INTERNATICOURTOF JUSIICE
PLWINGSORAL ARGUMENTS, DOCUMENTS
APPEALRELATINGTOTHE
JURISDICTION
OFTHE ICA0 COUNCIL
(INDvPAKISTAN)
COUR IN'îERNATi0NAL.BDE JUSiïCIi
&MOIRES, PLAIDOIRIESET DOCUMENTS
APPEL CONCERNANT LA
COMPETENCE
DU CONSEIL DE L'OACI
(INePAKISTAN) Abbreviatedreference:
1.J.Pleadings,
Appeul Reluting to the JurisICA0ionof the
Council
Référence abr:ée
Appeconcernantla compétencedu Conseil
de l'OACI
sa~mum~r : 91 1
Node venteAPPEAL RELATING TO THE JURISDICTION
OF THE ICA0 COUNCIL
(INDIA v.PAKISTAN)
APPEL CONCERNANT LA COMPÉTENCE
DU CONSEIL DE L'OACI
(INDE c.PAKISTAN) INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
APPEALRELATING TOTHE
JURISDICTION
OFTHE ICA0 COUNCIL
(INDIA v. PAKISTAN)
COUR INTERNATIONALEDE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
APPELCONCERNANT LA
COMPÉTENCE
DU CONSEIL DEL'OACI
(INcPAKISTAN) The present volume contains the record filed in the Appeal Relaringta
the Jurisdictionof the ICAO Council.
This case, entered on the Court's General List on 30 August 1971
under number 54,was the subject of a Judgment delivered on 18August
1972 (Appeal Relaring to the Jurisdiction of the ICAO Council, I.C.J.
Reports 1972, p. 46).
The Hague, 1973.
Le présent volumereproduit le dossier de I'affairede l'Appelconcernant
la compétencedu Conseil de I'OACI.
Cette affaire, inscrite au rôle généralde laCO& sous le no 54 le 30
août 1971,a fait l'objet d'un arrêtrendu le 18août 1972Appelconcernant
la Cotnpétencede I'OACI, C.I.J. Recueil 1972, p. 46).
La Haye, 1973.APPLICATION INSTITUTING
PROCEEDINGS APPUCATION
THE AGENT OF THE GOVERNMENT OF INDIA TO THE
REGISTRAR OF THE INTERNATIONAL COURT OF JUSTICE
The Hague, 30 August 1971.
1 have the honour to submit herewith to the International Court of
Justice an Application on behalf of the Government of India appealing
from the decision rendered on 29 July 1971by the Council of the Inter-
national Civil Aviation Organization. 1 would be grateful if you could
inform me in casethere are any technical or formal defects inthe Appli-
cation which you would desire to be rectified.
(Signedj J. N. DHAMIJA,
Ambassador of India at The Hague,
Agent of the Government of India. APPLICATION INSTITUTING PROCEEDlNGS
The undersigned, being duly authorized by the Governinent of lndia
("the Applicant") hereby submits to the lnternational Court of Justice
an Application on behalf of the Applicant appealing from the decision
rendered on 29 July 1971 hy the Council of the lnternational Civil
Aviation Organization ("the Council") on the Preliminary Objections
dated 28 May 1971 raised by the Applicant in the Application of the
Government of Pakistan ("the Respondent") dated 3 March 1971 filed
under Article 2 of the Rules of the Council for the Settlement of Dif-
ferences ("the Council's Rules"), and in the Complaint of the Respondent
dated 3 March 1971filed under Article 21 of the said Rules.
Subject ofthedispute
1. In the Application and the Complaint the Respondent claimed that
under the Convention on International Civil Aviation, 1944 ("the
Convention"), and the lnternational Air Services Transit Agreement,
1944("the Transit Agreement"), Pakistan aircraft had the right to over-
fly lndia and to make stops in lndia for non-traffic purposes. The same
substantial reliefs were claimed in both the Application and the Com-
plaint. The subject of the dispute in this appeal relates to thejurisdiction
of the Council to handle the matters presented hy the Respondent's
Application and Complaint, and raises the principal question whether a
* dispute relating to the termination or suspension of a treaty can be
regarded as a dispute relating to its "interpretation" or "application".
Jurisdiction
2. The Applicant founds the jurisdiction of the Court on Article 84
of the Convention, Article II of the Transit Agreement, and Articles 36
and 37 of the Statute of the lnternational Court of Justice.
Briefstatement offacts
3. India and Pakistan are parties to the Convention. The right of a
State's aircraft, not engaged in scheduled international air services, to
overfly or make non-traffic stops in the territories of other States without
the necessity of obtaining prior permission, is conferred by Article 5 of
the Convention in the following words:
"Each contracting State agrees that al1 aircraft of the other
contracting States, being aircraft not engaged in scheduled inter-
national air servicesshall 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 pur-
poses without the necessityof obtainingprior permission, and subject
to the right of the State flown over to require landing." APPLICATION 5
4. India and Pakistan are parties to the Transit Agreement. Article 1
of the Transit Agreement confers similar privileges, in respect of sche-
duled international air services, to overfly or make non-traffic stops in
the territories of other States, and itsaterial portion runs as follows:
"Section 1
Each contracting State grants to the other contracting States the
following freedoms of the air in respect of scheduled international
air services:
(1) The privilege to fly across its territory without landing;
(2) The privilege to land for non-traffic purposes.
Section 2
The exercise of the foregoing privileges shall be in accordance
with the provisions of the Interim Agreement on International Civil
Aviation and, when it cornes into force, with the provisions of the
Convention on International Civil Aviation, both drawn up at
Chicago on December 7, 1944."
5. The Air Services Agreement dated 23 June 1948 was a bilateral
treaty between the Applicant and the Respondent; and it dealt with the
right to overfly each other's territory and to make stops in each other's
territory for traffic as well as non-traffic purposes.
6. Military hostilities broke out between lndia and Pakistan inugust/
September 1965.As a result of the armed conflict, the Air ServicesAgree-
ment of 1948was suspended and was never revived. The traffic between
the two countries continues to be handled by third country airlines since
1965. The Convention and the Transit Agreement as between the two
States were also suspended, in relation to overflights and landings for
non-traffic purposes. Consequently, no Pakistan aircraft, whether engaged
or not engaged in scheduled international air services, was permitted to
overfly India or make any stop for trafic or non-traffic purposes within
India. The Applicant issued a Notification dated 6 September 1965under
the appropriate law of India, whereby it directed that "no aircraft regis-
tered in Pakistan, or belonging to or operated by the Government of
Pakistan or persons who are nationals of Pakistan, shall be flown over
any portion of India".
7. The crucial point is that neither the Convention nor the Transit
Agreement was revived at any time after September 1965 as between
lndia and Pakistan in relation to overflights or landings for non-traffic
purposes.
8. The armed hostilities ceased on 22 September 1965.On 10January
1966 the Tashkent Declaration was signed hy India and Pakistan. The
IWO coiintries "agreed to consider measiires towards the restoration of
economic and trade relations, communications, as well as cultural ex-6 ICAO COUNCIL
changes between India and Pakistan". However,the hope of normaliza-
tion of relations between India and Pakistan and the restoration of the
statusquoante the armed conflict,unfortunately did not materialize.The
central features of the Convention and the Transit Aereementare the two
rights-(i) to overflyand (ii)to landfor non-trafficpGposes, both without
the necessityof obtaining prior permission. These two rights were not
restored as between India and Pakistan at any timeafter September 1965.
The right to land in each other's territory fortraffic or non-traffic pur-
poseswas notrevivedat al1in anyform; and Pakistan had to seekIndia's
special ad hocpermission in case of any Pakistan aircraft seekingto land
in lndia for non-trafficpurposes. In February 1966a new concessionto
overfly each other's territory was granted (a) on a provisional basis,
(b) on the basis of reciprocity, and (c) subject to the permission of the
Government concerned. Under the statutory law of India the Applicant
issued a Notification dated 10 February 1966amending the aforesaid
earlier Notification dated6 September 1965,so that the amcnded order
of the Applicant now was that-
*
"no aircraft registeredinPakistan,or belongingto or operated by the
Government of Pakistan or persons whoare nationals of Pakistan,
shall be flown over any portion of India except with the permis-
sion of the Central Government and in accordance with the terms
and conditions of such permission".
The aforesaid understanding between the two countries relating to the
newlyconferred concessionas regards overflyingeach other's territory,is
hereinafter referred to as "the Special Agreementof 1966".
9. The Special Agreementof 1966continued in operation, both in law
as well as in practice. On 4 February 1971the Applicant withdrew the
permission to Pakistan aircraft to overflyndia, as it had the right to do
under the Special Agreementof 1966.The permission waswithdrawn in
the following circumstances.
10. An Indian Airlines Fokker Friendship aircraft on a scheduled
flight from Srinagar to Jammu with 28 passengersand 4 crew on board
was hijacked by two persons among the passengers, and diverted a: gun
point and under the threat ofa hand grenadeto Lahore inPakistan short-
lyafter noon on 30January 1971.The Applicant requested the Respon-
dent the sameafternoonforthe immediate releaseofthe passengers, crew,
cargo,baggageand mailaswellastheaircraft. Far fromrespondingto the
Applicant's request, the Respondent behaved in a most reprehensible
manner and its conduct amounted to the very negation of al1the aims
and objectives,the scheme and provisions, of the Convention and the
Transit Agreement and violated al1international conventions and obli-
gations bearing on the subject. The conduct of the Respondent left no
doubt that the Respondent was an accomplice or accessory after the
crime, ifnot before the crime. Atabout 20.30hours (I.S.T.) on 2 Febru-
ary 1971the two criminals were allowed to blow up the hijacked Indian APPLICATION 7
aircraft. The aircraft !vas totally destroyed in full view of the airport
authorities, troops and police at Lahore airport which isa protected area,
and at a time when Martial Law was(as il still is)in force in Pakistan.
Il. The Applicant strongly protestedagainst theconductof the Recpon-
dent in relation to the hijacking incident and claimed damages for the
destroyed aircraft, cargo, baggage and mail. When no positive and satis-
factory response was made by the Respondent, on 4 February 1971the
Applicant ordered withdrawal, with immediate effect, of the perinission
(which had been granted under the Special Agreement of 1966) for the
overflying of Pakistan aircraft overthe territory of India. The Respondent
had shown no regard for the most elementary notions of safety in civil
aviation, and made it impossible for Indian aircraft to overfly Pakistan.
The Applicant forthwith suspended overflights of its own aircraft over the
Pakistan territory in view of the present and imminent danger to civil
aviation created by the conduct of the Respondent.
12. On 3 March 1971 the Respondent submitted as aforesaid the
Application and the Complaint to the Council. In the Application the
Respondent alleged that thc refusal of the Applicant to let Pakistan air-
craft overfly lndia amouiited to a disagreement between the Applicant
and the Respondent relating to the "application" of the Convention and
the Transit Agreement; aiid in the Complaint the Respondent alleged
that the Applicant's conduct amounted to "action under the Transit
Agreement".
13. The Secretary-General of the Internatioiial Civil Aviation Orga-
nization, vide his letter No.LE 611dated 8 Aprif 1971and his Iefter No.
LE 612dated 8 April 1971,invited the Applicant to present its Counter-
Memorials to the Respondent's Application and Complaint.
14. Since the Applicant was advised that the Council had no juris-
diction to handle the matters presented by the Respondent's Application
and Complaint, the Applicant filed on 28 May 1971 a single set of Pre-
liminary Objections to the jurisdiction of the Council, under Article 5
of the Council's Rules, to both the Application and the Complaint.
15. The Council's jurisdiction is limited to disagreement relating to
the interpretation or application of the Convention or the Transit Agree-
ment, and does not extend to any dispute or disagreement relating to
the termination or suspension of the Convention or the Transit Agree-
ment by one State vis-à-vianother State. This is clear from Article 84
of the Convention, Section 2 of Article II of the Transit Agreement, and
paragraph (1) of Article I of the Council's Rules.
16. Article 84 of the Convention runs as follows:
"If any disagreement hetween two or more contracting States
relating to the interpretation or application of this Convention and
its annexes cannot be settled by negotiation, it shall, on the appli-
cation of any State concerned in the disagreement, be decided by
the Council. No member of the Council shall vote in the consider-
ation by the Council of any dispute to which it is a Party. Any con-
tracting State may. subject to Article 85, appeal from the decision of the Council to an ad hoc arbitral tribunal agreed upon with the
other parties to the dispute or to the Permanent Court of Inter-
national Justice. Any such appeal shall be notified to the Council
within sixty days of receipt of notification of the decision of the
Council."
17. Section 2 of Article II of the Transit Agreement runs as follows:
"If any disagreement between two or more contracting States re-
lating to the interpretation or application of this Agreement cannot
be settled by negotiation, the provisions of Chapter XVIII of the
above-mentioned Convention shall be applicable in the same man-
ner as provided therein with reference to any disagreement relating
to the interpretation or application of the above-mentioned Con-
vention."
18. Paragraph (1) of Article I of the Council's Rules runs as follows:
"(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 re-
lating to the interpretation or application of the convention on
International Civil Aviation (hereinafter called 'the Convention')
and its Annexes (Articles 84 to 88 of the Convention);
(b) any disagreement between two or more Contracting States re-
lating to the interpretation or application of the International
Air Services Transit Agreement and of the International Air
Transport Agreement (hereinafter respectively called 'Tran-
sit Agreement' and 'Transport Agreement') (Article II, Section 2
of the Transit Agreement; Article IV, Section 3of the Transport
Agreement)."
19. The Council's jurisdiction to deal with a complaint is limited to
cases where action is taken by a State under the Transit Agreement. This
is clear from Section 1 of Article II of the Transit Agreement and
paragraph (2) of Article 1of the Council's Rules.
20. Section 1 of Article II of the Transit Agreement runs as follows:
"A contracting State which deems that action by another contract-
ing State under this Agreement is causing injustice or hardship to
it, may request the Council to examine the situation. The Council
shall thereupon inquire into the matter, and shall cal1 the States
concerned into consultation. Should such consultation fail to resol\'e
the difficulty, the Council may make appropriate îindings and re-
commeiidations to the contracting States concerned. If thereafter a
contracting State concerned shall in the opinion of the Council
unreasonably fail to take suitable corrective action, the Council
may recomniend to the Assembly of the above-mentioned Organi- APPLICATION 9
zation that such contracting State be suspended from its righis and
privileges under this Agreement until such action has been taken.
The Assembly by a two-thirds vote may so suspend such contracting
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."
21. Paragraph (2) of Article I of the Council's Rules runs as follows:
"The Rules of Parts II and 111shall govern the consideration of
any complaint regarding an action taken by a State party to the
Transit Agreement and under that Agreement, which another State
party to the same Agreement deems to cause injustice or hardship
to it (Article II, Section 1), or regarding a similar action under the
Transport Agreement (Article IV, Section 2)."
22. In the Przliminary Objections the Applicant submitted that the
Council should dismiss both the Application and the Complaint on the
grounds that they were incompetent and not maintainable, and that the
Council had no jurisdiction to hear them or handle the matters con-
tained therein, because-
(a) there was no disagreement between the Applicant and the Respon-
dent relating to the interpretation or application of the Convention
or the Transit Agreement;
(b) no action had been taken by the Applicant under the Transit
4greement;
(c) the question of Indian aircraft overflying Pakistan and Pakistan
aircraft overflying lndia was governed by a Special Régimeand not
by the Convention or the Transit Agreement; and
(d) the Council had no jurisdiction to handle any dispute under a
Specia,.Rég.meor a Bilateral Agreement.
23. The Respondent's reply to the Applicant's Preliminary Objections,
-both the written reply as well as the reply at the oral hearing on the
Preliminary Objections before the Council-was that any dispute be-
tween two States relating to the termination or suspension of the Conven-
tion or the Transit' Agreement should be regarded as a disagreement
relating to the interpretation or application of the Convention or the
Transit Agreement and was consequently within the jurisdiction of the
Council. As regards the Complaint, the Respondent further submitted
that termination or suspension of the Transit Agreement amounted to
action under that Agreement.
24. The Council heard both the Applicant and the Respondent on 27
and 28 July 1971. After the conclusion of the hearing of the case, at a
meeting of the Council on 29 July 1971 the President of the Council
expressed his intention of putting to vote the following propositions based
on the Applicant's Preliminary Objections: "Case I (Applicarion of Pakistan under Article 84 of the Convention
and Article II, Section 2, of the. International Air Services
Transit Agreement)
(i) The Council has no jurisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the Convention on
International Civil Aviation.
(ii) The Council has no jurisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the International
Air Services Transit Agreement.
(iii) The Council has no jurisdiction toconsider the disagreement in
Pakistan's Application in so far as concerns the bilateral agree-
ment between India and Pakistan.
Case 2 (Complaint of Pakistan under Article II, Section 1, of the
International Air Seriices Transi! Agreement)
(iv) The Council has no jurisdiction to consider the Complaint of
Pakistan."
25. The Indian delegation immediately pointed out that,the formula-
tion of the questions in the manner indicated above was improper, pre-
judicial to lndia and contrary to the Council's Rules. The propositions
before the Council should have been formulated in a positive way, viz.,
that the Council had jurisdiction to deal with the Respondent's Applica-
tion and Complaint. Despite this valid objection by the Indian Delegation,
the President of the Council took votes on the propositions as he had
forrnulated them earlier, though he did not put to vote the third propo-
sition under Case 1 in view of the Respondent's staternent, made after
the hearing and at the time of voting, that it did not seek relief from the
Council under the Bilateral Agreement. While the majority of the mem-
bers of the Council voted against propositions (i) and (ii), only 13out of
27 members voted against proposition (iv).The draft Minutes of the6th
Meeting of the Council maintained that the Council's decision as the re-
sult of the votes was the rejection of the propositions (i), (ii), and (iv)
and hence the affirmation of the Council's competence to consider the
Respondent's Application and Complaint.
26. The Government of India has the honour, by the present Applica-
tion, to exercise, within the time-limit permitted under Article 84 of the
Convention (which also applies under the Transit Agreement) the right of
appeal from the above-mentioned decision of the Council. A certified
copy of the decision, as recorded in the draft Minutes of the Council, is
attached to this Application.
Grounds of obiecrioiv ru Council's decction
27. TheApplicant submits that the decision of the Council iserroneous
and the Council sliould have upheld the Preliminary Objections filed by
the Applicant against the Respondent's Application and Cornplaint. The APPLICATION 11
Council should have held that the Application and the Complaint were
incompetent and not maintainable and that the Council had no iurisdic-
tion to hear them or to handle the matters contained therein, and should
have upheld the following submissions of the Applicant:
(a) There isno disagreement between the Applicant and the Respondent
relating to the interpretation or application of the Convention or the
Transit Agreement. The words "interpretation" and "application"
postulate and presuppose the continued existence and operation of
the treaty as between two States. When 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, there being notreaty in operation as
between the two States. The termination or suspension of an inter-
national treaty represents the exercise by a State of its rightder in-
ternational law and that right is de hors the treaty, as was held by
this Hon'ble Court in the Advisory Opinion of 21 June 1971 (Legal
Consequencesfor States of the ContinuedPresenceof South Africain
Namibia (South West Africa) notwithstanding Security Council
Resolution276 (1970)). The legal concept of termination or suspen-
sion of a treaty iswholly distinct and different from the concept of
interprctation ;r application of the trcaty: and the Counci13\juris-
diction doé~notenibriicctheformer but isstrictlv Iimited to thclaiter.
Therefore, it is irrelevant to decide on the factç (i) whether the case
is one oftermination or of suspension, and (ii) whether the termina-
tion or suspension took place in September 1965or in February 1971.
However, the correct view of the matter according to the Applicant
is that the Convention and the Transit Agreement were suspended
as between the Applicant and the Respondent by both the States in
September 1965in relation to overflights and landings for non-traffic
purposes, and they have never been revived as between the two coun-
tries;and the Applicant and the Respondent have accepted and acted
on the basis of this position since September 1965; and that if the
material parts of the two treaties are at al1to be regarded as being
in operation between the two countries at the beginning of 1971,
they were suspended by the Applicant on 4 Fehruary 1971sincethere
were material breaches ofthe two treaties by the Respondent, which
specially affected the Applicant. A dispute relating to such suspen-
sion could notfall within the jurisdiction ofthe Council.
(b) As regards the Complaint, it is clearly incompetent and not main- ,
tainable, since no action has been taken by the Applicant under the
Transit Agreement. The Applicant had suspended the Transit
Agreement vis-à-visthe Respondent. Such suspension was dehorsthe
treaty and represented the exercise of a right under a well-settled rule
of international law, and could not possibly be regarded as action
under the Transit Agreement.
Ic) The question of Indian aircraft overflying Pakistan and Pakistan airciaft overflying lndia is governed, not by the Convention or the
Transit Agreement, but by the Special Régime of1966.This Special
Régimewasaccepted by both the Applicant andthe Respondent from
February 1966onwards as constituting a Bilateral Agreement after
the suspension or termination (as between the two States) of the
Convention and the Transit Agreement in September 1965. At the
time of voting by the Council menibers, the Respondent apparently
accepted the position that the Council had nojurisdiction to handle
any dispute under a Special Régimeor a Bilateral Agreemmt. But
the Council overlooked that where such a Special Régimeexists, as
it does in the present case, no question of interpretation or applica-
tion of the Convention or the Transit Agreement can possibly arise.
28. The decision of the Council was further'vitiated by the fact that
the questions were framed in the wrong manner as indicated above.
Further, the decision of the Council3s regards the Complaint is directly
contrary to Article 52of the Convention which provides that "decisions
by the Council shall rzquire approval by a mïjority of its members".
The Council's decision that it had jurisidiction to consider the Respon-
dent's Complaint was not sopported by a iiiaiority of the members of the
Council. Assuming the Council's decision as rcgards the Complaint is
held to have been validly arrived at on the votes cast, the Applicatit
submits that there was gross miscarriage of justice as a result of the
question having been wrongly franied. If the question had been rightly
framed and ifthe proposition that the Council hadjurisdiction toonsider
the Respondent's Complaint had been put to vote, the decision of the
Council would have been in favour of the Applicant on the same pattern
of voting. The decision of the Council was further vitiated by another
fact. The Couticil was acting as a jiidicial body and each of its members
had to discharge his duty as a Judge. Although some of the members
asked for time to considcr the issues of îar-reaching importance which
had been raised by the Applicant and asked for verbatim notes of the
oral hearing, their request was turned down, with the result that some of
the Judges were unable to participate in the deliberations and in the final
decision of the Council. In the circumstances set out in this paragraph,
the decision of the Council cannot stand and must be regarded as haviyg
no validity or eKect.
29. Having regard ta Article 67 read with Article 32 of the Rules of
Court. the Applicant kas set out Iiere only a succinct statement of the
facts and the grouiids on which the appeal is preferred. The facts niid
grounds will be elaborated and devcloped iifhe Metiiorjal to which the
evidence aiid the televant documënts will be atincxed.
Sraren~enrof claim
30. WHEREFORM L,AY ITPLEASETIC ~EOURT TO AI>JUDG ENI> DCCLARE,
after such proceedings and hearing as the Court may seefit to direct, aiid
wherher the Respondent ispresen: or absent, thattliî aforesaid decisioii
of thc.Couiici1 is illegal, nuIl and void, or erroneous, on the following
grounds or any others:A. The Council has no jurisdiction to handle the matters presented by
the Respondent in its Application and Complaiiit, as the Convention
and the Transit Agreement have been terminated or suspended as
between the two States.
B. The Council kas no jurisdiction to consider the Respondent's Com-
plaint since no action has been taken by the App!icant under the
Transit Agreement; in fact no action could possibly be taken by the
Applicant under the Transit Agreement since that Agreement has
been terminated or suspended as between the two States.
C. The question of Indian aircraft overflying Pakistan and Pakistan
aircraft overflying lndia is governed by the Special Régime of1966
and not by the Convention or the Transit Agreement. Any dispute
betwecn the two States can arise only under the Special Régime,and
the Council has no jurisdiction to handle anysuch dispute.
31. The Applicant reserves the right to request the Court to declare
and adiudge witli respect to such further and other matters as the Ap-
plicant may deem appropriate to present to the Court.
The undersigned has been appointed by the Government of India as
its Agent for thepurpose of the Application and al1proceedings thereon.
The address for service at the seat of the Court to which ail commu-
nications relating to this case should be sent is, c/o the Embassy of
India at The Hague.
(Signcd) J. N. DHAMIJA,
Ainbassador of India at The Hague,
Agent of the Government of India.
1, Swaran Siiigh, the Minister of External
Aiïairs, Government of India, do certify that
H.E. Ambassador J. N. Dhamija, has been
duly appointed as the Agent for the Govern-
ment of India in proceedings instituted by
this Application.
[Seal]
(Signed) Swaran SINGH. ANNEX
COUNCLL-SEVENTY-FOURTH SESSLON
Minutes oftheSixth Meeting
(The Council Chamber, Thursday, 29 July 1971,at 10.00hours)
President of the Council: Mr. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary-General
Present:
Argentina Com. R. Temporini
Dr. K. N. E. Bradfield
Australia Mr. A. X. Pirson
Belgium
Brazil Col. C. Pavan
Canada Mr. J. E. Cole (Alt).
Colombia Major R. Charry
Congo (People's Republic of) Mr. F. X. Ollassa
Czechoslovak Socialist Republic Mr. 2. Svoboda
Federal Republic of Germany Mr. H. S. Marzusch (Alt.)
France Mr. M. Agésilas
lndia Mr. Y. R. Malhotra
lndonesia Mr. Karno Barkah
Italy Dr. A. Cucci
Japan Mr. H. Yamaguchi
Mexico Mr. S.Alvear L6pez (Alt.)
Nigeria Mr. E. A. Olaniyan
Norway Mr. B. Grinde
Mr. Y. Diallo
Senegal Lt. Col. J. Izquierdo
Spain Mr. A. El Hicheri
Tunisia
Uganda Mr. M. H. Mugizi (Alt.)
Union of Soviet SocialistRepublics Mr. A. F. Borisov
United Arab Republic Mr. H. K. El Meleigy
United Kingdom A/V/M J. B. Russell
United States Mr. C. F. Butler
AlsoPresent:
Dr. J. Machado (Alt.) Brazil Mr. L. S. Clark (Alt.) Canada
Mr. B. S. Cidwani (Alt.) lndia
Mr. M. Garcia Benito (Alt.) Spain
Mr. N. V. Lindemere (Alt.) UK
r. F. K. Willis (Alt). US
3 r. A.A. Khan (Obs.) Pakistan
Mr. H. Rashid (Obs.) Pakistan
Mr. Magsood Khan (Obs.) Pakistan
Secrefariat:
Dr. G. F. FitzCerald Sr. Legal Officer
Mr. D. S. Bhatti Legal Oficer
Miss M. Bridge CS0
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Settlement of Disputes betnven Conrractiiig States
Pakistan versusIndia-Suspension by Iiidiaof Fliglttsof Pukirtani Aircrufi
over Inflian 'ferritorj,
1. The meeting opened with a statement by the Alternate Represen-
tative ofIndia, which at his request is reproduced iii full in the appendix
to these niinutes. A request for a legal opinion from the Secretariat on
the vnlidity of an immediate decision was denied on the ground that the
Council was at thislime Sittingas a coiirt and according to legal practice
would have to pronounce on that qiiestion itself. The lndian position,
was, however, cliallenged explicitly by the Representatives of the Peo-
ple's Repiiblic of the Congo and Australia, implicitly by the Represen-
tatives of Norway, Canada and France in declariiig their readiness to
proceed to a decision. The Representative of the Czechoslovak Socialist
Republic, supported by theRepreseiitative ofthe Union of Soviet Socialist
Repiiblics, proposed defermerit of a decision unti10August, but when
put to the vote thisproposal failed to receiie the statutory majority which
it had been ~inderstoodfrom the start of the proceedings on the Pakistan
application and cornplaint would be required for any decision, the result
of the vote being 8 for, none against, and 10 recorded abstentions (the
Representatives of Argentina, Brazil, Canada, the People's Republic of
the Congo, Indonesia, Mexico, Norway, Senegal, Spain and Uganda).
2. The President then expressed his intention otputting to a vote the
following propositions based on the preliminary objection:
Case I (Application of Pakistan under Article 84 of the Cont~enrionand
Arricle II, Seoion 2, of /hr International Air Srri~ices Traiisit
Agreeineiil)16 ICA0 COUNCR
(i) The Council has no jurisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the Convention on
International Civil Aviation.
(ii) The Council has no jurisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the International
Air Services Transit Agreement.
(iii) The Council has nojurisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the bilateral agree-
ment betweeii lndia and Pakistan.
Case 2 (Coniplaini of Pakisrari under Article II, Section 1,O/ the Inter-
national Air Seri.ices Transir Agreerneiit)
(iv) The Council has no jurisdiction to consider the cornplaint of
Pakistan.
The lndian Delegation asserted that this was an improper formulation.
According to Article 5 of the Rules for the Settlement of Diiïerences, if
the respondent questioned itsjurisdiction, the Council had to decide the
question-in other words, the question of jorisdiction-as a preliminary
issue before any further steps were taken under the Rules. The proper
formulation therefore was "Has the Council jurisdiction to consider the
disagreement in Pakistan's Application ...?', etc.; any other would be
prejudicial to lndia and contrary to the Rules. The President explained
that the Council so Farhad been proceeding on the assumption that it did
have jurisdiction; lndia had challenged its jurisdiction; the Council
accordingly had now to decide on the challenge. The Representatives of
Canada, the United States, Tunisia and the People's Republic of the
Congo supported the President's formulation, maintaining that the
purpose of the vote was to determine whether the challenge was upheld,
not whether the Council had jurisdiction. The manner of formulation
would not affect the results of the vote, but was important because of the
precedent-making nature of the decisions to be taken.
3. The result of the vote on the first proposition was none in favour,
20 opposed and 4 abstentions (the Czechoslovak Socialist Republic,
Japan, the Union of Soviet Socialist Republics and the United Kingdom).
~he Indinn Delegntion prutcdcd th;it ;he mlnner in which the vote hdd
bzen taken WJF ~ncorrecinnd in3diiiis,ible under the Kiilesfur ihe Setile-
ment of Diferences, and requested a roll-cal1 on the remaining pro-
positions.
4. The President noted that only parties to the Transit Agreement'
(except, of course, India) were eligible to vote on the second proposition,
'ThefollawingCouncilmembersare parties to theTransit Agreement : rgen-
tina,Australia,Belgium.Canada. theCzechorlavakSocialist Republict,he Federal
RepublicofCermany. France. IndiaJapan,Mexico.Nicaragua,Nigeria.Norway,'
Senegal,Spain; Tunisia, theUnited Arab Republic, the Unitcd Kingdom, the
UnitedStatesof Amcrica. APPLICATION 17
but the statutory majority would still be required for a decision. The
result of the vote was as follows:
For: None
Against:. Argentiiia, Australia, Belgium, Canada, the Federal
Republic of Germany, France, Mexico, Nigeria,
Norway, Senegal, Spain, Tunisia, the United Arab
Republic and the United States (14)
Abstained: the Czechoslovak Socialist Republic, Japan and the
United Kingdom (3).
5. After several Representatives had questioned both the necessity
and the desirability of putting the third proposition to the Council-and,
indeed, whether Pakistan had really sought relief from the Council under
the bilateral agreement-the Representative of Pakistan, after consulting
his country's Chief Counsel, stated that it had not; the bilateral agree-
ment had been mentioned simply to reinforce the case being made for
Council action uiider the Convention and Transit Agreement. The Indian
Delegation protested, calling attention to the frequent references to the
bilateral agreement in Pakistan's Application and to the fact that in the
Preliminary Objection India had denied the Council's jurisdiction to
handle any dispute under a bilateral agreement; they did not, however,
insist upon the third question being put, having already gone on record
as considering any decision taken at this meeting improper.
6.A roll-cal1 vote was 'then taken on the fourth proposition, only
parties to the Transit Agreement (except India) again being eligihle to
participate. The result was:
For: the United States of America
Against: Argentina, Australia, Belgium, Canada, the Federal
Republic of Germany, France, Mexico, Nigeria,
Norway, Senegal, Spain, Tunisia and the United Arab
Republic
Abstained: the Czechoslovak Socialist Republic, Japan and the-
United Kingdom.
7. The result of the foregoiiig votes was the rejection of propocitions
(i), (ii) and (iv) and hence the reaffirmation of the Council's competence
to consider the Application and Complaint of Pakistaii. Explanations
of vote were given by the Representatives of the United States, Senegal,
Spain, Indonesia, Canada, Argentina, Tunisia and the People's Republic
of the Congo, explanations of abstention hy the Representatives of the
United Kingdom, the Czechoslovak Socialist Republic and the Union of
Soviet Socialist Republics; these will he reproduced in full in Part 11of
these Minutes (Discussion). The lndian Delcgation gave notice that
India would appeal the decisionsjust taken to the Iiiternational Coort of
Justice because themanner and method of the voting had been wrongandexpressedthe view that until judgment had been rendered by the Court
no further action was possible.
8. In reply to questions, the President indicatedthat the period given
to India for the filingof its counter-memorial,interrupted by the filing of
the preliminary objection, would start to run again imrnediately and
would expire in ten days; if the counter-memorial was not filed by the
deadline, the Council would be informedby the Secretary-General in a
memorandum examiningthe consequences. Appeodix
1 shall say only a few words, but to my mind these words merit the
closest consideration. For the first time in the history of tbis Council it
has been called upon to decide the question of the limits of itsjurisdiction.
It is a question of the most far-reaching importance involving the con-
sideration of weighty arguments, principles of international law, and
judgments and advisory opinions of the International Court of Justice.
It must not be forgotten that the Council is meeting today as a judicial
Court entrusted with the task of reaching a judicial decision on points
of international law and the ambit of itsjurisdiction as an international
judicial authority. Even highly trained judicial minds would require
time and the most anxious consideration before coming to a fair and
correct decision on an issue like this. It has been admitted that some of
the Members would liketo have the assistance of their respective Govern-
ments in evaluating the arguments urged at the hearing. Some Members
have specifically stated that without an opportunity of discussing the
matter with their Governments or Administrations, they would have to
come to a decision not on the basis of the arguments urged, but on the
basis of the pleadings filed earlier relating to the preliminary objections
and the treaties and the rules applicable thereto. This would make the
oral hearing an idle ceremony if time is not allowed to the Members to
study the verbatim records and take such assistance from their Govern-
ments or Administrations as they may require. If the.Council were to
come to an immediate decision on an issue of this character, without
waiting for the verbatim records of the arguments and without waiting
for the respective Governments of the Member States to consider those
verbatim records of the full arguments, 1am constrained to Saythat the
Council would be failing to discharge itsduty and to functionas aiudicial
body.
It istruethat there should not beany delay intheCowicilarrivingat fair
decisions. Delay means taking more time than isnecessary forthejudicial
process. Delay does not mean denying the time necessary to apply the
judicial process fairly after full and adequate consideration.
If unfortunately the administrative set-up of the Secretariat is unable
to produce the verbatim records within 24 hours, as is common withmany other organsof the United Nations, thal drawback has necessarily
to be accepted as a part of the procedural problems of the Council and
the time involved in the production of the necessary verbatim records
should not and cannot be construed as delay.
1 fail to understand how an international tribunal like this Council,
after detailed arguments of such far-reaching importance, can possibly
come to a quick decision without full consideration by the respective
Governments of,the arguments advanced here of which the Govern-
ments so far know nothing.
It is most significant to note that some Members of the Council have
already stated that they are not in a position to evaluate anddecide upon
the respective submissions made by India and Pakistan upon the pre-
liminary points ofjurisdiction without further consideration. Other Mem-
bers have expressly stated that if the decision is to be made later, the
timezlag must be meaningful and it must be after the verbatim records
are made available for full consideration by them and their Governments
or Administrations. This shows that if the Council were to make a de-
cision now, the decision would have no validity or propriety in law, be-
cause the Members of the Council, Le.,some of thejudges, are admittedly
not in a position to evaluate and decide upon the arguments and sub-
missions without further consideration. It is for the Council to consider
whether il should like to come to a decision in such circumstances where
time is not given toeeery judge to give full and adequate consideration to
the issues involved.
Anotherground on which the decision ofthe Council would be vitiated,
if it isarrived at without waitingfor theverbatim records, isthaltheCoun-
cil, as already stated above, is here acting as a judicial court, and some
of the judges, Le., Members of the Council, were not present throughout
the oral hearing from the beginning to the end. They can join in the deci-
sion only after reading the verbatim records; and if they join in the deci-
sion without considering the verbatim records, the whole decision of the
Council would stand vitiated on the ground that some of the judges had
not applied their minds to the entire case of both sides. It is needless to
add that what lndia and Pakistan had filed before the Council are only
pleadings on preliminary objections and not arguments or Statements
ofthe Case or full Briefs on the preliminary objections. If ajudgedecides
a case merely on pleadings, without considering fully the oral or written
presentation of the case, thedecision would not be proper in law.
It is my suggestion, therefore, that the final decision should be arrived APPLICATION 21
at after theverbatirnrecords are made availableto the Membersof the
Council and, throughthem, to their respectiveGovernrnents.
Montreal,29 July 1971.
Application instituting proceedings