Aerial Incident of 10 August 1999 (Pakistan v. India) - The Court declares that it has no jurisdiction to adjudicate upon the dispute

INTERNATIONAL COURTOFJUSTICE

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Communiqué
unofficial
for immediate release

No. 2000/19
21 June 2000

Aerial Incident of 10 August 1999
(Pakistan v.ndia)

The Court declares that it bas no jurisdiction to adjudicateupon the dispute

THE HAGUE, 21 June 2000. The International Court of Justice (ICJ), the principal judicial
organof the United Nations, today declared that it bad no jurisdiction to adjudicate upon the dispute

brought before it by Pakistan against India in the case conceming the Aerial Incident of 10 August
1999 (Pakistan v. India).

The decision was taken by a vote of fourteen to two. Since the Court included on the Bench no
judgeof the nationality of Pakistan or India, the two States had each appointed ajudge ad hoc.

Backgroundinfonnation

On 21 September 1999, the Islamic Republic of Pakistan instituted proceedings before the Court
against the Republic oflndia in respect of a dispute conceming the destruction on 10August·l999 of a
Pakistani aircraft. As a basis for the Court'sjurisdiction, Pakistan invoked in its Application Article 36,
paragraphs 1 and 2, of the Statute of the Court and the declarations whereby both States have accepted
the compulsoryjurisdictionthe Court.

ln a letter dated 2 November 1999, India stated that it had "preliminary objections to the
assumption ofjurisdiction by the ... Court ... on the basis ofPakistan's Application".

Afier a meeting held on November 1999 by the then President of the Court, Judge Schwebel,
with theParties, the latter agreed to request the Court to detennine separately the question of the
Court'sjurisdiction before any proceedingse merits of the case. The Court fixed time-limits for
•
the filing of written pleadings by the Parties and hearings on the issue of the Court'sjurisdiction were
held from 3 to 6 April0.

Reasoning of the Court

The Court notes that to found the jurisdiction of the Court in this case, Pakistan relied in its
Memorial on Article7 of the General Act for PacSettlem of~nternational Disputes, signed in
Geneva on 26 September 1928, on the declarationsceptance of the compulsory jurisdiction of the

Court made by the Parties and on paragraph 1 of Article 36 of the Statute of the Court. The Court
examines these basesjurisdiction in tum.

The Court first points out that British India acceded on 21 May 1931 to the General Act of
1928. It observes that India and Pakistan have made lengthy submissions on the question whether the
General Actf 1928 bad survived the demise of the League ofNations and, ifthat was the case, if the
two States bad become partiesto the Act on their accession to independenceReferring to a

communication addressed by the Indian Government to the United Nations Secretary-General
18 September 1974 in which it stated that it "never regarded [itself] as bound by the General Act of
1928 since [its] Independence in 1947, whether by succession or otherwise", the Court concludes that Indîa cannat be regarded as having been party to the said Act at the date when the Application was
filed byPakistan and that this convention does not fonn a basis ofjurisdiction.

The Çourt then turns to the declarations of acceptance of the compulsory jurisdiction of the
Court made by the two States. It observes that India's declaration contains inter alia a reservation
according to which "disputes with the govenunent of any State which is or bas been a Member of the

Commonwealth of Nations" are excluded from the Court's jurisdiction. The Court recalls that its
jurisdiction only exists within the limits within itbas been accepted and that the right of a State
to attach reservations to its declaration constitutes a recognized practice. It adds that, whatever may

have been the reasons which led India to limit the scope of its acceptance of the compulsory
jurisdîctionf the Court in the way ît did, the Court is bound to apply this limitation. Accordingly, the
Court cannat accept Pakistan's arguments that India's reservation would be "extra~sta trutory"
obsolete.Pakistan being a member of the Commonwealth, itfollows that the Court basno jurisdiction

to entertain the Application on the basis of the declarations made by the two States.

The Court examines, thirdly, the last basis of jurisdiction invoked by Pakistan, that is to say,

paragraph 1of Article 36 of the Statute, according to which "thejurisdiction ofthe Court comprises ali
cases which the parties refer to it and ali matters specially provided for in the Charter of the United
Nations". The Court states in this respect that the United Nations Charter contains no specifie

provision of itself conferring compulsory jurisdiction on the Court and that this basis of jurisdiction
cannat be accepted. It adds that Article 1 of the Simla Accord concluded between the Parties on 2 July
1972 does not as such entail any obligation on India and Pakistan to submit their disputes to the

The Court finally explains that there "is a fundamental distinction between the acceptance by a
State of the Court'sjurisdiction and the compatibility of particular acts with international law" and that

_"the Court's Jack of jurisdiction does not relieve States of their obligation to settle their disputes by
peaceful means". It stressethatas regards Indîa and Pakistan, that obligation was restated more
particularly in the Simla Accord and that the Lahore Declaration of 21 February 1999 reiterated "the

determination of bath countries to implementing the Simla Agreement". The Court reminds the
Partiesof their "obligation to settle their disputes by peaceful means, and in particular the dispute
arising outof the aerial incident of 10 August 1999, in conformity with the obligations which they

have undertaken".

Composition of the Court

The Court was composed as follows: President Guillaume; Vice~Presi Shd; nudges Oda, •
Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra~Aranguren,

Kooijmans, Al~Khasaw nuehgenthal; Judges ad hoc Pirzada, Reddy; Registrar Couvreur.

Judges Oda and Koroma and Judge ad hoc Reddy appended separate opinions to the Judgment
of the Court. Judge Al-Khasawneh and Judge ad hoc Pirzada appended dissenting opinions toit.

A summary of the Judgment is given in Press Communiqué No. 2000119bis, to which a brief
summary of the opinions is annexed. The full text of the Judgment, the opinions and the Press
Communiquésare available on the Court's website (http://www.icj-cij.org).

Information Department:
Mr. Arthur Witteveen, First Secretary (+ 31 70 302 23 36)
Mrs. Laurence Blairon, Information Officer (+ 70 302 23 37)

E~mai aldress; information@icj-cij .org