Audience publique tenue le mercredi 5 avril 2000, à 10 heures, au Palais de la Paix, sous la présidence de M. Guillaume, président, puis de M. Shi, vice-président

Uncorrected Non-corrigé

CR 2000/3

International Court Cour internationale
of Justice de Justice

THE HAGUE LA HAYE

YEAR 2000 ANNEE 2000

Public sitting Audience publique

held on Wednesday 5 April 2000, tenue le mercredi 5 avril 2000,

at 10 a.m., at the Peace Palace, à 10 heures, au Palais de la Paix,

President Guillaume and Vice-President Shi sous la présidence de M. Guillaume, président,

presiding, successively, puis de M. Shi, vice-président
in the case concerning en l'affaire de
Aerial Incident of 10 August 1999 l'Incident aérien du 10 août 1999
(Pakistan v. India) (Pakistan c. Inde)

_______________ ____________

VERBATIM RECORD COMPTE RENDU

_______________ ____________

_______________

Present: Presdilatume Présents : M. Guillaume, président
Vice-President Shi M. Shi,vice-président

Judges Oda MM. Oda
Bedjaoui Bedjaoui
Ranjeva Ranjeva
Herczegh Herczegh
Fleischhauer Fleischhauer
Koroma Koroma
Vereshchetin Vereshchetin

Higgins Mme Higgins
Parra-Aranguren MM. Parra-Aranguren
Kooijmans Kooijmans
Al-Khasawneh Al-Khasawneh
Buergenthal Buergenthal, juges

Judges ad hoc Pirzada MM. Pirzada
Reddy Reddy, jugesad hoc
Deputy Arnaldez M. Arnaldez, greffier adjoint
Registrar

__________

The Government of the Islamic Republic of Pakistan is Le Gouvernement de laéR publique islamique durepresented by: Pakistan est represent éar :

Mr. Amir A. Shadani, Ch argé d'affaires a.i., M. Amir A. Shadani, chargé d'affaires par
Embassy of Pakistan, The Hague, intérim à l'ambassade du Pakistan aux Pays-
Bas,
as Acting Agent;
faisant fonction d'agent;

Mr. Jamshed A. Hamid, Legal Adviser, M. Jamshed A. Hamid, conseiller juridique
Ministry of Foreign Affairs, Islamabad, au ministère des affa ires étrangères à
Islamabad,
as Co-Agent;
comme coagent;

Mr. Moazzam A. Khan, First Secretary, M. Moazzam A. Khan, premier secrétaire à
Embassy of Pakistan, The Hague, l'ambassade du Pakistan aux Pays-Bas,

as Deputy Agent; comme agent adjoint;

H.E. Mr. Aziz A. Munshi, Attorney General S. Exc. M. Aziz A. Munshi, Attorney
for Pakistan and Minister of Law, General du Pakistan et Ministre de la
justice,
as Chief Counsel;

comme conseil principal;
Professor Sir Elihu Lauterpacht, C.B.E., Sir Elihu Lauterpacht, C.B.E., Q.C.,
Q.C., Honorary Professor of International professeur honoraire de droit international à
Law, University of Cambridge, and Member l'Université de Cambridge et membre de

of the Institute of International Law, l'Institut de droit international,

Dr. Fathi Kemicha, Doctor of Law of Paris M. Fathi Kemicha, docteur en droit de
University, avocat at the Paris Bar, l'Université de Paris, avocat au barreau de
Paris,
Mr. Zahid Said, Barrist er-at-Law, Ministry
of Law, Justice and Human Rights, M. Zahid Said, avocat , ministère du droit,
de la justice et des droits de l'homme,

Mr. Ross Masud, Deputy Legal Adviser,
Ministry of Foreign Affairs, Islamabad, M. Ross Masud, conseiller juridique adjoint
au ministère des affa ires étrangères à
Mr. Shair Bahadur Khan, Deputy Legal Islamabad,
Adviser, Ministry of Foreign Affairs,
Islamabad, M. Shair Bahadur Khan, conseiller juridique
adjoint au ministère des affaires étrangères à
as Counsel; Islamabad,

comme conseils ;
Miss Norah Gallagher, Solicitor, Mlle Norah Gallagher, Solicito,

______________

The Government of the Republic of India is Le Gouvernement de la R pubéique de l'Inde est
represented by: représent éar :

H.E. Mr. Prabhakar Menon, Ambassador of S. Exc. M. Prabhakar Menon, ambassadeur
the Republic of India to the Netherlands, de la République de l'Inde aux Pays-Bas,
The Hague,
comme agent;

as Agent;
Dr. P. S. Rao, Joint Secretary (Legal & M. P. S. Rao, secrétaire adjoint (affaires
Treaties) and Legal A dviser, Ministry of juridiques et traités) et conseiller juridique
External Affairs, New Delhi, du ministère des affaires extérieures àas Delhi,nt and Advocate; New

comme coagent et avocat;
Ms M. Manimekalai, Counsellor (Political), Mme M.Manimekalai, conseiller (affaires
Embassy of India, The Hague, politiques) à l'ambassade de l'Inde aux Pays-
Bas,

as Deputy Agent;
comme agent adjoint;
H.E. Mr. Soli J. Sorabj ee, Attorney General S. Exc. M. Soli J. Sorabjee, Attorney
of India, General de l'Inde,

as Chief Counsel and Advocate; comme conseil principal et avocat;
Mr. Ian Brownlie, C.B.E., Q.C., F.B.A., M. Ian Brownlie, C.B.E., Q.C., F.B.A.,
Member of the International Law membre de la Commission du droit
Commission, Member of the English Bar, international, membre du barreau

Emeritus Chichele Professor of Public d'Angleterre, professe ur émérite de droit
International Law, University of Oxford, international public (chaire Chichele) à
l'Université d'Oxford,
Mr. Alain Pellet, Profe ssor, University of
Paris X-Nanterre and In stitute of Political M. Alain Pellet, professeur à l'Université de
Studies, Paris, Paris X-Nanterre et à l'Institut d'études
politiques de Paris,
as Counsel and Advocates;

comme conseils et avocats;
Dr. B. S. Murty, Formerly Professor and M. B. S. Murty, ancien professeur et doyen
Dean of Law, Andhra and Osmania de la faculté de droit, Universités d'Andhra
Universities, Advocate, Hyderabad, et Osmania, avocat, Hyderabad,

Mr. B. Sen, Senior Advocate, Supreme MB.. en, avocat principal à la Cour
Court of India, New Delhi, suprême de l'Inde, New Delhi,

Dr. V. S. Mani, Profe ssor of International M. V. S. Mani, professeur de droit
Space Law, Jawaharlal Nehru University, international de l'espace, Université
New Delhi, Jawaharlal Nehru, New Delhi,

re
Dr. M. Gandhi, Legal Officer (GradeI), M. M. Gandhi, juriste (I classe), au
Ministry of External Affairs, New Delhi, ministère des affaires extérieures,
New Delhi,
as Counsel and Experts;
comme conseils et experts;

Mr. Vivek Katju, Joint Secretary (IPA), MV.ivkatju, secrétaire (IPA), au
Ministry of External Affairs, New Delhi, ministère des affaires extérieures,
New Delhi,
Mr. D. P. Srivastava, Joint Secretary (UNP),
Ministry of External Affairs, New Delhi, M. D. P. Srivastava, secrétaire (UNP), au

ministère des affaires extérieures,
as Advisers; New Delhi,

comme conseillers;

Ms Marie Dumée, Temporary Research and Mme Marie Dumée, attachée temporaire
Teaching Assistant, University of Paris X- d'enseignement et de recherche à
Nanterre, Paris, l'Université de Paris X-Nanterre, Paris,

as Research Assistant. comme assistante de recherches. __________

Le PRESIDENT : Veuillez-vous asseoir. La séance est ouverte. Cette audience marque le début du deuxième tour de
plaidoiries orales et la parole se ra ce matin à la République islamique du Pakistan. I now give the floor to

Sir Elihu Lauterpacht for Pakistan.

Sir Elihu LAUTERPACHT: Thank you, Mr. President.

Mr. President and Members of the Court, it is my task to attempt to repl y to the case that has been put by the
Government of India. I thank you, Mr. Pr esident, for having recalled yesterday the terms of Article 60, paragraph 1,
of the Rules. I certainly intend, or will attempt to comply with that prescription.

As the Court will realize, in the manner in which these hearings have been organized, with no whole day between
the presentation of the Indian case or the opportunity fo r Pakistan to reply to it, I have had to work under
considerable pressure to prepare myself. I should say this is emphatically not a pre-prepared reply. I apologize to the
Court for a presentation which may, as a result, be a little le ss than smooth, because there is no fully prepared text. I
must also apologize to the interpreters and ask for their patience and tolerance, because I have not been able to
provide them with a text on what I am about to say.

There is one opening comment that I am bound to make on the Indian appr oach. My expectation was that yesterday

India would have replied to Pakistan's opening statement. In fact, India did not reply to Pakistan's opening statement.
Pakistan's arguments — and I put this as being a central point — about the Commonwealth reservation were almost
entirely disregarded. And any reply thereto was oblique — oblique and incidental — rather than direct. The Pakistan
argument that the Commonwealth reservation was inapplicable or unopposable to Pakistan was never discussed, nor
was the argument that the inapplicabilit y or inopposability avoided the need to discuss the question of severability.
These were just left aside.

Perhaps the Court may take it that India has no answer to make to th ese Pakistan arguments. However, the
possibility has to be foreseen that India may be saving its real reply to these arguments for its rejoinder tomorrow. In

anticipation of that possi bility, may I say that Pa kistan would take the gravest exce ption to such a course. If India
had answered yesterday what Pakistan had said on M onday, then Pakistan would have had the opportunity o f
responding today to what Indi a might have said yesterday. But if India answer s tomorrow, Pakistan will not have
that opportunity, unless the C ourt recognizes the inequality flowing from such a course of argument and gives
Pakistan the opportunity to reply to any new points that India may then make. In that event, I would find it necessary
to ask the Court to consider a further sitting, at whatever might be a moment convenient to the Court, in order to
allow Pakistan to redress the balance.

Mr. President and Members of the Court, in order to provide a framework for this reply, let me very briefly recall

the two main grounds on which Pakistan re sts jurisdiction: (i)the optional clause ; (ii)the General Act. I will not
pursue the argument that the Court has jurisdiction under Article 36, paragraph 1, as the case specially provided for
in the Charter. Within the optional clause there are two main issues: the first on the effect of the Commonwealth
reservation; the second on the effect of the multilateral treaty reservation. I can say straight away that I need not take
the Court's time in relation to the mu ltilateral treaty reservation. In no way does Pakistan abandon the case which it
has put on the multilateral tr eaty reservation, but Pakistan does not need to invoke the Charter as the substantive
basis for its case, which really rests on considerations of customary internat ional law. The fact that customary
international law is embodied in the Charter does not weaken the strength of Pakistan's case.

Pakistan is not arguing that the multilate ral treaty reservation is void or inappl icable, or not opposable to it. It does
not need to. The multilateral treaty reservation is simply irrelevant and Pakistan relies, as it said earlier, on the view
that the Court took of the multilateral treaty reservation in theNicaragua case. So I shall, Mr. President, concentrate
on the Commonwealth reservation.

Now there appears to be some misunde rstanding on the part of India. Pa kistan is not now arguing that the
Commonwealth reservation is void, notwithst anding the fact that the Indian argum ents were essentially directed to
the question of whether or not the Co mmonwealth reservation is invalid. All India's arguments about the wide

freedom enjoyed by States to make reservations is not to the point. Pakistan does not c ontest that States may make
what we have chosen to call in our openi ng speeches "extra-statutory reservations", that is to say, reservations that
go beyond the scope permitted by Article 36, paragraph 3, of the Statute.

Pakistan's point is more subtle. True, it starts from the proposition that the Commonwealth reservation is not inaccordance with Article36, paragraph3— it falls outside the scope of the items identified there; I need not repeat
the supporting arguments. But th e consequence is not that the Commonwealth reservation is void. It is only that it
cannot be invoked against Pakistan. It is not opposable to Pakistan, and that is because, as Pakistan explained in its
opening speeches, an extra-statutory reservation can only be invoked against a State that in some way or another has
exhibited its agreement to the presence of the extra-statutory reservation. One reason may be that the applicant State

itself has a comparable reservation and is therefore precluded from denying the opposability of a similar reservation
introduced by the defendant. Or it may be that the applicant State chooses to meet the reservation on its substance.
You will recall that the Court had to consider some aspects of th is matter in the case concerning Fisheries
Jurisdiction (Spain v. Canada) . Ultimately, the Court approached the ma tter in terms of fi nding that Spain's
arguments were about the interpretati on of the Canadian reservation, not ab out its validity, so the Court did not
consider the question of the validity or opposability of the Canadian reservation.

So I am suggesting, Mr. President, or stating, that Pakistan's arguments re lating to the Commonwealth reservation
are not that it is void ¾ it is only that it is not opposable to Pakistan. India has been saying that Pakistan's arguments

are bold, novel ¾ this is in relation to the assumption that the argument is about validity. The argument is not about
validity. But in so far as there is an element of novelty, this does not make the Pakistan argument wrong. Courts are
always being confronted by ne w points of law, new arguments , in relation to what had previously been thought to
have been settled or comprehensive jurisdiction. If the law consisted only of old points, then there would be nothing
for courts to do. In other words, I am urging that the Court should approach this matter with an open mind, as I am
sure it does. The fact that the argum ent has in it an element of novelty, that it suggests a way for the Court to
approach the resolution of this problem, does not¾ if I may respectfully say so¾ weaken or invalidate the
argument. Pakistan has been submitting a way in which th e Court can escape from the li mitations of a reservation,
which I have argued earlier, is obsolete. It really has no place in the contemporary scene.

India has made no reply to Pakistan's demonstration that India does not in general have a problem with compulsory
jurisdiction in certain situations, or th at India accepts the appli cability of international law in its relations with
Pakistan. Not a word has been said by India in response to the mention of the Rann of Kutc h case, the ICAO
proceedings in this Court, the compulsory effect of th e provisions in the United Na tions Convention on the Law o f
the Sea of 1982, or the dispute settl ement understanding of the World Trad e Organization. Why is no reference
made to those? Why does India not try to distinguish them from what Pakistan is urging is the position in this case,
namely a position of compulsory jurisdiction? I would respectfully suggest, Mr. President, that India does not do so
because it is shaming that a State should accept that degree of exposure to litigation in the situ ations I have just

mentioned and yet decline to come to this Court in the circumstances of the present case.

What Pakistan has built up is a case s howing that India's recourse to the Co mmonwealth reservation is simply an
arbitrary way of excluding pr oceedings by Pakistan and not anyone else. Pa kistan says that this is not a good faith
way of operating. In this connection, it refers to the Simla Accord, not as itself being uniquely a direct source of the
jurisdiction of the Court, but as supportive of the denial to India of the right to use the Commonwealth reservation to
exclude jurisdiction in this case. How can one seriously unde rtake, as India has done in the Simla Accord, to settle
disputes by peaceful means, and then interpose the Commonwealth reservation in the circumstances of this case. I
am urging the Court, Mr.President, to look at the facts of this case, of the special rela tionship between India and

Pakistan established by the Simla Ac cord. India cannot on the one hand in that Agreement hold out the hand o f
friendship and say "we will se ttle disputes by peaceful means to be agreed" and th en, when Pakistan invokes those
peaceful means, which pre-existed the Simla Accord and existed after it too. I ndia cannot therefore say "No, we are
going to adhere to the strict terms of our reservation".

To this line of argument, Mr. President, India has offered no reply, a nd I submit that it is not entitled to return to
these matters at this stage of the hearing. Because India has stuck to a pre-prepared position on the Commonwealth
reservation, it has produced nothing new in response to Pakist an on this point. Mr. President, in taking heed of your
admonition, I will avoid unnecessary repetition. If, however , I should prove wrong in iden tifying the areas which I

may properly omit from this reply, I shoul d be most grateful if any Member of th e Court who is troubled by that
omission would put to me any question that they consider necessary.

The argument which was advanced on behalf of India that there is no limit to the reservations that a State may make
and that it is a good thing that reservations should be allowed; that, I would submit, is a highly debatable opposition.
There is little evidence that optional clau se declarations have been a significant source of jurisdiction for the Court,
except in the sense that the Court has been given plenty of work consideri ng preliminary objections. Is this a good
thing? Is the course of judicial sett lement advanced by such an approach? But more important, the question of the

liberty to make reservations has always been considered against the background of the prospective invalidity of an
extra-statutory reservation. Pakistan's proposition, however, is not so far reaching. Pakistan does not seek to preventthe making of extra-statutory reservations. It acknowledges that they may ope rate when the respondent State shows
that it accepts them. All that Pakistan is saying is that an extra-statutor y reservation is not opposable to a State that
does not accept it.

As such, the reservation is not void. It s condition does not give rise to the problem of severability. The reservation
simply cannot be used against the State that objects to it and ha s done nothing previously to imply its consent to it.
The Court has never had occasion to consider this point and therefore has never excluded it. Pakistan contends that it
is an approach that the Court can, and should, in my respectful submission, properly apply.

I turn to another point, Mr. President. My learned friend Professor Brownlie acknowledged at one point that some
reservations may be invalid. He did so in guarded terms. He sought to dist inguish those cases in which individual
judges had pointed out that reservations should not be repugnant to the St atute, but he said that their views had all
been related to Article 36, para graph 6, the paragraph relating to the Court' s right to determine its own jurisdiction.

He overlooked the mention by Pakistan of the observation of JudgeAgo in the Nauru case regarding the
obsolescence and inapplicability of th e British Commonwealth reservation, an observation which¾ coming from a
judge of such experience and standing¾ is not likely to be disregarded. Ye t that by itself does not exclude the
application — in other words, that being the relationship between those judges who were opening up the possibility
of questioning a reservation and Ar ticle36, paragraph6. That does not by itself exclude the application o f
comparable reasoning to reservations incompatible with Article 36, paragraph 3. Professor Brownlie did not suggest
any basis on which the two situations might be distinguished. My submissi on is that if one can question, as
Professor Brownlie appears to accept, the compatibility of a reservation with Article 36, paragraph 6, so equally one
can question the compatibility of a re servation with Article36, paragraph3 ¾ always assuming that the conditions
are appropriate. Moreover, I say in passing, his approach to the matter was in terms of invalidity consequential upon

incompatibility. Pakistan's suggestion is much less bold¾ not invalidity, but inapplicabil ity¾ and is therefore the
more readily accepted.

Professor Brownlie then advances an ar gument to the effect that the concept of obsolescence is admissible at all, is
only admissible in relation to the whole declaration of which the obsolete reservation forms part. But apart from the
authority of his own statement—and I concede that it is cons iderable—he has not advanced any objective
consideration in support of his position. Even though Indi a may have reassert ed its Commonwealth reservation in
1974, that does not prevent it being obsolete even when a dopted or reaffirmed. As I suggested to the Court on

Monday, the Commonwealth reservation has long since passed its use- by date. The fact that it is still on the shelves
does not improve its quality.

Now, Mr. President, permit me please to tu rn next to the question of the surviv al of the General Act. I am leaving
the optional clause matter behind me , my submission on that is that Indi a's Commonwealth reservation is not
applicable to Pakistan and that the Court may properly proceed on that basis.

India's second contention — as an altern ative or a supplementary approach — is that jurisdiction of the Court exists

under the General Act of 1928. Pakistan contends that the General Act survived the demise of the League o f
Nations. I am bound to suggest that the relationship, or dependence as some have put it, of the General Act upon the
League of Nations has been somewhat exaggerated.

If I may, Mr. President — and I do not propose to spend much time on this — let me just quickly look at the text o f
the General Act. ChapterI, as the Court will remember, deals with conciliation and the only reference in that
Chapter to the League of Nations is in Article 9, which says that in the absence of agreement to the contrary between
the parties the Conciliation Co mmission shall meet at the se at of the League of Nations; hardly a major element o f
dependency upon the existence of the League.

Let us turn to ChapterII, Judicial Settlement, which is the Chapter invoked by Pakistan. There is not a word in
ChapterII about the League of Nations. Nor is there in ChapterIII about arbitrat ion. So one then turns to
Chapter IV, General Provisions, and it is only in Article 43 that there is mention of the League of Nations. Article 43
says that

"The present General Act shall be open to accession by all the Heads of States or other competent
authorities of the Members of the League of Nations and the non-Memb er States to which the Council

of the League of Nations has communicated a copy for this purpose".

I will come later to the question of closed membership, but that is the reference to the League in Article 43 and then
in Article44, there is a reference to the "Act [comin g] into force on the ninetieth da y following receipt by theSecretary-General of the League of Na tions of the accession of not less than two Contracting Parties", which is
obviously an item that has been ove rtaken by events; and then in Arti cle45 there is the provision about
denunciation, to be effected by a written notification addr essed to the Secretary-Gene ral of the League; and in
Article 46, a copy of the present act shall be deposited in the archives of the League; and in Article 47, the reference
to registration by the Secretary-General of the League.

I mean no disrespect to Judge Morozov, wh ose views were quoted by India, but with the greatest of respect to him,
the text which I have just shown to the Court does not really bear out his proposition that the existence and operation
of the General Act is so closely tied to the League of Nations, that its survival is dependent upon the continuation o f
the League. Moreover, as the Court will be aware, the functi ons of the League, of the kind that are referred to in the
General Act, were transferred to the United Nations by corresponding resolutions of both the last League of Nations
Assembly and of the first General Assembly of the United Nations. The relevant resolu tion is General Assembly
resolution 24/1 of 12 February 1946. I need only read you four short extracts:

"The General Assembly declares that the United Nations is willing in princi ple, and subject to the
provisions of this resolution and of the Charter of the United Nations, to assume the exercise of certain
functions and powers previously entrusted to the League of Nations, and adopts the following decisions,
set forth in A, B, and C below."

And then later on:

"These functions include: The rece ipt of additional signatures and of instruments of ratification,
accession and denunciation; receipt of notice of extension of the instruments to colonies or possessions
of a party . . .; notification of such acts to other parties . . . A ny interruption," the resolution continues,
"in the performance of these functions would be contrary to the interests of all the parties."

It continues:

"Therefore: The General Assembly declares that the UnitedNations is willing to accept the custody of

the instruments and to charge the Se cretariat of the UnitedNations wi th the task of performing for the
parties the functions, pertaining to a secretariat, formerly entrusted to the League of Nations."

And that is all in that Assembly reso lution which is really necessary for the purpose of show ing how the United
Nations was able or was empowered to take over the functions previously performed by the Secretary-General of the
League. The performance by the United Nations Secretariat of t hose functions is evidenced, as the Court will o f
course know, by this massive volume called multilateral treaties deposited with the Secretary-General, where, in the
last section, one will find references to the various treaties concluded under the auspices or within the framework, or
in association with, the League of Nations where the functions have been taken over by the UnitedNations

Secretariat.

There is, and I say this parenthetically, one additional pr ovision in that resolution, of which I think the Court may
like to be aware. Section C is called "Functions and Powers under Treaties, International Conventions, Agreements
and Other Instruments, Having a Political Character".

"The General Assembly will itself examine, or will submit to the appropriate organ of the
UnitedNations, any request from th e parties that the UnitedNations should assume the exercise of

functions or powers entr usted to the League of Nations by treaties, international conventions,
agreements and other instruments having a political character."

So far as I am aware, no request of that kind was ever made to the United Nati ons in respect to the General Act. An
absence of a position taken by the parties to the General Act which suggests that they did not think it was an
instrument having a political characte r. And this may be of relevance at some othe r point in the Court's
consideration of this case, when the view is examined that there should be no successi on in respect of political
treaties. But that is, as I said, Mr. President, just a parenthetical point.

I just want to turn for a moment to the suggestion that the closed circle of States parties to the General Act excludes
the participation of Pakistan . Mr. President, my submissi on is—and I will support it in significant detail in a
moment—that this contention cannot affect Pakistan because Pakistan su cceeded to the participation of a
previously undivided India. Pakistan was not a new party, it was not excluded from participation in the General Act
because it was not seeking to become a new party. It was a party by reason of India's original membership.And now, Mr. President, I come to a rather important set of considerations: the nature of the succession that too k
place in India in 1947. My learned friend, Professor Pellet, referred to the 1978 Vienna Convention on Succession of
States in respect of Treaties. It is not a very important point, but I must make it, that that Treaty, that Convention, by
its own terms only applies to succession occurring after entry into force, not to events that occurred 30 years earlier.
Nor does the possibility that so me provisions of that Convent ion may be held to fall wi thin the range of matters o f

customary international law extend to the rather technical approach that that Convention adopted in relation to other
matters of State succession, so I mentioned that just to put it aside.

However, what really matters in this case are the facts, and the general approach of India to the question o f
succession does not tally with the facts. It is a very important point, my emphasis is on the facts, as I shall presently
demonstrate.

Professor Pellet classified the position of India as a newly independent State which inherits the personality of British

India. In his view, Pakistan, for its part, was separated from India and its succession poses other problems. What was
the true position? For this, Mr.President, Members of the Court, we mu st look afresh at th e third volume of the
Partition Proceedings. I must say that I did not see a copy of this volume until yesterda y, when it was very kindly
provided to us by India. ProfessorPell et was at pains to indica te that India had not de liberately suppressed the
volume, and I certainly had not intended to suggest that there had been an element of deliberate suppression, though
I may point out, that in accordance with the Rules of Court, India should have filed with the Court at the time of its
Counter-Memorial the volume to which it was referring. Anyway, I am grateful to India for having provided us with
a copy and presumably it also provided the Court with a copy, and I have handed to the interpreters a truncated copy
which contains, I hope, all the pages to which I am about to refer.

The position that appears from the Partition Proceedings is somewhat different from the position as set out by India
previously. Forgive me, Mr.President, for reading rather a lot, but it is a ra ther interesting study¾ and in parts
almost makes one feel that one is li ke a detective unravelling a mystery. Al so, it is the only way that I have o f
conveying to the Court the subtleties of the situation. I have in my hand, Mr.President, a photograph provided by
India of the Partition Pr oceedings, VolumeIII. The title page shows th at it was printed in India by the Manager o f
the Government of India Press, New Delhi, in 1948. As background to the study of this volume, the Court must bear
in mind the terms of the Indian Independence Act of 1947, which entered into force on 18 July 1947. There are two
provisions that I must specifi cally mention, as indicative of the fact that India and Pa kistan were intended to be

created as two dominions on a footing of equality; there is no question of some superiority being accorded to India
by virtue of its pre-existing international personality, and some subordination of Pakistan, by virtue of its separation
from India.

The Act conveys the philosophy that we are dealing here with two equal and independent States, and that philosophy
is reflected in two provisions; Section 1, paragraph 1, as from 15 August 1947, two independent dominions shall be
set up in India to be known respectively as India and Pa kistan. The second provision¾ of which one should be
aware ¾ is that in Section 9, which gave to the Governor General the power to make orders considered by him to be
necessary or expedient for a variety of purposes. It was this section, pursu ant to which the Indian Independence

(International Arrangement) Order of 1947, was made— made on 14 August1947, before Independence on
15August. So the division¾ to which I shall come back in a moment— th e division of treaty obligations was
established prior to Independence. It was not a case of India devolving tr eaties upon Pakistan; that was a matter that
was regulated even before the two dominions came into existence.

Having spoken of the background, permit me please to take you to the document itself. I have read you the title
page, the indication of its provenance. The title page says "Partition Proceedi ngs, VolumeIII, Expert Committees
Nos.III-IX"; the Contents foll ows, and there are nine chapters— we are only interested in the last one, Chapter 9,
which is called "Foreign Relations", and extends from pages 201 to 294. The sect ion or the chapter is introduced by

the heading "Foreign Relations". The first item in it is called "Report of the Expert Committee No.IX, on Foreign
Relations"; it is preceded by a list of the members: Composition— and I shall just make it very short— Mr.Pai,
Mr. Ikramullah, Mr. Iskander Mirza, Mr.AchutaMenon, Mr.Jha, they were the five members; three were, as I
understand it, Indian or Hindu and two were Pakistani or Muslim and there were two secretaries.

Let us start by looking at the terms of reference. "To examine and make recommendations on the effect o f
partition" — then follows a list of five items:

"(i) on the relations of the succe ssor Governments with each other a nd with other countries (including
the countries of British Commonwealth and border tribes), (ii) on the position of Indian nationals abroad,

(iii) on India's diplomatic representation,

(iv) on the existing treaties and engagements between India and other countries and tribes,

(v) on India's membership of international organizations."

We then enter the substance of the re port, and we have headings on the "Rel ations of successor Governments with
each other and with other c ountries", that contains nothi ng of relevance; "Relations between India and Pakistan",
that we need not get into; "Relations of the two Dominions with other countries". It is interesting that in that section
there appears a sentence which I admit I am taking in a sense out of context but it has a bearing on what we have

been talking about: "the British Government", it says, this is in paragraph 10, page 205,

"The British Government have take n the view on many occasions in the past that the relations of
various parts of the Empire inter se are not relations governed by international law but are constitutional
in character, but whatever may be the position in theory, in practice, in relation to each other stand in
the same position as independent units."

I only mention that to support what I said on Monday, about the ancient origin, the inter se doctrine of the

Commonwealth reservation.

Then on the next page, there follows a very important section (p. 206),

"13. It is thus clear that in thei r relations with foreign countries, India and Pakistan will stand as
sovereign independent units. They will as such be fr ee to enter into treaties or agreements, to exchange
diplomatic representatives and to take their place in international organizations.

14. In this connection, it is necessary to examine the juridical position as regards the international
personality of India and Pakistan. Messrs. Pai, Menon and Jha [they ar e the Indian members] consider
that the true position is that certain parts of I ndia have become separated from the main body which
continues the international personality of present India. Partition will not result in th e extinction of the
international personality of India."

I emphasize that— even the I ndian members say that partit ion will not result in the ex tinction of the international
personality of India — fully supportive of the point that I was making on Monday that we have in relation to India

itself a situation of continuity.

"Amongst the many reasons in support of this view it would be enough to mention the following:

(a) Clause 2 of the Indian Independence Act distinctly brings out that the territories of India
shall be the territories under the sovereignty of His Majesty which immediately before the
appointed day were included in British India with certain exceptions; this establishes the
identity of the Dominion of India with the India of to-day.

(b) After certain northern and eas tern portions of its territor ies are separated from India,
nearly three-quarters of the territory will still be comprised in the remainder along with the
capital of the State [that is, India].

It is a recognised principle of international law that a reduction in the size of a State so long
as an essential part remains would not obliterate its identit y. According to international
jurists the identity of a State is considered to subsist so long as a part of the territory which

can be recognised as an essential portion th rough preservation of th e capital or of the
original territorial nucleus or which represents the State by continuity of Government
remains either as an independent residuum or as the core of an enlarged organisation. The
question is whether a sufficient nucleus of territory with th e capital and continuity of
Government remains to carry on the personality capable of discharging general obligations.
All these conditions will be fulfilled by th e residuum remaining after secession and
constitution of certain territories into the Government of Pakistan. (c) The fact is that the part ition of India has not been brought about by any revolution
involving even momentarily the overthrow of Government establ ished by law and in
consequence the extinction of the international personality of India.

(d) It is understood that H. M. G. have recogn ized the position that the Dominion of India
inherits the international personality of British India but in the final resort this issue will be
decided by appropriate international bodies."

Then comes paragraph 15, which is important:

"15. Mr. Ikramullah and Lt. Col. Iskander Mirza [they are the Muslim members] do not accept the view
that the Dominion of India alone will continue the international persona lity of the existing India. They

are strongly of the view that on the 15thAugus t two independent Dominions of equal international
status will come into existence as successors to the existing Governme nt of India which will disappear
altogether as an entity. This view is reinforced by the fact that today two Governments are functioning
in the country, one for Pakistan and one for Indi a with equal status. The wording of the Indian
Independence Act lends no support to the view put forward by their colleagues. It sets out to create two
independent Dominions out of the existing India."

Mr. President, here is the first indication of the division of opinion which eventually had to be resolved in the Indian
Independence (International Ar rangements) Order, of which the schedule has been read to the Court and which

stands as an international agreement between the two countries. We are entitled to take all this into consideration in
reading that Order.

I concede that on Monday I suggested that one was not en titled to go behind the Order to look at the Partition
Proceedings as travaux pr éaratoires , and so on. But, Mr. President, that was on Monday, and today I have seen the
Partition Proceedings, and it would be entirely wrong of me to pretend that they do not have a bearing on the tas k
before the Court.

So I move then from page 207, where I r ead paragraphs 13 to 15, I skipped the re ferences to the board of tribes and
to the position of Indian nationals abroad and to diplomatic representation, and I go to page 213:

"42. Existing treaties and engagements between Indi a and other countries and Tribes.— Annexure V
[that is, the list of treaties that we have been talking about] c ontains a list of the treaties, conventions,
agreements, etc. entered into by the Government of India or by H.M. G. in which India is interested.
The treaties have been classified into three categories:

A. Those which are of exclusive interest to Pakistan.

B. Those which are of exclusive interest to India.

C. Those which are of common interest.

This list also includes treaties and agreements ente red into with the Tribes both on the North West and

North East Frontiers."

The section continues, paragraph 43:

"43. The legal position appears to be that if India minus Pakistan wi ll remain the same international
entity as she was before partition she wi ll continue, in respect of the rest of India, to be subject to the
obligations and entitled to the benefits of all international engagements to which pre-partition India was
a party either directly or through H. M. G., except those in respect of which she is rendered by partition

incapable of exercising its rights and performing its obligations. This position will not be affected by
any change in her constitutional set-up or by the ac quisition by her of the status of a Dominion. The
position which Pakistan will occupy in this respect is, however, not altogether clear. If she is regarded
as a new State, one view is that she will not be bound by any treaty to which the pre-partition India was
a party nor will she be en titled to any benefits thereunder. Th is conclusion is also supported by the
opinion of international jurists, . . ."

The y then cite a passage from Sir Thomas Holland which I need not read. It will appear, however, that she — that is,Pakistan— would be bound by such treaties as were ente red into by HMG on behalf of members of the British
Commonwealth. We consider, for exampl e, that the Afghan treaties entere d into between HMG and the Afghan
Government will continue to have force so far as the Pakistan Government is concerned.

I go to page 214, paragraph 44:

"44. The following view has been e xpressed by SirDhirenMitra, Solici tor to the Government of India
on the rights and obligations of I ndia and Pakistan under the existi ng treaties of the three categories
namely [as I have read them to you before],

(a) treaties of exclusive interest to Pakistan

(b) treaties of exclusive interest to India, and

(c) treaties of common interest as quoted below:"

I continue to quote — there is a quotation within what I am reading to you from the views of Sir Dhiren Mitra, and
this is his view:

"The Treaties falling under category (a)of your letter of the 16th July [which is not included and I have
not seen it] fall within the exception mentioned in paragraph 1 of my note [again, a document I have not
seen], will bind Pakistan and will not devolve upon the Dominion of India. The Afghan Treaties
regarding boundaries run with the land and will bind Pakistan as the successor in interest in the territory
affected.

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

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

I had a look at the old edition of McNair prior to the volume on treaties of 1960. I had a look at that page. It does not
really shed much light upon the matter . What counts for our purposes is that SirDhirenMitra is saying treaties o f
common interest to both will have effect as if the tr eaty was effected after the necessary procedures — operative in
the old days — had been concluded.

I am continuing to read from the Mitra opinion:

"There is no difference in this context between a Treaty concluded by the Government of India as a
contracting party or His Ma jesty's Government in relation to the Indian Empire. Existing Treaties will
continue and will operate as in dicated before and will not be abrogated by reason of the Indian
Independence Act except to the extent provided in s ection 7 thereof [which is not relevant to our
purpose]. In this context, also pl ease do not lose sight of the fact that the Indian Independence Act
effects a mere change in the constitution of India, the Crown remaining the same as before."

He continues:

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

That is the end of the quotation from Sir Dhiren Mitra. The text of the report continues as follows: "45. It has not
been possible for the Committee in the s hort time available to it"¾ I emphasize in that "short time available to it",
as I mentioned on Monday, everything was being done in a great hurry¾ "to have a more thorough examination
made of the legal aspects of the matter and to pronounce an authoritative opi nion. The Committee would
recommend..."¾ and I just pause on the word "recommend" , as later on you will see there is a suggestion or an
indication that the recommendation of the Committee should be followed, and this is that recommendation ¾

"that both Governments should take steps immediately to obtain expert legal opinion on all aspects of
this question. We would also su ggest that the provisions of each treat y should be scrutinized b y both Governments. Thereafter it will be open to them, if necessary, to en ter into fresh agreements with the
other contracting parties."

Then we go, Mr.President, from page 214 to page215. Then there is the h eading "Membership of International

Organizations. — Annexure VI gives a list of the international organisations and subsidiary bodies of which India is
a member." Then we refer back to paragraphs 14 and 15 for the question of India's continuation of the membership
of international organizations. "The sp ecial procedure regarding membership of the United Nations is set out in
Annexure VII." Then after that paragraph there follow the signatures of the five members and the two secretaries.

So, bear in mind please, Mr.President, that this docum ent which I have been readi ng to you is not an agreement
between the two sides, although it was signed by the five members; it is merely a document that contains an analysis
and very limited recommendations.

Now we go on, Mr.Presiden t, to AnnexureV, which starts at page 217, and is headed "List of Treaties,
Conventions, Agreements, etc., affecting India or appl icable to India to which she is a party". Then there is an
attribution to the External Affairs and Commonwealth Re lations Department of India, the External Affairs Wing.
There then follows some 60 pages listi ng the treaties to which In dia was a party, and that continues until page 276.
As I mentioned on Monday, Mr.President, that list is not whol ly accurate. There are ce rtain very significant
omissions. For example, as I then mentioned the Ge neva Conventions of 1929 on Prisoners of War and the
Treatment of Sick and Wounded, have been overlooked. Likewise, 43 extradition treaties were overlooked; likewise
the Protocol and Convention on Arbitrati on of 1923 found no place in the list. I th ink if the Court wanted to see an
independent view of the matter, it could look at the international or association volume on the effect o f

independence on treaties where mention is made of these matters at pa ge109. Not only did th e list omit certain
treaties, it also wrongly incl uded certain treaties¾ for example, the Tr eaty between Great Brit ain and Bahrain, or
the treaties with the Indian rulers, which had lapsed. So the list, though significantly long, is not comprehensive.

Now we come, Mr.President, to the next rather interesting bit. The a nnexures are followed at page287 by
something called "Steering Committee's Note on Effect of Partition on Foreign Relations". Regrettably no dates are
attached to these documents, so we cannot be absolutely certain of the correct order, but it looks as if this document
temporarily follows on what I have just been reading.

"The report of Expert Committee No. IX appointed to examin e the effect of partition on foreign
relations is attached. The Steering Committee are in substantial agreement with the views expressed
therein and recommend that the conclusions reached by the Committee be approved."

Those were the recommendations I identified to you a moment or two ago, and they were not very large; they were
saying the matter should be looked at by each government on the basis of advice to be obtained. Then paragraph 2 of
this Steering Committee's note states:

"2. The Expert Committee has been unable to reach an agreed d ecision on the juridical position
regarding the international personalities of India and Pakistan (p aragraphs14 and15) and its effect, if
any, on Treaty Obligations (paragraphs43 and44) and membership of International Organisations
(paragraph47). The Steering Committ ee proposes to put up separately a note on this subject for
consideration by the Partition Council at a later date."

So now we go over the page to page 288, and we have the "Partition Council's Decision":

"1. The Council approve the recomm endations of the Steering Committee on the report of Expert
Committee No. IX.

2. The Council noted that the Stee ring Committee would put up separately a note for consideration on
the juridical position regarding the in ternational responsibilities of India and Pakistan and its effect, if
any, on Treaty Obligations and membership of International Organizations."

So that decision came before the not e had been put up. The ne xt document is the note ¾ "Note on the Juristic
Position regarding International Pers onality and Treaty Obligations". This begins at page289, and from what
appears in a later document, which I wi ll come to, it would look as if this note was prepared by Mr.Patel, who I
understand would be an Indian, who is not a member of the Committee.

"It has to be considered who inherits the international obli gations and corres ponding privileges contracted by the present Government of India.

In the determination of this question not only the Do minions of India and Pakistan but also H.M.G.
and other Member nations of international organisations are vitally interested and must have their say."

Then comes the paragraph:

"The Secretary of State for India wa s advised by the Foreign Office to the effect that the terms of the
India Independence Act will lead to the inference that the new Dominion of India continued the
international personality of the existing India. The Cabinet Committee in the U. K. which examined this
matter thought that this view shoul d be accepted by H.M.G. so far as India's external relations were
concerned, but that it would be reasonable for the assets of the Government of India outside India to be

included in the joint equitable divi sion of assets, even though legally su ch assets would pass to the rest
of India."

Then, the note continues,

"During the passage of the Bill in the House of Commons the Government spokesman clarifying the
position, stated as follows:

'The question of international status of the two new Dominions is not one which will be
finally determined by terms of this Bill [that is, the Indian Independence Bill which became
the Act]. It is a matter for members of U.N. O. and other foreign states as much as for
H.M.G. in the U.K. Our own view is that the new Dominion of India continues the
international personality of existing India and that she will succeed as a matter of
International Law to membership of U.N.O. which existing India en joys as an original
signatory of San Francisco Char ter. Similarly representatives of the Dominion will in our
view be entitled to membership of existing international organisations and specialised
agencies in which India has hitherto particip ated. Our hope is that on establishment of new

Dominion of Pakistan she will be accepted as a new member of Family of Nations and that
she will before long be able to make her pr oper contribution to international goodwill and
collaboration.'"

And then Mr. Patel continued after a few lines:

"As H.M.G. have pointed out in the above statem ent the question can only be decided in the light of
International Law on State Succession and not with reference to the convenience of the parties."

Then he continues:

"The recognised principles are that neither a variation in the extent of a State's territory nor a change in
its constitution, affects the identity of the State."

And he goes on to give a number of examples, and the last one he mentions is:

"Indeed, in the case of India herself, the separati on of the entire Province of Burma from India in 1937,
did not affect the identity of Indi a as an international entity and the membership of the League of
Nations . . .

On the establishment of the two new Dominions, th e position of the Dominion of India will not be
materially altered."

Then he goes on to refer to the effect of changes in the constitution:

"it is established beyond question that a change in the form of Government does not in any way alter the
international personality of a State".

I then quote the whole of the following paragraph on page 290.

"Such bein g the position, it will not be o pen to the Dominion of India, ev en if it chooses to do so, to contend that in consequence of the setting up of the two new Dominions the identity of India as an
international person has been destroyed and that in consequence the new Dominion of India is no longer
responsible for the obligations previously assume d by India. On the contrary, for reasons already
explained, the Dominion known as India will not only in name but also in fact remain identifiable with
the international person known as Indi a and all the obligations and right s of India will continue to be

discharged or asserted by the Dominion of India. The terms of the Indian Independence Bill confirm
this view."

Then I skip towards the end of the summary:

"To sum up, the position in international sphere consequent upon the set ting up of the two new
Dominions will be as follows:

(1) All international obligations assumed by pre-existing India will devolve on the
Dominion of India and that Domi nion will be entitled to the rights associated with such
obligations. (In this category will fall India's membership of the United Nations.)

(2) All international obligati ons assumed by the pre-existing India which have exclusive
territorial application to any area comprised in Pakistan will devolve on the Dominion of
Pakistan with all the rights associated with such obligations.

(3) All international obligations assumed not by the international entity known as India as
such but by His Majesty's Government in the UnitedKingdom acti ng on behalf of the
British overseas possessions and which have territorial application to India as a whole will
devolve on both the Dominions with all the rights associated with such obligations."

Now we come— that is the note th at was put up— to the Steering Comm ittee's note on the juridical position
regarding the personality of the two countries.

"1. The attached note [that is, the one I have just read to you] on th e juridical position regarding the
international personality of India and Pakistan and its ef fect on international obligations has been
prepared by Mr.Patel and is based on a summary of the correspondence exchanged between the
Secretary of State for India and His Excellency the Governor Gene ral. Mr. Mohd. Ali [that is a Muslim
member] does not subscribe to the view set out in it. He considers that the present Government of India
will disappear altogether as an entity and will be succeeded by two independent Dominions of equal
international status both of whom wi ll be eligible to lay claims to the rights and obligations of the
present Government of India."

Here we have a further indication of the difference of opinion between the Indian and the Pakistani side regarding
the true succession. "The note is submitted for the consideration of the Partition Council."

So now Mr. President, we come to the Partition Council's Decision. It gets more and more interesting.

"His Excellency [that is presumably the Governor General] said that he had just received a telegram
from the Secretary of State pointing out that it was essential for Pakistan to apply for membership of

U. N. O. before the 10th August . . ." — this was in order that Pakistan should make it to the
United Nations at that session.

"His Excellency said that H.M.G. were not anxious to interfere in what they considered to be a
domestic matter between India and Pakistan, but they ha d felt it necessary to poi nt out that there was a
grave objection to India's national identity being extinguished by reason of the partition."

The reason given was of the possible imp act that it might have on the rules re lating to international indebtedness in

cases of State succession.

And then he goes on:

"Mr. Mohmad Ali [and this is a Pa kistani member] said that according to the formula he had suggested
India would continue her me mbership of International Organisations like U.N.O. on behalf of the
Dominion of India as from the 15thAu gust, while Pakistan would a pply for membershi p of such International Organisations as she desired to join. As regards obligations and rights in respect of treaties
which run with the land, it was agreed that th ese would devolve only on the Dominion concerned.
Pakistan's viewpoint was, however, that both Dominions should assume all international obligations and
enjoy all rights arising out of treaties and agreements negotiated by the existing Government of India or
by H. M. G. acting on behalf of the Dominion overseas. The practical advantage of this course would be

that Pakistan would not have to negotiate afresh in regard to such matters."

Now we are coming to the interesting é d nouement .

"His Excellency [that is the Vicer oy] suggested that Mr. Cooke [Mr. Cooke was a very distinguished
English barrister who was at that time a member of the Parliame ntary Draftsman's Office], the
Constitutional Adviser, should be asked to evolve, if possible, a formula which would meet the case of
both sides."

Let me emphasize that: a formula which would meet the case of both sides .

"He would place this formula before the Pakistan and Indian cabinets for consideration when they met,
to consider the Adaptation Orders."

Then follows the Partition Counsel's decision:

"The Council agreed that the Constitutional Adviser should be requested to [I think it is evolve, but the
copy is defective] evolve, if possible, a formula which would meet the case of both sides."

It is a decision of the Partit ion Council. "Such a formula, if evolved, would be placed before the Pakistan and India
Cabinets for their approval."

The next, and, you will be pleased Mr.President to know, the final doc ument is the Indian Independence

(International Arrangements) Order 1947, which has to be read in the light of this long history that I have just given
you and particularly in the light of th e instruction given to th e Constitutional Adviser to evolve a formula which
would meet the case of both sides. A nd what was that formula? Well, I will just read the opening recital of the
Indian Independence (International Arra ngements) Order: "Whereas the agreem ent set out in the Schedule to this
Order has been reached at a meeting of the Partition Council on the 6th day of August,1947"; we come to
paragraph 4:

"Subject to Articles2 a nd 3 of this agreement [that is, the te rritorial aspect, and the international

organization aspect], rights and obligations under all international agreements to which India is a party
immediately before the appointed day will devolve both upon the Dominion of India and upon the
Dominion of Pakistan, and will, if necessary, be apportioned between the two Dominions."

"All international agreements to which India is a party immediately before the appointed day will devolve both upon
the Dominion of India and upon the Dominion of Pakistan." And so in this manner, the Constitutional Adviser
reconciled the positions of both countries, gave effect both to India's view and to Pakistan's view, particularly
Pakistan's view. The situation was one of parthenogenesis, in other words you have two entities, a cell splitting into
two separate entities, each of which has its own personality and each of whic h inherits or assumes or contains,

whatever word you like, the rights and duties internationally of the previous international person.

Mr. President, I understand that you like to rise at this time, and this might be a convenient place at which to break. I
hope that after the Court returns, I shall not take very long.

The PRESIDENT: Thank you very much, Sir Elihu. The Court will now rise for 15 minutes.

The Court adjourned from 11.15 a.m. to 11.35 a.m.

The VICE-PRESIDENT, Acting President: Owing to an important official commitment, the President has asked me
to preside over the remainder of toda y's hearings. I will now give the floor to ProfessorElihuLauterpacht, to
continue his presentation.

Sir Elihu LAUTERPACHT: Thank you, Mr. President.Before the break, I completed my analysis of the proceedings of th e Partition Committees. I will not attempt to list
all the points at which the account th at I have just given differs from the statement made by my friend
Professor Pellet, but two examples will suffice. Contrary to what he said, th e Expert Committee did not prepare the
annex that contains the list of treaties; that was prepared elsewhere and possibly adopted by them, but it did not have
any special authority.

And again contrary to what he said , the report of the Expert Committee, though signed by the experts, did not
represent an agreement— an agreed view of the posit ion— an agreement was not reached until the Partition
Council delegated the solution to Mr. Cooke, and Mr.Cooke drafted the terms of the Sche dule to the Order, in the
words which confer upon India and Pakistan equal status in relation to succession or continuity of treaties.

I think I should perhaps at this point just emphasize that India and Pakistan started life, after 15 November, as States
on equal footing. This was not a situation in which Pakistan seceded from, or separated from, a pre-existing State o f

India. The words of the Indian Indepe ndence Act make it quite clear. The pr eamble, or title— the long title— o f
the Indian Independence Act describe s it as an act to make provisi on for the setting up in India¾ by which they
mean the sub-continent of India¾ of two independent dominions. The two independe nt dominions are created
within the old territory of India, a nd as I said the operative Section 1, stat es; "as from the 15th day of August 1947,
two independent Dominions shall be set up in India". The creation of Pakistan did not involve a secession for India,
did not involve a subordination of Pakistan's international status to that of India. Treaties that were binding on India,
prior to Independence, were equall y binding on Pakistan after Independen ce. With the exception of those
specifically dealt with, namely the pos ition of India in relation to intern ational organizations and the position o f
territorially related treaties.

This is the position, Mr.President, th at Pakistan subsequently maintained in the United Nati ons. The Court has
before it, as AnnexG of the Pakistan Memorial, an extr act from the very considerable volume, prepared by the
Secretary-General, under the title of "M ultilateral Treaties deposited with the Secretary-General". I happen to have
in my hand the copy from the library here, which is the status as at 31 December1997. Evidently the pagination is
not quite the same as the pagination in the copy from which Annex G of the Pakistan Memorial was made. But the
content is the same. The Court will find the content of what is in Annex G also in the 1997 edition at page 1001.

Now that volume, the Secretary-Gene ral's volume, contains a reference to what was calle d a notification o f

succession. I am reading now from footnote No. 10 attached to the item of the General Act of Arbitration in 1928, a
notification of succession from the Government of Pakistan. Now, the te xt, or what purports to be the text, of the
Pakistan notification appears in that footnote 10. No date is given to the Pakistan communication. However, we have
succeeded in obtaining, albeit in a rather last-minute fashion, but we managed to obtain from the Pakistan Mission to
the United Nations, a copy of the original text communicate d to the Secretary-General. It is dated 3 October 1973; I
mention the date because it has to be related to the response or reaction by India which was deferred for nearly a
year, until 18 September 1974.

The most peculiar aspect of the doc ument that was filed by Pakistan on 3 October1973, is that certain passages
appear to have been deleted from it in the text which is printed in the Secretary-General's volume. The passages that
have been omitted appear at three differ ent points in the Pakistani letter, and th ey all have a similar content, and so
the omission of them could hardly have been accidental. It is as if someone — I do not sa y that someone did, but I
am saying, it is as if someone— for some reason decided to omit from the pr inted text that the world was made
aware of, certain passages fr om the original communication. And what are those certain pa ssages? First of all, in
paragraph3, of which the opening words— as they appear in the Secretary-General's volume, at page898 o f
Annex G — are:

"As a result of the arrangements mentioned in paragraph 1 [appear in the letter as follows], Pakistan has
been a separate party to the General Act of 1928 from the da te of her independence, i.e., the
14th August 1947; . . ."

a date which I should perhaps just explain: although the I ndependence Act says that th ese two separate dominions
will come into existence on 15August, in fact it was understood and accept ed that Pakistan would become an
independent State on 14August, the day before India did, largely for the purpos e of avoiding any impression that
Pakistan broke away from a newly independent India. It did not. However, that is just en passant . "Pakistan has been
a separate party to the General Act of 1928 . . . from the date of her Independence, i.e. 14thAugust1947, since in

accordance with . . ." the Article 4 of the relevant Order, the text of which is set out below, those words are omitted
and the text is omitted. "Pak istan succeeded to the rights and obligations of British India under all multilateral
treaties binding upon her before her partition into the two successor States." B y virtue of this continuation of theformer personality of British India and of these arrangements, "Pakis tan did not need to take any steps to
communicate its consent de novo to acceding to multilater al conventions by which Br itish India had been bound."
Words omitted by virtue of this continua tion of the former personalit y of British India. In other words, Pakistan's
basic legal position is here being distorted, or omitted.

I go on to the next paragraph, that corresponds with the last sentence of the same paragraph in AnnexG: "4.
Nevertheless, the Secretary-General of the United Nations was made aware of the situation through the
communication referred above . . ." And then appear the following words, also omitted from the Secretary-General's
text. The Secretary-General was made aware of the situation through the communication above, and here are the
omitted words:

"... which included the text of the relevant Order made by the last Governor-G eneral of British India,
namely the Indian Independen ce (International Arra ngements) Order of 1947, which embodied a

devolution agreement between India and Pakistan".

Now that got left out. Why? I do not know. Then we go over the page to the continuation of that same paragraph,
after the quotation in full of the Indian Independence (International Arrangements) Order (this is Pakistan's original
letter):

"It is clear from Section 4 of the Devolution Agreement that Pakistan and India both agreed to be bound
by all multilateral obligations of British India including obligations under the General Act of 1928."

Omitted from the Secretary-General's publication. Again, one asks why, but th e fact is that its non-appearance is in
itself intrinsically significant. Because if those words that I read out had been included, then there would have been a
wider general understanding of what the true nature of the succession of Pakistan and India was to the obligations of
the original British India.

And then paragraph 5, which appears in part in the Secretary-General's communication:

"5. In order, however, to dispel all doubts in this c onnection, and without prejudice to Pakistan's rights
as a successor State to British I ndia, the Government of Pakistan hereby notifies the Secretary-General
[those words do not appear in quite that form] in his capacity as depository of the General Act that
Pakistan continues to be bound by [in the words used in the Pakist an Note:] the rati fication of British
India."

And in the Secretary-General's Note it says "the accession of British India" of the Gene ral Act. Well, this suggests
that India acceded to the General Act. At what point? We do not know. But what matters is the word used in the

Pakistani Note was the "ratification". I would, therefore, invite the Court, to whom a copy of this letter will
obviously be given, to take it into consideration in its examination of the true nature of the succession.

It seems to me that this analysis of the Partition Proceedi ngs and of this letter sheds some adverse light on the value
of the view of the United Nations Secr etary-General's legal advisers, to which reference is made by Professor Pellet
at page 16 of his text. That page reference might not be entirely accurate because I think I took it from his original
text and not from the compte rendu . But the Secretary-General's legal advisers clearly would not have known at the
time they took their view, relied on by India, of the circumstances leadi ng up to the adoption of the Indian
Independence Order.

So much, then, for that point, which I think is really central to the case on the General Ac t. I now just need to say
very few words about the referenc e made by India to the case of Yangtze (London) Limited v. Barlas Brothers
(Karachi) and Co. I could of course take a long time analysing this case to the Court, but I will forgo that. It is more
complicated than the mere recitation of extracts from the Judgment might s uggest. The case is really about the
inapplicability of a treaty that had not been incorporated into domestic law. It does not show what HisExcellency
the Attorney General of India said it showed at CR2000/2, page15. But it is worthwhile bearing in mind that
whatever weight the Court may wi sh to attach to the words in Yangtze (London) Limited v. Barlas Brothers
(Karachi) and Co. , it was a case in which the Government of Pakistan was not involved. The Government o f

Pakistan had no opportunity to express its views to the Cour t, and we are unaware of th e extent to which the Court
was sufficiently assisted in the development of its international law argument. Moreover, the Court could not in any
event have been aware of all the details of the Partition Proceedings that I read to the Court this morning, and in the
absence of that degree of kno wledge about the true nature of the relationship be tween Pakistan and India after
Inde pendence, with India before Independence, the Court could be understood not to have got matters right. I say nomore about Yangtze (London) Limited v.Barlas Brothers (Karachi) and Co.

So this, Mr. President, brings me to the concluding observations, which I respectfully wish to offer the Court. They
relate primarily to the optional clause basis of the Court's jurisdiction but al so have some overall relevance to the

Court's approach to the case.

I would respectfully submit that it is not the task of the Court to indulge the assumed sensitivities of States that have
loaded their optional clause declarations with reservations which significantly limit their effect— limit their effect
even to the point of disappearance. The strict constructionist approach which the Court is today being asked by India
to follow differs little, ifat all, from the approach developed by the Pe rmanent Court of International Justice
70years ago, and which has formed a si gnificant feature of the International Court's approach to the treatment o f
optional clause declarations, reservations and their interpretation. That approach was developed in an entirely
different international scene. The seeki ng after consent in the strictest possibl e way is put in the forefront of the

exercise, as if States would never accept the Court's jurisdiction if the li mitations on their notices of consent were
less rigorously applied.

As a matter of policy, I respectfully question the merits of this view. The Court should not be so apprehensive — if I
may put it that way— about the impact of its accepting jurisdicti on in cases where there is some doubt about its
jurisdiction, and where it is confronted time after time with arguments against its jurisdiction based upon a strict
view of the notion of consent, and ther eby a limited view of the ability of the Court to do justice when it comes to
dealing with the merits. The Court cannot turn a blind eye to the fact that States are incr easingly accepting the
compulsory jurisdiction of internationa l tribunals over a wide range of cases that are no less important than those

that come to this Court, and they do so on the basis of a widely expressed consent. Indeed, many of those cases that
come before these other tribunals¾ or could come before them¾ are act ually more important , economically and
politically, than some of those cases that come to this Court. I think in particular of the ty peofcasethatis
considered within the dis pute settlement machinery of the World Tr ade Organization. These are massive cases,
affecting large sectors of national economies and the livelihood of many, many people. Yet States have been willing
to accept in relation to them compulsory jurisdiction. So what, then, is the problem about the application of, I do not
say compulsory, jurisdiction by this C ourt, but are they more liberally view ed by this Court of the way in which
consent is expressed to its jurisdiction? And I may hardly make the poi nt that although the ju risdiction of the
Security Council is not a judicial juri sdiction, it remains a fact that the Secu rity Council is capable of scrutinizing

the most delicate activities of States¾ the most sensitive, national secur ity activities of Stat es¾ without question
being raised as to its competence to do so.

I hope the Court will not feel that I am being unduly arrogant in referring it to a small work which I wrote about ten
years ago called "Aspects of International Adjudication", in which th ere is a chapter on consent, where the kind o f
sentiments that I am expressing to the Court at this moment are set out more thoroughly, with some very interesting
examples. It will not take the Court long to look at the relevant pages, and I would respectfully submit them to you.

There is, I suggest, an element of absurdity in a situation in which India can be compelled to litigate on a matter o f
international trade that can seriously affect its economy and yet can resist the ability of this Court to resolve a matter
such as the unlawful destruction of an aircraft. I respectfully invite the Court to adopt the approach which is open to
it of seeing in the particular relationship of India and Pakistan, especially in the mutual undertakings of the two sides
in the Simla Accord, a basis on which it can interpret ¾ th at is, the Court can interpret ¾ the Indian reservation in a
manner that opens a gate to the discharge by the Court of its real functions, not in a manner which interposes a
barrier. The function of the C ourt is the decision of substa ntive issues, not a further ex cursion into the now ancient
trivialities of the restrictive interpretation of jurisdictional clauses.

With those words, Mr.President, I r each the end of my submissions in repl y. I thank you for h earing me. At this
point the Statute requires that the Agent should formally c onfirm the submissions of Pa kistan, which I now invite
you, Mr. President, to ask him to do. Thank you.

The VICE-PRESIDENT: Thank you so mu ch, ProfessorLauterpacht. I now gi ve the floor to the distinguished
Agent of Pakistan.

Mr. HAMID: Mr. President and honourable Members of the Court, may I, as the Co-Agent of Pa kistan, take this

opportunity of formally confirming the submissions of Pakist an that the Court should dismiss the objections to the
jurisdiction raised by India, and that the case should continue. Thank you.

The VICE-PRESIDENT: Thank you so much, the distinguished Agent of Pakistan.This now concludes the second round of oral argument by the Islamic Republic of Pakistan. The Court will resume
tomorrow morning at 10 a.m. for the second round of oral argument to be pr esented by the Republic of India. The
Court will now rise.

The Court rose at 12 noon.

___________