Correspondence

CORRESPONDENCE CORRESPONDENCE 111

1. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REOISTRAR

11 May 1973.

1 have the honour to transmit to vou, for communication to the PrzsiJ~nt
,
and Judges of the International court of .Justice,an Application1 to the Court
suhmitted by the Government of the Islamic Republic of Pakistan, against
the Government of India.
The Pakistan Government has appointed the undersigned as their Agent.
The address for service on the Agent of the Government of Pakistan is the
Embassy of Pakistan, No. 3A, Plein 1813,The Hague.

THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REGISTRAR
2.

11 May 1973.

Ihavc the honour to traiirmii ro yoii. fur .'oniniuriicaiionICIihe Pic\i.icnr and
Judgcr of the Inierniliioiial Court. ;i requesr for the indication oi iiiicrim

meajureidf nroleciion' iiirc131i,1n10 ihe ,\ppli.'ation iiled hy ihe C;i~\crnmcnr
of Pakistan &ainst the Government of 1ndk

3. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REGlSTRAR

II May 1973.

In accordance withArticle41 of the Statute, read with Article 66. paragraph 3.
oiitie Rulcj<ifC,iurr'. Ihaie ihc hcinuur io.ddreis 10y<iurhis a.ritren ~eq~esi

of rhc C;ai\ernmrnt 01'P;tkisi,iii \iliiiiivie\%of the urgcric) di ilic siiii~iion,
mas kindl, be brourht 161lhc noriceof the Prcridenr oiihc Cuurr for app~ ~pr~xie
action, aséarly as possible.
2. Pakistan has filed an Application instituting proceedings, against the
Government of India. The subiect of the dispute relates to charges of genocide
against 195 of the over 92,000~akistani prisiners of war and ciiilian internees

heing held in India. The fundamental issue in these proceedings is whether or
not Pakistan has an exclusive claim to exercise jurisdiction in respect of such
persons hy virtue of Article VI ofthe ~onventionon.the ~reventionand Punish-
ment of the Crime of Genocide, adopted hy the General Assemhly on the 9th
of December, 1948, to which both India and Pakistan are Parties.
3. In relation to these proceedings the Government of Pakistan have also

Seepp. 3-7, supra.
Seepp. 17-18, supro.
3 Rulesof Court as amendedon 10May 1972,I.C.J. AcrsandDocurnents No. 2.112 PAKISTANI PRISONERS OF WAR

made a Request that the Court indicate the following interim measures of
protection:

\-, That the nrocess of renatriation of riso on ersof war and civilian internees
in accordance with international lai, which has already begun, should no1
beinterrupted by virtue of charges of genocide against a certain number of

(21 Thar such indi\iduals. as arc in the cusiody of India and are ch~rgeù uiih
iilleged iict.: of penosidî, should nothe tran4crred Io "BdnjIü Dcih" for

trial till sucli iinie as Pdkisian's slIOmexclusi\e iurisdiition. and the lack
of jurisdiction of any other government or authority in this respect, has
heen adjudged by the Court.

4. Therefore, pending the meeting of the Court ta consider Pakistan's
Request for the indication of interim measures of protection, the Government
of Pakistan prays that the President take such measures as may be necessary
in order to enable the Court to give an effectivedecision.
5. The President may be pleased to direct India not to transfer the 195 or

any other number of Pakistani Prisoners of War to "Bangla Desh" pending the
meeting of the Court and a decision by it with regard to Pakistan's request for
interim measures preserving the respective rights of the parties.

4. THE AGENT FOR THE GOVERNMEN OFTPAKlSTAN TO THE REGISTRAR

11 May 1973.

I have the honour to inform that the Government of Pakiitan has amointed
hlr. Sahya Wakhtiar, Aitorney Gcneral di Pshisinn as the Chiel ~o;iisel Tor
I3aki>t.inand \Ir. Ziihiil Said, Deputy Lcgdl Advirer. \linislry of Foreign

Athiri asCounscl in ihcii~~licdiion lilcrl hs theCio\ernment uf I'xkirtanagainsi
the Government of 1ndia-with regard to &e 92,000 Pakistani prisoners if war
detained in India and the threatened transfer of 195 of these prisoners to
"Bangla Desh" for trial.

5. THE REGISTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA

(telegram)

11 May 1973.

In accordance with Article 40, paragraph 2, Statute of International Court

of Justicehave hon~ur~ ~form vou Pakist~ - ~ ~ ~~ ~ ~in Reeistm Annl. ..ion
instituting proceedings against India and request for indication interim
measures of protection under Articles 41 Statute and 66 Rules. Proceedings
relate to charges of genocide against 195Pakistani nationals, prisoners of war
or civilian internees, being held in India and claim hy Pakistan by virtue of
Genocide Convention ta exclusive right to exercise jurisdiction over said

Pakistani nationals. Interim measures requested are:

[See pp. 17-18, supra.]

Copies of Application and request for interim measures airmailed today CORRESPONDENCE 113

6. THE REOISTRAR TO THE MINISTER FOR EXTERNAL AFFAIRS OF INDIA

1I May 1973.
Airmail

Confirming my cable of today's date, a copy of which is enclosed, 1have the
honour to inform Your Excellency thdt the Government of Pakistan has this
dav filed in the R-.istrv of the International Court of Justice an..~~lication
instituting proceedings against lndia concerning charges of genocide against
Pakistani nationals, prisoners of war or civilian internees, heldIndia, and a
claim b~.Pakistan &der the convention on the Prevention and Punishment of
ihe Crime of ~enocide t~ian exclusibe right to exeriire jurisdiction "Kr the

said I'akistani nationals. The Ciovernment of I'akistan has alw today tiled a
request for the indication of interim musures of prote-lion under Article 41 oi
the Siaiuie OCthe Court and Article 66 of the 1972 Rules of Court
1 hd\,e the honour to send Your Ex~ellency hereuith a certified copy of the
Ao..ication and of the re.uest for the indication of interim measurof orotec-
lion; I shall in iue cour% ttr~nsmit to yuu certified printed copies'of the
Applicstion in the bilingual (English and French) edition whichil1beprepared
by the Rçgistry. 1alsu enclosesupies of the Ictters of transnittal of the Applica-
tion and of the request from the Ambassador of Pakistan, and of a iurther
letier from the ,\mbassïdor ionierning the appointment of Chief Counsel and

Counsel for Pakistan.
1 take this opportunity ofdrawing Your Excellency's attention to Article 38
of the 1972 Rules of Court which provides, in paragraph 3, that the Party
a-ainst whom the aoo..cation is made and to whom it is notified shall. when
aiknowledging rweipi of the notification, or fdiling this, as soon as possible,
inform the Court of the name oiiis ageni, and, in paragraph5,th31the appoint-
ment of an agent must beaccompanied by a statement of an address for service
at the seat of the Court to which al1communications relating Io the caseshould
be sent

7. THE REGISTRAR TO THESECRETARY-CENER AFLTHEUNITEDNATIONS
(telegrain)

II May 1973.

With reference Article 40, paragraph 3, of Statute have honour inform you

that on 1I May Pakistan filed (a) Application instituting proceedingsagainst
India relating to charges of genocide against Pakistani nationals, prisoners of
war or civilian internees, being held in India and claim by Pakistan by virtue
of Genocide Convention to exclusive rirrht to exercise iurisdiction over said
Pakistani nationals (b) request for indication interim ieasures of protection
under Articles 41 Statute and 66 Rules. Measures requested are:

[See pp. 17-18,supra.]114 PAKISTANl PRISONERSOF WAR

8. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TOTHE PRESTDENTOF THE COURT

12 May 1973.

With refcrence to the written Reauest from the Pakistan Government under
Rule 66, p3ragr.iph 3. i>fthe Rule, ot~<iuri, handed o\cr to the Regtsrraofrhe
Coiirt on trida).. II Mx!. 1')73.1ha\c rt.e honour IO respc~ifull!. rejuchr ?.ou
in your capacity as President of the Court kindly to send a telegram to the
~orcign ~liniste-r,silie Goi.ernnicnt of Indili. siigic.\tahim ihëdesirab~l~t~
~i'nui tîking an) a;t1011pre)udic~;iIrd the righr, i~iihe parties and directing

him inaccordance with Pakistan's prayer at paragraph 5of theabove-mentioned
"Request".
2. Such a measure is indispensable in order to enable the Court to take an
effective decision with regard to indication of interim measures of protection,
since the trials are threatened to be held in "Bangla Desh" hy the end of May
1973,and lndia is likely to transfer the Pakistani prisoners of war any lime now.
(Attention is drawn to Annexure C-(VIII) of Pakistan's Aoolication in this
iespect.) It is apprehended that now that lndia has knowledge &fthe institution
of these proceedings, she may transfer the prisoners of war in question to
Banda Desh with aview to defeatine. the verv ouroose of the oroceedine.~and
-
consëquently the enercise of jurisdiction hy thi~o'urt.
3. 1 am advised to respectfully draw your attention to the fact that the
President ofthe Permanent Court of International Justice sent a telegram of this
nature to the Polish Minister for Foreign Affairs in the case concerning the
Administrarion of the Prince of Pless (Series E, No. 9, p. 165, note 1) which
measures greatly helped in the solution of the dispute. In the Anglo-Irnnian
Oil Co. case, the President of the International Court look a similar step
(I.C.J. Pleodincs, pp. 704 and 709) in order to preserve the respective rights of
the parties.

4. It is further requested, that in view of the gravity of the matter, Pakistan's
Chief Counsel Mr. Yahya Bakhtiar, Attorney of Pakistan, assisted by Mr.
Zahid Said as Counsel, may be given a hearing if deemed necessary.

9. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REGISTRAR

12 May 1973

1 have the honour to state that in exercise of its right under Article 31 of the
Statute of the Court, the Government of Pakistan have chosen Sir Mohammad
Zafrulla Khan as ad hoc Judge in the application Pakistan es. India relating to
the Trial of PokisfoniPrisorrersof War on charges of genocide filed before the
Registry of the International Court of Justice.
The address of Sir Muhammad Zafrulla Khan is:

93, Khurshid Alam Road,
Lahore (Cantonment)
(Pakistan)
At present Sir Muhammad Zafrulla Khan is residing at:

16, Gressenhall Road,
London, S.W.18
Telephone No. 874-6298. 10. THE REGISTRAR TO THE MlNlSTER OF EXTERNAL AFFAIRS OF INDIA

(relegram)

13May 1973.

Reference my cable and letter of 1I May concerning proceedings instituted
by Pakistan against lndia have honour inform Your Excellency that Pakistan
has notified choice of Sir Muhammad Zafrulla Khan as Judge ad hocpursuant

Statute Article 31. Reference Rules of Court Articl3 please cable soonest any
views Indian Government may wish to submit in any event not later than 17
May.

11. THE REGISTRAR TO THE MINISTER FOR EXTERNAL AFFAIRS OF INDIA

(lelegram)

14 May 1973.

Further reference my cahle and letter of II May concerning proceedings
instituted by Pakistan against lndia and in particular request for indication

interim measures of protection have honour inform Your Excellency tbat
President of Court exoresses the hooe that the Governments concerned will
take inIo account the iact that the matter is now su6 judice before the Court.
Similar communication addressed today to Government of Pakistan. Court
will in due course hold public hearings to afford parties the opportunity of
presenting their observations on request for interim measures. Date of opening
of such hearings will be announced as soon as possible.

12. THE REGISTRAR TO THE AGENT FOR THE GOVERNMENT OF PAKISTAN

14 May 1973

1have the honour to refer to your letter to the President of the Court dated
12 May and to the written request of II May referred totherein, relating to the
case concerning the Trial of Pakistani Prisoners of War (Pakistuii v. India)1
have the honour to state that the President has directed me to inform the
Government of lndia and Your Excellencv's Government that he exuresses

the hope that the Governments concerned Lnthese proceedings will take inIo
account the fact that the matter is now subjudice before the Court. 1enclose
a copy of the te!egram to that effect which 1 have today despatched Io the
Government of India.
1have the further honour to inform you that the Court willin due course hold
Dubiichearin~s to afford the Partiesthe oo~ortuni-. of oresentina tbeir observa-
;ions on the Yequest by Your ~xcellen2s Government for the indication of
interim measures of protection; the date of opening of such hearings will be

announced as soon as ~ossihle 116 PAKISTANI PRISONERS OF WAR

18 May 1973.

Airmail

With reference to my cahle of 14 May, a further confirmatory copy of which
is enclosed, 1 have the honour to send Your Excellency herewith a copy of a
written request addressed to the President of the Court the Agent of Pakistan

on II May 1973,expressed to be made under Article 66, paragraph 3, of the
1972 Rules of Court, and a copy of a letter to the President from the Agent of
Pakistan dated 12 May 1973.

14. THE REGISTRAR TO THE MINISTER FOR EXTERNAL AFFAIRS OF INDIA
(telegram)
22 May 1973

Reference my telegram of 11 May concerning proceedings instituted hy
Pakistan against India in case concerning Trial of PakisfaniPrisoners of War
and in particular request by Pakistan for indication interim measures of
protection have honour inform Your Excellency that President proposes to
convene Court for public Sitting on Tuesday 29 May 1973at 10am. at Peace
Palace. The Hague. to hear observations of Parties on reauest for interim

measuies l.~ay-1 iespectfully draw Your Excellency'sattention to final para-
graph of my letter 54249 of II May concerning requirement of Article 38 of
Rules as to appointment of Agent.

15. LE GREFFIER AU MINISTRE DES AFFAIRES ÉTRANO~RESD'AFOHANISTAN

23 mai 1973

Le II mai 1973 a Ctr'dépoikeau GretTcde 13Cour internatii~n~léile Ju\tice,
3u nom du Pikirt:in, une requ2te pdr 13quellele Guuvernement pakist3nai>
introduit contre I'lnde une inilancc cn I'aifaire intiProc<:riir~priso~~iii~ers

guerrepakistanais.
J'ai l'honneur,à toutes fins utiles, de transmettre ci-joànVotre Excellence
un exemplaire de cette requête.

16. LE GREFFIER AU CHEF DU GOUVERNEMENT DU LIECHTENSTEIN 3

23 mai 1973

Le 11mai 1973a été déposéaeu Greffe de la Cour internationale de Justice,
au nom du Pakistan, une requête par laquelle le Gouvernement pakistanais

'A similarcommunicationwassentto the Agentfor the Governmentof Pakistan.
2 La mêmecommunicationa ét6adressée auxautres Etats Membres desNations
Unies.
3 Lamêmecommunication a étéadresséeauxautreE stafsnon membresdesNations
Unies admis àesterdevantla Cour. CORRESPONDENCE 117

introduit contre l'Inde une instance en l'affairintituléeProcèsdepriso~~tiier dse

grierrepakistanais.
J'ai l'honneur,à toutes fins utiles, de transmettre ci-joinà Votre Excellence
un exemplaire de cette requête.

17. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REGISTRAR

23 May 1973.

1have the honour to inform that the Government of Pakistan has appointed
Mr. S. T. Joshua, Second Secretary, as Deputy-Agent in the application filed

bv the Government of Pakistan aaainst the Government of lndia with reaard
1; the 92,000 Pakistani prisoners of war detained in lndia and the threatëned
transfer of 195of these prisoners to "Bangla Desh" for trial.

18. THE AMBASSADOR OF INDIA 70 THE NETHERLANDS 70 THE REGISTRAR

23 May 1973.

Upon instructions received from the Government of India, 1 have the

honour to communicate to you as follows:
The Go\emrnent of lndia have received your te:egrams of II, 13and 14May

1973respectively. They have also received on 16 May 1973,your airmail letter
No. 54249 of II May 1973,along with ils enclosures, which include a certified
copy each of the Application filed by Pakistan insrituting proceeding against
India, entitled "Triol of Pokisratti Prisoirersof War (Jurisdiction under the
Genocide Convention) (Pakistan versus India)" and of the Request for the
indication of interim measure of protection.

The Government of lndia ha\,e perused the Application and the Request.
Pakistan has attempted to seize the Court by invoking Article 1X of the
Genocide Convention, "in accordance with which, it is stated in the Applica-
tion, "dispute tetween contracting parties relating to the interpretation,
application or fulfilment of the Convention, shall be submitted Io the Inter-
national Court of Justice at the request of any of the parties Io the dispute". It
is further stated in the Application that "the Court hns jurisdiction under
Article 36 (1) of its Statute".

The ~o;rt would. ~. do~iht. te aware t~a~ while filine ils Instrument of
Ratilirdtion on 27 August 1959. to ihc Con\ention on tt.e Preicntian and
Punishmcni of Criires i,CCenocide. 1948. it,e Go\err.mciii oi Indis eniercd a
reservation on Article 1Xof the convention, which reads as follows:

"With reference to Article IX of the Convention, the Government of
lndia declare that, for the subniission of any dispute in terms of this
Article tathe jurisdiction of International Court of Justice, the consent of

al1the oarties Io the di-~ut~ is reauired in each case." (P!ease see Multi-
Iiitersl Trcïiies "in rcsye<or \\hich 1t.cSecretar)-Gcncrlil performerl de.
poriiary funclionr-lis1 01 rtfna1urc.r. rïi,i,c~tinn~. .Icic~iiiin, ei3s,.il
31 Deicmkcr 1971tST LEC;SEK D 5, pp. th.68))118 PAKISTANI PRISONERS OF WAR

The Government of India accordinalv nresume that the Apdication and the

Request were communicated to them-fooÏtheir considerationwhether consent
should he given by them in terms of Article IX of the Genocide Convention.
The Government of India regret- that thev cannot aive-consent. in terms of
their ïiorenlentioned rcieri.liiion Io Article 1Xof the Genocide Con\cntion, IO
I'ak~sianfor raising the 3lleped ruhjezt-msrter heforc the Iiiternatii~nalCourt
of Justice under that Article.
Without such consent, the Court cannot be in proper seisin of the case and
cannot proceed with it.

It may be further stated that there is no legal basis whatsoever for the juris-
diction of the Court. Accordingly, with the highest respect for the President
of the Honourable Court, it is suhmitted that Pakistan's Application and
Request are without legal effect.

24 May 1973.

1 have the.h~ ~ ~ ~ ~ ~ ~ Your Excellencv herewith a certified conv of ..
lelier from ihe Ambdisîdor of Indiï Io ihc Uetherltrnd~. rwcited in ihe

Rcaisiry today. rclating Io thc case conccrninq the Trial ufP<iAi.%rgP orifi>o>ii,rs

20. THE REG~STRAR TO THE SECRETARY-GENE RFALHE UNITED NATIONS

25 May 1973.

1refer to my cable 25 of 11 May 1973 by which 1informed you of the filing
bv the Government of Pakistan of an Anolicatio..institutina nroceed-.gs -
against India in respect of a dispute concerning the right to exercisejurisdiction
over certain Pakistani nationals held in India (case concerning the Trial of
Pakisfanipris~~ers of Wur).and a reauest for the indication of interim measures
of protection in ihat CJiC; I non, havç the honour io inform you th31 I ilm for-

jrarding Io you under seprirürccover (byairmail parcçl port. markrd "Aireniion
Dirslor. General Lecal Divi\ion"i 150conics of the h~~licùr..n rcfçrred [o.
1 \\,ould he gr~tefz if, in accor~3ncc w;th ,\riiclc 40. pardgraph 3, of the
Stalutc oi the Couri, you would be good ensiugh ro inform ihe Slembers of the
United P\ati<insof ihc filingof [hi.;Application.

21. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REGISTRAR

25 May 1973.

1 have the honour to acknowledge receipt of the certified copy of the letter
dated 23 May 1973from the Ambassador of India to the Netherlands, relating CORRESPONDENCE 119

to Pakistan's Application instituting proceedings in the aforementioned case,
and to statethat the Government of India have incorrectly presumed that their
consent to the jurisdiction of the Court is necessary and should he given by
them in terms of Article IX of the Genocide Convention.
2. The Government of Pakistan notes that Article 40 of the Court's Statute
does not make it obligatory to indicate the grounds on which the Court's
jurisdiction is based. However, Article 35, paragraph 2, of the Rnles of Court
states that the party instituting proceedingshall also "as far as possible, specify
the provision on which the applicant founds the jurisdiction of the Court".
3. Keeping in view the Statute and Rules of Court the Government of
Pakistan referred merelv to the main orovision on which the iurisdiction of the

Court could be founded, that is, ~rtkle 1X of the ~enocidg~onvention. It is
clear that theCourt's jurisdiction can he founded under this article at the request
of an. .f the oarties ta a dimute. The consent of the Government of India is.
therefore, not necessary.
4. It is, however, regrettable in the extreme, that the Government of India
seeks to exclude the iurisdiction of the Court in resoect of a multilateral con-
\rnti,)n ol'au~linisjor hum~nirarian inipoRJn.'e, \hcn the Internarioii.tl Court
ha5 ben made thc miln guar.intor, and supervisors body, regardinp its inicr-
~retation. au~lication and fulfilment. The Government of India ~ur~orts to
iely on it'sdeclaration of 27 August 1959, which reads as follows:

"\\'iih referenceIO Ani.'le 1X of the Ci~n\eniiuii the Gorcrnnienr oi
India dccl<ircrhat, for the suhmi~~ionof ans disDute in term, ofthij 3rticlc
to the iurisdiction of the InternationalCO& of Justice. the consent of al1
the pa&ies to the dispute is required in each case."

The C;uvernment of Pakisran \rishIO place on record that ihe Indiiin dc:Ixrariiin,
reierred to ahoie. is inadniissiblr undcr rhc Gciio<ide Con\,rntion snJ i, of no
lccal elki \\,haisoc\er.ThcGo\crnment of I1akirt:inrcser\es ils riclit to Dresenr
dëtailed arguments in support of this proposition at the appropriate time, when
the preliminary objection raised by India against the jurisdiction of the Court
shall be heard in accordance with the Statute and Rules of Court. For this
purpose it is obligatory upon India, as a party to the Statute, to appoint an
Agent and make an appearance before the Court. It is a-duty imposed upon
India hy the Statute and Rules of Court to follow the procedure prescribed for
raisin-.nreliminar, o~~,~~ions.
5. Thai su-h d .'rewrvïtion" can be challenged as king \riilidulcgîl ctTe~r
is cleïr from the Iniemational Couri's iudemeni in the Adiisors Opinion con-
cerning Reservationsto the Genocide~inv&tion of (1951). T~U on page 22 of
its Opinion the Court states:

"The character of a multilateral convention, its purpose, provisions,
mode of . .naration and adoot.on. a.e factors which must be considered
in detcrmining, in the ahrencc of any eApressproti\ion on the suhject, the
posribiliry of niaking rrscriations, as nell 3s their vslidiry and rtTe;r."

Again on page 24 of its Opinion the Court states as follows:
"The object and purpose of the Convention thus limits both the freedom
of making reservations and that of objecting to them. ..It has nevertheless

- Convention may do so while making any reservation it chooses by virtue

of itssovereigntv. The Court cannot share this view. It is obvious that so
extreme an aipiication of the idea of.State sovereignty could lead to a
complete disregard of the object and purpose of the Convention."120 PAKISTANIPRISONER SF WAR

6. That such "reservations" can be questioned before the International
Court, is clear from the Court's own views expressedon page27 of the Opinion
which are as follows:

"11 may be that the divergence of views between parties as ta the ad-
missibility of a reservation will not in fact have anv conseauences.On the
other hand, it may bethat certain parties who consider that Ïheassent given
by other parties to a reservation is incompatible with the purpose of the

Convention, willdecide to adoot a oosition on the iurisdictionallan nen
respect of this divergence anto setile the dispute ihich thus ari&either
hy special agreement or by the procedure laid down in Article IX of the
Convention."

Accordingly, Pakistan invokes Article 1X of the Genocide Convention ta
challenge the admissibility of the lndian "reservationand asserts that it has
no legal eiïect whatsoever.
7. In view of India's regrettable opposition to the jurisdiction of the Court,
Pakistan also relies onl1other orovisions establishina the Court's iurisdiction.

In particular Pakistan relies on ihe lndian dec~aration~acceptingas>ompuls<iry
the jurisdiCtion of the Iniernational Couri under ,\riicle 36, paragr2.of ils
Staiute. The Governmeni of Pakistan does not regard the reservtiion in respect
of Comnionuealth members made by India 10 hc ïpplicahle to I'akijtan nou
ihat I'akistan h3i left the Common\realih.

8. The <;o\,ernmçnt of Pakistan also relies on Articl17 of ~heGeneral Act
for the Pacific Settlement of International Disputes of 26 September 1928
(notwithstanding any reservations made by India under that Convention) as
read with Article 36 (1) and Article37 of the Statute of the Court. Pakistan
would also rely on Article 41 of the General Act in accordance wilh which
disputes relating Io the interpretation or application of the General Act, in-

cluding those concernina the classification of disoutes and the scooeof reserva-
tions, ;hall be submitted to the Permanent court, and now by viriue of Article
37 of the Statute, to the International Court of Justice. Pakistan is a party to
the General Act under international law, by virtue of successionto the multi-
lateral conventions entered in10 by British India before Partition.
9. In accordance with Article 35, paragraph 2, of the Rules of Court, these

mounds will be more fully develooed bv the Government of Pakistan in ils
mernorial. The ~overnmek of ~akistan-request the Court to indicate to the
Government of India that the subject-matter is still sub-judice and that their
oreliminaw obiections asto theCourt's .urisdiction shall beheard in accordance
kith the ~iatuie and Rules of Court.

22. THE REClSTRAR TO THEMlNlSTER FOR EXTERNAL AFFAIRS OF INDIA

Irelegran!)
25 May 1973.

Reference my telegrani of 22 May concerning proposed date for public
sitting to hearobservations of Parties on request for indication interim measures
of protection in case concerning Triai of Pakisfani Prisoners of War have
honour inform Your Excellency date now coniümed namely Tuesday 29 May
at 10 am.' Copy of communication received from your Ambassador Hague

A similar communication wassenito the Agentfor the Governmentof Pakistan. CORRESPONDENCE 121

24 May was transmitted to Pakistani Agent from whom letter received today.
Copy of Pakistani Agent's letter airmailed to you today and further copy
passed to your Ambassador for information

23. THE REGISTRAR TO THE AGENT FOR THE GOVERNMENT OF PARISTAN

28 May 1973.

Article 65 of the 1972 Rules of Court provides, in paragraph 1, that a
verbatim record shall be made bv the Re~-strar of every hearing, in the officia1
languagc of ihc Court a.hi;h hxs hern u,eJ, and (püragrÿph 4) thit copies of
the trlinrzripi ihereoi'~1i1r.circuIîtcd io the p3riies. The rule iurrher provide$

that the oarties "mav. under the su~ervisionof theCourt. correct the transcriots
of the speeches and.statements made on their hehalf, but in no case may such
corrections affect the sense and bearing of the statement".
The transcript of the oral proceedings Io be held Io hear the observations
of the Parties on Pakistan's request for the indication of interim measures of
protection in the case concerning the Trial of Pakistani Prisoners of War
(Pakistat~v. Indiai will be made available on the same day.
In order to facilitate any supervision which the Courtmay feel it proper to
exercise, and in order not to delay the Court's consideration of the request for

the indication of interim measures of motection. any correction or revision
whiih ,\gent>, zouiiiel or ad\oi~tes1113nish io niakeio ihc trdn,~ript should
be hînded 10 the Rcg~rirar'sswrciîry aswrly ;tpossiblc on the dliy h~ll<ining
the sittin~. In anv event. corrections should be handed in not later than 6 p.m.
on the day following the hearing.

24. THE AMBASSADOR OF INDIA TO THE NETHERLANDS TO THE REGISTRAR

28 May 1973.

1have the honour to enclose with this letter a Statement of the Government
of India in support of its letter dated 23 May 1973addressed Io the Registrar
of the International Court of Justice. 1 shall be grateful if you will be so good
as to place the enclosed Statement before the President of the Court.

STATEMENT OF THE GOVERNMENT OF INDlA
IN SUPPORT OF ITS LETTER DATED 23 MAY 1973 ADDRESSED
TO THE REGISTRAR OF THE INTERNATIONAL COURT
OF JUSTICE

On 23 May 1973,the Ambassador of India at The Hague, upon instructions
received from the Government of India, addressed a communication to the
Registrar of the International Court of Justice stating that Pakistan's Applica-
tion and Request for interim measures, hoth filedon 11May 1973,werewithout122 PAKlSTAN PlRISONERS OF WAR

leaal effect, since there was no legal basis whatsoever for the Court king seized

ofthe inditer uithour iheconsen;of thc~o\~criirncnr of India. The Go\;rnmtnt
of India rcgrettcd that thcy coul<lnur gi\e cunscni in te:mc (iiiheir receriaiion
to Article IX of the Gcnocidc Convention to I'akistan iur rdising the :illcgcd
suhject-matter hcfi~rethe lntem~tional Couri olJurtice.
2. Inthi.\iritemeni, theûovernmenr ofIndia wishtoelaborateandcmpha~i~e
their views that there cannot be anv valid seisin of the Court of the case. that
the Court cannot proceed with it, and that the lack of Court's jurisdictikn to
deal with the merits of the case is manifestly absent at the threshold of the
unilateral proceedings sought to be instituted by Pakistan.

Pakistan's Application and Request

3. Pakistan has under Article 40,paragraph 1, of the Statute and Article 35,
.aram-.h 2. of.the Rules of Court. as amended on ~ ~ 10 Mav 1972. s.ueht-to
institute proccedings hy bringing a case by a ivritten application addresscd to
thc Rcgisrrar. "Thc subject of the dispute", according to Pakistan's Application,
"relate toshareeiof eenocidcaeainst 195oftheoter 92.000 I'akisiani nrironcrr-

of-!i;ir and <i\iEaii internees be& held in India. The central i\iue is iihether sr
no1 Paki5tan has an cxclu.ive claim to exercise juridiction in rcspecr of such
versons by virtue of Article VI of the convention on the ~revention and
~unishment of the Crime of Genocide adopted by the General Assemhly on
9 December 1948, to which both India and Pakistan are parties."
4. The oartv making the aool..ation is Pakistan: t.e oar. .-eainst whom the
claim is biought is lndia.
5. The precise nature of the claim is set out in the submissions which request
the Court to adjudge and declare as follows:

(1) That Pakistan has an exclusive right to exercise jurisdiction over the
one hundred and ninety-five Pakistani nationals or auy other number,
now in Indian custody. and accused of committing acts of genocide in
14ki\tani territory, b; virtue of the applicatio!~ O? the ~on\~eiition on
the I'rciention and I'uni\hment oftheCrimeufûenocidcof9 De~cmhcr
1948, and that no other Government or authoritv is comwtent to

exercise such jurisdiction.
(2) That the allegations against the aforesaid prisoners of war are related
to ans of genocide, and the concept of "crimes against humanity" or
"war crimes" is not aoolicahle.
(3) That there can be no gpound whatever in International Law, justifying
the transfer of custody of these one hundred and ninety-five or any
other number of orisoners of war to "Banel~ ~-~"~ ~ ~trial in the face
of Pakistan's exciusive right to exeicise jurisdiction ;ver its nationals
accused of committing oiïences iiiPakistan territory, and that India
woitld act illegally intransferring such persons to "~angladesh" for
trials.

(4) That a "Competent Tribunal" within the meaning of Article VI of the
Genocide Convention means a Tribunal of imoartial iudees. avolv.. . -
intcrnïiional law,and periiiiitin~ tlicaccuscd to'be ilefind;d by counscl
of rhcir chuicc. The Tribunal cannot barc iiirlf on ex-post f;icto I;i\r,
nor violate anv orovisions of the Declaration of ~uman Riehts. In
vicn, of ihesc 3nd other rçquiremenis of 3 .'Compcicnt Tr;bunal",
even if India coulil legally transfcr Pükiitani priraineri of \var 10
"Rangladesh" for trial, which ii nut admitied, it u,oulil bc di\,estçd of CORRESPONDENCE 123

that freedom since in the atmosphere of hatred that prevails in

"Bangladesh". such a "Comwtent Tribunal" cannot be created in
practk nor can it beexpectedto perform in accordance with accepted
international standards of justice.
6. In conformity with Article 35, paragraph 2, of the Rules of Court,

Pakistan in paragraph 1I of the Application hassought to invokcthejurisdiction
of the International Court of Justice under Article IX of the Genocide Conven-
tion, in accordance with whicli, itis stated in the Application "disputes between
the contracting parties relating to the interpretation, application or fulfilment
of the Convention, shall be suhmitted to the International Court of Justice at
the request of any of the parties to the dispute". And it is categorically stated in

paragraph 11 of the Application: "Thus the Court has jurisdiction under
Article 36 (1) of its Statute."
7. In the Reauest for interim measuresof orotection. made under Article 41
of the Statute, read with Article 66 of the ~uies of CO&, after stating the sut-
missions made in the Aw~lication. Pakistan has prayed for the Court to
indicate the following inter& measuresof protection:

"(1) That the process of repatriation of prisoners of war and civilian
internees in accordance with international law, which has already
beeun. should not be interruoted bv virtue of charaes of .cenocide
-
against a cerialn nunibcr ni' inrlitidkil.detainçd in [ridia. -
(2) ïhiit buch indtiiduals. xr are in the cu,toJy of Inilid and arc cliarged
with alle-ed acts of eenocide. should not be transferred to
'Rangladerh' for trial till siich tinie as Pakisian's clairICIçxclu\i\.c
jurirJiciion and the lnck oi jurisdiiririof nny sthcr Go\ernmcnt or
ïuthority tn this resprci ha\ hrrn adjudged hy thc Court."

8. Pakistan's Application and the accompanying Request have thus been
unilaterally made by them by invoking Article 1X of the Genocido Convention
1948.

Prelii>ritraryObservations

9. The Government of India would like to submit the following preliminary
observations regarding the Genocide Convention:

India ree-rds the Genocide Convention as amone the most-imoortan t
humanitarian Conventions adopted by the United Nations. The Convention
confirms that genocidewhether committed intime of peaceor in time of war is a
crime under international law, which the contracting Parties undertake to
prevent and to punish. It provides for protection against destruction, in whole

or in part, of national, ethnical, racial or religious groups, and for the punish-
ment of persons committing genocide, whether they are constitutionally
responsible rulers, public officiaior private individuals.
The object and purpose of the Convention is thus the preiventionand punish-
ment of the crime of genocide and the promotion of international CO-operation
"in liberating mankind from such an odious scourge".
lndia has contributed to the progressive development of international

humanitarian law in this field, sincethe initiative taken by them in this matter in
1946.It has throughout supported the universal application of this Conventio,
and has always denounced its breacheswherever they have taken place.
In the normal course, any controversy, diference or dispute relating to the
interpretation, application or fulfilment of the Genocide Convention, including 124' PAKISTANI PRISONERS OF WAR

those relating to the responsibility of a State for genocide, should he invoked by
a victim of genocide to enforce the object and purpose of the Convention.
The applicant should be a sufferer, the respondent must explain and defend
his action which constitutes a hreach of the object and purpose of the
Convention.
Lest the Convention be invoked for political DurDosesin utter disreaard of
thecibjc~iand purpox of the ~on\eniion, the ~o\crnmcni of India, boih !i,hile
the C:~>nventi,~wnas king adopisd. and ai the time of iis filiog the Instrunieni
of Ratification, opposed the compulsory reference of disputes as embodied in
Artic~~~.X o~ the~ ~ ~ention. Toihis. ,v& will revert a little later.
The present casevindicatis Ourstand and proves Ourfears. Iiidia is sought to
be made a defendant or a res~ondent in an application to enforce the Genocide
Convention. The acts on which the charees o- eenoc-de. amone other-. mav . .
be based, the exclusive right to try which is in question, were not committed
by any lndian responsihle ruler. public official or private individuals. Nor were
the a& committed on Indian territorv. Nor is Ïndia harhourine or s-ieldine
üny alleged ollendcrr ag'tinst ihcir kinç tricd for the otfL.ncr.,i~fgtno~ide. Nitr
is India it<clfholding any trialsItis\irll kninrn throughout the \vorld thai the
alleged acts of genocide and other crimes were committed by persans, to shield
and protect whom, among others, Pakistan has filed this Application and the
Request for interim measures. The territory where these acts were committed,
the State whose nationals were victims of genocide and who wish to fulfil their
commitment to bring the offenders to justice, are neither the applicant in the

present case nor even the defendant or respondent.
And Pakistan submits (please see their fourth submission) that the Court
should adjudge and declare that Bangladesh, in the atmosphere of hatred that
prevails there, will not beable to establish in practice a competent tribunal
within the meaning of Article VI of the Genocide Convention, nor will such
tribunal beexpected to perform in accordance with the accepted international
standards of justice.
Thus the Court has heen approached by Pakistan to adjudge and declare
upon the rights, obligations and cornpetences of a third State, viz. Bangladesh,
which is a party in interest, even in the absence of its consent to the Court's
jurisdiction.
Attention is invited in this connection to what the Court stated in respect of
Albania in the Monetary Cold case:

"Albania has not submittezi a request to the Court ta be permitted ta
intervene. In the present case, Albania's legal interests would not only he
affeited hy a decision, but would form the very subject-matter of the
decision. Insuch a case, the Statute cannot be regarded, by implication, as
authorizing proceedings to be continued in the absence of Albania."
(I.C.J. Reports 1954, p. 32.)

India'sReservation to Article IX and the Law

10. We may turn now to India's rejervation to Article IX of the Genocide
Convention.
Il. The Genocide Convention adoptei on 9 Decemher 1948 was suhject ta
ratification (Article XI). While expressing its consent ta be hound by this
Convention, the Government of India in its Instrument of Ratification filed
with the Secretary-General of the United Nations as depositary of the Conven-
tion on 27 August 1959entered the following deîlaration: CORRESPONDENCE 125

"\Vith refercnce ta Article IX of ihe Csti\eiiiisn the Go\ernnicnt oi
Indiii declarc thiit. for the ruhmi\rion oCdnydispute in tcrm, <if ihi,ariiclc
to the i~risdiciion oi the Internation.!l Couri oi Jus!ize. the zonseni oi 311

the pa;ties to the dispute is required in each case."
12. The Government of India confirmed and ratified the Convention subject
to the above declaration. A certified copy of the Instrument of Ratification
containing the above declaration is annexed hereto. This instrument was de-
posited with the Secretary-General on 27 August 1959.(Please see Multilateral
Treatiesinrespect ofwhiclrtheSecretary-Generalperforn,Pddeposiraryfi<

lisr of signatures,ratifications, accession,etc., as al 31st December 1971
(ST/LEG/SER.D/S, pp. 66, 681.1
13. This declaration on reservation thusexcluded the legal effect of Article
IX of the Genocide Convention in its application to India.
14. Pakistan has never raised any objection to this reservation for the past
14years since 1959.
15. Reference may now be made to the effect of making a reservation to a
Convention vis-à-vis a country which makes no objection.
16. In so far as the Genocide Convention is concerned, it will be recalled that
until Octoher 1950, 19 States had deposited instruments of ratification or

accession, one of the ratifications (Philippines) and one of the accessions
(Bulgaria) being subject to reservation. The Genocide Convention was ta enter
into force on the 90th dav following the.date of de~osit of the twentieth
instrument uiratiiiwiion or accession (Article XIIII. In dctermining uhen 20
inrtrunicnts iidcq~aic ro hring rhc <'<)n\eniioii in10 ior;e h~d bcen deposircd,
the Sr;rerary-General oi the United Sations, as uepi~iitsry. w~s iaced with
queuions concerning the accclirability oi inrrrumenrs containing reser\,ütions.
A1thi)ugh the quç5tion <\,a,re\ol\ed irhcii on 14 O~tober 1950, ii\.Sisle>
deposited instruments of accession without reservations, the subject of reserva-
tions ta multilateral conventions was included in the Agenda of the Fifth .
Session of the General Assembly at the initiative of the Secretary-General. The

General Assembly by resolution 478 (V) dated 16November 1950requested the
International Court of Justice Io give its advisory opinion on the relevant
questions.
The questions asked for the Court's advisory opinion and the answers given,
relevant to Pakistan's Application, are as follow:
Question 1. Can the reserving State beregarded as a party to the Conven-
tion while still maintaining its reservation if the reservation is objected

to by one or more of the parties to the Convention but not by others?
Question II. If the answer to Question 1is in the affirmative, what is the
effect of the reservation as hetween the reserving State and
(a) The parties which object to the reservation?
(6) Those which accept it?

17. The Court's opinion was as follows:
"In so far as concerns the Convention on the Prevention and Punish-
ment of the Crime of Genocide, in the event of a State ratifying or acceding
to the Convention subject to a reservation made either on ratification or

on accession, or on signature followed by ratification.
On Question 1:
by.seven votes to five,

that a State which has made and maintained a reservation which has126 PAKISTANI PRISONERS OF WAR

ben objected to by one or more of the panies to the Convention but not
by others, can b regarded as being a party Io the Convention if the
reservation is compatible with the object and purpose of the Convention;
otherwise, that State cannot be regarded as king a party to the Convention.
On Question II:

by seven votes to five,
(a) that if a party to the Convention objects to a reservation which it
considers to beincomoatible with theobiectand purpose of theconvention,
it can in fact considei that the reservi& State is nit a party to the con:
vention;
(b) that if, on the other hand, a party accepts the reservation as being
compatible with the object and purpose of the Convention, it can in fact
corisider that the reserving State is a party to the Convention." (I.C.J.
Reports 1951, p. 29.)
-
18. The Advisory Opinion supported the concept offlexibility in theoperation
of multilateral conventions in the following words:

"More mne-al resort ta resekations. very me-t allowance made for
tacil assent to re\çrvdtion\, th? existence of praciiccs which go so far as to
admit that the auihor of reservations which have been rejected by certaln
contractinr! oartiesisnevertheless to be regarded as a oartv to the conven-
tion inrel&on to thaie contracting partie; that have acceptcd the rcscri,a-
tions-üll these factors are manifestations of a new need for iiexibility in
the opcriition (if multilaicral coni.eniions."(lbid.,pp. 21. 22.)

19. The Court also referred to the fact that, although finally approved
unanimously, the Genocide Convention was the result of a series of majority
votes, which make it necessary for certain States to make reservations. It then
concluded that:

"ln this state of international oractice.it could certainlv not beinferred
from the absence of an article p;o\iding for reser~ations.in a multilateral
csn\.ention that the iaintrtciing Statcr are prohibited from msking certain
reservations." (Ibid.,p. 22.)

20. Thus, while becoming a party to the Genocide Convention a State can
enter a reservation. It shall continue to be a.oar.v to the Convention even if this
isobjected to bysome p~rties,but not by otherj, if the reservation issomp~iible
with the object and purpose of the Con\entiun. If ihe reser\ation is nst com-
oatible. that State cainit be reearded as bine a oartv to the Convention.
21. ~he question of compatrbility was leftfo 'beietermined by each State
while deciding whether to make a reservation, or to object to a reservation, or
to accept a rëservation. The Opinion stated as follows:

"The object and purpose of the Convention thus limit both the freedom
of making reservations and that of objecting to ihern. Ii follows that it is
the compatibilitv of a reservation with the object and ouroose of the Con-
\enrion Ïhat mu;! furnish the criierion for the~aitiiudeifa Statc in making
the reservation on acccrsion as uell as for the appraisal by a Srare in objeci-
ing to the reservation. Such is the rule of conduct which must guide evew
State in the appraisal which it musi make, individually and from its own
standpoint. of the admissibility of any reservation." (Ibid., p. 24.) CORRESPONDENCE 127

22. Thus, if areservation is incompatible, the reserving State is not a party
to the Convention. If another State objects to the reservation as incompatible,
the Convention does not enter into force as betaeen the reserving Stateand the
objecting State. On the other hand, the Convention continues Io be in forceas
. between the reserving State and the accepting State, subject Io the reservation.
If a country has not objected to a reservation within a reasonable or specified
time, it shallbe considered to have accepted it.
23. On 12January 1952,the General Assembly adopted resolution 598 (VI)
and, after noting the Advisory Opinion provided, interalia,as follows:

"2. Recommends to al1Statesthat they beguided in regard Io the Conven-
tion on the Prevention and Punishment of the Crime of Genocide by
the advisory opinion of the International Court of Justice of 28 May

1951;
3. Requests the Secretary-General:
(a) in relation to reservations to the Convention on the Preventioii
and Punishment of theCrime ofGenocide, to conform his practice
to the advisory opinion of the Court of 28 May 1951;
(b) in respect of future conventions concluded iinder the auspices of
the United Nations of which he is the depositary:

(i) to continue to act as depositary in connection with the deposit
of documents containing reservations or objections, without
passing upon the legaleffect of such documents; and
(il) to communicate the text of such documents relating to
reservations or objections to al1Statesconcerned, leaving ij Io
each State to draw legalconsequences from such communica-
tions."

24. The Advisorv Ooinion. havina beencommended hvthe General Assembly
to al1 States and 6 tie ~ecietary-General for conforking his practice as de-
positary ofthe GenocideConvention aswellasinrelation to futureConventions,
may betreated as international lawon the point of reservations to the Genocide
Convention, at the time India entered its reservation to Article IX in 1959.

ViennaConventionon theLaw of Trearies

25. The law embodied in the Advisorv Ooin.on .nd commended bv the
General A%emhly uas ci.enru;illy a.-ceptcd by the Internai~onal Laa. ~oni-
mission and on thcir re<i,mmendation hy the Vienna Conferen~e of the lau,
of Ireatics. Thur. undcr Arti2lc 19 of the Vienna Convention on the La\$ of
Treaties, 1969,it is provided as follows:

"A State may, when signing, ratifying, accepting, approving or acceding
to a treaty, formulate a reservation unless:
(a) the reservation is prohibited hy the treaty;
(b) the treaty provides that only specified reservations, which do not
include the reservation in question, may be made; or
(c) in cases not falling under subparagraphs (a) and (b), the reservation
is incompatible with the object and purpose of the treaty."

26. The mode of acceptance and objection Io reservations, io the extent it is
relevant to Pakistan's Aoolication, is indicated in Article ... oa-.maohs 4 and
5, which read as follows.:'128 PAKISTANI PRISONERS OF WAR

"4. In casesnot falling under the precedingparagraphsand unlessthe treaty
othenvise provides:

(a) acceptance by another contracting State of a reservation con-
stitutes the reservin- State a .art, to the treatv in relation to that
other State if or when the treaty is in force for those States;
fb) an obiection by another contracting State to a reservation does
not p;eclude the entry into force of the rreaty as between the
objecting and reserving States unless a contrary intention is

definitely expressedby the objecting State;
(c) an act expressing a State's consent Io be bound by the treaty and
containing a reservation is effective as soon as at least one other
contracting State has accepted the reservation.

5. For the ourooses of oararrraohs 2 and 4 and unless the treaty other-
u,ise pro;ides.3 reser.vatiin iisonsidered 10 have bcen accepied by a
State ifitshall have raised no objeciion 10 the rcser\ation by the end
of a ~eriod of twelve months after it was notified of the resewation or

by the date on which it expressed ils consent to be bound by the treaty,
whichever is later."

27. The procedure regarding reservations is set out in Article 23, which
reads as follows:

"1. A reservation, an expressacceptanceof a reservation and an objec-
tion to a reservation mus1be formulated in writing and communicated to
the contracting States and other States entitled to become parties to the
treaty.
2. If formulated when signing the treaty subject to ratification, accept-

anceor approval, a reservation must beformally confirmed by the reserving
State when expressingits consent to be bound by the treaty. In such a case
the reservation shall te considered as having ken made on the date of ils
confirmation.
3. An express acceptance of, or an objection IO, a resewation made

previously Io confirmation of the reservation does not itself require con-
firmation.
4. The withdrawal of a reservation or of an objection to a reservation
mus1be formulated in writing."

28. In Article 21 it is further provided that a reservation established in
accordance with Articles 19,20 and 23:

"(a) modifies for the reserving State in ils relations with that other party
the provisions of the Treaty to which the reservation relates to the
extent of the reservation; and
(b) modifies those provisions to the sameextent for that other party in

its relations with the resewing State."
Paragraph 3 is also significant and provides as follows:

"3. When a State objecting to a reservation has not opposed the entry
in10force of the treaty betweenitself and the reserving State, the provisions

to which the reservation relates do not apply as between the two States to
the extent of the reservation."

29. Thesearticles are declaratory of internationallaw relating to reservations
10 multilateral conventions. CORRESPONDENCE 129

Legal Effect and Consequenceo sfIndia's Reservationto Article IX
30. Bearing in mind the Advisory Opinion of the International Court of
Justice on the question of reservations to the Genocide Convention, its com-

mendation bv the General Assemblv to al1States. and the law embodied in the
Vicnna C(in\eniion on rhc Lar of Trwriei. ihe Icg31elle~r2nd consequçnces of
Indii's rewrvïtion io Ariiclc IX of ihe Geno~ide Conieniion inrelation io the
proceedings unilaterally sought to be instituted by Pakistan may now be summed
up as follows:

(1) While be~ominga pxty t<>the Geno~ide Csti\enii<in, Indii ctiuld enter a
rescr\ation, Jçspiie ihe silence of ihe Con\enrion on ilie que,iiùn uf rclcrvd-
lion,.'1hus iliiniiniie~r rharlndia'sre~er\ai~ontoAriiLle IX isl-.allvrtTe:ii\e. .
(See paras. 17 to 20 and 25 above.)
(2) While making the reservation to Article IX, India had satisfied itself
that the reservation was admissible and was compatible with the object and
purpose of the Convention. (See para. 21 above.)
(3) The reservation made hy India, which is more or less similar to reserva-
tions made hy some 15 other States (Albania, Algeria, Argentina, Bulgaria,
Byelorussian SSR, Czechoslovakia,.HunM gaonyo,lia, Morocco, Poland,
Rumania, Spain, Ukranian SSR, USSR and Venezuela) in relation to the same

Article IX. was de~osited with the deoositarv and was notified bv him Io al1
partie.rd the Conveniion. I'akistün h35 m3de no obje.won to India's rcser\ition
during the pabt 14 yesrs since 1959.(Pleabe >ce .il«lril<rrt~r/ rr~rlic,,.op. rit..
pp. 66-70,)
Thur, on the face of ir. I'akisiaii ha3accepted India's re,cr\aiioii \:ilid2nd
compatible. (Se para. 26 ïbove.)
(41 AI I'akistan is ün a~zcritine Siate. ihe üri~lic.ition af ,\rii.'le IX oi the
Genbcide Convention to lndia s~ipulates the iéquirement of the consent of
India beforeany proceedings can be instituted hy Pakistan in the International
Court of Justice.
(5) lil'akisiaii inirirutes pr<>cec~'iiigieCJurt untlüt~r~ll),tiithoiit obtliin-
ing Indiii's prior :unsent thereto, ïrithas airempicd iido in the present case,
the Court cannot be properly seized of the matter and cannot proceed with the

case, unless the Government of lndia consens thereto.
The Government of lndia has in their communication of 23 May 1973
rearetted that thev cannot aive their consent to these attem~ted proceedings.
(6) By suppressing the material fact about India's reservation in their uni-
lateral Application, Pakistan has attempted to mislead the Court to become
improperly seized of the matter.
(7) Assuming, without admitting, that India's reservation was not valid,
the result will be that India will no1 be deemed to he a party to the Con-
vention either in relation to al1 other States or in any case in relation to
Pakistan.
The Court cannot proceed with the case if the other State is not a Party to the
Convention.
(8) In any viewofthe matter, therefore, theunilateral Application by Pakistan,
in the face of the absence of consent by India, cannnt make the Court seized of

the allegeJ suhject-matter thereof.
Attention isinvited to thefollowingexcerptsfromsomeeminentcommentators
on this point:
Manley O. Hudson in his book The PermanentCorirtofInternational Justice,
1920-1942(1943 edition), on pagc 419, states as follows:130 PAKISTAN~ PRISONERS OF WAR

"Under Article 32 of the 1936 Rules an application must 'as Far as
possible, specify the provision onwhich the applicant founds the jurisdic-
lion of the Court'. If this requirement should no1 be met, il would seem
that the C~ ~ ~should at once raire the auestion of ifs iurisdiction: even if
ihc rzquirrmçnr be nist, ii uuglii to he poirible for thcC'uuri aciingpropr~u

tirurrIOe~dmincthe s~iliiizn~voiihc ba<iiof iuriidiciiun sr oui bcfi~rçthe
a.olication is transmitted to ihe inte~d~ ~resoondent. Howe~e-. Arti.le 33
ol tlie 1936Rules requires the Llcgi\trar ta 'transmit forihwith ICIthe püriy
againbr iihorn the ilaim i, brouelii a ?i~r>ioi tlie appliciiiion'. the iact rhar
the State against which the a6plicatio.n is brought might Le willing to
accept the Court's jurisdiction may be a justification of this provision. The
Reaistrar's transmission of a CODY of the auulication to the intended re-
sp<>:identdoei noi ne:es>ïrily cor&ii ihe~&rt, bu1in a doubiful ;a>ç rhc

transiiii\jion ought IO he del;,vi.il unril ihc ('iuiri lias liiiil i)pportuiiiiy io
instruct the Registrar. The intended respondent may proceed ta defend on
the merits, in which case it may be held Io have consented ta the juris-
diction; or it may filea preliminary objection and rhus require the Court to
consider the question ofjurisdiction; or it may do nothing, in which case it
risks a decision in favour of the aoo..cant under Article 53 of the Statute
provided that the Court can satisfy itself that it has jurisdiction under
Articles 36 and 37 of the Statute and that the claim is well founded in fact
and law. When the aoolication bv Liechtenstein in the Gerliczv case was
filed in 1939,it was f~r'thwithtransmitted ta Hungary though tke applica-

tion disclosed the possibility of a question as ta the Court's jurisdiction."
Ibrahim F. 1. Shihata in.his book The Power of the Interr~ational Court tu
Determine IciOwn Jurisdicrion, 1965,on page 56 states as follows:

''Second, if the application submitted to the Court does not rely on any
jurisdictional title, that is, if it is obvious that the Court lacks al1juris-
diction it cannot reach the conclusion that it has jurisdiction as long as
this is not clearly acquiesced ta hy the defendant.In such a case the Court

will no1 have even the incidental power to determine itsjurisdiction. It will
merely make an 'administrative' order to remove the case from the list.
Jurisdiction, even the most incidental jurisdiction, assumes, as will be
shown, a proper seisin of the Court. If the Court is not properly seized, it
has no jurisdictional powers."

On pages 86, 87, Shihata states as follows:
"As Io the argument that seizing the Court by means of an application is
'only possible where compulsory jurisdiction exists', the present Court

found that this was 'a mere assertion' no1justified by either Article 40 (1)
of the Statute or Article 32 (2) of the Rules.
This does not, however. mean that a unilateral application of this kind
is in itself sufficientfor seizing the Court. It al1depends on the later devel-
opments and in particular on the reaction ofthe other party. In this respect
four hypotheses could he conceived:

(i) The other party may refuse the offer Io suhmit Io the Court's
jurisdiction. By such a refusal it prevents the seisin of the Court, and the
latter will have to dismiss the application by an administrative order. This
procedure was applied in eight cases before the present Court.
(ii) The other party may explicitly accept the offer implied in the uni-
lateral application allowing, therefore, the proper seisin of the Court. and
perfecting its jurisdiction through the new agreement made posr hoc. This CORRESPONDENCE 131

was the Court's conclusion as to the attitude of Albania in the Corfu
Channel Case (1948).
(iii) The other D..tv mav d.rectlv submit its defence on the merits of the
claim iiithoiit nijing :il ihiilsiagc niiy objeiiit3n ;ipdinst jurisdiciion. This
ivillmore likely hc taken ai an impli~ii ncicpi:.nx of the Couri's jiirir-

diction and xill ihub lcld t,ithe Ume re\uli relichcd in hsrii~rhc\i\ (iii. Thc
Permanent Court's attitude in the Minority Schools case-(1928) s;pports
this conclusion.
(iv) The other party may give no answer. This is merely a theoretical
liypothesis with no precedent in the practice of the International Court.
No consent could of course be derived from the mere failure to comment
on receiving a copy of an application not based on any pre-established title
of iurisdiction. Because such an ao~lication is not in itself caoahle of
seiiing the Court and tkerefore of ailowing the application cf Article 53

of the Statute which assumes a valid seisin, tbis hypothesis should he dealt
with as bypothesis (i) and the case should iiormally be dismissed by an
order."
Shabtai Rosenne in his book TheLaw andPractice ofthe Interirational Corrrt,
Volume II (1965 edition), on page 540 states as follows:

"The procedurïs of settlement and discontinuance envisaged in Articles
68 and 69 of the Rules are only available where the seisin is prima facie
effective. at least to the extent of reauirine the case to ~roceed to the staee
of prelihinary objection. In the insiancecof unilaterdi arraignment under
the doctrine offorum prorowrunr, this condition does not exist, and neither

of the Articles is avaiiable (in the absence of some positive act on the part
of the applicant) to initiate the removal of the case from the list if the
potential respondent does not accept the invitation contained in the applica-
tion. to confer iurisdiction on the Court. In such circumstances the Court.
in gkneral exeriise of its powers under Articles 36 and 48 of the statute;
has ordered the cases to he removed from the list. Here it is the action of
the Court, rather than the initiative of either of the parties, that provokes
the removal from the list."

(9) Finally, the question of interim measures of protection does not arise in
the face of the patent and manifest lack of jurisdiction, and more so where the
Court is not properly seized of the matter.
In the Fisheries Jurirrlictioii case, the Court observed as follows:

"16. \Vhereas oii ;Irequcst for pro\isioiidl nicasures the Court need non,
hrforc indiidring them. tinally sdtiify it,elf ihiit iihlis juri\di;iii)n on ihr
nieriis oi the iare. set iioiiahi noi to ICI under ,\riicle 41 of the Siaiute il'
the absence of ju&dictionon the merits is manifest. ..' (I.C.J. Reports
1972, p. 33.)

31. In view of the above, when the absolute absence of jurisdiction is so
patent and manifest at the threshold of the institution of proceedings, the
question of summoning the parties for a hearing to determine its jurisdiction
does no1 arise. The only proper action for the Court to take, after by itself
examinina t.e A~. .cation and the Reauest in the liaht of-lndia's observations.
ii io remote the Applicsli<in from the lis1hy .in ~Jmini\tratiie order.
32. This \ie\i oithc Go\ernment oi Indi3 i\ consiiient u:ili the dccp rerpcLt
il hd\ for the Internationsl <'ouri of Ju.;tice. \\hich is hercby reiteraierl.

33. Finally, ieference may be made to the communicaiion dated 25 May
1973 addressed by the Amhassador of Pakistan at The Hague to the Registrar132 PAKISTANI PRISONERS Of WAR

in response to the Government of India's letter of 23 May 1973.A response
thereto can k made only after the Government of lndia is enabled to examine
the communication within a reasonable lime.

Enclosure 1

CERTlFlED COPY OF THE INSTRUMENT OF RATIFICATION
BY THE GOVERNMENT OF INDlA OF THE
GENOCIDE CONVENTION

To al! 10whomrhesepresents shall corne,greeting:
Wllereas,a Convention on the Prevention and Punishment of the Crime of
Genocide was signed at Lake Success on the twenty-ninth day of November in
the year one thousand nine hundred and forty-nine by the Plenipotentiary and
Representative of the Government of India, duly authorized for that purpose,
which Convention is reproduced, word for word, in the Annexure to this docu-
ment;
And whereas, it is fit and expedient to confirm and ratify the aforesaid
Convention subiect to the following declaration:

"With reference to Article IX of the Convention, the Government of lndia
declare that, for the submission of any dispute in terms of this Article to the
jurisdiction of the International Court of Justice, the consent of al1the parties
to the dispute is required in each case."

Now, rlrerefore,be ir kiiowii thar the Government of India, having seen and
considered the said Convention, do hereby confirm and ratify the same subject
to the declaration referred to above.
I,irejri»ro»v.herru/.1,Rajcndrü Prasüd, PrcsiJent uf India, haie signed ihcsc
Prcsenis and afi~e~lhereuntu my Scal ai Sew Delhi thir fifth dïy of Sratanlt of
the Saka year one thousand eight hundred and eighty-one corresponding to the
twenty-seventh day of July ofthe year one thousand nine hundred and fifty-nine
A.D.,in the tenth year of the Republic of India.

Certified as true and complete copy of

the Instrument of Ratification.

Annexure

CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE

Tlie Coiitracrii~gParries,
Having considered the declaration made by the General Assembly of the
United Nations in its resolution 96 (1) dated II Deccmkr 1946that genocide
is a crime under international law, contrary to the spirit and aims of the
United Nations and condemned by the civilized world; CORRESPONDENCE 133

Recogrriringthat at al1 periods of history genocide has inflicted great losses
on humanity; and
Beirlg convincedthat, in order to liberate mankind from such an odious

scourge, international co-operation is required,
Hereby agrre ashereittafferprovided:

Article1

The Contracting Parties confirm that genocide, whether committed in lime
ofpeace or in time of wdr, is a crime under international law which they under-
take to prevent and to punish.

Article II

In the present Convention, genocide means any of the following acts com-
mitted with intent to destroy. in whole or in part, a national, ethnical, racial or
religious group, assuch:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of lire calculated to
bring about its physical destruction in whole or in part;
(d) lmposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Article 111

The following acts shall be punishable:

(a) Genocide;
(b) Conspiracy tu commit genocide;
(E) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.

Article 1V

Personscommitting genocide or any of the other acts enumerated in Article

III shallbe punished, whether they are constitutionally responsihle rulers,
- public officiaior private individuals.

The Contractinp.-Parties undertake to enact. in accordance with their
rçipectii,~ Cunrtitution\the neicssary legislaiion to giteefiect to the pro\isions
of the present Con\ention and. in particular. to pro\.ide efectiie pendlties for
persans guilty of gcnocirle or uf iiny of the other acis enumeriited in Article III.

Article VI

Personscharged with genocide or any of the other actsenumerated in Article
111shall be tried by a competent tribunal of the State in the territory of which134 PAKISTANI PRISONERS OF WAR

the act was committed, or by such international penal tribunal as may bave
jurisdiction with respect to those Contracting Parties which shall have accepted
its jurisdiction.

Article VI1

Genocide and the otheracts enumerated in Article III shall not be considered
as political crimes for the purpose of extradition.
The Contracting Parties ~led-e themselves in such cases tu gran1 extradition
in accordance with their laws and treaties in force.

Article VI11

Any Contracting Party may cal1upon the competent organs of the United
Nations to take such action under the Charter of the United Nations as tbey

consider appropriate for the prevention and suppression of acts of genocide or
any of the other acts enumerated in Article III.

Article IX

Disputes between the Contracting Parties relating to the interpretation,
annlication or fulfilment of the oresent Convention. includinr! those relatine tu
tiéresponsibility of a State for genocide or forany of the 0th; actsenumerated
in Article III, shall be submitted Io the International Court of Justice at the
request of any of the parties to the dispute.

Article X

The present Convention, of which the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall bear the date of 9 December 1948.

Article XI

The nresent Convention shall be ooen until 31 December 1949for signature
on behalf of any Member of the ~niied Nations and of any non-memb; State
to which an invitation to sien has been addressed by the General Assembly.
The nresent Convention shall be ratified. and the instruments of ratification
shallbédeposited with the ~ecretary-~eneial of the United Nations.
After 1January 1950 the DresentConvention may be acceded tu on behalf of

anv Member of the ~nited~~ations and of anv non-member State which has
receired an invitation as aforesaid.
Instruments of accession shall be deposited with the Secretary-General of the
United Nations.

Article XII

Any Contracting Party may at any time, by notification addressed tu the
Secretary-General of the United Nations, extend the application of the present

Convention to al1 or any of the territories for the conduct of whose foreign
relations that Contracting Party is responsible. CORRESPONDENCE

Arricle XIII

On the day when the first twenty instruments of ratification or accession have
heen deoosited. the Secretarv-General shalldraw uo a orocès-verbaland transmit
a copy ihereoito each ~ember of the United ~atiois and to each of the non-
member States contemplated in Article XI.
The oresent Convention shall come into force on the ninetieth day following
the daic of deposit of the tucntieth in\trument oir3iilicaiioni or xc&>ion.
An) raiiticîiion or accessioii elïc:icd subsequcnr to the latter date shall
becomc ellccti\c on the ninctieih d3~ioIlo\vinl!the deno$ii si the insirunient of
-
ratification or accession.

Arricle XI V
The present Convention shall remain in effect for a period of ten years as

from the date of its coming into force.
It shall thereafter remain in force for successiveperiods of fiveyears for such
Contracting Parties as have not denounced it at least six months before the
expiration of the current period.
Denunciation shall be effected hy a written notification addressed to the
Secretary-General of the United Nations.

ArricleXV

If, as a result of denunciations, the number of Parties to the present Conven-
tion should become less than sixteen, the Convention shall cease to be in force
as from the date on which the last ofthese denunciations shall becomeeffective.

Article XVI

A request for the revision of the present Convention may be made al any
lime by any Contracting Party by means of a notification in writing addressed
to the Secretary-General.
The General Assembly shall decide upon the steps, if any, to be taken in

respect of such request.

ArricleXYII
The Secretary-General of the United Nations shall notify al1Members of the

United Nations and the non-member States contemplated in Article XI of the
following:
(a) Signatures, ratifications and accessions received in accordance with
Article XI;
(b) Notifications received in accordance with Article XII;

(c) The date upon which the present Convention comes into force in
accordance with Article XIII;
. . Denunciations received in accordance with Article XIV:
(el The abrogation of the Con\,cntion in a~.curdancc wiih Ariicle XV;
1 Notitications recei\ed in dccordance uith Ariicle XVI.

Article XVIII

The original of the present Convention shall be deposited in the archives
of the United Nations.136 PAKISTANI PRISONERS OFWAR

A certified copy of the Convention shall be transmitted to each Member of
the United Nations and to each of the non-member States contemplated in

Article XI.

ArticleXiX

The present Convention shall be registered by the Secretary-General of the
United Nations on the date of its coming into force.

Enclosure2

PHOTOSTAT COPY OF LETTER DATED 2 - SEPT FMRFR .9--9
FR051 THE UN LEGAI. COLSSEL 'f0 THE I'ERhlANEST
REPKESE\'l'A'I'IVE OF IN131A CONFIRMISG THE DEI'OSIT OS
27 AUGUST 1959 OF THE INSTRUMENT OF RATIFICATION
BY THE GOVERNMENT OF INDIA OF THE
GENOCIDE CONVENTION

1have the honour to confirmthe deposit on 27August 1959ofthe instrument
of ratification by the Government ofndia of the Convention on the Prevention
and Punishment of the Crime of Genocide, adopted by the General Assembly
of the United Nations on 9 December 1948.

(Signed) Constantin A. S~nv~opornos.

Enclosure3

PHOTOSTAT COPY OF LETTER DATED 14 SEPTEMBER 1959
FROM THE UN LEGAL COUNSEL TO FOREIGN MlNlSTERS OF
THE STATES CONCERNED JNFORMING THEM ABOUT

INDIA'S RATIFICATION WITH A RESERVATION TO
ARTICLE IX

1 am Jirecied by ihe Secretury-Generiil to inform you that, on 27 August
1959.the insirumeni of ratili;ation by the Cio\ernment ui lndia of the Conten-
tion on the Prevention andPunishment of the Crime of Genocide..a~~--r----,
the General Assembly of the United Nationson9 December 1948,was deposited
with the Secretary-General in accordance with Article XI of the Convention.
This instrument contains the following stipulation:

'Wirh refercnce IO Article IX of the Con\eniisn, the Go\ernment of
India declarthdt.fur the \uhmi\\ion of dny dibpuinterms of this Article
Io the jurisdiction of the Iniern~tionai Court of Ju~tice, the con$ent of al1
the parties to the dispute is required in each case."

This notification is made in accordance with Article XVll (a) of the said
Convention.
By resolution 598(VI) on Reservations to Multilateral Conventions, adopted CORRESPONDENCE 137

on 12January 1952,the General Assembly recommended to al1States that they
be guided in regardta the Convention on the Prevention and Punishment of the
Crime of Genocide by the idvisory opinion of the International Court of
Justice of28 May 1951, and requested the Secretary-General, in relation to
reservations to the Convention on the Prevention and Punishment of the Crime

of Genocide, ta conform his practice to this advisory opinion.

(Signeru Constantin A. STAVR~P~UL~~

25. THE REGISTRAR TO THE AGENT FOR THE GOVERNMENT OF PAKISTAN

29 May 1973.

1have the honour to send Your Excellency herewith a copy of a letter from
the Ambassador of India, and a statement enclosed with that letter, received
in the Registry yesterday evening.

26. THE REGlSTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INOlA
(relegram)

29 May 1973.

Have honour inform Your Excellencv that as a result of communications

receivedfrom Governments of Pakistan and lndiaCourt has decided to postpone
opening of public hearings in respect of Pakistan requesr for interim measures
of orotection in case concernine Trial of PakisraniPrisoners of War. Further
announcement conierning hearing~ uill bcniüde joon. I.citer rc;ri\çJ 2Mx).
from ?Our Hcigue ,\nibùssddor enclosing "Stlitement i~fthr Go\,ernnient of
India in suppoFt of its letter dated 23 ~ay".

29 May 1973.
Airmail

1 refer Io my cable of 13 May, by which 1 informed Your Excellency that
Pakistan had notified me of its choice of Sir Muhammad Zafrulla Khan ta si1as
judge ad hoc in the case concerning the Trial of Pakisrar~iPrisonersof War
nursuant Io Article 31 of the Statute.1now have the honour to inform Your
Excellency that thetime-limit mentioned in my cable for the views ofIndia in
this connection havinr exuired without any observations being received from
Your Excellency's ~okemment, the papers in the case have been sent Io Sir
Muhammad Zafrulla Khan.

A similar communicationwassentto the Agentfor the Governmentof Pakistan.138 PAKlSTANl PRISONERS OF WAR

28. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REGISTRAR

30 May 1973.

Kindly refer tu your letter No. 54423,dated 29 May 1973,forwarding a copy
of a letter from the Ambassador of lndia along with its enclosures, dated 28
May 1973.
2. 1would be grateful if you would kindly let me know what is the character
of this Document in the o~inion of th'ePresident of the Court and wbether the
bre5ident or the Court des'ircthat Pükiiian sliould suhmii iir commentr un ihii

document. liihat 5houlJ hç ihe Jesiri- of the I'residenr sr the Court. \ie \i'ould
be ready to subrnit our comments in the course of the hearing on interim
measures.
3. 1 would also be grateful if you would kindly draw the attention of the
President and the Court tu paragraph 33of the statement of the Government of
lndia in which it is stated that:

"Finally, reference may be made tu the communication dated 25 May
1973 addressed by the Ambassador of Pakistan at The Hague to the
Registrar in response to the Government of India's letter of 23 May 1973.
A response thereto can be made only after the Government is enabled to

examine the communication within a reasonable tirne."
4. We would be grateful if you would kindly inform us of the procedure the
President and the Court intend to follow in dealing with Pakistan's Request for
indication of interim measures of protection which is a matter of urgency and

has priority under Article 66, paragraph 2, of the Rules of Court.

29. THE REGISTRAR 70 THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA

30 May 1973.

Airmail

1 have the honour tu send Your Excellency herewith a copy of a letter
received today from the Agent of Pakistan in the case concerning the Trial of
Pakisrani Priso~~ersof War.

30. THE REGiSTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA'
(relegranij

1 June 1973.

Furiher to ni) cable of 29 May haie honour infdrm Your Ex~ellencythat

publi: heiiringsin ie,peit of I'akiswn requesi fsr interini nieaiurei 01proteclion
in ;are conreriiinrTriolnt P~~><lhisru~riPr;,o ~i<Il'rrsil1noa. open on llonday
4 June 1973at 3p.m.

A similarcommunicationwassent Io the Agentfor the Governmentof Pakistan. CORRESPONDENCE 139

31. THE AMBASSADO RF lNDlA TOTHENETHERLAND SO THE REGISTRAR

4 June 1973.

- h~ ~~ ~e~ ~ ~u~ ~o ~n~lose with this letter a Statement of the Government
of lndia in continuaiion ofiheir Siatement of28 May 1973and in anwer to the
cioints made in the Ictter of 25 May 1973 from the Ambassador of Pakistan

hhich vou werekind enouehtosendme bvvour letter NO. 54370of the samedate.
1 shali be grateful if you-will be so goni as to place the enclosed Statement
before the President of the Court, inviting his kind attention to paragraphs 19

and 20 thereof.

STATEMENT OF THE GOVERNMENT OF INDIA IN

CONTINUATION OF ITS STATEMENT OF 28 MAY 1973 AND IN
ANSWER TO PAKISTAN'S LETTER OF 25 MAY 1973

The Government of India have received Pakistan's letter of 25 May 1973.
They had mentioned in paragraph 33 of their statement of 28 May 1973that
they would examine the communication within a reasonabletimc if so enabled,

and would respond to the spesific points made therein. The Government of
lndia have the following observations ta make:

A. Re Infi's ReservorionIo Article IX of lhe CenorideCon~enrion

1. In the statement of 28 May 1973,the Government of India have set out

at some leneth leeal imolications of their reservation to Article IX of the
Genocide cgnvenfion, viz. that without the consent of the Government of
India, the Court cannot beseizedof the subject-matter of Pakistan's Application

and. therefore, cannot proceed with the case.Attention is invited to paragraph
30 of that statement.
2. In view of the position explaiced in that statement. no controversy about

the validity or admissibility of India's reservation ta Article IX of the Genocide
Convention 1948can Deraised by Pakistan, particularly as Pakistan bas not
raised any objection whatsoever ta India's reservation for the pas1 14 years

since 27 August 1959.In any case,that reservation itself requires the consent of
ail the partiës io thedispute~ineaclicdse for the iuhmirrion ofany dispute to the
Iniernationiil Cuuit oiJu~ticr. 1he Go\ernmeni of India regret that thcy cannot

nowenter into anycontroversy rwarding the validity oftheir reservationand the
G~ ~r~ment~of ~ndia do not &iv--their consent to the Court beine s-izedof the
subject-matter of Pakistan's Application and to proceed with the case. It need

hardly be emphasized that even if the Indian reservation be held incompatible
or void, the consequences will be, as indicated in.our statement of 28 May
1973, that lndia will not be regarded as a party ta the Convention either vis-

à-vis al1the other parties thereto or in any casevis-à-vis Pakistan. If lndia is not
a party ta the Convention, the Court can have no jurisdiction ta entertain
Pakistan's Application in any case. The question of inadmissibility of India's

reservation therefore does not arise.140 PAKISTANI PRISONERS OF WAR

B. Re Pakisra~r'sAtreinpf 10 Urge New Tilles of Jurirdiction by
Pokistan's Lerler o/25 May 1973

3. ln paragraph II of its Application Pakistan specifically invokes the
jurisdiction of the Court under Article IX of the Genocide Convention. But,
nevertheless, in its communication of 25 May 1973 to the Registrar of the
Court, Pakistan seeks to found the jurisdiction of the Court, so far as its
Application is concerned, by seeking to rely on the General Act of 1928and
Article 36, paragraph 2,of the Statute. This Pakistan is, onno account, entitled

to do. The reasonsare, inter alioas follows:
(a) First, Article35, paragraph 2, of the Rules provides, Ntteralia,that an
application must specify the provision on which the applicant founds the
jurisdiction of the Court and in view of this provision Pakistan assertsin para-

graph 11of its Application thus:
"Since the above facts disclose a auestion of inter~retation and applica-

tion of the GenocideConvention, th'jurisdictionof the1nternationaICourt
of Justice is invoked under Article IX of the Genocide Convention, in
accordance with which dis~utes betweencontracting oanies relatinc to the
interprci3iion. applicationor iullilmeni tif the ~o&Cntion, hall be sub-
mitied to the International Coun oi Justice at the requrst of any of the
parties tu thediipuic Thus. the Court hïi iurisdictio~i under Article 36(1)
of its Statute."

Pakistancannot resile from its categoricalassertion somade in its Application
in the manner it seeksto do by its said communication of 25 May 1973to the
Registrar of the Court.

(0, Se;tindly, the scope <if a requeit uridçr Arti~lç 66, paragrdph 1, oi the
Kules cdnnot excd the scopeeirher of ipecml agreementor of an applicitiun
hy mednsofwhich a ~.ïseisbrought beforetheCourt under Article 35.par~grïph
1.or paragr~ph 2.3s thecascmxy bç,ofrhc Rules.This isclcdr from thecxprcsi

13nguageoiArtiilc 66, paragraph 1.oithe Rule, uhich proLides. i!iteraliothat:
"A request for the indication of interim measuresmay be filed at any

time during the proceedings in the case in contrecrionwirhwhichir is tnade.
Tlrerequesrslzallspeci/y rlrerose ro whicl~ir relates."(Italics supplied for
emphasis.)

There is thus an inextricable link between an application and a request for
interim measureswhich can only follow the application. The requestcannot go
beyond the scope of the application. The request must be founded on the
application and the application alone and the State making an application is
no1entitled Io urge any point, particularly regardingjurisdiction, beyond what
is contained in its application.

(c) Thirdly, the inextricable link between an application and a request is
apparent from the Orders of the Permanent Court of International Justice and
ofthe present Court on requests for interim measures.In such Orders specific
reference is invariably made Io the Application following which the request is
made. The latest Order of the Court on a request for interim measures in

the FirheriesJurisdicrioicasecontained, inter aliathe following:
"4. Whereas the Application founds the jurisdiction of the Court on

Article 36. paragraph 1, of the Statute and on the Exchange of Notes
betu7eenthe Governments of lceland and of the Federal Republic of
Germany dated 19July 1961." CORRESPONDENCE 141

"12. Whereas in its message of 28 July 1972the Government of lceland

stated that the Application of 5 June 1972 was relevant only to the legal
position of the two States and not to the economic position of certain
~rivate entermises or other interests in one of those States. an observation
which icems io queriion rlic <~»,rccriu,i wlii</inii,rt ~~xist>i<lr<Arrirl~,61,
p<ir<qraph1,n/rhr, Hi<lesb<.rit i~vr crc~.,u<~srjbi,rrerininir.<iiiri.si>fpri,rivrio»
<riidllie oririt~ulAoplic<~lio~hrl~?lwirlrri!,. ('ourl."cir~1i:s su..lied for em-
phasis.) (1.2.3. ~eiorts 1972, pp. 32, 33.)

(d) Lastly, the expression "must also, as far as possible," in Article 35,
paragraph 2, of the Rules governs each of the expressions which follow, namely,
"specify the provision on which the Applicant founds the jurisdiction of the
Court", "state the precise nature of the claim", "and give a succinct statement

of the facts and grounds on which the claim is based". The first expression as
well as the nature of the contents of an Application covered by the said three
expressions which follow the said first expression indicate clearly themandatory
character of Article 35. oaraera~h -. of the.Rules incorooratin~ the said
ehprr.s\ii,ns. Aiid -the pro;i,~un on a hicli the npplizant io~njs thç~risdiction
of ihç Court" niust. in sll cs~, hc the ter!. foutidaiion oian applicütioii utidcr

Article 35, pliragraph 2, ol'the Kules, 1-efcirethc Cuurr cdn hiic seisin of th<
same. No ~cldiii<,nto or de\ 13tionfrsm [hi\ i.iun<laiion cdn I-emsdt 3, I'dkisisn
seel;, tu do hy if, vaid coniiiiuiii:ation of 25 hlsy 1973 IO ihr. Rr.gi>irir ail'thc
Court.

4. In view of what has been stated above, Pakistan cannot now enlarge the
provisions on which it founds the jurisdiction of the Court by adding a new
"disDute" under Article IX of the Genocide Convent~ ~ or~bv ~ ~ ~e new titles
ofjirisdiction, such asthe Gereral Act of 1928and Article i6, parairaph 2, of
the Statute.

It will te recal!ed that, when a similar attempt u,as made in the N~rwegian
Loans case even at a later stage of tt.e case, tt.e Court stated as follows:
"These engagements uere refcrred to in the Observations and Sub-

missions of the French Go\errLment on the Preliminary Objections and
subsequently and more explicitly in the oral presentations of the French
Agent. Neiiher of these references, however, can te regarded as sufficient
to justify the vicw that ti-e Application of the French Government was,
so faras the question of jurisdiction is concerfied, hased upon the Conven-
tion or the General Act. If the French Govercxent had intended to proceed

upon that tasis it would expressyy hale so stated.
As alreadv shoun. tt.e A~ol..ation ~f t~e Fr~ ~ ~ ~\,ernment is based
clwrl!. ;,rd rre~,:,r.ly on 1t.c Sortiegidii aiid Frcn~h I?r.clxriiior\ unilçr
Ar1i:'c 36. rir;~gr;xrh 2, <>fi1.c Siaicte. In tt.esç ciriun~starccs ilic Couri
\\<>~!dr~it 1-r.ju,iil:ciI in 'cckirga bisis for ils jurtidictiun difirent fr<!m
ihst iihich [te trerch Goicrnnent itsr.lf\et out in ils Applicdtii~n srd hy

relerericio rrIii.hthera~e ha bcen i:re\cnisJ h\.I-<iihI'srtirbrtitheCsurt."
(I.C.J. Reports 1957,p. 25.)

C. Re India's Declaration undrr Article 36, Paragraph 2, of the Srarule

5. Without prejudice to what is stated in paragraphs 3 and 4 hereof, the
Government of India further States as follows:

6. The Declaration of India was deposited with the Secretary-General ofthe
United ?qations on 14 Septemter 1959, the text of which reads as follows:142 PAKISTANI PRISONERS OF WAR

"1 have the honour, by direction of the President of India. to declare on
behalf of the Government of the Re~ublic of India that thev accent. in
conformity with paragraph 2 of ~rticlé36 of the Statute of the~ourt;until
such time as notice may k given to terminate such acceptance, as com-
pulsory ipsofacto and without special agreement. and on the basis and
condition of reciprocity, the jurisdiction of the International Court of

Justice over al1 disputes arising after 26 January 1950 with regard Io
situations or facts subsequent to that date, other than:
(1) disputes,ii/rrgord ro whirlr the Parties ro rlredisprctehaveagreed or
slrallagreero have reconrse to sonreorhermetlrod or methods of settle-
ment;
(2) disputes with the government of any State which, otr the date of tliis
declararion,isa Member of the Commonwealth of Nations;

(3) disputes in regard ta matters which are essentially within the jurisdic-
tion of the Republic of India;
(4) disputes concerning any question relating ta or arising out of bellig-
erent or military occupation or the discharge of any functions pursuant
Io any recommendation or decision of an organ of the United Nations,
in accordance with which the Government of India have accepted
obligations;
(5) disputes in respect of which any other party Io a dispute has accepted
the compulsory jurisdiction of the International Court of Justice
exclusivelyfor or in relation to the purposes of such dispute; or where

the acceptance of the Court's compulsory jurisdiction on khalf of a
party tathedispute was deposited or ratified less than 12months prior
ta the filing of the application hringing the dispute before the Court;
(6)disprrreswirhthe Goverr?meno tf any State wirl?whiclr,onthedate of an
applicafionfo bringa dispufebeforethe Coirrr,rlie Go~aeriinieio?ff lndia
Irasnodiploi,iaficrelafioiis.
New York, 14September 1959.

(Signed) C. S. JHA,
Permanent Representative of India
to the United Nations."

(I.C.J. Yearbook 1971-1972,pp. 65-66.)(Italics supplied for emphasis.)
7. Attention is invited ~articularlv to three of the said reservations which
manifestly oust the jurisdiition of théCourt sa far as Pakistan's Application is

concerned, namely, reservations (l), (2) and (6) set out above.
8. Re reservation (1) set out above. the reservation refers the matter back
ta the Genocide ~onvéntion and the hethod of settlement provided therein,
namely Article IX, to which India has entered its reservation. The consequences
of that reservation have alreadv been set out in the Government of India's
statement of 28 May 1973.
9. Re reservation (2) set out above, Pakistan was a member of the Common-
wealth of Nations on the date of India's Declaration.
10. Re reservation (6) set out above, the Government of India had no
diplomatic relations with the Government of Pakistan on the date of Pakistan's
Application. The diplomatic relations were broken off by Pakistan on 6 De-

cember 1971.They have not yet been re-established.
11. Attention is also invited to Pakistan's Declaration of 12/13 September
1960(for text, pleasesee1.C.J. Yearbook 1971-1972at p. 77),whichprovides that
the Declaration shall not apply ta: CORRESPONDENCE 143

".. . disputes arising under a multilateral treaty unless
(i)al1parties to the treaty affected by the decision are also parties to the
case before the Court, or
(ii) the Government of Pakistan specially agree to jurisdiction."

Sincc Pakislan by ils leiler 01 25 May 1'973 reçks 10 iiiboke ~\riicl<:IX uf ilie
Ceno~ide Cunvenliun to <hallenec ihr <iJmissibiliiy of ihr:Indi~n reertation
under that Convention and to assert that it is of no legal effect whatsoever, a
decision on which would affect several parties ta the treaty (15 of them, whose
names were given in paragraph 30 (3) of bovernment of India's Statement of
28 May 1973),they mustall be parties to the case before the Court, or otberwise
theGovernment of Pakistan must specially agree ta the Court's jurisdiction. The
Court must take notice of this reservation by Pakistan to estahlish reciprocity
which is the condition of Article 36, paragraph 3, of the Statute of the Court as
well as of India's Declaration referred ta above, and hold it against Pakistan
and in favour of India. In the NorwegiariLoans case, the Court applied'the
restrictive reservation of France in favour of Norway and held as follows:

"The Court considers that the Norwegian Government is entitled, by
virtue of the condition of reciorocitv. to invoke the reservation contained in
the French Declaration of ~arch ist, 1949; that this reservation excludes
from the jurisdiction of the Court the dispute which has been referred to il
bvthe Aoolication of the French Government that conseauentlv the Court
is witho; jurisdiction to entertain the ~~~lication."~ (1.c:~. Reports
1957, p. 27.)

D. Re: The1928 GeneralAc1for rhePacifie Sertlementof
International Disputes

12. By the said letter of 25 May 1973the Government of Pakistan seeks to

rely on Articles 17 and 41 of the General Act for the Pacific Settlement of
International Disputes of 26 September 1928, as read with Article 36 (1) and
Article 37of the Statute of the Court.They have alleged that Pakistan is a party
to the General Act under. international law, by virtue of succession to the
multilateral conventions entered into bv British India before Partition. Thev do
not, however, seek ta rely on Article 330f this~~ctconcirning interim messires.
13. Without preiudice to what is stated in oar.gra.~s 3 and 4 hereof the
Government ofIndia further states as follows:
(1) TheGeneral Act of1928 is eithernof inforce or, inany case, its eficac is
impairedby thefact that the okgansof theLeagueof Nations and thePermanenr
CoirrtofInternatioi~alJustice IO whichir refershave now disappeared.It will be
recalled that by resolution 268 (III), entitled "Study of Methods for the
Promotion of International Co-operation in the Political Field: Restoration to
the General Act of 26 September 1928of ifs Original Efficacy" adopted by the
General Assembly on 28 April 1949, certain amendments were suggested "to
restore ta the General Act itsoriginal efficacy". Pursuant to this resolution, the
Revised General Act for the Pacific Settlement of International Disputes was
adopted by the General Assembly on 28 April 1949, which embodied the
amendments suggested in the resolution. Neither India nor Pakistan is a Party
to the Revised General Act.

A reference to the Report of the Interim Committee of the General Assembly,
wbich suggested the adoption of the Revised Act, would indicate the reasons
why the 1928 General Act was regarded as ineffective. The following excerpt
is relevant:144 PAKISTANI PRISONERS OF WAR

"Thanks to a few alterations, the new General Act would, for the benefit
of those States acceding thereto, restore the original effectiveness of the
machinery provided in the Act of 1928, an Act which, though still theo-
retically in existence, has become largely inapplicable.
lt was noted. for examole. that the orovisions of the Act relatine to the
Permanent ~o;rt of ~nternational ~u~ticehad lost much of their effective-
ness in respect of parties which are not Members of the United Nations or

oarties to the ~tatÜteof the International Court of Justice." (Reoorts ofthe
interim Committee of the General Assembly (5 January-5 'AU& 1948);
GA,OR, Third Session. Supplement No. 10, UN doc. Al605, 13 August
1948, para. 46, pp. 28-29,) -

The Revised General Act can onlv a~~lv.oro...-tivelv .o States accedina
thereto, and, while recognizing the impairment of the éfficacyof the 1928
General Act and attempting to restore its original efficacy,the Revised Act has
also stated that it will not affect the riehts of States ~arties thereto "as should
claim to invoke it in so far as it might-still be operaiive". Bearing in mind the
inefficacyrecognized in the General Assemhly resolution cited ahove, the 1928
General~~ct can. in view of t~ ~~ ~ ~-~ent of India. be invo.ed onlv bv the - .
parties thereto only by mutual agreement rather than unilaterally. It is only in
this manner that the 1928Act which is otherwise ineficacious and deadwood,

could perhaps be utilized to some purpose. If it is unilaterally invoked, it would
render nugatory the purpose for which the General Assemhly thought it
aD-.ooriate to enact the Revised General Act of 1949.
(2) Êven assumingrltarrl~e1928GeneralActissri11inforce (which is denied),
Pakistonisnora party thereto,asPakistancannotbecomeaparty theretounder
internationallaw byvirtue of successiorrio multilateral conventions which were
entered into before the birth of Pakistan. In this regard, the following points
may be noted:

(a) Pakistaii, having been born in 1947 was not an original party to the 1928
Act. Nor was it a Member of the League of Nations. Being a closed treaty .
and afterthe demise ofthe League of Nations, Pakistan cannot now hecome
a uartr thereto.
. .
lb, ,\ ireaiy regar,iing the ~ciilemenioid~spuir.>. iihich i, csseniiill?3 poliiicdl
ireai)., is noi rrdn.~mihsibleuiider inicrnsiional Ij\r. I'rofcr~cirO'Conncii. 3
Iciuinr-ruihsirii!. on Srüte Suc~ciri<in.nuis ii ihu.. "Clearl? no1 ÜIIihese
ircarics arc iransniisiible: no Srair. has yei ;ickn<i\iledgcd ils sti~rcssiori ILI
the Generill Ac1 for ihc P<i.ific Seiilemcni oi Inir.rnni~oii;il Dispiiic~"
11928,. tSlule Surri~srh,!ii,, .\lri,iii.inolI.aut,,/1,rir.o<iriii!zl ois.\'$II.II.
i967,'p.'213.)

The general rule in international law akcut State succession is summed up
hy Sir Humphrey Waldock. (then) special rapporteur on succession in respect
of treaties, in Article 3 (second report submitted to the International Law
Commission in 1969)and Articles 6 and 7 (third report submitted to the Inter-
national Law Commission 1970),which provide as follows:

"Article 3. Agreemenrs forthe Devolutionof Treary Obligations
or Rightsupono S~dccession
1. A predecessor State's obligations and rights under treaties in force in
resoect of a territorv which is the subiect of a succession do not become
apilicable as between the successoru~tate and third States, parties to

those treaties, in consequence of the fact that the predecessor and the CORRESPONDENCE 145

successor States have concluded an agreement providing that such
obligations or rights shall devolve upon the successor State.
2. When a predecessor and a successor State conclude suih a devolution
agreement. the nhlieations and riehts of the successor State in relation
to third tat t undser any treaty in force in respect of its territory prior

to the succession are governed hy the provisions of the present articles.
Article 6. GeneralRule regardinga New Stafe's Obligationsin

Respect of Ils Predecessor'sTreaties
Subje~tto the provi\ii>n\oi the prcsent srti~les, a new State is ndr hounrl
by ïny trcaiy hy reawn mly of the fait rhït the trelity \\sr concluJcd hv

its predecessor and was in force in respect of ils territory at the date of the
succession. Nor is it under any obligation to hecome a party Io such treaty.

Article 7. Righl of a New State ro Notify Irs Successionin .
Respect of Mulrilateral Treaties
A new State, in relation to any multilateral treaty in force in respect of
its territory at the date of its succession, is entitled to notify the parties

that it considers itself a party Io the treaty in its own right unless:
(a) the new State's becoming a party would be incompatible with the

obieit and .urD.seof the ~articular treaty:
fb, the treïty 1s .Iir>nsiit~~enitn\rrument of an intsrmtii~n<ilorg~iit~ütion
ILI \\,hicha Sinie nixy hsconie p.lrty <~nlyby ihe prd~edure prcicrikd
for.the acquisition of membership of the organization;
(c) by reason of the limited number of the negotiating States and the
object and purpose of the treaty, the participation of any additional
State in the treaty must be considered as requiring the consent of al1

the parties."

Thus the rule is that a new Statestarts with a clean slate and that there is no
automatic succession of treaties. A mere devolution agreement between the
successor State and the predecessor State does not automatically make the
suicessor State a party in relation to the other parties to a multilateral treaty.

(c) The above rule conforms to the practice followed by the Secretary-General
as a deoositarv of the treaties concluded under the ausoices of the United
~ation;, as wéllas in some cases in relation to those concluded under the
auspices of the League of Nations. In some cases, the new States voluntarily
notified to the~~~iied Na~io~ ~~ ~ir acceotance of the aoolicat..n of orior
lrcïlles In cithsr cd.e\. the Secrciary-Gencrdl isiiicd 3.note lislin-. trcatiei

c~includcJunJer ihc I.r~aueof Sïtionsa, ive11as undcr the United N~iion,,
and enquired from the ne; States asto whether theyaccepted theobligations
arising therefrom. In no such voluntarynotification,or responseto the note
issued by the Secrefary-General,has the 1928 General Act everbeen listed.
(SeeSuccessionof States and Governments, UN docs. A/CN.4/149-Add. 1,
and A/CN-41150. Memorandums prepared by the Secretariat on 3 De-
cemher 1962 and 10 December 1962 respectively.) The second Memoran-

dum. however. sh.w~ t~at~t~ ~ ~~ ~~ ~v-General has not vet of his own
accord consulted new States about succession to League Treaties which
have not been amended bv the United Nations. The Memorandum says:
"There would be sonie lej1I problenis in conncction wiih such action.

In the first place. it noulJ be necesrïry to esi;ibli,h a lis1 of the I.casue
Treiitici thït are still in force. 2nd thi, \vouIrl rsquire a hiudy not only of146 PAKISTANI PRISONERS OF WAR

whether each treaty has ken denounced by the parties but also whether the
treaty can still be executed after the disappearance of the organs of the
League, whether the treaty has been superseded among the parties by a
new treaty, whether the treaty has fallen inCodesuetude, etc." (Year Book

of theInrernationalLaw Commission, 1962,Vol. II at p. 125.)
.3. As to theorincio,eof .uccession ~ ~we~ ~ndia andPakistan inter se.the
I,~d>otInJtprtr<lence IItrternarto,!aiArro,~g,~t»ci~trO,rJer 1947 i>.alpru,»irlgate<l
0114 Artgrtsr1947. i>,hichs<~r srtr01tlrercl~nl~~r lhrretoa11axrcerrretrb t rrwrzrzthe

~ominion of India and rhe Dominion of Pakisran. Theagreement reads as
follows:

"Schedule
Agreementas to the Devolutionoflnrernational Rightsand Obligations

uponthe Dominions ofIndia andPakistan
1. The international rights and obligations to which India is entitled and
subject immediately before 15 August 1947 will devolve in accordance

with the provisions of this agreement.
2. (a) Membership of al1 international organizations together with the
rights and obligations attaching ta such membership will devolve upon
the Dominion of India.
For the purpose of this paragraph any rights or obligations arising
under the Final Act of the IJnited Nations Monetarv and Financial

Conference will be deemed to berights or obligations attached to
membershi~ of the International Monetary Fund and to membershi~
of the 1nteÏnational Bank for ~econstruction and Development.
(b) TheDominion of Pakistan will take such steps as may be necessary
toapply formembership of such international organization as it chooses

to ioin.
3. (a) Rights and obligations under international agreements having an
exclusive territoriala~~lication to an area com~rised in the Dominion
of India will devolve "bon that Dominion.
(b) rights and obligations under international agreements having an
exclusive territorial application to an area comprised in the Dominion

of Pakistan will devolve upon that Dominion.
4. Subject to Articles 2 and 3 of this agreement, rights and obligations
under al1international agreements to which India is a Party immediately
before the appointed day will devolve bath upon the Dominion of
Pakistan, and will, if necessary, be apportioned between the two
Dominions."

Such a devolution agreement cannor oy itself, as Sir Humphrey Waldock has
indicated in the draft a~ ~ ~es cited abo~e..,~ ~ a successor State a nartv to a
. ,
mulrtlaier~l ireiity. The subrtantiie content of (hi\ iigrwment h35 also bern
commented upon b) an eminenr aurhoriry, Oscar Schachter as follow5:

"The intended effectof this DrovisionaDoearsto be to extend to Pakistan
treaty rights and duties which would not devolveupon it under the generally
accepted rule of law. For it has been recognized that when a territory
breaks offand becomes a State. succession takes dace onlv 'with regard to
such international rights and duties of the predecessor-as are l<gically
connected with the part of the territory ceded or broken off, and with

regard to the fiscalproperty found onthat part of the territory'. Conversely,
it has beenclearthat nosuccession occurs;IIregard 10rightsand dutiesof the CORRESPONDENCE 147

old State whicharise /rom irs oolitical rreariessuchas treatiesof alliance
or ofpacifieselriemeri;.It has ils0 been the view of the majority of writers
that the new State does not succeed to other non-local agreements, such as
treaties of commerce and extradition.
In view of these principles, what effect must be given Io the bilateral
agreement between the two dominions purporting Io transfer to the new
- ~ ~ ~ ~ -eat. ri-hts and obli-ations? It mav he doubted that it will he
given effect (even if intended) with respect to agreements which are essen-
tially political, since both precedent andprinciplearecontrarytorecogniz-
ing succession in these matters. On the other hand, it does not appear
improbable that succession will be recognized with respect to multipartite
treaties concerned with social. economic, and technical matters."
(Schachter, "The Development of internationa Llaw Through Legal
Opinions of the United Nations Secretariat", XXV BYIL (1948), pp. 91,
106-107; emphasis added, footnotes omitted.)

(4) The aboveposition set out by~ir Humphrey Waldock and inProfessor
Sehachrer'sconrmenthas also beenfollowed by Pakistan in ils Store practice
since 1947, and thisis manifestfrom thefollowing:

(a) In 1947a list of treaties to which the abovementioneddevolution agreement
would apply was prepared hy "Expert Committee No. 9 on Foreign Rela-
tions". Their report is contained in Partition Prpceedings, Vol. III,
pp. 217-276. The list comprises some 626 treaties in force in 1947.
The 1928 GeneralAct isnotincludedtherein. The report was signed by the
representatives of hoth countries. viz. A. V. Pai, V. M. Ikramullah, C. S.
Jha. Iskander Mirza. P. A. Menon, V. A: Swaminathan and A. A. Shah.
(6) In several difference; between ~ndiaand Pakistan since 1947,such as those
relating to the uses of river waters or the settlement of the houndary in the
Rann of Kutch area, where resort was made io arbitration proceedings, the
1928General Act was not relied upon or ever cited by the parties.
(c) The Supreme Court of Pakistan, on an appeal from the High Court helow,
affirmed the latter's decision and with regs- to the application of the
devolution agreement stated as follows:

. "With this, however, we are unahle Io agree for more than one reason.
First, because the Indian Independence (International Arrangements)
Order 1947 did not and, indeed, could not provide for the devolution of
treatv riahts and obliaations which were not ca~abie of beina succeeded
IO b;, ;ilart of a cii;ntry, uhich i.; re\ercd irom the parent State and
established as an independent sovereign piwcr. ûccording io the practice
of States.\Ve adi iscdly u,e the cxprcssion 'practice of States' in this regard
for thereappear io be no settled rulei of Inicrnntisnal Law governine the
suzcession of Siaics. But a, far as iiidn he gathered the con.;en\us of
o~inion amonast international iurists seems to bein favour of the viewthat

as a general rile a new State so formed will succeed Io rights and obliga-
tions acising only under treaties specifically relating Io its territories, ex.,
treaties relating Io its boundaries or regulating the navigation of rivers or
providing for guarantees or concessions but not to rights and obligations
under treaties, affecting the State, as such, or its suhjects, e.g., treaties of
alliance, arbitration or commerce. An examination of the provisions of the
said Order of 1947also reveals no intention to depart from this principle."
The Court further stated:

"Under these provisions it is significant that Pakistan does not succeed148 PAKISTANI PRISONERS OF WAR

ta the rnembership of international organisations or thï rights and obliga-
tions attachina to such mernbership but bas to a~~lvto become a member

of any organ&ation ,he ihooies 10 join. Thus she-did no1 auiornaii~.ally
be~.omea mrmber of the United Nations nor did she succeedio the righti
and obligaiions which attached io Indra by reasonof her mernbership of the
League oi Salions at Genevï or the United Nations. Iris dificulr, rhzrejnre,
ro appreciareho*' clause4 of rhe sa~dOrtler can be said ro br applicable ru
al1 kinds of international azreementsor that it inrended to provide for the

succession ;O rights andobli~ationsof theparent Stafe whichdidnot normally
devolveapon a State establishedby successionfrom the parent State under
the rules-of International Law or which attached to theuarent Srate as a
consequenie of her rnembershipof an international organisation. . . The
rarifrcation could thas be made by only a mernberState and had to be de-
ooshedwith the Secretorv-Generalof theLeazue of Nations. In the circum-
, ~ - ~, ~
stance\ iik'akiitdn iould no1undçr the InJian Independence (Inlernnliondl
Arrangements) OrJer succecd 10 the rights and obligcitioni acquired by
Britijh India by tirrue of her membership of the Leïguc of Nations or its
succeqsororganization . ..th$ Cnited Kariunr ... it fullows ihat Pakibtan
could noi be deemcd ti> ha\,e 5ucceeded ro the risht of ratiticaiion that
Briiish India possrzsed a\ a memher of the l.e<ig;e of Nations and ihe
ratification of the Protii:olby British India could not ennure io the henetit

of Pïkistan." (.unu-zr. ILo,~dun~ Lit~iitcil \,.Barlas Brurlz<.r, fKara<.hi,
and Co.: Judgment of 6 June 1961 (Civil Appeal No. 139 of 19601.)(~eé
"Materials on State Succession", Unired Nations Legislative Series, doc.
ST/LEG/SER B/14, pp. 137, 138 and 139.)

(d) In the initial stagesPakistan did assert that by virtue of clause 4 of the
Devolution Aereernent. it was a CO-successorwith India to multilateral treaties.
including methenhip'of international organizations, and also informed thé
Secretam-General in 1953 that Pakistan considered itself a Party to-

(i)Convention on Certain Questions Relating ta Conflict of Nationality
Laws, signed at The Hague, 12 April 1930;
(ii)Protocol relating to a Certain Case of Statelessness,signed at The Hague,
12 April 1930;

(iii)Special Protocol concerning Statelessness,signed at The Hague, 12 April
1930.
(See Year Book of the InternationalLaw Commissiori, 1962, Vol. II, at p. 109.)
However, Pakisran has never informed the Secretary-Ceneral of the Unired

Nations. nor oarties to the 1928 General Act rhat it considereditself to be p. .v
Io that Act. view of the points (2) ta(4) in this paragraph, ~akistan cannot be
reaarded as a P. .y to the 1928General Act bv successionunder international
iaw.
(5) Assarningthat the 1928Act is inforce and that Pakisran is aparty rhereto,
even thenPakistan cannot unilaterally invoke rhis Act to make the Court seized

of the sribject-matter of its Application, as will bepatent from thefollawing:
(a) Article 29 (1) of the General Act provides as follows:

"Disoutes for the settlernent of which a soecial orocedure is laid down
in 0th; con\,entions in force bet\ieen the ;.mies ;o the diwute shïll be
wtrled in conformiry wirh the provisions of ihose conveniions."

This paragrciph is quite slear. Since the ,rarement of the ilaini by Pakisian in ils
Application and ihc submi$sions made relate only to the allcged interpretnri~in
and application of Article VI of the Cir.nocidc Contention 1918, uhish is a CORRESPONDENCE 149

Convention in fore between India and Pakistan, any "dispute" in relation to

the 1928General Act has Io be settled in conformitv with the orovisions of that
Convention. Thus invoking the 1928 General AC; brings back a reference to
Article IX of the Genocide Convention 1948 and bearing in mind the express

and objective reservation entered by India to that ~rticle, the consent of the
Government of lndia is required in each particular case before the Court can
be seized of the subject-matter of any Application.

The Solicitor-General of Australia, while presenting Australia's views in the
Nuclear Testscase,stated the following on 22 May 1973:

"Recognition of the validity of the General Act doesno1mean, ofcourse,

that the Court thereby acknowledges a means of recourse in every case
which may arise between the parties to the General Act. Where,in a treaty

bearing irpona parficular sirbjecf,provisionis modefor tire setflemenfof
disprises by tllis Corrrt,setflenienfcan take place onlyunderrhat provision.
At the sdme time, il mus1 be seen that, as 1 have already submitted,

declarations made under the Optional Clause cannot be eqiiated with
treaties containing special settlement provisions. Furthermore, Optional

Clause declarations cannot in law exhaust the jurisdiction-creating will of
the parties which make them. Such declarations only affect niatters of
customary international law, or conventional matters for which no other

specific settlement procedure has been prescribed." (Emphasis added.)
[sitting of 22 May 1973, p. 62.1

Attention, in this respect, is also invited to Article 1, clause (ii), of the Simla
Aereement 1972.which was siened bv the President of Pakistan and the Prime

~Tnister of 1ndi3on 2 July 19fi xnd,.aiicr h3ving beenconsidered hy rcprcsen-
tati$e Assemblies or the two counrries, mas rdtitied and is in force. rhir clause

orovides"that the Iwo countries areresolved to settletheirdifferencesbw . .aceful
means through bilateral negotiations or by any otherpeacefulnienrisnirilrrolly
aareedarionbetween$hem"(em~hasis added). In so far as the repatriation of

.iis~ ~r~ -f -~r and civiliin ~ ~-~ ~ ~ ~ ~ ~ ~ ~ncerned. Article 6 of the Simla
Agreement does ~rovide for negotiations between thé countries concerned to
settle the related questions. The subiect-matter of Pakistan's Application must,

therefore.~.e~ ~nsidered an~ ~~ ~~véd~n-~o~ ~rmitv with the ~rovisions of the
Simla Agreement and in consultaiion \rith the parties conscrned. !'JObilateral

or trilitteral ne-siiaiiiins ha\c sci iaken ol3cc sn the subicct-maiter of Pakistan's
Ao..ica~ ~n.~
(b, Whilc becoming a pürty 19 the 1928Gcncrül Act on 21 May 1931. InJiü

niüde the folloiriiig reser\aiions c~cluding the follo~ing Jirputei from ihe
proceduredcscribcd in the C;eneraIAct, including the Proccdure olCùnciliation:

"Dispuiei in regard to iihich the partie, to ihc dispute hü\c agreed Ur

shall itgrce io ha\.e rccourse to sonie other niethod of peaccful settlemcnt."
"~is~utes between the Government of India and theGovernment of any
other ~ember of the League which is a Member of the British ~ommon-

wealth of Nations, al1 of which disputes shall be settled in such manner
as the parties have agreed or shall agree,"
"Disputes with any party to the General Act who is not a member of the

League of Nations."

The application of these objective conditions or reservations Io Pakistan's
Application is manifest. If Pakistan were deemed to be a Member of the

League of Nations, it must also be deemed to be a Member of the British
Commonwealth of Nations, like lndia was at that time. No "dispute" will then150 PAKlSTANlPRISONER Sf WAR

lie to the Court between India and Pakistan. Similarly. with reference to the
first reservation, "disputeunder the General Act shall be settled in such a
manner as the parties have ameed or shallagree.This condition as also the one
set out in5 (oj above in relation to ~rticle59 of the General Act requires an
expressconsent by the Government of India by reason of India's resewation to
ArticleIX ofthe Genocide Convention and the provision of the Simla A~ree-

ment referred to ahove, before the subject-matter contained in ~akistan's
Application could be considered by the InternationalCourt of Justice.
14.To suni rrp:The 1928General Act is either not a treaty in force or is an
ineffective treaty. Pakistan was not a party to the General Act. It cannot be a
party thereto by successionunder international law. Even assuming it is a party
thereto. bv the fictionsuccession(whichisd esoiwnd)onduct contradicts

its bei"ga party thereto. It has niver informed ihe Secretary-General or the
parties to the 1928General Act that it regards itself bound by the General Act.
in any case, the Gcneral Act cannot apily to the suhject-matter of Pakistan's
Application in view of Article 29 thereof and the reservations made by India
at the time of becoming a party to the General Act on 21 May 1931.As such,
the consent of India is required before the Court could be seizedof the subject-
matter of Pakistan's Application.

E. Conclusions

15. The i.1ea.sof the Go\ernnient of lndia with regard to Pakisian's Applica-
tion secking to makethe Court seizedof ils subject-matter mïy noa, berummed
up as follows:

(1) In view of India's reservation to Article IX of the Genocide Convention
1948, requiring the consent of the Government of India as a precondition
to the proceedings bine. instituted in the International Court ofJustice
under the con\.ention. the Court iannot bc propcrly seizedof the sublect-
matter of Pakist~n's Application whiih artempts to found the juridiction
of the Court under Article IX thsreof. No such conseni h~sbeenohtained

by Pakistan befors suhmittingitsApplication. When Prikistan's Application
and Requcjt ucre communicated to the Govcrnmeni of lndia. it rcgretted
ihar it could not gihe its consenit.lotter of 23 May 1973to the Keb'strrlr
of the International Court of Ju\tiie. In the absence of thic consent, the
Court is not propcrly sei7edof the subject-matter and cannot pro.'eed wiih
the case

(2) The tiile ofjurirdistioon which the eniirc Appli.'iitiis basedcannot bc
unilaterally addcd tu or dciiated from in the manner Pakist~n seeks10 do.
(.. I'akistan cannot challenee the admissibiliiv of India's reservaiion to Article
Ei of the Genocide convention and assert that it is of no legal effect
whatsoever by invoking Article iX itself, without obtaininthe consent of
the Government of India.
(4) In any event, the titles of jurisdiction which Pakistan seeks to invoke

either under Article 36,paragrapb 2, of the Statute or under Article 17or 41
of the 1928General Act refer the matter back to the Genocide Convention.
any "dispute" relating to which cannot be entertained by the Court without
the consent of the Government of India. In addition, the reservations made
bv India in its Declaration under the Ontional Clause. aswell asthose under
the General Act, manifestly take away the jurisdictionof the Court with
regard to any "dispute" to which Pakistan is a Party in the absenceof con-

sent of the Govemment of India. CORRESPONDENCE 151

(5) The suhject-matter of Pakistan's Application, as indicated in paragraph 9
of Government of India's statement of 28 Mav 1973. does not concern
India. Pakistan's Application affects Bangla ~esi who has sufferedterrihly
at the hands of the versons suspected of having committed genocide. war

crimes, crimes agaiist humanit; and breches of the ~eneva Convention
(see Annex C-VI1 and C-VI11 to Pakistan's Application). Pakistan has
arhitrarily picked up the charges of genocide for the purpose of the present
Application hy severing the same from the charges of war crimes, crimes
against humanity, etc., although it cites the document listing al1 these
allegations and relies on it for its Audication. This Pakistan is not entitled

io io. Bangla Dcsh has noi becn niiic ü pariy io thebeliiiempiïd prscced-
ines. The Ci>urt,thcrcf,>re,~.annutbï \eized oi the rub~e;l-niaiicr of such an
Application in the absence of Bangla Desh in these proceedings. (Seepara. 9
of the Government of India's Statement of 28 May 1973.)

16.In varaaraoh 30(9) of Government of India's statement of 28 Mav 1973.
~ov~rnment of fndia hàd referred to the test of manifest absence ofjuricdictio"
as set out hy the Court in the FisheriesJurisdictioncase. The Court must fully
satisfv itselfthat it isnrooerlv seizedof the subiect-matter and that thereexist no
seriois doubts or that iheréare no weighty arguments against its jurisdiction

to hear the case on its merits, hefore it considers Pakistan's request for interim
measures.

F. Addirional Points

17. Without prejudice ta what is stated hereinahove, Government of India

wish to state that the Court must satisfy itselfthat the Applicant for the request
for interim measures genuinely seeks ta exercise its alleged right and discharge
its alleged objections arising out of Article VI of the Genocide Convention. It
is clear that Pakistan does not genuinely seek ta do sa as will appear from,
inter alia, the following:
(1) Pakistan has not conducted any investigations, nor can investigations now

he conducted reear-ine ch-rees o- aenoci-e since the material evidence is in
Bangla Dcih. Nor ha, Plikistïn made any prepïrations for exçrci4ng ils allcgcd
jurisdiciion. Nor does Pakistiin ïppcar tu IM\Cany intenlion of doing \o. In
fact. thc Couri \~.uuldIili\e ohserveil I'reiideni Bhiitto's ,tatemeni of29 May
1973 reported in the Herald Tribunedated 30 May 1973. On 31 May, Radio
Pakistan reported President Bhutto's remarks ta the New York Times cor-

respondent as follows:
"President 2. A. Bhutto has said that if the sa-called war trials of

Pakistan war prisoners are held in Bangla Desh it will only anger the
people of his country who will react hy demanding counter-trials. In an
interviewwith ~ ~-~~-e~ Yo-~ Timeshe made it clear that Pakistan could not
stomach the trial of its prisoners as it would cause revulsion among its
ueoule to react accordinnlv. ln fact the trials would unleash chaotic forces.
~heke would he --mo-.-~~.--~-~~~ labour. stu~~nts and aeneral masses
and public opinion would demand-similar Gials against ~engalis who had

aided the Indian and Bannla Desh Forces during the War. He posed a
question asto how he couid put a lid on this kid of demand. Referring
to the move against the Bengalis in Pakistan he said this was a most
vainful and unvleasant decision for him. He said Sheikh Mujihur Rehman
had left him with no option and had taken them to the point of no return.

The President said if Sheik Mujihur Rehman proceeded with his mad152 PAKISTANI PRISONERS OF WAR

adventure it would be the single biggest cause of instability in the suh-
continent. It would seriously affect relations between their countries and
cause irreparable harm at a time when they should forget the grievous
wou~ ~ ~ ~~ ~~~ ~tr President Bhutto~oointed out that another bar Io
peüce on ihe suhcuniineni \\ai the fale oiihe non-Henpiilisin Rüngld Lksh.

Shcikh \luiibur Hehrnan uanred toeviir rhem hui Pükist;in uould deilinc
any overwielming number of them. He said after al1 Pakistan was a
thousand miles away and was under no legal obligation Io accept them.
About the Indo-Banala Desh statement the President said that on the
surface the proposal aipeared qnite reasonable but at heart it did not came
to grips with the problems of the trials and the nondengalis."

(2) Thus, the object of instituting these proceedings is not to exercise any
alleged right or discharge any alleged obligation but ta ensure that either no
trials are held atal1or that if any trials are held in Bangla Desh, Pakistan would

hold counter-trials of Bengalis in Pakistan.
(3) In al1 this exercise, India which has nothing to do with the crimes or
trials, cannot be made a party Io Pakistan's Application and request for interim
measuresjust in order Ioenable Pakistan to seekextraneous political advantages.
(4) Nor should it be forgotten that on 6 December 1971 India recognized
Bangla Desh as a sovereign independent State and that on 16 Decemher 1971

the armed forces of Pakistan surrendered to the joint command of the armed
forces of two independent States. namely India and Bangla Desh. The prisoners
of war, referred to in ~akistan's ~pplication, are in joint custody of the Iwo
countries. As such, the Court cannot proceed with Pakistan's Application and
request for interim measures in the absence of Bangla Desh.
18. It is emphasized that the views of Government of India set out in this

statement do not constitute preliminary objections within the meaning of
Article 67 of the Rules, as misunderstood hy Pakistan in its letter of 25 May
1973to the Registrar of the Court. The views of Government of India SetOut
in these statements are the views of a sovereign State which refuses to give !ts
consent to frivolous and vexatious nroceedinns instituted bv Pakistan by 1tS
Application and request for interim'measuresfor an ulterioÏ purpose and 10

seek extraneous political advantages against the object and purpose of the
Genocide convention. and the statute and Rules of Court
19. Finally, ~overnment of lndia owe to the Court the reason why the
Government of India are unahle to participate in the oral hearings in this case.
The Government of India have sivin this auestion the utmost consideration
which it deserves. The Governm&t of ~ndia'have on earlier occasions had the

honnur of appearing befnre this Court. The Government of India have also
settled someiontroiersies with Pakistan by arbitration. In these cases one
party has sometimes los1 and the other has sometimes won. However, in the
present case, for the reasons set out in Government of India's letter of 23 May
1973and their written statement of 28 Mav 1973and the oresent statement, the
Government of India regret their ioahilitito appear befoie the Court pursuant

ta their stand that the Court is not properly seized of the subject-matter of
Pakistan's Ao~lication and its reo~ ~ ~for interim measures and has no juris.
diction \hai&e\.er io proceed u,iih'the case. Go\ernmen, of India's appear3nce
in iheir circumstünces \vould he logically inc~insistentwiih their srand. Tor can
Government of India give their coisent to these proceedings in the absence of
the necessary party thereto, namely Bangla Desh.

20. It is, therefore, respectfully requested that their non-appearance should
not be mistaken as lack of respect for the Court or for the processes of ad~u-
dication. CORRESPONDENCE 153

32.THE REGISTRAR TO THE AGENT FOR rn GOYERNMENT OF PAKISTAN

4 June 1973.

1have the honour to transmit to Your Excellencyherewith a copy of a letter,
with enclosure, from the Ambassador of India at The Hague, received in the
Registry just before 1 p.m. today.

33. THE AMBASSADOR OF INDIA TO THE NETHERLANDS T0 THE REGlSTRAR

5 June 1973.

Could you please send us 10copies of the verhatim records of the pleadings
of Pakistan, as we need them here and in Delhi.

34. THE DEPUTY-REGISTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA1

(telegram)
8 June 1973.

Have honour inform Your Excellency adjourned public hearings in case
concerning Trial of Pakislani Prisonersof War will reopen 10 am. Thursday
14June.

THE DEPZiiY-REGISTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA
35.

8 June 1973.
Airmail

1 ha\,c the honour to atiach a confirmatory copy of my cahle of rodsy by
iihich 1 informed Your Excellency of the date fixed for the re-opening of the
adjourned public hearings on the requesr of Pakirtnn for the indication of
interim measures of protection in the case concerning îiiul uf Paki,ratri
Prisun2rsuf 1Var(Pak;.cta!zv. India),namely Thiirsday 14Junc 1973al 10ii.m.
1have the honour to send ~our~xcelle~c~ herewith a copy of the verhatim
record of the hearings of4 and 5 Junez incorporating the corrections made in

accordance with Article 65 of the 1972Rules of Court.

(Signed) W. TAIT.

A similarcon&unication wassentto the Agentfor the Govemmentof Pakistan:
a Seepp. 21-69, supra.154 PAKlSTANl PRISONERS OF WAR

II June 1973.

1have the honour to refer to your letter No. 54898, dated 8 June 1973.
On behalf of the Government of the Islamic Re~ublic of Pakistan, 1have the
honour IOszatc that in vieivof the fact that certain ducurn1,hich ~crc due
tu :irrite froni Pakihian tweek and which pertüin ro thc c<i,e,have not ben
received and mav take a few davs more to get here, it is reauested that the
President of thecourt may be pléasedto adj&rn the hearing of the case from
14June 1973,to 19June 1973, or on any date soon thereafter.

37. THE REOISTRAR TO THE AGENT FOR l'HEGOVERNMEN OF PAKISTAN

12June 1973.

1 have the honour to acknowledge receipt of Your Excellency's letter of II
June, by which you request the postponement of the public hearing fixed for
14 June 1973 in the case concerning Trial of Pakistani Prisoners of War
(Pakisranv. Indial. 1have the honour to inform you that the Acting President,
having considered your request and the reason iven thercfor, kas-dccided, in
accordancc ~ith Anicle 51, paragraph 2, of the Rulcr of Court, tu posipone the
public Rearing Io Tuesday, 19June 1973,a1 10a.m.

38. THE REGISTRAR TO THE MINISTER FOR EXTERNAL AFFAIRS OF INDIA
(telegram)

12June 1973

Further to mycable and letter of 8 June have honour inform you adjourned
public hearingsin case concerningTrialofPakisfaniPrisoners of Warpostponed
to 19June 10a.m. at request of Pakistan.

39. THE REGlSTRAR TO THE MINISTER FOR EXTERNAL AFfAlRS OF INDIA

(telegram)

18 June 1973.

Further to my cables of 8 and 12June have honour inform Your Excellency
that on account of Court's programme of work Court has decided to postpone
adjourned hearing-in case concerning Triol of Pakistani Prisonersof War from
14June to 26 June at 10 am.156 PAKISTANI PRISONERSOF WAR

43. THE REGISTRAR TO THE AGENT OF THE GOVERNMENT OF PAKISTAN

27 June 1973.

1 have the honour to acknowledge receipt of Volume Iii of the Parririon
Proceedings (Expert CommiffeesNos. 3-9) ' deposited in the Registry yesterday
for the convenience of the Court in its consideration of the request hy Your
Excellency'sGovernment for the indication of interim measures of protection

in the case concerning Trial of Pakisfani PrisonersoWar (Pakisfarrv. India).
The volume will be returned Io you as soon as possible.

44. THE DEPUTY-REGISTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA

2 July 1973.

Airmail

1have the honour to send Your Excellency herewith a copy of the verbatim
record of the hearing of 26 June 1973 incorporating the corrections made in
accordance with Article 65 of the 1972Rules of Court.

45. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REGISTRAR

9 July 1973.

1have the honour to refer to the meeting which the Attorney-General and 1
had with the President of the International Court of Justice on Tuesday, 3 July
1973,with regard to the withdrawal of Sir Muhammad Zafrulla Khan from the
Court as Judge ad hoc for the reasons communicated hy him to the President
of the Court.
The President was pleased to inform us in response to the claim made by us
the same morning, that the Court had agreed that the Government of Pakistan
could choose anotherjudge adhoc Io replace Sir Zafrulla Khan, but added that
the Court had insisted that the new judge ad hoc mus1 be ready and available

in The Hague on the morning of 10July to participate in the deliberations of the
court.
The Attorney-General informed the President that the period allowed hy
the Court for the nomination of a new judge ad hoc and for his study of the
case was so short that it might notbepossible for anyjurist or judge to accept
such a serious responsibility. Nevertheless, in order to conform to the time-
limit laid down bv the Court. the Attornev-General left for Pakistan for this
purpose and to obtain further instructions from the Government of Pakistan.
The Attorney-General returned to The Hague late last night.
1regret 10-hai,eio inform sou that in spiÏe of the best eÏ~ortsof ihe Gotern-
men1of Pakistan ihe) ha\.e not been ablc to persuade any Pakistani or forcign

judge or juristinaccepi the assignment ofjudge ad hoc in place of Sir Muh3m-

' SeePP. 77 fi.s.pra.
* Seepp. 70-107,supra. CORRESPONDENCE 157

mad Zafrulla Khan and to participate in Jelibr'rations of the Court on the
morniny of 10July 1973 ;isuch short nolice. Each of rhï~udges or jurists who
wai dpproiiched felt that il\vas nui rio5riblcto sludv 3nd acauaint himself with

the points of law and fact involved; to enahle him io makea worthwhile con-
tribution ta the deliberations of the Court commencing on 10July. One leading
European jurist who was approached on 4 July expressed his willingness to
accept the assignment provided a reasonahle period of time would be available
to him for the study of the case.
In these circumstances. Pakistan is unable to choose a iud.e - ad hoc to
participate in the present stage of the proceedings.
The Government of Pakistan reaffirms that the presence of a judge ad hoc
chosen by it is a mandatory requirement under the Statute of the Court and his

presence is essential for the further deliherations of the Court with respect to
Pakistan's request on interim measures of protection

46. THE REGISTRAR TO THE AGENT FOR THE GOVERNMENT OF PAKlSTAN

9 July 1973

-1 have the honour ta attach hereto the text of a question which is addressed
to you by Judges Forster, Onyeama and Ignacio-Pinto. The Court has decided
that it wbuld wish the answer to this question to be given in writing.

QuestionbyJudgesForster, OnyeamaandIgnucio-Pinto

In the course of your address to the Court on 26June, you stated as follows: ,
"In the same paragraph, India also invites attention to Article 1,

paragraph 2, of the Simla Agreement of 1972, which was signed by the
President of Pakistan and the Prime Minister of India on 3July 1972,and
ratified thereafter by the two countries.
It is claimed that in accordance with this clause. which has onlv been
quoted in part by India. the sub~cct-müiterai ~akis1iin.sapplicalion muit
be considered and rcxilied in si~nformiiy nirh Ihe pro\ision of the Simla
Agreement, and only through consultations.
It is also claimed that no bilateral negotiations have yettaken place on
the subject-matter of Pakistan's application."

In the course of that same address, you quoted Article 1, paragraph 2, of the
Simla Agreement, and stated:

"1 first draw the attention of the Court to the words 'pending the final
settlement of any of the prohlems between the two countries, neither side
shall unilaterally alter the situation'. There is thus a clear obligation on
India not to hand over the 195or any other number of persons to Bangla
Desh for trial pending the final settlement of this dispute with Pakistan." CORRESPONDENCE 159

nounced the decision of the Bangla Desh Government to try 195 Pakistani
Prisoners of War. He stated that the trials would begin by the end of May 1973.
3. In responseta the India-Bangla Desh joint communiqu6 the Government
of Pakistan issueda statement on 20 April 1973.While challenging the right of

theGovernment of Banala Desh to try Pakistani Prisoners of War. and claiming
exclusii,c jurisdictiothe ~io\ernmcnt of IJakijtan iniited negotiïtions betneei
India and Paki\ian on ihir and other issues.
4. On 23 April 1973the Miniqter ofSiüie for 1-oreignAilairi. Go\crnment of
Pakistan, had wrirtcn ro Sardar Suaran Singh. the Indian E~ternal AiTairs

41inister.calling upon lndia toconiinue negotiarroris<inmattcrs in issuebetueen
the Iwo countries
5. The responsefrom the Minister of Externa1AtTairr, Go\,crnmeni of India,
was received in IImessügc dated 8 May in which the Goi,ernmcnt of lndia
rejectedI'akisran's sraiid with respect to the ir~al<if Prisonerr of Wïr and uthcr

issuesand asked Pakistsn io agree in advnnce to al1the suggc$tionsmade by
lndia and Rangla De,h in thcir joint communique of 17April 1973.The rrle\ant
part of the communication of 8 May is as follows:

"Likewise the contention of.Pakistan Government in paragraph 3 of its
statement questioning the competence of theGovernmentof BanglaDeshro
britlg 10 trial certainprisonersof war or! crime chargesis unacceptable.

The sameis the casewith the untenable observationcontained in paragraph
7 of Pakistan's statement about the Pakistani nationals in Bangla Desh,
who have declared their allegiance ta Pakistan and are desirous of re-
patriation.
In Our view, talks can be purposeful and lead to quick results if Pakistan

Government was ta indicate their agreement in principle IO the solution
set out in paragraph 5 of the joint declaration of 17 April 1973. The
representatives of India and Pakistan can work out the modalities for
implementing the solution."

It was this total rejection of Pakistan's position, and the threatened transfer to
Bangla Desh of 195Pakistani Prisoners of War, in question, which led Pakistan
to make a request for interimmeasures of protection.

6. Thereafter, under thedirections of the Presidentof the InternationalCourt
of Justice, the Registrar sent thefollowing telegram to India:

"Furthcr rererencemy cable and lctter of I I May concerning procecdings
insiituted by I'akistan agîinsi lndia and in parriculïr rcquest for indication
interim measuresof ororecrion have honour inform Your Excellencv that
I1residrnt of Court expre,\ec the hope ihdt the Goiernmenrs concernédwill
take into accouni the fd~tihat the maiter is now \ubjudice herorc the Court.

Similar communication addressedtoday to Government of Pakistan. Court
will in due course hold public hearings to afford partiesthe opportunity of
presenting their observations on request for interim measures. Date of
opening of such hearing will be announced as soon as possible."

The Government of Pakistan believes that this measure was to a large extent
instrumental in preventing any arbitrary action immediarely contemplaied at
that lime.

7. After the deadlock created by the statement of the Indian Foreign
Minister dated 8 May rcfcrred io ibove. the Government of Pakistan w<is
plcascd to noie that the Governmenl of lndia in iis leiter dated 4 June 1973.
addressedro the Court. look an altorether difcrent ~osirion indicatine. uillina-
ness to negotiate on the subject-matter of the applicationfled by Pakistai.160 PAKISTANI PRISONERS OF WAR

On page 21' of the said letter India stated as follows:

"Attention in this resoect. is also invited to Article 1. clause (ii). of the
Simla Agreement 1972, ;hich was signed by the ~resident of ~akistan and
the Prime Minister of India on 2 July 1972 and' after having been con-
sidered b- reo.~sentative Assemhlies of the two countries. wasiatified and
ii iiifor~,c.Thij clause provide\ 'ihai the two counirie, arc resolved io

scttle iheir diRercnces hy pedccful means through bilatcr~l negotiations or
by any oiher pea:eful means mutuïlly agrecd upon hetuecn ihem'. ln so
Fdras the reparriürion oiprisoner, of uïr and civilian intçrneeï i%concerned,
Arriilc 6of the Simla Acrïenicni does pro\ ide for nenoriïrions bei\ieen the
countries concerned to%ettle the relaied questions.-~he subjecf-matter of
Pakistan's Application musf, therefore, be considered and resolved in
conformitv wirh the orovisions of the Simla Aareement and in consultation
wi& the parties concerned. No bilateral or trilateral negotiations have yet
faken place on the subject-matter of Pakistan's Application." (Emphasis
added.)

8. Sinîe then communicïiians beitieen the Go\crnmcnts oi India and
Pakistan indisaie an undersianJine thït ncp,oiiaiions \il1shortly be held on [hi\
and other issues hetween the twi countriés and the prohlems viewed from a
humanitarian point of view and solved accordingly. It is expected that these
negotiations will take place in the near future at a mutually convenient time

and place.The Government of Pakistan had suggested 9 July for these talks, but
the Government of India suggested 16July. Tho latter date was, however, not
suitable for Pakistan since President Bhutto, accompanied hy Pakistan's
Minister of State for Foreign Alïairs, would at that time be on a state visit to
the USA. Consequently, Pakistan has proposed that the talks may commence
on 28 July 1973.
9. In view of the fact that further negotiations are now to be held between
India and Pakistan in accordance with the obligations of the parties under the
Charter of the United Nations, and in the context of the Simla Accord; and
that Article 1, clause (ii), of the Simla Accord further provides as follows:

"Pending the final settlement of any of the problems between the two
countries neither side shall unilaterally alter the situation and both shall
prevent the organization, assistance or encouragement of any acts detri-

mental to the maintenance of peace and harmonious relations";
the Government of Pakistan trusts that the Government of India would not
now take any unilateral action with respect to the 195 Pakistani Prisoners of

War in question pending a final settlement of the matter through bilateral
negotiations, or by any other peaceful meaos mutually agreed upon.
10. In order, therefore, to facilitate the negotiations and in view of the
developments referred to above, the Government of Pakistan consider it
ao..oo.iate to reauest the Court to p.sto.oe further consideration of Pakistan's
rcqucsi for the indication of inlerim measurei ro as IO facilitarc the propoicd
negoriaiions and thus help rowirrd, achic\ing peace and harmonio~s relations
in the suhcontinent
II. The <;o\crnmeni of i'dkijtan t'urtherprayr ihai ihc C'ourrmay bc pledsd
to fin iinie-limits for the tiling uf rvritren pleïdinps in the cï\e in accordance
with the Statute and Rules of Court

Seep. 149, Nifra. CORRESPONDENCE 161

49. THE DEPUTY-AGENT FOR THE GOVERNMENI OF PAKISTAN TO THE REGISTRAR

12July 1973.

1 have the honour tu refer to your letter No. 5'4647,dated 9 July 1973, for-
warding therewith a question put by Judges Forster, Onyeama and Ignacio-
Pinto, relating ta the case Trial of Pakisrani Prisonersof Wor (Pakistan v.
India).
The reply of the Government of Pakistan is forwarded herewith.

Answerro the QuesrionPosedby JudgesForster,OnyeamaandIgnacio-Pinto

The short answer tu the question posed by Judges Forster, Onyeama and
Ienacio-Pinto is that Pakistan affirms that the Simla Ameement constitutes an
indertaking by lndia and gkistan that p&ding the Gttlement of any of the
orohlems of the two countries. including the question of transfer and trial of
prisoners of war, neither side.shall uniÏateralÏy alter the situation. In order,
however, tu give the Court a dear picture of the obligations under the Simla
Agreement, in this context, it is relevantta quote Article 1,paragraphs (i) and
(ii), of the Simla Accord in full, which are as follows:

"1. The Government of Pakistan and the Government of lndia are
resolved that the two countries out an end to the conflict and confrontation
th31hate hitherto m;irre.l their'relatians and uork for the prom,ition of a
friendlg and harmoniou\ rcllitionrhip and the srtablislinicnt of durable
oeace in the subcontinent. su that both countries mav henceforth devote
iheir resources and energiésta the pressing task of advancing the welfare
of their peuples.

In order tu achieve this objective, the Government of Pakistan and the
Government of India have agreed as follows:
(i) That the principles and purposes of the Charter of the United Nations
shall govern the relations between the two countries;
(ii) That the two countries are resolved to settle their differences by
peaceful means through bilateral negotiations or by any other peaceful
means mutually agreed upon between them. Pending the final settle-

ment of any of the problems of the two countries, neither side shall
unilaterallv alter the situation and both shall Dreventthe o.ganization,
assistance or encouragement of any actsdetrimental ta the maintenance
of peaceful and harmonious relations."
2. The Government of Pakistan draws attention tu the fact that the oarties
have reaffirmed that the principles and purposes of the Charter of the United
Nations should govern the relations between the two countries, and hence

bilateral negotiations as a means of settlement of disputes are not intended to
substitute or replace pacific settlement under the Charter and Statute of the
Court. Indeed, the words "or by any other peaceful means mutually agreed
uoon between them" olainlv include oeaceful means of settlement aereed uoon
b; India and ~akiitan'in rliip.i,'. iiiciu~iicferense 10 the lnternarsnal ~hurt
of Justice and the United Nations. While bilÿterül negotiations as a menns of
settlement are desirahle. it is oreciselv because bilateralneeotiations on this and
other issues had been deniedia pakGtan bÿkdia, that ~akistan resorted tu the CORRESPONDENCE 163

was received in a messagedateJ X May on 9 hlliy 1973. in whiih the Gotcrn-
ment of lndia rejected Pakistan's stand with respect io the trial of PrisonCr>of
War and other issuesand asked Pakistan to anree in advance to al1the sugges-
tions made by India and Bangla Desh in their joint communiqué of 17 ~pril

1973.The relevant part of the communication of 9 May was as follows:
"Likewise rlre coirrerrtionof Pakisran Coverirnre~~ iirr paragraplr3 of ils

starenrenrarresriunit"~rlreconroerence of the Coverrrn~enorf.Band" DeshIo
bringro rrial certainprisoirersof waroircrimechargesisrinacceptableT . he
sanie is the case with the untenable observation contained in paragraph 7
of Pakistan's statement about the Pakistani nationals in ~angla ~esh, who
have declared their allegiance to Pakistan and are desirous of repatriation.

In Our view. talks can be .ur~.seful and lead to auick results if Pakistan
Go\ernment wa\ to indicare theiragreemçni in principle 10 thesolui~un set
out in psrdgraph 5 of ihe joint declardiion or 17 April 1973 The rcpre-
sentatives of India and Pakistan can work out the modalities for imple-
menting the solution."

It was this total rejection of Pakistan's position, and the threatened transfer Io
Bangla Desh of 195 Pakistani Prisoners of War which led Pakistan to make a
reauest for interim measuresof protection.

9. Thereafter under the directions of the President of the International Court
of Justice the Registrar sent the following telegram to India:

"Further reference my cablc and letter of I IMay concerning proceedings
instituted bv Pakistan arainst lndia and in ~articular reauest for indication
interim measures of protection have honour inform Your Excellency that
President of Court exDressesthe how that the Governments concerned will
take into account the fact that the matter is now subiudice before the

Court. Similar communication addressedtoday to ~oicmment of Pakis-
tan. Court will induccourse hold public hearingj toaford parties the oppor-
tunity of presenting their obser;ations on request for interim measures.
Date of opening of such hedring will be announced as soon as possible."

The Government of Pakistan believes that this measure was Io a large extent
instrumental in preventing any arbitrary action immediately contemplatcd al
that time.
10. After the deadlock created by the statement of the Indian Foreign

Minister dated 8 May referred to above, the Government of Pakistan was
pleased to note that the Government of India in her letter dated 4 June 1973,
addressed to the Court, look an altogether different position indicating
willingness to negotiatc on the subject-matter of the application filed by
Pakistan. On page 21 ' of the said letter lndia stated as follows:

"Attention in this respect,is also invited to Article 1, clause (ii), of the
Simla Agreement 1972.which was signed by the President of Pakistan and

the Prime Minister of India on 2 July 1972 and. after having been consid-
ered by representati\,e A<sembliesofthe ti$,ocouniries. ir,as;ati~ed and is
in force. This clliu~ç proviJes 'thai the two couniries are resolved to eitle
their diiïerences b~ neaceful means throunh bilateral neaotiations or by
an, oiher peace~u~Bcansmutulilly iigreedipon kiiveenÏhern'. In sa Far
lis the repatriation of prisoners of w3r and ci\,ilian internees is conierned.

Article 6 of the Simla Agreement docs provide for negotiations bctueen the

lSeep. 149, infro.164 PAKlSTANl PRImNERS OF WAR

countries concerned to settle the related questions. The subject-matterof

Pakistan's Applicationmust, therefore, he consideredand resolved in
conformitvwiih the orovisionsof the Simla Arreement in consult~ ~o~wirk
rlrepuriic; co»rertrei. Arohhi1nre;u olr rrilarrr$ nrgoiiarrorrc1rni.eyrr ralrrn
plare ,111rhr rr,hjccr-,>rurrtof P<ihirru,r'sApplicaliori." (Enipliasis ïdded.)

11. Since then the communications between the Governments of India and
Pakistan have given rise to an understanding that neaotiations will shortlv
be held on tbisand other issues between the two counGies and the problemi
viewed and solved accordingly. It is hoped that these negotiations will be held
in the near future at a mutuallv convenient time and nlace. The Goveroment of
I1aki,ian hüd sugb.e,tcd 9 ~ulyior ihese ialks, but the'Cio\ernmeni of 1ndi.ihad
instexi suwc~tcrl Ih July. The laiier date iras houever noi suiiable for Pîkiiian
\ince I'reridzni Bhutto, accompanied by Pakistün's .Mini\teroiSi;ite for Foreign

Arhirs, \\ould at that rinie beon;istüte vi,iro rhc USA. Coiijequenily, Paki\tan
has proposed ihai ihc rïlks may sommenie <in28 July 1973.
12. Keeoine. in view the fact that further neeotiations are now to be held
between 1ndia-and Pakistan in accordance witkthe obligations of the parties
under the Charter of the United Nations, and in the context of the Simla
Accord and that Article 1, clause (ii), of the Simla Accord further provides as
follows:

"Pending the final settlement of any of the problems between the two
countries neitber side shall unilaterallv alter the situation and bath shall
prc\cni ihc organi7ütion. ï\sisiance or encouragcnicnr of any 351sdeiri-

mcnisl rcithe maintenance of peüzc and harniunious relaiions."
The Government of Pakistan truststhat the Government of India shall not now
take any unilateral action with resuect to the transfer of the 195 or more
~akistani Prisoners of War in question ta Bangla Desh, pending a final settle-
ment of the question of jurisdiction by peaceful meaos through bilateral

negotiations or by any other peaceful means mutually agreed upon:
13. In order, therefore, ta facilitate the negotiations, and in view of the
developments referred to above, the Government of Pakistan have found it
a..rour.ate to reauest the Court to nostnon. con.ideration of Pakistan's
requcit for intcrim meïsurer in order io Facililaieihe propoicd negotiïiions.
14. Pïkisran ha<rcqueited the Couri for po>tpsnement of ihe ci~niiderdion
of ber request for interim measures, and that the matter be kept pending sa as

ta give the parties a fair chance Io settle this matter tbrough bilateral negotia-
tions. It has further been requested that in the meantime the Court may cal1
upon the parties to file their memorial and counter-memorial in accordance
with the Statute and Rules of Court.

13July 1973.
Airmail

1have the honour to enclose herewith an official copy of an Order2 made by
the Court today in the case concerning Trial of Pakistani Prisonersof War
(Pakistan v. India).

'A similar communication was sent to the Agentfor the Governmentof Pakistan.
I.C..I. Reporrs1973, p. 328. CORRESPONDENCE 165

51. THE DEPUTY-REGISTRAR TO THE SECRETARY-GENERAL Of THE UNITED NATIONS

16July 1973.
Airmail

1 have the honour, with reference to the request submitted by the Govern-
ment of Pakistan on 11 May 1973 for the indication of interim measures of
protection in the case concerning Trial of PakistaniPrisonersof War (Pakistan
v. India) and to Article 41, paragraph 2, ofthe Statute of the Court, ta send yon
herewith, for transmission to the Security Council, an officialcopy of an Order
which the Court made in the case on 13July 1973.

52. THE DEPUTY-REGISTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA

16July 1973.

Airmail

1 have the honour, with reference to the case concerning Trial of Pakistani
Prisoners of War (Pakistan v. India), to enclose herewith a copy of a letter of
12 Julv 1973from the Government of Pakistan and of the document therewith
transmitted, which, as Your Excellency will observe, consists of a reply to the
question of Judges Forster, Onyeama and lanacio-Pinto the text of which 1

Lnclosed with the letter1addressed to you on9 July 1973.

53. LE GREFFIER ADJOINT AU MINISTRE DES AFFAIRES ÉTRANG~RESD'AFGHANISTAN'

20juillet 1973.

Le Greffier adioint de la Cour internationale de Justice a l'honneur de
tranjmetire. sous ce pli. un e~empl:iire de l'ordonnance rcnduc par la Cour le
13juillet 1973dans I'ahirc rclïti\eau ProcA ~l~~pr~~oii~rit~rr<l~gaerrr~akirl~~~~ais
lPakisran c. Indei au suiet de la demande en indication de mesures conserva-
toires présentéepar le Gouvernement pakistanais.
D'autres exemplaires seront expédiés ultérieurementpar la voie ordinaire.

54. THE DIRECTOR OF THE OENERAL LEGAL DIVISION OF THE UNITED NATIONS
SECRETARIAT TO THE DEPIJTY-REGISTRAR

6 Angust 1973.

1have the honour ta acknowledge the receipt of your letter 54724 of 16Jnly
1973.addressed to the Secretary-General, under cover of which you sent him
a copy of the Order dated 13 ~uly 1973,responding to the request submitted

' La mêmecommunicationa 6t6adresséeaux autres Etats admis à ester devant
la Cour. 166 PAKlSTANl PRISONERS OF WAR

by the Govemment of Pakistan for the indication of interim measures of
protection in the case concerning Trialof PakistaniPrisoners of War (Pakisran
v. India).
Pursuant to Article 41, paramaph 2, of the Statute of the Court and to the

terms of the Order. a conv of that Order was transmitted to the Securitv
Council under cove; of a io>ument (S/10980)', a copy of which, in English and
French, 1 am attaching herewith for your information.

(Signed) Blaine SLOAN.

55. LE GREFFIER AU MINISTRE DES AFFAIRES ÉTRANGÈRES D'AFGHANISTAN

16août 1973.

Dans la reauête Darlaauelle le Pakistan a introduit une insta~ ~ ~ ~~~~ ~'Inde
dans l'affaire'du procès de prisonniersdg guerre pakistanais, requêtedont j'ai
eu l'honneur d'adresser copie A Votre Excellenceavec ma lettre du 23 mai 1973,

le demandeur a invoqué la convention pour la prévention et la répression du
crime de génocide, adoptée par l'Assembléegénéraledes. Nations Unies le
9 décembre 1948, pour fonder la compétence de la Cour ainsi aue le droit
exclusif de juridiction qu'il revendique sur les personnes visées dan; la requête.
L'article 63du Statut de la Cour dispose que, lnrsqu'il s'agit de I'interpréta-
tion d'une convention à laquelle ont participéd'autres Etats aue les parties en

li-.ge. le Greffier les avertit-sans délai.
En conséquence,et compte tenu des renseignements fournis par le Secrétaire
général desNations Unies, qui exerce les fonctions de dépositairede la conven-
tion susvirie, JC prie Votre ~~ccllcncîde hien i,i,uloir ;on;id&rer que la prkente
comnlunication cunstiiuc la nuriiicatinn prçi,ue a l'article 63 du Statut de la

Cour

56. THE REGISTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA

17 August 1973

1have the honour to inform Your Excellency that, as the Application filedon
11 May 1973 by the Gnvernment of Pakistan in the case concerning Triul of

Pakistani Prisoners of War invokes the Convention on the Prevention and
Punishment of the Crime of Genocide, adopted by the United Nations General
Assembly on 9 December 1948, 1have, pursuant to Article 63, paragraph I, of
tiieStatute of the Court, addressed the notification provided for in that Article
to States, other than those concerned in the case, which are parties to that

Convention. 1 enclose for Your Excellency's information a copy of the
notification in question.

~.t re~.oduced
* lJncc~irnmuntca1ioa nnalogucactCadreirCeauxautresttais partie,i 13~un\cniion
pour 13 pr6vcnt10n CIla repressiondu crinicde genocide.
.'A cornmunicalion inthe samc tcrms uai addrcixd 10 theAgent f,>the Govzrn.
ment tiPaki*ian. CORRESPONDENCE 167

57. THE MINISTER FOR FORElGN AFFAlRS OFAFOHANISTAN +O THE PRESIDENT OF
THECOURT

The Ministry for Foreign Affairs of the Republic of Afghanistan presents
its compliments Io the President of the International Court of Justice and hasthe
honour to communicate the followine:
1. Even though Afghanistan is n; specifically or directly involved in the

actual case (Triol of Pokistarzi Wor Prisoners), nevertheless, in view of the
statement made bv the reoresentative of ~aki3an in the course of nresentine
Pakistan's caseagainst lndia in the meeting of 26June 1973of the ln<ernationa?
Court of Justice, claiming Pakistan to be the successorof Great Britain and the
so-called colonial ~ura'd line, the State of Afghanistan cannot refrain from

presenting this note for the purpose of correcting the minutes of that meeting.
2. Pakistan's claim of succession Io the rights and obligations of Great
Britain is an ill-eal clairn. both withinan h~~-~ri~al context and accordine to
customary principles of iniernational law. This claim of successionwasnulli%ed
by the Secretary-General in the Legal Opinion of 8 Auaust 1947(seeenclosure
. .
1). uhen llaki!tan submitted ils application for rnemkrship to the United
Nations Organizstion. In applying for rnemhership ar a "new State". Pikistan
acccprcd the po.rition taken hy the Secretary-Gencrdl. At the tinie Britain asthe
predecessor tat teIndia as the successor~iate, and Afghanistan (with reserva-
tions) asa third country and a party to frontier disputes with Britain, voted for
Pakistan's membership as a "new State".

3. At present the new legal régime recognized by the International Law
Commission, the United Nations and other international legal institutions, as
well as the Secretarv-General. in his cap.citv.as the depositor of treaties and
international agreements, isthat: a neiv Siate alwayr cornes into existence ivith
a clean slate, i.e, with new legal rights and obligations. This principle har been

put into practice with regard to rnost new members of the United Nations. The
majorityof the judges of the International Court of Justice, who served as
former memkrs of the International Law Commission, have defended this
princi~le.
4. in accorrlanîr with ils uninrying position, Afghanisian rçjected Pakistan's

right ofsucces$ion both before and after ihc creütion of the State of Pakistan
and declared the illeaalitv of uneaual and colonial treaties im~osed on it bv
Britsin In this rerpect, ~fghïnistan'i position ws reiterited in ü note date2
II September 1963 by the Permanent Mission of Afghlinist'in IO the Cnited
h'3iions in rr~lv IO the Secreiarv-Generül's note iif 5 Julv 1963.This reolv has

been~ublish~din document ST;LEG/SER.B/~~, and is iresently underd~scus-
sion by the International Law Commission and the United Nations General
Assemblv (seeenclosure 2).
5. ~urthermore, ~f~hanistan has, both during the British era in India, and
after the creation of Pakistan, continuously proclaimed its position with regard

to Britain's colonial and uneaual treatieswhich were imoosed on it under
special conditions and iiriumriances and for the benetit of the colonial rule.
Italso cxcrcised its right regardingarticle 14of the Colonial Treaty of 1921for
the denunciation of that ~reatv. the secondarticle of which covers. the so-called
Durand line, and informed ~reat Britain in 1953accordingly. There does not,
therefore, exist any line at present on the basis of which Pakistan can claim a

right of succession. .
6. If the ~nternationa! court of Justice should take any ~osition in the course168 PAKlSTANl PRISONERS OF WAR

of considering the case of Pakistan versus India, or whatever case that would
involve uneaual treaties im~osed bv Britain on Af~hanistan, and be in variance
with our na;,onal inlerests; then Kfghanislan, iniccdrdance with the Siüiure
of the Internstioiiïl Co~rt of Justice 2nd the principler <ifInternatiLau,
willresort ta peaceful actions in order ta defend its legitimate interests.

7. For the afore-mentioned reasous, the Repuhlic of Afghanistan would
request thc President of the International Court of Justice ta instruct that this
note be incorporated in the Official Documents for the purpose of correcting
the statement of 26June 1973,made hy the representative of Pakistan.
The Ministry for Foreign Affairs of the Repuhlic of Afghanistan avails itself
of this opportunity to convey to the President of the International Court of
Justice the assurances of its highest consideration.

Enclosure 1

"1. From the.viewDointof international law. thesituation isonein which Dari
of an existing sixte breaks off and becomes a iew State. On this analysis tiiere
is no change in the international status of India; it continues as a State with al1
treatv riehts and oblieations of memhershi~ in the United Nations. The
territorywhich breaks off, Pakistan, will ba new State, it will no! have the
treaty rights and obligations of the old State. and it willno! of course have mem-
bership in the United Nations.
In international law the situation is analogous the separation of the Irish
Free State from Britain, and of Belgium from the Netherlands. In these cases
the portion which separated was coosidered a new State; the remaining portion
continued as an existing State withal1rights and duties which it had before."
(Legal opinion of 8 August 1947 hy the Asisstant Secretary-General for Legal

Affairs,approved and made public by the Secretary-General in United Nations
Press Release PMl473, 12 August 1947 (Yearbook of the International Law
Commission, 1962,Vol. II, p. IOI).)

Enclosure2

NOTE VERBALE OF THE PERMANENT MISSION OF
AFGHANISTAN TO THE UNITED NATIONS,
DATED 11 SEPTEMBER 1963. ADDRESSED TO THE

A. Observations

(The questionof succession bPyakistan 10Britishtreaty righrs andto theAnglo-
Afghan Treatyfor rheestablishmeno t f neighbourlyrelations,signeda! Kabul on
22 November1921-1947 Referenduminpakhrunisran-Colonial treaties-Scope
of thestudyon thelaw of State succession ta be underlakenby theInterrialional
Law Commission.)

1. At the conclusion of the Third Anglo-Afghan War of 1919, in Kahul, by
Mahmud Tarzi, Chief of the Afghan Mission, and Henry R. C. Dobhs, Chief CORRESPONDENCE 169

of the British Mission, a copy of which is enclosed along with a supplementary
letter attached to il. (See section B. below.) This treaty, as is noted in the

Prearnble, was a treaty of friendship between Afghanistan on the one hand and
the British Government (not the Indian Government) on the other.
2. Article II of this treaty deals with the so-called Durand Line which was
im~osed on Afghanistan in 1893. for dividinz the suheres of influence of Af-
ghani.tan xnd tic United Kingdom in the ~rib;l ~rei rneniioned in ihc colonial
Durand Trcatyl impoied by pol~ri~üland rnilitar). tiirse on Afghani\tan.
Historv has a witncrs tu thc r>urni>\eof the British incstabliihin~:cerisin spheres
of infibence, that is to say; the military purpose for the pre&vation of her
Indian colony.
Article XIV of this treaty States:

"The ~rovisions of this treatv shall come into force from the date of its
signatur~.~ndshall remin in force for thrcc yeari frdm thai Jaie In cdse
neirher of the High Conirasriiig Parties shi~uldhave notilicd, t\isl\c nionths
before the exoiration of the said three vears. the intention to terminate it.
. .
ir shall rcnidin binding until the expiration oi one yrar fri~rnthe Jay on
ii.hi2heiihcr of ihc High Conirüzting Partic, ihïll hr\e Jenounceri ilThis
treatv shall come into force after the signatures of the Missions of the two
parties, and the two ratified copies of this shall he exchanged in Kabul
within Z1/2months after the signatures."

Itwas in accordance ivith this provision that Afghanistan, on 21 November
1953,notified the British Government of the termination of the Anglo-Afghan
Treaty of 22 November 1921.-
3. When Pakistan came into being in August 1947,as a consequence of the
division of India and Pakistan, she claimed to be successor to the treaty riahts
of the United Kingdom, and therefore to the Anglo-Afghan ~reat; of 22
November 1921.Afghanistan maintains that this claim is legally unfounded on
the following grounds:

(a) Pakistan is not a successor to British treaty rights because Pakistan is a
new State. In accordance with international law, when a part of a State breaks
offand becomes a new State, it does not have the treaty rights and obligations
of the old State. It was on this hasis that the Secretary-General of the United
Nations, on the reauest of Pakistan for admission to membership in the United

~ations; denied the right of succession, and the, General ~ssembly and the
Security Council acted on the question of the request of Pakistan as a new
State, undertaking completely new obligations.
(b) Even if Pakistan were a successor to British treaty rights, which she is
not, and Afghanistan having implemented its right as a party to the Treaty
under Article XIV of the Treaty of 22 November 1921, no treaty rernains to
which Pakistan can succeed.

4.. No bilateral treaty will be transferable to a third party by the unilateral
action of one party to a treaty without the consent of the other original party
to the treaty, and there is no provision in the 1921treaty under which Afghan-
istan has given prior acceptance to the transfer of the treaty to a third party, in
this case, Pakistan.

' De Martens, Nouveau recueil généralde traités,deuxièmesérie, tomeXXXIV,
p. 646.Signedat Kabul on 12 November 1893.170 PAKISTANI PRISONERS OF WAR

5. The Indian Independence Act of 15 August 1947also states in regard to
the Pakhtun areas of the so-called North-West Frontier Province'of India,
which were separated from Afghanistan by British mililary and colonial inter-
vention. that a referendum will take o.ace. .nd thus al1 treaties between
~fghanistan and Britain concerning this region were terminated. It should be
mentioned that the referendum of 1947, contrary to the Indian Independence

Act, did not leave any alternative open to the Pakhtun people to votefor their
national independence, as demanded by their political leaders, and they were
forced to choose, against their natural aspirations, annexation Io lndia or
Pakistan. This arranzement was oooosed to the last moment. and more than
fifty per cent. of the-population in'the so-called administrative part did no1

participate in the referendum. Such forcible imuosition makes the so-called
referendum comoletelv void of anv l.cal-or human value. It should also~ ~ ~ ~be
noted here that ihis "refereiidum" was thus imiosed in occupied Pakhtunistan
alone, with no consideration of the views of Free Pakhtunistan. The majority
of the people of occupied Pakhtunistan, and the predominant Party which was

then in office, boycotted the referendum because of its strictly conditioned
nature. Any results claimed by such a referendum are therefore nuIl and void,
and can by no means be recognized as the decision of the Pakhtunistan nation.
It was a colonial decision enforced under the colonial election act of 1925.
6. Afghanistan believes that colonial treaties which have been imposed by

military force are invalid on the hasis of the new waves of emancipation of
colonial peoples in recent years and, particularly after the adoption of resolu-
tions 1514 (XV) (declaration on the crantine of indevendence to colonial
countries and peoples), and 1654 (XVI), the $tualion with regard to the im-
plementation of resolution 1514(XV) by the General Assembly of the United
Nations.

7. Afghanistan believes that the colonial treaties of Lahore, 1838'. Ganda-
mak, 1879%,and finally of Kabul (establishing the Durand Line between India
and Afghanistan), 18933. becauseof the circumstances under which thev were
imposed on Afghanisian. are illcg~l arcording IO Larious prinaples of inter-
nûtionsl Iaw. particulsrly those ;idopirJ hy tnî Internaiii)nul I.aa Commi,ri(>n

during it.fiftcenth ic-sion. containcd in article 33 on frn~d. articles 35 and 36
on coersion of States or their reprrsentatiter. ~irrlclc 37on jus cogens. üri,clc 38
on terniinniion of rreatie, ihrough the operation ofthcir o!rn provisions, article
43 on inioossibilit. of v.rformance and article 44 on fundamental chanee o-
circumstances (rebus sic ~~mz~ibus)~.

8. Afghanistan generally believes that the International Law Commission
should take into account the fact that in the law of treaties a new field has
emerged, the law of State succession. World War II brought a number of

' De Martens, Nouveau recueilderroirés,tome XV, p. 620.Signedon 26June 1838.
* De Martens, Nouveou reeueil.énéra le Irairis. deuxiemeserie,tome IV. D.536.
Signedon 26 May 1879.
Ibid.. tomeXXXIV, p. 646.Signedon 12November 1893.
See Yearbook of rhe lnrernorionolLow Cotnoiission,1963.Vol. II, pp. 194-211.
In final text of draft articleson the Law of Treatiesadopted bythe InternationalLaw
Commission, at ifs eighteenth session(1966).thesearticles wererevisedand renuni-
bered as follows: Article 33 (Fraud) kame article 46; article 3(Coercion of a
representativeof the State)becamearticle 48: article 36 (Coercion of a Stateby the
threat or use of force) becamearticle 49; article 37 (Treaties conflicting with a
perernptorynom of generalinternational law (juscogens))kame article 50; article
38 (ïermination of treatiesthrough the operation of their own provisions)kame
article 51(Termination of or withdrawal from a lreaty by consentof the parties)and CORRESPONDENCE 171

frontier changes, and many nations in Asia and Africa and other parts of the
world achieved independence and assumed new obligations in the expanding
community of nations. A number of frontier and territorial changes took place
by force or by agreement. New circumstances were created and it became
necessary to find the effects of treaties after cession, annexation, fusion with

another State, entry into federal union, dismemberment, partition, and finally
separation or succession. The question of codification of the law of State
succession therefore needs very careful study. The solution of such problems
cannot be left to the mercv of the stro-e nations. or theare-inine-of militarv
powers. As in private law sucb prohlems have found solution, it is much more
important ta find means and devices for the solution of this important question.
The International Law Commission should search practical devices. The term
"State succession" should not be used vaguely or loosely, but should be used in
question of territorial reorganization accompanied by a change of sovereignty.
The scooe of the studv on State Succession should be limited and orecise. and
musi io\cr thcciscntialelcments~~ hiihare necessary forthecreaiion of priictic~l
de\ices io salve the prrssnt difficulties ~rising oui of ihe rcsulls of solonialiim
and the imnosition of territorial and houndam chances which were contrarv
to the willof the inhabitantsand in contradiction of the right ta self-determina-
tion. II is important also that these devices be studied on the basis of those
treaties of "personal" nature, because the treaty falls to the ground at the same
time as the State. This question is paRicularly important because the fate of
many treaties concluded by colonial powers depends on it. The aftemath of
indeoendence has created manv oroblems which should be solved. It is also
. r
necessary for any special rapporteur to search on the main road, which is the
"wrsonality of the State", and changed conditions and the will of the contract-
ing parties,~about the right of succession.

58. THE REGISTRAR TO THE AGENT FOR THE GOVERNMENT OF PAKISTAN

22 August 1973.

1 have the honour to return to Your Excellency herewith. as reauested by
you on the telephone, Volume III of the Partition ~roceedin~s(~x~erfcommit-
tees Nos. 3-9) deposiled by Your Excellency'sGovernment in the Registry for
the convenience of the Court on 26 June last

59. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REOISTRAR

27 August 1973.

1have the honour ta statethat in exercise of its right under Article 31 of the
Statute of the Court, the Government of Pakistan have chosen Mr. Justice
Muhammad Yaqub Ali as Judge ad hoc in the application Pakistan v. India

articl52 (Reduction of the partiesto multilateraltreaty belowthe numbernecessary
for itsentry into force); articleSupervisingimpossibilityof performance)became
(See Ofiial Recordsleof ihe CenerollcAssembly, Twenty-first Session,Supplement
No. 9 (A/6309/Rev.l),pp. 73-78and 84-88.)172 PAKISTANI PRISONERS OF WAR

relating (0the Trialof Pakistani Prisoners of War on charges of genocide filed
before the Registry of the International Court of Justice on 11 May 1973.
The address of Mr. Justice Muhammad Yaquh Ali is:

Mr. Justice Muhammad Yaaub Ali,
Supreme Court of Pakistan,
Lahore (Pakistan)

60. THE REGISTRAR TO THE MINISTER FOR EXTERNALAFFAIRSOF INDIA

29 August 1973.
Airmail

1have the honour to draw Your Excellency'sattention to paragraph 4 of the
Order made by the Court on 13 July 1973, in the case concerning Trial of
Pakistani Prisoners of War (Pakisfanv. India), referring ta the withdrawal of
Sir Muhammad Zafrulla Khan, the judge ad hoc chosen by Pakistan under
Article 31, parasaph 2, of the Statute of the Court. By a letter dated 27
August 1973,a copy of which is enclosed, the Agent of Pakistan has informed
me of the choice by his Government of Mr. Justice Muhammad Yaqub Ali ta
sit as judge ad hoc in the case.
1have the honour to inform ~o"r Excellencvthat the President of the Court
has fixed 30September 1973as the time-limit, Pursuant to Article 3, paragraph
1, of the Rules of Court, within which the viewsof the Government of India in

this connection may be submitted to the Court.

24 September 1973.

The International Court of Justice, vide its Order of 13 July 1973, decided
that the written proceedings in the case concerning Trial ofpakistani Prisoners
of War (Pakistan v. India) shall first be addressed to the question of juris-
diction of the Court to entertain the dispute. In the same Order the Court fixed
the time-limits for written pleadings as follows:

1 October 1973for the Memorial of Pakistan;
15December 1973for the Counter-Memorial of the Government of India.
The subsequeni procedure \\as re%er\.edfor further decision.
2. The Cio\ernnienr of Pakijran. howcvcr, regrets rhar itir no1able io tile the
hlemorilil hy I O.wber for the folloning rcJsoni:

(i) The Memorial in"olves oresentine. arguments on no less than three auite
separate, and complica~ed bases-of yurisdiction. The time given to the
Government of Pakistan has not been sufficient to exhaustively deal with
these auestions: and
(ii) ~uring thisperiod, thelaw officersconcerned with the work of the Memorial

had to attend the UN Sea-Bed Committee Session at Geneva, and also to CORRESPONDENCE 173

prepare briefs for the Pakistan Delegation to the forthcoming United
Nations Assembly, which opened on 18September 1973.This has involved

a heavy burden on Pakistan's limited legal staff.
3. In order to do full justice to the work, and to exhaustively deal with the

several different bases of jurisdiction, the Governmenof Pakistan have the
honour to request the Court to extend the time-limit for Pakistan's Memorial
to 15 December 1973.

62. THE DEPUTY-REGISTRA TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA

(telegram)

24 September 1973.

Ha\.e honour inform ).ou ihar requcsr rccei\,cd from Pakijtan for extension
of time-limit for Mcmoriiil in ciix cunîerriing Trjol of Pol;isi risu~icr,of
IVar from I O~.toberto 15 Deccmber 1973fur~fo~ ~winc redsons Io arilument
-~ ~~~ ~
required on three separateand cornplicated basesofjuriSdiction and time given
not sufficient to deal with these exhaustive2" UN Seabed Cornmittee and
General Assembly has involved heavy burden on Pakistan's limited legalstaff.
Copy request airmailed to you today. Grateful your views soonest pursuant

Rules Article40, paragraph 4.

63. THE DEPUTY-RECISTRA RO THE MlNlSTER FOR EXIERNAL AFFAIRS OF INDIA

24 September 1973.
Airmail Express

1 refer to my telegram of today's date, a confirmation copy of which is
enclosed, and have the honour to send Your Excellency herewith a copy of a
letter date24 September 1973,received in the Registry today, from the Agent

of Pakistan in the caseconcerning Trial ofpakistani Prisonersof War1would
be grateful if the views of the Government ofdia on the request contained in
this letter could be conveyed to me, preferably by cable, as soon as possible.

64. THE DEPUTY-RECISTRAR TO THE MlNlSTER FOR EXTERNAL AFFAIRS OF INDIA

(telegram)

26 September 1973.

Reference my telegram and letter of 24 September concerning Pakistan's
requestfor extension of time-limit in caseconcerning TrialofPakistoniPrisoners

of Wor have honour inform Your Excellency on President's instructions that
essentialany views you wish to state be received not later than Friday 28
September.174 PAKISTANI PRISONERS OF WAR

29 September 1973.
Airmail

Further to mv cable and letter of 24 Se~tember. and mv subseauent cable of

26 Septcniher. l hai,e the honi~urta inforni i'our ~\ccllency thai'ihe Prerideiit
of the C<iurr,upon considerarion ofthe rcquei hy ihc Goiernment of Piikistiin
for extension of the time-limit fixed for its Memorial in the case concernina -
Trial of Pahisrai~iPrisotrr>rc01'IIYr, 2nd taking in10 a:;i)unt the fiict 111~1no
oh>ervarionshüd ken rc.-ei\d frum i'our F~celleii:y'sCio\crnmenr by ihc date
referred to in mvcable of 26Seutember. has todavmade an Order extendina the
time-limits fixed by the court's ~rder'of 13 ~uiy 1973 to the following dates:

Memorial of Pakistan: 15 December 1973
Counter-Memorial of India: 17 May 1974.

The sealed copy of the Order will be sent to you in duecourse.

1 October 1973.
Airmail

1refer ta myletter of 29 August 1973, by which 1 informed Your Excellency
that the President of the Court had fixed 30 September 1973as the time-limit,
pursuant ta Article 3, paragraph 1, of the Rules of Court, within which the
Government of India might submit its views to the Court on the choice by the
Government of Pakistan of Mr. Justice Muhammad Yaqub Ali Io sit as judge
ad hoc in the case cnncerning Trial of Pakisfani Prisoners of CIar.
1now have the honour ta inform Your Excellency that the time-limit fixed
by the President having expired without any doubt or objection having been

expressed on bebalf of the Government of India, 1 am transmitting the docu-
ments to Mr. Justice Muhammad Yaqub Ali forthwith.

22 November 1973.

The Kegi,trar ai ihc International Court ui Justi~.cprczcntj his coniplinienrs
ta the Mini\try of Foreign r\ifairs of the Kepuhlic of Afchünijtan and has the
honour to refer ta the ~inistrv's com~~ - ~ ~ - ~ ~ ~ ~ -Aueust 197-~~nd~ ~ ~
addressed k the President oc the Court which related ta the proceedings
instituted before the Court by Pakistan against India in the case concerning
Triol of PakisfaniPrisonersof War. -

The Mi-istry's communication has been passed by the President to the

' A similar communicationwassent to the Agent forthe Governmentof Pakistan.
a I.C.J. Reports 1973,p. 344.
A similarcommunicationwassent tn the Agentfor the Govemmentof ~akistan. CORRESPONDENCE 175

Registmr who, under Article 21 of the Rules of Court, is theregular channel for
communications to and from the Court.
In acknowledging receipt of the Ministry's communication, the contents of
which have been carefullv .tud~ ~~~,he Reeis-rar has the honour to i~ ~rm th~
Ministry that the contentions therein advanced and the action requested in
relation to the statement made by the representative of Pakistan. in the course
oioral procecdings in ihç .ibo$r'-mentioncilL.asc,on 26 June 1973.4s noi appcar

tihim io Tdlla;ttiin the Irnibit of the procedure prcscrrkd by tncSt~tutr,oithç
Couri and ihc Rules niade thereuiidcr ior ihc üdiudicition i>f.c<inientio~S
cases submitted to it, or to comply with the requirements of those instruments
regarding the right of intervention by third States in cases before it.
The Registrar of the International Court of Justice avails himself ,of this
opportunity to convey to the Ministry of Foreign Affairs of the Republic of

Afghanistan the assurances of his highest consideration.

68. THE AGENT FOR THE GOVERNMENT OF PAKISTAN TO THE REGISTRAR

- 14December 1973.

1haie the hondur iiihring 1.1)<iur ndt:ce the deiclopnlcntj in thc Jirputc
bctaecn Pikisisn dnd India rslating to ilic Triol <>/PuLUro,~rPri.wnr,rs 01 IVdr
since ihc Ordcr of the Gwrt i~f13Julv 1973.,\fier ihc raid Ordcr ui the Court
negotiations were held between the rekresentatives of the two Governments at
New Delhi from 20 to 27 August 1973, which resulted in an agreement, signed

at New Delhi on 28 August 1973. Paragraph 3, clauses (vi) and (vii), of the
Agreement deal with the question of trial ofthe 195accused, and are as follows:
"(vi) Bangla Desh agrees that no trials of the 195 prisoners of war shall

take place during the entire period of repatriation and that pending
the settlement envisaged in clause (vii) below these prisoners of war
shall remain in India:
(vii) On completion of repatriation of Pakistani prisoners of war and
civilian internees in India, Bengalis in Pakistan and Pakistanis in
Bangla Desh referred to in clause (v) above, or earlier if they so
agree, Bangla Desh, India and Pakistan will discuss and settle the

question of 195 prisoners of war. Bangla Desh has made it clear
that il can participate in such a meetingonly on the basisof sovereign
equality ..."

2. The Agreement remoies the threat of trials and leaves the door open to a
political settlement through future negotiations. In the meantime, pending a
finnl settlement, India has agreed that the 195Prisoners of War shall remain in
India and shall not be transferred to Bangla Desh for trial.
3. That this arrangement is without prejudice to Pakistan's position with
respect to the question of jurisdiction is clear from Article 3 (i) of the Delhi

Agreement which provides as follows: .
'Yi) The immediate imolementation of the solution of these humanitarian
problems is witho;t prejudice to the respective positions of the parties

concerned relatina to the case of 195 prisoners of war referre~~~o in
clauses (vi) and (hi) of this paramaph:"
Pakistan's position continues to be that she has exclusive jurisdiction with176 PAKISTANI PRISONERS OP WAR

respect to the trial of the prisoners ofwar in question, and that the International
Court of Justice has jurisdiction to determine this question. ln view, however,
of the fact that India has, after the Delhi Agreement, started discharging her
obligations under the Geneva Conventions bv commencine. re~atriation of
~akistani I1risuncrof War, and wiih a vie\\ to façilitating fur~hcrncgoiiations,
the Ciovernmcnt of Pakistdn considers irüppropriüte Ir?request the C~urt for

discontinuance of proceedings.
4. As the Government of India has not taken any step in the proceedings
under the Rules of the Court, the consent of the Government of India is not
necessarv to such discontinuance. The Court is therefore reauested to rnake an
Order officiallrccordingdiscontinuanceoi the proceçding~in 1hïcd.e concrrn-
ing the Triol O/ P<ihirla~~iriri),irO/ IVur (Jurisdiction under the Cienocide
Con\ciiiisn), inrtirutr'J by the Appli~stion of I'ïkistan ddrcd II May 1972.

69. THE DEPUTY-REOISTRAR TO THE MINISTER FOR EXTERNAL AFFAIRS OF IN DIA^

(telegram)

15December 1973.

Have h<>tinuriniornl Your t'x;cllcncy ihat by leiter daicd 14 Vcïcmber
1'akist;itiiAgent in cüic sonscrninTtinl i>/Paki,tu,ii Prisotrrrsu/'Irefcrred
Io nesoti3rions uiih Ymr Ehccllcncy'sCio\erninent and rcquc;tcd the Ci~urrto

makr an Order oitiiially rïcordinp discontinu3ncc oi prn;cedings. I'reiidenr
h3i loin? made Ordcr' unJçr Kulci Article 14 rcciiiiiit1rt.ralrthat lnrlian
Cic>icrnnicniha. naii?et ukcn any step in the pro<ecding.;,placiny on record
di~coriiinuancc by Pakistnn of'pr~~<eedingiiniriiutcd by Application filed II
Ma). 1973and orderinc rhat ca,e he rcrn<ivedfrom liit. CO...lcircr and Ordcr
airmailed to you tada;.

70. THE DEPUTY-REGISTRAR TO THE SECRETARY-GENE ORFTHE UNITED NATIONS

(telegram)

17 December 1973.

Reference case concerning Trial of PakistaniPrisoncrsof War have honour
inform you Pakistani Agent informed Court by letter 14 December that
Pakistan not going on with proceedings. President has made Order dated 15
December recording discontinuance and removed case from list.

71. THE DEPUTY-REOISTR AORTHE MINISTER FOR EXTERNAL AFFAIRS OF INDIA

21 December 1973.

Airmail

Further to my letter and cahle of 15 Decernber, 1 have the honour to send
Your Excellency herewith the officialsealed copy for the Government of India

A similarcommunicationwassent Io the Agentfor the Governmentof Pakistan.
I.C.J. Reports1973, p. 347. CORRESPONDENCE 177

ofthe Order made by the President on 15December removing the case concern-
ing Trialof PakistaniPrisoners of War from the Court's list. 1also enclose five

printed copies of that Order for your use.

72. LE GREFFIER AU MINISTRE DES AFFAIRES ÉTRANGÈRES D'AFGHANISTAN I

9 janvier 1974.

Le Greffe de la Cour internationale de Justice, se référantà sa lettre du
23 mai 1973 concernant l'affaire relative au Procès deprisonniersde guerre
oakistanais(Pakisran c. Inde) et à la notification faite dans cette affaire le 16
ïoût 1973 en application del'lrrticle 63 du Statut.3 l'honneur de iransmctire
ci-joint un exemplaire de l'ordonnance rîysnt I'atl'airedu rRlc qulretc rendue

e 15 décembre 1973 par le Président.

73. THE3REGISTRAR TO THE MlNlSTER OF STATE FOR LECAL AFFAIRS OF BAHRAlN2

9 January 1974

The Registry of the International Court of Justice has the honour Io refer to
its letter of 23 May 1973 in the case concerning Trialof PakistaniPrisoners of
War (Pakisran v. India),and Io transmit herewith a copy of an Order made by
the President on 15 December 1973, removing the case from the Court's list.

'Unecommunicationanaloguea&t&adresséaeuxautresEtats partiesàla convention
pour la prbventionet la rkpressiondu crime de gknocide.
aA communication in the same terms was sent Io the other States entitled Io
appear beforetheCourt whichare na1partiesIothe Conventionon the Preventionand
Punishment of the Crime of Genocide.