal de l'Inde, si je
comprends bien, vous dkirez répondre aux questionsqui vous sont adressées
au cours de ce premier tour de plaidoiries, avant le second tour. C'est bien
cela que vous demandez? Vousserez informéaprèsque la Cour sesera réunie
et aura delibéréde la question.
hlr. PALKHIVALA: .Mr. President, if 1may clarify the point, it isnot as
if Iam making a distinction between the firsr round of argument, and the
second. All thnt 1am requestins the learned Judges to permit mc to do isIO
deal with these questionion Fnday-morning, then, if the Court puts it that
way, in the second round of arguments and before 1 begin replying to my
learned friend, 1shall kst reply to the questions framed by this honourable
Court and, having dealt with these questions framed by the learned Judges,
1shall then reply to my learned friend straightaway,without anyfurther delay.
1 Seepp. 743-765,infra. ARGUMEN TF MR. BAKHTIAR
ARGUMENT OF MR. BAKHTIAR (mnt.)
CHlEP COUNSEL FOR THE GOVERNMENT OF PAKISTAN
Mr. BAKHTIAR: MI. President, Members of the honourable Court,
before 1 sum up my submissions this morning, as my learned friend has
mentioned certain documents1 now filed in this Court, 1 would respectfully
draw the attention of the Court to some of them. These are the dociiments,
which have been filed in reply to India's documents, which were filed after
the close of the proceedings and they requested the Court to give us time to
-et these documents from Pakistan.
India's case, in the documents they filed after the close of the proceedings,
was that ~ermission was sought by the Director-General of Civil Aviation in
-ak~ -~nor ~- the ~akistanInternationa1 Airlines from the Government of
lndia to land,.~~ to overfly. And these documents which we,have filed, and
our case, has been that what they called permission was something which
was done even before the outbreak of armed hostilities. even before Sep-
temher 1965, when the emergency was proclaimed by india-even befoÏe
that. such ~ermission was given to airlines. If that is called permission, as the
request wai submitted under Article 68, it was required, it was necessary. So
for that purpose we have filed some documents. The Court may be pleased
to see them. 1 will just draw the attention of the Court ta one or two docu-
~en~s~ ~ere ~ ~ ~r~ ~the~ ~ ~ c~urse. There is a document which was filed this
morning-it is the request from the Government of India ta the Director-
General of Civil Aviation. Government of Pakistan. The learned counsel says
that these documents arenot admitted. He filed certain documents; in spite
of our objection only to the extent that until we get documents of rebuttal
they should not he allowed on the record, they were allowed and he stated
that the Pakistan counsel had no objection. Now he says that he has to con-
sider whether he abjects to them or not. The Court had already allowed us to
file documents in rebuttal of these documents and 1 only refer to these docu-
ments. Of course, if the Court cornes to the conclusion that his objection-is
maintainable, which he is going to put forward on Friday, well these docu-
ments could be ruled out. But subject ta whatever his objection may be,
because 1 do not want this sittiiig to be prolonged-1 do not want ta come
back to the Court and say that my first round of argument is still ta be
concluded, I want to conclude that-therefore, 1 am submitting thÿt the
document of 4 Septemher 1965, subject to his objection, may be considered
hy the Court.
This letter is signed by the Manager of Air India, the.Indian national
airline, to the Director-General of Civil Aviation, Government of Pakistan.
It says:
"Flight AI. 512 of 12.9.1962and Flight AI. 505 of 5.10.1965: We have
your standing permission for our Flights AI. 512 and AI. 505, amongst
others, to overfly Pakistan t'erritory.
We would like to inform you, however, of a slight change in schedule
of the ahove flights. The revised schedule will be as under [then it gives
the schedule]."
1 See pp. 743-765 and p. 788,infra. MI. President. the word "permission" is used here and this is a letter dated
4 September 1965, two days before the emergency was declared and pro-
claimed by India. Similarly the Court will find inother documents that what
they called permission was actually complying with the provisions of the
Convention itself, whether it is under Article 68, or sometimes Article 9,
which is also relevant, and to which, while 1am dealing with this point, 1may
respectfully draw the attention of the Court. Itis in the Indian Memorial at
page 301, supra:
"fa) Each contracting State mav. for reasons of militarv necessitv or
pubiic safety, restrict or-prohibit uniformly the aircraft or other ~iates
from flying over certain areas of ils territory, provided that no distinc-
tion in this resoect is made between the aircraft of the State whose
territory is invoived, engaged in international scheduled airline services.
and the aircraft of the other contracting States likewise engaged. Such
prohibited areas shall be of reasonable extent and location soas not to
interfere unnecessarily with air navigation. Descriptions of such pro-
hibited areas in the territory of a contracting State, as well as any
subsequent aiterations therein, shall be communicated as soon as
possible to the other contracting States and to the International Civil
Aviation Organization.
(b) Each contracting State reserves also the right, in exceptional
circumstances or during a period of emergency, or in the interest of
public safety, and with immediate efect, temporarily to restrict or
orohihit flvinn over the whole or any oart of its territorv. on condition
;ha[ such risthciion or prohibition shail be applicable wihout distriction
of naiionslity to aircraft of nll other States."
Mi. President, these documents in which either my country has sought
permission. or India has sought permission, could very well be under Article
9,could be under Article 68, or, during an emergency, under Article 89.
As 1 submitted yesterday, nothing has been shown to show that these
documents were inconsistent with an emergency declared by India, or in-
consistent, some of them, with Article 68 or Article 9. 1 will no1 take up aoy
more of the Court's timeon thispoint ofdocuments. 1am also not mentioning
anything about that Dalmia arbitration case because my learned friend
assured me yesterday that his objection was only because he did not have
notice of that document. 1thought because he had aoveared in that case and
had argued tbere that the tr&ties did exist; he should have known that
document.
MI. President, summing up my argument, 1 will very briefly re-state my
case.
My first submission before the Court was-and I am îwarc of the question
that was directed IO me; 1will lcavc that. 1will no1 go into that point nos,-
that India's aooeal is not comoetent before this honourable Court under anv
provisions onkhich India fotinds the jurisdiction of this Court.
Wiih rcgard to Article 84 of the Convention, on which India mainly relied.
1 submitted that that Article orovides for aooeal onlv aaainst the final
decinion or the ICA0 Counc~labout the disagréémentreiati& IO interpretn-
lion or application of the Convention and not about every ruling, interim
order or decision made bv the Council-for examole the decision with re-ard
to the question ofjurisdi&ion.
1have submitted that appeal under Article 84 of the Convention, lies only
where a decision is taken under Article 15 of the Council's Rules for the ARGUMENT OF MR. BAKHTIAR 665
Settlement of Differences and here. 1 am informed. the word "decision".
astranslated in the French text in ~rticle 84means "adjudication" and 1think
that also means final decision. If the draft was first prepared in English and
then translated. 1 would sav the translator got the sense of the me an in^ of
decision as to in whish cont;ht ir was put orrif the first draft WJS prcp~rc> in
French, then in English perhaps the word "adjudication" shuuld hx\e heen
used.
1rubmitted that nu appe~l had bccn provided for against a decision made
under Article 5 of the Council's Kules for the Scttlcment of Dilïercniei, and
1mentioned that Article 5 dors not resiiirc that anv reasons should he civen
for thcir decision, wherc3s Article 15,u;hcre the fiii*decision is made, incikes
it uhligatory un the part of thc C'ouncilin give rcasons fur their decisiun.
1may further add, and 1have already explained this morning-the scheme
of the Rules; that a decision, which is a final decision, which is headed as
"decision" under Article 15, conies after the proceedings commence, whereas
this decision-when the auestion is put about theiurisdiction-is dealt with
in a dilfcreni chaptcr, bciore th^.proceedings siart: That is not a dccision in
the sense that Article 15sontcm~ilütr~.
1hüve also suhmiited. Mr. Prerident, that, under Article la of the Council's
Kulcs for the Scttlemcnt of Dilïerences, no1only is no :ippeal abaiut a dccision
with regard tu a Cornplaint provided fur, bu1 alsa ihdt appeal with rewrd to
a decision about the ~onlication is confined to disamement relatinz to the
interpretation or application of the Convention. ~iticle 18 does n>t con-
template an appeal with regard to a decision on the question of the Council's
iurisdiction
1 also submitted my reasons why appeal under Articles 36 and 37 of the
Statute of the Court and under Article II, Section 2, of the Transit Agreement,
was not comoetent. Aoart from that. 1 also submitted that under eeneral-
rules of international Iau,, an ori:;inv.ation like the ICAO had the jurisdi~tion
10 determine ils own jurisdictiun and thlitsuch dercrmination, ac;i~rd.ng 10
authorities, acquires the force of res jiidicata. On this 1 have, respectfully,
pointed the attention of the Court to the Judgment in the Nortebohm case.
Finally, 1 also submitted tbat India was hot and cold in the same breath.
To the ICAO Council it said: vou have no iurisdiction because the Con-
vention and the Transit ~~rcernént hx\,e been-wspended diid are no longer
in force and thrre isnothing for yuu to interprct or apply. To this honi~urable
Court India has come in appeal and said: you exercise jurisdiction hecause
the Convention and the Transit Agreement are in force. On the point that
the treaties were suspended and not in force, and therefore the Council had
nothing to interpret and apply, 1 submitted that India wanted the Court to
infer the fact of sus- r ~ ~~~ ~~n act of a sovereien State under the~-e~ ~al
rule of international law. .Frein various documents produced befire the
Court, no document clearly showed that India had suspended the operation
of thi treaty under international law. On the contrary, 1 suhmitted, India
has, as the documents show, suspended the operation of the treaty under
Article 89 itself, and this Article permits, in an emergency or in war, the
suspension of the operation of the entire Convention or part of it. And
India's case-taken at the highest-has been that overflying and landing for
non-traffic purposes were stopped, that is, the obligations placed on India hy
Article 5 of the Convention. Those two rights, those two freedoms-with
regard to the operation of the Convention-were suspended. The operation
of the Convention with regard to Article 84, or other provisions, even accor-
ding to India's own case, were not suspended.666 ICAO COUNCIL
1 have submitted, Mr. President, and may 1 add here, that according to
India's case they have suspended the Convention or the Transit Agreement
under a rule of international law as codified in the Vienna Convention. This
also requires consideration from another point of view: that the Vienna
Convention does not speak of suspension of any treaty whatsoever. It only
speaks of the operation of suspension-to suspend only the operation of the
treaty. In other words, there is a distinction between termination and sus-
pending the operation of a treaty. In termination the treaty cornes to an
end, but when you suspend the operation of a treaty, then it means it is still
in force, onlythe rights are not exercised or the obligations are not performed.
If that is so, then the ICAO Council's jurisdiction is attracted towards other
provisions. So even under the rule of international law, on which India has
relied, and her case, as stated in the Memorial, page 26, supra, was that the
treaties were suspended wholly or in part-they have not put forward their
case before the Court as termination. Loosely the term has been used with
suspension, but, as 1submit, there is no question of suspending a treaty, you
can onlv susuend ils ooeration. You can sav that vou have terminated it. out
an end io it,'but there isno question of terminating a treaty in part. It isiota1
termination, but suspension could be of a provision of it. India's case has
been that there has been a suspension of certain provisions and, as allowed
under Article 89, they have suspended the freedoms given to me, under
Article 5, to overfly and land for non-traffic purposes. They have suspended
that-their documents show that. their notification shows that-and in view
of &is, the rest of the treaty rernains in operation, including Article 84, and
the iiirisdiction of the Council remained intact to deal with the Application
andthe Complaint.
India has tried to argue that the question of suspension could not be
covered hy the word "interpretation" or "application" in the two jurisdictio-
na1clauses, that is, Article 84 of the Convention and Article II, Section 2, of
the Transit Agreement. But this involves a question of interpretation of the
words "interpretation" and "a~olication" in the above-mentioned Articles.
India's contention that the armed conflict of 1965suipendcd the Convention
and I'ransit Agreement çicarly cslls for the interprctation of Article 89 of the
Convention and Arttcle 1.Sect!on 1.of the Trsniit Agreement. India asserts
tba~ ~he~C-~~~ntion and Tr~ ~ ~ Agreement are silent ~~out the rieht of
~ - -
suspension for material breach, and hence a rule dehors the treaty applies.
Pakistan maintains that the Convention and Transit Agreement arenot silent
about this. Conseouentlv this involves a auestion of interoretalion of the
Convention and Transit Agreement. In any case a question of suspension is
covered hy the word "interpretation" or "application" in Article 84 of the
Convention. The meaning O-fthese words hast0 be arrived at in the context
of Article 54 of the Convention which provides that the Council's mandatory
function is to consider any matter relating to the Convention which any
contractine oartv refers to it.
1 have s;bmitied in detail that, from al1the documents produced by India,
it seemed apparent that action was taken under Article 89 and none of the
documents Aich India has relied unon and ~roduced is inconsistent if India
bas taken action under Article 89. '
$1have also submitted that India has, actually, under Article 89, informed
the ICAO Council that India had declared a national emeruencv. 1 also
poinred out to the honourable Court thal the [CAO Council hsd treited that
notification of lndia asnotifying the facr as an action under Article 89. hly
grievance was that Indiï in 1968informed the Council that it had put an end ARGUMENTOF MR. BAKHnAR 667
IOthe emergency, that the emergency proclamaiion had been rcvoked by the
Presidcni of India. That communiçation u,as sent on 10Jdnuary. After ihai,
when the o~eration of the treats or Convention, with regard to the obligation
that was oraced on India. w.s no loneer i- susnens:ion-on 4 ~ebrua~~-
1971-there was no emergency, India could not deprive me of my right and
could not fail to ~erform her obligation. There was no reason for il. there was
no justification for her not to përform her obligation under the treaty. On
4 February 1971 the Convention and the Transit Agreement were fully in
operation.
This fact is also supported by the fact that when the hostilities broke out
in 1971 India and Pakistan again informed the Council of their emergencies
under Article 89. These are al1 contained in the publication of the ICAO
Council, in a letter dated 9 December from the ICAO Council. It says:
"Subject: Article 89 of the ChicagoConvention
1have the honour 10 send herewith copies of two cables from Pakistan
dated 3 and 6 December 1971 and a cable dated 3December 1971from
India."
These cables were olaced before the Council with the comment bv the
Secretary-General that the reference to the Convention related, presukably,
to Article 89 of the Convention on International Civil Aviation and that there
was no corresoondine orovision in the International Air Services Transit
Agreement. ~he CO&~I decided to draw up copies of the said cable for
contracting States. The Governments of Pakistan and India had been re-
quested that upon termination of the emergency notice of that fact be sent to
the Council. The cables are. ..
Mr. PALKHIVALA: 1am sorry to interrupt my learned friend, but would
he be kind enounh Io indicate where thisdocumentation is Iobefound because
1do not find itûnywhere in the record. 1am no1ohjecring io it-l only wînt
toreîd iifor myself, itis nowlierc on the record.
hlr. BAKHTIAR: Copies have already been supplied to my learned friend
here and copies have been supplied by the ICAO Council to the Govcrnment
of India and to al1contractinp parties. but, if he objects, 1 will not refer IO
any document and 1will not object to any document rlwt hc hrings hereîfter.
Mr. President, I have subniirtcd that, as Indiî had withdrîwn the emer-
eencv on 10 January 1968.and. whereas in Pakistan the emereency continued
Gntii~ebruary 1969,India considered it necessary to promuigate-the regula-
tion in 1968 so that somerestrictions would be placed on Pakistani planes;
1 have shown to the Court that some instances which are quoted by India
could be covered either under Article 89 or under this regulation as a permis-
sion where routes are conceriied or a permission where overflying was
concerned.
1 have submitted io the honourable Court th31 the Tîshkcnt Declarütion
and lcttcr rxchîngcd heisieen the Primc Minisier of India and thc President
of Pdkistdn îlso confirm that the rreaiics existed in Jdnuîw 1966. India's
claim that on the outbreak of hostilities, on 6 Septemher 1965,ihe Convention
and the treaty were suspended seems incorrect in view of the Tashkent
Declaration, signed by the Prime Minister of India and the President of
Pakistan, who considered these treaties to be existing treaties whicb have to
be implemented.
About the special Agreement which was emphasized by India to have been
an arrangement under which ovedlying was taking place after what they668 ]CAO COUNCIL
called the susoension of the Convention and the Agreement, 1 submit that if
India had in iact entcred into an agreement with ~akistan then it should have
been registered with the United Nations Organi7ation. 1should have pointed
out. and drawn the attention of the Court to Article 102, c..ranr-.h 1.of.the
charter of the United Nations, which lays down:
"Every treaty and every international agreement entered into by any
Memher of the United Nations after the present Charter comes into
force shall as soon as possible he registered with the Secretariat and
published by it."
Then paragraph 2, of Article 102, of the Charter lays down:
"No o.rtv .o anv such treatv or international agreement which has
not been registered in accordaace with the provisions of paragraph 1
of this Article may invoke that treaty or agreement before any organ of
the United Nations.",
-and particularly the principal judicial organ of the United Nations, as this
Court is.
The Chief Counsel for India cannot invoke that there was a special agree-
ment on which he relies. It had to be registered before he could rely on it.
In any case, as 1havesubmitted, it is a question for the Council to deter-
mine whether this is a special agreement or action under Article 89 of the
C~ ~en~ion and calls for interoretation and an~lication.
About matzal breach, 1 su'bmitted this mirLing that this point has been
s~ecificallytaken before this honourable Court and not in the pleading before
the ICAO Council. 1 also submitted an assertion that material breach must,
under international law, be made in good faith; so, good faith becomes a
relevant part of international law for the exercise of this right, and 1 bave
drawn the attention of the Court to the various provisions of the Vienna
Convention on the point.
1have also oointed out to theCourt what the real motive was, on the point
of good faith,-in putting restrictions on Pakistaoi flig'htsto go from one-wing
of the country to the other.
1 submitted and drew the attention of the Court to the fact that material
breach was somethin~ covered bv Article 54 of the Convention which uses
the term "infraction of the convention" and, for that, 1 have drawn to the
attention of the Court that international law, as codified in the Vienna Con-
vention in Article 60. was subiect to the terms of the Treatv itself.
Again 1draw theattentio; of the Cotirt to Article 26 of the Convention,
which makcs it binding on the parties to perform thcir obligations under the
treatv in aood faith. Then 1submitted that the rizhr was not to susoend thc
trea& but to invoke it, the breach, as a ground Tor suspending it, and tbat
has to be done only before an appropriate forum, and if there is no appro-
oriate forum. there is no riaht. there can be no erievance. For the manner and
katter, 1 have made my sibkission hriefly, 1need not go into them again.
And now MI. President, there were one or two points which 1 mentioned
vesterdav: 1 mentioned the Maldive Islands. and 1 have ben informed that
perhapsihe~aldive Islands is not a contracthg Party; however 1was niaking
my suhrnissions on the point that a right is something difierent frum exercise
of that rinht. Iris not reciorocal. 1submitted that the Maldivc Islands hiid no
necessityto fly over ~akistan but that Pakistani planes go there, but 1 will
forget about that, and mayhe take another contractiiig State; 1can take the
example of Australia. Planes of Australia's Quantas fly over Pakistan bu' ARGUMliNT OF MR. BAKHTlAR 669
our planes do not fly there. It does not mean that we have no right to flyover
Australia iust that we are not exercising that riaht at the moment. Similarly.
our fly over Greece, land at ~thens, buttheir planes do not co&e
Pakistan-that does not mean that Greece does not have the right to send a
plane to fly over Pakistan. The right is there, it mabeexercised, but the
fact that the right is not exercised does not mean that the treaty has come to
an end or that it is not in force.
1am grateful to the honourable Court'for the patience with which it has
heard me and 1 conclude my submissions on the arguments submitted by
India.
The Corrrtrose at 12.45p.m. EIGHTH PUBLIC SITTING (30 VI 72,9.30 am.)
,
Present: [Ses Sitting of 19 VI 72.1
REPLY OF MR. PALKHIVALA
CHlEf COUNSEL FOR THE GOVERNMENT OF INDIA
Mr. PALKHIVALA: Before replying to my learned friend, may 1, Mr.
President. firstgive mv answers or make mv submissions on the auestions
or the pointspuïto m< by the honourable ~udges ofthis Court.
First, my submissions on the further points put to me by Judge Sir Gerald
Fitzmaurice:
1. Method and manner adopted by the ICA0 Council in arriving at its
decision. The honourable Judge Sir Gerald Fitzmanrice has been pleased to
put to me two points on ibis question.
It is true that India's Preliminary Objections to Pakistan's Application and
Comnlaint were filed-~n 28 ~ ~ 1971 and ~ ~v were heard at the end of Julv
~Gl.~~owever, although in the-Preliminary 0hjeL:ons. 1"dia had specificall;
raised the point that ithad suspended the treaties in thc cxercisc of ils right
as a sovereign State under a ruie of international Inw dehors the treaties, the
Advisory Opinion of rhis honourahle Cour! in rlie Nunribia case aas not
a\,ailïble ai ihat timc; that Advisory O~inion uas handed doun on 21 June
1971. Consequently, the governments $ho read India's written Preliminary
Objections did not have the opportunity of applying their minds ta the
Advisory Opinion which is an authority directly in point and which supported
India's &a-in the Preliminary ~bjections. HC& the oral arguments inwhich
the Namibia case was discussed and applied were vcry maierial. It is respect-
full. su--csted that a telegram or telephone cal1 froni the delelr~tes to iheir
governments after the oraiarguments could not have been a satisfactory way
of dealing with the far-reaching question arising in the case. The Council
had the responsibility of ensurina that the Preliminatv Objections were
adequatcly weighed and considcredin the light of the ~'~n~ihi~ctseand the
Or31arguments, and this responsibility itfailed to dischargc. In the events that
happened, the oral hearing before the Council became an idle ceremony.
Further, Article 15 (4) of the Councii's Rules provides that "the decision
of the Council shall be rendered at a meeting of the Council calledfor that
purpose which shall be held as soon as practicable after the close of the
proceedings" (Memorial, p. 335, supra). When the earlier meeting of the
Council was held in Vienna, if was merely agreed that the Council would meet
on 27 July 1971 to hear the Parties on the Preliminary Objections, and the
point whether a dccision would be reached was no1 specitically discussed. No
meeting wiu called for the purposc of arriving at a decision. As the President
of the Council himselfsaid in the Council on 28 July 1971. after the hearing
of the oral arguments was concluded:
"That point [Le., whether a decision would be reached] was not
specifically discussed. It was simply agreed that the Council would meet REPLV OF MR. PALKHIVALA 671
on 27 July to hear the parties on the Preliminary Objection. We didn't
say more than that. So perhaps some people thought that we were going
to take a decision and others did not." (Memorial, p. 264, supra, para.
129.)
Thus some governments were no! even aware that a decision would be
taken by the Council on the Preliminary Objections. This fact is relevant to
the queition raised-whether it is possible60 attribute responsibility ta the
Council as such rather than to the individual governments.
Suhject to what is stated herein below, the existence or non-existence of
jurisdictionis an objective question in law, which it is now for this Court to
determine. If this Court thinks that, in law, the Council had no jurisdiction
to entertain Pakistan's Application and Complaint, then the fact that the
Council reached an opposite conclusion by irregular methods clearly be-
comes irrelevant.
But if this Court is not vrevared to hold that the Council had no iuris-
diction, the desir<ihilio., ifnotrhenecessit).. of scnding the c3se back Cothe
Council for reîching a decision on the point of ils own jurisdiciion by the
right manner and method is indicaicd by the following considcration. Article
84 of the Convention confcrs 011 the Council no1 only the ripht but the duty
tu decide in the first instance the qiintion of the Iimiis of ils uwn jurisdicrion.
A proper decision of the Couniil supported by reasons, reflecting the views
of the nations which are parties to the Convention, is contemplated by the
Convention and the Council's Kules as a necessary prelude to a decision by
this Court. If therefore this Court is at al1 inclined to the view that juris-
diction may exist, the doctrine of "strict proof of consent" can be more
safely applied by following the scheme of the Convention and the Council's
Rules and directing that the yarious nations represented on the Council,
which are parties to the treaties and the limits of whose consent is in issue,
should have the opportunity of considering fully the entire case and then
giving a reasoned decision.
II. 1 come now to the second section of Judge Sir Gerald Fitzmaurice's
points put to me. "Substantive international law" is a compendious term
which 1 have used in the submissions made on 23 lune 1972to denote inter-
national law which is the source of titles, powers and rights of sovereign
States dehors the Convention and the Transit Agreement. The only object
of using this compendious term was to designate, clearly and without cir-
cumlocution, the vat field of international law which is unconnected with
anv.q.estion of inter~retina-or an...inn-the two treaties.
I do no1coniend, and iiis not nece5aary for the purpuseof my argument io
contend. ihat ire<ityintcrpretaiion is. to quote the words of the learned Judge
Sir Cierîld Fiizmaurice. "3 sort of subsidiîrv or lower-level international law
not on a par qualiiativcly wiih some kind othigher internaiional Iaw". While
1would not be prepared to deny a superior st3tus tisubstantive international
law, 1do not propose to assert any such superior status since it is not relevant
to my argument.
The distinction which 1 am respectfully submitting for the Court's ac-
ceptance. is the distinction between the field of substantive internationallaw
on the one hand and treaty ir~terpretation or application on the other. 1
submit that the two fields are separate and distin cven if one regards them
as being on a par qualitatively. While the representatives on the Council may be equipped by experience
and training to deal with the general run of questions of interpretation and
application of the treaties, they are not qualified to deal with questions of
substantive international law.
1 now come to the questions put by Judge Petrén:
Judae Petrén has stated: "under Article 84 of the Chicago Convention the
decisions of the ICA0 Council. rigainsr ivhiçh appelils may be brought, are
decisions relaiing to ihe intcrprciation or applicatiori of the Convention."
Indiri's rubmission is as follous: under Ariicle 84 of the Con\,ention, an
appeal lies to this Court from a decision of the Council on an application
filed under Article 84. The decision is not any the less appealable if the
application is asserted, or found, not to relate to interpretation or application
of the Convention. In other words, the maintainability of the application
under Article 84 depends on its dealing with disagreement relating to the
internretation or aoolication of the Convention: but the maintainability of
an a&ÿl under ~ihclc 84 depends merely on adecision being given b; the
Council on the application, regardless of whether the application itself
related to the interpretation or application of the Convention or whether it
did not and was therefore misconceived.
Article 86 of the Convention, which deals with stay of the Council's
decision pending an appeal, has no bearing on the question whether a decision
is appealable or not. That question would have to be decided by reference to
Article 84 only. In cases where the decision of the Council is appealable under
Article 84, the decision, if appealed from, has to be suspended until the
appeal is decided, except in the one case dealt with by the first sentence of
Article 86. The words "any other matter" in Article 86 do refer literally to
anv other matter which is the subiect of a decision of the Council when that
d&ision has heen taken in appeal "riderArticle 84.
The decision of the Council on 3 prelirninary objection as to jurisdiction
is appealable uiider Ariiclc 84, and, therefore, that deçision would be sus-
pended under Article 86 until the appesl is decided-see paragraphs 4 lh)
and Ir) of ihe Working Paper presented by the Secretary-General of ICAO,
in India's Re..v. .a-e449. SIID~U.A decision of the Council merelv admiitinc
or rejecting an application to.file evidcnre may no1 be an appealable desision
under Alticle 84, and in that case the question of slay under Article86 would
not arise.
hlay 1 now come to the questions put to me by Judge Onyeama:
In Article84 of the Convention. the müterial words are the following:
"If anv disaareement ... relatinrr to the interoretatioor aonlication
of this convention ... cannot be settled by negotiation, it shafi, on the
application of any State concerned in the disagreement, be decided by
the Council ... Any contracting State may ... appeal from the decision
of the Council ... to the Permanent Court of International Justice."
Inthe context ofthe point made by the Chief Counsel of Pakistan regarding
the competence of the appeal now before the Court, my submissions on the
above-quoted words are as follows:
(1) The disagreement must relate to interpretation or application of the
Convention and it must be such that it cannot be settled by negotiation.
(2) Such a disagreement, when it is made the subject-matter of an Applica-
tion, shallbe decided by the Council.
(3) Once an Application is made by a State to the Council on theground that
there is disagreement relatingtointerpretation or application, a prelimi-mission, are relevant to the question of evidence regarding the limits of the
Councii's jurisdiction:
(a) The exclusion of the Council's jurisdiciion in cases of suspension or
termination is noi a marrer of inference bur is explicit on a proper con-
srruciion of ihc iurisdicrional \iords "intcr~retation" and "annlication".
and on the well-settled distinction between.those words on tl;e one band
and termination or suspension on the other.
(bl The burden of roof is on Pakistan. since the Pürtv invokina the Coun-
, , cil'sjurisdiction has to give strict proof of consent. -
. . There is overwhelming evidence of the reluctance of nations to submit
to the compulsory jurisdiction of this Court, or any other tribunal,
disputes as to the exercise of their right under international law as
sovereign States to suspend or terminate treaties.
.d, The verv first session of the ICA0 Assemblv ex~ressly recognized that
the original concept of submitting al1disputes to the ~ounc3 had been
abandoned and a limited jurisdiction was given to the Council under the
Convention (Memorial, para. 81, pp. 51,52, supra).
1 have finished. Mr. President. with the answers to the auestions out hv
this honourable court.
May 1 now come to my learned friend's argument, which he advanced
with great skill and commendable brevity. At the outset my learned friend
has heen kind enough ta credit me with "courage ta advise" this honourable
Court ta reject the principles of international law and "keep the principles
of expediency in mind". 1 must be a singularly inarticulate person if 1 have
failed to make clear my basic point that this Court will be pleased to apply
well-settled principles of international law to the point in issue, and with
that abject 1 thought that 1had given a fairly reasoned argument for accep-
tance at the hands of this Court.
My learned friend has stated also, at the commencement of his argument:
"Before the Council, the words 'material hreach' werenot mentioned" (p. 625,
supra).
Now, this is incorrect. 1 will not multiply references to what was stated
before the Council, but just to satisfy the Court that the point of material
breach was specifically argued in terms on behalf of India, 1 would draw
attention to India's Memorial, page 147, supra, paragraph 21. This paragraph
deals with India having exercised ifs right under international law to suspend
the treaties on the ground of material breach and what is argued before the
Council is that this right of India is supported by the decision of this Court.
The words of paragraph 21 areas follows:
"The second proposition laid down hy the World Court is that if one
State which is a party to an international treaty commits a material
hreach of the treaty, the other party is not hound ta sit idle, wring its
hands and Say'Will you kindly be good enough to observeyour obliga-
tions'."
Then on page 149in India's Memorial the very fint line, in paragraph 25,
on page 149:
"In other words, the World Court says [I should have said the Inter-
national Court of Justicesays] that even apart from the Vienna Conven-
t~on o~--.69. everv State has an inherent rieht. as a matter of customarv
international law, ta terminate an agreement if another State has com-
mitted a breach of it. 'In the linht of these rules, only a material breach
of a treaty justifies termination.. .'" REPLY OF MR. FALKHIVALA 675
~t~=ae-~151..o~ b~ ~lf of India. we cite the areument of the United States
counsel in his oral pleadings. The Uniied States counsel is givingïn answer
to the question put to him by Judae Sir Gerald Fitzmaurice, and on page 151
India quotes bëfore the ~GunciÏthe written answer of the ~nited States
counsel which starts with the words "The doctrine of material breach as a
basis of terminating a contract ...".
And. finall,. on .a-e 153 India olaces before the Council the verv Article
of theIienna Convention which deals with termination or suspension on
account of material breach, and that is Article 60 of the Vienna Convention.
It is in paragraph 37 on page 153.
The fact that Pakistan's conduct amounted to material breach of the
Convention and the Transit Agreement is stated, no doubt in a dignified
manner, but also in a manner which leaves no doubt that India regarded the
conduct of Pakistan as sufficiently reprehensible to justify suspension of the
treaties. That is on page 102,sipro, of India's Memorial, the last sentence of
paragraph 8:
"The Government of India also fortbwith susoended the overflight of
its own aircraft over Pakistan's territory in view of the preseni and
imminent danger ta civil aviation created by the conduct of Pakistan."
And then on page 105, paragraph 24, third line, referring ta Pakistan:
"That country has showri no regard for the most elementary iiotions
of safety in civii aviation, and hasmade it impossible for India ta enjoy
its rights under the Convention, and its privileges under the Transit
Agreement, over Pakistan territory. Pakistan's theoretically permitting
Indian aircraft to overfly Pakistan is, in the context of the facts stated
above, a mockery of the principles underlying, and the provisions em-
bodied in. the Convention and the Transit Agreement. In the circum-
rtances, the Government of India submit rh~tthéyhadcompletejustifica-
tiiin for icrminaiing or suspend~ngthe Convention as regards overflying
and the Transit Agreement vis-à-vis Pakistan."
If this is not alleging material breach, 1 do not know what words India
should have used to convey that idea.
Now. mv learned friend has soent considerable time in attempting to
satisfy lhe couri that the ïppeal is;ncompetent and the Court should dismiss
the appesl on the grciund that the rippexl is not maintsinable. 1 have three
oreliminary obicctions to ms lc~rned friend raisina the point al aII. 1did not
kant to interruPt him when he was arguing and that is why 1thought 1would
deal with the matter when it came to my turn to reply.
The first ground on which 1 abject ta this argument being at al1 urged
before the Court is that it is in violation of Rule62 of the Rules of Court.
The second ground of my objection is that this point is not taken, so far
as the Aoolication before the Council is concerned as distinct from the
cnmplai"t;in the Counter-Memorial or in the Rejoinder of Pakistan.
And my third ground of objection is that no respondent can be allowed to
take up such a ground, even on iordinary principles of natural justice and fair
play, after the entire argument of the appellant on the merits of the appeal is
finished.
1shall deal with these three points in order.
First, the Rules of Court: the relevant Article in the Rules of Court is
Article 62:
"1. A preliminary objection must be filed [Mr. President, 1 an1sure you will be good enough to note the word 'must'] by a party at the latest
before the expiry of the time-limit fixed for the delivery of its first
pleading.
2. The preliminary objection shall set out the facts and the law on
which the obiection is hased. the submissions and a list ~ ~~ ~~ ~ ~ ~ ~ ~~~~~-
in support; ihese documents shall be attached; it shall mention any
evidence which the party may desire to produce.
3. Uoon receiot.bv t.e Recistrar of a Dreliminarv obiection filed bv
a party; the proceedings on thémerits shai he suspendedsand the COU;;,
or the President if the Court is not Sitting, shall fix the time-limit within
which the other party may present a written statement of its observations
and siibmissions; documents in support shall be attached and evidence
it is proposed to produce shall be mentioned.
4. Unless otherwise decided by the Court, the further proceedings
shall be oral.
5. After hearing the parties the Court shall give its decision on the
ohjection or shall join the ohjection to the merits. If the Court overrules
the ohjection or joins it to the merits, it shall once more fix time-limits
for the further proceedings."
Four points emerge from Article 62. First, it is mandatory for a party
ohjecting to the jurisdiction of the Court to file the preliminary objections at
the latest hefore the expiry of the time-limit fixed for the delivery of its first
pleading. Second, there have to be written suhmissions and facts and law
should be properly set out in the pleading, which may he called a special
pleading, which has to be placed hefore the Court aiid given to the other side
before the preliminary objection can at al1 he heard. Third, the proceedings
on the merits shall be suspended; in other words, the concept of the Court
hearing the argument on merits first and then a party raising the point as to
jurisdiction, is directly contrary to Article 61 which requires that the pro-
ceedings on the merits of the appeal shall be suspended. Fourth, the Court
has to give its decision on the ohjection, or decide that the objection to the
Court'sjurisdiction shall hejoined to the merits of the appeal. This procedure
hasnot been complied with at all.
My second ohjection is tbat neither in the Counter-Memorial nor in the
Reply did my learned friend object to the jurisdiction of this Court so far as
his Application before the Council is concerned. Without reading what he
has set out in bis Counter-Memorial. may 1give references to the relevant
passages there. Pakistan's Counter-Memorial, page 379, supra, paragraphs 23,
24 and 25 deal with the question of the jurisdiction of this Court. Pakistan
has there araued that Article 36 (2) of the Statute of the Court is not aoolic-
able here. I have never suggested ihat Arriçle 36(2) is applicable. In parag;aph
25, il is siaied rhai the appeal againsr the Complaint is incomperenr and no1
maintainahle. There is nothing said about theappeal heing incompetent or
not maintainable so far as Pakistan's Application hefore the Council is
concerned.
In Pakistan's Rejoinder, page 472, supra. the relevant paragraphs are 36
and 37. Even when India, in its Reply, specifically pointed out that the Court
hasjurisdiction to deal with the appeal under Article 36 (1) of the Statute of
the Court, whicb extends the Court's jurisdiction to "al1 matters specially
provided for. ..in treaties and conventions in force" and India categorically
says that the Convention and the Transit Agreement are in force, in the
Rejoinder Pakistan does not suggest that this argument is misconceived and REPLY OF MR. PALKHIVALA 677
that an appeal does not lie under Article 36 (1) of the Statute of the Court.
There are various assertions in Pakistan's Rejoinder, e.g., paragraphs 36
and 37, where Pakistan chooses to Say: India now contends, India now
concedes. 1 do not know how the use of the word "now" is justified. The
stand of India has been exactly the same al1along, and the word "now" is
misleading in the context where it is used. It erroneously suggests that India
is saying something now, which it has never said before, whereas the truth is
exactly the contrary.
My third point is self-explanatory, On rules of natural justice, as a matter
of elementary norms of fairness in procedure, no party can be allowed to let
a whole argument go on on merits, and when that argument is over, decide
for itself whether it wants to obiect to the iurisdiction of the Court or not.
1 now come to the other aspect of thismatter. If the Court is pleased tu
rule out this objection as to the maintainability of the appeal, 1have nothing
more to say; but in case the Court wants <O go into the question of thé
maintainability of the appeal, 1 shall deal with the three points which my
learned friend has raised on the inerits of this particular issue.
His first ooint has been that the Convention and the Transit Agreement.
having reg&d to India's pleadings and oral arguments, should be ïreated as
treaties not in force for the puruose of Article 36of the Statuteof the Court.
Pakistan's second pointis that no decision purely on the issue of juris-
diction is appealable under Article 84 of the Convention, and it is only the
one and final decision on an application which is appealable under that
Art~cl~ ~f~ ~~ ~ ~--~tion.
My learned friend's third point is that the Council has the competence to
decide the limits of its own jurisdiction, and the Council's decision is final
onthe point.
1shall deal with these three points in order.
First, my learned friend says that the correct construction of Article 36 of
the Statute of the Court is that, if India asserts that the Treaty has been
suspended it must be regarded as a treaty not in force and therefore an appeal
does not lie under Article 36, paragraph 1.
There are four answers to thisnoint of mv learned friend. fa) A multilateral
treaty is in force, even if it is suspended orierminated as hetwéensome of the
parties to the treaty. (b) Assuming the treaty has to be in force as between
ihe oarties~ ~~ ~e ~ ~ ~te. the true-test is whether it is in force accordine to
the Party which sought the decision appealed from. (c) Where the appeil is
from a decision of an authority constituted under the treaty the real test is.
would the decision appealed from he in force unless reversed in appeal?
(d) The words "in force" cannot be invoked to defeat a point regarding
termination or suspension arising on the merits of the appeal or to render
the appeal incompetent in such a case. 1think each of these four points needs
a little explanation.
(a) When there is a multilateral treaty, the existence of the treaty, its
continuatio~ ~ ~~ ~ ~~ must be recoenised. reeardless of the ouestion whether
- ,
it is in force as between two or more parties out of the several parties to the
treaty. In short. the existence of a multilateral treaty or the fact of the multi-
lateral treatv beine in force. is not denendent uoon whether it is in force as
between thitwo Parties to the ~ppeal'before théCourt.
(6) Assuming against myself that the words "in force" are to be applied as
between the twonarties who are the Parties to the Anneal before the Court.
then the real test;s whether the treaty is in force accoiding to the party who
sought the decision appealed from, because otherwise it makes nonsense ofthe rinht of anneal. Just consider how it will work out in nractice: mv learned
friendgoes tÔ.; tribunal; 1 tell the tribunal: you cannot'deal with it becausi
the treaty has been suspended; then my learned friend puts me on the horns
of a dilemma-he tells me: "either you accept the position that the treaty is
in force, in which event your whole argument before the Council, and in this
appeal, goes by the board, or you say the treaty is not in force, in which event
your anneal becomes incomnetent." If this was the idea of draftine Artic-e
36, pÿ;air<iph 1, it wris perhaps more in jest rrither than ar a inatter of the
carne\[ desire of the nlitions to ha\c adjudication 31 the hands of rhis Court;
and 1 take it that the nations were not trying merely to enliven international
proceedings by putting something in the Article which would negative the
right of appeal where the right is most needed.
(c) The real test in this appeal is: would the decision of the Councilremain
in force unless it was reversed in appeal? Now this is a good test of deciding
whether the requirement of Article 36 (1) is satisfied. Suppose 1 did not
succeed in this An~eal: would or would not the decision of the Council
remain in force? 1t would. The confusion arises because the fourth point, to
which 1come directly, is not borne in mind in applying the words "in force"
in Article 36, paragraph 1.
(d) The words "in force" cannot be invoked to defeat a point regarding
termination or suspension arising on the merits of the appeal or to defeat
the a~neal itself on the ground that it is incomnetent. What mv learned
friend Says is that the words "in force" must eithër defeat me onmerits O:
defeat me on the preliminary point as tu the maintainability of the appeal. 1
say that it makes no sense of~rticle 36, paragrapb 1. .lusi let me Sve one
simple example to illustrate what 1 am saying. Two nations-nation A and
nation B-have a bilateral treaty, and the treaty provides that any dispute
nertainine to the treatv (includine disnutes as to termination. etc.. either
ëxpressly-stated or impiied) shall Gedecided by this Court. ~ation A teri:
nates the bilateral treaty. Nation B is aggrieved and comes before the Court
and says: this treaty has been terminated wrongly. 1 accept that the treaty
ha been terminated, 1 accept the fact of termination, 1 accept it is not in
force, but 1 say it has been wrongly done. Will this Court have jurisdiction,
or will the wrong-doing Stateput the otiier State onthe horns of a dilemma:
either admit that the treaty isin force or let your appeal be dismissed? How
will it work in practice? This Court has considered a number of cases of
termination, where the issue of termination has been within the competence
of the Court. Thus the point is that the words "in force" cannot be used to
defeat a point on the merits of the appeal. In the hypothetical case of the
bilateral treaty which 1 took, the issue of termination was on the merits of the
appeal. In Our present case, the issue of suspension is on the merits of the
appeal. A treaty may have beeu terminated or suspended, and the factum of
termination or susnension. the leealitv or iustification for termination or
suspension. may bc'on the merits oTthe.appesl. Now, when it is on the mer&
of rhc appc31, it i.;impossible to shut out ihe merits by sïsing thrii sincc you
have came in anneal. and vuu sav that the treatv ii in-force. vou c.n.ot ~~
argue that ilha; been terniiÏnaied Ôr suspended; and itis equtlly impo>sible
to haw the ;ippenl dismissed on thcpreliminaryeround that the treary is not
in force. 1 submit this is the onlv wav in which this narticular naraeranh of
. . - . ~-
Article 36 can be reasonably construed. ~therwise; in a nuiber of cases
where this Court is given the power to deal with disputes as to termination, it
can never deal with the dispute.
That finishes the first point of my learned friend on themaintainability of REPLY OF MR. PALKHIVALA 679
the appeal. This point, of course, as 1 have already said, is nowhere in the
Counter-Memorial or Rejoinder; there are no written submissions; but 1 have
still dealt witli it i~.,enl~to .v learned friend's oral -reuments-cnntrarv to
the Rules 3s 1have xlrcady pointcd out.
1come tu the second point of my learncd fricnd on the question of non-
maintainabilitv of the anneil. He sdvs that. under Article 84 uf the Con\,cn-
tinn, it is onl; one deci$on which ;an be'the subject-matter of an appeal.
This point, again, is nowhere in the pleadings, but 1 shall nevertheless deal
with it.
Article 84 has no such limitation at all. Suppose an application deals with
three distinct disputes as to interpretation or application, and the Council
chooses to decide each dispute at separate sessions, and give separate deci-
sions; will there he three appeals or not? Or should a party wait until the
decision on the third issue is given, which is unconnected with the kt issue?
Can the aggrieved party come or not come each time a decision is given?
Where does one get the concept of the oneness of the decision which is
aoolicable. What is there in Article 84 which suggests that you cannot have
more than one appealable decision on the sameapplication? There are no
such restrictive words restricting the right of appeal to only one decision on
an application.
Now let me deal with the second point which my learned friend hinted at
in his oral arguments, and which 1 find Judge Onyeama has specifically
referred to in the questions put to me. That point is this: in order that a
d~ ~ ~~n under Artic~ ~ ~ ~av he maintainahle. is it necessarv that the
decisioo must be on that disagreement which has been the suhject-matter of
negotiations for settlement? 1 have given a reply to this in the answer to the
h&ourahle Judge, and therefore 1shall not repeat the precise argument in
detail again.
It is sufficient to say that the iwo parts of Article 84-the first part which
says in what cases an application will lie, and the second part which says in
what cases an appeal will lie tn this Court-are nnt interconnected in this
manner, so as to bring the concept of negotiations for a settlement into the
question of the maintainability of the appeal. The two are quite distinct; if
1may read Article 84:
."If [there is] any disagreement .. . relating to the interpretation or
application of this Convention ... [and that disagreement] . ..cannot
be settled by negotiation, it sha... he decided by the Council ... [on an
application]."
The matter is finished. Then:
" Any contracting State may, ... appeal from the decision of the
Council [that is, on the application. What is appealable is the decision
of the Council on the application, and there is no further requirementl."
But assume the other view, which 1respectfully submit is erroneous, were
to be held against me, and assuine someone were to say that, in order that
the appeal may be maintainable, the decision appealed from must deal with
a disaereement as to interoretation or anolication of the Convention which
cannoïbe settled hy negothion. Even then 1 am right, hecause here is a clear
dispute between India and Pakistan as to the interpretation of the juris-
dictional words. "internretation or aoolication": and there is no douht that it
cannot be settlédby negotiation. If itcould havéheen settled by negotiation,
the Court would not have heen trnubled with this case. That it cannot hesettled by negotiation is almost axiomatic in the light of the allegations you
have seen and heard.That it is a disagreement as to interpretation or applica-
tion is self-evident, because Pakistan puts one interpretation on the words
"interpretation or application", and 1 put another. The reason why this
Court will interfere is that these words "interoretation or aoolication" are
jurisdiction~l words, and by a wrong interpretation the Ckuncil wnnot
enlarge the field of its 0u.n jurisdiction So this honourablc Court will siep in
and orevent a wroneful exercise of iurisdiction on an erroneous construction
of the u,ords "intcr~rctation or appiication".
Now what issuggested against me is this: is it therefore the position under
Article 84 that a,iv decision of the Council is a..ealublc'! If the decision is Io
grant or refuse an adjournment, to admit or reject evidence, if a decision is
given that the case will begin tomorrow at ten o'clock; are these decisions
appealable? Or a decision is given, let the parties try to negotiate, which is
Article 6 of the Rules of the Council (Memorial, p. 332,supra):
"(1) Upon the filing of the counter-memorial by the respondent, the
Council shall decide whether at this stage the parties should be invited
to enter into direct negotiations as provided in Article 14."
Now what is out to me is. and that is mv learned friend's araument in his
oral pleadings-am 1suegesting that al1th& dccisions arc app&lablc? Well,
my answer is vîry simple-the Court knows ivhere tu draw the linc. and it is
clear where the l&e has to be drawn. 1submit. in order that a decision mav be
appelilable under Article 84, the decision m"st bc on an issue arising in-ihe
application. The issue before the Court is,and before the Council $vas,-What
is the construction of the words "interpretation or application"? Only one
issue arose on Pakistan's application, so far as the preliminary objections are
concerned: did the Council have jurisdiction? This was an issue in the
aoolication. It is an issue on which the Rules of the Council orovide for
sp&ial pleadings; it is an issue on which the Rules of the ~ouncil provide
for a separate special hearing. Can you equate this issue with adjouroment or
other such matters? It is an issue on which the Rules orovide for a decision
restricted to this particular issue. All this is provided for as a matter of the
adjudication process; th;$is a matter on which there has been an adjudication.
When you decide to grant adjournment or not to grant it, permit evidence to
be led or not, you are not adjudicating on an issue in the case. Here there is
an adjudication on an issue which arose directly between the Parties. The
Rules put this beyond doubt. Article 5 of the Rules for the Settlement of
Diferences of the Council, in India's Memorial, page 331, supra, which my
learned friend also referred to:
"Preliminary Objecrion and Action Thereon
(1) If the respondent questions the jurisdiction of the Council to
handle the matter presented by the applicant, he shall file a preliminary
objection setting out the basis of the objection.
[So there isa regular pleading.]
(2) Such preliminary objection shall be filed in a special pleading at
the latest before the expiry of the time-limit set for delivery of the
counter-memorial.
(3) Upon a preliminary objection being filed, the proceedings on the
merits shall be suspended and ...
(4) If a preliminary objection has been filed, the Council, after hearing REPLY OF MR. PALKHIVALA 681
the parties, shall decide the question [mark the words] as a prelhinary
issue hefore any further steps are taken under these Rules."
It is an issue arising on the application, so the decision is on an issue. There
can be three issues in an application, and those three issues may he decided
by three different, separate orders-each order is appealahle. This issue is not
only one arising in the application itself, but it is an issue which goes to the
root of the whole matter. Imagine a Gilbertian situation, where an issue
which does not go to the root of the matter is appealable, but if it goes to the
root of the matter, 1 have no right of appeal. Jurisdiction goes to the root of
the matter as no other issue will.
My learned friend said in his oral pleadings (supra, p. 626) that if the
parties are allowed to come to this Court, it would waste time. It will not
waste any time. Suppose 1 have to wait until the merits are decided hy the
Council, and then 1 come ta this Court challenging the decision on both
jurisdiction and merits, how will it Save time? The point is that, on the
contrary, the time would be wasted hy going into merits hefore a Council
which mav ultimatelv be found to have no iurisdiction at all. You never Save
time by pérmitting ;council ta go on with a matter where its jurisdiction is
in doubt-the way ta save time is to have a preliminary objection to its
iurisdiction. That is whv Rules of al1courts orovide for a nreliminarv hearing
on the issue as to its ju~isdictioii, because that is the wai ta Savetirne. ~h;
did this Court provide in its own Rules that the question of the Court's
jurisdiction will be decided as a preliminary issue? To Savetime.
Suppose on this very Application of my learnedfriend and on my prelim-
inary objections, the Council had dismissed the Application on the ground
that it had no iurisdiction: accord in^ to mv learned friend could he nnt
~ - - ~ -~~~ ~ ~ ~ -
appeal against it because it did not deal with the merits? What would happen
in that case? If an order upholding the challenge to jurisdiction is appealahle,
is it conceivable that an order noi upholding the challenge ta jurisdiction is
non-appealable?
My learnedfriend next says that Article 5 deals with preliminary objections
and the decision on the preliminary objection as ta the Council's jurisdiction
is under Article 5, not under Article 15, of the Rules of the Council. The
answer is that Articles 5 and 15 are not mutually exclusive. If the Council
gives its decision under Article 5 on the preliminary objection as ta its own
jurisdiction, it has got to comply with the requirements of Article 15.1 have
only to read Article 15 to sho\i, that it could not be any other way. May 1
read Article 15, which is in India's Memorial, page 334, supra: "Decision:
After hearing arguments, or afler consideration of the report of the Com-
mittee, as the case may be, the Council shall render its decision."
The Court will have marked the words in Article 5.clause 4. that "the
Council has ta decide the question as a preliminary issue3'-the word "decide"
is suecifically used in Article 5. Various requirements for a decision are set
oucin ~rticle 15.
If to a decision on theissue ofjurisdiction, Article 15 does not apply, look
at the consequences.
First, the decision on jurisdiction need not he in writing. Secondly, thedate
on which it is delivered need not he mentioned. The list of Memhers of the
Council participating, names of the parties and of their Agents, summary
of the proceedings, al1these need not be there. The conclusion of the Council,
together with its reasons, my learned friend says, need not be there. The
decision, if any, in regard to costs, need not be there. A statement of the682 ICAO COUNCIL
voting in Council showing whether the conclusions were unanimous or by a
majority vote, and, if by a majority, giving the number of Members of the
~ouncil who voted in favour of the conclusion and the numher of those who
voted against or abstained-al1 these need not be there.
Can tbis Court read Rule 15 as no1applicable to a decision on a preliminary
objection as to jurisdiction? Can the Council function without complying
with Article 15?
The provision of Article 15, which, according to my learned friend, does
not apply to the decision on jurisdiction, is: "Any Memher of the Council
who voted against the majority opinion may have its views recorded in the
form of a dissenting opinion which shall be attached ta the decision of the
Council." 1s it suggested that on the most important point, namely juris-
diction, a Memher cannot write a dissenting opinion?
Then the next one: "The decision of the Council shall berendered at a
meetine of the Council called for that nuru. .." Canthe ~ ~ 7~~~~ of .urisdi~ ~~n~
he decidcd xt i rncering u,hich is ,>orcîllcd for ihüi piirposc?
And the final one: "So .\lr.nibcr of the Couniil shill vote in the conhidera-
tion by the Council of any dispute to which it is a party." There was no
voting hy India on the preliminary objection. If Article 15 did not apply,
India could have voted on the preliminary objection which is its own objec-
tion.
Now, if it is clear that every single one of these requirements of Article 15
does apply, why no: the requirement about the giving of reasons for the
decision? Everv one of these reauirements must anulv. on ..v ..asonable ~ ~ ~
reading of ~rticle 15, to a decisioh which is given on a preliminary objection
under Article 5. In other words, the preliminary objection is under Article
5, and under Article 5 that decision will have to be given; but whether a
decision is on merits or whether it is on the preliminary objection under
Article 5, the procedure and the requirements are the same, and they are in
Article 15.
Then, my learned friend says the word used in Article 84 of the Convention
is "decision" and not "decisions"-it is not in the plural. 1 think it would be
impertinent on my part even ta mention to this Court that singnlar includes
the plural. 1caunot recall a right of appeal heing given against decisionsin the
plural.
My learnedfriend saysArticle 5is a self-contained code. 1 have pointed out
that it could not possibly be a self-contained code hecause, otherwise, it can
be an oral decision without any formalities whatever, which are al1required
under Article 15.
In short, the decision has to be under Article 5, read with Article 15, and
that decision is as much appealable as any other decision on an issue arising
in the aoolication.
~hen'my learned friend says the Council did not givereasons because they
knew that the decision is not appealable. Thetruth is exactly the contrary-
the tribunal knew and realized that the decision wasappealable, and that is
on the record. In fact nobody thought it non-appealable until the oral argu-
ment of Pakistan hegan.
In India's Memorial, page 273, supra, on the preliminary Point as to juris-
diction the learned President of the Council himself says in the last sentence
of paragraph 19, "1 imagine also that if the decision of the Council on this
question was contested, there is always a superior body to which India could
apply".
There is no douhtas to which the "superior body" is. REPLY OF MR. PALKHIVALA 683
Please turn to India's Reply, page 454, supra. The President of the Council
says in June 1971:
"When we started this case in Montreal two months ago, 1 think 1
said that the legül opinion u.ïs ihdt as ituai a ca>cthür mi&[ cvrntually
go to sn üurhi)rity uiitside IC'AO-for instance, thc Intern~tional Court of
Justice-it was necessary throughout the proceedings to take decisions
by the majority required under the Convention ..."
The Council had a working paper preparedon the question as to whether
an ap~eal would lie from a preliminary decision on jurisdiction. The working
~a&rurenared bv the ~ecretarv-~eneral of ICAO Ünreservedlv savs that the
&ht 8f appeal does exist, and that is also in India's ~e~li; the relevant
passage is at page 449, supra:
"(b) 'decisions of the Council' [from which appeals lie]: Thereare no
qualifying words which would exclude any particular class of decision.
The legislative history of Article 86 reveals no such distinction."
Then there is ï footnote: "t'or exïniple, the dccision mdy hc one iflirniing or
ncgdting the jurisdlction of the Council in i particul3r nidtter."
So, far from my le~rnedfricn~'.;icinjccture being right --that the Council
&iveno rcüsons bccause it thouglit the decision is not üppcïlïblc-the positive
evidenic is th31 the Coiin;il kneu thüi the decision is ïppeslahlc; the Presi-
dent has said it in so manv words before the final decision. as I have alreadv
pointed out.
In the working paper, on page 449 of India's Reply, after the statement that
a decision on the issue of jurisdiction will he appealahie, clause (cj is also
relevant, regarding Article 86 of the Convention:
" 'Shall, if appealed from, he suspended until the appeal is decided':
The words 'if appealed from' denote a fact, namely whether or not an
appealhas been filed. The words 'shall ... be suspended' are imperative,
so that the Council's decision isipsofacto suspended during the pendency
of the appeal. The decision appealed from would confer no right on
any of the parties to the dispute and would not be given effect, during the
pendency of the appeal, nainely 'until the appeal is decided'."
Now the point is that none of these various Articles-Articles 84 and 86 of
the Convention, or Articles 5 and 15of the Rules-help my learned friend in
his araument that the ICAO Coiincil's decision is not appealable. The ICAO
~ouncil itself regtard\ it 3s appedlablc.
F~nilly, my learnçd fricnd sdy5 a decision on juri\di~.tion is no1 iidecirion.
Considcr thr decision of this hoiiourïhlc Court in the SorirhIj'esl Alrira edre
of 1962 purely on jurisdiction. Would anyone say it was not a decision? If
that decision had been given by nlower authority, could it be said that it was
not a decision on the Applications filed? To say that a decision on a point
which goes to the root of the matter is not appealable is really to negative
virtually the right of appeal.
. .
The Court adjocirnedfrom II to 11.25 a.m.
1 come now, MI. ~residént,-to the third and last gound advanced hy my
learned friend in support of his proposition that the appeal is not maintain-
able. His point is that the Council has the right to decide its own jurisdiction
and decide it finally. . . .. ,, On that proposition, my learned friend has cited certain cases and text-
books. May 1 request the Court ta he good enough to make a distinction
between three propositions, because otherwise one tends to confuse the real
issue. The first is-which is a proposition 1 accept-that the Council has the
right in the first instance to decide whether it has jurisdiction. The second
proposition. which 1 deny. is that the Council has the right to decide the
question ofits ownjurisdiction finally. And the third proposition is that the
Council's decision as to jurisdiction can he corrected on appeal: it is linked
up with the second proposition.
My submission is that no,case and no textbook has ever suggested that
when the decision of an authority or a tribunal is subject ta appeal, the
authority or the tribunal still has the right to decide the question of its own
jurisdiction finally. My learned friend does suggest it in his oral pleadings.
1submit that the proposition is untenable.
Pakistan cited from Rosenne's book The Law and Practice of the Inter-
national Court, Volume 1, pages 438 to 441. Without reading the relevant
passages there, if 1may just summarizewhat the learned author says, because
the position is fairly clear. First, the learned author is dealing with the juris-
diction of this honourable Court. The Court has held that, even apart from
Article 36, paragraph 6, of the Statute of the Court, any decision given by the
Court as ta its own jurisdiction is final. 1 accept that proposition. The
orinci.le t--t this Court has the iurisdiction to decide for itself finallv what the
iimits of its own jurisdiction are, has heen given statutory form in Article 36,
Daragra~h 6. of the Statute, but that is only a statutory recognition of a
~riniioli wh~ ~ ~oul~.~e~.~ a~art from the statute. orevail.
..
Non, ili\ a far cry from that proposition, which applies io ihis Court, ta the
jurisdiition of an authority or irihunal which is subordinatc to ihc Court and
whoic dciisions are subject to appeal ts thz Court.
The cacc iihich my Içarneil friend citcd, the Norrel~olimcase. I.C.J. Reporn
1953...ag- 113.does noi deîl with a tribunal like theCouncil. u,hosc ilcrisions
ar-~s~~ ~>~.... a~ ~ .~~~.
In short, without elaborating this point, may 1just place before the Court
three ~oints. First. that the Council is not in the ~osition of an arhitrator.
whose award is nbt subject ta appeal. 1 mention-this hecause my learned
friend has cited cases which deal with arbitrators appointed to determine
international disputes wbere their decisions are not subject ta appeal. Those
decisions, and the principles laid down there, have no application here.
Secondly, the Council, if 1 may say so with respect to the Court, is not the
International Court of Justice. To try to apply to it the principles which
apply to this Court is, perhaps, fair to neither institution. Thirdly, the
Council is, as I have already suhmitted, essentially an administrative body
invested with certain judicial or quasi-judicial functions.
1 think the position regarding the Council's decision as to its own juris-
diction being subject to reversal hy this Court on appeal is sa clear that I
would be content with citing only one authority, if even one authority is
needed in support of that proposition-Shihata's book on The Power of the
International Court fo Determine its own Jnrisdiction, page 68, last para-
graph :
"ThePower is Relative-Effect of the Excessive Exercise of the Power
- ' The power of international tribunals to determine their own juris-
. diction has, since it was first alleged to exist, been conceived as subject
to limitations that stem fromthe judicial nature of the tribunal and from REPLY OF MR. PALKHIVALA 685
the instruments that enable it to handle the dispute. The rule of the
compdrence de la compérerlcehas, therefore, heen always subject, in
theory, to another rule according to which a tribunal's decision becomes
nuIl if reached as a result of an excessiveexercise of jurisdiction."
If the law were otherwise, the words limiting the jurisdiction of the Council
would be meaningless and the Council can decide for itself whether it will
ahide by the limits on its own jurisdiction or ignore them. This cannot
possibly be the construction of the Convention.
Now my learned friend has made a separate point, which is an additional
point regarding the maintainability of my appeal pertaining to the Complaint
as distinct from the Application before the Council. On that point 1 have
given an answer to the question put to me hy Judge Jiménezde Aréchaga, and
1 would request the Court to regard my answer given there as a part of my
reply to Pakistan on this point.
But may 1 state, in addition to what 1 have alreadv said in reolv to the
learned JU-dgeon this particular point, something which strikes ie.as very
relevant. If the subject-matter of the Complaint is one which involves nothing
but a question of interuretation or aoolication of the Transit Agreement on
ihe co"iplain~nt's ua.n'casç. the right of appeal cannot bc dcfe.iÏe~ or nega-
ii\,cd by the form of the prucredings adopted.
This, Isubmit, i\ an impori3nt point \ishiih dircctly arisr., for considcrïiinn
in ihe Iight of the greït eniphajis put by ms learned friend on this issue of
the deiisiùn on the Cornplaini heing ,)ne \ihich caiinoi bc the suhjeii-mattcr
of aooeal. Let me aive a concrete examole to illustrate what 1 am trvina to
say.'~he cornplaini can only be under ihe Transit Agreement, it cannoi he
under the Convention. Now according to the party itself, that is, Pakistan,
the question-1 am presenting their case, 1 do not accept it but it is their
case-the question involves a disagreement as to the interpretation or
application of the Transit Agreement. They make it the subject-matter of an
Application under the Transit Agreement; almost word for word it is made
the subject-matter of a separate Complaint.
Now the point at issue is this: is it the form of the proceedings which
determines the right of aoueal. or is it the substance of the dispute?If it is the
forni of thc proceedingr; it \iould bc so es). io defedi the right of ippeal to
this Coiiri. All thai ?ou uould hïve icdi, is. even when on )oiir utin 3rrcrrion
the question is one of application or interpretation of the Transit Agreement,
not file an application, put it iri the form of a complaint, and any decision
given is then not subject to appeal.
The subject-matter is word for word the same, the facts are the same, the
submissions. contentions. ~.areuments are the same-evervthina - ~- t~e same:
the relief s4ght practically word for word the same. ~;t the party says-1
have out it in theform of a complaint. Now my point is that what determines
ihc rliht of appe31 ir no1 the label \\hich :s s;richcd 10 the procccdings. A
vcry important r~ght,likc the rifht 0fappea1 10 this Court canner br dcfcaiid
by putting the label "complaint".
1 am takine a cas~-~here~ ~ ~real disoute is asserted to b. .~~~ about
interpretation or application of the Transit Agreement, hecause that is the
whole case of Pakistan. Now three possibilities arise: the Party mav file only
an application; the party may fileinly a complaint, orthe~art; may file
both an application and a cornplaint.
If my learned friend is right, the consequences are that if he filesan applica-
tion only, 1 have a right of appeal; if he files an application and a complaint,686 . ICAO COUNCIL
virtually a duplication word for word, 1 have a riaht of appeal as regards the
application, noneas regards thecomplaint; and ifhe files&ly a cornplaint, 1
have no right of appeal at all. Can that be the right rel~dingof a Charter under
which a party has a right to come to this Court?
My point is, that the right of appeal is a substantive right, it cannot be
defeated by the label attached to a particular proczeding. Pakistan, which
lias filed what it calls a complaint, has, in reality, filed an application: it is a
duplication of the application. Again consider what the position would be
otherwise. Suppose this Court gives a decision on the Application and
assuming for a moment, in case 1 am not unduly optimistic, that the decision
is in my favour, the Application will stand dismissed, but the Complaint will
go on the same cause of action. Can the Court conceive of an international
treaty which is drafted on thoselines?
If the suestion is one of intervretation or aoolication of the Transit
Agrremeni, the p3rty ha, ti,file a" Application, &.l if he choihe%to file s
Coniplaint, the Council should tell him rhat the Application I\the only cor-
rect vrocedure,
~;t if the Council is lenient enough to hear even the complaint as a separate
proceeding, for the purposes of appeal it must be taken on the same footing
as a disagreement relating to interpretation or application.
In short, my submission is that a substantive invaluable right of appeal-1
cal1it "invaluable" as the facts in this very case show-cannot depend on the
label attached to the proceedings. Inlndia's Memorial, page 322, supra, you
will find Article 84 of Cbapter XVIII of the Convention set out, which says
in terms that a disagreement relating to interpretation or application shall
be decided by the Council with a right of appeal to the Court.
Article II, Section 2, of the Transit Agreement, is on page 328, supra:
"If anv disaareement between two or more coiistractine States relatine
to the interpretation or application of this Agreement cannot be sett~ed
by negotiations, the provisions of Chapter XVIII of the ahove-mentioned
Convention shall be aoolicable in the~same manner as vrovided therein
with reference to an; -disagreement relating to the interpretation or
application of the above-mentioned Convention."
The right to raise a dispute as to interpretation or application is only in the
form of an application and not a complaint; and, correctly speaking, there-
fore, the Council should have rejected the Complaiiit and gone on with the
Application. If it has chosen to carry on with the Complaint as a separate
case, 1 submit it still falls within ArticlII,Section 2, of the Transit Agree-
ment, because for al1purvoses. of substance as well as of form. form of the
plcading. form of lhc submissions, form of the reliefs claimcd, Plikistan is
asking for inlcrprctatiun or application oi the Tran,it Agrccment, ascording
to ils own case. Thnt nieans that thc case fills under Article[T.Section 2, and
al1 the provisions of Chapter XVIII of the Convention apply, the right of
appeal to this Court being one of them. This is my first submission, and 1
submit that this is the only correct approach by which the right of appeal to
this Court cannot be defeated by the simple process of putting one label
instead of another.
In short, a State can write out the whole pleading, raising a dispute as to
interpretation or application of the Transit Agreement, and it can, at the
top, Say: Complaint under Article II, Section 1, or it can say: Application
under Article II, Section 2, of the Transit Agreement. For the purposes of REPLY OF MR. PALKHIVALA 687
appeal it cannot make a difference. It is only what the dispute is about in
reality whichdecides the right of appeal.
Learned authors have pointed out that Article II, Section 1, applies to
cases not of interpretation-or application, but when the Transit ~greement is
adhered to and some measures are adopted by a State which do not cal1for
any interpretation or application but which cause injustice or hardship; then
alone can you file a complaint. Now here there is no question of my adhering
to the Transit Agreement-the whole question is as to interpretation or
application according to Pakistan. This is my first point.
My second point: if the honourable Court does not accept the first point,
then the second point is that if you can have a complaint properly filed, 1
shall assume against myself, which involves a question as to interpretation
or application of the Transit Agreement, for the purposes of appeal that
complaint would have to be dealt with as one which involves disagreement
as to interpretation or application. In such a case, the right of appeal under
Article II, Sectio2, is available. It has been so held by the ICAO Council
itself in the Working Paper whic:h1 have referred to in my answer given the
day before yesterday to Judge Jiménez de Aréchaga. On page 450,supra, of
India's Reply, paragraph 5.3 of the Working Paper submitted to the ICAO
Council by the Secretary-Generiil:
"5.3Each of theforegoingacts of theterritorial State would constitute,
under Section 1 of Article II of the Transit Agreement, an 'action ...
under this Ameement'. However. it cannot he denied that a cornplaint in
respect of any of the foregoing matters is essentially a complaint of
misapplication of the Agreement and consequently is a case of 'dis-
agreement ... relating to the interpretation of application' of the
Agreement and would, in any event, fall under Section 2 of Article IIof
the Transit Agreement. The case may also raise a question of interpreta-
tion or a~plication of that orovision itself. namelv, Section 1 of that
Article 11 [I.c., \i,hethean!. action h3s been taken undcr thc Transit
,\grccmcnt]. It folloa,s tha.as ,pecitiedin thal Section 2.the pro\isioris
of Chapter XVIII of the C'hic.i~oCi~n\,entian %hallhe ap~licablc cven
in a case brought solely undergection 1 of Article II of the Transit
Agreement. ... This means that the second sentence of Article 86 which
is in that Chapter will govern the case if an appeal is made against a
decision of the Council."
In short, the Working Paper says, and that is the view the Council has
accepted, that an appeal will lie against adecision on a complaint where the
complaint is asserted by the cornplainant to involve questions of interpreta-
lion or application of the Transi1 Agreement.
My learned friend's last point isthat the Council's Rules do not provide for
an appeal against a decision on a complaint. For that purpose, my learned
friend has referred to Article 18 of the Council's Rules at page 335, supra,
of India's Memorial, and he points out that, under clause (2) of Article 18,
it is only decisions rendered on cases submitted under Article 1 (1) (a) and
(b) which are subject to appeal. Article 1 (1) (a) and (b) will be found on
page 330, supra.These clauses deal with disagreement between two or more
contracting States relating to interpretation or application of the Convention
under (a), and the Transit Agreement under (b). My answer is a two-fold
answer to this based on Article 18of the Council's Rules.
First: if the right of appeal is conferred by the Charter itself, Le., the Transit
Agreement, nothing in the Rules can possibly defeat that right. In otherwords, the Rules cannot control the right of appeal given by the Transit
Agreement itself. Secondly: my learned friend's construction of Article 18of
the Rules is incorrect. This Article savs that decisions are a~ ~ -~~~~~-~-
cases sumitted under Article 1 (1) (=).and (b)", and those cascs are cases
of disagreement as to interpretation or application; but as the ICA0 Coun-
cil's ~e&etarv-General hasiointed out to the members of the Council in the
Working ~aper, the cornplaint may itself involve a disagreement as to inter-
pretation or application of the Transit Agreement. In thst case, the case is
covered bv Article 1 (1) fbl of the ~ouncil's Rules at naze 330...uora. and
although ;ou may us; ihe label "complaint" since disairëernent is asserted
asto interpretation or a~p~ication, the right of appeal can he exercised by the
. .tv which loses.
tiniilly, my learned friend has said that undcr Article36 (2) of the Siatute
of the Court I had filed a declaration ngreeing tu the conipul~ury jurisdiciion
of this Court. but with the reservation that the disnute should no1 be with
any other nalion in the Commonwealth, and my l&rned friend says that 1
deliberately did it with a view to preventing Pakistan from coming fo this
Court. This alleaation is unfair. Ils unfairness is heiehtened bv the fact that.
apart from heing irrelevant to the issues arising h&e, it hasnot even bee"
provoked hy anything 1have said in my opening address. It would suffice to
point out to the Court that this reservation lndia has made about disputes
with other Commonwealth countries, is a reservation made by most other
countries of the Commonwéalth which have filed declarations under Article
36 (2) of the Statute. In the same Yearbook 1970-1971 of this Court which my
Iearned friend referred to, you will find identical reservationsmade by the
following countries. Ishall give the pages where the reservations are to be
found: United Kingdom, page 72; Australia, page 45; Canada, page 49;
Gambia, page 53; Malta, page 60; Mauritius, page 61; New Zealand, page
64.
Apparentlyanything India does in the international sphere is misconstrued
to mean some animus against Pakistan, some desire to hurt that country.
India cannot do what other Commonwealth countries do, without this
charge being levelled against if.
The final point made hy my learned friend about the Appeal not heing
competent was that, under Article 37 of the Statute, this Court's jurisdiction
cannot be invoked hecause Pakistan was not a Party to the Statute of the
Court at the lime when it was brought into effect. Now the answer to that is
obvious. There is Article 93 of the Charter of the United Nations which
exoresslv orovides that al1 Members of the United Nations are ioso facro
parties (Oihe Statute of the International Court of Justice, and ~akistan is a
Memher of the United Nations. Secondly, this very argument of Pakistan
has been noticed and reiected in the Barcelona Traction case.~his is renorted
in I.C.J. Reports 1964. and the relevant passages rejecting such an argument
are at pages 28, 29, 30 and 32.That finishes the point about maintainability
of the Appeal.
My learned friend then referred to the special régime,and his point was,
first, that there is not a single document evidencing suspension of the Treaties
in 1965. The Court will be pleased to draw a clear distinction between the
events of 1965 where the suspension is disputed, and the events of 1971
where the fact of suspension isnot disputed.
In 1965.. . learned .riend savs..there is not a sin-le document. Well. .v -
answer is, are not these documents evidence of suspension-the notifications
of September 1965 and February 1966 expressly prohibiting over-flights byfor everybody. By declaring an emergency, lndia hsd a certain freedom of
action accordine to ricrhts under existine international law. which freedom is
- . ... .. ~.~~~..
different from the right to suspend the Treaty vis-à-vis ~akjstan. In short, the
notification of emergency is of help to India vis-à-vis the whole world.
Thus as reea-ds ~Ïticle 89..the declaration of emereen-. enabled lndia to ..
impose certain restrictions on variouscountries;but, so far as Pakistan is
concerned, and sofar as Pakistan alone is concerned, India prohibited over-
--~ehts altoeether. So that one sees the sharo contrast between India's -~~.~
ci&its rkhts against the rest of the world by declaring an emergency and
India's suspending the Treaties with Pakistan. The notifications prohibitinn
.~~. .erfli-hts of-Pakistan aon..ed onlv to Pakistan. and that amounted to ~- ~.
suspension, whereas the emergency declaration was to enable lndia to impose
restrictions on the aircraft of other countries of the world. The very existence
of the notifications, directed against Pakistan alone, shows that vis-à-vis
Pakistan India suspended the Treaty; vis-à-vis the other countries India did
not sus~end them but claimed rights under international law. which are left
undistuibed by Article 89, to takë such measures as were necessary in order
to protect the integrity and security of India.
Then my learned friend read out a passage from Oppenheim's It~fert~otional
Law (at p. 636, supra): "Multilateral treaties are not referred to in the Peace
Treaties, and it. must he assumed that their continued existence was not
deemed to be affected by the outbreak of war."
Now this principle applies in a case where there is no action taken by a
belligerent State. But if positive action is taken by the belligerent State and
definite notifications, specifically directed against Pakistan. are issued, saying
in so many words that overiiights are prohibited, is it possible to argue that
the two treaties were not suspended? In short, the assumption may apply
where there is no positive action taken bv the State. but where the State takes
positive action intimes i~fniiliiary h~istiiitiesand that positive action is con-
irary to a treïty and amounts t« suspension of the treaty. it1sunargudble that
the exisicnce of ihe treaty is left iina~ecied bs miliidrv hostilitici.
Then my learned friend cited a passage from Mc~air's book. I would have
preferred to avoid disputes about Kashmir which somehow always crop up
wherever the two countries face each other, whether it is in an international
court or in the United Nations. Again, it is a completely gratuitous statement
that India attacked Pakistan. 1 had myself, as you will recall, said in my
opening address that these are irrelevant contentions of the Parties, and 1
shall say nothing about them. But my learned friend has chosen to say
affirmatively that it was India which attacked Pakistan, and 1cannot let the
record of this Court remain incomplete on that point.
1 would like to have it made a part of the record of this case that whereas
Pakistan starts with Septemher 1965, the correct approach is to start with
August 1965 when the military aggression against lndia took place at the
hands of Pakistan. Without submitting my own arguments, may 1refer to the
United Nations Security Council report, the document is SI6651 dated 3
September 1965. It is a public document of the United Natiow where, in
paragraph 6, on page 4, this is what was reported to the United Nations:
"General Nimmo has indicated to me that the series of violations
which began on 5 August were to a considerable extent in subsequent
days in the form of armed men, generally not in uniform, crossing the
cease-fire line from the Pakistan side for the purpose of armed action on
the lndian side. This is a conclusion reached by General Nimmo on the REPLV OF MR. PALKHIVALA 691
hasis of investigations by the United Nations observers, in the light of
the extensiveness and character of the raiding activities and their prox-
imity to the CFL [cease-fire line]. . ."
And then, in the same document, page 6, paragraph 9, under the heading
"Efforts of the Secretary-Genersil":
"On the morning of 9 August 1965, a telegram was received from
General Nimmo warning tliat the situation was deteriorating along the
the CFL. On the basis of this report, 1saw the representative of Pakistan
at 1230 hours on that day, and asked him to convey to his Government
my very serious concern about the situation that was developingin Kash-
mir, involving the crossing ofthe CFL from the Pakistan side by numbers
of armed men and their attacks onIndian military positionson theIndian
side of the line, and also niy strong appeal that the CFL he observed.
That same afternoon 1 saw the representative of India, told him of the
information 1 had received from General Nimmo and of the démarche
1 had made to the Government of Pakistan, and asked him to convey
to his Government my urgent appeal for restraint as regards any re-
taliatory action from their side. In subsequent days, 1 repeated these
ap~eals orallv for transmission to the two Governments. asking also
thït ail of eitlicr 1p:iriysi111reniiiiniiig on the iirong \irlc;if thc
line he \itihrlrau,niti11%own sirle.[Nilu.f~illoni the important p~iiiügc.]
1 have not obtained from the Government of Pakistan anv assurance
that ihc:e~ic-firc:ind ille CF1 u,ll be respecied henceforih or-ihat erl'cirrr
\vould bc excricd tn rcitorc ;onditions IO normal ülong ih;it line 1did
receive assurance from the Government of India, conveyed orally by its
representative to the United Nations, that India would act with restraint
with regard to any retaliatory acts and will respect the cease-fire agree-
ment and the CFL if Pakistan does likewise."
Now this shows that the alleeations of Pakistan that India was the wrone- -
doer; that as the wrong-doer,;t cannot take advantage of its own wrong;
that having started the war itself, it cannot Durport to suspend the Treaties;
-these proceed on a total misconception asto the true facts, as they existed
in August 1965, which ultimately led to the military hostilities of the next
month, that is, September 1965. It is precisely hecause the hostilities began on
5 Aueust 1965 bv armed men crossine from Pakistan into India that the
resolution was adopted hy the ~ecurit; Council of the United Nations, on
6 Septemher 1965,which is UN document SIRESIZIO:
". . .Cullr rtpo1the pdrtiei IO ccsrc hosiilitics in ihc cniire arcLiof con-
fllct imniediaiely, :iiid prortipily \iithrlraülldrmeJ perjonnel hack 1i1
the poiiiions held by ihern beiore 5 Auguit 1965."
The date is material, "5 August 1965". Now the passage in McNair's book
does not deal with the events of August 1965at all; it deals with what happen-
ed in Septemher 1965. In international conflicts it is always possible to start
with the wrong date and then brand the defender as the aggressor.
The real issue which the Court will have to decide is not whether the
suspension of the treaties was iinder a rule of international law or under
Article 89 of the Convention. The real question is, did a special régimecome
into force in February 1966? Assume against me that the suspension was
under Article 89; if the special rbgime came into force in February 1966 as a
result of suspension under Article 89, as Pakistan contends,-is it still aspecial régime which was in operation from tebruary 1966 onwards? And
how will the jurisdiction of the Council be allected thercby" If thcre was a
socciiil rértmc from February 1966 onuards. the Council had no iurisdiction
to deal $th disputes pertaining to that special régime, irrespective of the
question whether the special régimecame into force as a result of suspension
under international law or as a result of action under Article 89 of the Con-
vention.
My learned friend has then emphasized the emergency and my communi-
cation to theICA0 Council about the emerwncv. 1 have alreadv oointed out
that the emergency was declared not vis-:-vis Pakistan, becaise vis-à-vis
Pakistan the Treaties were suspended and that was enough, but theemergency
was to aive India the riaht to im~ose restrictions undere-neral international
law vis-à-vis States othër than ~akistan.
The Tashkent Declaration my learned friend has referred to. 1have already
dealt with it in detail and pointed out how it did not revive any treaty at all,
it rnerely said measures would be taken in future, and the measures were
never taken in future to revive the Convention and the Transit Agreement.
On the contrary, after the Tashkent Declaration of January 1966 came the
notification of February 1966, which continued the prohibition against
Pakistan overflying India except with India's permission.
Then mvlearned friend savs the soecial régimewas not reeistered with the
Uniicd ~ations. Wcll, ilnced no1 bc.register;d. Ia spesial régimeiscsiablish-
ed by notifications. signal\, leiicrs, tsuch special rcgimes are nui rcgisicred
bv 1ndia with the United Nations. Assume anaareement could be rezistered.
and was not registered, that does not detract from its validity. ln ~he ~rirish
Year Book of Internarional Law 1952, Volume XXIX, at page 203 isthe sen-
tence in an article on the Validitv of Non-reeistered Treaties bv Michael
Brandon, who is of the Legal ~epartment of the United Nations Secretariat
and he says: "A non-registered treaty is valid under general international law
and is bindina uoon the States oarties thereto."
Then my lëarned friend has ieferred to Article 68 of the Convention. That
Article is to be found in India's Memorial, page 318, supra. Now that Article
has nothing to do with permission for overflying. One should not confusetwo
concepts which are separate and distinct: one, permission to overfly, and the
other, a country designating routes which al1 other nations of the world
would have to follow if they overfly that country. For example, [ndia would
designate certain routes which BOAC, KLM, Alitalia, Air France, al1would
have to follow if they want to overfly India. Now these routes are designated
generally for al1airlines of the world and that is what is dealt with by Article
68:
"Each contracting State may, subject to the provisions of this Conven-
tion, designate the route to be followed within itsterritory by any inter-
national air service and the airports which any such service may use."
Now. when Pakistan asked for oermission to overflv India and that Der-
missionwas refused, it had nothing to do with ~rticle-68 or the route to be
designated. At p.642, supra, that is my learned friend's argument of Tuesday,
he refen to a oarticular incident where Pakistan asks for oermission to overflv
and we refus&the permission, and my learned friend sais:
"Now, in rny humble opinion, this case of 7 June 1966clearly comes,
not only under India's action taken under Article 89, but also under
Article 68; this request was for the plane to go on a particular route. REPLY OF MR. PALKH~VALA 693
to land at Delhi, Palam airport-perhaps from a security point of view-
and they did not want it-it is an afternoon flight."
But incredihle as it may seeni to some people, planes do overfly Delhi in
the afternoon and they do land at Delhi in the afternoon-there is no prob-
lem. And what has the afternoon got to do with this? What has the desig-
nation of the route got to do with this? The simple point is that Pakistan was
asking for a permission, which the other parties to the two treaties do not
have to ask for, and the route had nothing to do with it,nor the time of the
dav. ltis sim.l. refusal of nermission. AI1airlines of the countries which are
parricstothcrrcdt~ciaretc onot\crflycdr land ior non-trdtticpiirp~scs. as
of righi and thcy do. Thede5ignsrion ofthc roiiic. \rhcch my learned frtcnd has
stronelv emnhasized. has nothine to do with oermission for overflvine. He
repeats the same argument on page 642, supra, of Tuesday's arguments. Then
my learned friend refers ta the Defence Regulations a! page 642. If 1 may
iust refer to what he savs there: "Aeai-. India referred to the Reeulation of
1968 with great emphaiis." The Court will be pleased to recall that sa far
from my referring to the Regulations with any emphasis, Isaid they are
completely irrelevant. They are the Defence Regulations which apply ta al1
aircraft, Indianandnon-Indian, and which apply to limited areas which are
necessary for defence, and they have nothing to do with permission for over-
flying. That is the point 1made in reply ta Pakistan which wrongly referred to
the Defence Regulations as the law under which it had asked for permission.
My learned friend goes onto say: "Why did India promulgate that regula-
tion? and why the defence clearance? That was because the emergency in
Pakistan had no! ended in 1969 [I think he means 19681.It ended toward the
beginning of 1969, but because India knew that Pakistan was continuing the
emergency in 1968, and that they had to put an end to the emergency, they
brought in the Defence Clearance Regulations. So that point, in my humble
opinion, is not valid." (Supra, p. 642.) Now that could not possihly he right;
the emereencv was lifted ~ ~d~-n~ ~fi~d bv India on 10 Januarv 1968. The
Air ~efence ~egulations came on 26 ~ovimber 1968. They camé11 months
later and they have nothina to do with the notification or de-notification of
the emergenck. Between ~anuar~ 1968 and November 1968, when there were
neither the Defence Regulations nor any emergency in operation so far as
India is concerned, there were a large number of instances, which are given
both in India's Reply and in the new documents, groups A to D, which 1
filed the other day, where Pakistan had still to ask for our permission for
overflying or landing. 1 do no! have ta refer to those instances again, where
the dates speak for themselves.
Then my learned friend referred to the suspension of the two Treaties
following upon the hijacking incident, the next argument, where again my
learned friend has gone into facis. 1would prefer ta ilse such time as is avail-
able to me ta argue points which have a direct bearing on the issues realljr
arising in the case.
1shall onlv. .int out that the facts as thev are stated in India's Memorial.
pages 34 ta 36, supra, paragraph 28, are fairly eloquent facts. 1 will no1 read
those facts, but you will find that when the plane is hijacked to Pakistan and
we are askine for nermission for the relief aircraft to leave from India to go
ta Pakistan, The pérmission issuspended-it isnot given. ~akistan takes more
than 48 hours to send the passengers and crew by road to the Indian border.
They are not allowed to bring their baggage with them. There was annther
plane which was taking off, as we point out in clause (d), but Pakistan wouldnot allow the Indian passengers to board that plane of another country's
airline. And we point out how the Government of India had earlier made
arrangements for the return of passengers Io India on board a scheduled
Ariana Afghan Airlines Service from Kahul to Amritsar, which landed at
-~h~ ~ Airoort on 31 Januarv 1971: "but though a larne number of Dassen-
gers disembarked and 30 passéngersivere boardid on that aircraft at aho ore,
the authorities in Pakistan said that they could not make arrangements to
board the passengers and crew of the hijacked Indian aircraft ... becduse of
the.. .presence of crowds at the airport"-this is during military régime,
when the airport is under military control.
The Government of Pakistan not only failed to return the two criminals
who had hijacked the aircraft but announced that they had been given asylum
in Pakistan. And then,
"Finally at about 20.30 hours ... on 2 February 1971 these Iwo crimi-
nals were allowed to hlow up the hijacked Indian aircraft and even Io
prevent the fire brigade from putting out the fire until the aircraft had
heen totally destroyed." (Ibid.,p. 35, supro, para. (f).)
LE VICE-PRÉSIDENT faisant fonction de Président: Monsieur Palkhi-
vala, estimez-vous que ces dkveloppements sont indispensables? Vous avez dit
vous-même que seuls le$ faits pertinents seraient traités par vous. Peut-être
estimerez-vous que cela n'est pas indispensable et que vous pouvez passer à
un autre développement sur le fond de la question qui est poske devant la
Cour.
Mr. PALKHIVALA: Since you, Mr. President, put it this way, and you
suggest an approach IO the problem which, frankly, 1 have to agree with,
because it is reasonahle, 1 cannot say that these facts are indispensable.
1thoueht 1would deal-~~ ~ them because Pakistan had zone into someof the
circu~stancci conccrniny ihc hijacking ~ncidcnt and my lcîrned friend hsd
5131edthingr which remiiided one of the line of the poct, "Willing io wound,
yet afraid ;O strike", and 1 thought that perhaps, in fairness to hy country,
1 could deal with a few facts. But, in the light of what you, MI. President,
have heen pleased to put to me, 1will stop this argument straight away.
May 1 refer to page 645, supra, where my learned friend says: "hefore the
ICA0 Council, this objection was not specifically taken by India in their
pleadings. This is an afterthought." Now the objection is regarding India
exercisina its ri-ht under international law to suspend the treaties in 1971.
assuming ihey h3d nui cuniinued under suspension since 1965. I do no! know
ivhy my leÿrned friendsaysthît the objcction u,îs no1spccitically tîken in the
oleadinns: we have out it in so manv words. in the written oreliminary ohiec-
;ions fikd before the Council and in the oral arguments hifore the ~ouncil.
There are paragraphs and paragraphs dealing with this particular point and
for mv learned friend to sav that it is an afterthouaht is hardlv a riaht readinp.
of the record. . . - -
Then my learned friend, in support of his plea that the allegation of hreach
aaainst Pakistan is an afterthounht. refers to the note which India sent to
Paakistan, which is reproduced on page 77, supro, of India's Memorial, and
rny learned friendsays it shows that India merely wanted money out of Pakis-
t& and nothinn else. One has only to look at that note toseethat this parti-
cular conteniion is compleiely unfounded; ihe dlegation of hrcach by ~akis-
tan i5specifically rcfcrred to in ihis vcry notc- 1 will read just one senience
of the second paragraph: REPLY OF MR. PALKH~VALA 695
"The encouragement and support given by the Govemment of Pakis-
tan Io the two persons who hijacked the Indian Airlines Fokker Friend-
ship aircraft Io Lahore on January 30, 1971is in violation of al1norms of
international behaviour and of International Law."
This is what 1said as early as 3 February 1971, before the overflights were
suspended. and yet my learned friend says that breach of international law
on ~akistan's nart is an afterthoueht.
India furth; asked no1 merely ?or reparaiion Ir is truc thdt India did say
ihat Pdkistan should mïkc good the loss arising from the loss of the ïircraft,
cargo, haggage, mail, etc., but it also said in the same letter that it wanted an
assurance from Pakistan that: "The Government of Pakistan will refrain in
future from assisting, inciting or encouraging such incidents in the interests
of peace and harmony between the two countries:" So to Saythat India merely
asked for money is Io omit the most relevant parts of this particular Note,
which is on page 77, sr,pro, of India's Memorial.
Then my learned friend says that India has referred, in the preliminary
objections filed before the Council, Io the fact that the resumption of over-
flights for Pakistan aircraft over Indian territory would be inconceivable in
view of the massacre and genocide of unarmed civilians in East Rengal.
Now, chronology again has to be borne in mind here. The overflights were
suspended in February 1971; while the preliminary objections were filed in
May 1971.It is in May 1971that India tells the Council that, at the time when
it suspended the overflights, it was because of breach of international law and
international treaties on the part of Pakistan. If in Mav 1971 India is asked
to rcsumr the flights, iruould be faced \r,irha further dhliculiy thai in viciv
of the massacre and genoc~dcoi'unsrmed civilians in East Beng31. ilwas no1
~ossihlc Io Dermit siich overfliahts IO iake lace. This. thsrrfore. refer, not
io the moti;e for suspension 6 February 1971; it refers to the suhsequent
developments which took place between February 1971 and May 1971 when
the preliminary objections were filed. '
On nage 648. srror,. m. l.arned friend refers to the nlea of material breach
3s an itfterthoughi. May Iju,i give the pages. uiihoui reading thcm, of Indiit's
Memorial. where this material breitch i\iuï \i3s .pecific~lly referrïd to hefore
theCouncil: oaees 105. 147. 149. 150. 151. 153 and 223.~aoru.
11is furthe;said thai~ndja should havéreported tothe'council any mate-
rial hreach by Pakistan instead of suspcnding the Treaties. Surely it has no
bearine on the ooint which this honourable Court has~t~ ~~nsider. If.,und~-~
international la;, India had the right to suspend the Treaties, is it to the
point to Say that India should have merely reported the incident to the ICAO
Council instead? India thought, and rightly so, that the matter was so serious
that, in the interests of the country, the Government had to take immediate
action, and reporting was not enough.
My learned friend's next point is that the ICAO Council must he treated as
qualified to deal with this matter, because after al1in judges you do not need
men of the law-laymen can be judges-in fact, executive, administrative
bodies do perform judicial functions al1 over the world. In this connection,
1 submit my learned friend has not met the real point in the case. The real
point in the case is that there are express delimiting words as regards juris-
diction. and ~ ~ ~elimitine w-rds are "interoretation" and "ao..ication" of
the Treaties. These deliniiting uords, ifpropcrly con\irued. confer such juris-
diction on the Council as the Council is caiidhlc of shoulderinp. Rut if you
put any wider interpretation on these two words, the Council would noi be698 [CAO COUNCIL
along from 1944 onwards. Up to now, al1 proceedings of the ICAO Council
have been on the basis which 1 have submitted, and the Council has had legal
advice on this point, which has supported the above position. (See India's
Reol. .. .es451 and 452. suora. to which I have alreadv referred.1
Then my learned friend says that, on the manner ah methodpart of my
argument. surely the governments must have realized that legal issues would
be involved.
Now my answer is that, as you seefrom the observations of the President
of the Council in the Council meeting itself, some governments were not even
aware that a decision was eoina to be reached. becauseunder the Rules of the ~ ~~
Council a meeting has tobe cilled for the p"rpose of arriving at a decision
and such a meeting was never specifically called. A meeting was called to hear
the parties and, as the President says, some governments might have thought
that no decision would be reached.
Then, finally, my learned friend has produced certain new documents'-1
do not object to their production.
The first document he has referred to is the letter of ICAO, dated 17 Çep-
tember 1965, which says: "Siibject: Article 89 of the Chicago Convention."
It refers ~- the letter received from the Government of India~ ~ ~ ~he~.~.ter
received from the Government i~f India is annexed Io this document of 17
September 1965and it deals ii.ith the sontinuîtion of the emereenot.
1 have already pointed out that these documents were intendid to safe-
guard India's position as a law-ahiding and a treaty-abiding nation vis-à-vis
States other than Pakistan, because by declaring the emergency India could
imoose res~ ~~t~ons on countries other than Pakistan. But there was no aues-
lion of suspension of the treatles vis-E-vis oilier couniries. Thar question arose
unly vis-i-vis Paki,t~n, .ind that ISu,hy the tuo notific3tions of 1965and 1966
im~osine o- 7ib-tion of overflvine are directed onlv aeainst Pakistan
lam sorry for detaining the (.o~-rt. \lr ~residcni.~bu~1thouyht itwould be
niore ci~nven~entfor the Court if1 tinished the 3rgument today and my learned
friend coul'd then start on his final reply on Monday.
The second document is of 9 December 1971 which, again, deals with
this question. This document is from the ICAO Council to Pakistan where
it says: "1 have .. . to send herewith copies of two cables .. . These cables
were placed before the Council . . .The Council decided to transmit [the]
copies." These cables only referred to the military hostilities in December
1971. India informs the Council of what has haooened. Aea. . -. I would be
reluctani to go into this particular point heciiuse itrai.;e\ contro~ersial issues
betueen the tivocountries. Rut there is nothlng in the documents of December
1971 which~can~ ~ssiblv su.ort .. mv learned-friend. because he himself has
no1disputed 31 aiy stage that there \;as suspension of the trcaties in Febriiary
1971. What rclevance thesedocuments of December 1971hareonefails tosee.
These documents are for the purpose of keeping the ICAO Council in-
formed of the developments which take place in India and which affect in-
ternational aviation.
-The third document is Air-India's letler of 12 September 1964, where we
give the route which we propose to follow on a scheduled flight. In fact, if
anything, this document supports me, becauseit indicatesthecontrast between
the designation of the route by a country and permission for overflying.
The designation of a route, as I have already pointed out, under Article 68
of the Convention, has nothing to do with permission for overflying. In this
See pp. 743-765and p. 788,infra. REPLY OF MR. PALKHIVALA 699
document of 12 September 1968 India is merely designating the route and
not asking for any permission.
Again, the next document-India indicates what routes have been discon-
tinued.
In the letter of 4 September 1965, Air-India says: "We have your standing
permission for our Flights .. .,amongst others, to overfly Pakistan ... We
would like to inform vou ... of a sli~ht change." It is not askinr! for oermis-
sion but it says we already have your permission. -.
Now, when this is said on 4 September 1965, it can only mean that, under
the treatjes which were in existence un to that date. the oermission or rieht
was available to the contracting Staies, and 1ndia had ihat permission-or
right under the Treaties. India is not asking for an~ ~ermission hy the letter
or4 Septemher 1965.
The next document of 29 Jariuary 1965 is from India to Pakistan. Again
we say: "... there is no objection to the introduction of PIA Schedules
effective 1st April, 1965." This document again supports me, because this is
a document of January 1965when no permission is necessary. Pakistan is not
asking for India's permission, nor is India giving the permission; India is
only saying that it has no objection to the routes that Pakistan proposed.
Those routes must conform with the routes which India had designated;
they did conform with such routes and so India says there is no objection.
In other words, these documents deal with the designation of the routes
as distinct from permission for overflying.
Finally cornes the Award of Professor Lalive in the Dalmia Cement case
against the National Bank of Pakistan. 1 am rather surprised that Pakistan
should have produced this document.
This was a case where Pakistan took the cement factories of India and
agreed to pay a price. Having taken the cernent factories, Pakistan defaulted
and would not pay the price, and it would not pay the price even at the time
when there were no military hostilities between the two States. And we
argued that here are normal times, will you not pay the price .. .
Mr. BAKHTIAR: MI. President, the Court has not read this document.
Mr. PALKHIVALA: Well, ufould you like to withdraw this document?
MI. BAKHTIAR: No, Iwill not withdraw it.
Le VICE-PRÉSIDENT: S'il vous plait, si vous voulez vous adresserà la
Cour. Je n'ai pas entendu l'objection de M. Bakhtiar.
MI. PALKHIVALA: 1 am asking my learned friend whether he wants
to withdraw it; if he withdraws it,I have no objection ...but he says he was
not allowed to address the Court on this document. I had only told my
learned friend that after1 have looked at the document, he could refer to it;
that is what Ihad told him, which is in conformity with the Rules of this
Court. If my learned friend says he will not refer to it, then 1 will notIfmy
learned friend does not refer ta it in his closing address on Monday, because
otherwise . ..
Mr. BAKHTIAR: No, I will.
Mr. PALKHIVALA: You will? Then I propose to go on with the docu-
ment.
In this particular case, Pakistan refused to pay the price in normal peacetime; and their argument was war had broken out between India and Pakistan
in 1965 and, therefore, thereafter, even after the Tashkent Declaration was
signe& they were not bound to pay the price. Professor Lalive says that this
is wrong. He made an Award against Pakistan, asking Pakistan to pay the
full price with full interest and the costs of the arbitration.
Now, the paragraph my learned friend relies upon is a paragraph where
the learned arbitrator comes to the conclusion that there were military
hostilities between the two countries in August and September 1965, but
military hostilities not amounting to war; he comes to the conclusion that
there were militarv hostilities not amounting to war. on several nrounds. One
of the grounds is ihat various treaties continued to be in operation between
the two countries. 1 have never disputed that. 1have never disputed in this
case that various treaties did continue <O be in ooeration between the two
countries even during August and September 1965 and afterwards. All that
1 have contended is that the Convention and the Transit Agreement were
suspended. Now, Professor Lalive does not refer to the Convention or the
Transit Agreement at ail. In fact-I appeared in that case myself-neither
party said a word about the Convention or the Transit Agreement. We re-
ferred to various other treaties-treatiewhich are unconnected with aviation,
treaties which have no bearing on the questions arising in this case. Those
other treaties continued in operation, and the leariied arbitrator says that
this is one of the reasons whv he comes to the conclusion that there was no
war but there werc niilitîry ho~riliriesno1amounting io \var.
In short. this Award hdd no hearing -,hateveron the quesiionar towheiher
these two particular treaties were suspended or not, because the arbitrator
was not even asked to deal with the treaties, and no reference was made to
these two treaties at ail.
This finishes my reply to my learned friend, Mr. President, and may 1,once
again, thank this honourable Court for the great courtesy and the great
patience with which Ihave been heard.
Le VICE-PRÉSIDENT: Monsieur Palkhivala, vous avez précédemment
présenté vos conclusions. N'avez-vous rien ajouter à cette précision?
Mr. PALKHIVALA: No, ,MI. President, 1have no other clarifications to
make, but if any of the honourable Judges would need any clarification 1am
at their service and1 would be more than happy to resolve any doubt which
may strike any of the learned Judges.
The Court rose of1.15 p.m. REJOINOER OF MR. BAKHTIAR
NINTH PUBLIC: SITTING (3 VU 72, 3 p.m.)
Presenr. [See sitting of 19 VI 72.1
REJOlNDER OF MR. BAKHTIAR
CHIEF COUNSEL OF THE WVERNMENT OF PAKISTAN
Mr. BAKHTIAR: Mr. President and Memhers of the Court: 1 will first
reply to the question addressed Io me hy Judge Jiménezde Aréchaga and the
auestion that Judge Petrén addressed to both Parties.
- Oiir rcply to the quc\tion arked hy Judge Jiinene~ de ArCchaga 1s: Para-
graphi .??and 23 oi I'îkisian's Countcr-Mcmorial imply the invalidiiy of the
grounds relied upon hy India to support her right of appeal against the deci-
sion of the Council of ICAO. These grounds include Article 84 of the Con-
vention and Article II, Sections 1 and 2, of the Transit Agreement. It is
correct. however, that while oaragrauh 25 of the Counter-Memorial soecifi-
cally raises the question of the competency of India's appeal in respect if the
decision of the Council on Pakistan's Cornplaint, the ohjection taken to the
cornpetence of India's ao..al. .n resuect of the decision of the Council on
Pakistiin's Application, is nnt e~pres~edin similarly cmphatic terms. In vic~
of thip, thc ohjcctii~nui 14kistantù the competence of India's appeal agatnst
the decision or the Council in rcsocct of Paki3tan's Annliçation. r3iscd gncci-
fically during the oral proceedin;, may he inte1preted.a an in"itation to the
Court to consider the competence of that appeal proprio moru.
Our reply to the other question posed hy Judge Petrén to both the Parties
is: in Pakistan's view, that the expression "any other matter", appearing in
Article 86 of the Convention, refers to only those decisions of the Council
taken under Article 84 of the Convention-that is decisions of the Council
on any disagreement relating to the interpretation or application of the
Convention which cannot he settled hy negotiation. The decision of the
Council under Article 84 of the Convention cannot refer to any decision
which is not a decision relating to the interpretation or application of the
Convention.
Article 86 of the Convention provides that the decision of the Council
under Article 84 of the Convention, other than decisions on whether an
international airline is operating in conformity with the provisions of the
Convention, Shall, if appealed from, he suspended until the appeal is decided.
It may he pointed out that the decision of the ICAO Council of 29 July 1971,
rejecting the preliminary ohjection of India challenging the jurisdiction of the
ICAO Council. hasnot hecn susoended by the Council, which shows that the
Council did not consider the decision as a declsion takcn iinder Article 84
ofthc Con\.cntiun. Ttthcrefurc follnws ihai theexpression "any othcr matter"
in Article 86 cannoi refer io any decisions of the Council other than those
sihich rcl~te IO thc interpretation or application of the Convention,
Mr. President. turning now to our second and final oral submissiùns hcfore
the Court. 1uùuld like to staie that the oral suhmissions of the Parties hd\e
revealed chat there are three aspects to he considered in this case:
(i) competence of the appeal;
(ii) whether the assertions and counter-assertions made hy India and Pakis- tan in the circumstances of the caseconstitute one or more disagreements
relating to the interpretation or application of the convention and
Tran3it Agreement within the menninp of theie trrms in Article 84 of the
Convention and Article II. Section 2. of the Tran~it Acreement.
(iii) whether or not the mannér and method employed b; the ~o;ncil in
giving its decision as ta its jurisdiction vitiates the decision.
While dealing with these matters, however, 1 shall largely concentrate on
the assertion made by the learned Chief Counsel of India, on Friday last,
in his second oral submissions before the Court.
First 1turn to the auestion of comoetence of the anoeal.. .e learned Chief
Counsel for India hn; argued ihat. in reipeci oi the appcal aguinst the Co~in-
cil'> decisiun on Piikistan's Application, ne haJ no1 r~i<edan objection in the
comwtence of the appeal. In respect of the aooeal against the decision of the
Council on ~akista2s ~omplainl, ire had calrgoric<;lly stated ihît the apprdl
w3s not mainrainablc In parngraph 23 of our Counrer-Alcniori~l. In respect
of the a~oeîl aaainrt the Council's decision on Pakistan's An~lication. ue
have alrkady indicated, in Our reply to the question of ~ud& ~iménez de
Artchaga, that the objection taken was not in similarly emphatic terms.
However, we have raised the issue categorically in the oral proceedings and
have invited the Court ta consider the competence of the appeal proprio morir.
We respectfully submit that it is incumbent on the Court to satisfy itself of
ils own jurisdiction. We rely on the doctrine invoked by India regarding
strict proof of consent. On the question of competence of the appeal Our
submissions are as follows:
(a) The appeal in respect of the Council's decision on Pakistan's Complaint
could not lie as no procedure has been provided for this under Article 1.
Section 1, of the TÏansit Agreement;
(bj Article 84 of the Convention provides only for an appeal against the
decision of the Council on merits, that is in respect of the decision
relating to interpretation or application of the Convention or Transit
Agreement;
(c) Article 36, paragraph 1, of the Statute of the Court cannot be relied on
hy India, and even if it is relied on, this provision is inapplicable;
(d) Article 37 of the Statute of the Court cannot confer jurisdiction on the
Court in the circumstances of the case.
It is pertinent to point out that ground (a) relates exclusively to the appeal
in respect of the Council's decision on Pakistan's Complaint, whereas
grounds (b) (c) and (d) relate to both the decisions of the Council.
My first submission is that appeal in respect of the Council's decision on
Pakistan's Comolaint cannot lie to the ~nter~-~ional ~ ~ ~~~r~ of~Justice since
no procedure has been provided for this under Article II, Section 1, of the
Transit Agreement. Article ïï.Section 1. of the Transit Agreement reads as
- -
follows:
"A contractina State which deems that action bv another contracting
State under this~greement is causing injustice O; hardship ta il, ma;
request the Council to examinethe situation. The Council shall thereupon
inauire into the matter. and shall cal1 the States concerned into consul-
t.ir;<in. Should such con\ulration fail to rewlve the difficulty. the Council
ma) make appropriate hnding~ and recommendxtionc 10 the contracting
States concerned. Ifthereafter a contractina Stateconcerned shall in the
opinion of the Council unreasonably fair to take suitable corrective REJOINDER OF MR. BAKHTIAR 703
action. the Council mav recommend to the Assemblv of the above-
meniioncd 0rgani~ation.th.t \uch coniracimg State k-suspendcd from
iis rights xnd privilegcs iindcr ihis Agreement unril such action has been
taken. The Assembly by a two-thirdsvote may so suspend such contrac-
ting State for such period of time as it may deem proper or until the
Council shall find that corrective action has been taken by such State."
It is apparent from reading this Section that, unlike Section 2 of Article II,
which specifically provides that if any disagreement arises relating to the
interpretation or application of the treaty which cannot be settled by negotia-
tions the orovisions of Chanter XVIII of the Convention shall aoolv. no .. .
simildr pr<i\.i>ioiih;is bccn msdc in Seciion 1. Consequenily thcre is no rcf-
crence 10 ArticlcX4oftheConvc~ition in Sccti~n 1.,rhcrcïsrhsre is siich rcfer-
ence in Section 2.
Thar there is no ~ppedl xgdin\i a Complaint is also contirmcd in the Kiilcs
for the Settlenieni of Dilierenses. Ar1:clc 1. Seiiion 2, of the K~les providcr
thdl in the c~\c of3 C~nipl:iini. I'drr5II dnd III oi'ihc Ruler for theSeiilsrneni
of Dinérencc, will be ïpplicshlc. Ir is io be norcd rhli the only Articlc in the
Rulss pro\iding for appeal is Articlc Id. \\,hich isin Piirt I of the Rules for
the Settlement of Differences.
Now the learned Counsel for India has argued that, while considering
Pakistan's Complaint, a question of interpretation had arisen regarding the
word "action" in Article n, Section 1, of the Transit Agreement. Therefore
Article II, Section 2, of the Agreement automatically became applicable,
which in turn attracts Article 84 of the Convention. In support of this he has
quoted a Note of the Secretary-General of ICA0 on Article 86 of the Con-
vention.
First, 1 may state that the Note of the Secretary-General is of no conse-
auence-it is the Council's oractice and decisions which alone can be relevant
in interpreting the Transit Agreement. In any case, even if a question of inter-
pretation of Article II, Section 1, of the Transit Agreement were to exist, the
ooeration of Article II. Section 2. would onlv be aitracted had there heen an
~p~licdrion made iiiidir Arriilç 1.Seciion 1: i,f the Kiilcs for the Seirlemeni
of Diifercnccs inri>rpor;ifing rhis di5;igreenicnr. Thcpr<iirdure under Arttclc 1.
Seciion 2. tif the Rule, for the Scttlcmcnt i~fDilïercnccj. which h:i\ heen
invoked in the case of Pakistan's Complaint, is entirely diffirent and does not
attract Article II, Section 2, of the Transit Agreement or Article 84 of the
Convention, or, for that matter, Part 1 of the Rules for the Settlement of
Differences.
1 now come to another submission of the learned Counsel for India made
during the second oral suhmission on the point that an appeal lies in the case
of a decision by the Council in respect of a complaint. At page 685, supra,
he is quoted as having stated as follows:
"Now the point at issue is this: is it the form of the proceedings which
determines the right of appeal, or is it the substance of the dispute? If
it is the form of the proceedings, it would be so easy to defeat the right
of appeal to this Court. AI1that you would have to do is, even when on
your own assertion the question is one of application or interpretation
of the Transit Aereement. not file an aool..ation. ou, .t in the form of
a complaint, and any decision given is then not subject to appeal.
The subject-matter is word for word the same, the facts are the same,
the submissions, contentions, arguments, are thesame-e~er~thing is the
same; the relief sought practically word for word the same. But the party says-1 have put it in the form of a complaint. Now my point is
that what determines the right of appeal is not the label which is attached
to the proceedings. A very important right, like the right of appeal to
this Court cannot be defeated by putting the label 'complaint'."
These assertions. made bv the learned counsel~for ~...a. do not .e~l~ct~ ~ - ~ ~ - ~ ~
thetrue position. ~irst of ali, they take for granted that a party which labels
it as a complaint knows what the result is roina to he--that it isroinr to win-
which isno1 terrible, on the face of il.sinzc the rcliciclaiiiied and tie remed).
soupht iilidcr Section I of Article If arc alir.ay5di(Tercntfrom that undcr Scc-
tion 2 <ifArticle II. Section I merels . .orrcred ihc Co~ncil to aivc f-ndinai -
and make recommendations for necessary action, whereas Section 2 empow-
ered the Council to determine whether or not a treaty had heen applied and
hence. by.impl.cation. the oower to determine the hreach of the Convention
and Transit Agreement,-and to assess compensation of such breach-es.
Keeping thisfact in view, Pakistan claimed compensation in its Application,
and in her Complaint requested the Council to determine that Indian action
was causing injustice and hardship to it and should be discontinued. The
Court may he pleased to refer to the Indian Memorial, at page 69, supra,
where the reliefs sought hy Pakistan in her Application are stated. Reliefs
indicated in paragraphs 7 and 8 are relevant and state:
"(7) To direct fhaf the Government of India should adequafely com-
pensate and indemnify Pakistan for the losses and injury suffered by it as
a result of the arbitrary, unilateral and illegal decision of the Govern-
ment of India in breach of its international obligations. The amount of
losses suffered so far are indicated in attachment to this Memorial
(Attachment D).
(8) The Council may assess and award costs to Pakistan and direct
Government of India to bear it and pay the same fo Pakistan."
The Court may also be pleased ta refer ta the Memorial, page 97, supra,
for the relevant reliefs sought in Pakistan's Complaint. Paragraphs 6 and 7
state asfollows:
"(6) To decide and declare that the decision of the Government of
India of suspending flighls of Pakistan aircraft over the lndian territory
is causing injustice, hardship, loss and injury ta Pakistan.
(7) The Council may assess and award costs to Pakistan and direct
Government of India to bear it and pay the same to Pakistan."
Thus Pakistan deliberately s6ught an expeditious remedy under Article II,
Section 1, by making a Complaint. That procedure could give Pakistan only
a limited remedy and no compensation for breach of the Agreements. It could
not have heen the intention of the high contracting parties in such circum-
stances ta defeat this shorter procedure, resulting in a limited remedy, by
making Section 2 of Article II automatically applicable where any question
of interpretation of Section 1 were to arise.
Mav 1 resoectfullv ooint out that in everv case of a Comnlaint under Sec-
tion <of Ariicle 11,tl;e Council would havéto determine whether any action
under the agreement is causinghardship to a party which calls for immediate
relief, and consequently in almost everi case a question of interpretation of
the Transit Agreement would he involved. Does this mean that the speedy
remedy under Section 1 will always be frustrated and that Section 2 of that REIOINDER OF MR. BAKHTlAR 705
Article will he automaticallv a~olicable? Mr. President. our suhmission is
that such could not have bien ihe intention of the conttacting States.
My second submission on the competence of the Appeal is that Article 84
of the Convention orovides onlv for an aooeal anainst the decision of the
Council on merits, ire., in respeciof the decision reiting to the interpretation
or application of the agreement, and not adecision on a preliminary objection
nertainine to iurisdiction
~rticle-84 of the Convention provides that the Council shall decide only
that disagreement relating to the interpretation or application of the Conven-
tion which cannot he seïtled bv neaotiation. Such a decision is ao~eaiable.
It is respectfully suhmitted th& onïy those decisions of the ~ouncil taken
under Article 84 of the Convention are appealable which pertain to disagree-
ments relatine to the interoretation or awolication of the Convention. to the
exclusion of ;II other deciiions which the Council may have to take.during
the course of arriving at the decision which is appealable. The decision of the
Council on the ouestion of a nreliminarv obiection challenein--its iu-isdiction
is not a decisionAwithinthe keaning of ~rtile 84.
The Rules for the Settlement of Differences approved hy the Council make
a clear distinction between the decision of the Council on a preliminary
objection and decision under Article 15 thereof which is related to Article
84 of the Convention. Article 5 of the Rules has a self-contained procedure
for handline a oreliminarv obiection. Under this Article. the Council had to
decide the cuesfion or ob&ction in contradistinction to adisagreement before
any further steps are taken under the Rules. After the disposal of the prelim-
inary objection, the Council proceeds on the merits of the case, and under
Article 15renders its decision. It is only this decision under Article 15 of the
Rules which is appealahle. Article 18 of the Rules clearly States that only
the decisions with regard to disagreement relating to interpretation or appli-
cation of the Convention and the Transit Agreement are appealable, which is
in consonance with Article 84 of the Convention.
It is submitted that the decisionof the Council on a oreliminarv ohiection
under Ariicle 5of the Kiiler ior the Setllement of if fer in cisn,o;a deciiion
as cnvisaged in Article X4 <ifthe Convention. Under Article h6 of the Con-
vention. the deciiion <ifthe Coiincil tken under r\rticle 84 iifthe Ctin\enlion
h;is to be surpendcd. if appralsd froni. The Coiincil h3r no1 ,uspendcd ils
decision ,if19 July 1971, ag3insi uhich lndia hs5 subniitted appeal to ihis
hainnurable Court whish indicales that the Cauncil ducs no1 consider itr
decision rcjecting the preliminxr). uhjection of lndid ar a de;i>io!i undcr
Article 84. 'Therefercnce made by thc Chief Counsel for lndia 10 the obser-
vations of the Prïsident of the ICA0 Council in this rcg:ird and ti~the note
of the Secretariat to the Council, has no bearing and is frrelevant, as it is the
Council only which has to decide whether its decisinn of 29 July 1971 wasa
decision under Article 84 or wirs required to be suspended under Article 86
of the Convention. Mere formal mention of the date of the decision or name
of the party does not mean that the decision is under Article 15 or that
Article 5 is to he read with Article 15.The fact remains that the decision of the
Council of 29 July 1971 did not contain, and should not have contained, al1
those matters which are required to be included in the decision of the Council
under Article 15 of the Rules for the Settlement of Differences. The decision
of the Council was conveyed to the parties by the Secretary-General in his
letters No. LE 611and LE 612dated 30July 1971,in the following words: "On
29 July 1971 the Council decided not to accept the preliminary objection
aforesaid." (Please see p. 398, supra, of Pakistan's Counter-Memorial.) Ittherefore follows that the Council did not consider its decision of 29Julv 1971
as a decision under Article 15 of the Rules and, consequentlya decision within
the meaningof Article 18of the Rules whichcan bea~pealed from.
In view of the foregoing submission, the appeal of India to this honourable
court cannot be based on the provisions of Article 84 of the Convention and
is, therefore, misconceived and not maintainable.
MYthird submission on the question of comnetence of the ao~.a. is that
lndi; cünnot rely on Article 36. harrlgraph 1.ol;h~.'>t.itute of this Court for
foiindiiig thejiirisJiction 01the Court, but cvcn i1,he îan rely <inthis Article,
it does not confer iurisdiction on the Court in the instant case
For this Article io be applicable, India must not only show but accept the
fdct that the Convention and Transit Agreement are "treaties and conventions
in force", as between India and Pakistan. 1emnhasize the words "as between
India and Pakistan", because the basis of the court's jurisdiction is the con-
sent of the parties before the Court, and not the consent of other contracting
States not parties to this appeal. But India cannot assert this position beforé
this Court, in appeal, simply because she has taken the position before the
ICA0 Council that the Convention and the Transit Agreement are not in
forceas between India and Pakistan. Can India denv the continuance in force
of the Coii\,ention and Transit Agreement. 25 betucen India and Pakistan,
for the purpose or ousting the jurisdiction of the Coiincil. and then take
exactly the opposite position for the purpose of founding this Court's juris-
diction? My learned friend argued on Friday that Pakistan was not being
fair in putting India in such a dilemma. With great respect to the learned
counsel for India, 1would submit that the dilemma is of their own making.
1 would merely like to quote the words of Justice Honyman in Smith v.
Baker (1873) L.R. 8 C.P., at page 357. He States:
"A man cannot at the same time blow hot and cold. He cannot say at
one timethat the transaction isvalid. and therebv obtainsomeadvantane.
to which he would only be entitled on the footing that itis valid, andai
another time say it is void for the purpose of securing some further
advantage."
Mr. President. 1 have submitted that even if India can relv on Article 36.
paragraph 1. ofthe Statute. and is perinitted to hlow hot and cold on thi;
issue. thal provision dors no1 confer jurisdiction on ihe International Court
<>fJusttce.The rexson for this isthat the relerence to Article 84 of the Chicago
Convention is to the Permanent Court of International Justice. and not IO
this honourablc Court. where~s in Article 36. paragraph 1.of the Stat.ite the
terrn "Court" relers to the International Court of Justice. Ii is u,cll kn0u.n
that the present Court is a new Court, and a reference to the Permanent
Court cannot mean an automatic reference to the present Court. In such
circumstances the International Court of Justice can only have jurisdiction
if such reference to the Permanent Court has been saved for the International
Court by virtue of Article 37 of the Statute of the Court.
My fourth and last submission on the competence of the appeal is that
Article 37 of the Statute could not have conferred jurisdiction on the Inter-
national Court of Justice in the circumstances of the case. The learned coun-
sel for India drew attention to the decision of this Court in the Barcelona
Traction case, I.C.J. Reports 1964, in which the preliminary objection of the
Government of Spain was similar toour submissions on Article 37. No doubt
in that case the preliminary objection of Spain was rejected by the Court.
However, in the instant case there are certain distinguishing features whichtioned in Pakistan's Counter-Memorial, at page 387,supra, which the learned
Counsel for India has so conveniently dismissed as being irrelevant. 1would
specially refer to the MavrommarisJerusalem Concessionscase (1924),P.C.I.J.
Series A, No. 2, at page 11, where it has held that: "A dispute is a disagree-
ment on a point of law or fact, a conflict oflegal viewsor ofinterestst between
two persans."
The point is, each assertion of a legal view or interest and denial by the
other party would constitute a separate disagreement or dispute. Therefore,
in the instant case, we respectfully submit that there are three disagreements
between the Parties.
1 shall now proceed ta show that each of these disagreements involves a
auestion of interoretation or annlication of the Convention or the Transit
Agreement, attracting the jurisdiction of the Council.
The first disagreement between the Parties arises from the assertion of
Pakistan that 1n8ia is denying Pakistan her rights and privileges under Article
5 of the Convention and ArticleI, Section 1,of the Transit Agreement. India's
denial of this position creates a disagreement regarding the application of
Article 5 of the Convention and Article 1,Section 1,of the Transit Agreement.
The second disagreement between the Parties arises from India's assertion
that the Convention and Transit Agreement were sus~ended in 1965 and
ivere never revived. Pdkistan does noÏaccept this and takes the position that,
consequent upon the armed hosiilitic~in Sepicmber 1965.lndia acied under a
provision of the Cc~nvention,that is. Article 89. She notified the Council on
9 September 1965 that she uould not be able to comply u,tth any or al1 the
provisions of the Convention and the Transit Agreement.
This means that the Convention was not sus~ended. but only the o~eration
of the rights and privileges with regard to ~akistan contained-in ~rGcle 5 of
the Convention and Article 1, Section 1, of the Transit Agreement, were
suspended under Article 89.
~ndeed. I>;ikistan3spositioni5thal under Article 89a State has only freedom
of aciion in relation to ils rights and ohligaiions as 3 belligercnt or neuiral,
or in relation to an emergency, but this does not mean that the Convention
issuspended. India's position, on the other hand, is that Article 89 is merely
declarative of a right under general international law to suspend treaties in the
case of armed conflict: whatever the merits of the positions taken by each
Party, it is very clear that a.question of interpretation of Article 89 of the
Convention arises, and consequently the Council's jurisdiction is attracted
under Article II, Section 2, of the Transit Agreement and Article 84 of the
Convention.
The third disagreement between the Parties arises out of India's assertion
that Pakistan has committed a material breach of the Convention because of
its conduct in relation to the hiiackina incident and. conseauent unon this
breach, India has a right to suspend the Convention and the~ransii Agree-
ment. Pakistan rejects the contention that it committed a breach of any pro;
vision of the convention and, further, that the Convention provides a specific
procedure to be followed in the case of a breach, which ousts any right of
unilateral suspension.
The assertion of India that there has been a material breach, and Pakistan's
rejection of this allegation, would clearly cal1 for an interpretation of the
relevant provision of the Convention.
India has also asserted that she has a right dehors the treaty to unilaterally
suspend the Convention on the basis of a material breach alleged by her
against Pakistan. Pakistan, on the other hand, has maintained that there is710 ICA0 COUNCIL
of these disagreements involves a question of interpretation and application
of the Convention and the Transit Agreement. 1 will now aive two more
independent reasons why the ~ouncil'~urisdiction is attracted.
The first is that when India States that the words "interpretation" and
"application" in Article II, Section 2, of the Transit Agreement and Article
84 of the Convention do not cover a question relating to the suspension of
the Treaty, they are in fact seeking an interpretation of the words "inter-
pretation" and "application" in the jurisdictional clauses and, consequently,
a question of interpretation does arise.
The second point is that the Council is competent to determine its own
jurisdiction. Consequently, no one party can assert the suspension of the
Treaty and claim that the Council has no jurisdiction ta determine whether
the Treaty continues or not. If this were permitted, India would hecome the
iudae of the Council's iurisdiction. and not the Council itself.
~ere, Mr. ~resideni, 1 may add that it was stated hy the learned Counsel
for India that a body like ICAO is not to determine its own jurisdiction; it is
not the final authority on the point, because an appeal against a decision lies
to this Court.
1had made a certain submission on the point. 1 do not Saythat appeal does
not lie to this Court. and 1 do not sav that anoeal on this ooint wilI not lie
to this Court. My only submission waithat on.; decision under Article 5 on a
preliminary objection, no appeal is provided at all. But if the case is finally
decided on merits under Article 84. alonr! with that. the question of iurisdic-
tion could also he taken "p in appeal, but at this stage when it is deccded asa
preliminary issue no appeal lies. Because the authoritythat 1have quoted says
that the matter becomes res iudicafa-res iudicara at that sta-..no further
îppedl 15provided 3gainst thit. But uhen the finaldccision isappcalcd against,
the quesrion ofjurisd~ctiun could hc tüken up al that stage also.
'Thelearned Chicf Counsel for India has net. in ms Iiumble submission.
stated anything new in respect of the manner and ineihod employed by thé
Council in reaching its decision which calls for further comments. 1 shall,
therefore, leave the third aspect of this case and confine myself to certain
other matters raised hy the learned Chief Counsel of India during his second
oral submissions on last Friday.
The suhmissions of the learned Chief Counsel for India in resoect of the
existence of a special agreement of 1966 related essentially ta the merits of
the case and it is not necessary for us to controvert these assertions to establish
that the Convention and the Transit Aereement were in force in order to
establish the jurisdiction of the ~ouncil~~ll we needed to show is that the
assertions and denials of the partiesconstituted disagreement relating to the
interpretation and applicationof the two treaties. We have already made our
submissions in this regard. However, it is submitted that the effect of Article
VI of the Tashkent Declaration and the letters exchanged between the Presi-
dent of Pakistan and the Prime Minister of India in February 1966 was that
the existing treaties, which included the Convention and the Transit Agree-
ment, were implemented.
The signals exchanged between the DGCA, Pakistan and DGCA, India,
pursuant to the aforesaid letters, were merely the steps forthe implementation
of the Convention and the Transit Agreement. The learned Chief Counsel
for India has freauentlv referred to these signais. That these signals did not
conslilute 3 neu agreck-nt replicinr: the Cinvention and the 6ansit Aprec-
ment ismanifc5t from the first feiv rignals iihich wcre exuhanged bct\ieen the
aviation iurhorities and are reproduced on pages 495 to 498, ritpraof Pakis- RWO~NDEROP MR. BAKHT~AR 711
tan's Rejoinder. The first s~gnalsent by DGCA, Pakistan, to DGCA. India,
on 15January 1966.rcads as follou,~: "Request confirm no objection to the
resumvtlon of normal oprrdtion by I'IAC Io and across India." This does no1
show ihat somebody was asking for permission: "Request coniùm no objec-
tion to the resumption of normal operation."
In revlv. DGCA. India. in his sienal of 4 Februarv 1966. stated: "Our
Governknt has agreed tb restarat& of over-flights of schéduled services
between India and Pakistan."
It was stated and asserted before this honourable Court that the signals
amounted ta agreement and here the signal said that our Government has
agreed. Where is that agreement? In the letters exchanged and the Tashkent
Declaration which said "on the same bafis" and which talked about these
two treaties? So it says "OUI governments have agreed to the restoration of
overflights of scheduled services between India and Pakistan".
The signal from DGCA, Pakistan to DGCA, India, of 7 February 1966
reads as follows:
"We have received instructions from our Gov~ ~ ~-- that the Gov- ~ ~ ~
ernment of India has agreed on reciprocal basis to the resirmprion of
overflights [the Court may be pleased to note my emphasis on the words
'to the~esumotion'l over each~other's territorv . .bv our resoective airlines
in accordanci with the procedures existing before 1st'~ugust 1965.
Accordingly we propose to resume overfliahts of Indian territory as Der
Then the schedule isjoined unto that.
In this signal the schedule of overflights of PIA was intimated to DGCA,
India, and he was requested to acknowledge the schedule. In reply DGCA,
India, in his signal of 8 February 1966,stated:
"We arree ta resumotion lanain the word 'resumotion'l of ovediehts
by schedule servicesélTecti;e-0001 LT 10 ~ebrüari 1965. We notethe
details of overflights of schedule services that PIAC propose to resume."
"We notew-again, there is no question of: we permit you, allow you,
nothing of the sort.
It is clear from these signals that the overflights were resumed in accordance
with the agreement reached between the two Governments wherein it was
agreed to resume overflights on the same basis whichexisted prior ta 1August,
1965, Le., on the basis of the Convention and the Transit Agreement. By
no stretch of inter~retation could these sienals constitute a s~ecial agreement
replacing the ~on;ention and the ~ransit Agreement which; to state India's
stand, were only suspended and not terminated. Kindly see paragraph 38,
page 419, supra, of Reply of India.
Thus keeping in viewthe provisions of the Tashkent Declaration, the letters
exchanged between the President of Pakistan and the Prime Minister of India,
and the signals exchanged between the aviation authorities of the two coun-
tries, it is manifestly clear that overflights were resumed on the basis of the
Convention and the Transit Agreement.
While trying to justify that Pakistan has been ohtaining prior permission
for its scheduled fli-hts to overflv Indian ter~ito~ , .~~~-earned Chief Cou~ ~ ~ ~ ~
of India has tried to lay wholly incorrect interpretation on certain letters sent
by Pakistan International Airlines to DGCA, India, in which scheditles of
overflights were filed by the Airline. These letters did not request prior per-
mission for operating the overflights. It may be stated, without any apprehen-sion of being contradicted, that it is an international practice that every
airline submits its schedules to the aviation authorities of the countries in
whose territory they land or overfly.
. From the documents we have fifed durina the course of the oral oleadines
before ihis honourdblc Couri, we have shown ihai similar practice kas bel&
folloued in respect of filing schedulcs c\,cn bcforc the iirmed conflict of 1965,
when, by India's own admission, the Convention and the Transit Agreement
were in force. The letter dated 4 September 1965 from the Manager, Air
India International, to the DGCA, Pakistan, clearly states that the latter
had eiven standine oermission for the overfliehts of Air India International.
haït the same procedure was being followed before September 1965, in
respect of filingthe schedules, as was followed after the armed conflict of 1965,
lends support to our submission that the filing of schedules was not inconsis-
tent with the Convention and the Transit Agreement.
The learned Chief Counsel for India referring to my address at page 625.
supra, stated, in his address-his address being at page 674, supra:
"My learned friend has stated also, at the commencement of his argu-
ment: 'Before the Council, the words "material breach" were not men-
tioned' (supra, p. 625).
Now this is incorrect. 1 will not multiply references to what was stated
before the Council, but just to satisfy theCourt that the point of material
breach was specifically argued in terms on behalf of India, 1would draw
attention to India's Memorial, page 147,supra, paragraph 21. This para-
graph deals with India having exercised its right under international
law to suspend the treaties on the ground of material breach and what is
argued before the Council is that this right of lndia is supported by the
decision of this Court."
My learned friend has, by this statement, tried to give the impression to
this honourahle Court that perhaps 1 tried to mislead the Court or mis-state
facts. My learned friend should have read the elaboration of my said sub-
mission, which was in his possession when he made that statement. This
appears on pages 645 and 648, supra, and reads as follows:
"... this, Mr. President, was my first submission, but you may kindly
note that, before the ICA0 Council, this objection was not specifically
taken by India in their pleadings. This is an afterthought. Vaguely this
ground was taken in the submissions before the Council by India, but
India's written pleadings did not mention that this action had been
taken because of a material breach on the part of Pakistan which entitled
India, under some rule of international law, to suspend the treaty or its
operation."
Then 1 further submitted (p. 648):
"So 1 submit, Mr. President, that this point of a material breach is an
afterthought and the Court may be pieased to look throueh the orelim-
inary objëctions, as filed before the Council. They apgear on pages
98-109, supra, of the Indian Memorial. Allthe pleadings do not mention
material breach at all, this istaken for the fist time: whether they can
take itfor the firsi lime is for this honourable Court io judge. The ~oun-
cil was not bound u,hcn thc point ulis noi tïken in ~hcirplelidings-ihey
had been vaguely argued before that-to give any verdict or any finding
on that, or to take it into consideration at all." RWOINOER OP MR. BAKHTIAR 713
1had made it plain that in their preliminary objection, appearing on page
98, supra, of the Indian Memorial, India had not mentioned material breach
at al1or based their right on general international law on it. 1 had stated in
rny suhmission that before the ICA0 Council, the Chief Counsel for India
may have made suhmissions on the point of material breach but the Council
was not hound ta take anv notice of it hecause these were not soecificallv
taken bcfore the Council inthcir plcading?, i.c.. iheir prrlirninary objection.
It 1snow for the hi)nourahle Court to judge r\hethrr thcrc has ben sny mij-
statement of facts, and by whom.
The Court will be pleased ta remember that when 1was making submission
on a certain Award, given by the Arhitrator Professor Pierre Lalive in an
International Commercial Arhitration case. the learned Chief Counsel of
India interrupted me and objected ta the CO& that he had no notice of that
award and therefore, it should not he referred ta. 1knew it was emharrassing
for him to mention that Award and therefore. 1did not make anvfurthersub-
mission on the intervention of the ~resident of the Court. 1 was, therefore,
amazed that the learned Chief Counsel of India made elahorate suhmissions
with regard ta this Award in Iiis reply. The Award, among other things,
also interpreted Article VI of theTashkent Declarationand, in paragraph 49,
states as follows: !
"It is, therefore, interesting to note that not one of the treaties con-
cluded hy India and Pakistan hefore Seutemher 1965 seems to have
heénconiidered on either side as c.incelled. ..On the contrary. cvtdencc
may be found ta show ihîi bothcountrie> havcvie\red these treaties as
still in forc.. .hloreo\.er. this view tindsa confirmation in Article VI
of the Tashkent ~eclaration, wherehy the Prime Minister of India and
the President of Pakistan agreed 'ta take measures to implement the
existing agreements hetween India and Pakistan3-and not, for instance,
to 'revive' former agreements cancelled by a 'war'."
When 1 submitted earlier that it was perhaps embarrassing for the learned
Chief Counsel for India that 1referred to this Award, my reason simply was
that it was his able argument that helped the Arbitrator to came ta this con-
clusion. He appeared for Dalmia in that case.
On the suhject of documents which have been filed hy India during the
oral pleadings before this honourable Court,the Chief Counsel for India has
attrihuted certain false statements to Pakistan. The Chief Counsel for India
has stated at page 592,supra:
"... Pakistan itself has prohihited the overflights of theaircraft of certain
countries and it has [puhlished this notification containing the prohibi-
tion in the Aeronautical Information Circular+xactly like India: it isl]
not puhlished the notification in the Aeronautical Information Publi-
cation."
This statement is incorrect. He called Our statement false but 1 would say
his statement is incorrect. Pakistan has not issued anv Aeronautical Infor-
mation Circular on the subjccr and has in fact includéd this information in
its Aeronauticîl Information Publication on page GEN 1-4,para. 8.1.3 iihich
reads as follows:
"No Rhodesian and Israeli registered aircraft are permitted to operate
to or overiiy Pakistan. No flight of International air line, scheduled or
1 Deleted from finalcorrectedtext of lndian Counsel'soral argument.714 ICAO COUNCIL
non-scheduled operating ta or from Rhodesia or Israel is permitted to
operate or overfly Pakistan."
1 do not need to go any further into such statements made by the Chief
Counsel for India. The Court may kindly examine and judge them for them-
selves.
In conclusion, once again, Mr. President and Members of the Court, 1
thank you for the courtesy and accommodation shown to me in making my
submissions and the patience with which you have heard me. Thank you
very much. CLOSING OF THE ORAL PROCEEDINGS
CLOSiNG OF THE ORAL PROCEEDINGS
Le VICE-PRÉSIDENT faisant fonction de Président: Je m'adresse aux
deux Parties.La Cour a écouté avec intérê lets exposésqui ont étéfaits et je
tiensA remercier en son nom les agents et les conseils des deux Parties. Les
débats sont closet vous serezinformésde la date?tlaquelle l'arrêtsera pro-
noncé.
The Court roseat 4.5p.m. TENTH PUBLIC SITTING (18 VI1172.10 a.m.)
.Presen<:[See sitting of 19 VI72.1 . .
. .
. . READING OF THE JUDGMENT ..
The VICE-PRESIDENT, acting President in ihe case: The Sitting is,okn.
The Court meets today to deliver itsJudgment in the Appealrelaring rothe
Jurisdiction of the ICA0 puncil, brought before it on 30 August 1971 by an
Application of India against Pakistan.
1 shdl now read the French text of the Judgment:
[The President reads paragraphs 9 to 461.1
1 cal1 upon the Registrar to read the operative part of the Judgment in
English.
[The Registrar reads the operative part of the Judgment in Englishz.1
President Sir Muhammad Zafrulla Khan and Judge Lachs append declara-
tions to the Judgment. Judges Petrén, Onyeama, Dillard, de Castro and Jimé-
nez de Aréchaga,append Separate Opinions to the Judgment. Judge Morozov
and Judge ad hoc Nagendra Singh append Dissenting Opinions to the Judg-
ment.
In order that the Court's decision might be made known as soon as
possible, and by reason of the delays which would have occurred if it had
been necessary to postpone the delivery of the Judgnient until printing of the
Judgment and the separate and dissenting opinions had been completed, it
was decided to read the Judgment today from a duplicated text. The usual
printed editinn will appear in approximately three weeks.
nie sitting is c/osed.
(Signed) F. AMMOUN,
Vice-President.
(Signedl S. AQUARONE,
Registrar.
2Ibid.,p.70rt 1972,pp.50-70.
Procès-verbaux des séances publiques tenues au Palais de la Paix, à La Haye, du 19 juin au 3 juillet, et le 18 août 1972, sous la présidence de M. Ammoun, vice-président