INTERNATIONAL COURT OF JUSTICE
APPEAL RELATING TO THE JURISDICTION OF THE ICAO
COUNCIL UNDER ARTICLE 84 OF THE CONVENTION ON
INTERNATIONAL CIVIL AVIATION
THE KINGDOM OF BAHRAIN, THE ARAB REPUBLIC OF EGYPT,
THE KINGDOM OF SAUDI ARABIA
AND THE UNITED ARAB EMIRATES
v.
THE STATE OF QATAR
COUNTER-MEMORIAL OF THE STATE OF QATAR
VOLUME II
25 FEBRUARY 2019
ICAO CORRESPONDENCE AND DOCUMENTS
Annex 1 ICAO Assembly, Resolution A15-7: Condemnation of the Policies of
Apartheid and Racial Discrimination of South Africa, ICAO Doc. 8528
(22 June-16 July 1965)
Annex 2 ICAO Assembly, Resolution A18-4: Measures to be taken in pursuance
of Resolutions 2555 and 2704 of the United Nations General Assembly
in relation to South Africa ICAO Doc. 8958 (15 June-7 July 1971)
Annex 3 ICAO Council, Action of the Council: Seventy-fourth Session, ICAO
Doc. 8987-C/1004 (8 July 1971, 27-29 July 1971, 28 Sept.– 17 Dec.
1971)
Annex 4 ICAO Council, 74th Session, Minutes of the Second Meeting, ICAO
Doc. 8956-C/1001 (27 July 1971)
Annex 5 ICAO Council, 74th Session, Minutes of the Third Meeting, ICAO Doc.
8956-C/1001 (27 July 1971)
Annex 6 ICAO Council, 74th Session, Minutes of the Fourth Meeting, ICAO
Doc. 8956-C/1001 (28 July 1971)
Annex 7 ICAO Council, 74th Session, Minutes of the Fifth Meeting, ICAO Doc.
8956-C/1001 (28 July 1971)
Annex 8 ICAO Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc.
8956-C/1001 (29 July 1971)
VOLUME II
FIGURES
Figure 1 Thirteen ATS Routes Available Pre-Aviation Prohibitions
Figure 2 Two ATS Routes Available Post-Aviation Prohibitions
Figure 3 Seven ATS Routes Available as of 4 February 2019
ANNEXES
Annex 9 ICAO Council, 74th Session, Working Paper: Voting in the Council on
Disagreements and Complaints brought under the Rules on Settlement,
ICAO Doc. C-WP/5465 (21 Oct. 1971)
Annex 10 ICAO Council, Règlement pour la Solution des Différends (1957,
amended 10 Nov. 1971)
Annex 11 ICAO Council, Cuba v. United States, Memorial of Cuba (11 July
1996)
Annex 12 ICAO Council, United States v. 15 EU Member State, Memorial of the
United States (14 March 2000)
Annex 13 ICAO Council, 161st Session, Summary Minutes of the Fourth Meeting,
ICAO Doc. C-MIN 161/4 (15 Nov. 2000)
Annex 14 ICAO Assembly, Resolution 38-12: Consolidated statement of
continuing ICAO policies and associated practices related specifically
to air navigation, ICAO Doc. 10022 (entered into force as of 4 Oct.
2013)
Annex 15 ICAO Council, Rules of Procedure for the Council, ICAO Doc.
7559/10 (2014)
Annex 16 Convention on International Civil Aviation, Annex 15: Aeronautical
Information Services (15th ed., July 2016)
Annex 17 Convention on International Civil Aviation, Annex 11: Air Traffic
Services (14th ed., July 2016)
Annex 18 ICAO Council, ICAO Annual Report: Settlement of Differences,
available at https://www.icao.int/annual-report-2017/Pages/
supporting-implementation-strategies-legal-and-external-relationsservices-
settlement-of-differences.aspx (last accessed: 31 Jan. 2019)
Annex 19 Hernán Longo, “Sharing information in order to fight against
terrorism”, ICAO, Hong Kong ICAO TRIP Regional Seminar (2017),
available at https://www.icao.int/Meetings/TRIP-HongKong-2017/
Documents/1.HERNAN%20LONGO.pdf
THIRTEEN ATS ROUTES AVAILABLE
PRE-AVIATION PROHIBITIONS
Source: Qatar Civil Aviation Authority
Figure 1
TWO ATS ROUTES AVAILABLE
POST-AVIATION PROHIBITIONS
Source: Qatar Airways
Figure 2
SEVEN ATS ROUTES AVAILABLE AS
OF 4 FEBRUARY 2019
Source: Qatar Civil Aviation Authority
Figure 3
Annex 1
ICAO Assembly, Resolution A15-7: Condemnation of the Policies of Apartheid and Racial
Discrimination of South Africa, ICAO Doc. 8528 (22 June-16 July 1965)
Annex 1
RESOLUTIONS .
ADOPTED BY THE ASSEMBLY
AND
INDEX TO DOC:UMENTATION
FIFTEENTH SESSION OF THE ASSEMBLY
Montreal, 22 June - 16 July 1965
Issued by authority of the Secretary General
Doc 8528
AIS-P /6
INTERNATIONAL CIVIL AVIATION ORGANIZATION
Annex 1
Published in separate English, French and Si,amsh editions by the International Cloil Aviation
Organi:;alion. AU correspondence, e,:cept orders and subscriptions, should be addre$sed to the
Secretary .General of !CAO, International Aviation Building, 1080 Univer$ity Street, Montreal 3
(Quebec), Canada.
Orders for this publication should be sent to one of the following addresses, toget her with
the appropri,\tc remittance (by bank draft .or post office money order)·in U.S. dollar s or
the currency of the countr;y in which the order is placed or in a freely convertible currency :
Regional Offices
Fran4;e: Represel)tant de l'OACI; Bureau
Europe, 3b••. villa Emile-Bergerat; Neuillysur-
Seine (Seine).
Peru: Represeotantc de la OACI, 06cina
Sudamcrica, Apartado 4127,' Lima.
Senegal: Representant de l'OACJ', Bureau
Afrique, Boit.e post.ale 2356, Dakru-.
Thailand: ICAO Representative, Far East
and Paci6c Office, P.O. Box: 614. Bangkok.
United Arab Republic: ICAO Representative,
Middle East and Eastern African
Office, 16 Hassan Sabri, Zamalek, Cairo .
Sales Agencies
Argentina: Editorial Sudamericana S.A.,
· Calle Alsina 500, Buenos Afres.
Australia: Robertson and Mullens, 107 Elizabeth
Street, Melbourne, C. 1.
Canada: Department of Public Printing
and Stationery, Ottawa (Ontario).
India: Oxford· Book & Stationery Co.,
Scindia House, New Delhi or 17 Park Street,
Calcutta.
J\lexico: Editorial Hennes S.A., Ignacio
Mariscal 41, M~xico 4, D.F.
New Zealand: Government Printer, Government
Printing Office, 20 Molesworth Street,
Wellington.
United Kingdom, Her Majesty's Stationery
. Office, P.O. Box 569, London, S.E. L
International Civil Aviation Organization (Attention: Distribution Officer),- International
Aviation Building, 1080 University Street, Montreal 3 (Quebec), Canada.
Do you receive
the ICAO BULLETIN?
The ICAO Bulletin contains o concise account of the activities
of the Organization as well os articles ol interest to the oeronol.
ltico/ world.
The Bulletin will olso keep you up to dote on the latest /CAO
publications, their. contents, amendments, supplements, corrigenda,
and prices.
A,ailoble in lhreo ••parole editions: English, F,ench · and Spon;,h,
Annual subsc,iplian: U.S. $2.00. ·
Annex 1
(i)
TABLE OF CONTENTS
Items Considered. and Acted upon by the Fifteenth Session of the
Assembly ••••••••••••••••••••••••• , , • • , • • , , • • • • • • • • • • • • • • • • • • • • • • • •
Agenda for the Session ••• ; ••••••• · ••••••••• .-. ~ ••••••••• · ••••••••••••••
Delegations of States and Organizations Represented•·••••••••••••·•
1
5
9
Resolutions Adopted ....•.•.........••.••.••.•••••••..•••.•••..••• •... 23
Al5-l Participation by ICAO in Programmes for the Exploration and
Use _of Ot,tter _Space ••••••••••••••••.••• •:•.............. •. • • • • 23
Al5-2 Classification and Consolidation of Assembly Resolutions
Still·in Force•••••••••••••••••••••••••••••••••••••••••••• 24
Al5-3 Discharge by Contracting States of Financial. Obligations to·
the Organization ••••••• ; •••••••••••••••• ~ .' •••••••••• ·• ~.... 24
A15-4 ICAO's Activ,ities and Policy on Technical Assistance . 25
Al5-5 Economic and Financial Aspects of.the Implementation of
Region~l Plans ~-• ...•• ·• ••••.••.•..•• •·. •·•·~• . • • • • . . • . • . . . . • • • . 27
Al5-6 Forecasting of Maj?r Trends and Develo~ments in International
Civil Avi"ation over the Next Fifteen Tears•·••••••••••••••• 28
Al5-7 Condemnation of the Polici.es of Apartheid and Racial Discrimination
of South Africa ••••••. • ••••••••••••••••• ~.......... 29
Al5-8 Consolidated Statement of Continuing ICAO Policies Related
Specifically to Air Navigation••••••·•••··•••·•••·••••••••• 29
- Appendix A: Air Navigation Commission Technical Project
List .(ANCP) • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 30
- Appendix B: Air Navigation Meetings of World-wide Scope •• 31
- Appendix C: Regional Air Navigation (RAN) Meetings••••••• 33
- Appendix D: Panels of the Air Navigation Commission••••·• 35
- Appendix E: Formulation of Standards and Recommended Practices
·(SARPS) and Procedures for Air Navigation
Services (PANS) •·••••••·•·•••·••·••••••••••••• 35
Annex 1
Al5-9
(ii)
Appendix F: Formulation of Regional Plans and Regional
Supplementary Procedures•••••••••••••••••••••••• 37
- Appendix G: I11tplementation of Standards and Recommended
Practices {SARPS) and Procedures for Air Navigation
Services (PANS) ••••••••••••·•••••••••·••••• 39
- Appendix H: Implementation of Regional Plans and Regional
Supplementary Procedures •••••.•••••• • •.• ••••• •... 4o
- Appendix I: Av1ation Training••••••••••••••••••••••••••••••• 42
- Ap~endix J: Collection and Dissemination of Information••••• 45
- Appendix K: The Technical Secretariat ••••••••••••••••••••••• 45
- Appendix L: Units of Measurement•••••••••••••·••••••••·•·••• 47
Appendix M: Co-ordination of Civil and Military Air Traffic • 47
- Appendix N: Certificates of Airworthiness, Certificates of
Competenc7 and Licences of Flight Crews••••••••• 48
- Appendix O: The Provision of Adequate Aerodromes•••·••··•••• 49
- Appendix P: Accident Investigation •••• · •• , ••••.•••••••..••• ■ • 50
- Appendix Q: Provision ·of Spare Parts and Spare Components for
Gtround Equipn,.ent • • • • • • • • • • • • • • • • • • • • . • . • • • • • • • • • 51
Appendix R: Ground and Flight Testing of_ Radionavigation Aids 51
- Appendix S: Adequate ConditiollB of Emplo;yi11ent for Aviation
Ground Personnel•••·••·•••••••··••·••••••••••••• 52
- Appendix T: Delineation of Air Traffic Services Areas Extend-
:i.ng over National Boundaries•••••••••••••••·•••• 53
- Appendix U: Co-ordination of National Research and Develop-
1mrenWt ork in the Fields of Telecommunications and
.Navigational Aids ••• •. ■• •.............. .. • • .. • • • • • .5'+
Appendix V: Perticipation by States in the Technical Work of
ICAO •••••••·•••••••••••••~•••••••••••••••••••••• 55
Preparation for Future Sessions of Current Consolidated Statements
of Continuing ICAO Policies Related Specifically to Air Navigation 55
AI5-IO Regional Planning Relative to Ability to Implement ••••••••••·••• 56
Al5-ll Study of Region1tl Structure and Planning Processes•••••••••••••• 56
A15-l2 Measures to Facilitate Implementation of $ARPS Emd PANS •••••• , • • 57
Al5-13 Guidance on Relative Priorities for Production of Maps 57
Annex 1
Al.5-14
Al5-15
Al5-16
Al.5-17
Al5-18
Al5-19
Al5-20
Al5-21
Al5-22
A15-23
Al5-24
Al5-25
Al5-26
Al5-27
A15-28
Al5-29
Al5-30
Al5-31
(iii)
Unification of Units of Measurement ·• •••••••••••••• · •••••
Consideration of the Needs of International General
Aviation in Relation to the Scope of ICAO Technical
Activities••• .. ••••••••••••••••••••••••••••••••-••·••••••
Multiple Taxation in the _Field of International Air
Tran.sport •••••••••••••••••••••••• ·• • • • • • • • • • • • • • • • • • • • • • 59
Development of ·International Air ·Passenger Travel ••••••
~-r· Transport. Conferences •••••••••••••• ,- •••••.•••••••••
General Policy on Regional Co~ordinatio~ of Air
Transport ••••• ~ .-••• -: •·• .•••• •·• ••..•.••.•.••.... ~ •.... •. •
Expert Air Transport Assist'ance for the ·Regional 'Offices
Economic Implications of Co-operative Agreements•••••••
Statistics of Non-commercial Aviation ••••••••••••••••••
Activities in the Field of Facilitation••••••••••••••••
Pensionable Remuneration at Gross Salary Rates
Supplementary Budget 1965 ••••••••••••••••••••••••••••••
Budget 1966
Budget 1967
Budget 1968
Approval of the Accounts of the Organization for the
Financial Years 1962, 1963 and 1964 and Examination
60
6o
61
62
63
64
64
66
66
68
70
72
of the Audit Reports Thereon•••••••••••••••••••••••··•• 75
Approval of the Technical Assistance Accounts for the
Financial Years 1962, 1963 and 1964 and of the Audit
Reports Thereon••••••••••••••••••••••••••••••·••··••••·
Approval of the United Nations Special Fund Accounts
for the Financial Years 1962, 1963 and 1964 and the
Audit Reports Thereon •••••••••••·••••••••••••••·•••·••o
75
Annex 1
Al5-33
Al5-34
Al5-35
Al.5-36
Al5-37
Al5-38
. (iv}
Confirmation of Council Action with Respect to the Assessments
of Trinidad and Tobago, Jamaica, Algeria, Rwanda,
Somalia, Yemen, Kenya, Malawi, Zambia, Malta and Togo••••••••
Reduction of the Assessment of the Czechoslovak Socialist
Republic for the Year 1965 ••••••···••••••••,••••••••·••··•·••
Apportionment of the Expenses of ICAO among Contracting
States for 1966, 1967 and 1968 •••••••••••••••••••~·•·••••••••
Principles to be Applied in the Preparation of Draft Scales
of AssesB111ents for 1969, 1970 and 1971 ••••••••••••••••••• , ••• ·
Further Implementation of the Principle that the Contribution
to be Paid by Any One Contracting State Should Not, in My One
Year, Exceed ~ t~f the To~al Contributions Assessed , •••••• , •
Wor~ng Capital FUnd ••••••••••••••••••••••••••··••·••••••••••
Report on the new premises for the European Offices••••••••••
76
77
78
Bo
81
81
82
List of Documents and Working Papers Considered or Produced by the
Fifteenth Session of the Assembly•••••••••••••·•••••••••••••·•····••••••• 83
Index of Documentation of the Assembly, 15th Session••••••••·•·••··•··••• l<:fl
Annex 1
- 29 -
THE ASSEMBLY:
(1) REQUESTS the Council to prepare and maintain, as necessary, longterm
and medium-term forecasts of future- trends and developments
in civil aviation of both a general and a·specific.kind, including,
.where possible, regional as well as global data, and make these
available to contracting States. In so doing, the Council should
consult with other organizations as appropriate;·
(2) AGREES that this serves the most important purpose of Resolving
Clause 3 of Resolution Al0-7, which is hereby superseded.
Al5-7: Condemnation of··the Policies of Aoartheid arid Racial Discrimination of
.South Africa
CONSIDERING that the apartheid policies of South Africa were condemned
on several occasions by the United Nations Organization and
particularly in General Assembly Resolutions 1761 (XVII) of
6 November 1962 and 1904 (XVIII) of 20 November 1963;
BEARING IN MIND that the apartheid policies constitute a permanent source of
conflict between the natioi:is and peoples of the world; and
RECOGNIZING,furthermore,that the policies'of apartheid and racial discrimination
are a flagrant· violation of the principles enshrined
in the Preamble to the Chicago ConvencH ,....,, ·
THE ASSEMBLY:
(1) Strongly CONDEr<'.NS the apartheid policies of. _South Africa;
(2) REQUESTS all nations and peoples of the ~orld to exert pressure
on South·Afr-ica to abandon its apartheid policies; and
(3) URGES South Africa to comply with the aims and objectives of the
Chicago Convention.
Al5-8: Consolidated Statement of Continuing ICAO Policies Related Specifically
to Air Navigation •
WHEREAS a statement of continuing Assembly policies related specifically
to air-navigation as they existed at the commencement of the 14th.
Session of the Assembly was adopted by that Session in Resolution
Al4-2A Appendices A to P inclusive;
WHEREAS certain Resolutions of the 14th Session of the Assembly contained
policy pronouncements affecting that statement;
Annex 2
ICAO Assembly, Resolution A18-4: Measures to be taken in pursuance of Resolutions 2555 and
2704 of the United Nations General Assembly in relation to South Africa ICAO Doc. 8958 (15
June-7 July 1971)
Annex 2
RESOLUTIONS
ADOPTED BY THE ASSEMBLY
AND
INDEX TO DOCUMENTATION
ll1 --~~-
~ C-.J7~~
4ooO~
ASSEMB-LYE IGHTEENSTEHS SION
Vienna, 15 June - 7 July 1971
Issued by authority of the Secretary General
Doc 8958
A18-RES
INTERNATIONAL CIVIL AVIATION ORGANIZATION
Annex 2
Published in separate English, French and Spanish editions by the International
Civil Aviation Organization. All correspondence, except orders and subscriptions,
should be addressed to the Secretary General of /CAO, International Aviation
Building, 1080 University Street, Montreal 101, Quebec, Canada.
Orders for this publication should be sent to one of the following addresses, together with the
appropriate remittance (by bank draft or post office money order) in U.S. dollars or the currency
of the country in which the order is placed or in a freely convertible currency:
Australia: Robertson and Mullens, 107
Elizabeth Street, Melbourne 3000.
Canada: Information Canada, Ottawa, Ontario.
France: Representant de l'OACI, Bureau
Europe, )bis, villa Emile-Bergerat, Neuillysur-
Seine (Seine}.
India: Oxford Book and Stationery Co.,
Scindia House, New Delhi or 11 Par.k Street,
Calcutta.
Jap-.in: Japan Civil Aviation Promotion
Foundation, No. 38 Shiba Kotohira-Cho,
Minato-Ku, Tokyo.
Peru: Representante de la OACI, Oficina
Sudamerica, Apartado 4127, Lima.
Senegal: Representant de l'OACI, Bureau
Afrique, Boite postale 2356, Dakar.
Sweden: C. E. Fritzes Kungl. Hovbokhandel,
Fredsgatan 2, Box 16356, Stockholm 16.
Thailand: JCAO Representative, Far East
and Pacific Office, P.O. Box 614, Bangkok.
United Arab Republic: !CAO Representative,
Middle East and Eastern African
Office, 16 Hassan Sabri, Zamalt:k, Cairo.
United Kingdom: Her Majesty's Stationery
Office, P.O. Box S69, London, S.E. t.
International Civil Aviation Organization (Attention: Distribution Officer), International Aviation
Building, 1080 University Street, Montreal 101, Quebec, Canada.
Do you receive
the ICAO BULLETIN?
The ICAO Bulletin contains o concise account of the activities
of the Organization as well as articles of interest to the aeronautical
world.
The Bulletin will also lceep you up to date on the latest /CAO
publications, their contents, amendments, supplements, corrigenda,
and prices.
Available in threa .eparate editions: English, French and Spanish.
Annual subscription: U.S. $9.DO (surface mail); U.S. $17.00 lair mail I.
Annex 2
(i)
TABLE OF CONTENTS
Items Considered and Acted upon by the Eighteenth Session of the Assembly
Agenda for the Session
Delegations of States and Organizations represented
Resolutions Adopted
Al.8-1 Assembly Resolutions no longer in force
Al.8-2 Amendment to Article 56 of the Convention increasing the
membership of the Ai'r Navigation Commission to fifteen .
Al.8-3 Ratification of th~ -Protocol amending Article 56 of the
Convention ......
1
5
9
25
25
26
28
Al.8-4 Measures to be taken in pursuance of Resolutions 2555 and 2704
of the United Natio~s General Assembly in relation to South Africa 28
~
Al.8-5 Premises for ICAO Headquarters in Montreal 29
Al.8-6 Services of the Joint Inspection Unit 29
Al.8-7 Discharge by Contracting States of Financial Obligations
to the Organization 30
Al.8-8 Technical Assistance 31
Al.8-9
Al.8--10
. Al.8-11
Speedy Adoption and Ratification of a Convention on Acts of
Unlawful Interference with International Civil Aviation other
than Acts of Unlawful Seizure of Aircraft
Additional Technical Measures for the Protection of the
Security of International Civil Air· Transport
ICAO Position at the International Conference on the Problems
of the Human Environment (Stockholm, June 1972) . . . , .
Al.8-12 Development of Standards, Recommended Practices and Procedures
and/or Guidance Material relating to the Quality of the Human
Environment
Al.8-13 Consolidated Statement of Continuing Policies Related
Specifically to Air Navigation ........ .
- Appendix A: Air Navigation Meetings of World-wide Scope,
- Appendix B: Regional Air Navigation (RAN) Meetings . , .
34
35
36
37
38
39
40
Annex 2
( .. \
1.1.,
- Appendix C: Pa.nels of the Air Navigation Commission (ANC) . • • 42
- Appendix D: Formulation of Standards and Recommended Practices
(SARPS) and Procedures f or Air Navigation Services
(PANS) . . . • . • . . . . . . • . . 42
- Appendix E: Formulation of Regional Plans and Regional Supplementary
Procedures • . . . . . . . . . . 44
- Appendix F: Implellll!ntation of Standards a.nd Recommended Practices
(SARPS) and Procedures for Air Navigation Services
(PANS) . . . . . . . . • • . . . 45
- Append.ix G: Implementation of Regional Plans 46
- Appendix H: ·Aviation Training
- Appendix I: The Readquarters and Regional Offices Tech ni cal
Secretariat . . . . .
- Appendix J: Units of Measurement •· ,I •
- Appendix K: Co-ordination of Civil and Military Air Traffic
- Appendix L: Certificates of Ainiorthiness, Certificates of
Competency and Licences of Flight Crews
- Appendix M: The Provision of Adequate Aerodromes
- Appendix N: Ground and Flight Testing of Radionavigation Aids
- Appendix 0: Adequate Conditions of Employment for Aviation
- Appendix P:
Ground Personnel •......
Delineation of Air Traffic Services Areas
Extending over National Boundaries
- Appendix Q; Co-ordination of National Research and Development
Work in the Fields of Telecommunications, Naviga..
50
51
52
53
54
55
55
tional Aids and Aerodrome Services . . . . . • 57
- Append.ix R: Participation by States in the Technical Work
of ICAO . . . . . 57
- Appendix S: ICAO Technical Manuals 58
A18-14 ICAO Technical Manuals
Al8-15 Unification of Units of Measurement
59
60
Annex 2
( iii)
A18-16 Problems arising out of the Lease. Charter and Interchange of
Aircraft in International OP.erations .••
AlB-17 International Air Transport Fares and Rates Studies
A18-18 Tar i ff Enforcement •.. , , . •
AlB-1 9 Study of Possib le Development of ICAO Traffic Flow St atistics.
A18-20 .Regional Air Transpor t Studies .
AlB-21 Air Transport Work i n the Regions - General Policy
Al8-22 Supplementary Budget 1971
Al8-23 Budgets 1972, 1973 and 1974
Al8-24 Principles to be applied in the determination of scales of
assessment (minilllUlll assessment) • . . , • . • • • . . • ,
Al8- 25 Principles to be app lied in the determination of scales of
as se,s sment (maximum assessment) •.•...•...•• .
i
A18- 26 Apportionment ?f the Expenses o f ICAO among Contracting ,States
AlB-27 Supplement a ry Approp riation Limits
Al8-28 Working Capital Fund ..•..
AlB-29
AlB-30
Al8-31
Confi rmation of Council Act ion with respect to the Assessments
of the Hungarian People's Republic, the People's Derocra tic
Republ i c of Ye men, Mauritius and the Unio n of So viet Socialist
Republics ... • • • • , • • • • · • ·
Approval of the Accounts of t h e Organization for the Financial
Years 1968, 1969 and 1970 a.nd examination of the Audit Reports
thereon . . . . • . . • • • . • . . • • . • , . . .
Approval of the Financial Statements of the United Nations
Development Programme for the Fin an cial Years 1968, 1969
and 1970 a.nd examination of the Audit Reports thereon
List of Documents and Working Papers Consi dered or Produced by the Eighteenth
60
62
62
63
64
64
66
67
69
70
73
74
76
76
77
· Se s sion of the Assembly . . . . • . . . • 79
Index of Documentation of the Assembly, 18 th Sess ion 95
Annex 2
Al8-4:
- 28 -
Ratification of the Protocol amending Article 56 of the Convention
WHEREASth e Assembly has decided to a.mend Article 56 of the Convention
to provide for an increase in the size of the Air Navigation
Commission; and
WHEREJ.S the Assembly is of the opinion" that it is highly desirable that
the aforesaid amendment should come into force before the new
membership of the Commission is appointed in December 1971;
THE ASSEMBL;Y
(1) RECOMMENDtoS all Contracting States that they ratify the amendment
to .Article 56 as soon as possible, preferably before l December 1971,
so as to enable the Council to elect the members of the expanded
Commission before l January 1972;
(2) DIRECTS the Secretary General to bring this resolution immediately
to the attention of Contracting States, with the objective mentioned
above.
Measures to be tak.en in pursuance of Resolutions 2555 and 2704 of the United
Nations General· Assembly· in relation· to South Africa
THE ASSEMBLY,
HAVINGC ONSIDEREDW orking Paper Al8-WP/47 EX/13 and Resolutions 2555 and
2704 of the General Assembly of the Unit ed Nations regarding the
Government of South Africa;
BEARING IN MIND Resolution 2671 of the United Nations General Assembly
which, among other things, calls upon St ates "to prohibit airlines
and shipping lines registered in their countries from providing
services to and from South Africa and to deny all facilities to
air flights and shipping services to and from South .Africa";
RECALLING its condemnation of·the apartheid policies in South Africa
in Resolution Al.5-7;
RECOGNIZINGth e need for maxi.mum co-operation with the United Nations
General Assembly in implementing its Resolutions;
(1) RESOLVES that as long as the Government of South Africa
continues to violate the United Nations General Assembly
resolutions on apartheid and on the Declaration on the Granting
of Independence to Colonial Countries and Peoples:
(a) South Africa sha1l not be invited to attend any meetings
convened by ICAO, except as provided in Articles 48(b),
53 and 57(b) of the Convention;
(b) South Africa shall not be provided with any ICAO documents
or communications except (i) in cases where the Convention
specifically requires that such documents or communications
be provided and (ii) documents for meetings which South
Africa is permitted to attend;
(2) DECLARES that in case of conflict between the present Resolution
and any other Assembly resolution, the present Resolution shall
prevail.
Annex 3
ICAO Council, Action of the Council: Seventy-fourth Session, ICAO Doc. 8987-C/1004 (8 July
1971, 27-29 July 1971, 28 Sept.– 17 Dec. 1971)
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 4
ICAO Council, 74th Session, Minutes of the Second Meeting, ICAO Doc. 8956-C/1001
(27 July 1971)
Annex 4
- 21 -
Doc 8956-C /1001
C-Min. LXXIV /2
(Closed)
31/8/71
COUNCIL - SEVENTY-FOURTH SESSION
Minutes of the Second Meeting
(The Council Chamber, Tuesday, 27 July 1971, at 1000 hours)
CLOSED MEETING
President of the Council : Mr. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary General
PRESENT:
Argentina
Australia
Belgium
Brazil
Canada
Colombia
Czechoslovak
Socialist Republic
- Com . R. Temporini
- Dr. K. N. E . Bradfield
- Mr. A. X. Pirson
- Col. C. Pavan
- Mr. J.E. Cole (Alt.)
- Major R. Charry
- Mr . Z. Svoboda
Federal Republic - Mr . H . S. Marzusch
of Germany (Alt.)
France - Mr. M. Agesilas
India - Mr. Y. R. Malhotra
Indonesia
Italy
Japan
- Mr . Karno Barkah
- Dr. A. Gucci
- Mr. H. Yamaguchi
ALSO PRESENT:
Dr. J. Machado (Alt.)
Mr. E. G. Lee (Alt.)
Mr. B. S. Gidwani (Alt.)
Mr. M. Garc1a Benito
(Alt.)
Mr. N. V. Lindemere
(Alt.)
- Brazil
- Canada
- India
- Spain
- u. K.
Mr. F. K. Willis (Alt.) - U.S.
Mr. N. A. Palkhi vala - India
(Chief Counsel)
Mr. Y. S. Chitale (Counsel) - India
Mr. I. R. Menon i(Assistant . - India
Counsel)
Mr. S.S. Pirzada (Chief - Pakistan
Counsel)
Mr. K. M. H. Darabu - Pakistan
(Assistant Counsel)
Mr. A. A. Khan (Ohs.) - Pakistan
Mr. H. Rashid (Obs.) - Pakistan
Mr. Magsood Khan (Obs.) - Pakistan
H. E. A. B. Bhadkamkar - India
(Agent)
H. E. M. S. Shaikh - Pakistan
(Agent)
Mexico - Mr. S. Alvear Lopez
(Alt.)
Nigeria - Mr. E. A. Olaniyan
Norway - Mr. B. Grinde
Senegal - Mr. Y. Diallo
Spain - Lt. Col. J. Izquierdo
Tunisia - Mr. A. El Hicheri
Uganda - Mr. M. H. Mugizi (Alt.)
Union of Soviet - Mr. A. F. Boriso v
Socialist Re -
publics
United Arab - Mr. H.K. El Meleigy
Republic
United Kingdom - A/V /M J. B. Russell
United States - Mr . C. F. Butler
SECRETARIAT:
Dr. G. F. Fitzgerald
Mr. D . S. Bhatti
Miss M. Bridge
- Sr. Legal Officer
- Legal Officer
- cso
Annex 4
C-Min. LXXIV/2
(Closed)
- 22 -
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Settlement of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani
Aircraft over Indian Territory
1. As decided on 12 June, this was a meeting to hear the parties on the
preliminary objection filed by India on Pakistan's application to the Council under
Article 84 of the Convention and Article II, Section 2 of the International Air
Services Transit Agreement ( "Case No. l") and its complaint under Article II,
Section 1 of the Transit Agreement ( "Case No. 2 11). The spokesman for India was
Mr. N. A. Palkhivala, the spokesman for Pakistan Mr. S.S. Pirzada, both acting
in the capacity of Chief Counsel for their respective countries. The whole of the
meeting was taken up with the presentation by Mr. Palkhivala of the preliminary
objection in Case No. 1.
2. The preliminary objection was, in essence, that Pakistan's application
was not competent and not maintainable and that the Council had no jurisdiction to
handle the matters contained therein. Two main grounds for this contention were
submitted.
3. The firsl ground was that there was no disagreement between India and
Pakistan over the interpretation and application of the Convention and the Transit
Agreement because these two instruments were inoperative between the two countries.
India regarded the Convention - and with it the Transit Agreement, whose existence
was dependent upon it - as suspended or terminated between herself and Pakistan by
the latter's conduct, which, so far as India was concerned, was directly contrary
to the Convention's basic purpose: promotion of the safe and orderly development
of international civil aviation. Alternatively, the Convention and Transit Agreement
could be considered as suspended or terminated between the two countries by India's
action in suspending the flight of Pakistani aircraft over Indian territory, action
India was entitled to take under two fundamental principles of general international
law most recently confirmed by the International Court of Justice in its advisory
opinion of 21 June 1971 on the legal consequences for States of the continued presence
of South Africa in Namibia (South West Africa).
4. The first of these principles was that it was the sovereign right of a State
to terminate a treaty even if the treaty made no provision for termination; a State
challenging the exerci sc of that right must be able to point to some specific provision
of the treaty denying it, and there was no such provision in the Convention or the
Transit Agreement. The second principle, embodied in Article 60 of the Vienna
Convention on the Law of Treaties, was that a material breach of a treaty by one of
the parties - in other words, a repudiation of the treaty not sanctioned by the Vienna
Convention or the violation of a provision essential to the accomplishment of the object
or purpose of the treaty - was grounds for a State specially affected by it to suspend
the operation of the treaty in whole or in part in the relations between itself and the
Annex 4
- 23 - C -Min. LXXIV / 2
(Closed)
defaulting State. There could be a dispute between the defaulting and the affected
State over whether the suspension was justified, but there was no provision in the
Convention or Transit Agreement giving the ICAO Council jurisdiction to deal with
that kind of dispute. As noted by the ICAO Assembly at its first session (Resolution
Al-23), the power of the Council to act as an arbitral body was much more
restricted under the Convention than it had been under the Interim Agreement, being
limited to disagreements relating to the interpretation or application of the Convention
and its Annexes. Moreover, the composition of the Council did not make it an
appropriate forum for dealing with such complicated questions of fact and law as
were involved in the present case. In this connection Mr. Palkhivala read into the
record paragraphs 16 to 24 of the preliminary objection.
5. He then denied Pakistan's affirmation that Articles 54, 89 and 95 of the
Convention made the Council competent to deal with the application. He argued
that the relevant provisions of Article 54, (j) and (k) dealing with infractions of the
Convention, were applicable only if the Convention was in operation between the
State alleged to have committed an infraction and the State complaining about it.
Article 89, which recognized the freedom of action of States in times of war or
national emergency, was irrelevant to the present case, having nothing to do with
the right of termination for material breach. Article 95, dealing with denunciation
of the Convention, was also irrelevant; India had no wish to withdraw from the
Convention, repudiating her obligations and privileges under that instrument vis-a.vis
all Contracting States; she wanted only the suspension of its operation in relation
to one State.
6. Mr. Palkhivala next dealt with three of the points in Pakistan's reply to
the preliminary objection. He claimed that the first - that "application" included
termination and suspension - was a clear misuse of the language and a reflection
upon the competence of the drafters of the Convention; moreover, the International
Court of Justice, in the Namibia case, had accepted the argument of the United
States counsel that there were three distinct types of disagreements relating to
international treaties: disagreements over interpretation, disagreements over application,
and disagreements over termination. He declared that the second point -
that India had applied the Convention and Transit Agreement between itself and
Pakistan since the cessation of the 1965 hostilities - was incorrect: there had been
no scheduled or non-scheduled air services between India and Pakistan since 1965;
the right accorded by Article 5 of the Convention to make non-traffic stops had been
completely denied; and overflights had been only by specific permission, which was
directly contrary to Article 5; if Pakistan had a complaint, therefore, it should
have been made in 1965. The third point - that there was no right to terminate an
agreement unless the agreement provided for it - was contrary to the opinion of
the International Court of Justice, which, incidentally, was an appellate tribunal in
disputes referred to the Council under Article 84 of the Convention.
Annex 4
C-Min. LXXIV /2
(Closed)
- 24 -
7. Th s cond ground .for th pr liminary objection was that since 1965
overflights of Indian and Pakistani aircraft had been cov r d 1 y a special regime,
not by the Convention and Transit Agr m nt. In support of this contention, Mr.
Palkhivala read the two notifications annex d to the preliminary objection; the first,
dated 6 Septemb r 1 65, direct d that no aircraft regist r d in Pakistan or belonging
to or op rated by the gov rnm nt or nationals of that country should be flown over
any portion of India; the s cond, dat <l 10 F bruary 1966, after the Tashkent Declaration,
amended this di r cti v by adding " ·c pt with th p rmission of the Central
Gov rnment and in accordance with th t rms and conditions of such p rmission".
Th r was no agre n-1 nt to arbitration by Lhe Coun il in the venl of a disagreement
arising under this special regim and th r for, th Council had no jurisdiction in the
matter brought be.for it by Pakistan.
8. Mr. Palkhiv la had not complet d his pr ~s ntation at the luncheon break.
Annex 4
- 25 - C-Min. LXXIV /2 (Closed)
D15CUSSION
Subject No. 26: Settlement of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani Aircraft
over Indian Territory
1. The President: The Council is in session. This is the second meeting
of the 74th Session, Some Council merribers have modified their representation
for today's meeting, so I will give an· indication of how things stand. Canada is
today represented by the two Alternates to Mr. Gourdeau - Mr. Cole and Mr. Lee.
The United States has an Adviser, Mr. Willis, Uganda is represented by the
Alternate to Mr. Wakida - Mr. Mugizi. In addition to the permanent Representative,
Mr. Malhotra, and his Alternate, Mr. Gidwani, we have, as representatives
of India, the Agent - His Excellency Mr. Bhadkamkar, and the Chief Counsel,
Mr. Palkhivala, who is assisted by Mr, Chitale and Mr. Menon. For Pakistan
we have the Agent - His Excellency Mr. M. S. Shaikh, the Chief Counsel -
Mr. S.S. Pirzada, and, as assistant to Mr. Pirzada, Mr . Darabu. Pakistan
as a State also has as representatives Mr. Aftab Ahmed Khan, Mr. Rashid and
Mr. Magsood Khan.
2. It will be recalled that the Council had established the 11 th of July
1971 as the date for the filing of the counter -memorials in Cases No. 1 and No. 2,
India/Pakistan. Meanwhile, on the 1st of June 1971 preliminary objections were
filed by India on Cases No. 1 and No. 2. On the 12th of June 1971, in Vienna,
the Council decided that it would hold a meeting on the 27th of July, today, and
more meetings, if necessary, in order to hear the parties on the preliminary
objection. The Secretary General subsequently circulated a reply by Pakistan,
in English under memorandum of 7th July and in French and Spanish under
memorandum of 9th July.
3, We shall now go to the first point on the Order of Business, which is
the hearing on Case No. 1, and I should mention that by error the reference
d_ocuments have been listed in a somewhat miKed up order. If you follow the
chronological order, the one that should have been listed first is the memorandum
of the Secretary General dated 3 June 1971 circulating the preliminary objection
of India. The others follow in the order in which they are listed now.
Annex 4
Annex 4
- 27 - C-Min. LXXIV /2 (Cluseu)
the case of the Convention, three types of disputes in the case of the Transit
Agreement, but in neither case can the fourth type, which is concerned with
termination, come before this honourable Council. This is the crux of the
case and I would appreciate the honourable members bearing in mind the clear
distinction which the words of the English language convey to anyone familiar
with the language. I am sure the distinction must be equally well brought out
in the translations of these treaties, which are also authoritative texts.
8. If the honourable members have a copy of the Convention, may I
request them to be kind enough to refer to Article 84 to see what are the words
of this Article, which is the only Article conferring jurisdiction on this Council.
The words of Article 84 are:
"If any disagreement between two or more contracting States relating t o
the interpretation or application of this Convention and its Annexes
cannot be settled by negotiation, it shall, on the application of any State
concerned in the dis a greement, be decided by the Council. No member
of the Council shall vote in the consider at ion by the C ouncil of any dispu Ld
to which it is a party. Any contracting State may, subject to Article 85 ,
appeal from the decision of the Council to an ad hoe arbitral tribunal
agreed upon with the other parties to the disp~-;;-;- to the Permanent
Court of International Justice. Any such appeal shall be notified to the
Council within sixty days of receipt of notification of the decision of the
Council."
May I, with your leave, Mr. President, emphasize the opening words of this
Article - "any disagreement between two or more Contracting States relating
to the interpretation or application of this Convention". If the disagreement
pertains not to interpretation or application - the _two types of disputes which
are covered by the terms of the Article - but is a dispute of a third category
which is not covered by the words "interpretation or application", this honourabl e
Council would have no jurisdiction to deal with it.
9. Now one thing that is at the very basis of Article 84 is the continued
existence, the continued efficacy, the continued operation, of the Convention a s
between two States. If two States agree that the Convention continues as betwe c-1!
them - because every multilateral treaty is at the same time a treaty between
any two of the many States parties to it - and if a dispute arises between them,
it would be possible to say that it is a disagreement as to interpretation or
application. In other words, the concept of interpretation as well as the concep t
of application . contemplates and postulates the continu e d operational existence
Annex 4
C -Min. LXXIV /2 (Closed) - 28 -
of the agreement. If it continues to be in operation between two States, you can
interpret it, and if there is a disagreement as to interpretation, the Council will
decide. If the Convention continues to be in operation between two States, any
disagreement about how you apply it to existing facts can again be determined
by the Council.
10. However, if one State, as a result of the conduct or misconduct of the
other State, has chosen to terminate or treat as terminated this Convention
vis-a-vis the wrongdoing State, then this is a dispute as to termination of the
Convention by State A as against State B, and such a dispute cannot be considered
by anyone familiar with the English language as a dispute as to interpretation or
application, because in that case there is nothing to interpret; there is nothing to
apply. You do not have in operation between the two States a convention that
you can possibly interpret or apply. May I request the honourable members to
bear in mind - and my proposition I shall make good by reference to the opinion
of the World Court - that this power to terminate a convention or an international
treaty is a power which is dehors the convention or the treaty. It is outside the
convention or the treaty and it is a sovereign power which can be exercised by
a State. Perhaps a State may wrongly exercise the power of terminating an
international treaty. If it does so, and if there is an appropriate forum to which
you can go in order to get redress, that forum may decide the matter, but my
limited purpose is to show that whether another forum exists or not, which is
not the subject matter here, this honourable Council is not the forum before
which any State can bring the case that another State has terminated the agreement
and, in the view of the complaining State, wrongly done so. This kind of dispute
is a dispute as to termination, and when I come to a very important answer which
the representative of the United States gave to the World Court in the South Africa
case to which I will ·refer, you will find that the United States itself, in a very
clear and unequivocal answ~r, made the submission I am .making here: that the
power to terminate an agreement is a distinct, separate power, unconnected with
the question of application or interpretation.
11. May I request the honourable members to consider how these words
apply in practice. There may be some words in the Convention which are
ambiguous, capable of two meanings, at least in the view of one State. That
State may tell another State "I do not interpret the words this way. My interpretation
is 'X', your interpretation is 'Y'.",and if the parties do not agree as
to what is the right interpretation, this Council would decide what that inter -
pretation is. This is the meaning of "disagreement as to interpretation 11
•
Annex 4
- 29 - C-Min. LXXIV /2 (Closed}
12. Now between India and Pakistan there is no such dispute at all. It is
India's case, and in fact it is Pakistan's case, that India has terminated this
agreement. It is true that in the final reply Pakistan says "No, it is a case of
interpretation or application, which is a matter of legal submission.", but it
is categorically India's case that by Pakistan's misconduct - I am using the word
"misconduct" in the legal sense, and though the facts are not really relevant for
this preliminary submission, I shall deal with them very briefly in a few minutes
after I have finished the legal submission - the Convention has been terminated
by Pakistan qua India. Alternatively, if you were to hold that Pakistan has not
terminated the Convention qua India, India has terminated, or in any event
suspended, the Convention qua Pakistan. Whether we have done so rightly or
wrongly is a dispute pertaining to the termination of the agreement; it is not a
case of interpretation or application. If this is the real dispute between India
and Pakistan, there can be no question of interpretation. We are not interpreting
any article of the Convention at all. There is no word of the Convention
which is in dispute between India and Pakistan, India's case being that this
Convention stands terminated as between India and Pakistan.
13. If you will now look at the word ''application", as I read the English
language it means the way you apply the provisions of this particular Convention
to an existing set of facts. So long as this Convention continues in operation,
there may arise between two States a question about how a particular provision
should be applied to an existing set of facts. Now you cannot possibly apply the
Convention unless it is in operation. Application logically must presuppose that
the Convention is in operation. If it is in operation the question is how do you
apply it to an existing set of facts. If one State says "I apply it this way.", and
another State says "I apply it another way.", that would be a disagreement as to
application. To give you one simple example, under Article 5 aircraft of one
State not engaged in s.a.heduled international air services have the right to fly
into or non-stop across another State's territory or to make stops for non-traffic
pu~po~ •es.
14. Now in relation to an existing set of facts a dispute may arise over
whether a particular country wants to make a non-traffic stop or not, whether a
particular country is overflying non-stop across the territory or is claiming
some higher right. Then there are various other provisions about search of
aircraft, airport and similar charges, prevention of disease, etc. In relation
to a particular set of facts this difficult question of fact or law may arise:
"Are these provisions being correctly applied by one State or wrongly applied
by one State?" These are disputes as to application of the Convention to an
existing set of facts and since the Convention has . more than ninety Articles,
Annex 4
C -Min. LXXIV /2 (Closed) - 30 -
you can well imagine a number of questions which could arise in applying it to an
existing set of facts. The word "application" therefore presupposes the existence,
the operation, the efficacy of the Convention as between two States. But if you
do not have that and you have the question of termination - I am not troubling the
honourable members today with whether termination by India, or termination by
Pakistan as we say it was, was rightful or wrongful; if there was an appropriate
forum, we have no doubt that we would be able to prove to the hilt that, assuming
the termination was by India, it was rightful - but I am requesting them to accept
the submission, which is well founded in law, that since the dispute pertains to
termination, it cannot possibly be treated as a case of interpretation or application.
15. In this connection may I request you, having seen that under Article 84
of the Convention only two types of disputes can possibly come to the honourable
Council, disputes as to interpretation and disputes as to application, to turn to
the Rules for the Settlement of Differences approved by the Council in April 1957.
I shall refer to them hereafter as "the Rules". If you turn to Article 1, you will
see how very precisely even the Rules for the Settlement of Differences are
restricted to two types of differences - differences as to interpretation and
differences as to application.
II Article 1
The rules of Parts I and Ill shall govern the settlement of the following
disagreements between Contracting States which may be referred to the
Council.
(a) Any disagreement between two or more Contracting States relating
to the interpretation or application of the Convention on International
Civil Aviation".
I shall stop here because the rest of the Rule deals with something else. Then
there is a sub-clause (b) which says that these Rules apply to only two types of
disputes, disagreement as to interpretation and .. ~sagreement as to application.
The rest of the Rules will not come into operation 'Ulilless this first condition is
satisfied, namely that the dispute falls within the ambit of Article 1, Clause l(a)
of these Rules.
16. I have finished showing that under the Convention only two types of
disputes can go to the Council. May I now turn to the Transit Agreement to show
that three types of disputes can go to the Council: first a dispute as to interpretation,
second a dispute as to application and third a dispute arising from
action tak e n under the Transit Agreement. You will note that so far as the
Annex 4
- 31 - C-Min. LXXIV /2 (Closed)
Convention is concerned, unless the disagreement relates to interpretation or
application it cannot come before the Council, but action taken under the Transi t
Agreement is separately dealt with as a matter that can go before the Council.
In this connection may I request the honourable members to turn to the Transit
Agreement of December 1944, Article II, Section 2. It is couched in words
identical to those used in the Convention:
"If any disagreement between two or more contracting States relating
to the interpretation or application of this Agreement cannot be settled
by negotiation, the provisions of Chapter XVIII of the above-mentioned
Convention shall be applicable in the same manner .a.s provided therein
with reference to any disagreement relating to the interpretation or
application of the above -mentioned Convention."
Jh~ words are "interpretation or application."
17. Now the third type of di spute which can go to the Council is dealt
with in Section 1 of the same Articl e II:
"A contracting State which de ems that action by another contracting State
under this Agreement" - ma r k the words "under this Agreement" - "is
causing injustice or hardship to it may request the Council to examine
the situation. The Council shall thereupon inquire into the matter ancl
shall call the States concerned into consultation."
I need not read the rest. I am referring to this provision now only with a vie w
to giving a comprehensive picture of the limits of the jurisdiction of this
honourable Council. I shall refer to it in more detail when I come to the seco ~1d
case, the complaint of Pakistan. What I am emphasizing at the moment is
that Article II, Section 1 refers to a third type of disagreement or dispute which
can arise between States, pertaining to action taken under the Transit Agreeme n ·.
Now the words "action taken under this Agreement" harmonize with the inter -
pretation I have already put on the words "application or interpretation". Th e ,
three categories of dispute all postulate the continued operation of the Agree 1 •
Thus you have questions of interpretation, application and action under the
Agreement.
18. You have seen that the fourth type of dispute pertaining to termina .
i ·s nowhere made subject to this honourable Council's jurisdiction. Even in the
rules which deal with the Transit Agreement, you will find that the Council's
jurisdiction is restricted to cases of interpretation, a pplication and action u11d1::~
the Agreement. Of course, the Rules could not possibly confer a jurisdiction
Annex 4
C-Min. LXXIV /2 (Cloaed) - 32 -
f)a e
• Conv~ntlon.
_,......, ,.. y disagreeln.
fet-1~nta.t1on or
the
e:..½•T ransit
c!er th e
Transit Agreement is deal wt by e same Art! 1~ 1, Clauac6 t: Tile Rul es
of Parts II and m shall govern the consideration of any complaint re~rclin ' -
now mark the words - "an actlon taken by a tate party to e T sit Agre ment
and under that Agreement". Two conditions have to be fulfWed. First, actie>il
mum ,be ta.k by a ta.ta party to the Trailn Agreement tnd, s c bd, it must
be action under the. Agreement. This part of Article 1 of the R'u1 s a exhaustive
of the jurisdiction of the Tribunal to deal with cases arising under the Transit
emen~
Annex 4
- 33 - C-Min. LXXIV/2 (Closed)
to this treaty shall have no power to terminate it at any time or shall have the
power to terminate it only in certain ways. In other words, the power exists
dehors the treaty and it can only be taken away by express words of the treaty
and no other way. Now there are no express words of the Convention or of the
Transit Agreement which at all affect prejudicially, at all take away or abridge,
the sovereign right of a State to terminate the treaty.
21. The second proposition laid down by the World Court is that if one
State which is a party to an international treaty commits a material breach of
the treaty, the other party is not bound to sit idle, wring its hands and say
"Will you kindly be good enough to observe your obligatfons. 11 The other State
has the right to terminate the treaty itself on the ground that the wrongdoing
State cannot get away with the fruits of its wrong; if you have committed a
breach of your part of the treaty, I am entitled to terminate the treaty. This
is the international law.
22. Now a very difficult, sometimes very complicated, question will
arise: Has the State which has purported to exercise the right to terminate the
treaty done so f9r good grounds or bad grounds? The important point is that
whether the right of terminating the Treaty been exercised on good grounds or
bad grounds can only be determined by the forum which has the right to decide
the dispute pertaining to the termination. Such a forum is not this honourable
Council. There may or may not be other forums, and in fact this was the whole
case of South Africa. South Africa argued like this: we were given this mandate
over Namibia by the United Nations; this mandate is an international treaty - the
World Court accepted that position - and under this international treaty there
is no right to terminate the mandate. The International Court of Justice ruled
that there was a right to terminate the mandate and that it had in fact been
terminated on justifiable grounds, because South Africa had committed a breach
of its obligations under the treaty or mandate.
23. When you have this situation where the treaty itself has no provision
for termination, the World Court says that the power to terminate is outside
the treaty. Now may I ask you to consider whether there can be any flaw in
this logic: if this power to terminate an international treaty is outside the
treaty, is not to be found in the treaty itself, it must follow that a question as
to termination cannot be a question as to application or interpretation of the
treaty, because application means that you are trying to apply the terms of
an existing treaty and interpretation means that you are trying to construe the
terms of the treaty. If a State has chosen to exercise a power which is
outside the treaty, it is incomprehensible to a logical mind that its action can
Annex 4
C -Min. LXXIV /2 (Closed) - 34 -
be a case of application or interpretation. The Counsel for the United States, who
strongly argued and argued in memorable words, if I may say so, put this point
clearly beyond doubt and the World Court accepted it. He argued that there are
three distinct types of cases, cases of interpretation, cases of application and
cases of termination. He made cases of termination a third category and the
World Court accepted that view.
24. The submission of South Africa that as there was no provision for
termination the mandate could not be terminated was rejected. May I refer you
to the Reports of Judgements of the International Court of Justice, 1971, the opinion
given on 21st June 1971. I shall read slowly, because honourable members do
not have the book before them. The heading of the opinion is "Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970). 11 May I refer
you to pages 46 - 49 of this volume of the Reports. I shall read slowly in order
that the very important words of the judgements may not be lost sight of. I am
reading from page 46, paragraph 91: "One of the fundamental principles governing
the international relationship thus established is that a · party which disowns or
does not fulfil its own obligations cannot be recognized as retaining the rights
which it claims to derive from the relationship. 11 In other words, if one State
does wrong and makes civil aviation impossible for me - I am not going into
facts because this is not the forum where the facts can be gone into, but assume
hypothetically that a State has acted in such a way that my overflying that State's
territory is unsafe - that destroys the very objective, the very purpose, of the
Convention and the Transit Agreement. If because of that I terminate the
agreement, I have terminated it rightfully. Suppose I get panicky and hastily
jump to the conclusion - I will assume wrongly jump to the conclusion - that
my overflying the territory of the other State is unsafe. Suppose that the view
I have taken is an unduly apprehensive one and the correct view should be that
it is all right for me, it is safe enough for me, to overfly, then I have wrongfully
terminated the agreement. But whether I have terminated it rtghtfully or wrongfully
is a dispute as to termination. That is the important point. Honourable members
may kindly note that I am not trying to shirk the issue whether my termination
was rightful or wrongful. I say it was perfectly rightful, but it is necessary to
lay down the correct law as to the limits of the honourable Council's jurisdiction,
Therefore without having any apprehension in my mind as to whether on merits
I would succeed or not - I have no apprehension whatever; we are confident that
we would be able to establish to the hilt that our termination was rightful if it
becomes necessary to do so - but assume it was wrongful, it is still not a case
of application or interpretation of the agreement.
Annex 4
- 35 - C-Min. LXXIV /2 (Closed)
25. This is what the World Court says in paragraph 94. If I may give
this background, the General Assembly of the United Nations had passed a
resolution saying that on account of certain facts it considered that South Africa
was unfit to continue the mandate over Namibia. This is what the World Court
says in paragraph 94 on page 45: "In examining this action of the General
Assembly it is appropriate to have regard to the general principles of inter -
national law regulating termination of a treaty relationship on account of
breach. For even if the mandate is viewed as having the character of an
institution, as is maintained, it depends on those international agreements
which created the system. •• " I will omit the next part which deals with the
point, which is not relevant for our · purpose, that the mandate amounted to
an international treaty. Now this is what it goes on to say: "The Court stated
conclusively in that Judgement" - the judgement of 1962 - "that the Mandate
1 ••• in fact and in law, is an international agreement having the character of
a treaty or convention'.":::; - I am now reading the very important words of the
Judgement ·- "The rules laid down by the Vienna Convention on the Law of
''.freati~~D - this is the Convention of 1969 - "concerning termination of a treaty
relationship on account of breach by another State (adopted without a dissenting
vote) may in many respects be considered as a codification of existing customary
law on the subject." In other words, the World Court says that even apart
from the Vienna Convention of 1969, every State has an inherent right, as
a matter of customary international law, to terminate an agreement if another
State has committed a breach of it. "In the light of these rules, only a material
breach of a treaty justifies termination, such breach being defined as (a) a
repudiation of the treaty not sanctioned by the present Convention or (b) the
violation of a provision essential to the accomplishment of the object or
purpose of the treaty."
26. What I am emphasizing in this pronouncement of the World Court
is that it is a rule of customary international law that one State can terminate
a treaty if another State has committed a breach, and this power of termination
is not to be found in the treaty itself; it is outside the treaty; it is founded in
customary international law. This is made clear by paragraph 95, of
which the material sentence is this: "The resolution in question is therefore
to be viewed as the exercise of the right to terminate a relationship in the
case of a deliberate and persistent violation of obligations which destroys the
very object and purpose of that relationship."
27. Now the General Assembly of the United Nations and the World Court
have the jurisdiction to deal with the question of termination of a treaty. The
United Nations can deal with that question between two nations. The World
Court can deal with it. This honourable Council does not have the right under
Annex 4
Annex 4
- 37 - C -Min. LXXIV /2 (Closed)
of law according to which a power of termination on account of breach, even if
unexpressed, must be presumed to exist as inherent in any mandate, as indeed
in any agreement. 11 Although the power to terminate a contract is unexpressed,
it must be presumed to exist in every agreement. Otherwise it would be impossible
for sovereign States to enter into treaties - a State would be most reluctant.
Why are so many States signatories to treaties? - because they know if the time
came when, because of the misconduct of another State, they had to terminate
the treaty, they would be entitled to do so. If a State was to be tied hand and foot
and even for good reasons could not terminate a treaty, no State would be willing
to enter into a treaty. It is open to the Convention, or to the Transit Agreement,
to provide that a particular forum shall be appointed to go into the question whether
terminatio of the Convention or Transit Agreement is proper or improper,
wrongful or rightful, but there is no such provision. If there was such a provision
we would go to that forum.
30. I have finished with the judgment of the World Court. Now let me
read to you a very interesting answer given by the Counsel for the United States
to a question put by Sir Gerald Fitzmaurice, one of the judges who sat on the
bench when the Court delivered the judgement from which I have quoted.
11 Question: It has been maintained" - this is what the judge puts :· to the
Counsel for the United States - "on behalf of the United States that
fundamental breaches of a contract by one party entitle the other to
put an end to it. I would like to know how, in your view, exactly this
would work in practice. For instance, it is evident that if a party
could put an end to a contract merely by alleging fundamental breaches
of it, and despite the denials of the other party, whether, on the facts
or as regards the existence of the obligation, there would always be
an obvious and easy way out of contracts which one of the parties found
onerous or inconvenient. What safeguards would you institute in order
to prevent this, and how would or should such safeguards apply in the
international field, in the relations between States or between States
and international or ganization-s ?"
It is a very relevant question, honourable members will see. What the learned
Judge asked the United States Counsel is this: "If you, Mr. Counsel, are right
in your submission that if the breach is committed by one State the other State
can put an end to the contract, look at the consequences. The consequences will
be that any State which finds an agreement or treaty inconvenient or burdensome
could say "Well, you have committed a breach and I put an end to it."
Annex 4
C -Min. LXXIV /2 (Closed) - 38 -
31. Now that is the law. The United States said it is the law and that
argument was accepted by the World Court. The United States Counsel himself
points out the remedy. He says that the remedy lies in making an express
provision in the treaty to the effect that in the event of termination a particular
forum will decide whether the termination was rightful or wrongful. If one State
should try to take undue advantage of another and wrongfully put an end to the
treaty, this forum would decide that the termination was wrongful and redress
would be given. The United States points out that the remedy is to provide a
forum where you can go, a forum which will deal with questions of termination
as distinct from questions of interpretation or application. This is the answer
which the United States Counsel gave. I will read his exact answer. It is on
page 2 3 of the proceedings in this case before the World Court.
"The doctrine of material breach as a basis of terminating a contract
is a doctrine of municipal contract law which has been reflected in
international treaty law. 11 - under ordinary contracts, if one party
commits a breach the other can treat the contract as terminated and
the US Counsel says that the same doctrine has been imported into
international law - "Obviously not every breach of a contract would
justify the other party in terminating the contract but only a breach
of such significance as, in the words of Article 60(3) of the Vienna
Convention on the Law of Treaties, would constitute a 'violation of
a provision essential to the accomplishment of the object or purpose
of the treaty'. 11 Now mark the important words - I am reading his
exact words - "If the party alleging breach were held by an international
tribunal not to have established the material breach, the termination
would not be legally justified and a party which had terminated the
treaty on the basis of an alleged breach would be liable for unjustified
repudiation of a contract. The fact that in the international as
opposed to a municipal legal system the other party cannot be assured
of bringing a case involving material breach before an international
tribunal except where both parties have accepted the compulsory
jurisdiction of an international tribunal is a problem relating to the
efficacy of international law and institutions generally and not
specially to the problem of the material breach doctrine."
This is 'beautifully expressed and I would like to emphasize these words. I am
reading them because this submission of the US Counsel was accepted in toto by
the World Court. What the Counsel is pointing out is this: if A and B ~e two
parties to a contract, a simple municipal contract relating to sale of goods, and
A says that B has committed a breach of the contract, he can treat the contract
as terminated, nobody can challenge the validity of his action. If he is dishonest
and dishonestly terminates the contract by wrongly alleging a breach by the other
party, there is c.1. civil court to which B can go. In civil law there is in every
country a municipal court. What the United States Counsel points out is that that
may not be so in international law.
Annex 4
- 39 - C-Min. LXXIV /2 (Closed)
32. In international law there is not always a forum before which you can
go. There may" -be no forum which can be entrusted with the jurisdiction to deal
with questions of termination because unless parties agree on a forum there is
no such forum. Here, for example, the parties have not agreed to any forum
under the Convention or under the Transit Agreement. The parties have not
agreed to any forum to decide questions of termination. The United States
Counsel points out that in such a case there may be no remedy, but if there is
no remedy, this is, if I may read his words again, "a problem relating to the
efficacy of international law". It is not something which casts any doubt on
the validity of the doctrine of termination for material breach by the other
party. In other words, all that you are saying is that when under international
law there is no forum, it does not mean that the right to terminate does not
exist. "The best safeguard" - these are again very significant words - "against
misuse of the doctrine of material breach would be through the extension of the
compulsory jurisdiction of the International Court of Justice or other appropriate
inttrnational tribunals over legal disputes arising between States or between
States and international organizations, at least with respect to those disputes" -
now mark the words - "which relate to interpretation, application and termination
of international agreements. 11 The Counsel, whoever he was, was using his
words with great care and he says that the remedy lies in having an international
tribunal which can deal with three types of disputes - interpretation, application
and termination. Two of these types are reflected in our Convention; the third
one is not. The Counsel points out - and this is the argument the World Court
accepted - that in this case you may have no forum; it is a pity, but unless there
is a forum expressly constituted to deal with termination, it is an international
wrong which goes without remedy or redress. I am emphasizing all this with a
view to showing the limits of this honourable Council's jurisdiction.
33. Before I close this chapter, may I refer you to Resolution Al-23,
adopted at the first session of the ICAO Assembly in 1947 in this City of Montreal.
You will find it in the volume entitled "Resolutions and Recommendations
of the Assembly - 1st to 9th Sessions 11• May I read it to you because it
expressly recognizes that there are very serious limits on the Co1Ancil's
jurisdiction and it cannot deal with every dispute between States relating to
the Convention.
34 If I may just give you the background, the Interim Agreement, arrived
at before the Convention and the Transit Agreement were reached, provided
that any difference between States would be left to the arbitration of the Council -
"arbitration", 11any difference". The words "interpretation 11 and "application 11
did not appear; any differences would go to the Council. But when they came to
draft the Convention and the Transit Agreement, they expressly reduced the
Annex 4
C -Min. LXXIV /2 (Closed) - 40 -
limits of the Council's jurisdiction and instead of "any difference" they said
"any disagreement relating to the interpretation or application". This is very
interesting. It shows that the nations originally thought that any differences
would go to the Council, but afterwards changed their minds and said "No. Let
only a limited category of differences go to the Council."
35. If I may read the whole resolution as it stands:
"WHEREAS
''WHEREAS
the Interim Agreement on International Civil Aviation
provides, under Article III, Section 6(8), that one of
the functions of the Council shall be:
'When expressly requested by all the parties
concerned, act as an arbitral body on any
differences arising among Member States' -
mark . the words - 'relating to international
civil aviatior . which may be submitted to it. 1
(Then the Council is to render an advisory
report or decide as an arbitrator.)
the Convention on International Civil Aviation contains no
such provision and the competence of the Council of the
Organization in the settlement of disputes, as accorded
to it by Article 84 of the Convention, is limited to decisions
on disagreements relating to the interpretation or application
of the Convention and its Annexes;
NOW THEREFORE THE FIRST ASSEMBLY RESOLVES:
( 1) That pending further discussion and ultimate decision by
the Organization as to the methods of dealing with international
disputes in the field of civil aviation, the Council
be authorized to act as an arbitral body ••.•••••• • ••••• "
36. The great importance of this resolution is this: the Assembly
recognized that the original concept of giving all differences to the Council to
deal with had been abandoned and that the competence of the Council was limited
to disagreements relating to interpretation or application. So !CAO itself has
recognized, from its very inception, the severe limits on its jurisdiction by
comparison with the original idea, which ultimately was not accepted by the
nations.
Annex 4
- 41 - C-Min. LXXIV /2 (Closed)
37. Now one last thing on international law - and this may conclude the
first part of my ·-argument - is the Vienna Convention of 1969, from which I would
like to read. The honourable members have noted the ruling of the International
Court of Justice that Article 60 of the Vienna Convention merely codifies an
existing rule of international law. So it is nothing new. It is an existing rule
of cu:stomary international law, which is merely codified by the Vienna Convention.
I shall read only the relevant po:otion of Article 60. Clause 2 (b):
"A material breach of a multilateral treaty by one of the parties entitles
a party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the
relations between itself and the defaulting State."
In other words, if there is a multilateral treaty - the Convention and the
Transit Agreement are, needless to add, multilateral treaties - and if one
nation does a wrong specially affecting another, the nation which is specially
affected can suspend or terminate the operation of the treaty in whole or in
part qua that one State only. Thus I continue to be a party to the Convention
and the Transit Agreement. I will honour them qua all other parties, but qua
the nation which has done me a wrong, I purport to suspend them in whole or
in part, and I am entitled to do so. This is the clear right given under the
Vienna Convention, but I need not dwell at length on it because, as the Inter -
national Court of Justice pointed out, - and I am repeating it because it is very
important - Article 60 is only a codification of an existing rule of international
law.
38. Now under that rule of international law, which existed prior to the
Vienna Convention, I had the right to suspend the Convention and the Transit
Agreement, as against Pakistan, in whole or in part. This right was given to
me not by the Convention, not by the Transit Agreement, but by international
k.w, and I am asking you honourable gentlemen to consider how it is possible for
a logical mind to put forward the proposition that is a case of application, of
interpretation. It is something outside the agreement altogether. It is something
outside the international treaty altogether. What is outside? - my right to
suspend or terminate. It is that right which I have exercised.
39. This finishes my reading of the relevant provisions of the statute.
I will call the treaty and the Rules the statute because we are a law-abiding
nation and to us they have the force of law. I therefore refer to them as a
statute. I have referred to the law or the statute to satisfy you as to how
limited the jurisdiction of the court is. In this connection, in our preliminary
objections, which necessarily have to be brief and concise because we did not
want to set out the entire argument, we have, on pages 11 to 18, set out the
legal propositions and I would request the honourable members to read a few
portions with me, because we tried to put as concisely as we could the
correct law on the subject as we understand it. On page 11 of our preliminary
objections you find the relevant provisions of the Convention and the Transit
Agreement set out. I will not read them now because I have already read
them.
Annex 4
C-Min. LXXIV /2 (Closed} - 42 -
40. If I may refer the honourable members to paragraph 16 of the
preliminary objections: "Under Article 84 of the Convention and under
Article 1(1) of the Rules, two of the conditions which are required to be
fulfilled in order to make the Application competent and maintainable, and
in order that the Cow1cil may have jurisdiction to deal with it and handle
the matter presented by the Applicant, are the following: (a) there should
be a disagreement between the two contracting States, and (b) the disagreement
should relate to the interpretation or application of the Convention.
(The Transit Agreement is dealt with subsequently.)"
41. I will now read paragraph 17: "Both the aforesaid conditions postulate
and presuppose the continued existence and operation of the Convention as between
two States. 11 Now the honourable members must have noted that the Vienna Convention
of 1969 says that you may suspend the agreement in whole or in part. Once
the agreement is suspended it is not in operation; that is the whole meaning and
effect of suspension; and if it is not in operation there can be no question of conslruing
or applying it. "If the Convention has been terminated, by repudiation,
abrogation or otherwise, or has been suspended, as between Lwo States, any dis -
pute relating to such termination or suspension cannot possibly be ref.erred to the
Council under the aforesaid Articles of the Convention and the Rules, since in such
a case no question of 'interpretation' or 'application' of the Convention can possibly
arise (there being no Convention in operation as between the two States). Further,
there cannot possibly be a disagreement on a point of interpretation or application
of a treaty which is not in operation as between two States. In other words, so long
as two contracting States accept the xistence, operation and efficacy of the Convention
as between them, all points of disagreement as to the interpretation or
application of the Convention would be within the jurisdiction of the Council. But
any question of termination or suspension of the Convention as b tween two States
cannot be referred to the Council under the aforesaid Articles. "
42. "What is stated above regarding the Convention also represents accurately
the position under the Transit Agreement" - I am reading paragraph 18 - "which
confers limited jurisdiction on the Council in identical words. Section 2 of Article II
of the Transit Agreement and Article 1 (l)(b) of the Rules permit an application
limited only to cases of disagreement between two States relating to the 'interpretation'
or I application' of the Transit Agreement. "
43. Paragraph 19. "The aforesaid construction of Article 84 of the Convention,
Article II{ 2) of the Transit Agreement, and Article 1(1) of the Rules har -
monizes with Article II{l) of the Transit Agreement and Article 1(2) of the Rules which
deal with complaints regarding an action taken by a State under the Transit Agreement,
and not regarding termination or suspension of the Transit Agreement, which wou .. d be
dehors that Agreement."
44 . Now paragraph 20 is a rather important submission. Very fortunately
for the honourable niember s, they - or at least the overwheh"!ling majority of them -
are not lawyers. This particular subject of the law is not something the honourable
members are very familiar with or are professionally trained to deal with. I am
Annex 4
- 43 - C -Min. LXXIV /2 (Closed)
saying this with the greatest respect, because I do not hold lawyers in very special ·
esteem, far from it; I am only stating a fact. The World Court will consist of
lawyers and that is why it can deal with the questions "Was the termination rightful
or wrongful? Was it or was it not in accordance with international law? 11 These
are complicated questions of fact and law which trained juries, trained judges, may
deal with. The honourable members of the Council, fortunately, as I was saying,
not falling in the category of lawyers, are entrusted with other tasks, diplomatic
tasks, which are tasks of trying to reconcile differences between different States,
but not bearing on the question of rights exercised under international law, suspension,
termination etc., which, as I said, present certain legal aspects that cannot
be correctly brought before this honourable forum.
45. That is what we deal with in paragraph 20. "The composition of the
Council and its powers and functions are, again, in keeping with the limited jurisdiction,
which has been conferred upon it by Article 84 of the Convention, Article
II of the Transit Agreement and Article 1 of the Rules, to hear international disputes.
The sovereign power of a State to suspend, abrogate or otherwise terminate an international
treaty - not seldom involving vastly complicated questions of fact and international
law - are outside the scope of the Council's jurisdiction ...... 11 To give
you one instance, the International Court of Justice will hear a dispute for six months.
A hearing on the merits of this dispute between India and Pakistan to decide which
country really was in the wrong would go on for a large number of days, to put it
very mildly and to make an under-estimate of the time involved. This Council is
not a body that can take evidence, call witnesses, look at documents, find out which
are fabricated documents, sit in judgment on the hilarious report made by the
Commission in Pakistan which was asked to go into this question of hijacking. I am
using my words very carefully in calling it a hilarious report. It says that India
brought about this hijacking £or its own secret purposes. It is like the President
of a country being assassinated and his successor appointing a Commission which
reports that the President brought about his own assassination. India is charged
with this degree of lunacy, that it brought about the hijacking and burning of its
own plane - got the two hijackers into the plane and supplied them with nothing more
than dummy grenades and a pistol with which they were able to blow up the whole
plane, which was surrounded by the police and the military forces of Pakistan!
This amazing fantasy I will not deal with. I was only pointing out that if such a
dispute were to go before the appropriate forum, it would mean an enormous consumption
of time. For days and weeks, if not months, the dispute would go on, and
ultimately the appropriate forum, if there is one, would decide who is right and who
is wrong. The Council is not to be troubled with these questions which refer to this
is sue of international law: Has a State justifiably or unjustifiably terminated or
suspended the agreement? If it has done so justifiably, all right. If it has done so
unjustifiably, the appropriate forum will give the appropriate orders. I am only
pointing out that this Council is not the appropriate forum for such complicated
questions of fact and law.
46. Then paragraph 21: "To sum up, the scheme of the aforesaid
Articles is simple and clear. So long as the Convention or the Transit Agree -
ment continues to be in operation as between two States, any disagreement
as to the construction of its Articles or the application of the Articles to the
Annex 4
C-Min. LXXIV/2 (Closed) - 44 -
existing state of facts can be referred to the Council; and, likewise, any action
taken under the Transit Agreement can be referred to the Council. But if a
State has terminated or suspended the Convention or the Transit Agreement vi.s-a-vis
another State, there cannot possibly be any question of interpretation or application
of the treaty, or of action taken under the treaty, and the Council is not the forum
for deciding such disputes. These disputes are usually in the realm of political
confrontation between two States, often involving military hostilities not amounting
to war, and these matters of political confrontation or military hostilities are outside
the ambit of the Council's competence. The question of overflying raised by
Pakistan is directly connected with military hostilities in the past and continues to
be inextricably tied up with the posture of political confrontation bordering on hostility
adopted by Pakistan. "
47. I shall not read further just now, but I should just like to make one
simple submission. It is Pakistan's somewhat nai've case that the word "application"
would cover termination or suspension. It just happened that on the plane I was
reading "Call No Man Happy'' by Andre Maurois, his autobiography, and there is a
lovely passage where he says that to children words do not have precise meanings
because the concepts of words are vague and nebulous to a child. He says that some
adults go through life with this simple temperament of a child, to whom words do
not convey clear-cut, definite concepts, I would submit to the honourable members
that the words "interpretation" and "application" are clear-cut and precise and to
equate "application" with "termination" or "suspension" or to equate "interpretation"
with "termination" or "suspension" is a clear misuse of the language. These terms
"application", "interpretation", "suspension", "termination" express well known
legal concepts. They are known to nations; they are known to international law; they
are known to municipal law; and it is a reflection upon the competence of those who
drafted the Convention and the Transit Agreement to say that they did not know the
distinction between interpretation and application on the one hand and termination
and suspension on the other. The distinction is so clear-cut that no draftsman of an
international treaty could possibly have confused these distinct, separate, independent
concepts.
48. Sir, may I now read paragraphs 22, 23 and 24 and then stop. "22. The
Government of India submit that Pakistan by its conduct has repudiated the Convention
vis -a-vis India, since its conduct has militated against the very objectives underlying,
and the express provisions of, the Convention, and has been completely and totally
against the principle of safety in civil aviation, It is expressly stated by Section 2 of
Article I c,f the Transit Agreement that exercise of the privileges conferred by that
Agreement shall be in accordance with the provisions of the Convention. Consequently,
Annex 4
- 45 - C -Min. LXXIV /2 (Closed)
Pakistan's conduct also amounts to a repudiation of the Transit Agreement vi s-a-vi. s
India. In the circumstances, India has accepted the position that the Convention and
the Transit Agreement stand repudiated, or in any event suspended, by Pakistan
vis -a-vis India. II
49. "23. Without prejudice to the above, and in the alternative, the Government
of India submit that they have terminated, or in any event suspended, the Convention
as regards overflying and the Transit Agreement vis-a-vis Pakistan." You
will see that under international law any nation has the right of suspension in whole
or in part. You need not suspend the whole agreement. You may suspend part of
it qua another nation and, when the treaty is multilateral, you may suspend it qua
one nation on!y.
50. 1124. Reciprocity is of the essence of the Convention and the Transit
Agreement. The conduct of Pakistan has made it impossible for Indian aircraft
to overfly Pakistan. That country has shown no regard for the most elementary
notions of safety in· civil aviation and has made it impossible for India to enjoy
its rights under the Convention, and its privileges under the Transit Agreement,
over Pakistan territory. 11 It is true that Pakistan has not imposed a ban on Indian
aircraft overflying Pakistan but our right of overflight is theoretical. The conditions
are such that no government with a sense of responsibility to its people would
choose to fly its aircraft over Pakistan if it is in the position of India today vis-a-vis
Pakistan. In other words, if a nation brings about a situation where a government
with a sense of responsibility to its own people dare not overfly the territory of
that other State, it is no use for that other State to say that theoretically I have
given you the right to overfly. There was a famous English judge Darling, who,
commenting on the principle that the doors of the courts of justice are open to rich
and poor alike, added the words "So are the doors of the Ritz Hotel. 11 It was the
most expensive hotel in London at that time. Theoretically even a poor man has the
right to enter the Ritz Hotel in London, but is this a right he can in pr~ctice exercise?
There are many theoretical possibilities - nothing prevents 11s from going to the
moon, but practically we just cannot -do it. So the theoretical right is meaningless
if in practice, as a r ·esult of a nation's conduct, I find it impossible to fly my aircraft
over that nation's territory. If that is the situation I am not bound to give that
nation the corresponding . right to overfly my territory, because reciprocity is of the
very essence of the Convention and the Transit Agreement.
SL If I may continue with paragraph 24, "Pakistan's theoretically permitting
Indian aircraft to overfly Pakistan is, in the context of the facts stated above, a
mockery of the principles underlying . and the provisions embodied in the Convention
and the Transit Agreement. In the circumstances, the Government of India submit
that they had complete justification for terminating or suspending the Convention as
regards overflying and the Transit Agreement vis-a-vis Pakistan. The Government
of India do not set out here the full facts concerning justification, since, as stated
above, the question of justification for termination or suspension of the Convention
or the Transit Agreement is not within the scope of the Council's jurisdiction .... 11
We therefore have not gone into the detailed facts, but I shall refer to some later.
Annex 4
C -Min. LXXIV /2 (Closed) - 46 -
52. The President: I suggest we now have a coffee break.
- RECESS -
53. The President: The Council is again in session and I give the floor
to Mr. Palkhivala if he wishes to continue.
54. Mr. Palkhivala: May I refer to three Articles of the Convention which
according to Pakistan's submission are supposed to lend support to their contention
that there is no power to terminate the agreement and that this Council is competent
to deal with the type of application Pakistan has filed. These three Articles are
54, 89and95.
55. With respect to Article 54, the argument urged by Pakistan is that if
there is an infraction of the Convention, the aggrieved State has a right to move
the Council. This Article, entitled "Mandatory Functions of the Council", says
"The Council shall 11
- the relevant clauses are (j) and (k) - "report to contracting
States any infraction of this Convention, as well as any failure to carry out
recommendations or determinations of the Council" and 11 report to the Assembly
any infraction of this Convention where a contracting State has failed to take
appropriate action within a reasonable time after notice of the infraction."
56. Now the answer is very clear and obvious but since the point has been
raised, even a very obvious answer must go on record, and it is this: Article 54
deals with cases where the Convention has not been terminated, has not been
suspended; while it continues to be in operation, adnuttedly in operation, one
State commits an infraction; in such a case y.ou invoke Article 54 and say "There
is an infraction and I want the Council to deal with it." The mere fact that an
infraction is referred to in Article 54 does not mean that it covers cases of
suspension and ternunation, because in law the very word "infraction" presupposes
the continued efficacy of the agreement; if the whole agreement, or the
material portions of it, has been terminated or suspended, the question of
infraction does not arise; it is a question of termination or suspension. So the
words used here do not go against me at all, because Clauses (j) and (k) of
Article 54 deal only with cases where the agreement continues to be in operation
between two States.
Annex 4
- 47 - C-Min. LXXIV /2 (Closed)
57. Now Article 89. Pakistan says that under Article 89 you have a
right to say that you are not bound to observe the terms of this Convention
only in case of war or national emergency. Article 89 (War and Emergency
Conditions) reads: "In case of war, the provisions of this Convention shall
not affect the freedom of action of any of the contracting States affected, whether
as belligerents or as neutrals. The same principle shall apply in the case of
any contracting State which declares a state of national emergency and notifies
the fact to the Council. 11 Again, this Article has no relevance whatever to the
point at issue on this preliminary objection.
58. Article 89 says that in case of war or national emergency a nation
is given freedom of action and will not be tied down to observe the terms of the
Convention, even if it is not a belligerent but a neutral nation. This Article
has nothing to do with what the International Court of Justice called the principle
of international law that in cases of breach of the treaty by one party, another
party has the right to terminate or suspend it. This right to suspend or terminate
the treaty in the event of a breach by another State is not dealt with by Article 89
at all. This Article is not exhaustive of the circumstances in which the Convention
can be terminated or suspended; it deals with only two. To show what,
speaking frankly, I ;r,;nay call the absurdity of the argument, suppose this Article
was not there. Is it suggested that in time of war a country would still allow
aircraft of the other country to overfly, saying "This is my intermi.tional contract
and I do not want to be guilty of breaking it"? Surely in case of war the rule of
international law must apply and even if there were no Article 89 you would still
have the right to say "No more overflights. I cannot allow my enemy to overfly
my territory. 11 This is an elementary principle. Not all States were very keen
to become signatories to this Convention, which was the first of its type, and
certain provisions had to be put in in order to assure them that their national
interests, their national security, would be safeguarded. With a view to getting
wider and wider support for this Convention, this particular Article was put in,
but by no process of reasoning can it be said to be exhaustive of the cases where
the Convention can be suspended or terminated. It only deals with two, leaving
the international law free and open. No principle of international law is superseded
by Article 89. Can you read it as superseding what the World Court says
is a rule of international law, namely that if one State commits a breach, another
State has a right to suspend or terminate the treaty? What are the words in
Article 89 which suspend this rule of international law? There are none. Therefore,
again, Article 89 does not deal with our case.
59. It does, however, . help me in this way. In Article 89 the word "war"
is not used in the technical sense of war as distinct from military hostilities. It
would cover military hostilities, Military hostilities broke out between India
and Pakistan and continued for about :three weeks in August/September 1965.
Annex 4
C -Min. LXXIV /2 (Closed) - 48 -
Now that "war" gave me the freedom of action under Article 89 and a very important
point honourable members will notice is this. Freedom of action is permitted under
Article 8~ not just for the duration of the war - the text does not say "during the
war" - but even after the war is terminated, if the essential security of the State
requires some freedom of action. In our case military hostilities did break out
in 1965 and since then we have ne r given Pakistan the right, without our
permission, to overfly India at all. In fact we gave them the right to overfly
with the permission of the Government oJ India. Now once we give it with the
permission of the Government of India it means that the Convention is not in
operation, because Article 5 gives the right to make flights into or in transit
non-stop across another Statet, territory and to make stops for non-traffic
purposes without the necessity oi obt ining prior permission. The whol e object
of this provision is that you do not need the prior permission of a State too erfly
its territory or to make non-traffic stops; you are enti led to overfly and to
make non-traffic stops without the Government's permission. This is the effect
of the Convention.
60. Now what happened after 1965? Since 1965 the right to make stops for
non-traffic purposes has been complet e ly denied to Pakistan by us and completely
denied to us by Pakistan. Since 1965 Pakistan aircraft have never made a nontraffic
stop in India, and Indian aircraft ha e never mad a non-traffic stop in
Pakistan, except with special permission. Even t he right to overfly has been
only with the permission of our Government; I will point out the relevant
notifications after I have finished the argument. After the war broke out in
1965 - I am using "war" in the broad sense, because there were military hostilities
perhaps not amounting to war under international law, but, as I have already said,
.. "V{~:z:}-in Article 89 is used in the sense of military hostilities, not the technical
international concept of war - we denied the benefit of the Convention to Pakistan.
We said that any overflying or any non-traffic stop 1nust be with our Governrneht's
permission and that has been the position since 1965. That is a separate point I
will deal with later, but I am only pointing out that once the -war, in the broad
sense of military hostilities, broke ou1. freedom of action was available to us under
Article 89 and that freedom of action is not limited to the period of actual military
hostilities. The period is not specified; it must be as long as the nation considers
necessary in its own interest - because how can any outside party decide what
a nation's security requires? After a war you may need five years, seven years,
in order to build up your defences in such a way that your enemy cannot attack
you again. No period is mentioned in Article 89. Therefore if Article 89 helps
any party at all, it helps India, not Pakistan, because, military hostilities having
broken out in 1965, we had freedom of action under it which was not restricted to
the period of the war and which we have exercised even after the military hostilities
ceased. To sum up, Article 89 has no bearing whatever on the rule of international
law; it does not supersede, it does not override, the rule of international law,
which is, as the , World Court said, that in the case of breach by one party, another
party may suspend or terminate the contract,
Annex 4
- 49 - C-Min. LXXIV /2 (Closed)
61. Lastly, Pakistan says "You should ha v e given notice under Article 95. 11
Well, I would have to be completely out of my mind to give notice under Article 95,
because Article 95 deals with a completely different topic. It has no application at
all to a case like the present one, where there is misconduct on the part of one
State as against another. If I may read it:
"Article 9 5 (Denunciation of Convention)
(a) Any contracting State may give notice of denunciation of
this Convention three years after its coming into effect by notification
addressed to the Government of the United States of America,
which shall at once inform each of the contracting States.
(b) Denunciation shall take effect one year after . the date of
the receipt of the notification and shall operate only as regards
the State effecting the denunciation. "
Article 95 deals with the case where a State party to the Convention wants to back
out and says 11! do not want this Convention. 11 In other words, so far as that State
is concerned, the whole Convention is at an end; it is at an end as regards the
relations between that State and all the other States which are parties to the Convention.
Now India does not want that. It has never been India's desire to withdraw
from this agreement. We want to honour it, and every other State which is
a party to the Convention will find that India respects that agreement. So I cannot
possibly denounce; this remedy is not open to me, because, if I denounce the Convention,
I denounce it as regards all the States which are parties to it. If I want
to terminate or suspend the contract ~ only one State, I cannot act under Article
95, because the denunciation provision does not apply. Termination or suspension
of an agreement ~ a single State can never be denunciation of the Convention. It
is a complete misuse of words to say that it is.
62. As I said at the beginning, in this case we are really concerned with the
nuance of words. What do English words mean - words which are hoary with tradition,
words which have come down through the centuries, words which have acquired
certain precise, clear connotations If one is prepared to play with words and treat
them as matters of no consequence, or like Alice in Wonderland say that words mean
what I say they mean because I am master, not the word, if that is the attitude, of course,
there is no need for further argument. But if the attitude is that this is an international
treaty and must be read in a manner which international law understands,
then denunciation means that you want to get out of a treaty altogether. That is what
Article 95 deals with, and India has never had any desire whatever to denounce the
Convention. It wants to be a party to the Convention; it continues to be a party; and
it will honour its obligations under this Convention with respect to every State but
Pakistan, between whom and us, unfortunately, military hostilities continue, political
confrontation persists. I shall not apportion blame here. That is not my purpose;
I am only stating facts.
Annex 4
C -Min. LXXJ.V /2 ( Closed) - 50 -
63. Therefore, neither Article 54 (Infraction), Article 89 (War), nor
Article 95 (Denunciation) is of any use in dealing with the questions that arise here.
64. Normally I would not have dealt with the facts of the case at all, because
I am dealing with the legal point, but on full consideration I am inclined to the view
that if I took about ten or fifteen minutes of the honourable members' time in stating
some facts it would be helpful, just to satisfy you about the bona fides of my country's
case, not with any other purpose. It is not with a view to satisfying you by proving
by facts etc. that our termination or suspension of the contract was justified - not
that, but merely to show you that it is an honest bona fide exercise of the right we
have under international law to terminate or suspend the contract.
65. With that objective only, may I request you to turn to the preliminary
objections of India, paragraph 5. I shall not state the facts orally. I shall only read
what is here, so that you can decide for yourselves whether any self-respecting State,
whether any Government that was conscious of its duty to its own citizens, could
possibly act any differently from the way India has acted.
66. "Paragraph 5. For years past, Pakistan has been pursuing and continuing
a policy of political confrontation bordering on hostility against India. This policy
culminated in August/September 1965 in an armed attack by Pakistan against India on
a large scale. On the outbreak of the conilict, the Air Services Agreement of 1948
between the two countries was immediately suspended, and there was a stoppage of
air transport services of Indian aircraft to and across Pakistan and of Pakistan aircraft
to and across India. The conflict was followed by an Agreement between the two
countries signed at Tashkent in the Union of Soviet Socialist Republics in January 1966.
As a result of this Agreement, a special arrangement was worked out whereby the two
countries permitted each other to operate some overflying services. Air services as
they existed prior to the conflict were, however, not restored, since Pakistan refused
all other aspects of normalisation of relations as envisaged in the Tashkent Agreement.
Up to date Pakistan has continued its policy of confrontation bordering on hostility
against India, some instance of which are listed hereunder:" Now this is what continues
to be done by Pakistan.
11(1) Confiscation of all properties of Indian citizens and of the
Government of India in Pakistan. These remain confiscated
to this day.
(2) Confiscation of all Indian river boats on East Bengal rivers
which are an essential lifeline for the transport of the produce
of Eastern India to the port of Calcutta.
( 3) The continued ban on passage of Indian boats and steamers
on rivers, streams or waterways of East Bengal.
(4) Continued ban on trade and commerce with India.
Annex 4
- 51 - C-Min. LXXIV /2 {Closed)
( 5) Continued ban on civil air flights, railway and road
communications between the two countries. 11
( There are no civil air flights, railwayt or road communications between the two countries,
and international airlines like SWISSAIR or PAN-AM may fly from Bombay to
Karachi, but Indian airlines do not fly that way nor do Pakistan airlines. In other words,
Pakistan airlines do not connect Pakistan with India; Indian airlines do not connect
India with Pakistan. This has been the position since 1965.)
11(6) Continued ban on entry into Pakistan of Indian newspapers,
books, magazines, etc., printed or published in India. 11
{Not a single Indian newspaper can be imported into Pakistan.)
"(7) Continued assistance with arms, ammunition and training to
rebel elements in areas of Eastern India.
(8) Continued attempts to foment, through sabotage and infiltration,
disturbances in Jammu and Kashmir.
(9) Intensive hate-propaganda against India on the radio and in the
press, which continues unabated to this day. 11
67. "The subject matter of Pakistan's Application" - I am reading paragraph
6 - "and Complaint relates to the suspension, since 4th February 1971, of overflights
over Indian territory. The conduct of Pakistan immediately preceding that date in
relation to the hijacking of an Indian aircraft was most reprehensible and amounted
to the very negation of all the aims and objecti v es, the pCheme and provisions, of
the Convention and the Transit Agreement. 11
68. If I may pause here for a minute just to consider what this Convention is.
This Convention is not an exercise in lexigraphy; it is not merely an exercise in
putting English words together, or French or Spanish words together. It has a
certain objective and that objective is set out in the Preamble. Its objective is safe
and orderly development of international civil aviation - safe and orderly development
of international civil aviation. I am not apportioning any blame at the moment, because
I am not justifying my conduct at all just now; that it not my purpose - I am on the
question of law - but if between two countries safe and orderly development of international
aviation is an impossibility, what do you do with the Convention as between
those two countries? Do you still apply it as a formality or are you frank and honest
enough to say that between these two countries it is impossible to work the very
basis of this Convention? What is the point of talking of the safe and orderly development
of international aviation when not a single Indian aircraft can land in Pakistan
or a single Pakistani aircraft can land in India? Since 1965, as I told you, there has
Annex 4
C-Min. LXXIV /2 (Closed} - 52 -
been no scheduled service between India and Pakistan except by foreign airlines,
which are apart,but Indian and Pakistani airlines, scheduled or non-scheduled, do
not connect the two countries.
69. Now if safe and orderly development, which is the prime objective,
the principal fundamental objective, of the Convention, cannot be achieved between
two States, what is left? The whole substratum of the Convention is gone as
between India and Pakistan, and this has been so since 1965. This complaint is
made in 1971, but if Pakistan had a case the complaint should have been made in 1965,
because since then we have not given the right to overfly India or Lo make nontraffic
stops in India without our Government's permission, which is the right
guaranteed by the Convention. This right has never been given to Pakistan, nor
given by Pakistan to us, since 1965. So what are we hearing after six years?
70. The other Agreement - the Transit Agreement - expressly says that
it is not to have an existence independent of the Convention. It is to continue, and
it is to be in operation, only in accordance with the Convention. In other words, the
Convention is the very basis and foundation of the Transit Agreement. If you do not
observe the Convention you cannot possibly observe the Transit Agreement, and for
that may I request you to turn to Article I, Section 2 of the Transit Agreement. Before
I read it, I do not have to remind the honourable members that both the Convention
and the Transit Agreement deal with the right to overfly another nation's territory,
and the right to make non-traffic stops in another nation's territory, the only
difference being that the Convention deals with non-scheduled aviation and the Transit
Agreement deals with scheduled international air services. Otherwise, the subject
matter, so far as this point is concerned, is the same, namely overflying and nontraffic
stops.
71. Article I. Section 1 speaks of two freedoms of the air: (1) the privilege to
fly across the territory of another State without landing, which I will call overflying,
and (2) the privilege to land for non-traffic purposes. These are the two freedoms of
the air given by Section 1 of Article I. Now look at the important Section 2 of the same
Article. Section 2 says "The exercise of the foregoing privileges shall be in acco .dance
with the provisions of the Interim Agreement on International Civil Aviation and, when
it comes into force, the provisions of the Convention on International Civil Aviation,
both drawn up at Chicago on 7 December 1944." So these freedoms given by the Transit
Agreement are to be exercised in accordance with the Convention, and the Convention, as
I have already pointed out, talks of the safe and orderly development of international
civil aviation. This is what Pakistan would not permit and that is why we treat it as a
repudiation by Pakistan of the Convention and the Transit Agreement and if Pakistan
says "I have not repudiated them.", we say "We propose to terminate or suspend
because your conduct has been such that it is impossible to have the terms of the Convention
and the Transit Agreement in operation as between our two countries. 11
Annex 4
- 53 - C-Min. LXXIV /2 (Closed)
72. I would like to read again the second sentence of paragraph 6 of
the preliminary objections - "The conduct of Pakistan immediately preceding that
date" (4 February 1971) "in relation to the hijacking of an Indian aircraft was most
reprehensible and amounted to the very negation of all the aims and objectives, the
scheme and provisions, of the Convention and of the Transit Agreement. 11 I would
like now to take a minute to explain one important point. Unfortunately criminals
have made many nations familiar with hijacking and the malpractices which are
commonly called hijacking, but very fortunately for the decencies of international
life, it seldom happens that the government of a State is either an accomplice before
the fact or what is called in law an accomplice after the fact, which means that
either you actively assist the hijacking, as one nation is reputed to have done - it
may or may not be true - or, again as it is called in law, you harbour and comfort
the criminals. When a government chooses to go out of its way to do things
which amount to virtually making heroes of hijackers, it is about time that selfrespecting
nations say to it "If you have so little regard for the decencies of international
aviation, we propose to terminate or suspend the contract as between you
and us. "
73. May I request you now to turn to the incidents connected with the hijacking
in paragraph 7 and you can judge for yourselves. We have no evidence
to show whether the Pakistan Government was an accomplice before the event, so
I shall make no statement, but if any of the honourable members here has any doubt
as to whether it was at least an accomplice after the event, that doubt should be re -
moved by reading the report of the Commission appointed by the Pakistan Government.
Fortunately that report is anneNed to Pakistan's reply to our preliminary
objections. As normal human beings with some knowledge of human affairs, you
have only to read the report to see that any government that was really objective
and did not want to identify itself with the hijackers could never have got such a
document. The report is so unacceptable - to use the mildest term I can think of -
that it makes you wonder how any government could solemnly present it to an international
body. But before I come to that report let me read the summary of the facts
about the hijacking starting on page 5 of the preliminary objection, after making this
one further point. We do not suggest that a State can terminate or suspend the Convention
or Transit Agreement if there is a hijacking incident, but it has the right to
do so if the government of another State identifies itself with the hijackers or sympathizes
with them. So it was not just the hijacking incident but also the Pakistan
Government's identification with the hijackers that led to India 1a action. Kindly look
at the facts narrated in paragraph 7 of the preliminary objection.
74. "(a) An Indian Airlines Fokker Friendship aircraft on a scheduled
flight from Srinagar to Jammu with 28 passengers and 4 crew on board
was hijacked by two persons among the passengers and diverted at gun
point to Lahore in Pakistan shortly after noon on 30th January 1971. One
of the two hijackers had a grenade in his hand and threatened to use it
if the plane was not diverted to Lahore, while the other pointed his
revolver at the pilot.
Annex 4
C-Min. LXXIV /2 (Closed) - 54 -
(b} The Government of India requ sted the Pakistan Govermnent
the same afternoon at Islamabad, and through their High Commissioner
in New Delhi, for the immediate release of the passengers, crew, cargo,
baggage, mail as well as the aircraft. The Pakistan Government informed
the Acting High Commissioner of India in Islamabad the same afternoon of
its decision to allow the plane, cr ew and pa s seng rs to fly back to India.
( c) The Indian civil aviation authorities and the Government of
India informed the Government of Pakistan on th e morning of 31st January
about a relief plane being ready to take off for Lahore, tog ther with spare
crew, to bring back the passeng rs, er w, cargo, baggage and mail as
well as the hijacked aircraft as soon as the Pakistan authorities ga ve he
necessary clearance. Perinission was given by the Dir ctor General of
Civil Aviation of Pakistan the same morning for the relief aircraft to leave,
but this was rendered infructuous by furth r instructions from the Pakistan
authorities that the relief plane should not take off until further specific
instructions from the DGCA Pakista n . Such p c mission ,vas repeatedly
deferred in spite of numerous reminders from the DCGA India. The
Ministers for External Affairs and Civil Aviation of India sent messages
on 1st February 1971 to the Minister of Home AH , irs and th Minister-inCharge
of Civil Aviation resp ctiv ly in Pakistan, requesting the immediate
return of the passengers and clearance for the relief aircraft to
bring back the hijacked aircraft along with the baggag , cargo and mail.
The Pakistan High Commission in India consistently refused to issue visas
to the crew of the relief aircraft and the spare rew. "
Now this is important. Another plane, a for ign plane, was to leave Lahore for
India and there was room on board for the Indian passengers. Yet the Pakistan
Government would not permit them to be put on board that plane. This is the next
paragraph, ( d).
"(d} Pakistan took mor e than 48 hou r s to send the passengers and
crew by road to the Indian border at Hus sainiwala at 1500 hours (IST) on
the 1st February 1971, though the distance ftrom Lahore to Hussainiwala
is only 36 miles. 11
A military government is in power, foreign aircraft is hijacked, the passengers are
there, and the military government which can deal with th problems of the entire
nation cannot arrange for these passengers to go 36 miles under military escort!
For 48 hours nothing can be done for thes passengers. If I may continue:
11The Government of India had earlier made arrangements for the return of
the passengers to India . on board a scheduled Ariana Afghan Airlines Service
from Kabul to Amritsar, which landed at Lahore at 23 hours on 31st
January, but although a large number of passengers disembarked from
Annex 4
- 55 - C-Min. LXXIV/2 (Closed)
the plane and 30 passengers were bo arded on that a ircraft at
Lahore, the authorities in Pakista n said th a t they could not
make arrangements to board the pa ssengers and crew of the
hijacked aircraft on this plan e beca use of the alleg ed presence of
crowds at the airport. "
I find it impossible to believe tha t if a go vernment re ally wanted to do it - a military
government with police and military fo rce s at its comm and - it could not do so simple
a thing as put 20 or 30 Indian passen ge rs aboard a plane. Other passengers could
get on board .
"( e) The Government of Pa kistan not only fail ed to return the
two persons who had hijacked the aircraft but ann ounced that they
had been given asylum in Pakista n. 11
- The Govern ment of Pakistan
announced publicly that the h i ja ck ers were being given asylum in
Pakistan. - "This was done eve n without first disarm i n g the m and
taking them into custody for th ei r criminal acts. On the other hand,
they were treated as heroes and were freely permi t t ed to visit, by
turns, the terminal bu ilding a t L ahore Airport, to put long-distance
calls to their accomplices and frie nds in Pakistan and meet various
people, besides being pro vided with food and o ther amenities which
enabled them to continue their so- called o ccup a ti on of the aircraft
for 3-1/2 days. This was allo we d to happen on the apron of the
international airport a t Lahor e , in full view of the a u th orities, troops
and police there, who took no act i on to make them vacate the hijacked
aircraft. "
75. Now just consider the a bsurdity of P a kist an's explanation of why
they did this. All the passengers ha v e b een remove d fr om the aircraft. The aircraft
belongs to India. The two hija ck ers are on the pla ne . The worst the hijackers
could do was to blow up the plane . Th at was all they coul d do because the passengers
were safe and ultimately they did blo w up the plane. Wh a t did Pakistan achieve as
an internationally responsible govern ment by allowing these hijackers to come out
of the plane one after another? For 3 - 1/ 2 da ys these hi jackers were given food and
water and were looked after. And Paki s ta n say s "We did all this because we were
worried as one of the hijackers was alway s o n it; one would come out and one would
remain; so one hijacker might blo w up th e plane. 11 This great concern of Pakistan
for Indian aircraft and Indian property - ca n you imagine that being the real motive
when millions and millions of dollars wo rt h of property h as been confiscated by
Pakistan and not returned? _ Can you serio usly believe th at Pakistan was concerned
with the safety of India's one little aircra f t , which wa s u ltimately blown up? What
prevented Pakistan from taking the two hij a ckers int o custody? The worst they
could have done was to blow up the plan e . Pakistan co uld ha v e asked India "Are
you willing to have us arrest these people and let your p lan e be blown up?'f' Would
India have said "No"? Did we have an y s ympathy wit h the se criminals? Now for
three and a half days, mind you, these h i jackers come ou t of the plane, first one,
Annex 4
C-Min. LXXIV/2 (Clos 'd) - 56 -
then the other. They come lo the terminal building. They make long distance
calls, trunk calls also, to their accomplices in Pakistan, and nothing happens to
them at the hands of th military and police forces at the airport.
"(f) Finally, at about 2000 hours on 2nd February these two
criminals were allowed to blow up th hijacked Indian aircraft and
even to prevent the fire brigade from putting out the fire."
76. Look at the absurdity of the whole story put forward by Pakistan.
The Commission they appointed to report on this hijacking says that the two hijackers
had only a dummy pisto1, not a real on , and a grenade which was also a dummy. If
so, how could the hijackers blow up the plane? What did they blow it up with if the
pistol was a toy pistol and the grenade was a dummy grenade? These are some of
the absurdities of the whole story, whereas the simple straightforward fact is that
Pakistan wanted to mak heroes of these hijackers and a situation was created where
India found the position intolerable for any self-respecting country.
77. If I may read further in the same paragraph - Clause(£). "This" -
the blowing up and burning of the aircraft - "took place in full view of the airport
authorities, troop and police at the Labor Airport, which is a protected area, 11
-
mind you, this is a prot cted area in Pakistan, under military occupation - and at
a time when Martial Law was (as it still is) in force in Pakistan. 11 Now mark this -
"The Lahore TV also televised the d struction of the aircraft on a special programme
and it was mad to app ar as if th event was an occasion for celebration. The time
ext nded for th television programme" - the television progran1me normally would
have ended but th tin-i was extended by the Lahore television authorities - "was
clear proof that the P~ kistan authoriti s knew the plans of the hijackers and connived
at the destruction of the aircraft. This furth r criminal act of destroying the aircraft
occurred only a few hours after the Pakistan High Commissioner in India had assured
the Government of India that his Governn'lent were committed to, and were taking all
nee ssary measures for, the safe return of the aircraft.
78. "( g) The Government of India informed the President of the International
Civil Aviation Organization Council on 1st February 1971 of the
hijacking of th Indian aircraft and later about its destruction. It is understood
that the President of the !CAO Council sent the following message to
Pakistan:
1 REGARDING UNLAWFUL SEIZ URE INDIA AIRLINES AIRCRAFT
CONFIDENT PAKISTAN ACTING IN ACCORDANCE WITH ICAO
ASSEMBLY RESOLUTION Al7-5 HAS PERMITTED OR WILL PERMIT
AIRCRAFT OCCUPANTS AND CARGO CONTINUE JOURNEY
IMMEDIATELY. WOULD APPRECIATE YOUR INFORMATION
REGARDING PRESENT SITUATION. AM ALSO VERY CONCERNED
BY POSSIBILITY PROLIFERATION HIJACKINGS IN THAT PART OF
THE WORLD UNLESS SEVERE MEASURES TAKEN. THEREFORE
TRUST PAKISTAN WILL FOLLOW ASSEMBLY DECLARATION
Al7-l AND PROSECUTE PERPETRATORS SO AS TO DETER REPETITION
SIMILAR ACTS. 1
Annex 4
- 57 - C-Min. LXXIV /2 (Closed)
The Goverrunent of India are not aware of the response given
by Pakistan to this communication. In fact Pakistan neither
permitted the aircraft with passengers and cargo to continue the
journey immediately, nor returned the hijackers to India, nor
prosecuted nor punished them in Pakistan. 11
Pakistan in the reply says that they are awaiting trial. They are very familiar with
trials and I will say no more about it.
79. "(h) The Government of India had, as far back as September
1970.informed the Pakistan High Commissioner in
India that certain subversive elements in Pakistan were conspiring
to hijack Indian aircraft and that there was definite information
about a possible attempt to hijack an Indian aircraft to Pakistan
and had requested the Goverrunent of Pakistan to take adequate
steps to prevent this. There was no response from the Government
of Pakistan except the strange request from their High
Commissioner to disclose the source from which the Government
of India had obtained this information. "
Imagine the attitude of a responsible government wanting to honour its international
commitments about safe and orderly aviation. That government is given information
by another government: "We have information that one of our plane is going to be
hijacked. Please see to it that such a thing does not happen, that the hijackers do
not get .asylum in your country ..... 11
• What is the reply of the Pakistan Government?
"Please tell us the source from which you got this information. 11 If this
is "safe and orderly development of aviation" we may as well scrap the Convention
of 1944. There is no meaning to it. It is meant to be a convention among nations
which intend to honour and respect its provisions. It is not intended to be a formality
between nations, one of which is at liberty to make a mockery of it and then ask the
other nation to adhere to its provisions.
80. These are the facts. If anyone had any doubt as to whether the
Pakistan Government itself was really involved in the hijacking, either before or after
the event, it would be completely removed if you look at Pakistan's reply and at the
conclusions of the Commission of Inquiry which Pakistan has annexed to it. I ask you
honourable gentlemen, as men of common sense and men of knowledge of world affairs,
to read this Commission's report and ask yourselves whether you believe for a moment
that an honest government, which had nothing to do with the hijacking or the hijackers
and had no sympathy with them, could have possibly procured such a report from a
Commission appointed by it. Look at the report. As I started to say earlier, it
makes hilarious reading. You only have to read it to see what type of conclusions
were reached by a responsible government commission. It is Annexure A to Pakistan's
reply and I propose to read the whole of it.
81. The President: I do not mean to interrupt you, but is the point that
you are going to make now related to the Preliminary Objection?
Annex 4
C-Min. LXXIV/2 (Closed) - 58 -
82. Mr. Palkhivala: Sir, it has no bearing on the legality of the Preliminary
Objection. It has a bearing on the justification for the suspension or
termination of the agreement and that justification is not within the Council's
jurisdiction. So if the learned President rightly reminds me that if the Preliminary
Objection is well founded in law - and I submit it i.s - then the question
whether our termination was rightful or wrongful is not for the Council to consider.
If that is the view then I do not have to read it at all because I would be unnecessarily
wasting your time, and the learned President, if I may say, is quite logical in reminding
me that on my own argument this is not relevant. I concede that point
against myself straight away and I will not read it, because I see the implication
of what the learned Pr sident has said. Without asking me not to read it, you have
rightly reminded me that it is really not relevant. My only objective in a 1king the
honourable members to have a look at it was to satisfy you about the bona f"des of my
country's case, which is not really the question before the Council because you are
not concerned really with our bona £ides and our justification as much as with our
contention that if for any reason, good or bad, we choose to terminate the agreement,
the Council has no jurisdiction to deal with it. Well, Sir, I will not read
the report, but I will ask the honourable me1nbers to have a look at it later and
will only make one or two comm nts without r ading it.
83. The sum and substan e of the report is this. Here is India, tremendously
agitated over this hijacking, very perturbed. This is the first time in history that an
ndian aircraft has been hijacked and our people, inside and outside of Parliament,
are so agitated that we beg the President of the !CAO Council to intervene, we re -
quest Pakistan to send back our plane, passengers, cargo, etc., and this Commission
appointed by the Pakistan Government discovers the real secret. The real
secret is that Indian secret agents have somehow manoeuvred this hijacking for their
own purposes! In oth r words, the Indian Government was behind the hijacking. It
is like saying that the Jews were behind th hijacking which, according to the newspapers,
was the handiwork of terrorists, but according to some Commission was
the handiwork of the Jews themselves, who got their own plane hijacked. My point
is that if such a report is procured by a goverrunent, it tells you volumes about the
bona £ides of that government. If th re was not this Commission's report I could
have understood a gov rnment saying "We had nothing to do with the hijacking.",
but if such a Con1mission is appointed and such a report is made available to an
international body, I can only say, weighing my words carefully, that it is an insult
to that body to be asked to accept it, The report says that India itself procured this
hijacking by its own agents. It says that this Mohammad Hashim Oureshi, the one
who blew up the aircraft, really had no grenade and no pistol. As I have already mentioned,
if that was the case, could he blow up the aircraft? How could it happen?
Who supplied him with the grenade to blow up the aircraft? Did the Pakistan
Government supply the grenade, and what were they doing for three and a half day~
while the aircraft was standing on the apron of the airport, which is an area occupied
by the military-? It is all too absurd for words and in deference to what the learned
President said, I shall not read it.
Annex 4
- 59 - C-Min. LXXIV /2 (Closed)
84. I am now concluding m y exposition of the first ground, the first
preliminary objection, but before I do so I would just like to mention three points
in Pakistan's reply to our preliminary ob jection. The fi rst is that the word
"application" includes termination or su spension. I will not say anything more on
that point because I have already cited to you the judg ement of the International
Court of Justice and also the answer give n b y the Unit ed States Counsel, which
clearly shows that application is someth ing quite diffe rent from terminat i on .
85. The second point which Pa ki stan mak es is that India has applied
the Convention and Transit Agreement b etween itself and Pakistan since the military
hostilities of 1965. This is completely i nc o rrect. Si nce April 1965 there has bee n
no application of the Convention or the T ransit Agreem ent between India and Pakistan .
I shall not say anything more on this po int just now, b e cause it is a separate pre liminary
point which I propose to deal with as a secon d point. I shall therefore leav e
it alone just now.
86. The third point made by P akistan is th at there is no po w er to terminate
an agreement except to the exte n t to which the agreement itself provides
for termination. In other words, if the Co nvention a nd the Transit Agreem en t do
not provide for suspension or termination , you have n o power to terminate or sus pend
them. This is clearly w rong. It i s contrary to wh at the World Court und e r stands
to be the international law, and th ere fo re Pak istan's attempt to say that
there is n o power to terminate or suspe nd has already been negated by the International
Court of Justice. I take it that the hon ou rable members of the Council
will follow the ruling of the International C ourt of Justi ce, which, as you have seen,
is the authority to which an appeal from d ecisions of th e Council lies. As the appellate
authority, the superior authority, its judg ement wou ld have to be follo w ed and that
judgement is categorical and clear: you do n o t need a provision for termination or
suspension in an agreement before you can exerc i se th e right to terminate or sus -
pend.
87. I have finished with the poi nt that the Application of Pakistan is
misconceived because it deals with the questi on of ter mination or suspension
which is outside the Council's jurisdictio n. I shall now deal with the second point -
what we have called "Preliminary Objec t io n No . 2, Special Regime".
88. The President: I think we should take the two cases separately. We
are now dealing only with Case 1.
89. Mr. Palkhivala: Yes, I am n o t on th e Complaint; I am only on the
Application and am now putting forward m y second pre liminary objection to the Application.
I shall first explain the position brie fly and then r ead the relevant part of the
pleadings. The point is briefly this. Th e Council ha s ju:risdiction in cases which
are governed by the Convention and the T rans it Agre em ent; if two nations choose,
as from a certain date and as a result of events like war, military hostilities, to
have a special regime, a special agree ment, between th emselves regarding
Annex 4
C-Min. LXXIV /2 (Closed) - 60 -
overflying, it is their business; if one of them terminates or suspends such a special
regime, this Council is not the forum bee use the agreement is not something with
which this Council deals. The Council does not deal with special regimes; it deals
only with tbe Convention and the Transit Agreement. It is my submission that the
facts leave no doubt that since 1965 there has been a special regime regarding overflying.
I am referring only to overflying and making non-traffic stops, nothing else,
because as you have seen from the World Court's opinion and the Vienna Convention
on the Law of Treaties of 1969, which only codifies existing law, a country may suspend
or terminate an international treaty in whole or in part regarding another State.
So I am confining myself to overflying, b cause that is what Pakistan wants.
90. Now as between India and Pakistan overflying has not been governed
by the Convention and Transit Agreement since the military hostilities of 1965. What
happened was this. In August/September 1965, when military hostilities broke out
between them, the two countries, quite naturally, obviously, and inevitably, suspended
overflying; neither country could make a stop, whether for traffic or non-traffic pur -
poses, in the other country. That was clear. Thanks to the efforts of Russia we were
able to come to an agreement at Tashkent in January 1966. This agreement provided
that the two countries would try to re store normal relations between them. We did our
best. We went out of our way to do one thing or another, but without any response
from Pakistan. I shall refer to the facts presently. It is not a bold statement; I will
particularize it and show by facts and figur s what we did. One of the things on which
normal relations had to be restored was international aviation. So some letters were
exchanged betw en the Prime Minister of India and the President of Pakistan and we
said "All right, let us come to some arrangement. 11 What was the arrangement? - it
said that with the permission of the Indian Government, Pakistan might overfly India.
The words are "with th permission of the Indian Govermn nt". Now this is the very
negation of the Convention and the Transit Agreement. It is the very convrr se of the
Convention and the Transit Agreement, because they contemplate overflying without
the Government's special permission, whereas the special regime after the war between
India and Pakistan was that overflying could be only with the express permission
of the Government. When our notification, which I shall read presently, expressly
says that overflying shall be with the permission of th Government of India, how can
anyone possibly still argue, as Pakistan tries to do, that the Convention and the 1 ransit
Agreement were brought back into operation after 1965? It is impossible to say that,
because when I say "with my Government's permission", I say in so many words that
the benefit of the Convention and the Transit Agreement is not available to you; otherwise
the question of my Government's permission does not arise.
91. Now Pakistan is fully aware that from 1966, when the Tashkent Agreement
was reached, up to date, Pakistan has never overflown India without the Government's
permission. This permission we may give or withhold, because permissi n
has no meaning unless the auth0I'ity which is to give it has discretion not to give it.
We told Pakistan "No Convention and no Transit Agreement as between you and me;
overflying is with my Government's permission. 11 Of course Pakistan returned the
compliment by saying it was also with their Government's permission, which I am not
disputing, but since they are the complainant and I am the defendant. I am concerned
Annex 4
- 61 - C -Min. LXXIV /2 (Closed)
only with my action, not with Pakistan's. What was my action? It was clear
and categorical: Hereafter overflying by Pakistan can only b.e with the Government
of India's permission. If this is so - and I will prove it by reference to
our own Government's notification, which is unchallenged - you will immediately
see that there was no question of applying the Convention or the Transit Agreement
as between India and Pakistan after the military hostilities of 1965. If there was
a special regime, as undoubtedly there was, between India and Pakistan regarding
overflying after the military hostilities of 1965, it means the Convention and the
Transit Agreement are not in operation as between these two States as regards
overflying. Now how can an application be made to the Council saying that the
Government of India has now proposed to withdraw permission for overflying? If
I choose to withdraw permission that is my right as a sovereign State, and under
what document have I agreed that if under the special regime I withdraw my permission
for overflying, I shall appoint the Council of ICAO as the body to whom
the complaint can be made? No one has agreed to such arbitration or adjudica _tion
by the Council. Therefore it is my respectful submission that the honourable
members of the Council cannot be troubled with this question, which pertains
to a special regime between India and Pakistan that is completely outside the
Convention and the Transit Agreement.
92. May I refer you to conclusive evidence of this, conclusive because
the documents are not in dispute. Would you kindly refer to India's preliminary
objections, Annexure No. 3. It reproduces two notifications, one issued during
and the other other after the war of 1965 - throughout my argument I have used
the word "war" in place of "military hostilities" because I am not trying to be
technically correct here; wherever I have used the word "war" you will take it as
"military hostilities", because an international authority in Geneva, before which
I had the honour to appear against my learned friend, the Attorney General of
Pakistan, has held that the military hostilities of September 1965 did not amount
to a war in international law and I accept that wording as correct; it is a case
of military hostilities, not amounting to war, in September 1965. May I read the
two notifications before the nonourable members have a recess for lunch.
93. The first is the notification of the Government of India dated
6 September 1965.
' 11 WHEREAS the Central Government is of the opinion that irl
the interests of the public safety and tranquility, the issue of
an order under clause (b) of sub-section (1) of section 6 of the
Aircraft ~et, 1934 {22 of 1934), is expedient:
NOW, THEREFORE, in exercise of the powers conferred
by clause (b) of sub-section (1) of the said section 6, the Central
Government hereby directs that no aircraft registered in Pakistan,
or belonging to or operated by the Government of Pakistan or
persons who are nationals of Pakistan, shall be flown over any
portion of India. 11
Annex 4
C-Min. LX'XlV/Z (Closed) - 62 -
This is September 1965. Military hostilities are in progress. India says no
overflying by any Pakistan aircraft. After peace was restored and the Tashkent
Declaration was signed, there was a second notification, dated 10 February 1966,
which is on the next page of our preliminary objections. It continues in operation
even today and you will see how it reads:
11 WHEREAS the Central Government is of opinion that in
the interests of the public safety and tranquility, it is necessary
so to do:
NOW, THEREFORE, in exercise of the powers conferred
by clause (b) of sub-section 6 of the Aircraft Act, 1934 (22 of 1934),
the Central Government hereby makes the following amendment to
the notification of the Government of India in the late Ministry of
Civil Aviation No. GSR 1299 dated the ,th September 1965, namely:-
In the said notification, after the words "any portion of
India", the following words shall be inserted, namely:-
"except with the permission of the Central Goverment
and in accordance with the terms and conditions of such
permission". 11
94. The effect of this notification of February 1966 is clear and undoubted.
It is this. In September 1965 India said to Pakistan "No overflying at all. 11 In
February 1966 the Government of India said "Overflying only with the permission
of the Central Government of India. 11 and this is the notification in force today and
means that Pakistan cannot overfly without India's permission. Therefore, as
early as from September 1965, the benefits of the Convention and the Transit
Agreement have not been available to Pakistan, because under both those treaties
Pakistan has a right to overfly without our Government's permission. But we
told them in 1966 "You may now overfly with our permission, not without it. 11 Thus
the Convention and the Transit Agreement were terminated or suspended as early
as 1966. All that has happened in 1971 is that the permission has been withdrawn,
but the obligation, the requirement, the necessity of obtaining permission, which
meant that the Convention and the Transit Agreement were no longer in operation
between the two countries, has existed since 1966. If India has terminated or suspendeq
the Convention and the Transit Agreement as regards Pakistan, it was
done in 1966, not 1971. In 1971 we have withdrawn permission, but the termination
or suspension of the international treaty took place in 1966 when Pakistan was
asked to obtain permission. This is a very important point which Pakistan has
completely overlooked.
Annex 4
- 63 - C-Min. LXXI.V /2 (Closed)
95. You have the special regime of 1965/1966 and this special regime is
that contrary to the Convention, contrary to the Transit Agreement, no Pakistan
aircraft shall overfly India without our special permission. Therefore the special
regime, which Pakistan accepted for overflying India, and we accepted for overflying
Pakistan, came in 1965/1966. If in 1971 we have withdrawn permission, it
has been withdrawn under the special regime and has nothing to do with the
Convention or the Transit Agreement. May I stop here, Sir.
96. The President: We shall I now have the break and shall reconvene at
2. 30.
Annex 5
ICAO Council, 74th Session, Minutes of the Third Meeting, ICAO Doc. 8956-C/1001
(27 July 1971)
Annex 5
- 65 -
Doc 8956-C/1001
C -Min. LXXIV / 3
(Closed)
31/8/71
COUNCIL - SEVENTY-FOURTH SESSION
Minutes of the Third Meeting
(The Council Chamber, Tuesday, 27 July 1971, at 1430 hours)
CLOSED MEETING
President of the Council: Mr. Walter Binaghi
Secretary: Dr. As sad Kotaite, Secretary General
PRESENT:
Argentina
Australia
Belgium
Brazil
Canada
Colombia
- Mr. J.M. Gabrielli (Alt.) Mexico - Mr . S. Alvear Lopez
- Dr. K. N. E . Bradfield
- Mr. A. X. Pirson
- Col. C. Pavan
- Mr. J.E. Cole (Alt.)
- Major R. Charry
Czechoslovak
Socialist Republic
- Mr. Z. Svoboda
Federal Republic - Mr. H. S. Marzusch
of Germany (Alt. )
France - Mr. M. Agesilas
India - Mr. Y. R. Malhotra
Indon sia
Italy
Japan
- Mr. Karno Barkah
- Dr. A. Gucci
- Mr. H. Yamaguchi
ALSO PRESENT:
Dr. J. Machado (Alt.)
.Mr. E. G. Lee .(Alt.)
Mr. P.R. Joubert (A<!v,)
Mr. B. S. Gidwani (Alt.)
Mr. M. Garci'a Benito
(Alt.)
Mr. N. V. Lindemere
(Alt.)
Mr. F. K. Willis (Alt.)
- Brazil
. - Canada
- Canada
- India
- Spain
- U. K.
- u. s.
Mr. N. A. Palkhivala - India
(Chief Counsel)
Mr. Y. S. Chitale (Counsel)- India
Mr. I. R. Menon (Assistant - India
Counsel)
Mr. S.S. Pirzada (Chief - Pakistan
Counsel)
Mr. K. M. H. Darabu • Pakistan
(Assistant Counsel)
Mr. A. A. Khan (Ohs.) - Pakistan
Mr. H. Rashid (Ohs.) - Pakistan
Mr. Magsood Khan (Ohs.) - Pakistan
H. E. A. B. Bhadkamkar - India
(Aaent)
H. E. M. S. Shaikh - Pakistan
(Agent) ,
Nigeria
Norway
Senegal
Spain
Tunisia
Uganda
Union of Soviet
Socialist Republics
United Arab
Republic
(Alt.)
- Mr . E. A. Olaniyan
- Mr. B. Grinde
- Mr. Y. Diallo
- Lt. Col. J. Izquierdo
- Mr. A. El Hicheri
- Mr. M. H. Mugizi (Alt . )
- Mr. A. F. Borisov
- Mr. H.K. El Meleigy
United Kingdom - A/V/M J.B. Russell
United States - Mr. C. F. Butler
SECRETARIAT:
Dr. G. F. Fitzgerald - Sr. Legal Officer
Mr. D.S. Bhatti - Legal Officer
Miss M. Bridge - CSO
Annex 5
C-Min. LXXIV /3 (Closed) - 66 -
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Settlement of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani Aircraft
over Indian Territory
1. The Chief Counsel for India, Mr. Palkhivala, completed his presentation
of the preliminary objection filed by India, Continuing from the point he had reached
in his explanation of the second ground for the objection, he read into the record
paragraphs 28 to 39 of the objection, emphasized the "package deal" nature of the
Tashkent Declaration, and stated that the question of restoring pre-1965 rights in
respect of civil aviation had never arisen. On the suggestion of Pakistan itself,
only overflights had been resumed on a provisional basis, subject to each Government's
permission and on the basis of reciprocity. After the hijacking incident,
the Government of India had come to the conclusion that reciprocity in respect of
safety of civil flights was not to be expected from Pakistan and had therefore suspended
flights of Pakistani aircraft over Indian territory. Pakistan I s contention
that India was estopped from pleading the special regime as a defence because in
the last five years she had acted on the basis that the Convention and Transit
Agreement applied between the two countries was very curious indeed, as if
these instruments did apply, there would be no question of permission for overflights.
2. The Chief Counsel for Pakistan 1 Mr. Pirzada, then began his presentation
of Pakistan's answer to the preliminary objection, dealing at this meeting with the
Indian contention that this was a case of treaty termination, not of application or
interpretation, and therefore the Council had no jurisdiction.
3. The first point he made was that the Convention was a very important
multilateral treaty, establishing a pern1anent international organization and providing
permanent machinery to deal with disputes. In the case "Certain Expenses
of the United Nations'', the International Court of Justice, dealing with the same
sort of treaty - the Charter of the United Nations - had ruled that its provisions
should receive a broad and liberal interpretation, unless the context of a particular
provision required, or there was a provision requiring, a narrower or more
restricted interpretation. India was giving a very narrow and restricted interpretation
to Article 84 of the Convention. The opening words "any disagreement"
were just as important as the words "interpretation" and 11application 11
, on which
India had placed so much emphasis, and, taken as a whole, the Article was allernbracing,
wide enough to cover a dispute as to application or non-application
or as to termination, as "interpretation" included the question of whether there
was termination. It was, for instance, much wider than Article 36 of the Statutes
of the International Court of Justice, which gave the latter jurisdiction over legal
disputes relating only to the interpretation of a treaty. Mr. Pirzada also reierred
to the Mavrommatis case (P. C. I. J. 1924, Series A, No. 2) and the Interpretation of
Peace Treaties case (I. C. J. Rep. 1950).
Annex 5
- 67 - C-Min. LXXIV /3 (Closed)
4. The second point made by Mr. Pi rzada was that the Internat i onal Court
of Justice had also stated that whether an in ternational dispute existed was a
matter for objective determination; the mere d enial of its existence did not prove
its non-existence. Thus the mere denial by India that the Convention and Transit
Agreement were in operation between herse lf a n d Pakistan did not mean tha t they
were not in operation. Pakistan maintained t h a t they were very much alive ;
consequently there was a disagreemen t relat ing to their interpretation or application
in the terms of Article 84 of the Convention a nd Article II, Section 2 of th e
Transit Agreement and the Council had jurisdi ct i on. The expression "ap pli c ati~n"
was wide enough to include adjudication of a di spute or disagreement about termrn -
ation. In addition to the opinions and judg me n ts of the International Court, h e
referred to the book "Unilat e ral Denunciatio n of Treaty because of Prior Vi olations
by Other Party" by B. P. Sinha. In it th e Indi an author pointed out that one party
to a treaty might accuse another of com m it ti ng breaches of obligations in o rd e r to
release itself from its own obligations . Th e o ther party might retort by ch a rging
the denouncing party with malafides. Conseq uently, the situation migh t be f o r eseen
of a dispute arising from a divergenc e of op inion between the parties relative to
interpretation or application of treaty obli gations.
5. He maintained that the Indian conten tio n of th e existence of a so vereign
right of termination outside the treaty was inappli cable m this case, b ec a u se the
Convention and Transit Agreement contained express provisions on suspens ion and
termination - Articles 89 and 95 in the Conven tion and Article III in the T ra n s it
Agreement. He also rejected the Indian ar gument that Article 95 made pro vision
only for denunciation in respect of all parties , on the ground that it was a we ll
established principle of law that the whole includ ed the part. Therefore, if In dia
wished to terminate or denounce the Conve nt i on and Transit Agreement only in
respect of Pakistan, she had to have recourse to the procedure prescribed in
Articles 95 and III. She had not done so; sh e had accordingly failed to per form
her obligations under the Convention and Tran s it Agreement; Pakistan ha d the
right to take action under Article 89 of the Co n v ention and Article II of th e Transit
Agreement; and the Council had jurisdiction in the case.
6. Turning to the argument that the ri gh t of termination was reco gnized in
Article 60 of the Vienna Convention, he pointed out t hql.t this right was qu a lified .
The breach must be a "material" one, the othe r party was entitled on ly t o invoke
:i,t as a ground for terminating the operation of the trea t y in who l e or in par t, and
Article 60 as a whole was subject to Art i cle 45, which provided that a St a te could
not invoke the breach as a ground for termina t i on or suspension of operati on of a
treaty if, after becoming aware of the facts, (a ) it had expressly agree d tha t the
treaty remained in force or in operation or (b) i t must , by reason of its c onduct,
be considered as having acquiesced in its rriain tenance in force or in operati on.
In this connection it was interesting to note t ha t on the very day India had taken
the unlawful action of suspending Pakistani overfli ghts, the Ministry of Tourism
and Civil Aviation had sent a message to the Presi dent of the Council dep l o ring the
Annex 5
C-Min. LXXIV/3 (Closed} - 68 -
detention of the passengers and crew of the hijacked aircraft in Pakistan for two
days and the destruction of the aircraft as "contrary to the principles of the
Chicago Convention and other international conventions .•. 11
• 1n a commentary
on Article 60 of the Vienna Convention, the International Law Commission had
said that the formula 11invoke as a ground" was intended to underline that the
right arising under the Article was not a right arbitrarily to pronounce a treaty
terminated; if the other party contested the breach or its character as a "material"
breach, there would be a 11difference 11 between the parties in regard to which the
normal obligations of the parties, under the United Nations Charter and under
general international law, to seek a solution of the question through pacific means
would apply. The Commission therefore contemplated that even in cases covered
by Article 60 there would have to be recourse to the machinery for settlement of
disputes when there was an allegation and denial of material breach. If Article 60
was applicable in the present case, whi h he disputed because of the express provisions
for termination in the Convention and Transit Agreement, it was subject
to the doctrines of mat rial breach and disproportionate reprisal and the Council
had jurisdiction to deal with a disagreement between two States in respect thereof.
7. Mr. Pirzada also rejected the argument that if the contract ended, the
arbitration clause also ended and the arbitrator therefore did not have jurisdiction,
citing the judgement of the House of Lords in the case "Heyman versus Darwin" in
1942 - 11 Even in the case of termination, repudiation or rescission, the arbitration
clause will be applicable and the arbitrator will have jurisdiction to determine
whether the termination or repudiation was justifiable or not or whether the injured
party may claim compensation. 11 Thus whether Article 60 of the Vienna Convention,
the advisory opinion of the futernational Court of Justice, or the analogy of rrnmicipal
law was applied, a contract - in this case the Convention and Transit Agreement -
could not be terminated by unilateral action.
8. As for the argument that the Council, because of its composition, was
not an appropriate body to settle intricate and delicate questions of law, the fact
remained that Article 84 empowered the Council to consider disagreements betwee
Contracting States that could not be settled by direct negotiations, giving the right
of appeal from its decision to an ad hoe tribunal or the fut rnational Court of Justice.
Even under municipal law, partie-;-could agree to refer questions of law as well as
of fact to the arbitration of persons who were experts in their own line. Why, then,
should not such questions be referred for adjudication to a body like the ICAO
Council?
9. In answer to the allegations of India concerning Pakistan I s conduct in
the hijacking incident, Mr. Pirzada read into the record the relevant parts of
Pakistan's response to the preliminary objection in support of his contention that
its behaviour had been correct and honourable. He suspended his presentation at
this point, indicating that he would complete it at the next meeting.
Annex 5
- 69 - C-Min. LXXIV/3 (Closed)
10. In reply to questions by the Representatives of the United States and
Australia, he stated that no progress had been made in respon .se to the Council's
invitation of 8 April to the two parties to negotiate directly for the purpose of
settling the dispute or narrowing the issues. Pakistan had accepted that invitation
and, in view of the Indian Government's note of 31 May 1971 and the letter of the
Director General of Civil Aviation for India of 3 June, had understood that India had
accepted it too. That had also been the understanding of the Council. India had
now advised that this was not the case. In a note dated 21 July 1971, in answer to
one from Pakistan on 25 June expressing the hope that negotiations could start
before the end of June, India's High Commissioner in Pakistan had referred to the
filing of the preliminary objection and had said that there was therefore no question
of holding the proposed bilateral talks in accordance with the Council I s resolution
of 8 April. Mr. Palkhivala explained that the Indian reply had been prompted by
the belief that the negotiations should be held outside the framework of the Council
resolution - India having maintained all along that Indo-Pakistan questions should be
settled bilaterally without third party interference - and that the question of overflights
could not be dissociated from the other questions outstanding between the two
countries; subject to these considerations India was willing to have negotiations.
11. There was a brief discussion on the kind of minutes to be issued for
this series of meetings, ending with the understanding that there would be the
usual 11expanded summary" plus a verbatim record in the English, French and
Spanish languages.
Annex 5
C -Min. LXXIV /3 (Closed) - 70 -
DISCUSSION
Subject No. 26: Settlement of Differences between Contracting States
Pakistan versus India - Suspension by India of Flights of
Pakistani Aircraft over Indian Territory
1. The President: The Council is again in session and the Ch" Pf Counsel
for India continues to have the floor.
2. Mr. Palkhivala: Thank you. If I may, Sir, I shall continue with
Ground No. II, which is that there has been a special regime between India and
Pakistan regarding overflying since the military hostilities of 1965. In that
connection I had read a notification of 6th September 1965, which prohibited all
overflying, and one of 10th February 1966, which modified the first notification
to the extent that there could be overflying with the permission of the Central
Government. I pointed out that the fact that the permission of the Government
of India was necessary was the very negation of the Convention and the Transit Agreement
because under those two treaties you do not need the Government's permission
for overflying. That is where I stopped.
3. To continue the argument from that point, may I request the honourable
members to turn to page 20 of the preliminary objection. If I explain the facts in my
own words, I am likely to take more time than i£ I read the brief narration given
there. To save time, therefore, I shall read the part of the preliminary objection
dealing with Ground No. II.
4. II The Air Services Agreement of 1948 between the two countries
covered air transit across each other's territory and India's overflights
into Pakistan's airspace and Pakistan's overflights into India's
airspace. A copy of the Agreement is hereto annexed and marked 11111•
Thus air transit and overflying each other's territory was governed by
a special regime between India and Pakistan in 1948 and continues to be
so governed up until today. The Convention and the Transit Agreement
do not apply as between India and Pakistan as regards transit and overflying
each other's territory. Consequently, as regards transit and
overflying, no question can arise of interpretation or application of the
Convention or the Transit Agreement as between the two countries, nor
of any disagreement between them on such a question; nor can there be
any question of any action by India under the Transit Agreement against
Pakistan. Since there has been no action by India under the Transit
Agreement against Pakistan, the question of considering any hardship
Annex 5
- 71 - C-Min. LXXIV/3 (Closed)
or injustice to Pakistan within Article II(l) of the Transit Agreement
does not arise. 11
1129. In view of the fact that the question of overflying or tran,,.
siting is governed by a special regime as between India and Pakistan,
and not by the Convention or the Transit Agreement, the Government
of India submit that the Application and the Complaint of Pakistan
are incompetent and not maintainable, and the Council has no jurisdiction
to entertain them or handle the matters presented therein. 11
Now, Sir, comes the important part of the facts.
1130. Assuming India had committed any breach of the special regime
or of the Bilateral Air Services Agreement of 1948, as alleged by
Pakistan, such a dispute cannot be referred to the Council under the
Convention or under the Transit Agreement or under the Rules. There
is no provision whatever conferring any jurisdiction on the Council to
hear or handle any disputes arising out of bilateral agreements. 11
"31. As a result of the armed conflict in August/September 1965
between India and Pakistan, the Air Services Agreement of 1948
between the two countries was suspended. The said Agreement has
since then continued to be in suspension and has never been revived. 11
This is very important and Pakistan's denial of it is incorrect. "Since
1965 the airlines of Pakistan have never operated within India and airlines
of India have never operated within Pakistan. The traffic be -
tween the two countries continues to be handled by third country airlines. 11
11 32. Armed hostilities ceased on September 22, 1965. On January
10, 1966 the Tashkent Declaration was signed by India and Pakistan.
The leaders of the two countries declared 'their firm resolve to restore
normal and peaceful relations between their countries and to promote
under standing and friendly relations between their peoples 1 • Under
Article VI of the Tashkent Declaration, 'The Prime Minister of India
and the President of Pakistan have agreed' - these are the exact words -
'to consider measures towards the restoration of economic and trade
relations, communications as well as cultural exchanges between India
and Pakistan, and take measures to implement the existing agreements
between India and Pakistan'. Under Article VIII, inter alia, 'They
further agreed to discuss the return of the property and assets taken
over by either side in connection with the conflict'. 11
5. If I may pause here for a minute, after the armed conflict, after the
hostilities of September 1965, you have the Tashkent Declaration, which is not concerned
with aviation at all; it is an omnibus bilateral treaty under which both countries
Annex 5
C-Min. LXX'IV /3 (Clos d) - 12
say "We shall restore norn1al C"on1 11111i ati n nd restore the old treaties. 11 Now
either the two countries obey, obs d r •spect the t rms of the Tashkent
Declaration or they do not. No on o ntry an pi k out aviation and say "I want
this right to be r sto:r · d", because th r .. ingle, isolated right as regards
aviation conferred by thl! Tashk nt D c a r tion. The Tashken t Declaration is a
package deal, an omnibus, bilateral r You either tak it or leave it; you
take the whole or none of it; n ilh r tion n say "I shall disregard some of the
material provisions of th Tash1 ent De ld. ation, but I exp •et to be given the right
to overfly.", taking on isolat d iten1 ut f th' nurn rous items which, as I said,
are parts of the packag • deal r( pr( s n cl by tl1 ' shken l Declaration.
6. Now India's compl rnt complaint before the
Council because th Coun il is not th body to h ar ii; but I am only stating a
historical fact - ha s be "'n that Paki t n 1 1 fu ed to r s pect and observe the
terms of the Tashkent D la rati n. Ther f 1 e tlll! question of restoring their pre -
1965 rights as r gards aviation n v r In fa l, as will be seen from the
signals between lh two countri b c1.tld h · our pr •li n1ina ry submission , Pakistan
itself said "Let us resume ov rflying n a pro · siona l basis. 11 It used the word
'provisional'. We agreed to th, t, In our r ply we said "All right, on a provisional
basis let there be restoration. 11 Th1 r l lion, th honourable members will
recall, was .only in respect of ov rflying, nut n n-traffic stops , which are also
covered by the Con vention and th • Tr n it Agi·l eu1enl. Therefore one part of the
Convention and the Transit Agre n1 nt ne 1· restored. Even the part which
was restored, nam ·ly ov rfl,:ing, wa. not th bc,olutc right as conferred by the
Convention and th Transit Agr n1 nt, b t as ubj et to ach Government's permission.
In other words, s I · n b f lunch, lhc Convention and the
Transit Agreement wer The bilateral
treaty of 1948 was nev r restor d. · sional basis, India and Pakistan,
subject every tim e lo each Gov rn i sion, said "All right. On a provisional
basis and subj t to each 1 t us have overflying."
That is all that happ en d under Lhe
7. preliminary objection.
sed by the President of
rflights of Pakistan and
territ ry, th Governmen t of
f o erf ig1t in the hope that the
crupulou ly adhered to, as sets and
property seized during I 1e arm o ,flic-t woul be restored, and
normal relations woul establi 1 d 11 (This never happened,)
"The general understanding of flu t with regard
to the resumptio n of overflighls wa
(1) The o erflights of Inchan nc a ist-an aircraf t across
each other 1 ::; terdto1y \\er to b on the san1e basis as
prior to August 1, 196S. ' I j bai;i r lated to the fixing
of routes, proccdur 1c, f · op rating perrnission , etc. 11
Annex 5
- 73 - C-Min. LXXIV/3 (Closed)
The honourable members will recall that before 1965 Pakistan airlines used to connect
Pakistan with India and Indian airlines Gsed to connect India with Pakistan. You could
fly from Delhi to Karachi or Delhi to Lahore by Indian airlines or Pakistan airlines
prior to 1965, but not at any date after 1965. Therefore the old aviation freedom was
never restored between the two countries. This is most important.
11(2) The resumption was limited to overflights across each other's
territory. It did not include the right to land in each other's
territory even for non-traffic purposes.
( 3) The resumption of overflights was agreed to on a basis of
reciprocity. 11 (which after the hijacking became impossible in
practice, though theoretically it continued to be possible for
India to fly over Pakistan territory).
11(4) The resE,mption of overflights was to be on a provisional
basis. [A copy of the exchange of signals establishing the aforesaid
understanding between the two countrie~ regarding overflights
is contained in Annexure 12 1 hereto. ':.!_I
8. Will you kindly turn to Annexure 2, second signal from Pakistan to India.
To save time, I am onlypicking out the essential words and leaving the rest unread.
"We have received instructions from our Government" - that is the Pakistan Government -
"that the Government of India has agreed on a reciprocal basis" - mark the words
'reciprocal basis' - "to the resumption of overflights of each other's territory. 11 Now
when two Governments say "This is reciprocal. 11 what they mean is reciprocal for all
purposes of aviation, not in the theory of law, but for practical purposes as practical
governments wanting to fly across another country's territory. If our aircraft flying
over our own territory - we regard Kashmir as a part of India - can be hijacked to
Pakistan with the consequences you have already seen, what would be the safety of
our aircraft if they were to fly over Pakistan territory? The position would be much
worse and much less safe. In other words, for all practical purposes the Government
of India, after the hijacking, came to the conclusion that reciprocity in the field of
safety of aviation was not to be expected of Pakistan vis-a-vis India. Since for all
practical purposes reciprocity was not available to India, and it would have been
extremely dangerous to permit Indian aircraft to overfly Pakistan territory, India
said "Well, on a reciprocal basis in 1966 we had permitted resumption of overflying.
If that reciprocal basis is not available to India for practical purposes, we cannot
allow overflying to Pakistan." This is the clear justification under international law
for India's attitude. I am not elaborating this point because, as I have already said,
the honourable members do not have to decide whether there was justification or not;
they only have to decide whether this point is within their jurisdiction at all.
Annex 5
C-Min. LXXIV /3 (Closed) - 74 -
9. Then, will you kindly turn to the fifth page of the nnexure, where
there is a signal from the DGCA Pakistan to DGCA India on the 9th February 1966.
It is on page 30. I will omit the first ten or t 'elve lines of this signal and may I
request you Lo turn to the last paragraph but one, on page 31, the last sentence
but one: "All former routes over Pakistan territory as existed prior to 1/8/1965
will be available to IAC and AII on a provisional basis. 11 Mark the word "provisional".
The agreement was purely provisional; the special regime was on a
purely provisional basis. This is Pakistan's own suggestion to India. Of course,
the scheduled airlines of India and Pakistan were thinking of resuming their
flights for traffic purposes, but that type of aviation freedom was never restored
even on a provisional basis. Then India replies in the next signal, the or ated
9th February 1966 from DGCA India to DGCA Pakistan. The last sentence of this
signal runs thus: "Flights mentioned in our SIG TOO 081505 will commence operating
from 10th February as suggested in your SIG TOO 091127 on provisional basis. 11
10. Then the next signal from India to Paki s tan, the last one, reads:
"Reference your 3/66/AT I TOO 120935 and 120937. As we have informed you
in our SIGNAL YA 101 TOO 081505, resumption of flights raises questions not
merely of inter-airline importance such as restoration of property, staffing, etc.
These matters will have to be resolved at int r-governm ntal level. We regret
until then it will not, repeat not, be possibl to resume services. In order to
facilitate decision we repeat our proposal that DGCA's India and Pakistan should
meet to resolve various problems arising out of resumption. At appropriate stage
two airlines could also meet as suggested by you earlier. Regarding routes
NOTAMS have been issued and you must have received the1n. 11 In short, the net
result was that the scheduled airlines never resumed flights between the two
countries, even on a provisional basis.
11. Now this is the situation and what is the essence of these signals? I
have been trying to emphasize that what en,erges from these signals is the
following: first, that the special regim · r garding aviation is purely provisional;
second, that it is on a basis of reciprocity, so that if one country does not play
the game the other country is not bound to give the facility; and three, that when
the resumption of overflying is effe ted, the honourable members have already
seen the notification of 10 February 66 which says it is with the permission of the
Central Government. Therefore, in short, the Convention and the Transit Agreement
are out; they are not in operation at all between India and Pakistan as from
1965/66.
12.
says:
If I may read further, paragraph 34 of the Preliminary Objection
" On the basis of the aforesaid understanding, the overflights
of Pakistan and Indian aircraft across each other's territory were
resumed with effect from February 10, 1966. The aforesaid understanding
is hereafter referred to as 'the Special Agreement of 1966 1
•
11
Annex 5
- 75 - C-Min. LXXIV /3 (Closed)
13. Now comes an important paragraph which shows why the hope of
the Tashkent Declaration being fulfilled was completely frustrated by Pakistan's
attitude to India:
11 35. The hope of normalization of relations between India and
Pakistan and the restoration of the status ~ ante the armed conflict
unfortunately did not materialize. Normalcy was not established and
has not been established up to date. Despite several gestures of goodwill
and several unilateral actions on the part of the Government of
India to establish normalcy, Pakistan has continued to keep up a posture
of confrontation bordering on hostility towards India since March 1966.
For exam_ple, India unilaterally lifted the embargo on trade on May 27
1966 and invited Pakistan to do likewise. Till now, Pakistan has not
reciprocated. On June 27, 1966 India unilaterally decided to release
all cargoes seized during the conflict except military contraband. India
also proposed to exchange seized properties on March 26, 1966 and
repeated the gesture on April 25 and December 28, 1966 and on several
occasions thereafter. The only response from Pakistan was to start
auctioning the vast and valuable Indian properties seized by them during
the conflict and appropriate the proceeds to their National Treasury - all
in violation of the Tashkent Declaration. "
The Tashkent Declaration talked of restoration of properties seized during the
armed conflict. India openly and officially said: "We are prepared to restore
all the properties. 11 Pakistan's response was to sell the Indian properties and
take the proceeds into their own national exchequer. This was a clear violation
of the Tashkent Declaration. How could India be expected, then, to restore normal
aviation freedoms?
"India offered to increase cultural exchanges, liberalise visa procedures,
establish bilateral machinery for settling mutual problems - all without
receiving any positive response.
36. The continued policy of confrontation bordering on hostility
adopted by Pakistan and the absence of normal relations between India
and Pakistan since 1966 were the main reasons for the continuation of
the Special Agreement of 1966 between the two countries and for the nonrevival
of the Air Services Agreement of 1948.
37. In view of the above, it is clear that since the Air Services
Agreement of 1948 continues to remain suspended, no question can
arise of any disagreement between the two countries relating to the
application of that Agreement, apart from the point that any such
question cannot be referred to the Council under the aforesaid Articles
and the Council would have no jurisdiction to handle any such matter. 11
Annex 5
C-Min. LXXN / 3 (Closed) - 76 -
14. In paragraph 38 we point out how this Special Agreement, namely
no overflying without the Government's permission, continues to operate even
today:
"The Special Agreement of 1966 has governed the rights and privileges
of India and Pakistan regarding air transit and overflying from February
1966 till February 1971." - when the hi.jacking incident resulted in the
Indian Government's withdrawing its permission - "That Special Agreement,
which was provisional and on the basis of reciprocity, could not
continue in view of Pakistan's aforesaid conduct and the reation by
Pakistan of conditions which mad it most unsafe for Indian aircraft to
overfly Pakistan's territory . The freedom of Indian and Pakistan ai. rcraft
to overfly each other's territory under the Special Agreement of
1966 was always subject to pennission by the respective Governments
and was to be exercised in accordance with the terms and conditions of
that permission. Copies of the Notifications issued by the Government
of India dated September 6, 1965 and February 10, 1966 ....... , which
make this point abundantly clear, are hereto annexed and marked
Annexure 1 3 1 • 11 - I have already read those notifications just before
lunch and you hav seen that in so many words they say quite clearly
'No overflying without the Government's permission.' - "This basic
limitation was never removed. 11
Therefore the complaint of Pakistan in 1971 is a complaint which refers to what
happened in 1965. For five years they never complained. It is now that the complaint
is made. I mean the application; I am not using the word 'complaint' in the
technical sense of the Rules. If the application has any substance, it should have
been made in 1965/66, because from that date on, as you have seen, the Convention
and the Transit Agreement have been suspended between the two countries.
15. If I may read further in paragraph 38:
"This basic limitation was never removed, and even the limited
right of overflights was never put on a regular basis. The Special
Agreement of 1966 was in force up to February 3, 1971, in law as
well as in practice, and the right of Pakistan to overfly Indian
territory was subject at all material times to the permission of the
Government of India. This permission was withdrawn from February
4, 1971, and India had the right to withdraw such permission under the
Special Agreement of 1966. The Government of India propose to say
here nothing more regarding that Special Agreement, since Pakistan's
Application and Complaint do not deal with, and do not relate to, that
Special Agreement. 11
Annex 5
- 77 - C -Min. LXXIV /_3 ~(Close~) .
16. There is a summary i n the form of fo u r propositions in paragraph 39
of the Preliminary Objection:
"a)
"c)
d)
there is no disagree m e nt b e tween India and Pakistan relating
to the interpretatio n o r ap pli cation of the Convention or the
Transit Agreement . 11 (Th a t is why this honourable Council
has no jurisdictio n . I will not rea d b) just now because it
pertains to the second case - the C om plaint, but c) and d) are
relevant.)
the question of Indian ai r c r a ft ove rflying Pakistan and Pakistan
aircraft overflying India is governe d· by a Special Regime and
not by the Conve n tio n or the Transit A greement; and
the Council has no ju r isdicti on to han dle any dispute under a
Special Regime or a Bilateral Agreem ent . "
17. Now, Sir, this in bri ef is the case of India regarding the question
of jurisdiction. In the course of my a r gument, wh i ch I hope has not been unduly
long, I have referred to the fact th a t in the English language the words "interpretation"
and "application" are so cl e a r, so p r ecise an d with such a clear-cut legal
connot a tion that their meaning ca nn o t p o ssi bl y be m isunderstood. I did not refer
to the French and Spanish te x t s of th e Co nve n ti on an d Transit Agreement, which I
am aware are equally authoritat ive; that is only becau se of the limits of my own
education. I am unfortunately ig n o rant of those two l anguages, which a civilized
man ought to know, and it is my i gn o rance of them wh ich is responsible for my
not referring to those words in th e two other language s. People who understand
French and Spanish, however, tell me that the equiv alents of the English "interpretation"
and "application" are so cl ear , s o u nam biguous, that the arguments
which have been heard as regards th e English tex t would apply with equal force to
the French and Spanish texts of th e Co nvention an d Transit Agreement. I ask the
honourable members' pardon for no t b ei ng able to s ay anything more regarding
the words in those two language s.
18. I have come to th e e nd of m y argume nt on the first case except for
just one fact which I wanted to m en tion and that i s Pakistan's somewhat curious
contention that India is estopped fro m pl eading the Special Regime because India
has throughout the last five years, fro m 196 6 t o 1971, acted on the basis that the
Convention and the Transit Agree ment app l y as be tw een the two countries. Now
let us not confuse the issue by r eferring to anything other than overflying, because
the whole Application of Pakista n is ab out overflying. The question of making nontraffic
stops in India is out because we have never a llowed Pakistan to make these
stops, except perhaps on some r a r e o c c asi ons which I am not aware of and which
have been with the special permis s ion of the Gove r nm ent. So far as overflying is
Annex 5
C-Min. LXXN / 3 (Closed) - 78 -
concerned, if we have said, as we have categorically, that it can only be with
the permission of the Government a.nd if the Convention and Transit Agreement
in turn say that permission of the Government is not necessary, I completely
fail to see how any human mind can reconcile the two and say that when the Indian
Government says "Tak~ my permission.", what it means is that "I give you the
rights under the Convention and the Transit Agreement." It is a contradiction
in terms and my simple mind is not able to reconcile these two positions, which
to me appear clearly conlr adictory. A government saying "Take my permission. "
is a government which expressly says "I do not recognize the Convention and the
Transit Agreement as between our two countries. 11, because if these two international
treaties were recognized, the question of the Government's permission
can never arise. You have seen already what the Indian Government categorically
said in 1966 and that notification continues in force today: that Pakistan shall not
overfly India except with the Indian Government's permission. Therefore the
case of Pakistan that India has accepted for the last five years the Convention
and the Transit Agreement as regards overflying in its relations with Pakistan is
the complete contrary, the very opposite, of the truth.
19. I have, Mr. President, finished my argument on the first case. I was
wondering if you would like me to deal with the second case.
20. Th President: No. We will deal with the two cas s separately .
21. Mr. Palkhivala: Then all that remains is to hand over, if I may,
to your office, Mr. President, these photostat copies of xcerpls from the judgement
of the International Court of Justice and the question and answer between the
International Court and the US Counsel, because I understand that the ICAO Secretariat
has not yet received copies of this judgement and the proceedings. Therefore, Sir,
in order that the honourable members may be able to read the relevant provisions
of the judgement for themselves, we are having photostats made from the official
report of the judgement and from a typed copy of the question put to the United States
Counsel and the answer given by him, which, as I have already indicated, has been
endorsed and made a ruling of the International Court of Justice. The photostat
copies should be ready in half an hour and if you will permit me I shall hand them
over later.
22. If I may add one thing, when the Tashkent Declaration was signed,
our Prime Minister wrote to the President of Pakistan. I shall read the text of
her letter, written on the 3rd of February 1966, merely to show that after the
Tashkent Declaration the only question which the two Governments considered
was overflying with each Governmenl' s permission; the question of stops in the
two countries for non-traffic purposes did not arise at all. This is what the Prime
Minister of India said: "Our Foreign Minister and De fence Minister, on their
Annex 5
- 79 - C-Min. LXXIV /3 (Closed)
return from Tashkent, informed us of your desire for the early resumption of
overflights of Pakistani and Indian planes across each other's territory .... 11
The rest is the historical part which I have already read. Not that anything turns
on it, but it is one of the strange coincidences in the history of relations between
the two countries that this letter is dated the 3rd of February 1966 and on the eve
of the fifth anniversary of it, to be precise the 2nd of February 1971, our aircraft
was blown up on Pakistan territory. Thank you, Sir. I am sorry if I have taken a
little longer than I originally expected.
23. The President: Thank you very much. I now turn the floor over
to the Chief Counsel of Pakistan.
24. Mr. Pirzada: Mr. President and honourable members of the
Council, my endeavour will be to submit before y-ou that the objections filed
by India are misconceived, bad in law and incompetent, and I will endeavour to
show to you that this august Council has jurisdiction to entertain the Application
and the Complaint filed by Pakistan. I will deal with the various contentions which
have been raised by the Counsel for India today in support of the said objection, but
I must say that the Counsel for India did not confine himself to the legal points;
here and there he touched on matters pertaining to the merits of the dispute. He
has also, on occasion, made certain allegations which with regret, but with restraint
and resp e ct, I will have to revert to and repudiate on the relevant and appropriate
occasion.
25. The main foundation of the argument is that this is a case of termination
of the agreement or treaty and is not a c1se of application or interpretation and
therefore, according to the Counsel for India, this body has no jurisdiction to go into
it. Now I will meet the various points raised here in my own way and will try as far
as possible to be concise and precise. I will not take you to Alice in Wonderland or
the Ritz Hotel according to the dictum of Lord Justice Darling, as has been suggested
by my esteemed friend here, but I will go somewhat on the following lines. First and
foremast, as we are dealing with a very important and fundamental convention, which
gurantees the freedom of civil aviation, I will submit to you what are the canons of
construction or rules of interpretation applicable in such circmnstances; then I will
apply those rules to the various provisions and articles of the Convention and the
Transit Agreement and base my contention thereon.
26; Coming first to the canon of construction applicable to the Convention as
well as to the Transit Agreement, you will notice that it is a multilateral treaty and that
it provides an organization and a machinery of a permanent character to deal with
disputes. As soon as we have noted, among others, these two points, then the
following canon of construction,which has been laid down by the International Court
of Justice, is immediately attracted and becomes applicable. I am referring to the
leading case "Certain expenses of the United Nations" and I am relying on a passage
from the pronouncement of that august court to show what the rule of interpretation
or canon of construction is in such cases. I will not trouble you with the original
citation. I shall refer to certain passages given in ''International Law through the
Cases" by Green, third edition, pages 601 to 603. It was laid down therein that the
Annex 5
C -Min. LXXIV /3 (Closed) - 80 -
cardinal rule of interpretation is that the words ought to be read in their ordinary
and natural sense. II so read, they make sense; that is the end of the matter. Then,
proceeding further, it is mentioned and stated that "In the interpretation of a multilateral
treaty which establishes a permanent international organization to accomplish
certain stated purposes there are particular considerations to which regard should
be had. The Charter's principles were of necessity expressed in broad and general
terms. It attempts to provide against the unknown. . . . . . . Its text reveals that it
was intended - subject to amendments - to endure for all time .... its provisions
were intended to adjust themselves to the ever-changing pattern of international
existence. It established international machinery to accomplish its stated purposes.
Its particular provisions should receive a broad and liberal interpretation unless the
context of any particular provision requires, or there is to be found elsewhere in the
Charter something to compel, a narrower and restricted interpretation. 11 Therefore
what emerges and what is laid down here as a well settled principle is this: that
the interpretation of a multilateral treaty like the one with which we are directly concerned
here today must be large and liberal and not in any narrow sense, or, as we
say in our domestic jurisdiction, especially in the common law, not in a pedantic sense.
The interpretation that has been canvassed before you all along, both in the Objections
and today, is a narrow one, a very narrow one. Whether we go to the English
text or to the French or Spanish, the canon will be the same: that we have to give
a large and liberal interpretation to the provisions because there is regular permanent
machinery available under the Convention that is equally entitled to go into
the matters under the Transit Agreement. Having laid down this canon of construction,
I will now take you to the provisions of the Convention. If I refer to some
other provision~ and then come to the relevant Article, the matter will become
clear.
27. Now the main Article on which we are placing reliance, and which,
of course, has been referred to even by the Counsel for India, is Article 84 of the
Convention. Let us read the words because I regret to say that although reference
was made to the expression "interpretation or application of this Convention", and
though the Article was read, it was not considered in its full context and in toto.
I shall read again the relevant portion, especially the first part of it. It says:
"If any disagreement between two or more contracting States relating to the interpretation
or application of this Convention and its Annexes cannot be settled by
negotiation, it shall, on the application of any State concerned in the disagreement,
be decided by the Council. " For the pre sent the rest is not relevant. Now please
take into consideration that the opening words are equally important and they are:
"If any disagreement between two or more contracting States relating to the interpretation
or application of this Convention". Therefore we have to consider the
Annex 5
- 81 - C-Min. LXXIV/3 (Closed)
following expressions: 'any', then 'disagreement', then 'interpretation', and,
lastly, 'application of the Convention'. Each one is important and I will show
you that the effect of the inclusion of all these expressions is this: that it is a
comprehensive clause, in fact much wider than Article 36 of the Statute of the
International Court of Justice. It is all-embracing and can cover all disputes.
28. But let us go back now to these expressions. Article 36 of the Statute
of the International Court of Justice talks of "interpretation of a treaty", but
here we have not only interpretation, not only application, but the expression "any
disagreement between two or more contracting States". In other words, "any"
would certainly cover all questions, but the emphasis is also on the word "disagreement",
relating, of course, to the interpretation or to the application of the Convention.
Now this word "disagreement", which is synonymous with and in fact interchangeable
with the word "dispute", has been considered many a time by the Permanent
Court of Justice and the International Court of Justice. I will refer only to
two cases to show how it has been interpreted.
29. First of all, let me refer to the case "Interpretation of Peace Treaties".
Now this is a passage which deals with the elucidation of the expression "dispute" or
"disagreement". 11 V{hether there exists an international dispute is a matter for
objective determination. The mere denial of the existence of a dispute does not prove
its non-e x istence. In the diplomatic correspondence submitted to the Court, the
United Kingdom, acting in association with Australia, Canada and New Zealand, and
the United States of America, charged Bulgaria, Hungary and Romania with having
violated in various ways the provisions of the Article dealing with human rights and
fundamental freedoms in the peace treaty, and called upon the three governments
to take remedial measures to carry our their obligations under the treaty. The
three governments, on the other hand, denied the charges. There has thus arisen
a situation in which the two sides hold clearly opposite views concerning the question
of the performance or non-performance of certain treaty obligations. Confronted with
such a situation, the Court must conclude that international disputes have arisen. 11
Then it is added: "Inasmuch as the disputes relate to the question of performance or
non-performance of obligations provided in the Articles dealing with human rights and
fundamental freedoms, they are clearly disputes concerning the interpretation or
execution of the peace treaties. 11 Now the emphasis here is on a situation in which
two sides hold clearly opposite views concerning the question of performance or nonperformance
of certain treaty obligations. I will show in due course that even assuming
that . the contention advanced by India is correct, the situation is the same as the one
I have been speaking of and is covered by the dictum of the International Court of Justice.
30. The second case is "Mavrommatis Palestine Concessions" and in it the
expression "dispute" or "disagreement" was defined and interpreted by the International
Court in this way: "A dispute is a disagreement on a point of law or fact, a conflict of
legal views or of interests between two persons. The present suit between Great Britain
and Greece certainly possesses these characteristics. The latter power is asserting its
own rights by claiming from His Britannic Majesty's Government an indemnity on the
ground that one of its subjects has been treated by the Palestine or British authorities in
a manner incompatible with certain international obligations which they are bound to
observe ..... Therefore it is a dispute, because there is a conflict of legal views or
interests b e tween two States. 11
Annex 5
C-Min. LXXIV/3 (Closed) - 82 -
31. There is a third case, but I am deferrring it for the present, because
after I have covered other grounds it will more or less clarify the whole matter. So
when there is a conflict between two States and one is asserting one view and ,the other
is denying the same, it is a disagreement and, if it is a disagreement, then the
Council has jurisdiction to go into, determine and decide it. For example, in this
case, India is saying that the Convention and the Transit Agreement had be n unilaterally,
though unjustifiably, terminated by it and once they are terminated they
are not in existence; if they are not in existence, then this Council has no jurisdiction
to go into the action of India. We, on the other hand, maintain - I will show this
on another independent ground - that the Convention and the Transit Agreement are
very much alive and it is a case of application as well as of interpretation of the
Convention. Once we say it is a case of application, Lhe mere denial by India that
it is a case of application will not be sufficient. In fact, I will show to you presently
that a case of denunciation or termination of a convention or treaty is a case of application
as well as of interpretation of the treaty.
32. I am referring to an Indian author himself. I am relying on the book
entitled "Unilateral Denunciation of Treaty Because of Prior Violations of Obligations
by Other Party", by B. P. Sinha. The page is 2 and the paragraph reads like this:
"It is likely that a State may allege violations of obligations of a treaty by other party
or parties in order to justify its act or decision for unilateral repudiation of its obligations
under the treaty. Motivated by policy considerations, a party to a treaty may
accuse another of committing breaches of obligations in order to release itself from
its obligations, which it may consider as being onerous. An accused party may
retort by charging the complaining or denouncing party with mala £ides" - as we do
in this case - "in initiating charges of violations of treaty obligations. The complaining
or denouncing party's charges of violations of obligations by other party or
parties may indeed be genuine and justified and the denial of such charges by an
accused party or parties may be just a smoke-screen to hide an illegal act. A complaining
or denouncing party may refuse to accept the bona £ides of the accused party
and vice versa. Consequently, a situation may be foreseen where a dispute may
arise" - kindly note these words - "from a divergence of opinion between the parties
related to interpretation or application of treaty obligations. 11 I repeat the words
"A situation may arise from a divergence of opinion between the parties related o
interpretation or application of treaty obligations. 11, and that is the situation which
has arisen here. More than that, even on the language of Article 84 - and
the same will be the position under Article ID of the Transit Agreement - I have
shown that if a disagreement of this kind arises, then it will be deemed to be a
disagreement relating to the interpretation or application of the Convention and the
Council certainly will have jurisdiction to determine the same.
Annex 5
- 83 - C -Min. LXXIV /3 (Closed)
33. I now come to the main point. It has been suggested that the question
of termination of a treaty is dehors the treaty, that in fact it is the sovereign
right of a State to denounce a treaty at any time it likes. Now reliance was placed
on the so-called "principle of customary international law", then on Article 60 of
the Vienna Convention and finally on certain observations made recently by the
International Court of Justice in the famous case wherein a reference was made
by the Security Council concerning Namibia. I will deal with these sub-points in
a moment, but all these questions certainly would not arise under the Convention
and Transit Agreement, because the principle, or alleged principle, of customary
international law, Article 60 of the Vienna Convention, and what was expressed
as an advisory opinion by the International Court of Justice in the case of Southwest
Africa against South Africa are all concerned with cases where the convention or
treaty is silent as to the mode and manner of its termination, whereas the Convention
and the Transit Agreement have express provisions on termination. In
fact, the Convention and Transit Agreement were evolved after mature consider -
ation and deliberation, having regard to various exigencies and situations that
might arise. If they contain any express provisions on termination, the question
of having recourse to implied powers would not arise. That would be the first
and foremost point.
34. Now let us see what are the proV1 s1ons contained in the Convention
and in the Transit Agreement. They took into consideration certain events which
can take place and in those events certain rights accrue to the contracting parties.
For example, they took into consideration the event of war and made provision for
denunciation. So they did contemplate and in fact provide for termination, denunciation
and repudiation in certain circumstances. Let us . look at the Convention
first. Article 89 reads: "In case of war, the provisions of this Convention shall
not affect the freedom of action of any of the contracting States affected, whether
as belligerents or as neutrals. The same principle shall apply in the case of any
contracting State which declares a state of national emergency and notifies the
fact to the Council. 11 So in the Convention we are not relying on implied powers.
For example, even in municipal jurisdictions and in ordinary contracts - because
there was an attempt to draw an- analogy between a treaty and an ordinary contract
under municipal law - either there is an express provision or if there is no provision
you can rely on the doctrine of implied power to terminate those contracts.
Here express provision has been made and therefore my first point would be that
the Convention can be repudiated, denounced, or terminated in the manner provided
and in the presence of express provisions recourse need not be had to
implied powers. As I have just said, the drafters of the Convention contemplated
war and in Article 89 took special care to clothe contracting States with certain
rights.
Annex 5
C-Min. LXXIV /3 (Closed} - 84 -
35, I come now to Article 95. It says: "(a) Any contracting State may
give notice of denunciation of this Convention three years after its coming into
effect by notification addressed to the Government of the United States of America,
which shall at once inform each of the contracting States. (b) Denunciation shall
take effect one year from the date of the receipt of the notification and shall operate
only as regards the State dfecting the denunciation," Dealing with this, the
Counselfor India says that this is a right of denunciation, not a right of termination,
and secondly he urged that denunciation is denunciation in respect of all the
States which are contracting parties to this multilateral treaty, the Convention,
not in respect of only one State, It is a well established principle of law that the
whole includes the part. If Article 95 contemplates denunciation in respect of all
parties, it equally contemplates denunciation in respect of one of them. It may
be India against Pakistan or vice versa, and therefore if India desired to terminate
or denounce the Convention just in respect of Pakistan, it had to do so in the
manner and the mode provided herein, Unless it does so there is no legal or
valid denunciation or termination and Pakistan can justifiably come before this
Council urging that India's unilateral or arbitrary action is illegal, and in fact
its failure to perform its obligation under the Convention and the Transit Agreement
immediately attracts the Complaint and the Application which have been
presented by Pakistan and clothes the Council with jurisdiction to hear and determine
the same.
36. Therefore my first point is that in view of the express prov1s1ons
in Articles 89 and 95 and having regard to Article III of the Transit Agreement,
there is no termination of the Convention or the Transit Agreement by India and
that in fact they are operative, they are in existence, In any case, when we say
they apply and when India says they do not apply, there is certainly a disagreement
within the meaning of the Articles for the purposes of both the Convention
and the Transit Agreement.
37, Now take the alternate case, the case which is being suggested by
India, namely that a State has a right to terminate a treaty under customary law,
which has now been given recognition in Article 60 of the Vienna Convention.
Let us go to Article 60 of the Vienna Convention. First of all, the opening part
of the Article is very important, It starts: 11A material breach of a bilateral
treaty" - first it refers to a bilateral treaty and secondly only in case of material
breach by one of the parties is the other entitled to invoke the breach as a ground
for terminating the treaty or suspending its operation in whole or in part. So in
case of a bilateral treaty and then only for a, material breach - not any breach,
not a technical breach, not in a case where you can make a mountain out of a
molehill - in case of material breach of a bilateral treaty by one of the parties,
what happens? It entitles the other to invoke the breach as a ground for termination.
It is only an entitlement to invoke the breach as a ground for terminating
the treaty or suspending its operation in whole or in part. And action under
Annex 5
- 85 - C-Min. LXXIV/3 (Closed)
Article 60 is subject to Article 45 of the same Vienna Convention, which provides
that a State may no longer invoke a ground for invalidating,terminating, withdrawing
from or suspending the operation of a treaty under Articles 46 to 50 or
Articles 60 and 62 if,after becoming aware of the facts, it either ·expressly agrees
that the treaty is valid, remains in force or continues in operation or by reason
of its conduct must be considered as having acquiesced in the validity of the treaty
or in its maintenance in force or in operation, as the case may be. I will deal
with the case of estoppel by the conduct of India. I will come back to Article 45,
but the point at this stage is that Article 60 itself firstly is qualified by very
important conditions, namely material breach of a bilateral treaty and merely
entitling the State to invoke the breach as a ground, and secondly is subject to
other provisions, one of which is Article 45.
38. The International Law Commission itself, in its reports and conunents,
elucidated what was really intended to be covered by Article 60 of the Vienna
Convention. First of all, it referred to two cases in which the question was about
termination. In one case the question was raised by implication, with one party
resisting termination and saying "No, the treaty is in force; therefore there is a
dispute; it must be investigated and relief may be given. 11 In the second case the
question was directly raised, one party saying "We have repudiated." and the other
party "There has not been a legal and proper repudiation and therefore the tribunal
has jurisdiction." The Commission said that in these cases a dispute would
arise and would have to be adjudicated. Now this is a commentary in the Report
of the International Law Commission on the Second Part of its 17th Session,
3 to 28 January 1966, Official Records of the 21 st Session, Supplement No. 9
(A/6309/Rev. 1), pages 82 and 83.
39. I will first refer to the two cases and then to the paragraph in which
the Commission has elucidated this point. The two caaes referred to are
"Diversion of Waters from the Meuse" and "Tacna-Arica Arbitration". In th.e
case II Diversion of Waters from the Meuse", Be.1gium contended that by constructing
certain works contrary to the terms of the Treaty of 1863, Holland
had forfeited the right to invoke the treaty against it. Belgium did not claim to
denounce the treaty, but it did assert a right, as a defence to Holland's claim, to
suspend the operation of one of the provisions of the treaty on the basis of
Holland's alleged breach of that provision. Although it pleaded its claim rather
as an application of the principle inadimplementi non est adimplendum, The
Court, having found that Holland haa not violated the Treaty, did not pronounce
upon the Belgian contention." In the other case, the only other case that seems to
be of much significance, Tacna-Arica Arbitration, Peru contended that by preventing
the performance of Article 3 of the Treaty of Ancon, which provided for
the holding of a plebiscite under certain conditions in the disputed area, Chile
had discharged Peru from her obligations under that Article. The Arbitrator,
after examining the evidence, rejected the Peruvian contention, saying that
Annex 5
-Min. LXXIV / 3 ( Closed) - 86 -
''It is manifest that if abuses of administration could have the effect of terminating
such an agreement, it would be necessary to establish such serious conditions as
the consequence of administrative wrongs as would operate to frustrate the pur -
pose of the agreement and, in the opinion of the Arbitrator, a situation of such
gravity has not been shown . 11 So the question of justification and termination was
considered relating to, concerning, and in the construction of the Treaty.
40. After referring to these cases and other provisions and opinions of
jurists, the Cornrnission concluded, in paragraph 6 on page 83, "Paragraph 1
provides that a •material I breach of a bilateral treaty by one party entitles the
other to invoke the breach as a ground for terminating the treaty or suspending
its operation in whole or in part. The formula 'invoke as a ground' is intended
to underline that the right arising under the Article is not a right arbitrarily to
pronounce the treaty terminated". - It is not a right arbitrarily to pronounce the
treaty terminated. - 111£ the other party contests the breach or its character as a
11naterial' breach" - as we are doing here - "there will be a differencc 11 - please
note this expression - 11be'ween the parties, wlth regard to which the normal obligations
incumbent upon the parties under the Charter and under general international
law to seek a solution to the question through pacific means will apply."
Therefore, the International Law Commission contemplated that even in the
cases covered by Article 60, when there is an allegation of material breach and
a denial, recourse will have to be had to the machinery provided by the treaty
for the settlement of disputes, namely adjudication or negotiation or whatever
provision is incorporated therein.
,H. Now Article 60 and this principle found recognition in the recent
case of Namibia and in the opinion expressed by the International Court of
Justice, which was referred to this morning and relied upon by the learned
Counsel for India. I had the honour and privilege to appear in the said case and
to support the Resolution of the General Assembly revoking the mandate of South
Africa over Namibia and I will in a moment explain what the point involved was,
In fact it has no bearing on the point under consideration in the case before this
Council. The honourable members of the Council will recall that the mandate
over Namibia was given to South Africa by the League of Nations. The League
of Nations was replaced by the General Assembly of the United Nations in 1946.
The question arose that by various breaches of the obligations which were cast
on South Africa under that mandate and by its practice of apartheid - the discrimination
which the Government of South Africa as mandatary was practidng
against the population - it had forfeited its right to govern that territory. This
became the subject matter of various advisory opinions and decisions of the
International Court of Justice right from 1950 to 1971, and in the year 1950, as
well as in 1962, the International Court of Justice found that by its conduct South
Africa had committed breaches of the material conditions of the mandate.
Annex 5
- 87 - C-Mi n. LXXIV/3 (Closed)
Therefore the mandate stood terminated. This was eventually so determined by
a resolution of the General Assembly, and eventually the Security Council made
a reference to the International Court of Justice seeking its opin.1.on as to the
consequences arising out of that r e solution and the obligation of the various States
to honour the resolutions passed by the General Assembly and reflected in various
other resolutions of the Security Council.
42. The contention of South Africa was that the mandate was irrevocable
as there was no provision for revocation in it at the time of th "' League of Nations.
It is this aspect which was dealt with on pages 46 to 47 and in paragraphs 91 to 96.
The International Court of Justice therefore was dealing with c.. mandate which
South Africa claimed was irrevocable , as in the mandate there was no provision
for revocation, and hence the Court applied the analogy of Arti cl 60 of the Vienna
Convention. There was no expres s p ro vision and not only this: because, if you
proceed .further and read paragraphs 99 t o 106, it will beco me clear that the
following propositions emerge from the advisory opinion of the International Court
of Justice. First, they said that the fact that there is no expre ss provision in the
mandate does not mean that trusteeship by South Africa bec ome s ownership by
South Africa; the mandate will still be terminable in case of mat erial breach. They
also dealt v;ith the contention of South Africa that there hacl not been a unilateral
and arbitrar y termination of the mandate by the General Assembly. In fact
they said that the opinion was expressed by this very court on earlier occasions,
wherein on facts they found that South Africa was guilty of apart heid and various
other acts of omission and commission and breach of obligations under the
mandate. Therefore there was ample justification for the General Assembly to
pass the resolution, and then in the particular jurisdiction whic h the International
Court of Ju.,,tice was exe rcising, it expressed that advisory opi nion. Nothing has
been said in this case and in this advisory opinion which militates against the
submission which I have been canvassing before you, becaus e I have pointed out
two cases of the International Court of Justice which deal directly with situations
arising in circumstances similar to those in which India and Pakistan have come
before you today in this case.
43. Then the analogy of municipal law was given. In fa ct this was also
referred to by the International Court. Now what happens ev en in municipal law?
There are a greements and contracts entered into by and between parties. These
sometimes make express provision for termination, resciss ion and repudiation.
On other occasions recourse has to be had to implied powers of repudiation,
rescission and termination, and in a number of cases there have been clauses in
the contracts for the reference to arbitration of disputes relating to or arising
under the contract. Cases have arisen wherein one party has alleged that it has
repudiated the contract and therefore as the contract has gone,the arbitration
clause has also gone, because if the contract is alive the part of it pertaining
to arbitration is alive and if the contract goes the arbitration clause goes and the
Annex 5
C-Min. LXXN/3 (Clos d) - 88 -
arbitrator then does not have the jurisdiction to decide and adjudicate on the
matter. That was the approach taken by some of the courts before 1942, but in
that year the point was well settled in the famous case of Heyinan versus Tu.rwin.
This case was decided by the House of Lords and is reported in 1942 Appeal
Cases, 356. The decision was that even in case of repudiation, rescission or
termination, the arbitration clause will be applicable and the arbitrator will have
jurisdiction to determine whether circumstances exist wherein the party who
claims to repudiate or terminate U1e contract was justified or whether the claim
of the other party, saying that the contract was alive and that he is entitled to
either damages or compensation, is valid.
44. So whether we apply Article 60 of the Vienna Convention,or whether
we go to the recent advisory opinion expressed by the International Court d
Justice, or whether we follow the analogy of the municipal jurisdictions and
ordinary law of contracts, the fact remains that by unilateral action of one of the
parties, or one of the Contracting States, the contract or the Convention cannot
be said to have been terminated and in fact the tribunal in those cases, the Inter -
national Court in certain other cases, and the Council in the present case, does
have jurisdiction to determine the disagreement between the parties.
45. In view of these submission.:, I need not trouble or detain you with
other Articles of the Convention on which reliance was placed by the other side
to show that only cases of infractions are covered, because,as I have said, this
Article 84 is an Article of a comprehensive character, wide enough to cover a
dispute or disagreement as to application or non-application or as to interpretation,
which would include a dispute as to the termination thereof, and the
Council will be competent and will have jurisdiction to go in this matter.
46. When I was referring to the case "Interpretation of Peace Treaties"
and the Mavrommatis case, I had said there was a third case of the International
Court of Justice. Mr. President, this is the case known as the Chorz6w Factory
Indemnity Case. It is a judgement of the Permanent Court of International
Justice of 1928, Series A, No. 17, and it concerned a German interest in Polish
Upper Silesia. Therein the Permanent Court held that "itis a principle of inter -
national law that the reparation of a wrong may consist in an indemnity corres -
ponding to the damage which the nationals of the injured State have suffered as
a result of the act which is contrary to international law. The reparation due by
one State to another does not change its character by the fact that it takes the form
of indenmity and calculation of damages. The Court observed that it is a principle
of international law, and even a general conception of law, that any breach of an
engagen,ent involves an obligation to make reparation and therefore the Court
retains the jurisdiction to determine the same." So a case wherein compensation
is claimed or reparation is sought for failure to comply with obligations is a case
of application of a treaty or a convention, and there the International Court said
Annex 5
- 89 - C-Min. LXXIV /3 (Closed)
that it has jurisdiction and likewise here our submission would be that the Council
has jurisdiction to determine the same.
47. Now apart from this, my alternative submission is that India itself
approached this body immediately after the so-called hijacking incident. The
various allegations they have made here I repudiate and deny; I will refer to them
at the appropriate moment. At the present time, I am referring to the communication
received by the honourable President of this Council from the Minister of
Tourism and Civil Aviation of the Government of India, dated 4 February 1971,
which was circulated by the President to all Council Members. Now on page 3 of
this communication it is stated: "The Government of India would like to reiterate
its declared policy of condemning and curbing acts of unlawful seizure of aircraft
and unlawful interference with civil aviation. It deplores the detention of passengers
and crew members in Pakistan for a period of two days and the destruc-tion
of the pijacked aircraft. This is contrary to the principles of the Chicago
Convention and other international conventions, Article 11 of the Convention on
Offences and Certain Other Acts Committed on Board Aircraft, E!igned a.t.Tokyo on
14 September 1963, Article 9 of the Convention for the Suppression of Unlawful
Seizure of Aircraft, adopted at The Hague on 16th December 1970:.n So even on
the 4th of February, when India purports to take the illegal action which it has
taken against Pakistan, its Minister of Tourism and Civil Aviation approached
this Council and made these allegations against Pakistan, one of which was that
the action of Pakistan was contrary to the principles of the Chicago Convention
and other international conventions. This they could state only if the Convention
and the agreements were in force and in operation. Under Article 45 of the Vienna
Convention this is conduct which can be taken into consideration to show that there
has been no termination. I read out Article 45 a little while ago and, I repeat, the
said Article provides: "A State may no longer invoke a ground for invalidating,
terminating,withdrawing from or suspending the operation of a treaty under
Article 46 to 50 or Articles 60 and 62 if, after becoming aware of the facts, •••
• • • • it must by reason of its conduct be considered as having acquiesced in the
validity of the treaty or in its maintenance in force or in operation, as the case
may be."
48. The President: We will have a coffee break now - 15 minutes.
- RECESS -
Annex 5
C-Min. LXXIV/3 (Closed) - 90 -
49. The President: I invite the Chief CoW1sel for Pakistan to continue
his presentation.
50. Mr. Pirzada: Mr. President and honourable members of the Council,
before the tea-break I was dealing with Article 60 of the Vienna Convention and I
was emphasizing that even under it the right of a State to invoke a breach of a
treaty as a ground for termination only arises in case of material breach. Therefore
what I wish to emphasize is that in cases where there is no express provision
in the treaty or convention or agreement for termination and if recourse is to be
had to implied powers, all the conditions contemplated by Article 60 of the Vienna
Convention, and in fact by the other Articles in the said Convention, have to be
complied with. In Article 60 it is not just a case of mere breach; the breach must
be of a material character or, to use the words of the American Counsel in the case
of South West Africa, of a fundamental character. Reliance has been placed on an
answer given by that Counsel and I will explain in a moment the context in which I
under stood him to have given it. But the fact remains that if that ground is to be
invoked by the State, it cannot be invoked at any time, according to the caprice
or whim of a State, on any insignificant breach, but only in case of material breach
of an obligation under that treaty.
51. Now a point hinted at by the learned CoW1sel this morning was that
whether a treaty or a convention can be terminated and if so, under what circumstances
are intricate and complicated questions of law and therefore the Convention
could not have contemplated their adjudication by the Council. He referred to the
composition of the CoW1cil, its technical character, and, according to him, its
non-legal character. With all due respect to him, if we go to Article 84 we find
that in the event of any disagreement between two or more States relating to the
interpretation, construction, or application of the Convention, an effort has first
to be made to settle it by negotiation and if that fails it is to be submitted to the
Council. Then there is the provision: 11Any contracting State may, subject to
Article 85, appeal from the decision of the Council to an ad hoe arbitral tribunal
agreed upon with other parties to the dispute or to the Pe~7ent Court of Inter -
national Justice.,, So the Convention itself contemplated that all kinds of questions
may arise - legal, complicated, certainly - they will arise and in the first instance
they are to be determined by the Council. Later on, certain rights of appeal have
been given to the Contracting States. Therefore not much reliance can be placed
on the argument based on the composition of this august Council. In fact, it is
our experience even with municipal jurisdictions that there are cases arising out
of important .contracts in which important, intricate and complicated questions of
law as well as of fact are referred to domestic tribunals or arbitrators chosen by
the parties. Some of the arbitrators are not lawyers but men well versed in their
own line and they are quite competent to decide. They may decide questions of
fact; they may decide questions of law. So it is no answer to say that because the
composition of the Council is of a particular kind, intricate questions cannot be
Annex 5
- 91 - C -Min. LXXIV / 3 ( Closed)
dealt with and decided by the Council. I submit, with respect, that th e Council
is entitled to decide all questions in cases of disagreement as to the interpretation
or application of the Convention.
52. Mr. President, in the morning my learned friend, while dealing with
the legal aspects and developing his contentions on the points arising out of India I s
Preliminary Objections, referred to paragraphs 5, 6 and 7 of his Preliminary
Objections, which deal with various allegations as to the conduct of Pakistan in
the matter arising out of the hijacking of the plane. It is only for the purpose of
putting the record straight that I have to take your valuable time and I seek your
indulgence to read out our reply thereto, so that the record must reflect the
correct position, because Pakistan has done everything which it was possible for
it to do and has fulfilled all its obligations. It conduct throughout was correct; it
was honourable. The paragraphs read were, as far as I recollect, 5, 6 and 7
and I will read our replies thereto, with your permission:
"Para. 5: The statement made by India is incorrect, irrelevant and has
no bearing on the issue under reference. However, to set the record
straight, it is necessary to state the correct position. The 1965 conflict
was the direct result of Indian army crossing the international
frontiers of Pakistan following a general uprising against military
occupation by India of the State of Jammu and Kashmir. 11
-- and I
repudiate the statement by my friend that Kashmir is a part of India;
it certainly is not. -- "The hostilities were followed by the signing
of the Tashkent Declaration by Pakistan and India. Consequently,
the overflights as existing before the 1 st of August 1965 were resumed
in accordance with the terms of the Bilateral Agreement of 1948, the
Convention and the Transit Agreement. However, because of India's
refusal to implement the United Nations resolution relating to the
exercise by the people of the State of Jammu and Kashmir of their
right to self-determination and her persistence to settle outstanding
disputes on her own terms, no understanding could be arrived at on
other issues.
Para. 6: The allegations made in this paragraph are baseless and motivated
by the desire to mislead the Council. Pakistan had no connection
with and responsibility for the hijacking of the Indian aircraft by two
nationals of Kaslunir from the airspace not of Pakistan but of a territory
under military occupation of India. The Government of Pakistan has
since initiated prosecution against the hijackers and their accomplices.
The conduct of Pakistan in relation to the hijacking incident has been in
conformity with the Tokyo Convention 1963, the Hague Convention 1970, the
!CAO and the UN resolutions on the subject and the practice of States in
general.
Para. 7: The Indian version of the hijacking incident is a gross mis _
repre_sentation of facts." We deny all the allegations you heard in the
morning. "The correct position regarding this incident is as follows:
Annex 5
C-Min. LXXIV /3 (Closed) - 92 -
(a) On January 30, 1971, at 12. 35 hours, Indian Airlines F-27
( Reg. VT-DMA) Service ICC-422-A,enroute from Srinagar to
Jammu, contacted Lahore Air Traffic Control Radio Telephone
and informed that the aircraft was being hijacked to Lahore and would
be landing in 10 minut s time. Immediately on receipt of this information,
fire and security services w re alerted by the Airport
Manager.
(b) The aircraft landed at Lahore Airport at 12. 45 hours local
time. It was parked away from other aircraft, with security and
fire services standing by.
( c) Immediately on landing, the hijackers were requested to
allow the passengers and the crew to disembark. This was not
agreed to by the hijackers at first but after a lot of persuasion
they agreed to let the crew and the passengers out at 14. 32 hours
local time.
(d) The passengers and the crew were immediately taken to the
passenger lounge and subsequenLly transported to a hotel where
arrangements for their accommodation etc. had been made.
(e) The Director General, Civil Aviation of India was informed
of the safe landing of the aircraft.
(f) The Captain of the aircraft (Capt. G. H. Ubroi} was given
clearance in writing by the Regional Controller of Civil Aviation,
Lahore, that he could take off at any time he wished. The receipt
of this communication was acknowledged in writing by the Captain.
( g} The Director General of Civil Aviation, India, requested
permission for operating a relief flight lo Lahore to transport
the crew and the passengers of the hijacked aircraft back to
India. The permission was immediately gran ed. However,
before the proposed aircraft could take off from Delhi, law and
order situation had deteriorated" - this is a very important point -
"due to a large crowd having gathered at the Lahore airport. The
Director General of Civil Aviation was informed accordingly and
advised that the relief flight should not take off for Lahore until
further advice.
(h) Throughout this period one or both the hijackers remained on
board the aircraft. Attempts by the Pakistan authorities to persuade
them to release the plane made no headway as they refused
to negotiate directly with the Government authorities. Consequently,
the hijackers were allowed" - it was not the case that they were asked
to come to the lounge and phone, as alleged this morning - "to contact
some non-officials in the hope that they could persuade the hijackers
to agree to release the ait·craft. At no time hijackers came out of
the plane at the same time. One of them invariably remained on
board. Any attempt to disarm or arrest one would have surely
blown up the aircraft as the two had threatened to do.
Annex 5
- 93 - C -Min. LXXIV / 3 ( Closed}
(i} It may be emphasized that at no time both the hijackers came
off the aircraft at the same time.
(j) Throughout 30th and 31st January, 1971, negotiations continued
with the hijackers in an effort to get the plane released.
(k) On February 1, 1971, the Director General Civil Aviation, India,
was advised by telephone that the law and order situation at Lahore
airport was still unsatisfactory but was likely to improve by after -
noon. Accordingly, the Director General was requested to keep the
relief aircraft in readiness to fly to Lahore at short notice. However,
by mid-day the situation worsened and in the interest of safety" - and
we do mean in the interest of safety; the accusation is otherwise -
"it was thought inadvisable to ask the Indian aircraft to leave for
Lahore. " In fact it would have been endangered because the crowds
were there. "Meanwhile, because of the tension prevailing in the area
around Lahore airport, the Pakistan authorities arranged to send the
passengers and the crew to India by road under proper escort at 1300
hours on FebL·uary 1, 1971." I may pause here to say that we have on
record an expression of appreciation by the Indian High Commissioner in
-Pakistan for-the way in which we housed these passengers and provided
them with other facilities.
(1) On February 2, 1971, the Government of India announced that
the demand for the release of 27 political prisoners in Indian -
occupied Kashmir made earlier by the hijackers as a pre -condition
for the surrender of the plane was not acceptable to India. At 2000
hours on February 2nd, 1971, the hijackers blew up the aircraft. The
hijackers received injuries in the process and were taken to hospital.
(m) Though Pakistan is not a signatory to the Tokyo Convention of
1963 and to the Convention for the Suppression of Unlawful Seizure of
Aircraft of December 16, 1970, signed at The Hague, it condemns
hijacking and is party to the U. N. Resolution 2645(XXV) of 25 November
1970 on aerial hijacking and to the Resolution adopted by the 17th Session
(Extraordinary) of the ICAO Assembly at Montreal in June 1970. In
pursuance of the aforesaid Resolutions, Pakistan authorities not only
arranged to return the passengers and the crew to India within 48 hours,
but also tried all possible means to get the plane released from the
hijackers for its return to India.
(n) The Government of Pakistan had deplored the act of blowing up of
the aircraft. The President of Pakistan constituted a Commission of
Inquiry to inquire into the hijacking of the Indian aircraft, headed by a
senior High Court judge. The Commission examined a number of witnesses,
including the two hijackers. The Commission came to the conclusion
that the hijacking could not have been put into execution at all
without the active complicity, encouragement and assistance of the
Indian Intelligence service personnel and other Governmental authorities
in the Indian-held Kashmir. This was done with the object of seeking
an excuse for disrupting air communications between the Eastern and
the Western wings of Pakistan, to create tension between the various
regions and political parties in Pakistan and to weaken Pakistan financially
and to create a situation under which India could interfere actively
in the internal affairs of Pakistan. 11
Annex 5
C-Min. LXXIV/3 (Closed) - 94 -
53, Then we have enclobf'd the conclusions reached by the Commission
pre sided over by a senior judge uf th High Court. I may also mention that the
Commission examined the two hijackers and one of them has made a number of
statements, I do not wish to prejudge or prejudice his trial, but I will only
submit, with respect, that there i$ ample cogent, clear and convincing evidence
available to show that he was an Indian Security agent, The commission examined
and took statements from a number of other witnesses, some not merely ordinary
individuals - one of them was th Prime Minister of Kashmir, another a former
Prime Minister of Kashmir, and Sh;d.kh Mohammad Abdullah, who is the accredited
representative of the people of th tate of Jammu and Kashmir.
54. One of the insinuations ur allegations made by the learned Counsel
was that when our High Commissiuner was sounded about the likely hijacking he
asked for the disclosure cf the sourc of information. The facts have not been
correctly stated. In the first plr1cf' he asked for the source of the inforn.ation
but simultaneously indicated that 1f the Indian authorities had any he sitatio.1 about
disclosing it, they could inform INTERPOL. I may refer here to Attachment C
to our Application, a note by the Ministry of Foreign Affairs of the Government
of Pakistan, dated 13th February l 971, and I am referring to paragraph 6. It
reads:
"The Government of Pakistan regrets that the Governm.ent
of India has again levelled th baseless charge against the
Government of Pakistan for instigating subversive activities against
India. The Government of Pakistan has repeatedly made it clear
that these charges are \vithout any foundation, In this connection,
the Government of Pakista11 would like to remind the Government
of India that on Septemb r l. 1970, when the Pakistan High
Commissioner in New Dd 1i ;1, s informed of a 'conspiracy' to
hijack an Air India plane, tl High Commissioner immediately
asked the Indian Government to indicate in what manner Pakistan
could help and requested for details of the so-called 'conspiracy'
to enable the Government of Pakistan to take necessary measures.
On the Government of Indi 1 1 r iusal to disclose any details, the
High Commissioner advised the Government of India to bring the
facts to the notice of the INTERPOL if it felt any hesitation in
taking the Government of Pakistan into confidence in this matter.
It is, therefore, surprising that the Government of India should
hold Pakistan responsibl for the hijacking in January 1971, on
the basis of a cryptic oral communication in September 1970. "
55, Mr. President, I will ask your indulgence to stop here and to continue
tomorrow, because I have some n,ore grounds to cover and the fresh point I have to
deal with relates to the second Objection raised by the learned Counsel.
56. The President: Thank you. Does any Council Member wish to
make any point at this stage? Othen,,,;ise we will adjourn and continue tomorrow at
l O o'clock, The Re pre sentati ve of the United States.
57, Mr. Butler: Thank you Mr. President, At the meeting in Vienna
at which the Council scheduled this meeting today I asked if we could have
information on the status of negotiations. Do you have any information for the
Council on that matter?
Annex 5
- 95 - C -Min. LXXIV / 3 (Closed)
58. The President: You have already seen two letters circulated by
the Secretary General and it is all the information we have. The Representative
of France.
59. Mr. Agesilas: Shall we have a detailed record of this meeting ?
60. The President: Yes. There are two possibilities: either to have
the usual summary, which could be prepared rather rapidly or, if you wish, to
have also a verbatim of this discussion. I think it is important to decide this
point either today or tomorrow, because it may have a bearing on whether or not
the Council proceeds immediately after the hearing to a decision on its jurisdiction.
As we have a few minutes now, I would like to hear what Representatives prefer
for this particular case. The Representative of the United Kingdom.
61. Air Vice Marshal Russell: Thank you, Mr. President, I hope
the two possibilities you suggested are not necessarily mutually exclusive. I
think time on the one hand and completene9's on the other are important here and I
hope that a summary, which could be quite brief but containing the substance,
can be put in hand so that we can have it rapidly. For the future- -I don't think
it necessary to take a decision now- -but I should be very surprised if we didn't
on the whole feel that under these extraordinary circumstances the work, effort
and time which has to be put into a complete verbatim transcript were not going
to prove entirely justified and indeed necessary.
62. The President: As you say, they are not mutually exclusive;
one does not exclude the other. Any other views? The Representative of Belgium.
63. Mr. Pirson: Mr. President, I share the view of the Representative
of the United Kingdom. I think we should have both - as soon as possible a summary
and later the verbatim. Thank you.
64. The President: The verbatim, of course, will take time because
it will have to be translated. I see that many are nodding, so I take it that for
this point we are discussing now we shall have both: a brief summary plus the
verbatim in due time. The Representative of Indonesia.
65. Mr. Karno Barkah: Thank you, Mr. President. I have the same
idea and I would like to add that we had not asked for verbatim for the Vienna
meeting because I ha~ under stood that there was a request for it at the beginning
and haci assumed that it would continue automatically. I just wanted to ask whether
the verbatim for the Vienna meeting would be available.
66. The President: No, we had not agreed that there was going to be
a verbatim for all the proceedings. It is up to the Council each time to decide.
There is, of course, a provision in the Rules for the Settlement of Differences
saying that the Secretary General shall keep a full record of the proceedings and
this we have in our files because it will have to be available for any purpose for
which it may be required in future. There is also Article 30, the second part of
which says that "A verbatim transcript shall be made of any oral testimony and
any oral arguments and incorporated into the record of the proceedings. " We
are keeping that, but distribution to the Council, which of course involves much
more work, has been on the basis of a request and I understand now that for the
proceedings today and tomorrow we shall have that record. The Representative
of Australia.
Annex 5
C-Min. LXXIV /3 (Closed) - 96 -
67, Dr, Bradfield: Thank you, Mr. President. On the point raised
by the Representative of the United States, the information which the Secretary
General gave us in his letter of the 7th of July raised some hopes of negotiations
taking place and being successful. Could we know whether any negotiations have
in fact taken place up to this time ?
68. The President: We have the two agents here; perhaps they could
speak on that.
69. Mr. Pirzada: Mr, President, it will be recalled that at Vienna a
re solution was adopted by this Council and one part of it related to negotiations
between the two States, That was on the 12th of June 1971. Our understanding
was - and this is borne out by the letters on record which I shall refer to later
if it becomes necessary - that India had accepted the invitation to hold negotiations
with Pakistan. Therefore on the 25th of June 1971 the Government of Pakistan
addressed a communication to the Government of India. I understand that a copy
of this communication has been supplied to the Secretariat, If not, I will see to
it that a copy is supplied and circulated. I will read the second paragraph:
"2. The Government of Pakistan has noted the willingess
of the Government of India to undertake negotiations for settling
the dispute in accordance with the resolution of the Council of
ICAO dated April 8th 1971, which was further endorsed by the
Indian Delegation at a recent meeting of the Council in Vienna
on June 12th 1971, wherein the Council recommended to the
parties to enter into immediate negotiations. Further, the
Government of Pakistan notes that the Government of India
prefers to hold the discussions in New Delhi at a mutually
convenient date. The Government of Pakistan will be willing
to empower its High Commissioner in India to commence these
negotiations at a proximate date, if possible before the end of
June 1971, "
Now, we wrote as early as the 25th of June and we wanted the commencement of
these negotiations, if possible, before the end June 1971. I regret to inform this
honourable Council that the reply received from the Government of India dated
21 st July 1971 - a copy came into our hands only yesterday - is to the following
effect:
"The High Commission for India in Pakistan presents
its compliments to the Ministry of Foreign Affairs, Government
of Pakistan, and with reference to the Ministry I s note of June
25, 1971, on the question of the Inda-Pakistan civil aviation
dispute, has the honour to state as follows:
The Ministry's note is incorrect in stating that the
Government of India has agreed to bilateral talks on the question
in accordance with the resolution of the Council of ICAO dated
April 8, 1971 and that the Indian Delegation at the meeting of
the Council in Vienna on June 12 had also subscribed to this
position. The High Commission would like to remind the
Ministry that India had suggested bilateral talks long before
ICAO Council passed its resolution of April 8 and that it had
done so in accordance with India's settled policy to settle all
Annex 5
- 97 - C -Min. LXXIV / 3 (Closed)
Indo-Pakistan questions bilaterally, step by step, without third
party interference. Pakistan is no doubt aware that India has
filed Preliminary Objections against ICAO's jurisdiction to
entertain the Pakistan application on the question and, therefore,
there would be no question of holding the proposed bila .te ·ral
talks in accordance with the resolution of the Council of !CAO
of April 8. This position, as well as India's concern about the
normalization of Indo-Pakistan relations, was made abundantly
clear by the Indian Delegation in the ICAO Council meeting in
Vienna on June 12. This is clear from paragraphs 6 and 9 of
the minutes of the above meeting, forwarded to the Government
of India by the Secretary General of !CAO Council with his
letter No. LE6/l LE6/2 of June 15. These paragraphs are
attached to this Note for ready reference. 11
Because of this attitude no progress has been made.
70. The President: Counsel for India ·?
71. Mr. Palkhivala: In reply to what the learned Counsel for Pakistan
has just said, what India pointed out is merely this: if we do not protest against
Pakistan saying that the negotiations are in pursuance of the very laudable
suggestion made by the Council of ICAO, the allegation is that we are e stopped
from taki ng our preliminary points. So in order not to leave any room for such
technical hair- splitting and such nice points of e stoppel and the rest, India made
it clear that if we hold negotiations with Pakistan, which we are prepared to do,
do not say afterwards you are estopped from taking the preliminary points because
you have done it in pursuance of the resolution of the ICAO Council. Don't bring
!CAO in here, because if we don't protest at that stage you will have left the
point as you have left it in your written reply and as the Council has raised the
point today, India is estopped from arguing this. So merely with a view not to
give more food to Pakistan to raise this point of estoppel - there is no substance
in the point, as I shall point out when I come to my reply tomorrow - but merely
with a view to leaving no doubt on this matter, we said: "These negotiations are
not under the jurisdiction of !CAO but outside that jurisdiction." That is the first
point. The second is this: India is making it clear that you cannot talk of overflying
in isolation, unconnected with anything else. There are major issues which
are all inter-connected. We can live as friends, but it has to be on a wider area
than merely international aviation. These are the two points we make clear and
subject to them, we are willing to have negotiations.
72. The President: The Representative of Pakistan.
73. Mr. Pirzada: Mr. President, it is very difficult for us to clearly
under stand the stand of India. In earlier communications issued after the Re solution
this Council adopted on 8 April 1971, India indicate its willingness to hold negotiations.
I am referring now to the letter No. DG/ 148, dated 3rd June 1971, from
Annex 5
C -Min. LXXIV / 3 (Closed) - 98 -
th Director General of Civil Aviation, India, to the Secretary General of this
Council. It reads:
"I have the honour to refer to your letter No. LE 6/ l
May 19 and to state the following.
The Government of India has all along been willing to
have bilat ral n gotiations with the Government of Pakistan
for th purpose of settling the is sues arising out of the
hijacking of th Indian plan and r lated and subsequent
developm nts. In fact, the Government of India has been of
the view that bilateral negotiations with Pakistan are the
only way of solving these qu stions. It is unfortunate that
the Government of Pakistan chose to make an application
and a complaint to th Council of ICAO without attempting
to resolv the issues by means of bilateral negotiations.
I might inform you that w have again recently reiterated
to the Gov rnm nt of Pakistan our willingness to enter into
bilateral negotiations on all related matters."
Now this reiteration of willingness is with reference to our letter wherein we
clearly referred to the resolution of this Council. This is the letter by the
Government of Pakistan dated 11th May 1971, and it reads:
"The Ministry of Foreign Affairs presents its compliments
to the High Commission for India in Pakistan and with reference
to the resolution of the Council of the International Civil
Aviation Organization dated April 8th 1971 on Pakistan's
application against India on the ban of our flights has the
honour to state as follows.
In r sponse to Part 1 of the said resolution, the
Government of Pakistan hereby expresses its readiness to
enter into immediate bilateral negotiations with the Government
of India for the purpose of settling the dispute. The Government
of Pakistan will b willing to open the negotiations with the
High Commissioner for India in Pakistan if the latter is authorized
by the Government of India to do so. Alternatively, the
Government of Pakistan is willing to empower its High
Commissioner in India to start the negotiations. 11
In reply, the Government of India in their letter dated 31st May 1971,
which I circulated at Vienna, in the last paragraph states:
"It j s presumed from the Pakistan Ministry of Foreign
Affairs Note dated 11 th May 1971 that the Government of
Pakistan would be willing to undertake negotiations on the
Annex 5
- 99 - C-Min. LXXIV /3 (Cl o sed)
issues outlined in the above-mentioned note from the
Government of India. The Government of India would
therefore be willing to undertake negotiations as suggested
by the Government of Pakistan in New Delhi, the dates for
which can be fixed according to mutual convenience."
They referred to the fact that this was in reply to our letter of 11th May 1971.
On the basis of this correspondence, I had made a statement a t Vienna that both
the parties had agreed to hold negotiations in pursuanc e of the resolution adopted
by the Council on 8 April 1971. Now India wants, if it wants at all, to hold the
so-called negotiations on its own terms. You have seen the attitude of India;
I need not comment on it any further.
74. The President: No more points on this? Th e Representative o{
the United States.
75. Mr. Butler: Thank you, Mr. President, on another point. Today
both parties, I believe, have referred to a question and response in a recent case
before the Int e rnational Court of Justice. I believe it would be very useful for the
Council to have the entire text of the question that was put to the US Counsel and
th e response that was submitted and then made part of the r ec ord. Would it be
possible t.o have that for the Council Mem bers? It has been cited a number of
times and I think the entire text should be made available.
76. The President: The Secretariat will see whether it can obtain that
text and circulate it. We will do our best to provide the official text.
Well then, tomorrow we will continue with this case. I would like
to point out the following: we will continue with the hearing on Case No. 1, after
which we will go to the hearing on Case No. 2. Then the first thing the Council
will have to decide - and this will be part of the deliberations, so the agents will
leave the room but the Stat e s as such continue to be represented if they wish -
is whe ther it wishes to go to the decision right away, and if not, when. So that
will be the sequence of events tomorrow. If the Council decides that it wishes
to vote tomorrow on whether this matter is within its jurisdiction, then that will
be the next step that will take place tomorrow. We had listed a Council meeting
for Thursday morning to deal with another question - Re solution 39 / 1 - but it
was under stood in Vienna that that would be taken after we had completed the
consideration of this particular hearing. So if by any chance we do not finish
tomorrow and it is still necessary to continue with this question on Thursday
morning, that other subject will have to wait until Thursday afternoon or something
like that. The Representative of Senegal?
77. Mr. Diallo: Thank you, Mr. President. When you say Re solution
39 /1 you are speaking of the re solution concerning South Africa? When would the
later meeting be - next year or when, exactly?
78. The President: I just explained that if we do not finish with this
subject tomorrow, we will continue with it Thursday morning and immediately
afterwards with Re solution 39 / 1. It will be the morning or afternoon of Thursday.
Annex 6
ICAO Council, 74th Session, Minutes of the Fourth Meeting, ICAO Doc. 8956-C/1001
(28 July 1971)
Annex 6
Doc 8956-C/1001
- 101 - C-Min. LXXN /4 (Closed)
31/ 8/71
COUNCIL - SEVENTY-FOURTH SESSION
Minutes of the Fourth Meeting
(The Council Chamber, Wednesday, 28 July 1971, at 1000 hours)
CLOSED MEETING
President of the Council: Mr. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary General
PRESENT:
Argentina
Australia
Belgium
Brazil
Canada
Colombia
- Com. R. Temporini
- Dr. K. N. E. Bradfield
- Mr. A. X. Pirson
- Col. C. Pavan
- Mr. J.E. Cole (Alt.)
- Major R. Charry
Mexico
Nigeria
Norway
Senegal
Spain
Czechoslovak Tunisia
Socialist Republic- Mr. Z. Svoboda Uganda
Federal Republic - Mr. H. S. Marzusch (Alt.) Union of Soviet
of Germany Socialist Re-
France - Mr. M. Agesilas publics
India - Mr. Y. R. Malhotra United Arab
- Mr. Karno Barkah Republic
- Mr . S. Alvear Lopez
(Alt . )
- Mr. E. A. Olaniyan
- Mr. B. Grinde
- Mr. Y. Diallo
- Lt. Col. J. Izquierdo
- Mr. A. El Hicheri
- Mr. M. H. Mugizi (Alt.)
- Mr. A. F. Boriso v
- Mr. H.K. El Meleigy
Indonesia
Italy
Japan
- Dr. A. Cucci United Kingdom - A/V/M J.B. Russell
- Mr. H. Yamaguchi
ALSO PRESENT:
Dr. J. Machado (Alt . )
Mr. L. S. Clark (Alt.)
Mr. B. S. Gidwani (Alt.)
Mr. M. Garci'a Benito
(Alt.)
Mr. N. V. Lindemere
(Alt.)
Mr. F. K. Willis (Alt.)
Mr. N. A. Palkhivala
(Chief Counsel)
Mr. Y. S . Chi tale (Counsel)
Mr. I. R. Menon (Assistant
Counsel)
Mr. S.S . Pirzada (Chief
Counsel)
Mr. K. M. H. Darabu
(Assistant Counsel)
Mr. A. A. Khan (Obs.)
Mr. H. Rashid (Obs.)
Mr. Magsood Khan (Obs.)
H. E. A. B. Bhadkamkar
(Agent)
H. E. M. S. Shaikh
(Agent)
- Brazil
- Canada
- India
- Spain
- u. K.
- u. s.
- India
- India
- India
- Pakistan
- Pakistan
- Pakistan
- Pakistan
- Pakistan
- India
- Pakistan
United States - Mr. C. F. Butler
SECRETARIAT:
Dr. G. F . Fitzgerald - Sr. Legal Officer
Mr. D.S. Bhatti - Legal Officer
Miss M. Bridge - CSO
Annex 6
C-Min. LXXIV/4 (Closed) - 102 -
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Settlement of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani Aircraft
over Indian Territory
1. Continuing his reply to the presentation of India I s preliminary objection,
the Chief Counsel for Pakistan, Mr. Pirzada, maintained that the opinion of the
International Court of Justice in the Namibia case was distinguishable. He also
pointed out that the answer of the United States Counsel upon which India had
relied must be read in context. Having himself appeared in the Namibia case,
he recalled that this answer had been to a question put by Judge Fitzmaurice,
who, in his own dissenting opinion, had drawn a distinction between treating a
contract as terminated and putting an end to it and had pointed out that, strictly
speaking, all the party alleging breach by another could do was declare that it
no longer considered itself bound to continue perfornu.ng its own part of the
contract; it would not necessarily follow - and certainly not from the unilateral
declaration of that party - that the contract was, in the objective sense, at an
end; if it did, there would be all too easy a way out of inconvenient contracts.
Mr. Pirzada also read a passage from the judgment of the American Judge
Dillard, who had explained the answer of the United States Counsel. He added
that the majority of the judges of the International Court in the Namibia case
had decided the issue of the revocation of the South African mandate on the
ground that the General Assembly possessed supervisory powers and could
terminate the mandate for breaches of obligation by South Africa. India possessed
no supervisory powers over Pakistan; both cmntries had equal status and
therefore a dispute between them about breaches and the alleged termination of
the Convention and Transit Agreement would have to be dealt with by the Council.
2. Turning then to the second ground of the preliminary objection - that
since February 1966 the relations between India and Pakistan on the matter of
overflights had been governed by a special regime, provisional in character and
making overflight subject to the permission of the State concerned - he noted
that India's original contention had been that air transit and overflying had been
governed by a special regime since 1948 (paragraph 28 of the preliminary objection),
notwithstanding the fact that in 1952 India had appealed to the Council, charging
Pakistan with acts violating Articles 5, 6 and 9 of the Convention and the Transit
Agreement, in particular with refusing to permit Indian aircraft engaged in
commercial air services to fly over West Pakistan. He called attention to
Pakistan's favourable response, at that time, to the Council's suggestion that
there should be bilateral negotiations and to the fact that an amicable settlement
had been reached. He noted that the Chief Counsel for India had not pressed the
original contention and had confined his arguments to the post-September 1965
period, perhaps because the position was clear and beyond cavil or controversy.
The relations between India and Pakistan on air transit and overflying had, since
1948, been governed by the Convention, the Transit Agreement and the bilateral
agreement of 1948.
Annex 6
- 103 - C-Min. LXXIV /4 (Closed)
3. Maintaining that the legal position before the 1965 hostilities and since
February 1966 had been that the Convention and Transit Agreement were in Qperation
between India and Pakistan, he denied that the Tashkent Declaration was a "package
deal"; stated that various parts of it had been implemented; read into the record
paragraphs 35 and 36 of Pakistan's reply to the preliminary objection in this
connection; and quoted the letter of 6 February 1966 from the Prime Minister of
India to the President of Pakistan, stating that India would be agreeable to an
immediate resumption of overflights ''on the same basis as that prior to 1st
August 1965 11 and that instructions were being issued accordingly to the Indian
civil and military authorities. Mr. Pirzada also referred to the Indian Government's
note of 3 March 1971, in which it was clearly stated that "after IndoPakistan
conflict of August/September 1965 they" - the Government of India -
"would hav!::! been well within their right to disallow the resumption of overflight
so long as relations between India and Pakistan had not been fully normalised.
However, on a specific request made by the then President of Pakistan, the
Government of India agreed, in February 1966, to for go their right to demand
prior settlement of outstanding issues and consented to resume mutual over -
flights." Having done this and agreed to the resumption of overflights in
accordance with the arrangements in existence prior to 1 August 1965, India
could not now talk of the so-called "package deal". He added that the phrase
"on a provisional basis" in the signals exchanged between the Director General
of Civil Aviation for Pakistan and the Director General of Civil Aviation for
India on 9 February 1966, on which the Chief Counsel for India had relied so
heavily, applied, as a complete reading of the signals made unmistakably clear,
to routes and schedules, not to the restoration of overflights. Also, no special
permission had been required for the overflights; the schedule of flights had
simply been filed with the appropriate authorities.
4. In further support of his contention that the Convention and Transit
Agreement were still in operation, he pointed out that under Article 82 Contracting
States could not enter into arrangements inconsistent with the Convention, as
the so -called special regime would have been; that there was no "later treaty" -
to use the phraseology of Article 30 of the Vienna Convention on the Law of
Treaties; and that the investigation into an accident to an Indian aircraft in East
Pakistan in 1969 had been conducted by Pakistan in accordance with the relevant
provisions of 1;,1:;iC,eo nvention and its Annexes.
5. As for the alleged danger to Indian aircraft flying over Pakistan,
twenty-three international airlines were operating over Pakistan and notwithstanding
the "posture of political confrontation" with which Pakistan was charged,
Indian airlines had flown safely over Pakistani territory for more than twenty
years. One hijacking did not change the situation and was no excuse for declaring
the Convention inoperative between India and Pakistan. There had been many
hijackings in other parts of the world without any such action.
Annex 6
C-Min. LXXIV /4 (Closed) - 104 -
6. Summing up, Mr. Pirzada stated that although Article 36 of the
Statute of the International Court of Justice gave the Court jurisdiction only
over the interpretation of a treaty, in cases brought before it termination and
suspension had been considered part of interpretation; that the expression "any
disagreement relating to the interpretation or application of this Convention and
its Annexes" in Article 84 of the Convention was very wide, permitting unilatera l
termination on unjustified grounds to be investigated and adjudicated by the
Council; that there were express provisions in the Convention on ternunation
and suspension, but even if there had not been, the right of suspension or
termination under customary international law, recognized in Article 60 of the
Vienna Convention, was a qualified right; and that if a contracting State could
unilaterally terminate them with respect to any other State, conventions would
become merely pieces of paper, liable to be scrapped at the whim of any State .
7. The Chief Counsel for India, Mr . Palkhivala, then answered a number
of the points made by the Chief Counsel for Pakistan. Commenting first on the
assertion that an international treaty must be given a liberal interpretation,
he suggested that there was a vast difference between giving a liberal interpretation
and giving a misinterpretation. Concepts so fundamentally different
as interpretation and application on the one hand and termination and suspension
on the other could not be reconciled by a liberal interpretation, and no case had
been cited in which a court had held that interpretation or application included
termination. The question at issue here was whether the Council had jurisdiction
to deal with questions of termination or suspension, not whether the termination
or suspension was justified or not, and it was impossible to equate the words
"any disagreement relating to the interpretation or application of this Convention
and its Annexes" in Article 84 of the Chicago Convention with the description of
the juri.sdiction of the International Court of Justice in Article 36 of its Statute
("all cases which the parties refer to it and all matters specially provided for
in the Charter of the United Nations or in treaties and conventions in force, the
interpretation of a treaty, any question of international law, the existence of
any fact which, if established, would constitute a breach of an international
obligation, the nature or extent of the reparation to be made for the breach of
an international obligation''). If the Council should decide that its jurisdiction
extended to cases of termination or suspension, that decision was not likely to
go unchallenged when there was provision in Article 84 for an appeal to the
International Court of Justice.
8. In reply to the argument that there were express provisions in the
Convention and Transit Agreement overriding the right of termination recognized
in Article 60 of the Vienna Convention, he pointed out that there was no provision
dealing with termination by one State in relation to another for material breach.
The purpose of Article 89 was precisely to avoid the necessity for termination
Annex 6
- 105 - C-Min. LXXIV/4 (Closed)
in war or emergency conditions by recognizing the freedom of action of a
Contracting State in such conditions. Article 95 was concerned with denunciation
and he did not think it was capable of the construction that the denunciation could
be with respect to one State. If it were, it would, in the present case, mean
that the right of overflight would continue for a year until the denunciation became
effective, which would be nonsensical. His own construction made complete sense:
the whole basis of the Convention was reciprocity; if there was no reciprocity, or
if there was a material breach, the injured State had the right, under customary
international law, to consider the treaty at an end as far as its relations with
the wrongdoer were concerned.
9. The part of Article 60 of the Vienna Convention cited by the representative
of Pakistan (Clause 1) was inapplicable to the present case; it dealt with
bilateral treaties; the treaties involved in this case were multilateral and Clause 2
of Article 60 said that a material breach of a multilateral treaty by one of the
parties entitled any party specially affected by the breach to invoke it as a ground
for suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting State. Article 45 of the Vienna Convention also
had no bearing on this case; India had never expressly agreed that the Convention
and Transit Agreement remained in force between India and Pakistan - since the
hostilities of 1965 overflight had been only with the permission of the Indian
Government and non-traffic stops had not been permitted, which was directly
contrary to Article 5 of the Convention and Article I of the Transit Agreement.
The communication to the President of the Council of 4 February 1971 - the
very day India banned overflights by Pakistani aircraft - could not be considered
acquiescence in the continued operation of the Convention between Pakistan and
India simply because it referred to the Convention; this reference me .1;e1y
recognized ICAO 1 s responsibility in regard to safety in international civil
aviation; and the communication referred also to the Tokyo Convention of 1963
and the Hague Convention of 1970, to which neither India nor Pakistan was a
party.
10. He found it impossible to reconcile the contention that it was safe
for Indian aircraft to fly over Pakistan with the alleged helplessness of the
Government of Pakistan in the face of the crowds that had gathered at Lahore
Airport after the landing of the hijacked plane. It ~as no answer to say that
twenty-three foreign airlines were safely overflying Pakistan.
11. As for the special regime, that referred to in paragraph 28 of the
preliminary objection was the bilateral air services agreement of 1948. In his
oral presentation he had referred only to the agreement reached in 1966, because
it was wmecessary to go into the history of Indo -Pakistan relations for a decision
on the question now before the Council. The letter from the Prime Minister of
Annex 6
C-Min. LXXIV/4 (Closed) - 106 -
India to the President of Pakistan was only a token of India's goodwill and
readiness to co-operate in the restoration of normal relations; it did not mean
the restoration, in practice and in law, of the operation of the Convention and
Transit Agreement between the two countries. India had wanted this, but Pakistan
would not have it. The signals between the DGCA 1s, far from disproving his
case, demonstrated that the Convention and Transit Agreement had not come
back into operation; if they had, the aircraft of one country would not need
permission to fly over the territory of the other and they would also have the
right to make non-traffic stops. The special regime dated from 1966, India's
participation in the Convention and Transit Agreements from 1947 and 1945
respectively; and under Article 30(3) of the Vienna Convention the later treaty
prevailed over the earlier when there were incompatible provisions.
12. Finally, he considered that the construction he was putting upon the
Convention was one in harmony with the Council's functions, one that would
permit it to continue its excellent work without becoming involved in issues which
it was not called upon, and perhaps was not qualified, to decide, and to remain
above political squabbles.
Annex 6
- 107 - C-Min. LXXIV/4 (Closed)
DISCUSSION
Subject No. 26: Settlement of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani Aircraft
over Indian Territory
1. The President: The Council is in session. This is the 4th Meeting.
Yesterday I had made an announcement regarding the composition of representation
and today Canada is represented by another Alternate, Mr. Clark. Before continuing
with the question we had yesterday I would like Dr. FitzGerald to give an
explanation regarding a certain paper which was distributed this morning and which
you all have in front of you.
2. Dr. FitzGerald: Thank you, Mr. President. I believe that yesterday
the Indian representation had promised to make certain material available to the
Council. The Indian Agent has very kindly made available to the Secretariat in
quantity extracts from certain publications and these have been circulated to
Council Representatives this morning. You will note that you have the extracts
from the recent Advisory Opinion of the International Court of Justice on the South
African ca se, in French and English, because these were obviously taken from the
official Court publications. You have a photostat or Xerox copy - I do not know
which it is - of Sir Gerald Fitzmaurice's questions to the United States Counsel
during the proceedings before the International Court concerning the South African
case, and then, of course, you have the text of Article 36 of the Statute of the
International Court of Justice. We are grateful to the Agent of India for having
made these papers available to the Council.
3. The President: Any questions on that point? Then we shall continue
with the discussion and I invite the Chief Counsel for Pakistan to continue with
his presentation.
4. Mr. Pirzada: Thank you, Mr. President. You will remember that
yesterday I was making my submission in reply to the contention of the Counsel for
India that under general customary international law a State has a right to terminate
a treaty or suspend its operation in whole or in part. That was the argument of
the Indian Counsel and I was replying thereto. You will recall that I had placed
before you the language of Article 60 of the Vienna Convention and I had said that
that right was not unqualified, that it was in fact a limited right. The right was
limited to invoking the breach as a ground for terminating or suspending the treaty
and only in case of material breach. I said material breach is a serious matter.
Further, I had pointed out that as this Article 60 of the Vienna Convention is subject
to the doctrine of material breach, it is also subject to another doctrine,
namely, that there should be no disproportionate reprisal. For example, if a fly
is sent you do not need a cannon to kill it; where a file is needed, you do not use
a hannner.
Annex 6
C- Min . Ilt:XTV/4 (Closed) - 10 8 -
5. Developing his point, the learned Counsel for India referred to
the pronouncement of the International Court of Justice. Photostat copies of it
have now been circulated. I think he used the expression "judgement of the Court"
inadvertently, because it is not a judgement ; it is an advisory opinion ; an d you
are all aware of the well recognized distinction between an advisory opinion and a
judgement . Of course it is entitled to great respect and having had the p r ivilege
of participating in it, I fully concur with the pronouncement of that august
I nter n ational Court . But we must understand the correct status of the pronouncement .
6. I shall first clarify what is attributed to the Counsel of the
United States of America . To a question put to him by one of the J udges of that
Court, he gave a certain answer and that answer is being utilised or relied upon by
the Counsel for India . Now, fi r st of qll, the learned Judge who put the question
was quite clear in his mind as to what he was talking about . The learned Judge
was Mr. J ustice Fitzmaurice and it is from the same opinion I am quoting . I must
point out that Justice Fitzmaurice had given a dissenting opinion on the main point
i n volved in the South West Africa case, but on the distinction between "te r minating "
a n d "putting an end to" the treaty there was no controversy and the principle be
enunciated was correct . This is what he had in mind - I am reading from page 266:
"Because the learned Judge throughout bas used the expression ' in t r eating
t he Tr eaty as terminated ' ," - and now he points out why he has been using
this expression - "note the intentional use of the phrase ' in treati n g it
as terminated ' and not ' in putting an end to it '. There is an important
conceptual difference. Strictly speaking, all that one party alleging funda mental
breach by the other can do is to declare that it no longer considers
itself bound to continue performing its own part of the contract, which it
will regard as terminated, but whetherthe contract has in the objective
sense come to an end is another matter, and does not necessarily follow
certainly not from the unilateral declaration of that party, or there will
be an all too easy way out of inconvenient contracts."
I think this was quite clear and it is in this context that the question was asked
and the answer was given.
7 . In his answer, which was given in abstract, not in a concrete case
the American Counsel said that occasions may arise when an aggrieved innocent party
may have no remedy, but that does not mean that in certain circumstances this right
i n a case of fundamental breach could not be exercised by another party. Her e it i s
enti r ely different, because by and under the Convention Contracting States have
ag r eed to refer to the Council for adjudication a case relating to interpretation
or application of the Convention. But I will resolve this doubt also by referri ng
t o the opinion of the American Judge himself . Of course he was not sitting in that
ca p a city, but he clearly understood the question and the answer, and I am refer r i ng
now to a paragraph from the opinion of Justice Dillard . I am reading from pages
167 to 168. I quote
111 shall conclude on another note . It is true, of course, that prior to the
termination of the mandate by the General Assembly there had never been a
judicial determination that this was legally permissible. Furthermore, it is
accurate to say the General Assembly in the exercise of its supervisory powers
did not calmly and rationally analyse the extent of those powers under the
grant of authority accorded by the San Francisco formula - a point made by
Annex 6
- 109 - C-Min. r.nrv/4 (Closed)
Professor Katz in his characteristically thoughtful book on the relevance
of international adjudication. The point is troublesome but is not conclusive.
Law and what is legally permitted may be determined by what a
court decides, but they are not only what a court decides. Law 'goes on'
every day without adjudication of any kind. In answer to a question put
by a Judge in the oral proceedings, Counsel for the United States in a written
reply declared "The fact that in the international as opposed to a municipal
legal system the other party cannot be assured of bringing a case involving
material breach before an international tribunal except where both parties
have accepted the compulsory jurisdiction of an international tribunal" -
it was a very qualified answer that was given, "except where both parties
have accepted the compulsory jurisdiction of an international tribunal" -
"is a problem relating to the effic.acy of international law and institutions
generally and not especially to the problem of the material breach doctrine."
And now the learned Judge gives his own interpretation on this: "It is part
of the weakness of the international legal order that compulsory jurisdiction
to decide legal issues is not part of the system. To say this is not to say
that decisions taken by States in conformity with their good faith understanding
of what international law either requires or permits are outside a
legal frame of reference, even if another State objects and despite the absence
of adjudication."
So they are not outside a legal frame of reference if they are objected to by the
other State.
8. The case before the International Court was a reference, wherein
the mandate of South Africa over Namibia was terminated by the General Assembly,
with the concurrence of the Security Council, for mater i al breaches of obligations
under the mandate. The General Assembly of the United Nations and the Security
Council were supervisory bodies. That means they had supervisory jurisdiction
over the mandatary and therefore in that superior jurisdiction they could determine
the breaches. That is why that point was considered in that light by the
majority of the judges and cannot be treated as a precedent. I am now referring
to paragraph 103, page 49 of the Opinion which has already been circulated, wherein
this point has been clearly brought out. I quote:
"The Court is unable to appreciate the view that th e General Assembly acted
unilaterally as party and judge is its own cause. In the 1966 Judgement in
the South West Africa cases referred to above, it was found that the function
to call for the due execution of the relevant provisions of the mandate instruments
appertained to the League acting as an entity through its appropriate
organs. The right of the League, "in pursuit of its collective, institutional
activity, to require the due performance of the Mandate in discharge of the
'sacred trust'" was specifically recognized. Having regard to this finding,
the United Nations as a successor to the League, acting through its component
organs, must be seen above all as the supervisory institution, competent to
pronounce, in that capacity, on the conduct of the mandatory with respect to
its international obligations, and competent to act accordingly."
Therefore that case stands on a different footing altogether. The only proposition
that was recognized was Article 60 of the Vienna Convention and nowhere was it
determined that if the Contracting States through, by and under a convention have
agreed to refer their disagreements relating to the interpretation or application
of the treaty to a Council like this august body, then that cannot be done. I
submit that if any submission is made to the contrary it is misconceived.
Annex 6
C-Min. IXXI.V/4 (Closed)
- 110 -
9. I will leave this point now and go to the second ground. When I
complete the second ground, I will summarize briefly my submissions on both points
at the same time.
10. I come now to the second ground, Mr. President. The second ground,
as we heard yesterday, was that after the armed conflict in August/September 1965,
a new regime came into existence between India and Pakistan and, a special regime
having came into existence, the relations between the two countries regarding overflights
were governed by that special regime, which was provisional in character
and subject to the permission of the State concerned. Before I deal with this point,
let me first make a general statement. It was refreshing to note that the learned
Counsel yesterday confined his contention only to the post-September 1965 period,
because originally the case put up by India was that right from the beginning,
since 1948, there was a special regime. Mr. President and members of the Council,
may I invite your attention to paragraphs 28 and 29 of the preliminary objections
filed by India. Paragraph 28:
"The Air Services Agreement of 1948 between the two countries covered air transit
across each other's territory and India's overflights into Pakistan's air
space and Pakistan's overflights into India's air space. A copy of the said
Agreement of 1948 is hereto annexed and marked 1 1 1
• Thus air transit and
overflying each other's territory was governed by a Special Regime between
India and Pakistan in 1948 and continues to be so governed up till today.
The Convention and the Transit Agreement do not apply as between India and
Pakistan, as regards transit and overflying each other's territory. 11
Then this has been spelled out further in 29:
"In view of the fact that the question of overflying or transiting is governed
by a Special Regime as between India and Pakistan, and not by the Convention
or the Transit Agreement, the Government of India submit that the Application
and the Complaint of Pakistan are incompetent and not maintainable, and the
Council has no jurisdiction to entertain them or handle the matters presented
therein. 11
Then later on they refer to the alleged August/September 1965 arrangement.
11. Before I came to that I repeat that the statement yesterday was
confined to the post-September 1905 period, which means that up to that time not
only the bilateral agreement but the Convention and the Transit Agreement were in
operation and that is really and legally the correct position. In fact no other
position could be adopted by India because India herself, as early as 1952, in respect
of a very small sector, when certain flights were diverted around the Khyber
Pass, approached this very Council. I am referring to the dispute between India
and Pakistan of 1952. In 1952 India herself accepted the jurisdiction of the
Council and lodged a complaint with the Council charging Pakistan with acts
violating Articles 5, 6 and 9 of the Convention and with violation of the Transit
Agreement. These are the words - in fact I have lifted the paragraph bodily from
the Application then drawn up by India and filed here with this very body. India
alleged in particular that Pakistan refused to permit Indian aircraft engaged in
cormnercial air services to fly over West Pakistan. When the dispute came before
the Council Pakistan adopted a very constructive and co-operative approach and responded
very favourably to the suggestion of the Council for holding negotiations,
Annex 6
- lll - C-Min. I.XXTV/4 (Closed)
and in pursuance of the Council's recormnendations an amicable settlement was
reached. See Minutes of the Council, 18th Session.D9cument 7361 c/858, 1953,
pages 15-26 and also Report of the Council for 1952, Document 7367 A7-P/l, pages
74 to 76, 1953.
12. Now this was the position in 1952 when India knocked at the door
of this body and lodged a complaint charging violation of various articles of the
Convention and the Transit Agreement. So, as I was submitting earlier, whatever
may be the position after September 1965, which I will come to presently, it remains
beyond cavil or controversy that till September 1965 ad.mi ttedly - and in
view of yesterday's perfo_;nnance of the learned Counsel himself the position now is
incontrovertible - the relations between India and Pakistan with reference to
overflight were governed by and under the Convention and Transit Agreement as well as
by the Bilateral Agreement of 1948. The question is "Has that position been
changed or altered or modified or superseded by any other arrangement to the
contrary?" My respectful answer will be "No" and that I will show through various
factors, which must be placed before you in their proper prespective.
13. All conflicts are unfortunate and more unfortunate in the case
of developing countries, but sometimes they are inevitable. Whatever may be the
position, they did take place, and the last armed conflict between India and
Pakistan, a war, took place in August and September 1965. Then the hostilities
ended. They must end - there was the Security Council, there were various other
efforts - and thanks to the good offices of the Government of the USSR and its
esteemed leaders, the President of Pakistan and the Prime Minister of India met
at Tashkent and the result was the Tashkent Declaration. Now Clause VI of that
Declaration, which was signed by the then President of Pakistan and the Prime
Minister of India at Tashkent on 10 January 1966, reads:
"The President of Pakistan and the Prime Minister of India have agreed to
consider measures towards the restoration of economic and trade relations,
comrnunications as well as cultural exchanges between Pakistan and India
and to take measures to implement the existing agreements between Pakistan
and India."
This certainly was contemplated - "to consider measures towards the restoration
of economic and trade relations, communications as well as cultural exchanges
between Pakistan and India and to take measures to implement the existing agreements
between Pakistan and India. 11 I will come to what was contemplated and what
was to be done, but the fact remains that it was clearly declared, agreed to and
decided that the existing agreements - including the Convention, the Transit
Agreement and the Bilateral Agreement of 1948 - were to be implemented.
14~ Now yesterday a lot of allegations were hurled against us. I
will come to the question of the so-called "package deal", but a variety of
allegations and insinuations were made against us, and it was said that owing
to our conduct this clause could not be implemented. I, with respect, submit
that it is to the contrary. We have answered the various allegations in our reply
to the preliminary objection. I will not trouble you with all the paragraphs. I
will only refer to one paragraph. My learned friend had read paragraphs 32 to
36 of the preliminary objection. I will not trouble you with our replies; I am
sure the honourable members of the Council will peruse them at the right time.
But I would like to invite your attention to our replies to paragraphs 35 and 36.
They are short ones and I seek your indulgence to read them. I quote:
Annex 6
C-Min. Ill:XTV/4 (Closed) - 112 -
11Paragraph 35: The statement is incorrect and the factors introduced therein
are extraneous to the issue involved and therefore outside the
purview of the proceedings before the Council. Without prejudice
to the above, it is stated for record that in spite of
the best efforts of Pakistan, relations between the two countries
have not improved because of India's refusal to resolve the
basic cause of tension between the two countries, namely, the
Kashmir dispute, and its insistence to dictate its own terms
in relation to other issues. On the other hand Pakistan has
always been willing to settle peacefully all outstanding disputes
with India through the accepted international procedure
of negotiation, mediation and arbitration. It has also proposed
the establishment of a self-executing machinery for the
resolution of all outstanding disputes, but the Government of
India rejected it. Thus the Government of India for its m
reason has shown no intention to normalise relations with
Pakistan.
Paragraph 36: The statement is misconceived and a misrepresentation of facts
and law. The existence of the so-called special agreement is
emphatically denied. It is a figment" - inadvertently we said
11fiction 11
-
11of imagination. As earlier stated, after the 1965
armed conflict, overflights between the two countries were resumed
in terms of Article VI of the Tashkent Declaration, which
called upon the parties to implement all existing agreements.
The statements made in paragraphs 30 and 31 above are reiterated."
15. Now that is the other side. I am precluded by the oath of my former
office and by the Official Secrets Act to disclose the details, but the then Foreign
Minister of India - now again the Foreign Minister - Swaran Singh and I as the
Foreign Minister of Pakistan at the time, as well as many other dignitaries and
leaders, went into this exercise, and it is known to both the parties and, in fact,
to a number of the esteemed members of this Council. I need not trouble you with
the various events. They speak for themselves. After the Tashkent Declaration
whatever could be done was done. Major portions of the Water Treaty were implemented.
Then with respect to the dispute over the Raan of Kutch we went to a
duly constituted tribunal and through the process of adjudication we resolved the
dispute. Many other things were done, but the allegation made yesterday was that
Clause VI of the Tashkent Declaration was a "package deal'', which must be accepted
as a whole; you could not rely on a part of it, single out aviation and say that
the agreements were revived.
16. Now, as I said, whatever could be done was done, and wherever
things could be normalised or achieved between the two States they were normalised
or achieved. Teleconnnunications were revived and eventually overflights were revived,
and the reason has been acknowledged by India itself in its communication
of 3 March, a note handed to our High Commissioner in New Delhi. Copies are being
circulated and I invite your attention to paragraph 4 of this note, received after
the hijacking incident:
Annex 6
- 113 - C-Min. TJJiXIV/4(C losed)
"The Government of India wish to remind Government of Pakistan that after
Inda-Pakistan conflict of August/September 1965 they would have been well
within their right to disallow the resumption of overflight so long as relations
between India and Pakistan had not been fully no:r:,nalised. However,
on a specific request made by the then President of Pakistan the Government
of India agreed, in February 1966, to forgo their right to demand prior
settlement of outstanding issues and consented to resume mutual overflights.
Such overflights by scheduled services of civil airlines of one country
across the territory of another are, as Government of Pakistan are aware,
a matter of privilege."
That principle is well known to you, but the fact to which I invite your attention
is that the Government of India has stated here that they agreed, on a specific
request made by the then President of Pakistan, in February 1966 to forgo their
right to demand prior settlement of outstanding issues and consented to resume
mutual overflights. Yesterday it was said that you could not isolate aviation,
but India herself has acknowledged that this could be done. We immediately responded
to this note and in paragraph 2 of our letter dated 22 March 1971 we
have stated:
"The Government of Pakistan notes with regret that the Government of India
has so far not agreed to withdraw its unjustified ban on flights of Pakistan
aircraft over Indian territory. Instead, the Government of India has suggested
that these overflights are in the nature of a privilege extended
to Pakistan in 1966 and that India was within its right to withdraw it
unilaterally. The Government of Pakistan cannot accept this position and
are formally of the opinion that the mutual overflying rights are governed
by the 1948 Agreement between Pakistan and India as well as by international
conventions on the subject. Even if, for the sake of argument, the Government
of India could claim that after the 1965 conflict it was well within their
right to disallow the resumption of overflight so long as relations between
India and Pakistan had not been fully normalised, the Government of India
have, in the note under reference, acknowledged that the Government of
India agreed, in February 1966, to forgo their right to demand prior
settlement of outstanding issues and consented to resume mutual overflights.
So far as outstanding disputes are concerned, it has always been the endeavour
of the Government of Pakistan to settle them in a peaceful, just and
equitable manner."
So this is my answer to the statement made by the learned Counsel about Clause VI
of the Tashkent Declaration.
17. Now this Declaration was followed by a letter from the Prime
Minister of India. A reference was made to it and only a portion was read, but
· I beg of you, honourable members and Mr. President, to read the text of this
letter, because it is quite clear and explicit, without any pre-conditions. I
shall read it. It is a letter dated 6 February 1966 from the High Commissioner
for India in Pakistan, addressed to the President of Pakistan himself.
Annex 6
C-Min. I.XXTV/4 (Clo sed) - 114 -
"I have the honour totr nsm.it the following message received from Smt .
Indira Gandhi, Prime Minister of India:
' Dear Mr. President,
Our For~ign Minister and Defence Minister, on their return
from Tashkent, ·nrormed us of your desire for the early resumption
of overflights of Pakistani and Indian pl nes across each other's
territory. W h d thought th t this matter would be settled at a
meeting between the Ministers of both countries within a few days,
along with other problems connected with the restoration of communications.
As t ppears that such a meeting might take some time,
we would lie ',gre ,rble to an irmnediate resumption of overflights
across each oth r's t rritory on the same basis as that prior to
1st August, 10 5."
I underline and would lik to re-read these words: "As it appears that such a meeting
might take some time, we , o 1ld be agreeable to an innn.ediate resumption of overflights
across each other' terr~tory on the same basis as that prior to 1st August
1965 . 11 The messoge conLinu•s:
' Instructions re being issued to our civil and military authorities
accordingly.
Iv r, much hope that in both our countries emphasis will be
placed on th pos·tive aspects of the Tashkent Declaration, such as
early normal ·s ~on of relations and the initiation of various processes
of co-oper4tion between our two countries in mutually beneficial
fields.'
18. Now here i.., Inct·a•s chief spokesman, her Prime Minister, conveying
to the President of Pakis, m their decision to resume flights immediately across
each other's territory' on the s·me basis". What is that basis? - no special
arrangement, but the o M~ b sis as that prior to 1 August 1965. I opened my submission
on the second argument by saying that the basis until August 1965 was the
Convention, the Trnnsit ATeement and the Bilateral Agreement of 1948, a basis under
which India could come A.nd knock e.:t the doors of this body. Today we are knocking,
but of course sometimes StntE· and persons can approbate and deprecate. This letter
I read out is without pr -<>onditions and says that instructions are being issued
to the civil and milH· ry · ut110rities accordingly . It was in the process of implementing
these instructions that certain signals were exchanged between the
Directors Gener al of c·vil Aviation of the two Governments.
19. A particu-11.r portion of a particular signal was read out yesterday,
but not in its entirety, not in its proper perspect ive, or within its correct context.
I would therefor b g of you now to look at that signal to see whether there
was any special arrang mentor any provisional arrangement, as was suggested,
alleged or asserted ye..,tE>rrhy. The signals are in Annexure 2 to the objections
filed by India. I will rPi'er to two or three of them to show what really happened
and whether an isolated E>xpression in a signal or cable can be relied upon.
Annex 6
- 115 - C-Min. Ill:X.J:v/4(C losed)
20. The first signal, dated 4 February 1966, is from the Director
General of Civil Aviation, India to the Director General of Civil Aviation,
Pakistan:
"Our Government has agreed to restoration of overflights of scheduled services
between India and Pakistan. We would suggest meeting as soon as possible
to determine details, including earliest date of resumption and routes over
which overflying could be resumed. We would be grateful for immediate reply
regarding date and venue."
The first sentence is a mere reiteration of the decision taken by the two
Governments to restore overflights and the second has to do with the implementation
of that decision and is a suggestion for a meeting. What is this meeting to do? -
to determine the earliest date of resumption and routes. Pakistan responded by
a signal on 7 February, which reads:
"We have received instructions from our Government that the Government of
India has agreed on a reciprocal basis to the resumption of overflights of
each other's territory by our respective airlines in accordance with procedures
existing before 1st August 1965."
So it was in accordance with procedures existing and in operation prior to 1st
August 1965, which would, of course, certainly cover the Convention, the Transit
Agreement and the Bilateral Agreement. Then the DGCA Pakistan went on to propose
resumption of flights over Indian territory as per the following schedule and
suggested a schedule. There was a reply from DGCA India dated 8 February 1966,
in which he gave their schedule. Calcutta - Agartala, Agartala - Calcutta,
Karachi - Mandasaur - Jamshedpur - Calcutta and various other schedules were
given.
21. It was in reply to this cable about the schedules that the cable
of 9 February 1966 was sent by the Director General of Civil Aviation of Pakistan,
part of which was referred to and relied upon by the Indian Counsel yesterday. I
would like to read this, because I argue that in the context this is not an independent
cable; it is a cable dealing with what has preceded it, namely, a
schedule received from India, and it points out in paragraph 1 that:
"In accordance with agreement between our Governments all routes and procedures
which existed prior to first August were to be restored. It is
noted from your signal ••••••••••• that PDRS 3, 4 and 6 for Karachi-Dacca
flights have not been mentioned. Secondly your signal indicates that on
Kathmandu-Dacca route our aircraft will be required to fly via Calcutta.
Previously the route was Dhanbad-Dacca direct. Suggest necessary amendments
are effected to confirm with agreement. Para. two - Your schedules
have been noted. All former routes over Pakistan territory as existed
prior to 1/8/65 will be available to IAC and AII on a provisional basis.
This will be subject to review in case you are unable to restore all
former routes and procedures. 11
Thus we are, on the administrative side, merely conveying to them that as far as
we are concerned, they can have on a provisional basis whatever routes they were
operating before 1 August 1965; if they want to review these routes, we are prepared
to review, but we are merely implementing the decisions of the two
Governments.
Annex 6
C-Min. IXX.'IV/4 (Closed) - 116 -
22. So overflights were not restored on a provisional basis or under a
so-called special regime. They were restored on the basis of what was applicable
to the two countries before 1 August 1965, as acknowledged by the Prime Minister
of India in her, ·letter. Therefore the whole argument of a special regime falls
to the ground because the basis is knocked out by reading the full text of the
correspondence and cables, and especially the authoritative letter of the Prime
Minister of India. The signals were merely instructions in the process of implementation
and, with reference to one particular item, routes, not all of which
had been mentioned, we were reminding them that we, for our part, were willing
to make available all the routes in existence prior to 1 August 1965, but they
could review and reconsider and let us know. It was merely an administrative
arrangement; nothing hinges on it.
23. Then reliance was placed on the notification from the Gazet t of
India, dated 6 September 1965, when the war between India and Pakistan was in
progress, issuing a directive under the Aircraft Act, and the so-called amendment
to it of 10 February 1966. These notifications are in Annexure 3 to India's
preliminary objection. Now these notifications are their own,issued under their
own domestic legislation. They certainly cannot affect Pakistan, because so far
as Pakistan is concerned, the agreement arrived at between India ana Pakistan
was to resume overflights on the basis existing on 1st August 1965. It was suggested
that the flights were with special permission. There was no such thing as special
perm.ission;I contest and repudiate any such suggestion. All that was done in
practice was that each country filed flight schedules with the other's aeronautical
authorities. Nothing else, nothing else was done.
24. Therefore my submission is that whatever was the position between
India and Pakistan after 1948 became the position from February 1966 by the wellconsidered
decision of the Governments of the two countries and there was no
special arrangement of a provisional character and no question of any special
permission. Therefore the Convention, the Transit Agreement and the Bilateral
Agreement were all in operation. That the Convention was in operation is borne out
by many other factors. I need not trouble you with them at this stage, because
when we go into the merits of the case we shall go into greater detail. There
were, in respect even of non-scheduled flights, overflying and landing in Pakistan
and in India by each other's aircraft, pilgrimage or what are called Raj flights,
the flights of their dignitaries, our dignitaries, etc. These were, of course,
overflights, but apart from them various other obligations under the Convention
and Transit Agreement were being performed by India and Pakistan. I will refer
to that in a moment.
25. One point I must mention here is this. I have shown that in fact
there was no such thing as a special arrangement, agreement or regime. In any
case the Convention is quite clear, and the combined effect of Articles 82 and 83
is that there cannot be any special arrangement or agreement inconsistent with the
Convention. You are well aware of the provisions embodied in these two Articles,
but I will refer to them just to make clear the point which I am canvassing before
you.
Annex 6
- 117 - C-Min. J.XXrV/4(C losed)
Article 82
"The contracting States accept this Convention as abrogating all obligations
and understandings between them which are inconsistent with its terms and
undertake not to enter into any such obligations and understandings. 11
The rest is not material. Then we go to Article 83:
"Subject to the provisions of the preceding Article, any contracting
State may make arrangements not inconsistent with the provisions of this
Convention. Any such arrangement shall be forthwith registered with the
Council, which shall make it public as soon as possible."
So firstly there is an undertaking not to make or incur any obligations and understandings
whi~h are inconsistent with the terms of the Convention. Secondly,
arrangements not -inconsistent with it may be made, but these are to be forthwith
registered with the Council, which shall make them public as soon as possible.
Therefore there could not have been any special regime inconsistent with the
Convention, the Convention being in operation.
26 . Even customary international law is to the same effect . My learned
friend yesterday made the statement that the Vienna Convention recognized certain
principles of customary international law. I invoke another Article of the same
Vienna Convention, Article 30 - 11Application of successive treatie s relating to
the same subject matter". Clause 3 of this Article reads:
"When all the parties to the earlier treaty are parties also to the later
treaty, but the earlier treaty is notterminated or suspended in operation
under Article 59, the earlier treaty applies only to the extent that its
provisions are compatible with those of the later treaty."
The first two treaties, namely the Convention and the Transit Agreement, were
neither terminated nor suspended, and there was nothing in them incompatible
with any later agreement. In fact there was no later arrangement except to
this extent: that we revive the arrangements in existence on 1st August 1965.
27 . Now I come to one or two illu strations. When we go to the merits
we shall give a number of others. As to conduct, I will just give an isolated
incident to show. I need not burden you with details at this time. In the year
1969 - that means after September 1965 - an Indian aircraft met with an accident
in East Pakistan. In accordance with the provisions of the Chicago Convention,
Pakistan investigated the accident. Invoking Annex 13 to the Chicago Convention,
India nominated a representative on the inquiry and requested Pakistan to grant
the necessary facilities to him and his advisers. Pakistan, carrying out its
obligations under the Convention and Annex 13, afforded full facilities, which
were acknowledged by the Prime Minister of India herself in a letter dated 29
September 1969 to the President of Pakistan, and I quote: "Thank you for your
message of sympathy on the loss of lives as the result of the crash of the Indian
aircraft . We are grateful to the Pakistan authorities for the assistance rendered
by them in this regard. 11 In the course of the investigatio~ the Paki stan Inspector
examined the air traffic controllers on duty at Calcutta Airport in order to
ascertain whether the provisions of ICAO Document 4444 had been complied with.
Annex 6
C-Min. IXXIT/4 (Closed) - 118 -
The Government of India confirmed during the investigation that this document was
being followed by them. This amply shows that the conduct of India in relation to
Pakistan during the investigation of the accident was on the basis that both
countries were parties to the Chicago Convention of 1944 and were governed by that
Convention, which was in operation.
28. Mr. President and members of the Council, at regular intervals
the learned Counsel yesterday expressed the apprehension of the Indian authorities
for the safety and security of Indian planes over the territory of Pakistan, just
because of the unfortunate happening at Lahore. I need not talk about Lahore; you
know what happened in September 1965; you know what the reaction of the people of
Lahore could be; and you also know what the Government of Pakistan did in spite
of that. It did all it could, but that is a different matter. So far as safety
and security of the flights is concerned, we are likewise interested in that and
we certainly could not endanger planes, whether they are theirs or ours or belong
to the airlines of other countries. Twenty-three international airlines have been
flying over the territory of Pakistan and not one of them has even remotely suggested
anything to the contrary. And why should I talk only of those 23 international
airlines? Why should I not talk of India itself? India has set out in its objections
a case of so-called 11 confrontation 1
' between India and Pakistan - who is
responsible is a different matter - and about the two major conflicts between India
and Pakistan, namely those of 1948 and 1965. Notwithstanding that atmosphere of
tension, conflict and confrontation, Indian airlines have been operating and flying
over the territory of Pakistan for 23 years. One isolated incident of hijacking
has taken place. So many hijackings have taken place in the last two years, and
you have seen what has happened. You have seen how various other States have had
to act in various circumstances. You know much better than I the case of Leila
Khaled, or whether particular hijackers were given a particular ransom, whether
cars were placed at their disposal, or whether they were taken by special plane
from one place to another. Many factors have to be taken into consideration,
but that does not mean that any State, merely because of an incident of that kind,
can say 11From tomorrow on this Convention will not apply. 11 If that is how international
conventions are to be applied, I need not tell you what will happen.
29. Mr. President and members of the Council, to sum up on both the
points, our case is this. Because her case is that the Convention and Transit
Agreement have been terminated and are not in operation, India says that disputes
can be classified in four categories - (1) disputes in which questions of interpretation
are involved, (2) disputes in which questions of application are invovled,
(3) disputes concerning action taken under an agreement, and (4) disputes
concerning the tennination or suspension of an agreement. She contends that only
cases of interpretation and application can be brought before this Council under
the Convention) that only cases of interpretation, application and action under
the agreement can be brought under the Transit Agreement, and that under no circumstances
can cases of termination or suspension be brought here. Yesterday) I
pointed out to you by various precedents that even though Article 36 of the
Statute of the International Court of Justice speaks only of legal disputes concerning
the interpretation of a treaty - the word "application" does not appear -
any question of international law, the existence of any fact which if established
would constitute a breach of an international obligation, and the nature or extent
of reparation to be made for the breach of an international obligation, in cases
brought before it jnvolving treaties or conventions in which reference is made only
to disagreements relating to interpretation or application, the Court has held that
the body empowered to entertain a disagreement relating to interpretation or
Annex 6
- 119 - C-Min. IXXTV/4 (Closed)
application certainly will be entitled to adjudicate a disagreement concerning
termination or suspension, because termination and suspension are part of interpretation
and application. You have to determine whether the treaty or convention
can be terminated or suspended and then you have to decide whether it has been
terminated or suspended, as one party alleges, because the other party has not
fulfilled its obligations. Therefore, whichever way you look at it, the Convention
has not to be construed in a narrow sense. I laid down as a first principle that
it has to be construed in a large and liberal sense and that the expression "any
disagreement relating to the interpretation and application of this Convention" is
very wide, embracing disputes even in respect of alleged termination or suspension,
because one party or one State, unilaterally, unjustifiably and without material
breach, can say that the other party's action was sufficient to justify its conduct
and that it has terminated the agreement. Such unilateral termination on unjusti fiable
grounds certainly can be investigated, inquired into and adjudicated by this
body.
30. I have explained that there was an express provision in the Convention
about termination andruspension. If there is an express provision, recourse
cannot be had to implied powers either under Article 60 of the Vienna Convention
or otherwise. Even when the right of recourse to implied powers can be exercised,
it is hedged by various conditions. It is not an unqualified right - the doctrine
of material breach and the possibility of acquiescence, by reason of conduct, in
the continued validity of the treaty were invoked. I pointed out that India herself,
while alleging termination, approached this Council with respect to the
hijacking incident and reminded us of our obligations under the Convention. I cited
the opinion of the International Court of Justice in the recent case of South West
Africa and I said that nothing in it militated against what I have been submitting
and discussing before this august Council. On the last point I have explained my
position that there was no special regime; we are governed by the arrangements,
agreements and conventions which were in existence and in operation between India
and Pakistan on the 1st of August 1965.
31. Before I conclude, Mr. President and members of the Council, if
conventions are to be construed so narrowly in the manner India has suggested,
whereby a Contracting State can unilaterally say "I do not like a particular
State and will not allow its aircraft to touch or fly over my territory!', then
these conventions will become merely paper conventions, liable to be scrapped by
one or more of the Contracting States at their whim and caprice and will be torn to
pieces.
32. Mr. President and members of the Counci\ I have sufficiently detained
you. I am not asking a poor litigant to come to the Ritz Hotel. I am only
requesting India to come to ICAO, whose doors are open to all Contracting States, all
parties to the Convention, seeking justice. Thank you, Mr. President.
33. The President: Thank you. We shall now have a recess of 15 mimutes
and then the Counsel for India may answer, if he wishes to do so.
- Recess -
Annex 6
C-Min. LXXIT/4 (Closed) - 120 -
34. The President: I now give the floor to the Chief Counsel for India.
35. Mr. Palkhivala: Mr. President and honourable members, in replying to
the learned Counsel for Pakistan, I shall confine myself to the main highway of
the case and not go into any sidepaths or bylanes.
36. My learned friend, and I do call him friend, first referred to the
cardinal rule of interpretation. He said that when you construe an international
treaty you must give it a liberal interpretation. My answer is: there is all the
difference in the world between giving a liberal interpretation and giving a mi sinterpretation.
If the Statute talks of horses you may include wild horses,
Argentinian horses, horses of the Rockies, Irish horses, English horses and Arab
horses, but you cannot include cows, and if this homely simile can bring home to
the honourable members the distinction between a liberal interpretation and misconstruction,
I shall have made good my point.
37. The whole question at issue before the honourable members is "Are
you to confuse interpretation and application of a tresty, both of which presuppose
and postulate the continued existence of the treaty, with the situation where the
treaty has either come to an end by termination or come to an end for the time being
by suspension?" This is the real question and before I proceed further, may I request
the honourable members to bear in mind the sharp and clear distinction between
two questions. The first question is "Has this Council the jurisdiction to
deal with cases of suspension or termination? 11 The second and i ndependent question
would be "Did India have justification, did India have good reasons,for suspending
or terminating?" If on the first question the honourable Council comes to the conclusion
that it has no jurisdiction to go into a question of suspension or termination
at all, the second question cannot logically arise. To argue the two questions
simultaneously would be to confuse the real question before the Council with a
question which is not before the Council. I have already made clear in my opening
address that I am not fighting shy of the merits, but, as I see it, I would be
wasting your time if I went into the justification for the termination or suspension
of the treaty as between India and Pakistan, because the real question is 11Can you
go into this question of termination or suspension at all? 11
38. I emphasize this very much because my learned friend referred to
three judgements. I do not know if they were again, in his words, "advisory
opinions", but to my mind if the International Court of Justice expresses an
opjnion, it lays down the law and I call it in that sense a judgement. It judges
whut the international law is. My learned friend referred to three decisions
of the International Court of Justice, each of which is miles away from the real
issue before you. In none of the three cases was the International Court of Justice
called upon to consider whether a tribunal whose jurisdiction is confined to the
interpretation or application of a treaty can go into the question of termination
or suspension. For the rest of my argument, allow me, to save time, to use only
the word "termination 11
• Wherever I use "termination", the honourable members will
take it that I mean 11terrnination or suspension 11
• I shall try to economize on words
and will only use 11termination" hereafter.
Annex 6
- 121 - C-Min. LXXDJ/4 (Closed)
39. The real question is "Has my learned frie nd been able to cite a
single case where any court, either a civ il court or the International Court of
Justice, has held that the words "interpr etation or applicati on" embrace the concept
of "termination'>? This is the real question. To say th at the International
Court went into the question whether the termin ation of a treaty on the facts of
a given case was justified or not is to prov e nothing, because the International
Court of Justice undoubtedly had the jurisdiction to go into that question. The
fact that the Internation al Court of Ju stice can go into the question only means
that its jurisdiction is much wider than the jurisdiction of the Council. The
most surprising part of my learned friend's argument was with reference to Article
36 of the Statute of the International Court of Justice, which, according to him,
gave a narrower jurisdiction to the Internation al Court - and yet the International
Court went into various questions of termin ation! That is why, in the compilation
which we prepared and submitted last night for circulation among the honourable
members, we in~luded Article 36 of the St atute of the Court , so that the honourable
members can judge for themselves whether the jurisdiction of this Council is at
all co-extensive with the jurisdiction of the International Court of Justice.
40. Since I am on thi s point, may I request you i nnnediately to turn
to Article 36 of the Statute of the Intern at ional Court and see whether anyone
can possibly equate the words "any disag reement as to inter pretation or application"
with the words in which jurisdiction is conferred upon the International Court of
Justice.
41. Clause 1 of Article 36 re ads :
"The jurisdict i on of the Court comprises all cases which the parties refer to
it and all matters sp e cially prov ided for in the Charter of the Uni t ed Nations
or in treaties and conventions in forc e."
First of all you will notice that all case s which parties refer to it can be decided
by the International Court of Justice. There is no limitatio n by refer ence to
application or interpretation. It does not say "all cases of application or interpretation";
it says "all cases". Suppose the words of Article 84 of the
Convention had been "any disagreement between States" and the matter had ended
there, there is no doubt that termination or suspension would have been included
because you might say that it was a case of disagreement between two nations, one
of which said "You have wrongly terminated," while the othe r said "I have rightly
terminated." The point is that a disagreement that can go to this Council is not any
disagreement; it is any disagreement relating to interyret ation or application. In glaring
contrast to Article 84 of the Convention which confe rs jurisdiction on this Council,
the first clause of Article 36 of the Statute of the International Court of Justice
pl a ces no lim i tation whatever on its juris diction . All cases which the parties
refer to the International Court can be deci ded by the International Court, as well
as all matters specially provided for in t he Charter of the United Nations or in
treaties or conventions. In other words, if, in the Charter of the United Nations,
there are any matters enumerated which can go to the International Court, they will
go, and under Article 36 of its Statute th e Int ernational Court will have jurisdiction
to deal with them.
42. Look now at Clause 2 of the same Article 36.
"The states parties to the present Statu te may at any time declare that they
recogni ze as compulsory ipso facto and without special agreeme nt, in relation
Annex 6
C-Min. r;xx.r:v/4 (Closed) - 122 -
to any other State accepting the same obligation, the juri ,adiction of the
Court in all legal disputes concerning: a) the interpretation of a treaty".
Now the word "interpretation" comes in. So the interpretation of a treaty can be
referred by parties to the treaty to the World Court and the World Court will give
its opinion. Look at b), which is very interesting:
11 any question of international law. 11
The question whether, on the facts of a given case, a particular State has a right
to terminate a treaty as against another State is a question of international law.
It can go to the International Court of Justice. It is expressly provided that
any question of international law can go and, as th honourable members have already
seen, in the South West Africa case the question was one of international law -
whether a mandate or international treaty can be terminated if it does not provide
for termination. The World Court gave its opinion - it can be terminated without
a provision for termination in the mandate, in the treaty itself. Now this is a
question of international law. It can go to the International Court of Justice.
Can it come before this honourable Council? Put Article 84 of the Convention and
Article 36 of the Statute of the International Court of Justice in juxtaposition. Can
anyone reading them, in any language in which they happen to be available, possibly say
that the two limits of jurisdiction are the same? Therefore it is completely
beside the point to cite three cases of the International Court of Justice in which
the Court went into the question of whether the termination of a treaty was justified
or not. I have never disputed that the International Court of Justice can go into
the question whether termination of a treaty was rightful or not. The real question
is "Can the Council go into it?"
43. Look at Article 36 ( 2 )(c) of the Statute - "the existence of any
fact which, if established, would constitute a breach of an international obligation".
Now the World Court could decide whether South Africa had committed
a breach of an international obligation and whether that fact bad been established.
This is what the World Court is entitled to go into. Take (d) -"the nature or
extent of the reparation to be made for the breach of an international obligation".
Then come to this interesting Clause 6 of the same Article 36 of the Statute of
the International Court of Justice. Clause 6 of Article 36 says: "In the event
of a dispute as to whether the Court has jurisdiction, the matter shall be settled
by the decision of the Court." In other words, if I say to the International Court
of Justice "You have no jurisdiction•", the decision of the Court that it has jurisdiction
is final.
44. I have the highest regard for this Council, but I would be failing
in my duty if I did not point out what is so obvious and so elementary: that the
greatest respect for the Council cannot possibly make anyone argue logically
that your jurisdiction is co-extensive with the jurisdiction of the International
Court of Justice. If the Council were to say tomorrow "I have jurisdiction in a
matter of termination,", can you possibly imagine that decision becoming final when
Article 84 says that an appeal from the decision of the Council shall lie to the
International Court of Justice?
Annex 6
- 123 - C-Min. rxx-rv/4 (Closed)
45. Therefore my respectfuleubmission is that, beyond the shadow of
a doubt, there can be no comparison between what the International Court of Justice
can decide and what the Council can decide. In fact your functions are quite
different. They are not inferior; they may be as important; I think they are as
significant. They may even be more momentous. In fact your powers are such that
they have to be exercised much more frequently than the powers of the International
Court, and without meaning to flatter you, I think you are doing more continuous
good for international relations than the World Court, which meets once in six
months and takes up one case a year, whereas you deal with innumerable matters
in the course of a year. But your fields are different. This is not to say that
this is an inferior body; this is not to say that your functions are less important;
but it is to say that the field in which you operate, very important and enormously
significant as it is for good international relations, is completely different from
the field in which jurisdiction is exercised by the International Court of Justice.
46. I shall not deal with the actual cases cited by my learned friend
because, quite frankly, they have no application whatever. As I have already told
you, none of them dealt with the real question you have to decide today, namely,
whether "interpretation and application" includes "termination", and no case has
been cited to support the startling proposition that it does.
47. My learned friend referred to a book by Mr. B.P. Sinha. It, again,
says something which has no relevance to the question of whether the Council's
jurisdiction, which is limited to questions of application and interpretation, can
be extended to the case of termination. In fact, as far as we, with our limited
knowledge, are aware, this point is being argued here for the first time. Perhaps
this is also the first time it has arisen here, and I am not aware that an opinion
contrary to ours has been expressed in any textbook or in any authoritative
quarter. In any event, even if a Mr. Sinha or a Mr. Smith does choose to say something,
the honourable members can still decide for themselves what the correct
view is after hearing all the arguments.
48. Then my learned friend repeated the argument which he had set out
in the reply to India's preliminary objections, namely, that as you have an express
provision on termination in the Convention, this provision override~ supersedes,
the rule of international law laid down by the World Court regarding the power to
terminate a treaty. I had dealt with this point, basing my submissions expressly
on the Articles of the Convention - which submissions have not been answered - but
since my learned friend has repeated his argument, may I request you once again
to look at the Articles and see whether a single one of them deals with the
question of termination of the treaty by one State as against another for a breach
of contract by that other State. If an Article dealt with this question of the
limits upon the right of a State to terminate a treaty when another State commits
a breach, I could understand the argument that there was a provision, but you cannot
refer to provisions which have nothing to do with this right of termination
on the ground of breach by another State, but have a bearing on completely different
concepts, totally different situations, that have no connection with this question
of breach by one State and resulting termination of the treaty by another State.
Annex 6
C-Min. IXXTV/4 (Closed) - 124 -
49. Look once again at Article 89 - War and Emergency Conditions. In
fact it is very interesting why that provision was included, and its effect is
exactly the contrary of what Pakistan would have you believe. This is a most interesting
provision and after reading it again I would like you to consider the
argument I am submitting for your acceptance and see whether there is any flaw in
it at all. If you look at Article 89 of the Convention you find the words are these:
"In case of war, the provisions of this Convention shall not affect the freedom
of action of any of the contracting States ••• 11 What is the result of this Article
89? - that if there is a war, you do not drive a State to terminate or suspend the
Convention. The Convention itself gives the State freedom of action. In other
words, this clause obviates the necessity of terminating or suspending the Convention
in time of war, because the Convention, by its own force, by its own vigour, by its
own terms, confers the right tofreedom of action within the Convention. This has
nothing to do with the right to suspend, the right to terminate, which is dehors
the treaty, as the International Court said. This Article merely tells States that
the Convention itself gives them freedom of action. So if a State is questioned
about not allowing its enemies to overfly while war is going on, it can say that
it does not have to declare the Convention terminated, because the Convention itself
gives it complete freedom of action.
50. I do not see how you can fail to accept this construction, which is
really the right one, and regard Article 89 as conferring the right of termination.
Article 89 is not concerned with termination. That is my whole point, and if a
provision deals with one situation, I find it extremely difficult to understand
by what process of reasoning it can be said to deal with another. To say that it
deals with that other situation is to ignore the clear wording of 89, which deals
with the limited contingencies of war and national emergency, nothing more. If
for a reason not connected with war or a national emergency -- for example, breach
by another State - a State wants to terminate the treaty, it does not go to Article
89 or any other provision of the Convention, for the simple reason that no provision
of the Convention deals with that situation. It goes, in the words of the International
Court, to customary international law which gives it the right to terminate,
and the International Court has expressly said - and I read the exact sentence -
that the silence of a treaty regarding the right to terminate the treaty in the
event of breach by another State does not mean that the right does not exist; the
right exists outside the treaty which is being construed and applied.
51. Then my learned friend referred to Article 95. On a plain reading
I do not think it is capable of the construction tha~ denun~iation can be qua-one
State. Article 95 deals with denunciation of the Convention, the Conventiooitself.
It does not deal with the relations between two States at all. Again, there
are two distinct concepts which are not to be confused. The first concept is that
of a State which need not have been a party to this treaty but chose to become a
party; on second thoughts - perhaps wilder or more foolish thoughts - that State
chooses to back out and say 11I am not very happy with this treaty." Then it has
the right to denounce the treaty, the right to say 11 I am no longer a party to this
treaty. 11 That is what the right to denounce amounts to. It is not a question of
the relations between two States only; it is a question of one State on the one
hand and all the other States that are parties to the treaty on the other. This is
the right interpretation of Article 95, and if a State wants to exercise its right
to denounce the treaty under this Article it will have to denounce the treaty as
a whole and will therefore cease to be a party to the treaty after a year has
elapsed.
Annex 6
- 12 5 - C-Min. LXXDl/4 (Closed)
52. Let me put the alternative point of view of my learned friend and
see whether it makes sense to you. Suppose there are two States, one of which admittedly
connnits breaches of its obligations. Leave aside the facts of this case
which my learned friend puts in issue and take a straightforward case where one
State tells another that it is not going to permit overflying its territory
What is the other State to do? - it has to denounce the Convention and then for one
whole year permit the wrongdoer to keep on overflying its territory, because only
after one year will the denunciation become effective. I hope I am making my point
clear. I am assuming for the purpose of this argument that my learned friend's
contention is correct and that this right of denunciation is wide enough to embrace
the right to denounce the treaty as against one State only, not against all
the States who are parties to the treaty. Assume this is the right construction
and look at the absurd consequences! Assume that under Article 95 India can denounce
the treaty only against one State and be a party to the treaty as regards
all the other States. Look at the consequence: that if a State connnits a glaring
material breach of this very treaty against India, India - the wronged country -
must permit the wrongdoer to continue overflying its territory for one year, because
the denunciation cannot come into effect for one year under Article 95. It
say::? "Denunciation shal 7 take effect one year from the date of the notification."
Can you conceive of an international treaty so irrationally drafted that the
wrongdoing State for one year will be entitled to the full benefits of this treaty
and the State which has been wronged is powerless to do anything in the matter
except make a complaint?
53. Suppose the complaint is made, what would happen? You give a decision.
The decision is not obeyed. What happens then? - you suspend the voting
rights of that State, but the poor State which is wronged in the meanwhile must
permit overflying. The State which is the wrongdoer may be very impudent and may
not care about the loss of its voting rights. What is the sanction then? This
State which is wronged must permit the wrongdoer to overfly its territory for one
whole year. This is the effect of the construction my learned friend is putting
on Article 95, and I say it is an untenable proposition. On the other hand, the
construction I am respectfully suggesting makes complete sense. As between two
States the whole basis of this Convention is reciprocity. If there is no reciprocity,
if there is a situation where there is a breach of the treaty by one
State, the other State has the right under international law to treat the treaty
as being at an end as regards that particular State. That makes sense, that makes
for justice, because it is an effective sanction. The sanction the Council can
impose is, with great respect, not effective, because if the State, as I said,
does not care about the loss of its voting rights, what happens? Surely you will
not construe an international treaty in a manner which puts a premium upon international
wrongdoing.
54. Let me deal now with the Vienna Convention, to which my learned
friend referred. He read Article 60, but he read that portion which has no application
to the present case. He read the first clause of Article 60, which deals
with a bilateral treaty. We are dealing with a multilateral treaty. The
Convention and the Transit Agreement are multilateral treaties, which are dealt
with in Clause 2, which I read out. Now Clause 2(b) says that a material breach
of a multilateral treaty by one of the parties entitles a party specially affected
by the breach to invoke it as a ground for suspending the operation of the treaty
in whole or in part in the relations between itself and the defaulting State. Now
this is the power which the World Court said is inherent, implicit, in customary
international law and this Article merely codifies that power. I am unable to
Annex 6
C-Min. r..;xxrv/4(C losed) - 126 -
see, then, what is the flaw in the argument I presented yesterday morning to the
honourable members. I have a right under international law to suspend or terminate
the treaty. If anyone says I have done it wrongly, he must find the appropriate
forum in which he can say it, if there is such a forum.
55. In this connection I cited the submission made by the United States
Counsel to the World Court in which he said that if such a forum did not exist, it
was a shortcoming of international law, but did not mean that a State has no right
to terminate a treaty in the event of a breach of the treaty by another State. The
World Court accepted that argument. This is my argument: I have terminated. If,
for the sake of argument, the honourable members are satisfied that this is a case
of suspension or termination and therefore the Council has no jurisdiction, how can
they be called upon to consider the question whether one hijacking was enough or
whether twenty of my planes saould have been destroyed before I could take 0 ·t ion?
Who is to decide that? If the Council has no jurisdiction to deal with the case,
what is the point of telling it that there was only one hijacking incident, that
there should have been at least twelve before India took action? This is a matter
of justification of termination, which can be investigated only by a tribunal which
can go into the question of whether the termination of the treaty by India was
justified or not.
56. My" learned friend referred also to Article 45 of the Vienna
Convention. Again one is at a loss to understand what bearing this Article has.
Kindly look at the Article and see whether it has the remotest bearing on the
question before the honourable members. Article 45 says:
11A State may no longer invoke a ground for invalidating, terminating, withdrawing
from or suspending the operation of a treaty under Articles 46 to 50
or Articles 60 and 62 if, after becoming aware of the facts:
(a) it shall have expressly agreed that the treaty is valid or
remains in force or continues in operation, as the case may
be; or
(b) it must by reason of its conduct be considered as having acquiesced
in the validity of the treaty or in its maintenance
in force or in operation, as the case may be. 11
Now what has India!s conduct been? India has never expressly agreed after 1965
that the Convention or the Transit Agreement is in force between India and Pakistan .
Has it by its conduct acquiesced in the position that the Convention and the Transit
Agreement are in operation between the two States? What has been the conduct of
India? In September 1965 it said "Total suspension of all overflyingu. In
February 1966 it said uoverflying only with the permission of the Government of
India and no stops by Pakistan aircraft in India for traffic or non-traffic purposes".
This is the direct opposite of the Transit Agreement and the Convention.
How can you possibly argue that this conduct means that India has acquiesced in the
continuance of the treaty?
Annex 6
- 127 - C-Min. LXXIV/4 (Closed)
57. My learned friend referred to the Namibia case and said it has no
applica~ion. I am asking the honourable members to consider ' whether the case does
not directly apply - not only directly apply but conclusively decide the matter
which the honourable Co'\.P±_cil! s calle~ ~pan to consider. What has been my argument
and has it been met? My argument has been that interpretation or application of
a treaty presupposes that the treaty is in existence and in operation. If I invoke
the power or the right to terminate the treaty, it is a right or power founded on
international law outside the treaty. The World Court says this is correct; the
power to terminate a treaty is outside the treaty; it is founded on a principle of
international law, which will prevail even if the treaty is silent as to the right
of termination. How can you say this case has no relevance? It directly applies,
because it directly establishes my right to terminate the treaty outside the treaty.
58. You are left, then,with only one question. If its statute tells a
particular Council that it can deal with questions of interpretation or application
of the treaty, can that Council go into the question whether the treaty wasterminated
for good reasons or bad? Is that a case of application of the treaty?
Who is applying the treaty? How can you apply a treaty which, as a result of termination,
is no longer in operation? You will kindly note that if I terminate a
treaty, I effectively terminate it. I may be wrong in doing so, but I effectively
terminate it. If I set fire to a house, I effectively destroy it. I may have no
right to do so, but when I have destroyed the house by fire you cannot go on the
basis that it still exists, on the ground that my setting fire to it was wrong.
My setting fire to a house may be wrong, but if I have destroyed it, the house does
not exist, and can a statute be construed, by any logical process of reasoning, as
meaning that the house still exists because my .setting fire to it was wrong?
59. Now you, the Council, are asked to consider the simple question of
how to apply, how to interpret, a treaty in existence and operation. Questions
in the realm of international law, questions of whether the termination was right
or wrong, are questions which are expressly out of the purview of the Council. You
will recall in this connection the resolution of the Assembly to which I referred
and to which there has been no reply -- a resolution which expressly says that
originally the Council was invested with much wider powers, but its powers were
limited when the Convention was finally agreed upon.
Annex 6
C-Min. LXXIV/4 (Closed) - 128 -
60 My learned friend referred to the fact that after the hijacking
incident, India approached the ICA0 Council and therefore can be deemed to have
acquiesced in the continuance of the treaty. You have only to read the letter he
cited to be satisfied that it says nothing of the kind. You will kindly note
what are the functions of the Council. They are not merely to deal with disagreements
under Article 84. In fact India never approached the Council with an
application under Article 84. She approached the Council as the keeper of the
conscience of the world so far as safety in international aviation is concerned.
If a State was not a party to the Convention, we could still come to ICA0 and say
"This is the disastrous consequence of U.is particular State's attitude to
hijacking; please see that appropriate steps are taken." In fact it is most
important to note that in this very letter, which is addressed to the President
of the Council, we refer to the Tokyo Convention of 1963 and the Hague Convention
of 1970 regarding hijacking and neither India ~or Pakistan is a party to either of
these Conventions. Now if my learned friend is right in his argument that if I
make application to ICA0 it can only be on the basis that the Convention is in
operation between the two of us, by the same token it must follow that if I refer
to the Tokyo Convention or the Hague Convention I want the Council to hold that
both India and Pakistan are parties to those two Conventions. We are not. India
and Pakistan never have been parties to either the Tokyo Convention or the Hague
Convention, and yet both Conventions are referred to in this letter. Why? -because
under Article 54 (n) and Article 55 (e) of the Convention, the Council of
ICA0 has power to deal with various matters not connected with a breach of the
Convention by a party to it.
61. Article 54 (Mandatory Functions of the Council) says in Clause (n)
that the Council shall "consider any matter relating to the Convention which any
Contracting State refers to it''. Now the Convention deals with safety in international
aviation. If a State tomorrow were to give harbour and comfort to a
criminal who had hijacked an Indian plane, and if that State were not a party to
this Convention, we would still approach ICA0 and say "You are the monitor of good
relations in international aviation. Will you kindly use your good offices and see
that the right thing is done." In other words this has nothing to do with the
Convention being in operation between India and Pakistan. What it has to do with
are the wider powers of the Council to see to it that the standards of safety in
international civil aviation are safeguarded, and the Council would be entitled to
say to a State which is not a party to the Tokyo Convention "Why do not you do the
right thing? This is the honourable, the moral, thing to do." The Council may
Annex 6
- 129 - C-Min. LXXIV/4 (Closed)
address a letter to a State. In fact you will remember that both Pakistan and
India are still parties to the Convention, although it is not in operation between
the two of them. Can the President of the Council not tell a State which is a
party to the Convention: "You are a member of ICAO; you are a party to the
Convention; may I request you to look at the moral side of it; you cannot treat a
neighbouring State in this manner." I say that the Council has not only the
power but the right and the duty to say so, even though the Convention may not be
in operation between the wrongdoing State and the State whose aircraft has been
hijacked.
62. Now look at Article 55 (Permissive Functions of the Council).
Under 55 ( e) the Council may 0 investigate at the request of any contracting State"
-- and India is a contracting State -- "any situation which may appear to present
avoidable obstacles to the development of international air navigation; and, after
such investigation, issue such reports as may appear to it desirable".
63. Consider also the question of overflying and observe that under the
Convention and Transit Agreement overflying is a right that cannot be negated.
Kindly credit our country with that very limited knowledge. Can you imagine any
country with that knowledge first of all treating the whole thing as being at an
end and saying "You have no such right at all." and then writing a letter to the
President of the Council whose implication is that it still regards India and
Pakistan as being bound by the Convention? There must be something psychologically
wrong with the individual who on the same day does these two things. The only way
to reconcile our termination of the right of overflying with this letter to the
Presiden t of the Council is to put the very obvious natural interpretation on
it, which, as I said, is this: "You are the keeper of the world's conscience in
international aviation; kindly use your good offices to see to it that this wrong
is not done to me." This is all.
64. To say that from this it follows that we regarded the Convention
as in force between India and Pakistan is completely wrong. What is overlooked
is that India and Pakistan still continue to be members of ICAO and parties to the
Convention and the Transit Agreement. All that has happened is that whereas the
Convention and the Transit Agreement are binding on India and Pakistan as against
all other parties, they are not binding on India as against Pakistan or on Pakistan
as against India. That is all. Our conduct in writing to the President is
completely consistent with the stand I am taking now.
65. My learned friend then referred to Article 60 of the Vienna Convention
and said that under that Article there must be a material breach by a State before
another State can terminate the contract. I completely agree. I am not disputing
that, but are we not mixing up two quastions which are separate and dist i nct? May
I repeat those two questions again, because if I do so I have answered his point.
The question before the Council is whether the Council has jurisdiction to deal
with cases of termination, not whether India was justified in terminating the treaty.
Therefore to say that a material breach is necessary is to go into the merits of the
termination, but if the Council has no jurisdiction to deal with that question, how
can it go into the merits?
Annex 6
C-Min. LXXIV/4 (Closed) - 130 -
66. Then my learned friend referred to Pakistan's reply to our charges
concerning the hijacking. I am not going to take much time with it, because it,
again, deals with the merits of the termination. But it is most interesting when
you consider how specific and clear our charges are: that a foreign airline was
there but passengers were not permitted to board; we were not permitted to send
our own aircraft to relieve the passengers. My learned friend says a crowd
collected. Does this not conclusively prove my case that it would be most dangerous
for Indian aircraft to overfly Pakistan? Our plane has been hijacked by criminals.
A crowd surrounds the airport. The military regime of Pakistan can do nothing for
three and a half days. Suppose my plane is flying over Pakistan and h_as to land
because of mechanical trouble; a crowd can collect and the Pakistan Government says
it can do nothing. Is this safety in international aviation? If a Government
expressly tells you in its own pleadings that once a crowd collects around an
Indian aircraft it is helpless, can you reconcile that with its further contention
that it is nevertheless safe for Indian aircraft to overfly Pakistan? My learned
friend says 23 airlines overfly Pakistan and nothing happens to them. May I say
that more than 23 airlines overfly India and nothing happens to them. If there is
a posture of hostility between two countries, it is irrelevant to say that each of
them is friendly with 25 other countries. The question is not how many friends
Pakistan has or how many friends India has. If that were the question I could say,
as I have said already, that many airlines overfly India. We permit everyone to
overfly. Why should we object only to Pakistan? Are we out of our minds? There
must be some reason for our objection, because normally we do not adopt this
attitude to other States.
67. My learned friend referred to the judgement of the World Court
and to a passage in the dissenting opinion of Judge Fitzmaurice. The use made of
the judgement by the two parties is rather curious. I quote paragraphs, whole
paragraphs, from the operative part of the judgement of the Court, whose President
was no less a person than Sir Muhammad Zafrullah Khan, representing Pakistan. It
is the operative part of the Judgement which I quote, the part where the international
law is laid down. My learned friend in reply quotes from the dissenting
opinion of Judge Fitzmaurice and a footnote to that dissenting opinion. What he
read is the footnote to the dissenting opinion of one Judge. Now what is the law
laid down by the International Court? The law is the law laid down by the majority.
You cannot possibly say that a footnote to a minority opinion is the law laid down
by the World Court. Even in this footnote the Judge merely says "I make a distinction
between terminating a contract and putting an end to it." The words are
"Note the intentional use of the phrase 'treating it as terminated' and not 'putting
an end to it'. There is an important conceptual difference." But I am not on the
conceptual difference between terminating and putting an end. I am on the simple,
massive, clear-cut point laid down in the majority judgement of the World Court,
namely, that every State has a right to terminate an international treaty if there
is a breach by another State and this right is in international law outside the
treaty.
Annex 6
- 131 - C-Min. LXXIV/4 (Closed)
68. Then my learned friend referred to the judgement of Mr. Justice Dillard
on pages 167 and 168. Frankly I am unable to see anything in that judgement which
has any bearing on what you have to consider. You will get these paragraphs in the
verbatim notes and I think I would be wasting your time if I read them again. There
is no sentence, no proposition, no principle, laid down in these passages on pages
167 and 168 which throws any light on the question you have to consider, namely,
whether India has the right under international law to terminate the treaty and if
there is such a right, is termination and a case of termination covered at all by
the words "interpretation and application".
69. My learned friend referred to paragraph 103 on page 49. To do no
injustice to the argument of Pakistan, we ourselves, in the compilation we have
produced, have deliberately included this paragraph, which my learned friend referred
to in his opening remarks yesterday. It does not say anything contrary to what I
have already said. I will not read any of the other passages, but, if I may, I will
read it to show how the real point is not faced and grappled with. You are referred
to some paragraphs here and there which do not deal with the real question before
the Council today.
70. What is this paragraph 103 which my learned friend wanted to read?
It is this:
"The Court is unable to appreciate the view that the General Assembly
acted unilaterally as party and judge in its own cause. In the 1966
Judgement in the South West Africa cases referred to above, it was
found that the function to call for the due execution of the relevant
provisions of the mandate instruments appertained to the League acting
as an entity through its appropriate organs. The right of the League,
"in the pursuit of its collective, institutional activity, to require
the due performance of the Mandate in discharge of the I sacred trust"'
was specifically recognized. Having regard to this finding, the
United Nations as a successor to the League, acting through its competent
organs, must be seen above all as the supervisory institution,
competent to pronounce, in that capacity, on the conduct of the
mandatory with respect to its international obligations, and competent
to act accordingly."
All it says is that the United Nations has a right to say whether a nation which is
given the power of mandatory has abused that power. I am unable to see what bearing
this paragraph has on this case, whereas you will recall that the paragraph I cited
had an immediate and significant bearing on what you have to decide.
71. I have finished with my learned friend's argument on the first ground,
the first preliminary objection. May I come to his argument on the second ground,
the special regime. At the beginning my learned friend said that in the pleading
I made I talked of the existence of a special regime right from 1948. Again, I am
sorry that your time should be wasted on reading something which is obvious beyond
Annex 6
C-Min. LXXIV/4 (Closed) - 132 -
the shadow of a doubt, but since the point is raised I have to answer it. What we
said was that the agreement reached in 1966, after the war, is the special regime
by reference to which we say that today the Convention and the Transit Agreement
are not in operation. It is true that there are two cases made in the preliminary
objections. The first was that even in 1948 there was a special agreement between
the two States -- the bilateral agreement. Therefore only the special one prevailed,
not the general one like the Convention or the Transit Agreement. The second case
is that, in any event, after 1966 there was a special regime, and where we have
referred to "Special Regime" we have expressly said that the words mean the agreement
reached in 1966. You will find that set out in para-34 of the Preliminary Objections
of India. If I may read that paragraph: "On the basis of the aforesaid understanding"
-- that is the understanding reached in 1966 -- "the overflights of Pakistan
and Indian aircraft across each other's territory were resumed with effect from
February 10, 1966. The aforesaid understanding is hereafter referred to as
•the Special Agreement of 1966 1
." Then we go on to say, in para.38, "The Special
Agreement of 1966 has governed the rights and privileges of India and Pakistan
regarding air transit and overflying from February 1966 until February 1971. 11
72. I do not want to waste your time going into things prior to 1966
because 1966 is good enough for my purpose and if I were to take you into the
earlier period, I would be doing something which would be a work of supererogation,
something unnecessary. If a shorter point is enough to dispose of the matter, I
do not propose to go into a larger issue, a more cont'roversial area, which really
is not necessary for a decision in the case. Therefore I have advisedly confined ·
myself to the events of 1966 as the starting point of the special regime between
the two countries and say nothing one way or the other as regards the period
1948-1966. This is to save your time and I do not see what is the point of the
criticism here.
73. Next my learned friend referred to the Tashkent Declaration.
Frankly, if anything, it shows the bona fides of India. We said "Please let us
impleme .nt the Tashkent Declaration in fuI'f:i't What did this Declaration say? It
said "Let all the seized goods be restored; let normal trade be restored; let
there be communications between the two countries; let trains run from one country
to the other; let aircraft go from one country to the other -- Pakistan's airlines
and our own." This is the Tashkent Declaration. We said "We are willing." and I
have given you examples and dates. In his reply, my learned friend said Pakistan
has been always willing, always ready etc. As against his general statement that
Pakistan is always willing and always ready, I have given you specific examples
with dates; that on such and such a date we said "We release all the goods of
Pakistan.", but Pakistan would not release our goods. We agreed to release all
the confiscated materials except military contraband but Pakistan would not
reciprocate. We said "Let us open the doors to trade between the two countries;
let us trade with each other." Pakistan said "No". We said "Let us have cultural
exchanges; let newspapers go from one country to another." Pakistan said "No".
These specific facts are not disputed, but in reply Pakistan says "I have been
acting extremely reasonably, extremely well, etc.". It is for the honourable
members to consider whether they are to be guided by general statements of goodwill
Annex 6
- 133 - C-Min. LXXIV/4 (Closed)
or influenced by particular specific examples of what each country has done -- not
that this is relevant because it, again, has a bearing on the justification for the
termination. Therefore I am not asking you to go into it. I myself referred to
it, but I thought I said more than once that I was doing so only to show our
bona fides, so that the honourable members may not feel that India has done something
wrong and is trying to take refuge behind the plea of preliminary jurisdiction.
Just to prove our bona fides, I referred to these facts, after making it
clear that they really do notarise for a decision at the hands of the Council.
74. Now what Article VI of the Tashkent Declaration, which my learned
friend read, says is this -- and look at the carefully drafted words -- "The Prime
Minister of India and the President of Pakistan have agreed to consider measures
towards restoration of economic and trade relations." We have agreed "to consider
measures" for restoration of trade and normal communications. Of course we agreed
and we suggested concrete measures which Pakistan rejected. How can you say that
from this it follows that the Convention and the Transit Agreement were restored
between the two countries? How can it be? They could have been restored if the
two countries had fulfilled the Tashkent Declaration, but they did not. Assume
the blame is India's, assume Pakistan is one hundred percent innocent, the fact
remains that owing to my cussedness -- let me put it that way -- the Tashkent
Declaration was never implemented, but how can you from that conclude that the
Transit Agreement and the Convention between the two countries, which existed prior
to 1966, had been restored? You do not arrive at the right conclusion by apportioning
blame between the two States or saying "This country is more to blame than
the other." You reach your correct conclusion on the question of jurisdiction by
reference to the simple point that whoever is to blame, the fact remains that for
some reason, good or bad, there has been termination of these two treaties as
between the two States.
75. Then my learned friend referred to the Indian Note to Pakistan of
the 4th of March 1971. He read para 4.: "The Government of India wish to remind
Government of Pakistan that after Indo/l'akistan conflict of August/September 1965
they would have been well within their rights to disallow the resumption of overflight
so long as relations between India and Pakistan had not been fully normalised.
However, on a specific request made by the then President of Pakistan, the Government
of India agreed, in February 1966, to forgo their right to demand prior settlement
of outstanding issues and consented to resume mutual overflights." Then my learned
friend says that India says that the Tashkent Declaration was a package deal and
must be carried out on the basis that all normal relations must be restored. This
does not go against what I am saying at all. On the contrary, it gives further
support to my case. What does India say? India says "After the Tashkent Declaration,
which was a package deal, we had to restore all normal relations. You did not do it
and so I was entitled to say that even overflying cannot be resumed. Yet, as a
gesture of goodwill towards you, I permitted overflying." Pakistan is much more
worried about overflying than we are. That is why it, not India, is the Plaintiff
and the Applicant. Lack of overflying hurt Pakistan; it did not hurt India.
Although the Tashkent Declaration was a package deal, we said "All right, as a
gesture of goodwill to you, we will permit you to overfly even though you do not
restore normal relations as you have agreed to do under the Tashkent Declaration."
Does this prove my bona fides or is it a point against me?
Annex 6
C-Min. LXXIV/4 (Closed) - 134 -
76. The second document my learned friend has referred to -- the
letter dated 5 February 1966 from the Prime Minister of India to the President
of Pakistan -- says: "Our Foreign Minister and Defence Minister, on their return
from Tashkent," -- this was after the Tashkent Declaration had been signed on
the 10th of January 1966 -- "informed us of your desire for the early resumption
of overflights of Pakistani and Indian planes across each other's territory. We
had thought that this matter would be settled at a meeting between the Ministers
of both countries within a few days, along with other problems connected with the
restoration of communications."-- "along with other problems connected with the
restoration of communications" because formerly trains went from one country to
the other, ships went, etc. but all that had been stopped, so we said "Restore
all communications and have your overflying also" -- "As it appears that such a
meeting might take some time, we would be agreeable to an immediate resumption
of overflights across each other's territory on the same basis as that prior to
1965. 11
77. Now you will recall that prior to 1965 Pakistani aircraft could land
in India and take on passengers -- I myself went as a passenger from Bombay to
Karachi on a Pakistani aircraft -- and Indian aircraft could do the same in Pakistan.
We wanted the restoration and said we were keen on it, but Pakistan for some reason
that we say amounted to a fault on their part -- they say there was no fault -would
not have it. What does it prove? How do you conclude from such a letter
that normal relations, and therefore the Transit Agreement and the Convention,
have been restored between the two countries? They have not been, because the
fact remains that even for non-traffic purposes Pakistani aircraft cannot stop in
India, whereas under the Convention and the Transit Agreement they have a clear
right to stop for non-traffic purposes. They could not and did not stop after
1965. So what was the good of referring to a letter? What is the real question
before you? The real question before you is 11Was the Convention, was the Transit
Agreement, brought into operation between the two countries?" If it was not -- and
the practice shows conclusively that it was not -- the overflying had to be with
our Government's permission. That is what our notification said and it is the law
of India. Even for non-traffic purposes -- leave aside traffic purposes -- Pakistan
aircraft could not land in India.
78. Then what is the good of saying that the Convention and the Transit
Agreement have been restored? They cannot be restored by this letter. This letter
is only a token of India's goodwill -- a gesture to show her willingness to cooperate
with ~akistan in the restoration of normal relations. Can anyone argue
that an expression of a desire to restore normal relations between two countries
means that in practice and in law the Convention and the Transit Agreement have
come back into operation? This desire was never fulfilled; that is the real point.
The hope expressed by the Prime Minister of India, which bears eloquent testimony
to the goodwill of India and its genuine desire to restore normal relations, was
never realized. Therefore this letter is no evidence whatever of the submission made
by Pakistan that the Convention and the Transit Agreement came back into effect
between the two countries. You find Madame Indira Gandhi saying in the second
paragraph "I very much hope that in both our countries emphasis will be placed on
the positive aspects of the Tashkent Declaration, such as early normalisation of
Annex 6
- 135 - C-Min~ LXXIV/4 (Closed)
relations and the initiation of various processes of co-operation between our
two countries in mutually beneficial fields." Therefore, Mr. President and
honourable ~embe~s, _although this letter has no bearing on the real issue you
have to decide, it is lucky for me that it has been produced here. It is evidence
of India's genuine desire, bona fide genuine desire, to restore normal relations,
which desire remains unfulfilled to this day.
79. Then my learned friend read the signals starting on page 27. I will
not read them again, but I am unable to see what point he was trying to make against
my argument. What was my argument? - that the signals expressly say that the aircraft
are to fly over each other's territory on a provisional basis. "Provisional"
is the word used by Pakistan; "provisional" is the word used by India. The signals
expressly say that overflights are on the basis of reciprocity and they are followed
by the notification of the Indian Government saying "With the permission of the
Government of India you can overfly, not otherwise." These signals, saying that
overflights are provisional, are on the basis of reciprocity, and require the Government's
permission, conclusively prove that the Convention and the Transit Agreement
have not come back into operation, because every one of these conditions is inconsistent
with the Convention and the Transit Agreement. If the Convention and the
Transit Agreement are in operation, overflights cannot be provisional. If they
are in operation you do not need an express provision for reciprocity. If they are
in operation you do not need the Government of India's permission for overflying and
you have a right to make non-traffic stops in India, which you cannot do and have
not done since 1965. How can the signals therefore be read to mean that the Convention
and the Transit Agreement were restored as between the two countries?
80. My learned friend read Articles 82 and 83 of the Convention and said
that under Article 82 no two States which are signatories to the Convention can
have an agreement inconsistent with the Convention. I completely agree. I accept
his argument and say - this is my whole point - that if we have a special regime
which is inconsistent with the Convention because under it overflights require the
Government of India's permission, are provisional and on a basis of reciprocity, it
is precisely because the Convention is not in operation. If it was in operation
we could never have such a special regime. Articles 82 and 83 I should have quoted,
not my learned friend, because they conclusively establish that-no nation can have
an agreement inconsistent with the Convention, and if you do have such an agreement
it can only be because you do not regard the Convention as in operation between
yourself and the other party. Therefore these Articles, far from supporting my
learned friend, give great support and weight to the point I have made - that the
Convention has not been in operation between the two countries since 1965/1966,
and that is precisely why an agreement inconsistent with it could be entered into,
as was done in 1966.
81. My learned friend then referred to Article 30, clause 3, of the
Vienna Convention. This says that "When all the parties to the earlier treaty
are parties also to the later treaty but the earlier treaty is not terminated or
suspended in operation under Article 59, the earlier treaty applies only to the
extent that its provisions are compatible with those of the later treaty." I
should have thought that this, again, is an Article I should have read. What does
it say? If there is one treaty between two States and then a subsequent one, the
subsequent treaty prevails over the earlier treaty. To put it briefly it means
this~ if you have got two treaties, one earlier in point of time than the other,
and the two · cannot be reconciled, the later treaty prevails over the earlier one.
The Convention and the Transit Agreement are of 1948. The special regime is of 1966.
Now apply Article 30, Clause 3, of the Vienna Convention and see what result you
get. It does not really apply, but my learned friend has relied on it, so I take
Annex 6
C-Min. LXXIV/4 (Closed) - 136 -
it that what he means is that if both countries were parties to the Convention and the
Transit Agreement and are parties to the special regime of 1966, then the principle
which will apply is that the earlier treaty applies only to the extent that its provisions
are compatible with those of the later treaty. So in the case of a conflict
between the earlier treaty and the later treaty, it is the later treaty which prevails
and the earlier treaty is superseded. Whom does this Article help? Where
you have a special treaty of 1966 and the Convention and Transit Agreement of 1948,
the special treaty must prevail because it is the later one, and it says "You shall
not overfly without the Government of India's permission." That prevails, because
under the earlier treaties you had the right to overfly without the Government's
permission.
82. My learned friend. finally made two points and that is the end of
my reply. He said conventions are not to be narrowly construed. I am all f o~ construing
them reasonably, construing them, I would also say, within reason li erally .
The only point is whether you can put such a construction upon a treaty as will
serve to completely displace the very basis of the Council's jurisdiction. When the
question is one of the concept itself, you cannot solve it merely by using the words
"liberal" and "narrow". If two concepts are different, and termination and application
are two different concepts, you have solved no problem by saying "Put a liberal
construction on 'applic ation' 1
\ because, however liberal the construction may be, the
concepts are different and you cannot mix up two concepts on the principle of putting
a liberal interpretation on one of them. Now just consider, therefore , whether it
is right to sa:y that I am putting a narrow construction on the Convention. I am
putting a reasonable construction on the Convention. I am putting on it a construction
which harmonizes with the known functions of this Council, with the excellent work it
has done for the promotion of civil aviation.
83. My learned friend finally said that he has come to this Council for
justice; it is like the doors of the courts of justice, which are open to rich and
poor alike. Here anyone can come for justice. This is a very important point which
my learned friend has made and I would like to say a word about it. On which construction
are you going to fulfil and promote the purposes of the Convention and
the Transit Agreement, on my learned friend's construction or mine? Look at my
construction, work out the consequences. Accept my learned friend's construction ,
work out the consequences and see where you stand as the Council.
84. What is my construction? This Council must be permitted to carry or
the excellent work it is doing above the dust and filth of political confrontation
and military hostilities , not in a partisan spirit. It is above internal politics
or politics between two countries. It has nothing to do with military hostilities
or their aftermath. After military hostilities, human memories being what they are,
unfortunately countries which ought to be very friendly happen not to be friendly .
There may be a thawing of the ice some time later. Enemies become friends, friends
become enemies, but whatever the changes in the international picture may be, this
Council will not take up its brush and try to paint a part of this picture; it
leaves it severely alone . This Council is above the arena of political and milita!'J
conflict and I want it to remain so. On my construction, this Council will not soil
its hands by siding with one State against another, sa:ying "You hijacked; you,
Pakistan, gave harbour to two hijackers; if you had given it to twelve, India would
have been right!', or tell India "Well, this was sufficient for you to terminate."
No. This Council is above all that. What I have called the filth and the squalor
Annex 6
- 137 - C-Min. LXXIV/4 (Closed)
- "squalor" is the right word - of military hostilities and their aftermath, the
political confrontations, all these are to be avoided by the Council, and on eyrespectful
construction of the Convention, the honourable members will continue
doing their excellent work without being involved in issues which, with the greatest
respect, they are not called upon to decide, and, if I may say so, again with the
greatest respect, which they are perhaps not qualified to decide in the sense that
you have to take evidence as the World Court does, consider questions of international
law, etc. To ask it to decide such issues would be putting an undue burden, an undue
strain,on the Council. This is what I want the Council to adopt as the right construction.
85. What is ey- learned friend's construction? His construction comes to
this: two nations quarrel; there may be a tremendous political confrontation; there
may be border incidents; there may be firing across the border; one State tells the
other "No overflying", and then this Council has to decide who is right and who is
wrong. How can it do it? Alley- learned friend says is "Give one year's notice."
So while the firing goes on across the border the weak nation, the submissive, quiet
nation, must permit the wrongdoer to keep on overflying because it has to give one
year's notice of denunciation. After one year, its denunciation will come into
effect. The Council in the meantime will decide. What will it decide? How will it
decide, on what basis will it decide. how will it be qualified to decide and under
which Article will it decide whether the termination of the agreement was wrongful or not?
86. I leave it to you, Mr. President and honourable members, to consider
which of the two constructions appeals to you as the one best calculated to promote
the interests of international civil aviation. Will you be promoting the objectives
of the Convention by getting into this political arena and trying to decide between
two sides which are enemies or threaten to be enemies? Or will you be above all that
and say "This is not a matter that is within ~ jurisdiction. I have nothing to do
with your dirty quarrels. I am above all that. t,zy-objective is only to see that
international civil aviation is promoted. If you two quarrel, it is your affair;
sort it out as you like."? I say that~ construction will give the greatest possible
fillip and the greatest possible incentive to the promotion of the cause which underlies
the Convention and the Transit Agreement, and therefore, far from putting a
narrow construction on them, I am trying to put a construction which will redound
to the credit of the Council and keep it the respected, non-partisan body, above
politics and military hostilities, that it has been so far. Thank you very much,
Mr. President.
87. The President: We shall now have the lunch break and return at 2.30.
Annex 7
ICAO Council, 74th Session, Minutes of the Fifth Meeting, ICAO Doc. 8956-C/1001
(28 July 1971)
Annex 7
- 139 -
Doc 89 56-C/1001
C-Min. LXXIV/5 (Closed)
31/8/71
COUNCIL - SEVENTY -FOUR TH SESSION
Minutes of the Fifth Meeting
(The Council Chamber, W'ednesday, 28 July 1971, at 1500 hours)
CLOSED MEETING
President of the Council: Mr. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary General
PRESENT:
Argentina
Australia
Belgium
Brazil
Canada
Colombia
- Corn. R. Ternporini
- Dr. K. N. E. Bradfield
- Mr. A. X. Pirson
- Col. C. Pavan
- Mr. J.E. Cole (Alt.)
- Major R. Charry
- Mr. F. X. Ollassa
- Mr. Z. Svoboda
Japan
Mexico
Nigeria
Nor w ay
Senegal
Spain
Tunisia
Uganda
- Mr. H. Yamaguchi
- Mr. S. Alvear Lopez
(Alt.)
- Mr. E.A. Olaniyan
- Mr. B. Grinde
- Mr. Y. Diallo
- Lt. Col. J. Izquierdo
- Mr. A. El Hicheri
- Mr. M. H. Mugizi (Alt.)
Congo (People's
Republic of)
Czechoslovak
Socialist Republic
Federal Republic
Union of Soviet
- Mr. H. S. Marzusch (Alt.) Socialist Re-
Mr.A.F. Borisov
of Germany
Franc e - Mr. M. Agesilas
India
Indonesia
Italy
- Mr. Y. R. Malhotra
- Mr. Karno Barkah
- Dr. A. Gucci
ALSO PRESENT:
Dr. J. Machado (Alt.)
Mr. L. S. Clark (Alt.)
Mr. B. S. Gidwani (Alt.)
Mr. M. Garci'a Benito
(Alt.)
Mr. N. V. Lindernere
(Alt.)
Mr. F. K. Willis (Alt.)
- Brazil
- Canada
- India
- Spain
- U.K.
- U.S.
Mr. N. A. Palkhivala - India
(Chief Counsel)
Mr. Y. S. Chitale (Counsel) - India
Mr. I. R. Menon (Assistant - India
Counsel)
Mr. S.S. Pirzada (Chief - Pakistan
Counsel)
Mr. K. M. H. Darabu - Pakistan
(Assistant Counsel)
Mr. A. A. Khan (Ohs.) - Pakistan
Mr. H. Rashid (Ohs.) - Pakistan
Mr. Magsood Khan (Ohs.) - Pakistan
H. E. A. B. Bhadkamkar - India
(Agent)
H. E. M. S. Shaikh - Pakistan
(Agent)
publics
United Arab
Republic
United Kingdom
United States
SECRETARIAT:
- Mr. H.K. El Meleigy
- A/V/M J.B. Russell
- Mr. C. F. Butler
Dr. G. F. Fitzgerald - Sr. Legal Officer
Mr. D.S. Bhatti - Legal Officer
Miss M. Bridge - CSO
Annex 7
C -Min. LXXIV / 5 ( Closed) - 140 -
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Settlement of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani
Aircraft over Indian Territory
1. The meeting opened with the reply of the Chief Counsel £or Pakistan,
Mr. Pirzada, to the comments made by the Chief Counsel for India at the previous
meeting. Denying the imputation that he was guilty of misinterpretation in maintaining
that "disagreements relating to the interpretation or application of this
Convention" included disagreements relating to termination or suspension, he cited
the 1927 judgement of the Permanent Court of International Justice in the Chorzow
Factory Case, the summing up of Mr. Justice Lord Wright in the Heyman vs. Darwin
case considered by the House of Lords in 1942, and the judgement of the International
Court of Justice in Dec mber 1962 on the revocation of the South African mandate
over South West Africa. In the first case the Court had held that differences
relating to reparations whi eh might be due by reason of failure to comply with
a convention were differences relating to application, which was a wide and elastic
term; in the second the Chief Justice had declared that a dispute as to whether a
breach of contract by one party had operated to discharge the other or whether the
contract had been frustrated was a disput arising out of the contract; in the third
the Court had ruled that the dispute came within the expression "dispute relating
to the interpretation or application of the provisions of the mandate" in Article 7
of the Mandate.
2. He answered the objection that his reference to paragraph 1 of Article
60 of the Vienna Convention on the Law of Treaties was irrelevant by pointing out
that under paragraph 2 there was the same limitation of the right of termination
or suspension - the breach must be a material breach and it could be invoked only
as a ground for suspending the operation of the treaty. He expressed surprise that
the letter from the Prime Minister of India to the President of Pakistan was not
considered by the Chief Counsel for India to support Pakistan's case that there
was no special regime governing overflights, that they had been restored on the
same basis as before 1 August 1965. He pointed out that the provisions of Article
95 of the Convention, whose application in the present case the Indian Counsel
found ridiculous, were repeated in the bilateral agreement of 1948 between India
and Pakistan and suggested that obligations entered into with eyes open must be
honoured. He emphasized that it was not unusual for bodies like the Council to
be entrusted with judicial or quasi-judicia] functions and that there were rules
laying down procedures for the discharge of these functions. He also assured the
Council that Pakistan certainly had no intention of raising any political questions;
its concern was only with its legal rights. Finally, Mr. Pirzada stressed the importance
of the issue before the Council and the far -reaching consequences of the
decision to be taken on India's challenge to its jurisdiction. This was not just
an Indo-Pakistan affair. India's arbitrary, illegal and discriminatory action in
banning overflights was a threat to the safe and orderly development of international
civil aviation.
Annex 7
- 141 - C-Min. LXXIV/5 (Closed)
3. Mr. Palkhivala rejoined that the 1962 judgem ent of the International
Court had no bearing on the question whether "interpretation or application" covered
termination. In this case the Court had been asked to consider four South African
objections to the complaint brought by Et hiopia and Liberia: that the mandate had
ceased to be a treaty or convention in force when the League of Nations ceased to
exist, that Ethiopia and Liberia had no right to interfere, that a dispute could not
be said to exist because Ethiopia and Liberia had nothing to lose or gain by fighting
the mandate, and that the International Court had no jurisdiction becf'use this was
not an issue that could be settled by negotiation. All of the se objections had been
rejected.
Case No. 2
4. As there were no questions from Council Representatives on Case 1,
the President invited the Chief Counsel for India to present the preliminary objection
in Case No. 2 - the complaint filed by Pakistan under Article II, Section 1 of the
Transit Agreement. Mr. Palkhi vala indicated that the grounds of objection in Case 1
applied in Case 2 and there was an additio nal one: that a complaint filed under
Article II, Section 1 of the Transit Agree ment had to relate to action taken by another
Contracting State under the Agreement, and India had taken no such action; the complaint
was therefore not maintainable and the Council had no jurisdiction to handle
the matter. If India, for example, had required Pakistani aircraft to fly around the
coastline instead of allowing them to take the most direct route across its territory,
or if it had taken some other action to make the exercise of the rights granted by
the Transit Agreement commercially unprofitable, it would have taken action under
the Agreement causing injustice or hardship. It was a contradiction in terms to say
that action which was the very antithesis of the Agreement - the banning of overflights
and non-traffic stops - was "action under this Agreement".
5. Mr. Pirzada replied that according to Article II, Section 1 of the
Transit Agreement, a Contracting State which deemed that action by a:r:iother Contracting
State under the Agreement was causing injustice or hardship to it might
request the Council to examine the situation. The use of the verb "deem" indicated
that it was for the complainant to determ ine whether the acti on of the other State was
causing it injustice or hardships, and Pa kistan so deemed. As for the contention
that action could not be taken under the Agreement because it had been terminated,
he had already shown that a case of alleged terminati on was a case of application.
Furthermore, "action" had to be interpret ed as including omission, and the failure
of India to fulfil its obligations under the Transit Agreement -was an omission. Sections
1 and 2 of Article II were not mutually exclusive, and a State considering itself
an injured party had the choice of filing a complaint under Section 1 or instituting
formal action under Article 84 of the Convention. In dealing with complaints the
Council had not in the past taken a technical approach, and in support of this argument
he cited the 1958 case of the United Arab Republic vs. Jordan (cf. "Action of the
Council", 35th Session, Doc 7958-C/91 4, page 20).
Annex 7
C-Min. LXXIV / 5 ( Closed) - 142 -
6. Mr. Palkhivala submitted that the verb "d ems" in Articl II, Section l
of the Transit Agre m nt applied to "injustice or hardship", ot to "action". Whether
action had been tak n under th Agreem nt had to be formally established - it was not
for subjective det rmination by th complainant. India's whole case was that the
Transit Agreement was not in operation between its lf and Pakistan and therefore
there could be no action under it. Th Chi f Counsel of Pakistan was construing
Article II as giving the Council ju1·isdiction over any dispute b tween two contracting
parties; if that had b en the int ntion, th text would have said so instead of speaking
of "action und r this Agre ment" and "any disagreement relating to the interpr tation
or application of this Agr m nt".
7. As lherc wer no questions .from members of th Council on Cas 2,
the President invited discussion on th suggestion of th Chief Counsel for India
that India should be permitt d to submit a writt n memorandum, setting out the
arguments he had advanc d mor con isely than had b en possible in an oral presentation,
for the use of Council R pr sentati v s who wished to seek instructions
before the Council took a d cision in vi w of the importanc of the point at issue for
the future of !CAO and by r ason of the fact that the xpression "disagreement relating
to interpretation or application" was used in a number o.f treaties. The Chief Counsel
for Pakistan object d, arguing that th suggested action was unjustifiable b cause of
the circumstances and the continuing injury being suffered by Pakistan as long as
overflights were suspended, and scv ral Representatives questioned whether it would
be in conformity with Article 5, paragraph 4 of the Rules for th Settlement of Differences
which said that "If a preliminary objection has been filed, the Council, aft e r h earing the
parties, shall decide the qu stion as a pr liminary issue b fore any furth r st e ps are
taken under these Rules." The S crdariat advised that it was not unusual for a judicial
tribunal, after a long and difficult argument, to request counsel to submit a written brief,
which would be silnply a systematic pr sentation of arguments already adduced, or for
a court to agree to a requ st by counsel to file such a document. The Chief Counsel for
India did not, howev r, pr ss the suggestion.
8. The Chi f Couns ls and th Agents for India and Pakistan then withdrew -
though the two countries continu d lob represented by other memb rs of th ir d •legations
- while the Council consider d th preliminary objection in Case l.
9. As reference had b en made by the Chie.f Counsel for India to opinions
expressed by the Unit d States ouns lb fore th International Court in the Namibia
case, the Representative of th United Stat s explained that the Unit d State po itio
was that Article 84 of the Chicago Convention, as w 11 as Articl 7 of the .1 andat"' h ich
was the subject of the Namibia case, cov red questions r lating to any provisions of
those instruments; it did not se m possible for one party to a onvention or tr aty to
negate procedures for the settlement of di putes by stating that the convention or tr\::aty
was no longer in force and thereby depriving of jurisdiction the tribunal named in it to
settle disputes. The Alternate R pres ntative of India submitted that the United States
position was tantamount to saying that under Article 84 the Council had jurisdication over
any dispute or difference relating to the Convention, and repeated India's contention
that the expression "any disagr e e men t relating to the interpretation or application of this
Convention" had a much narrower meaning and did not include disagreements relating
to termination or suspension.
Annex 7
- 143 - C-Min. LXXIV/5 (Closed)
10. Indications at this point by the Representatives of the United Kingdom
and the Czechoslovak Socialist Republic that, not being lawyers, they must obtain
legal advice on the arguments that had been presented before they could participate
in any decision on the substance of the preliminary objection gave rise to considerable
discussion. The Representatives of France, Tunisia, Senegal, the People's Republic
of the Congo, Italy, Belgium, Uganda, Spain and Colombia said that they were ready
to take a decision - the oral presentations by the parties had been essentially elaborations
of positions taken in the preliminary objection and the reply to it; though
the argumentation had been lengthy, the question (whether the Council was competent
to consider Pakistan's application and complaint) was basically simple and adminis -
trations had had time to form an opinion on it since the preliminary objection was
filed; deferment was therefore unnecessary. The Representatives of France, the
People's Republic of the Congo and Belgium said that they would not be opposed to
deferment for a week or ten days, but the Representatives of Italy and Uganda expressed
the view that this would not be long enough for Representatives who wished
to consult their administrations, because for that they would need the verbatim record,
which would not be available for at least a month. The Alternate Representative of
Indi°a maintained that a decision taken now would be vitiated, as it would have been
taken before a proper record was available and without proper notice, the Council
having decided on 12 June to meet on 27 July only 11to hear the parties on the preliminary
objection filed by India".
11. As the normal hour of adjournment had arrived, the discussion was sus -
pended at this point, with the understanding that the Council would meet again at
1000 hours on the following day.
Annex 7
C-Min. LXXIV /5 (Closed) - 144 -
DISCUSSION
Subject No, 26: Settlement of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani
Aircraft over Indian Territory
1. The President: The Council is again in session and the Chief Counsel
of Pakistan would like the floor.
2. Mr. Pirzada: Mr. President and honourable members of the Council,
I shall try to be as brief as I can, because in his reply ll\Y learned friend was
somewhat wide of the mark. He repeated what he had already said, to which I had
replied, and his main argument in reply was that this is essentially a case of termination
of a treaty by India ~ Pakistan and that this Council has no jurisdiction
to hear or determine any application in respect thereof,
We brought our case within the purview of Article 84 and I will just
refer to the language of it again. It is '"If any disagreement between two or more
Contracting States relating to the interpretation or application of this Convention
and its Annexes cannot be settled by negotiation, it shall, on the application of any
State concerned in the disagreement, be decided by the Council." The words are "any
disagreement relating to the interpretation or application of this Convention" and
I had submitted that the first principle of interpretation is that the text should
be construed liberally. MY-learned friend did not disagree with that proposition, but
he imputed to me something in the nature of misinterpretation,and again reaffirming
what he thought was the judgement of the International Court of Justice in the recent
case of South West Africa, he stuck to the word "judgement", even though I had pointed
out that there is a vast difference between a judgement and an advisory opinion. There
are two separate articles in the Statute of the International Court of Justice -
Article 65 dealing with advisory opinions and Article 36 dealing with judgements. I
have great respect for the opinion expressed in the recent Advisory Opinion, but I
submit it is an opinion, not a Judgement. Though ll\Y learned friend was so particular,
or trying to be so particular, yesterday about the meaning of the expressions "interpretation"
and "application", when it came to well defined and well known expressions
like "judgement" and "advisory opinion", he stuck to his own way of using expressions
and then imputed to me misinterpretation. In fact, he insinuated that what I was doing
was tantamount to referring to a horse as a cow. Now I do not wish to use any veterinary
language before this august body, but I would submit respectfully that any imputation
of misinterpretation to me is highly unjustified.
3. He then tried to show that when I read a footnote from the judgement of
Justice Fitzmaurice, I was reading from the dissenting opinion. You will recall that
I sought your indulgence to refer to that footnote, which shows that we were so careful
and meticulous in making our submissions here that we went even to a footnote.
Annex 7
- 145 - C-Min. LXXIV / 5 (Closed)
4. I mentioned that the answer on which he places reliance, made by the
Counsel for the United States of America before the International Court of Justice,
was to a question put by Justice Fitzmaurice in giving his own interpretation of an
expression. That is why I referred to it. I knew that it was a dissenting opinion
and said so. Secondly, when I went to the observations made by the learned American
judge I pointed out that he had correctly interpreted the answer given by the American
Counsel. Lastly, I relied on paragraph 103 on page 49 of the Advisory Opinion to
show that the International Court, while considering the question of implied power
in connection with the revocation of the mandate, took into consideration the fact
that in that case the mandate was being terminated by the General Assembly, which has
supervisory powers and can therefore go into the question of material breach and
determine it. Here are two States of equal status. India does not hold any supervisory
powers over Pakistan permitting it to determine the question of material breach.
That question will be, and has to be, determined by some other forum or body. This
forum or body has been determined in the Convention in Article 84, in the Transit Agreement
in Article III, and also in the Bilateral Agreement to which I will make reference.
5. Having clarified that there was no question or occasion for me to misinterpret,
I shall now try to clarify what he tried to say yesterday. Coming back to
Article 84, I had respectfully submitted that the expression "disagreement relating
to interpretation or application" clearly includes a case of alleged termination by
any State, because the moment one State says that another State's conduct or misconduct,
act of omission, or non-fulfilment of some obligation under the Convention amounts
to repudiation, that it has accepted the repudiation and that it therefore considers
the Convention terminated, but the other State asserts that the Convention still applies,
it is a disagreement pertaining to the application of the Convention. The mere denial
does not take the case out of the purview of Article 84. I cited three decisions yesterday,
and if the point was not clear to Il{f learned friend from those decisions, I will
not trouble you with them again. To bring the point out more clearly I have selected
one case in which the language of the Convention was identical and an interpretation was
given by the Permanent Court of International Justice. In this case it was a judgement. I
am referring to a case I had mentioned yesterday - the Chorz6w Factory Case. The judgement
was Judgement No. 9, given in 1927 by the Permanent Court, and is reproduced in
Judgement Series A, Advisory Opinions Series B, as well as in Series C.
6. Now this was a dispute between the German and Polish Governments and it
arose under Article 23 of the Geneva Convention, not under Article 36 of the Statute
of the International Court of Justice. Article 23 reads like this: "Should differences
of opinion respecting the construction and application of Articles 6 to 22 arise between
the German and the Polish Governments, they shall be submitted to the Permanent Court
of International Justice." Now these Articles were not complied with and the case of
the Polish Government was that they were not in existence at all. As there had been a
breach of obligations, the German Government claimed reparation. When the matter came
before the Permanent Court, the Polish Government demurred to the Court's jurisdiction and
in fact disputed it, arguing that, having regard to the language of the Article I read
out just now, the Court was not competent to entertain the claim of the German Government.
Dealing with this, the Court observed: "In regard to the first of these contentions
the judgement of the Court states that it is a principle of international law
that the breach of an agreement involves an obligation to make reparation in an adequate
form. Reparation therefore is the indispensable complement of a failure to apply a convention
and there is no necessity for this to be stated in the convention itself.
Annex 7
C -Min. LXXIV /5 (Closed) - 146 -
Differences relating to reparation which may be due by reason of failure to apply
a convention are consequently differences relating to its application." Various
other reasons were given and I need not trouble you with them. I will come to the
last part . "The classification of disputes in Article 13 of the Covenant" - which
I read out earlier - "and Article 36 of the Court's Statute would lead to the same
conclusion. It is true that the Covenant and the Statute mention separately disputes
as to the interpretation of a treaty ..•.•..•. " Then the Court observes: "If Article
23, paragraph 1 covers the disputes mentioned in the first and third categories by
the two provisions above mentioned, it would be difficult to understand why - fail ing
an express provision to that effect - it should not cover the less important disputes
mentioned in the fourth category. From the above considerations the Court concludes
that Article 23, paragraph 1 of the Convention contemplates all differences
of opinion resulting from the interpretation and application of the Articles referred
to, inclusu of differences relating to reparation. "Application" is a wid t and elastic
term." This is what I have been submitting. I have been submitting that this is a wide
and elastic term and would include questions of termination. Consequently, if there
has been a failure to fulfil obligations, there can be a claim for compensation, which
we have made in the Application we have filed.
7, I had also cited a case of 1942 from the House of Lords coming under
municipal jurisdiction and I will read out only a paragraph from Russell's well known
book on arbitration . I am reading from Russell "On Arbitration", page 47, on which
this case is referred to. The case was Heyman versus Darwin, 1942, Appeal Cases , and
this is the summing up in the words of Lord Wright: "A dispute as to whether a breach
of contract by one party has operated to discharge the other, or whether a contract
has been frustrated, is a dispute arising out of the contract, whether the contract is
purely executory or partly executed. In the course of an opinion so holding, Lord
Wright said 'I see no objection to the submission of the question whether there ever
was a contract at all or whether, if there was, it had been voided or ended. In
general, however, the submission is limited to questions arising upon or under or out
of a contract , which would prima facie include questions whether it has been ended ,
and, if so, whether damages are recoverable and if recoverable, what is the amount .' 11
I think this is sufficient to show that such disputes do fall within the purview of the
clause which we have before us and which empowers this Council to entertain such appli cations
.
8. I am deeply obliged to a distinguished Delegate for furnishing me with
a photostat copy of a judgement - again I am saying a "judgement" because this was a
judgement - in the case of South Africa. South Africa has figured befo r e the Inter national
Court of Justice on a number of occasions and this is the judgement handed
down in December 1962 - South West Africa, Preliminary Objection, Judgement , ICJ Repor ts
1962, page 319. It is said here, in respect of that very mandate we have been dis cussing
for the l ast two deys, that Article 7 provided that : "The mandatory agrees that if any
dispute whatever should arise between the mandatory and another member of the League of
Nations relating to the interpretation or application of the provisions of the Mandate ,
such dispute , if it cannot be settled by negotiation, shall be submitted to the Permanent
Court of International Justice provided for by Article 14 of the Covenant of t~e
League of Nations." Note the expression "dispute relating to the interpretation or
application of the provisions of the Mandate". Now the Court, when objection was
raised by South Africa, answered like this: ''The question which rules for the Cour t ' s
consideration is whether the dispute is a dispute as envisaged in Article 7 of the
Annex 7
- 14 7 - C-Min. LXXIV/5 (Closed)
Mandate and within the meaning of Article 36 of the Statute of the Court. The respondent's
contention runs counter to the natural and ordinary meaning of the provisions
of Article 7 of the Mandate, which mentions any dispute whatsoever arising between
the mandatory and another member of the League of Nations relating to the interpretation
or application of the provisions of the Mandate. The language used is broad,
clear and precise. It gives rise to no ambiguity and it permits 9f no exception. It
refers to any dispute whatever, relating not to any particular provision or provisions
but to the provisions of the Mandate, obviously meaning all or any of the provisions,
whether they relate to substantive obligations of the mandatory towards the inhabitants
of the territory or towards the other members of the League, or to its obligation
to submit to supervision by the League under Article 6, or to protection under
Article 7 iteslf, for the manifest scope and purport of the provisions of this Article
indicate that the members of the League were understood to have a legal right or an
interest in the observance, by the mandatory, of its obligations both towards the
inhabitants of the mandated territory and towards the League of Nations and its members."
That was essentially a dispute regarding the revocation of the Mandate and it was held
to come within the compass of the expression "application and interpretation of the
mandate"• I will not trouble you further on this point.
9. Regarding Article 60 of the Vienna Convention about the implied power
to invoke material breach as a ground for terminating a treaty, my learned friend said
that I referred only to Clause 1 which dealt with bilateral treaties. For the sake
of brevity I referred to Clause 1 because Clauses 1 and 2 use identical expressions
and whether a treaty is multilateral or bilateral, a ground for revocation could only
arise if there is material breach, not otherwise.
10. Then, referring to Article 45 when I pointed out their conduct and
showed acquiescence, my learned friend asked whether I suggested that they were in
such a frame of mind that on the one hand they were withdrawing the overflight rights
and on the other hand approaching the ICAO Council for appropriate reliefs against
Pakistan under the Convention. It is not for me to answer. All I can say is that both
things happened on the same day, and I am entitled to rely on them to show acquiescence.
Mind you, they with great ease say that whether the Convention applied or did not apply,
so far as hijacking was concerned they certainly could use the good offices of the President
and the ICAO Council. For other things, however, when it comes to taking any
action against India,those good offices cannot be used; then the doors of ICAO are
to be closed. Well, consistency is a very difficult proposition even for individuals,
to say nothing of States, and I will not deal with this any more.
11. On the last point, namely the second ground of the so-called "special
regime",r am surprised that my learned friend is suggesting that this letter of the Prime
Minister of India of 6 February 1966, which is really the basis, the crux, and the
starting point of the revival of all the agreements, doesn't help the case of Pakistan.
If it doesn't, I cannot say anything further because I clearly pointed out that there
has been no special regime since September 1965. According to this letter of
6 February 1966 - and, I repeat, this is what was agreed to - "As it appears th .at
such a meeting might take some time, we would be agreeable to an immediate resumption
of overflights across each other's territory on the same basis as that prior to 1st
August 1965. Instructions are being issued to our civil and military authorities
accordingly." So overflights were restored on the same basis as prior to 1st August
1965, and I had explained the position very clearly in the morning. I reaffirm it
Annex 7
C -Min. LXXIV / 5 (Closed) - 148 -
and reiterate that in all those signals there is no question of any provisional
arrangement on a reciprocal basis; they related to implementation of routes. ':'his
was the decision and it referred back to 1st August 1965; therefore the Convention,
the Bilateral Agreement of 1948 and the Transit Agreement all became applica le again.
12 . A kind of hardship was pleaded. When I referred to Article 95 and :aiJ
that under it a period of one year is required for denunciation - because that is tlL
mode for termination - he asked "What happens in the meantime? Do we wait?" and,
anticipating that rrry answer would be "You could certainly come to the Council.", he
said that the remedy which is available from the Council is not a substantial remedy.
But you agree to conventions with your eyes open; this is the mode of termination
and sanctity has to be attached to it; it is a matter of honour. This s0rt of thin -
happens every dey, even in the life of individuals. He made fun of the language of
the Convention and rrry interpretation of it, saying that "denunciation" in Al wi cle , 1 ·,
meant denunciation with reference to all othe1· Contracting States . Howe·nr, very
similar wording is used in Article X(E) of the Bilateral Agreement of 1948 between
India and Pakistan. In fact, it is even clearer: "This Agreement shall termir.a~e''
- the word "denunciation" is not used - "one year a:rter the date of receipt hy the
other Contracting Party of the notice to terminate, unless the notice is wi thdrav.'n
by agreement before the expiration of this period." It is a stipulation and State
have to honour and abide by stipulations which they have entered into consciously and
with their eyes open.
13. Finally, he tried to create an atmosphere of some political rituati n
and said it was not the function of the Council to get involved in situations like
that. I think the Convention took good care of such situations ; it even i.1--:.c:rr ra-~
provisions relating to war. This Council is the head of an international organizati n ,
a body of experts and guardian of the Convention . Rules have been framed vi th an elah orate
machinery for taking evidence, for hearing declarations by witnesses and ex?Prt·-,
for questions and arguments, and eventually for decisions and procedures for imnlementation.
This is not unprecedented. After all, such bodies ca.n be entrusteu wj t 11
the task of performing judicial or quasi-judicial functions, and they have to discharge
their responsibilities.
14. Mr. President and members of the Council, on behalf of Pakistan I l'l.ssu.rE'
you that we have no intention, at any stage, of raising any extraneous element or political
matter, and that is what I had said in Vienna. We are only concerned with legaJ
rights. If we have any, please say so . If we have none and if such sacred convent -.>ns
can be discarded at the whim and caprice of one State on any ground whatsoever, you may
sey so. I would end by saying that it is needless to emphasize the importance of the
issues involved in the proceedings before the Council. It is not merel;r an Inda Pakistan
affair. India has challenged the jurisdiction of the Council to hear the Application
and the Complaint presented by Pakistan . The Council is well aware of the circumstances
under which Pakistan had to approach the Council. The arbitrary, illegal,
and discriminatory action by India of banning Pakistan's aircraft overflights across
Indian territory is a positive threat to the safe and orderly growth of international
civil aviation. Under Article 44 of the Convention the aims and objectives of this
Organization are to ensure the development of international air transportation and
to see that the rights of the Contracting States are fully respected. It is in this
respect I submit, Mr. President and members of the Council, that the Council is seized
of a very important issue and its decision will have far-reaching consequences.
Annex 7
- 149 - C-Min. LXXIV / 5 (Closed)
15. Before I conclude, I would only say, in a lighthearted manner, that
Il\Y learned friend says I am complaining about a house which is no longer in existence
because he burned it down. !. say that he tried to burn it, but before it could be
burned down I approached the fire brigade and asked it to quench the fire. Thank
you, Mr. President.
16. The President: Thank you. The Chief Counsel of India.
17. Mr. Palkhivala: Mr. President, in his last reply Il\Y learned friend
referred to one point, the 1962 Judgement of the International Court of Justice, for
the first time. That is why you will give me liberty to deal with it, because, as
Iey" learned friend said, one distinguished Delegate had drawn his attention to the
Judgement and when I have gone, I would not like the members to think that there is
something in this Judgement against me which remains unanswered. I would therefore
like to deal with this one Judgement only. I will not deal with any of the other
points made by Il\Y learned friend.
18. This Judgement, given by the International Court of Justice in 1962, I
have gone through during the luncheon interval, because the distinguished Delegate
was kind enough to draw my attention to it also. There is nothing in the Judgement,
not a sentence anywhere, which has any bearing on the question the learned members
of the Council have to decide upon today, namely, whether the words "interpretation
and application" cover "termination". In this case the International Court was
asked to consider four preliminary objections, none of which was the objection I have
raised.
19. The first preliminary objection is on page 330 of the Reports of Judgements,
Advisory Opinions and Orders, 1962 - Judgement of 21 December 1962. It is - if
I may quote the exact words - "the Mandate for South West Africa has never been, or at
any rate is since the dissolution of the League of Nations no longer, a 'treaty or
convention in force'." In other words, what South Africa argued was not that they
had terminated the Mandate, but that the wording of the Mandate is such that once the
League of Nations ceased to exist, the Mandate ceased to be a treaty or convention in
force. What the International Court was asked to consider was therefore this: On
a proper construction of the Mandate, does the Mandate come to an end when the League
of Nations ceases to exist and the United Nations takes over, or is the successor to
the League of Nations, namely, the United Nations, entitled to continue to be in the
place of the League of Nations? This was a matter of interpretation of the Mandate -
and the International Court ruled in favour of the view that on a proper construction
the Mandate did not cease to be in force merely because the League of Nations had
ceased to exist. The International Court rightly pointed out that it was a surprising
statement for South Africa to make that the Mandate was not in force,when South Africa
continued to exercise the powers and rights of the mandatory. How could it keep on
exercising rights and powers under the Mandate if its case was that on a proper construction
the Mandate had come to an end? So the question of interpretation was
directly put in issue and it was said that the Mandate was not a convention in force.
The World Court said "No." Whether "interpretation and application" cover "termination"
was not dealt with at all.
Annex 7
C-Min. LXXIV /5 (Closed) - 150 -
20. The second preliminary objection made by South Africa was that the
two parties who had complained to the International Court were Ethiopia and Liberia
and the Mandate had nothing to do with them. Who were they to complain? South
Africa had no mandate over them and if it oppressed the people of the mandated territory,
this was no concern of theirs. That point was negated by the International
Court, which said that because Ethiopia and Liberia happened to be members of the
League of Nations and subsequently of the United Nations they had a right to raise
this dispute.
21. The third point which was urged before the International Court is to
be found in the last two lines on page 342 and at the top of page 343: The third
preliminary objection was that the dispute brought before the Court by Ethiopia and
Liberia could not be said to be a dispute because they had nothing to lose and nothing
to gain by the South African Mandate being modified, altered, etc. What ~ -d Ethiopia
and Liberia gain by fighting this battle? South Africa therefore had no a·~~ute with
Ethiopia and Liberia. This was the third preliminary objection raised and the World
Court rejected it, saying that "any dispute" meant any dispute raised by a member of
the League of Nations, this was a dispute raised by the member of the League of Nations,
and the Court would therefore deal with it. Thus what was argued was the meaning of
the word "dispute" -can a "dispute" be raised by a State that is not affected by the
action of the two parties to the Mandate?
22. The fourth and last preliminary objection made by South Africa is on
page 344 and was that this was not a dispute which could be settled by negotiation,
and unless the dispute was such that it could be settled by negotiation, the International
Court had no jurisdiction. The International Court rejected that contention
too and said "No, you cannot say that this is a dispute which could not be settled by
negotiation; it could be settled by negotiation and therefore the words "dispute if
not settled by negotiation" are wide enough to cover it.
23. The questions ra.1.sed were therefore not the questions which arise
before the Council today. They are a completely different set of questions, which
were represented by the four preliminary objections. Not one of them touched the
question of what is the right meaning of the expression "interpretation or application
of the treaty". These words were not brought to the International Court for
consideration and the Court did not deal with them at all. Therefore to say that this
Judgement deals with the meaning of the expression "interpretation or application"
would be completely incorrect.
24. Finally, Mr. President, this brings to mind something I have been
wanting to say ever since the beginning of the argument. It is this: I dare say
this is a matter of such far-reaching importance because the words "interpretation
or application" are, as we all know, used in a number of treaties. I can well imagine
that some, if not many, of the Delegates here might like to seek instructions
from their respective Governments or Administrations 0n what their attitude should be
to a question like this. This is understandable, natural and, if I may say so, inevitable.
In view of the tremendous significance and importance of the issues involved,
it is nzy-humble submission to the learned President and honourable members that, as
your verbatim notes will not be ready for many d~·s, if not some weeks, and as they
Annex 7
- 151 - C-Min. LXXIV /5 (Closed)
are not, to my mind, vecy satisfactocy because when a man speaks without notes he
is o:rten inclined to use more words than he would in a precise, clear-cut statement
of his case - I know I do - we should be permitted to put in a written memorandum
which would set out the entire argument on this issue. This memorandum would contain
nothing new; it would contain only the arguments I have presented, but in an
orderly and concise form, with repetition eliminated and things in a more coherent
and connected form than they would be in a verbatim transcript. The verbatim transcript
in any event would take several days to produce, whereas we could prepare this
memorandum and have it posted in about a fortnight. I suggest that if we are permitted
to do that it would perhaps enable the different Governments and Administrations
and Delegates themselves to come not to a quick or hasty conclusion, but to a well considered
decision on a matter that is of the greatest importance for the future of ·
ICAO, not only on the important question of the limits of this Council's jurisdiction,
but on the vecy far-reaching question of what is the meaning of the expression "interpretation
or application" which you find in many treaties. I do submit that the
matter is of such tremendous importance that this request of mine may be granted.
25. I am most grateful to the President and to the honourable members for
the vecy patient hearing they have been kind enough to give me.
26. The President: Thank you. The Counsel for Pakistan.
27. Mr. Pirzada: Mr. President, all I can say is that I am really surprised
at the suggestion which has been made by the learned Counsel. This is a matter
which has been sufficiently delayed because of the Objections filed by India, and with
great respect I must say that this is a delaying device. We are suffering injucy evecy
day. It is a vecy serious matter and already at Vienna time was sought and the matter
was brought here. Article 28 of the Rules for the Settlement of Differences says: "The
Council shall determine the time-limits to be applied, and other procedural questions
related to the proceedings. Any time-limit fixed pursuant to these Rules shall be so
fixed as to avoid any possible delays and to ensure fair treatment of the party or
parties concerned." The Government of India, a vecy resourceful Government and the
government of a countcy much bigger than Pakistan, had ample time to prepare their
Preliminacy Objections, which they prepared exhaustively, which were circulated and
which were certainly considered by the members. The Council has heard arguments for
two days and now, at the close of them, this suggestion is being made. Certainly the
members will deliberate, consider and apply their minds, and I am entirely in their
hands, but I must say, with great respect, that the suggestion of putting in a
memorandum and taking another fortnight is not justifiable in the circumstances and
in view of the recurring injucy Pakistan is suffering. I repeat what I said in Vienna,
justice delayed is justice denied.
28. The President: The Representative of India.
29; Mr. Palkhivala: The 20th of July is the date on which we received
Pakistan's reply and we had to be in Montreal on the 26th.
Annex 7
C -Min. LXXIV / 5 (Closed) - 152 -
30 . The President: Thank you. Well, we are in the Hearing; we have heard
the two parties ; and I think we have now reached the point a which Representatives
on Council mey wish to put questions. I will in due time also ask the Council whether
there is any discussion on the suggestion of India that it be permitted to file what
I suppose would be a brief, limited to elucidating arguments that have already been
put forward. For that, of course, I would have to have a proposal that we do so and
perhaps establish a time-limit, etc., and the Council will have to take a decision , if
there is such a proposal. Wear~ still on Case No, 1 and I ask the Council Representa tives
if they have any questions regarding it. Apparently not . Would the question of
the brief just raised by the Counsel for India, which I understand was not a proposal
or it would have come from the Representative of India, apply equally to Case No. 2?
31. Mr . Palkhivala: You mean, Sir, the written memorandum.
32. The President: Yes, the question of India's submitting a written memorandum
applies also to Case No. 2?
33. Mr. Palkhivala: Yes, Sir, but 99% would be common.
34. The President: As it was just a question, I would prefer to go to
Case No. 2 . Apparently the hearing on Case No. 1 has been completed and there have
been no questions by any Representatives. After the hearing on Case No. 2 we will go
to this question of having time to submit something additional in writing . I repeat
Icy question: Does any Representative wish to put any questions concerning Case No. l?
No. Then we go to Case No. 2. Needless to say, anything that would be applicable to
Case No. 2 which has already been said in connection with Case No. 1 should please be
omitted from the statements, by just making a reference to the fact that it is appli cable,
so that we do not need to spend as much time on Case No. 2 as we have spent on
Case No. 1. Will the Counsel for India please start.
35. Mr. Palkhivala: Mr. President and honourable members of the Council,
Case No. 2 is the Complaint which has been filed by Pakistan against India , and there
our Preliminary Objections are common to our Preliminary Objections in the first case .
To the extent to which they are common, I adopt :rcy arguments and submissions in the
first case, including the request for a written argument, because :rcy whole object in
talking of a written argument was to e1able the respective Governments and Administra tions
of the honourable Delegates to consider the whole argument before they com to
a final decision.
36. Now the new point, or the additional point which is peculiar to Case
No. 2 and not common with Case No. 1, is the only point which I shall deal with now .
All the other points are common and I have already said I shall adopt :rcy own a r gu ments
and submissions in the first case for the purposes of the second c a se .
37. The additional point is this. If you would be kind enough to turn to
the Transit Agreement, you will find that Article II, Section 1 reads as follows :
"A contracting State which deems that action by another Contracting State
under this Agreement" - I am emphasizing the words "action under this
Agreement" - "is causing injustice or hardship to it may request the
Council to examine the situation. The Council shall thereupon inquire
into the matter, and shal.l cal.l the States concerned into consultation.
Should such consultation fail to resolve the difficulty, the Council
may make appropriate findings and recommendations to the contracting
Annex 7
- 153 - C-Min. LXXIV/5 (Closed)
States concerned. If thereafter a contracting State shall in the
opinion of the Council unreasonably fail to take corrective action,
the Council mey recommend to the Assembly of the above-mentioned
Organization that such contracting State be suspended from its rights
and privileges under this Agreement until such action has been taken.
The Assembly by a two-thirds vote mey so suspend such contracting
State for such period of time as it may deem proper or until the
Council shall find that corrective action has been taken by such State."
Pakistan's complaint is based on, and has been lodged under, this Article II, Section 1,
and the key to the Article is that the subject matter of the complaint can be nothing else
than action by another Contracting State under the Agreement.
38. Now under the Transit Agreement India has taken no action at all. The
whole case of Pakistan is that India should take action under the Agreement and try to
implement its terms fairly and reasonably, etc. I have taken no action and that is
the whole complaint of Pakistan. In fact I ignored this Agreement as not existing,
not being in force between lndia and Pakistan. Even if I do this completely wrongly,
I find it impossible to understand how it can be said that I have taken action "under
this Agreement". Again I will be told there must be a liberal interpretation, but I
find it extremely difficult to reconcile IJ'.lYSelf to the view that under the notion of
a liberal interpretation flags must include electric lights, floors must include
ceilings, and the rest. The words "action taken under this Agreement" must surely
have some meaning. Whatever large connotation you may put on the word "action", however
you construe the word "under", it has to be action under the Agreement and the
whole complaint of Pakistan is that I am not taking any action under this Agreement.
Therefore the question of causing injustice or hardship does not arise, because even
if there is injustice or hardship, it is not caused by action under the Agreement.
39. If you look at the Rules for the Settlement of Differences, Article 1,
Clause (2) says "The Rules of Parts II and III shall govern the consideration of any
complaint regarding an action taken by a State party to the Transit Agreement and under
that Agreement ••••. " Two conditions have to be satisfied: first, there must be action
taken by a State party to the Transit Agreement, and, second, the action must be under
that Agreement. Unless these two cumulative conditions are satisfied, the question
of filing a complaint under Article 21 of these Rules does not arise. Under Article 21
of the Rules, read with Article II, Section 1 of the Transit Agreement, you have the
right to file a complaint only in the case of action under the Agreement.
40. Now what is this Transit Agreement and what would be action under the
Agreement? The Transit Agreement seys that to the scheduled airlines of another State
I m-ust give the right of overflight and also the right of non-traffic stops. Now
what would be action under the Agreement which may cause injustice or hardship? It
would be like this: if I were to tell Pakistan "Yes, you have the right to overfly,
but when you overfly you must make sure that you fly along the coast of India, not
make a beeline from one point to another on the basis that a straight line is the
shortest distance between two fixed points. Trace the whole coastline every time you
Annex 7
C-Min. LXXIV / 5 (Closed) - 154 -
go from West to East or East to West." This is permitting overflying, but it is action
taken under the Agreement which causes injustice or injury to Pakistan. Or I tell them
"You are entitled to make non-traffic stops if you come here, but you will have to take
nzy- Government servants free of charge." or I attach some other conditions which are
unreasonable. Then I would be taking action under the Agreement which causes injustice
or hardship.
41. In other words, what is contemplated is positive action under the Agreement,
and if that action causes injustice or hardship to another State, a complaint
may be filed. Then, as you see from Article II, Section 1 of the Transit Agreement,
I must take reasonable steps to see that the Council's suggestions are implemented.
Reasonable compliance is what is needed, and it is all in the field of positive action
which may cause injustice or hardship, as I said, by lit>' imposing onerous terms, difficult
terms, that make life unnecessarily difficult for another State's scheduled airlines.
Scheduled airlines have to operate on a commercial basis, and I may make it
commercially unprofitable for them by attaching all kinds of pinpricks, difficulties,
to the right to overfly or the right to make non-traffic stops. If I choose to take
no action at all and say "I repudiate this Agreement; I terminate it, suspend it~
you.", it is a contradiction in terms to say that I have taken action under the Agreement.
In other words, action under the Agreement is the direct antithesis, the direct
converse, of total suspension or termination of the Agreement, because when you totally
suspend or terminate it, you take no action at all. That is what I have done and I
submit, with respect, that it is impossible to reconcile the concept of action under
the Agreement with a case where the whole argument of the party is, as India's is
here,that I treat the Agreement as not in operation at all; from 1965 to date I have
taken no action under this Agreement at all, no action whatsoever. I submit it is
therefore impossible for the Council to assume jurisdiction in the second Case and I
request it to throw out the Complaint on the grounds that there is no action under the
Agreement. This is in addition to various other grounds that apply in the first Case
and apply equally here, which I am not repeating. That is all, Sir.
42. The President: The Counsel for Pakistan on Case No. 2.
43. Mr. Pirzada: Mr. President and members of the Council, first of all,
let us go back to the language, because no word in any Article is superfluous and
meaning is to be assigned to each and every word as far as possible. The language
is "A contracting State which deems that action by another contracting State under
this Agreement is causing injustice or hardship to it may request the Council to
examine the situation." Now first and foremost I invite your attention to the word
"deems". Who deems? - the Contracting State, in this case Pakistan. So it is a
matter of the subjective satisfaction of Pakistan. The words are not that "a measure
concerning action taken by". No, it is an enabling provision, enabling a Contracting
State, when it deems that action by another Contracting State under this Agreement
is causing injustice or hardship to it, to request the Council to examine the situation.
This is what Pakistan deemed and that is why it has approached the Council.
Annex 7
- 155 - C- Min . LXXIV / 5 (Closed)
44. Second, we are again in th e same circle , b ecause it is being suggested
that because the Transit Agreement has be en unilaterally denounced or terminated by
India, the action taken cannot be deemed t o be action under the Agreement. A little
while ago, in dealing with Case No. 1, I referred to a number of cases, including one
considered by the House of Lords having t o do with questi ons arising under a contract.
There it was held that a dispute over whethe r the cont ract had been ended or terminated
would be a case under the contract and would be covered by the submission in the arbitration
clauses. Now applying the same pr in cip le here , I submit, with respect, that
a case even of suggested termination, or pur port ed ter mination, or supposed termination
will be covered.
45. The last point is that whic hever way you i nte r pret it, the word "action"
has to be t aken as including omission. It does not mean only positive action, although
we can even suggest that prohibiting the aircr aft of Pak i stan from overflying Indian
territory is a positive act. Even an omis sion is cove r ed by "action" and the failure
of India to fulfil its obligations under t he Tr ansit Agreement would certainly be an
omission and would be covered by the expr ess i on "action ". I n fact our respectful submission
in due course would be that Secti ons 1 and 2 of Article II are not mutually
exclusive. They are concurrent. I am not dealing with this point at this stage
because it may arise a little later;I am only indicating . It has been dealt with in
a book to which I am now referring, "Lawmaking in the Int ernational Civil Aviation
Organization" by Thomas Buergenthal, page 159 : "A state which 'deems that action by
another Contracting State under this (Tran sit or Transpo r t )Agreement is causing injustice
or hardship to it may request the Coun cil to exami ne the situation.' That is to
say, it may file a complaint. The facts ju stifying the s ubmission of a complaint
could include questions relating to th e interpretation or application of the Agreements."
- They go back to the same Arti cle II . - "The sta tes involved thus have a
choice between filing a complaint or ins tituting a formal action under Chapter XVIII
of the Convention."
46. In fact I have been loo king into past prece dents of this august Council.
A plethora of things have happened and they are under sc~·utiny and examination,
but there is one incident and one prece dent to which I woul d like to invite your attention.
I find that this august body has not been hyperte chnical, and very rightly its
approach has not been very technical. It likes to do just ice as far as it can. In
1958, in equally serious circumstances, a situation arose between the United Arab
Republic and Jordan. Because of certain differences arising between the two States
the United Arab Republic prohibited J ord anian planes f r om fl ying over or landing in
the UAR. Jordan immediately retaliated by issuing a dec re e excluding UAR carriers
from its territory and shortly afterward s requested the ICAO Council to intervene.
The UAR followed suit; certain procedural steps were taken ; and even before it could
be determined whether it was a complain t or an application or what was the nature of
the proceedings - because you have ample power under the various Articles of the Convention,
and even in a court of law or before any tribunal , one proceeding could be
converted into another or could be deemed to be for othe r purposes because the question
is to give relief as long as the jur isdiction is there - this is what the Council
did. I am reading from the book I jus t r eferred to, page 163 : "After discussing the
Annex 7
C -Min. LXXIV / 5 (Closed) - 156 -
matter again at some length the Council concluded that it was still not clear what
specific action it was being requested to take" - even in such matters they had no
idea what action was sought but the Council necessarily took into consideration the
situation - "and instructed the Sect'etary General to ascertain whether the parties
wished the Council to decide the dispute under Chapter XVIII of the Convention or \lllder
the arbitral clause of their bilateral agreement. At the same time the Council invited
Jordan and the UAR to permit air services between their countries to be
resumed, and authorized its President to offer his good offices or those of the
Secretary General towards finding a settlement of the difference. The President of
the Council entered into consultation with the two parties and shortly thereafter
informed the Council that both had agreed to permit the temporary resumption of air
services between their respective countries." (Action of the Council - 35th Session,
ICAO Document 7958 -C/914, page 20, 1958). Thank you, Mr. President.
47. The President: Thank you. The Counsel for India.
48. Mr. Palkhivala: Mr. President, m::r answer to m::r learned friend is
briefly this. Article II, Section 1 provides that a Contracting State which deems
that action by another Contracting State under the Agreement is causing injustice or
hardship mey request the Council to examine the situation, but the word "deems II does
not mean in the subjective determination of the complaining State. If no action is
taken, that State may still deem that action has been taken. The word "deem" refers
to the injustice or hardship aspect. In other words, action under the Agreement has
to be established objectively as a positive fact; there is no "deeming" there, no
subjective decision there. The question is not whether Pakistan deems, thinks, imagines
that action has been taken. The word "deems" does not go to the action part of it.
That action has been taken under the Agreement has to be objectively established.
After that has been done comes the subjective determination of whether such action
is causing injustice or hardship. Before you reach the stage of deeming subjectively
that India's action is causing injustice or hardship, you have first to establish
that India has taken action under this Agreement.
49. If you look at the various Articles, it is clear what is meant by
"act:i.on under this Agreement". For example, Article I, Section 3, talks of granting
airlines the privilege to stop for non-traffic purposes if they offer reasonable
commercial service. What is "reasonable commercial service"? Well, India mey say
"You must render these commercial services."; they may cause injustice or hardship
to Pakistan; and, if so, Pakistan can complain. Section 4 of the same Article says
that a State mey designate the route to be followed within its territory and impose
just and reasonable charges for the use of its airports and other facilities. As I
was saying, India may designate a route that is unjust or causes hardship to Pakistan.
Or it may impose charges that may cause injustice or hardship. But before Pakistan
can complain, it has to be objectively established that the action deemed to cause
injustice or hardship has been taken. So the word "deem" does not meet the point at
all, because "deem" goes with "injustice or hardship"; it does not mean that in the
imagination or in the view of Pakistan action is taken when in reality no action is
taken. What Article II, Section 1 says is that if objectively, in reality, action
has been taken, it is for Pakistan to deem or consider whether it is causing injustice
or not.
Annex 7
- 157 - C-Min. LXXIV / 5 {Closed)
50. Secondly, Sir, the book referred to by my learned friend deals, on
page 159, with a completely different question, which I shall illustrate in a moment
rather than argue in the abstract. What the textbook says is, and rightly, that there
may be a case where, as the result of misinterpretation or misapplication of the Agreement
to the existing facts, you mey cause injustice or hardship. In such a case you,
the aggrieved party, have two courses open to you. You may either file an application
on the ground that the right interpretation, the right application, has not been adopted
or you may make a complaint. If there is misinterpretation or misapplication resulting
in action which causes hardship, you may file a complaint about the action under
the Agreement or you mey file an application on the grounds of interpretation or application.
This is not the case we are dealing with here at all. We are dealing with
a case where there is no action whatsoever, no interpretation, no application, and
the whole case of India is that this Agreement is not in operation.
51. - Therefore, Sir, I do submit that the point I have made has not been
met. Neither the textbook nor the oral argument meets the real question: what does
"action under ihis Agreement" mean? If it means "any dispute between the parties",
why say "action under this Agreement"? Surely the words have some meaning. As my
learned friend reads Article II, Section 1, he is virtually rewriting it to say "any
dispute between the parties". Well, if that is what the charter of the Council was
intended to be, nothing would have been easier than to say "any dispute between the
parties". Why talk of interpretation and application? Why talk ·of action under the
Agreement? - simply say "any dispute between the parties". But the limits of the
Council's jurisdiction are very severe on the complaint part. It can deal only with
a complaint about action under the Agreement, and I would be surprised if in the entire
history of the Council a single case has arisen where, without any action under the
Agreement, the Council has still entered into the complaint. To say that the Council
is liberal, that it wants to do justice, is a tribute to the Council in which I would
like to join, but it is a far cry from that to say that because the Council has been
liberal, let it now entertain my complaint although there is no action taken by India
at all. As far as we are aware, this type of complaint is unprecedented in the history
of ICAO, and I respectfully submit, Sir, that the Council would have no jurisdiction
at all.
52. The President: I will now put the same question regarding Case 2.
Are there any questions that Representatives would like to put to either of the
parties? Apparently not. Then we have a request from India that they be permitted
to file a brief, which would be limited to arguments that have been presented during
the present hearing. It is a request from a party and I will now invite discussion
and eventually a vote on it. Is there discussion on that question? The Representative
of the United Kingdom.
53. Air Vice Marshal Russell: Just a question for clarification. This
would not obviate the previous understanding to make a verbatim record available?
54. 'The President: No, the verbatim record will be made available; that
was clear. May I then put the question to the Council? The Representative of Uganda.
Annex 7
C-Min. LXXIV/5 (Closed} - 158 -
55. Mr. Mugizi: Will this memorandum be submitted by each of the parties?
I thought it was suggested that the parties be permitted to submit their arguments
in writing without introducing any new ideas. Is that the case?
56. The President: So fa.r I have only had a request from India. If Pakistan
would make a similar request, I would consider it in the same way, but the Representative
of Pakistan has already indicated the difficulties he would have with
that request. The Representative of Pakistan.
57. Mr. Pirzada: Mr. President, the full arguments have been advanced
here. They have been recorded and I am sure the Secretariat will make the verbatim
record available as soon as they can. Therefore the honourable members wjll have
access to the arguments. They already have the written objections filed tv India
and time is of the essence in these proceedings in view of the urgenciy. I ~herefore
have already opposed this request.
58. The President: Thank you. The Representative of Tunisia.
59. Mr. El Hicheri: I should like some clarification on this request
made by the Delegate of India. Does it, as I understood, mean that we shall have
to wait until we have a short memorandum, explaining perhaps more concisely and
precisely the preliminary objection, before the Council takes a decision on the validity
of this objection? Is rey understanding correct? I shall continue at'ter I have
an answer.
60. The President: Yes, undoubtedly that would be the case. The Council
would not go into the deliberations until it had received this additional brief. If
I was going to put a question it was going to be in two parts unless India modifies
the request to include a time-limit, because I think there will be two things to
decide: first whether the Council agrees that there may be such a written presentation
and if it does - which would be determined by a vote - what time would be given
to India to make that presentation. The Representative of Tunisia.
61. Mr. El Hicheri: Mr. President, in your opinion is such a procedure
normal? In other words, is it compatible with the Rules for the Settlement of
Differences1 I have Article 5 of the Rules before me and it says this:
11(1) If the respondent questions the jurisdiction of the Council to
handle the matter presented by the applicant, he shall file a
preliminary objection setting out the basis of the objection.
(2) Such preliminary objection shall be filed in a special pleading
at the latest before the expiry of the time-limit set for delivery
of the counter-memorial. 11
Unless I am mistaken, this operation has been completed.
11 ( 3) Upon a preliminary objection being filed, the proceedings on
the merits shall be suspended and, with respect to the timelimit
fixed under Article 3(l)(c), time shall cease to run from
the moment the preliminary objection is filed until the objection
is decided by the Council.
Annex 7
- 159 - C -Min. LXXIV / 5 (Closed)
(4) If a preliminary objection has been filed, the Council, after
hearing the parties, shall decide the question as a preliminary
issue before any further steps are taken under these Rules."
Now if :rey understanding is correct, the Council has heard the two parties. This is
an oral procedure. I do not wish to embarrass you, but I would seek your advice,
Mr. President, because in that capacity you certainly have more experience in these
matters than anyone else here, on whether the filing of another brief is part of such
a procedure. ~ own opinion is quite clearly that it is not, but I would like an opinion
from you, perhaps with the assistance of our Legal Bureau, which may be more impartial
than I. I may be biased in this regard, but I must say I am a little surprised at the
request.
62. The President: I don't feel embarrassed. I am always ready to give
an opinion and to be corrected. As I understand it, although it is not foreseen in
the Rules that this be done, it is not forbidden by the Rules either, and there is a
general provision - Article 28, paragraph 1, to which the Representative of Pakistan
already referred - which says that the Council shall determine the time-limits to be
applied and other procedural questions relating to the proceedings. The second
sentence is also important: "Any time-limit fixed pursuant to these Rules shall be so
fixed as to avoid any possible delays and to ensure fair treatment of the party or
parties concerned." The Representative of France.
63. Mr. Agesilas: I must say that I have the same fears as the Representative
of Tunisia. If we follow the procedure suggested - that is to say, if we agree
to the submission of a new document - I think we risk deviating from the procedure.
Suppose that when this document is compared with the verbatim which the Secretariat
will establish, differences appear, or at least certain members of the Council find
differences, between the way in which the Representative of India, in all good faith
I am sure, summarizes in the document what he has said and the way in which the
Secretariat reports it in the minutes - we shall, I think, be creating a source of
very difficult discussions. I am afraid, therefore, that the adoption of this procedure
would mean that we would not be strictly respecting the provisions of our
Rules for the Settlement of Differences. That is nzy-opinion, Mr. President.
64. The President: Any other views on this question? The Representative
of Senegal.
65. Mr. Diallo: I see this as a sort of debate on procedure. You, Mr
President, gave an affirmative reply to the question of the Representative of Tunisia,
but I do not think India has yet given a reply to this question - because they are lawyers
we have with us. Do they think it is necessary to wait for this document before
deciding? I do not think so, or else I have not understood very well. Could I be
enlightened on this question?
66. The President: No, the Chief Counsel for India has requested the
Council's permission to file a brief ( "memoire" in French), in writing of course,
within a certain time-limit and this brief will be related to arguments that have
been adduced in this hearing today. That is as far as it goes. The Representative
of Senegal.
Annex 7
C-Min. LXXIV/5 (Closed) - 160 -
67. Mr. Diallo: Yes, that is what I understood. Obviously everyone is
free to write his own book afterwards, because really it has been a very instructive
meeting for me - I have heard some rather extraordinary things. But the problem
is this: after hearing the two parties on the question, are we fully informed or
are we not? I think when you asked "Has anyone any questions?", no one raised his
hand. Everyone is quite clear. Therefore we now have a decision to take. If
tomorrow we receive a fine document which deals with everything that has been said
here, and if it is in conflict with the minutes, what is governing for us is the
minutes, which will be distributed and which we shall send to our administrations.
I have not really understood very well what relation it is desired to establish
between this new document India proposes to present to us later and the decision we
have to take tod~.
68. The President: Well, as I understand it, if the Council would agree to
the request of India, there would be no decision now. The decision of the Council
on the Preliminary Objection of India would be taken only after this other document
has been received. The Representative of the Congo.
69. Mr. Ollassa: I take the floor prudently and simply to ask a question,
because I did not understand the last interventions very well. My understanding was
that you had replied in the negative to the question put by the Representative of
Tunisia - in other words, you said that the Indian request was receivable at any time,
having regard to the actual procedure. That was not implied in the question put by the
Representative of Tunisia. I should therefore like to have clarification.
70, The President: Well, I understood the question of the Representative
of Tunisia to be whether it was in order, under the Rules for Settlement of Differences,
to agree to the request of India. My answer was that it was really up to the Council
to decide whether it was permissible or not because the Council has Article 28 and
can decide as it wishes. The Representative of Tunisia.
71, Mr. El Hicheri: I apologize for developing my thought a little further,
but I am going to let this point drop, because really it is procedure piled on
procedure. We are meeting now on a question of form and I do not want to get into
a whirlpool that risks carrying us far on the subject of procedure. My doubt, Mr.
President, is only about whether the hearing is an oral hearing or whether, once it has
been settled, it is possible to make further written submissions. Article 28 says
nothing of the kind. It speaks of time-limits. The Council may now decide to extend
the time-limit, but it is not said in Article 28 that it ca.n authorize the publication
of other docuements. That was the specific question I put,
72. The President: I read the whole Article, but the words that would
apply to your question are 'and other procedural questions relating to the proceedings'
- 'other procedural questions'. So it is for the Council to decide whether
it has enough with this oral hearing or whether it wishes to wait and have more. It
is , I think, up to each Council Member. I shall have to put the question to see
whether the Council wishes to accede to the Indian request and I am going to do so
now unless there is more discussion. The Representative of Belgium.
Annex 7
- 161 - C-Min. LXXIV/5 (Closed)
73, Mr. Pirson: I am a little concerned about the procedure. The
French text of Article 28 is preceded by four words, "Mesures interessant la procedure"
("Procedural Measures"). In other words, the three paragraphs of Article 28
have to do with procedural measures. Article 5, paragraph ( 4) says "If a preliminary
objection has been filed, the Council, after hearing the parties, shall decide the
question as a preliminary issue before any further steps are taken under these Rules."
I have made the greatest efforts to be absolutely neutral on this question of procedure,
but should we not ~fleet before putting this question to a vote? In the suggestion
that has been made to us is there not something that is not completely in conformity
with Article 5, paragraph (4)? - because Article 28 is entitled "Procedural Measures".
I would like to have the advice of our Legal Bureau on this point. I am quite ready
to take a decision, but I should like to be absolutely sure that we are not starting
down a path that was not the one envisaged when these Rules were established.
74. The President: The Secretary General agrees that the Legal Bureau
may reply. Dr. FitzGerald.
75. Dr. FitzGerald: Thank you, Mr. President. I will be relatively brief
on this question because I think it is quite clear. It is not unusual for a judicial
tribunal - and the Council is now so acting under the various constitutional provisions
that we have in the Convention, the Transit Agreement, and the Rules for the
Settlement of Differences _ to request counsel, after a long and difficult argument,
to present written briefs. Now this does not mean that new issues are to be raised
or that new arguments are to be brought forward; what it really means is that the
court would expect a systematic presentation of what has been adduced by each of the
parties and within the framework of the arguments adduced by those parties. It would
not expect to have new issues raised and new rebuttals brought forward and so on. I
say it is not unusual, as a matter of practice, for a court to request this or for the
court to agree, should it so desire, reserving all of its rights as a court, to the
request of one of the counsels or counsel on both sides to file such a document. An
entirely separate question is whether or not in this particular instance the Council
would wish to take a particular action. That is of no concern to the person who is
now speaking to you. Thank you, Sir.
76. The President: The Representative of Australia.
77. Dr. Bradfield: Like the Representative of Belgium, I am trying to be
completely impartial in this matter and also under Article 28 to look to a procedure
which ensures fair treatment for both parties. I understand that you proposed
to put this question in two parts - first whether or not the Council would
permit India to submit another document on this subject, and, second, what time should
be allowed. I am afraid that I could not give any decision on the one without the
other, because to me the time involved is more important than the written arguments
put forward - or as important.
Annex 7
C-Min. LXXIV / 5 (Closed} - 162 -
From the statement of the Counsel for India I ur.derstood that he
would expect, if this was agreed to, that the new document would leave for ICAO in
about two weeks' time. That would mean that it would reach us in about three weeks '
time. It would then have to be translated and it would therefore be another month
before the Council would see it. If that is correct, I have great worries about it
because I think it is getting to be a rather long time. On the other hand, if the
Counsel for India could produce the document in two deys instead of in two weeks,
I would feel more inclined to accept such a situation. Again, I am trying to be completely
impartial and to follow the principles of Article 28 and I would ask that
the two matters be considered together - whether or not we should accept it and the
time by which it is to be presented to us.
78, The President: When I referred to the possibility of taking t i s in two
steps, I said I would do so unless the Representative of India would like to include a
time-limit in his request. Perhaps you could speak on this, Mr. Palkhivala.
79, Mr. Palkhivala: Frankly, the idea was not to inflict upon the Council
any further piece of written work; the idea was merely to assist the Council. In fact,
speaking for nzy-self, I would be quite content if, instead of a separate memorandum,
which I thought could be drafted with some care and attention,the verbatim notes are
made available. t-:tY" only desire - I shall be very frank - is this. As I see it, there
is much more to this matter than may appear to some people at first sight. My only
desire is that in a matter of such far-reaching importance every State represented
here should have the opportunity of considering the full arguments before coming to a
conclusion. Now, I am going to speak very frankly again, because there is no use keeping
back anything in nzy-mind. If the normal practice of a particular State is to allow
its Representative here to make up his mm mind after hearing all the arguments, that
is all right because the delegates have been kind enough to hear us very patiently.
If, on the other hand, since the matter is one of the most far-reaching importance,
there are Representatives who would like to have instructions from their Government
or Administration - and that is not for me to ask; I am only stating a possibility -
then I would sey that even if you dispense with the memorandum, I would appreciate
having at least the verbatim notes made available to every member before a decision
is taken. As I said, nzy- desire here is not to gain time. I am not interested in
that at all. I am only interested in seeing that a just, fair decision is reached
after full consideration. For that purpose I suggested a memorandum. The alternative,
if you don't want a memorandum, is to have the verbatim notes made available to every
member before a decision is reached. This, again, is a request; I cannot insist upon
it. It is for this learned, honourable tribunal of Council Members to consider whether
this request is fair. If they think it is fair, I would appreciate their seying "All
right, no memorandum, but let all the verbatim notes be made available." That is all.
Thank you.
Annex 7
- 163 - C -Min. LXXIV / 5 ( Closed)
80. The President: Well, supposing that there would be no agreement to
decision right away or will wait for the verbatim minutes to be avail able is something
we shall only know when we go to the deliberation stage, which is the next step.
Perhaps we should have a coffee-break now and return in fifteen minute s .
- RECESS
81. The President: The Council is again in session. We still have to
decide on this question and I am not sure whether at this moment we have a request
from India for permission to present a written brief on the arguments already adduced.
You indicated that it was perhaps either that or having the verbatim available, but,
as I said, whether the Council is ready to take a decision now or will wait for the
verbatim is something we shall know only when we go to the deliberations. So I
would not like you now to sign a blank cheque, because you might not get it afterwards,
but I leave it to you.
82. Mr. Palkhivala: Mr. President. !,zy" request to the honourab l e Members
is either to have a memorandum from India setting out the arguments or, alternatively,
the verbatim notes, and to consider and take them into account before coming to a
decision. If the honourable Members want neither and are prepared to take a decision
without the memorandum, without the verbatim notes, on a matter of such far-reaching
importance, it is their decision.
83. The President: I take it, then, that there is no request at the moment.
Perhaps when we come to the deliberation, the question of whether the Council should
wait for the verbatim will have to be subject to discussion als o. Is there anything
more on the hearing itself before we enter into the so-called deliberatio n ? Apparently
not. Then we are going to go into the deliberation. I had indicated at the beginning
of the meeting that according to the advice I had received, when the Council starts its
deliberation, the usual court practice will be followed of having the Agents withdraw
from the room. India and Pakistan will, of course, still be represented by other representatives
whose names I read at the opening. I will ask the Chief Counsels of
India and Pakistan whether they have anything to say before we begin the deliberation.
84. Mr. Palkhivala: Nothing further, Mr. President. Thank you.
85. Mr. Pirzada: Mr. President and honourable Members of the Council. I
would just like to take this opportunity of expressing nzy-deep gratitude for the
indulgence shown to us. Thank you.
(The Agents and Chief Counsels for India and Pakistan withdraw.)
Annex 7
C -Min. LXXIV / 5 (Closed) - 164 -
86. The President: Before we enter into the discussion I would like to
know whether the request for a verbatim record applies also to this part of the
discussion. The Representative of the Congo.
87. Mr. Ollassa: Does Article 30 of the Rules not apply in any case?
88. The President: Yes, but you were not here yesterday when I gave the
following explanation. The Secretary General has been keeping verbatim transcripts
of all the proceedings pertaining to this case since the very beginning, but, so far,
they have just been included in the files of the Organization and will be made available
if any party or even the public would like to have access to them. To save work
we have not been distributing them in the three languages. However, yesterdey, when
we started the hearing on the Preliminary Objection, it was agreed that we were going
to have verbatim in the three languages of everything that would be said yesterdey
and todey. r-tf question now is whether this applies also to the deliberation. lb
you still want the verbatim? The Representative of the Congo.
89. Mr. Ollassa: On what would any difference be based? I ask you this,
Mr. President, because you have asked us whether we want the verbatim or not. Why
would there be a difference in procedure?
90. The President: For the hearing, the Council wanted to have all the
arguments in writing, particularly because both parties have made important presentations.
We are now going into a discussion which is closer to the usual type of
discussion the Council has or which is similar, let us say, to the discussions we
had in Vienna when we set the date, etc. But I was just asking a question; I am not
suggesting that there should not be verbatim. I just want to know so that the necessary
steps are taken. The Representative of the Congo.
91. Mr. Ollassa: In view of the importance of the question, Mr. President,
we should follow the same procedure.
92. The President: Then we shall continue with the verbatim. We now
enter into the deliberation on Case 1 and the basic proposition before the Council is
the one presented by India, namely, that the Council has no jurisdiction in this
Case. The Representative of the United States.
93. Mr. Butler: The remarks I have to make now are necessitated by the
references on many occasions to the position stated by the United States in response
to a question in the court on the Namibia case which has just recently been decided
by the International Court of Justice.
I would like to make the position of the United States clear during
this discussion phase, because the response of the United States has been submitted
as part of the record and it will be noted that the reply of the Counsel for the
Annex 7
- 165 - C -Min. LXXIV / 5 (Closed)
United States in that case was addressed to the question of the suspension or termination
of a treaty by one party or brought about by the material breach of that treaty
by the other party. There have been extensive references to Article 60 of the Vienna
Convention on the Law of Treaties and the question of material breach as far as that
Convention is concerned. I should like to refer for a moment, if I may, to Article
65 of that Convention. Now, while the Vienna Convention mey not be in force, as has
been pointed out, many of its Articles are codifications of existing international
law. While paragraph 4 of Article 65 may not have the force of a treaty among States
around this table it should be kept in mind as a provision thought necessary by the
drafters of the Vienna Convention concerning the rights and obligations of parties to
any treaty which has a provision regarding the settlement of disputes. Article 65
deals with the procedure to be followed with respect to invalidity, termination,
withdrawal from or suspension of the operation of a treaty. Now, obviously, the
establishment of a procedure such as this is not based merely on codification of
existing international law, but it is important that paragraph 4 provides that the
procedure for notification of other parties to the same treaty does not affect the
rights and obligations of p~rties to the treaty or any provisions in force which
bind the parties with regard to the settlement of disputes.
It is the United States position - and our response to the Court in
the Namibia case should be read in this context - that Article 84 of the Chicago
Convention, as well as Article 7 of the Mandate which was the subject of the Namibia
case and refers to questions of interpretation and application of the terms of the
Convention, includes questions related to any provision, all provisions, of the
Convention. It does not seem possible to us that one party to a convention or a treaty
may negate procedures for the settlement of disputes by stating that the treaty is no
longer in force and thereby depriving of its jurisdiction to settle the dispute the
tribunal that has been given jurisdiction in the settlement of disputes. Thank you.
94.
India.
The President: Is there further discussion? The Representative of
95, Mr. Gidwani: Mr. Chairman, I am in some difficulties. I do wish
that the legal point that is being raised at this stage had been raised when the
lawyers were present here. However, I will try :rey best to answer :rey friend from the
United States.
Briefly, the position taken by him is simply this: that the words
in Article 84 of the Convention, when they refer to interpretation and application,
would seem to cover each and every grievance, each and every dispute, eacl{ and
every difference, but as the Chief Counsel for India explained this morning, if that
were so Article 84 would simply say that if any disagreement whatsoever between two
Contracting States should arise, the Council has jurisdiction. Our contention, Mr.
President, is simply this, that the words "interpretation" and "application" have a
narrow, restricted meaning and cannot be deemed to include termination. Thank you.
Annex 7
C-Min. LXXIV /5 (Closed) - 166 -
96. The President: If no one else wishes the floor, I will have to put the
next question. That is whether the Council is rea~ to go now to a decision on the
basic questions raised by India. Do I take the silence as meaning that we can proceed
with the discussion and eventually reach a decision? The Representative of the
United Kingdom.
97. Air Vice Marshal Russell: On this question of going now to a decision,
Mr. President, we have heard lengthy discussions and expositions, although they
~ be brief in legal terms, and not being a lawyer, I could not regard it as reasonable
for me, n:wself, to participate in a decision here and now on the merits of the
Preliminary Objection, which for me turns entirely on questions of law. To that extent
I shall therefore not be able to support any positive action on the substance
of the matter. For me it is essential to obtain legal advice on the arguments which
have been presented before so participating.
98. The President: Further discussion or views? The Representative of
Czechoslovakia.
99. Mr. Svoboda: I should like to express almost the same view as the
Representative of the United Kingdom has expressed, because I too am not a lawyer.
During these two days we have heard many things linked very closely to international
law and I too would like to have the possibility of consulting my Administration.
100. The President: Since there are two Representatives,at least, who
have some difficulties, I think the first thing we have to settle is whether we proceed
with the discussion and the decision now or whether there should be some interval.
The Representative of Belgium.
101. Mr. Pirson: We have just heard the Representatives of the United
Kingdom and Czechoslovakia request deferment to permit them to receive instructions.
Could we know how long a delay they have in mind? Is it, for example, a week?
102. Air Vice Marshal Russell: What I said, Mr. President, was that I could
not participate in a substantive decision at this time, unfortunately being without
legal training n:wself and not having had the opportunity to seek legal advice. I was
not asking for time. I was simply saying that I was, unhappily, not in a position to
evaluate from a strictly legal point of view the presentations which have been made
to us.
103, The President: That clarifies your position very well, I think. I
don't know whether the Representative of Czechoslovakia wishes to say more.
104. Mr. Svoboda: I would need a minimum of eight or ten days, if possible,
to consult n:w Administration.
Annex 7
- 167 - C-Min. LXXT.V /5 (Closed)
105. The President: The Representative of the Congo.
106. Mr. Ollassa: Mr. President, through you I would like to put a question
to the Representative of the United Kingdom. Does he mean that he will never participate
in a decision? - because he said he could not evaluate the question but made no
mention of any delay. What does that mean, Mr. President? Is he going to consult
to obtain advice so that he can participate or does he mean simply that he will never
participate because he cannot make the evaluation himself? I did not grasp very well
the nuance there was in the reply he gave us. I admit it must be very difficult for
him to state his position very clearly, but I did not understand it very well. We
must know if deferment will permit the entire Council to participate in the decision
or not, because if there is deferment and we arrive at the same result - some saying
that they cannot evaluate the correctness of the legal presentation - it would be
very bad, Mr. President.
107. The President: I understood the second intervention of the Representative
of the United Kingdom as meaning that if the Council decides now he will not take
part. Perhaps he doesn't want to say what he plans to do in the future; so it is
completely up to him to answer or not. The Representative of the United Kingdom.
108. Air Vice Marshal Russell: Of course, Mr. President, I was not saying
I wouldn't participate. If the distinguished Representative of the Congo had been present
yesterday, perhaps even with his eminent legal training he would have as much
legal indigestion as I have. I don't wish to treat this matter in a spirit of levity;
I am endeavouring to treat it seriously. The essential point to me is that this is a
legal question and for me - and I am not trying to extend my position to any other
Representative on this Council - the expression of a view on the substance of the
Preliminary Objection turns entirely on matters of law. Now I am not a lawyer and at
this particular moment I am perhaps a little bit sorry and a little bit glad that I
am not a lawyer, but it is a fact that I am not and it would be unreasonable - I think
that is the right word - for me here and now to express, on behalf of my country, a
substantive view on matters of quite complex law. All I am saying is that, for better
or worse, I am not in a position to do so.
The President: The Representative of France.
110. Mr. Agesilas: Like the Representative of Belgium, I think that as
it is evident that several of our colleagues need advice or instructions before a
decision is taken, we must, in fact, consider deferment. I personally would be ready
to participate in the taking of a decision immediately, but I must admit that what we
have heard during the last forty-eight hours needs some digesting. We are, however,
faced with a procedure in the Rules for the Settlement of Differences that is precise
and indicates that a:f'ter hearing the parties the Council must decide. The Convention,
like the Rules, specifies that it is the Council which must decide; it does not say
that the members of the Council must be lawyers. I therefore believe that, as the
Representative of Belgium said, a deferment of eight days would help a certain number
of our colleagues to obtain advice or instructions and it would certainly be desirable
that the largest possible number of Council members be in a position to participate
in the taking of a decision. I, for one, would have no objection to an interval of
the order I have indicated before we have another meeting at which we can take a
decision.
Annex 7
C -Min. LXXIV /5 (Closed) - 168 -
111. The President: The Representative of Tunisia.
112. Mr. El Hicheri: I believe the question is basically very simple.
There has been a long discussion, but essentially it was on the question of whether
the Council was or was not competent in this affair, and I think that since the
preliminary objection was filed, chancelleries and national administrations have had
time to study i~ and form an opinion on this question. Some of us think that the
Council is competent; others are of the opinion that it is not. In any event, what
I want to emphasize is that the question is simple enough. The argumentation has
been rather long in my opinion, but that is another matter. The question is simple
and I.think national administrations and legal services have had sufficient time to
make up their minds on the Validity of the preliminary objection, just as India and
Pakistan have been able to make written submissions.
I am a little embarrassed because I do not see exactly under what
Article of the Rules for the Settlement of Differences deferment could be envisaged.
The Rules are obviously quite flexible. In principle, we should take a decision
immediately after hearing the parties. There can be objection, but it should be
couched in the form of a proposal and could then be voted on. That is what I wish
to emphasize, Mr. President. To be very frank, I do not think eight days would be
long enough for those who are not sufficiently informed on the question even though
it is almost two months since the preliminary objection was filed and the legal services
and administrations of the countries represented on the Council have had time
to consider it. I think that if some of us wish to request deferment for one reason
or another, they should, in these conditions, make a firm proposal specifying a timelimit.
I have the impression that it may be covered by Article 28 or some other provision
of the Rules, which seem fairly flexible. In principle, however, we should
pass immediately to a decision after hearing the parties. Now it appears that some
of us are not ready to do so and there should therefore be a proposal for deferment
in due and proper form.
113. The President: The Representative of Senegal.
114. Mr. Diallo: :r'{y delegation is a little embarrassed by this situation.
We are in fact, moving along a procedural trail that is rather delicate. I understand
the attitude of the delegations who would like a deferment because they need
instructions to be able to take a position, but I reject the argument that the twentyseven
of us here must be lawyers to decide questions of this nature. :tey" personal
opinion is that not every science may be characterized by logic and good sense, but any
one worthy of the name is. In any event, we have heard the arguments of the two
parties, we have evaluated them, and the question before us seems to me much simpler
than all we have heard. Perhaps I am going to be a little brutal, but the question
is as simple as this: Is the Council going to survive or die? Is it going to take
its responsibilities or refuse them? For me the problem is no more complicated than
that.
Annex 7
- 169 - C-Min. LXXIV /5 (Closed)
Now there may be a problem of digesting all we have heard during the
last forty-eight hours, but the decision does not bear on the merits of the dispute
between India and Pakistan. The question before us is whether the Council is competent
to deal with the problem and I think that in the two months, if not more, that
we have had, everyone has made up his mind - to borrow the words of our colleague from
Tunisia - not as to the substance, but as to the procedure. I say this to explain
that I am ready to vote today on this question, but I do not want to press those who
wish to have advice. If we must defer the vote, we must know whether or not the
debate is closed, because if it is not closed, if we have to set aside another fortyeight
hours in the month of August - well, it is very fine to have marathon sessions
like this, but we must know exactly what is wanted and what we are going to do. If the
debate is closed, we are going to have a meeting from 10 o'clock until noon, we know
that we are here to vote, and those who do not have instructions can stay away if they
wish, but we shall have fixed a time-limit for coming to a vote. We must think of the
Delegations of India and Pakistan, who come from the other end of the world. Are they
to be forced to wait around here for eight or fourteen days so that they can answer
questions that are going to be put to them? I am not very well informed on the procedure
it is desired to follow. In any event, if the debate is closed and if we must
give time to the Representatives who want precise instructions from their administrations,
I do not think it would be wise to oppose deferment, although I really do not
see of what use it will be.
115. The President: Before we proceed I would like to make clear that the
fact that we are now in the deliberation stage means that the hearing stage has been
closed, so there is no question of going back to it. It is only a question of deliberations
so that the Council can decide whether or not it has jurisdiction. The
Representative of the Congo.
116. Mr. Ollassa: I would like to say that although I have not had the
benefit of the brilliant argumentation here yesterday, I am ready to take the decision
that has to be taken, because, as many speakers have said, the problem has been with
us since Vienna and we have had time to think about it. Obviously it can be said that
to take a decision without having heard the parties is perhaps unjust, but in a certain
way the problem is objective. It is a matter of knowing whether the Council is competent
or not. It is a legal problem that does not depend on the argUments of one
party or the other and in rrry opinion it is a problem that presents itself in a rather
simple way. It is claimed that we need to have in writing all the argumentation presented
here. Well, I heard a good part of it and without being a great lawyer I san .
say immediately that many of the arguments were foreseeable and imaginable and therefore
we have already taken them into account in our reasoning.
In a question as important as this, Mr. President, what is important is
that the Council, as a body, should be ready to take a decision. It happens that this
is not the case and because of that I fully agree that we should have a delay. I think,
too, that this would be equitable to the two parties, because one wanted no delay, the
other asked for fourteen days, and a week's deferment would split the difference - to
use a rather vulgar expression. I shall therefore vote - if there is a vote - with
those who want a deferment of eight days, which I think was one of the figures mentioned.
Eight days would be much better than ten, because ten is too close to fourteen.
Annex 7
C-Min. LXXIV /5 (Closed) - 170 -
117, The President: Before we continue, I would like to give some
information regarding documentation. You recall that yesterday there was a request
for verbatim minutes and they, of course, will take time, because they have to be
translated. I think the Secretary General reckons that for these four meetings,
which have been rather long, full minutes in the three languages will require between
three and four weeks. On the other hand, I understand that part of the Summaries of
Decisions has alreaey gone to the ·Language Branch, more will be going, and just to be
on the safe side, the last one, in other words this afternoon's,should be distributed
in the three languages, of course, by noon next Fridey. The Representative of Italy
is next .
.Il.8. Dr. Cucci: I had not intended to speak at this stage, but I
would like to sey, first, that if the Council's decision is to have a deferment,
I shall vote for it. If the Council wishes to take a decision immediately, I
can do the same, but in my opinion we are faced todey with an alternative. Is deferment
necessary to enable certain Representatives on the Council to digest what they
have heard and then - and this is the essential - inform their respective administrations?
For me "inform administrations II means to inform them fully. As has
been said, yesterdey and todey we have heard a whole series of very interesting things.
We therefore need the minutes. The Summaries will be of no use whatever, especially
for people who have no knowledge of law. That is why I say that it is absolutely
meaningless to speak of a deferment of eight days. It does not give Representatives
on Council the possibility of informing their administrations. The alternatives,
in my view, are to take an immediate decision - and I am ready to do so - or to have
a reasonable deferment, that is to sey, a deferment that will enable all of us to inform
our administrations fully. The subject is either difficult or not difficult. If it
is difficult, we must have the documentation from the Secretariat. Therefore - and I
repeat that I am advocating neither one thing nor the other - if I am obliged to take
a stand on deferment, it must be on a deferment that gives everyone the possibility of
informing his administration completely. You obviously cannot inform administrations
on the basis of Summaries or personal ideas that mey be in conflict with the Secretariat's
record when that appears. That is why, for me, eight deys is not a reasonable deferment.
If an eight-day deferment is the alternative, it would be better to take an
immediate decision.
119. The President: The Representative of Belgium.
120. Mr. Pirson: We are ready to participate in a decision today. We ha e
studied with a great deal of interest the preliminary objection filed by India, which
was first distributed in English on 3 June. We have also been able to study Pakistan's
reply, in English, to India's preliminary objection. Because I was in Europe at the
time, this study could be made in consultation with the competent services of the Belgian
Government. I personally consider the very brilliant presentations we have heard
yesterdey and today only an explanation of the position that ha1 been given to us very
clearly in the two documents, and consequently it does not appear indispensable to defer
the decision of the Council. However, as certain Representatives wish to have deferment,
I think we should give it to them, but in the meantime do nothing that could b
considered contrary to Article 5 of the Rules for the Settlement of Differences. In
other words, the Council must take a decision, but it can take that decision in eight
days, ten days or fifteen days. The only problem we have at the moment is this. If
Annex 7
- 171 - C-Min. LXXIV / 5 (Closed)
those Representatives wish to be informed of the views of their governments, it
means that they consider that the two documents that have been presented - the
preliminary objection of India, distributed on 3 June, and Pakistan's reply to it,
distributed in English on 9 July - were not sufficient to permit them to come to
a conclusion. In that case it is essential for these Representatives to have at
least the Summary of Decisions. I am not speaking of the minutes, because I believe
that to ask for them means deferring any decision for at least a month, and it
seems to me that in the circumstances that would not be reasonable or in conformity
with Article 28 of the Rules for the Settlement of Differences.
It seems to me, however, that we should be able to have the Summary
and, when we have it, those Representatives who have just expressed a desire to be
able to consult their governments can do so. If you tell us that the Summary will
not be available until next Friday, that is to say, in nine days, I believe it would
be difficult for us to take a decision on the subject that same day. If we really wish
to give the Representatives who wish it time to consult their administrations, we
must give them a few more days - the shortest time possible compatible with Article 28
of the Rules for the Settlement of Differences. It seems to me, then, that we must
give twelve, thirteen,fourteen days to permit speedy consultation with governments.
I shall therefore not oppose any request for deferment of a decision
for fourteen days, unless the Summaries are available sooner. If we could have the
Summaries - and I realize that it is an exorbitant request I am making of the Secretariat
- next Monday, we could, I think, decide the question on Monday, August 9,
We would be allowing a week after the distribution of the Summaries. If the Summaries
can be distributed only next Friday, I think it would be really difficult not to defer
the decision on the subject for five or six days. That would mean that the decision
would have to be taken by the Council about a week after the distribution of the Summaries,
and when that is will depend very much on the work of the Secretariat. We
know that the particular person concerned always works with zeal, enthusiasm and
intelligence, and in this case we hope she will continue to do so, but we must also
be reasonable. We must not demand of others what we do not always demand of ourselves,
Mr. President, that is to say, to work day and night so that we can have this
material.
In sum, therefore, I would like to say that I shall not .oppose any
formula that consists in asking the Council to take a decision a week after the distribution
of the Summaries of the debates in which we have just participated.
121. The President: Thank you. The Representative of Uganda.
122. Mr. Mugizi: Like the Representative of Italy, I would prefer, if we
have a delay, that it be a meaningful one. I myself would be prepared to take a
decision now and it would then be understood that Iey' decision would be limited to
my knowledge of the Convention, the Transit Agreement and the Rules for the Settlement
of Differences. The Namibia case and all the other cases that have been cited
and the Vienna Convention are the things which put us off. These are the things
Annex 7
C-Min. LXXJ.V/5 (Closed) - 172 -
about which we need to consult lawyers whose business is much wider than our business
here. If we are to make consultations, to make sure that our advisers are going to
look into all these matters that have been discussed yesterday and today,we need
enough time. This is not something you can do after getting a summary of our deliberations
yesterday and today, sending it to your Government and saying "Will you give
me a reply within five days?" It would take time. Either we delay the decision for
three or four weeks and get advice on the implications of the Vienna Convention and
all the cases which have been mentioned, or we take a decision now, basing it on the
documents we have here. It all depends on what we consider to be the function of
this Council. If the function of this Council is to deal with all aspects of international
law, if our decisions must take due account of all the international decisions
which have been made, of all the cases which have been cited here, then we
have got to have time to examine these things and get proper advice, but if we are
expected to deal only with the matters dealt with in the Chicago Convention, in the
Transit Agreement and in the Rules for the Settlement of Differences, we can take
a decision today. Things which put us off are matters which are not defined here.
For instance, it was being argued that a convention could be suspended by one State
in respect of another State or terminated by one State in respect of another State.
This is the sort of thing about which I am in doubt. I ieyself didn't know this
could be done and I was prepared to deal with the matter recognizing that I am ignorant
of anything outside the Convention. I would prefer to take a decision today, Mr. President,
but if we are to defer it, the period of deferment should be long enough to
permit sufficient investigation of the matters which have been cited.
123. The President: Thank you. The Representative of Spa.in.
124. Lt.Col. Izquierdo: In general I agree with what the Representatives
of Italy and Uganda have said. Basically, I am prepared to take a decision today.
We actually have in our hands the documents we need. We have the Convention, the
Transit Agreement and the Rules for the Settlement of Differences. We also have
India's preliminary objection and Pakistan's reply. Thus the only new elements that
have entered into the discussion are the masterly presentations made by the Counsels
for India and Pakistan. The Summary of Decisions really would not help us, because
what we have to think about seriously is in these masterly presentations. Therefore,
to consult iey Government on these presentations, I must first have the verbatim
from the Secretariat. Then I must send it to iey Government. Then, of course, there
will have to be a meeting of lawyers specialized in international law, which will
take five or six weeks. I therefore am in favour of taking a decision today, Mr.
President, or, in the extreme, six weeks from now, so that our administrations can
study the new elements, and only the new elements, introduced in the masterly presentations
of the Counsels for Pakistan and India.
125. The President: The Representative of Colombia.
126. Major Charry: I was going to say practically the same as the Representative
of Spain. Eight or ten days would be of no use to me. I shall have to
wait three or four weeks for the detailed minutes. I would then have to send them
to iey country, the lawyers would meet - usually there are four of them, each with a
different point of view. This would take two or three months, and I do not think
that would be fair to the parties to the dispute. On the other band, I am not a
Annex 7
- 173 - C-Min. LXXIV / 5 (Closed)
lawyer, but I understand that law is the natural order of things and I do not think
it is necessary to go into further details. As other Representatives have said, the
Council either is or is not competent to deal with this question. I have formed an
opinion, and I am ready to vote immediately.
127. The President: The Representative of Tunisia.
128. Mr. El Hicheri: Just a few words on this question, Mr. President,
because, really, between deferment and no deferment, memorials and counter-memorials,
time-limits, etc., I am beginning to get lost. We are advancing, but always running
away, and I ask my-self when this is going to end. Besides, this seems to me more
and more like a Kafka novel; I will say no more than that.
I wish only to ask you a small question, Mr. President. When we met
in Vienna and decided to meet in Montreal at this time - since it was your humble
servant who proposed the date that had a chance of being acceptable to the two parties
- and to interfere with the holidays, the private life, the professional life,
of many of our colleagues, was it simply to hear the parties and then go away, or was
it to hear the parties and take a decision? That is the question I wish to ask you,
Mr. President, because this affair is beginning to become rather ludicrous. Come,
listen, leave, return - this must end some day.
129, The President: I don't know what the Representatives ,on the Council
had in mind when they took the decision. That point was not specifically discussed.
It was simply agreed that the Council would meet on the 27th of July to hear the parties
on the Preliminary Objection. We didn't say more than that. So perhaps some people
thought that we were going to take a decision and others did not. The Representative
of Senegal.
130. Mr. Diallo: Just to express my opinion, Mr. President, and to say
that if you ask us to decide whether we should vote today, I shall vote in favour of
doing so. If you ask us whether we wish to defer, I shall abstain and the decision
will be ta.ken by the majority of my colleagues. As for having meetings in August, I
would hope that after the final meeting on this question we decide to have a month's
vacation in January or February, because we are in danger of not having any this year.
131. The President: I am hesitant to put any questions because you will
recall that any decision the Council takes, even for a delay, requires a statutory
majority; it requires 14 votes. I therefore don't want to put anyone in difficulty.
That is why I don't want to put questions until I really have to, but of course I
shall have to do so eventually. The Representative of France.
132. Mr. Agesilas: I .have already indicated that I was ready to take a
decision immediately, and a little while ago I expressed an opinion favourable to
a deferment that appeared reasonable to me. But I am not in favour of a deferment
of the length now being envisaged and I think, therefore, that a decision should
be ta.ken immediately, that is to say, tomorrow morning, because it will be necessary
in some cases to give explanations of vote. In conclusion, then, I am in favour of
a quick decision tomorrow morning.
Annex 7
C-Min. LXXIV/5 (Closed) - 174 -
133. The President: I have had no proposal for a deley. There have been
only suggestions so far. Mey I take it that the Council will meet tomorrow morning
and proceed to take a decision? The Representative of India.
134. Mr. Gidwani: Mr. President, the decision is naturally for the Council
to take, but I would just like to draw attention to one factor: that in Vienna you
took a certain decision and that decision was that you would have this meeting here to
hear the parties. I am rather surprised that after hearing the parties you should
immediately try to reach a deliberative judgement without making available to the
Members of the Council either a summary or a verbatim record.
Mr. President, I also want to point out that the Government of Pakistan
was good enough to furnish a reply to the Preliminary Objection filed by India, but
there is no mention in the Rules of the submission of a reply. You were good enough
to circulate that reply. It reached us on the 20th of July. It was sent on the
22nd to our Chief Counsel, who was to leave on the 24th. We therefore did submit
to you this afternoon that we would like to send a detailed memorandum on this subject
to clarify the pleadings we have taken. You have also heard todey that there
are certain Council Representatives who would like to report to their Governments
on the legal issues involved and obtain their advice, but it seems to me that the
Council perhaps wishes to consider taking a decision now. I would submit to you,
Mr. President, that any decision you try to take today will be a vitiated decision
if you do so without proper record, without proper minutes, without proper notice,
when at the meeting in Vienna you decided that you would mere~ hear the parties
in Montreal on July 27th.
135, The President: Regarding what we decided in Vienna, I read the
record and I think we have no more than that. Perhaps without now deciding to take
a decision tomorrow, we could sey that we shall continue this discussion tomorrow
morning. For the time being I have no proposal for deferment; so unless there is
such a proposal tomorrow, on which we will have to vote, the Council will eventually
reach the point of having to decide. We shall therefore meet tomorrow morning at
10 o'clock. The order of business for tomorrow has alreaey- been prepared. After the
end of the discussion on this question, we shall go into the other question of
Resolution 39/1. The Council is adjourned.
Annex 8
ICAO Council, 74th Session, Minutes of the Sixth Meeting, ICAO Doc. 8956-C/1001
(29 July 1971)
Annex 8
- 175 -
Doc 8956-C/1001
C -Min. LXXIV /6 (Closed)
31/ 8/71
COUNCIL - SEVENTY-FOURTH SESSION
Minutes of the Sixth Meeting
(The Council Chamber, Thursday, 29 July 1971, at 1qoo hours)
CLOSED MEETING
President of the Council: Mr. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary General
PRESENT:
Argentina
Australia
Belgium
Brazil
Canada
Colombia
- Com. R. Temporini
- Dr. K. N. E. Bradfield
- Mr. A. X. Pirson
- Col. C. Pavan
- Mr. J.E. Cole (Alt.)
- Major R. Charry
- Mr. F. X. Ollassa
- Mr. Z. Svoboda
Japan
Mexico
Nigeria
Norway
Senegal
Spain
Tunisia
Uganda
- Mr. H. Yamaguchi
- Mr. S. Alvear Lopez
(Alt.)
- Mr. E. A. Olaniyan
- Mr. B. Grinde
- Mr. Y. Diallo
- Lt. Col. J. Izquierdo
- Mr. A. El Hicheri
- Mr. M. H. Mugizi (Alt.)
Congo (People's
Republic of)
Czechoslovak
Socialist Republic
Federal Republic
Union of Soviet
- Mr. H. S. Marzusch (Alt.) Socialist Re-
Mr. A. F. Borisov
of Germany
France - Mr. M. Agesilas
India
Indonesia
Italy
- Mr. Y. R. Malhotra
- Mr. Karno Barkah
- Dr. A. Gucci
ALSO PRESENT:
Dr. J. Machado (Alt.)
Mr. L. S. Clark (Alt.)
Mr. - B. S. Gidwani (Alt.)
Mr. M. Garci'a Benito
(Alt.)
- Brazil
- Canada
- India
- Spain
Mr. N. V. Lindemere - U. K.
(Alt.)
Mr. F.K. Willis (Alt.) - U.S.
Mr. A. A. Khan (Obs.) - Pakistan
Mr. H. Rashid (Obs.) - Pakistan
Mr. Magsood Khan (Obs. )- Pakistan
publics
United Arab
Republic
- Mr. H.K. El Meleigy
United Kingdom - A/V/M J.B. Russell
United States - Mr. C. F. Butler
SECRETARIAT:
Dr. G. F. FitzGerald - Sr. Legal Officer
Mr. D.S. Bhatti - Legal Officer
Miss M. Bridge - CSO
Annex 8
C-Min. LXXIV /6
(Closed) - 176 -
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Settl ment of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani
Aircraft over Indian Territory
1. The meeting opened with the statement by the Alternate Representativ
of India reproduced in Part II, paragraph 2 of these Minutes. A request for a
legal opinion from the Secretariat on the validity of an immediate decision was denied
on the ground that Lhe Council was at this time sitting as a court and according to
legal practice would hav to pronounce on that question itself. The Representatives of
th People's Republic of the Congo and Au s tralia, however, disagreed explicitly with
the Indian position and the Representatives of Norway, Canada and France disagreed
with it implicitly in declaring their r adin ss Lo proceed to a decision forthwith.
The Representative of the Czechoslovak Socialist Republic, supported by the Representative
of the Union of Soviet Socialist Republics, proposed deferment of a decision
until August 10th, but when put to the vote this proposal failed to receive the
statutory majority which it had been under s tood from the start of the proceedings on
the Pakistan application and complaint would be required for any decision, the result
of the vote being 8 for, none against, and 10 recorded abstentions (the Representatives
of Argentina, Brazil, Canada, th e People's Republic of the Congo, Indonesia, Mexico,
Norway, Senegal, Spain and Uganda).
2. The President then expressed his intention of putting to a ote the
following propositions based on the preliminary objection:
Case 1 (Application of Pakistan under Article 84 of the Convention and Article II,
Section 2 of the International Air Services Transit Agreement)
(i) The Council has no jurisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the Convention on
International Civil Aviation.
(ii) The Council has no jurisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the International Air
Services Transit Agreement.
(iii) The Council has no jurisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the bilateral agreement
between India and Pakistan.
Case 2 {Complaint of Pakistan under Article II, Section 1 of the International Air
Services Transit Agreement)
(iv) The Council has no jurisdiction to consider the complaint of
Pakistan.
Annex 8
- 177 - C - Min. LXXIV / 6
(Closed)
The Indian Delegation asserted that this was an improper formulation. According
to Article 5 of the Rules for the Settlement of Differences, if the respondent
questioned its jurisdiction, the Council had to decide the question - in other words,
the question of jurisdiction - as a preliminary issue before any further steps were
taken under the Rules. The proper formulation therefore was "Has the Council
jurisdiction to consider the disagreement in Pakistan's Application ..... ? ", etc. ;
any other would be prejudicial to India and contrary to the Rules. The President
explained that the Council so far had been proceeding on the assumption that it did
have jurisdiction; India had challenged its jurisdiction; the Council accordingly had
now to decide on the challenge. The Representatives of Canada, the United States,
Tunisia and th.e People's Republic of the Congo supported the President's formulation,
maintaining that the purpose of the vote was to determine whether the chal
· lenge was upheld, not whether the Council had jurisdiction. The manner of formulation
would not affect the results of the vote, but was important because of the
p!'ecec.~t-rnaking nature of :he d,;cisions to be taken.
3. The result of the vote on the first proposition was none in favour,
20 opposed and 4 abstentions (the Czechoslovak Socialist Republic, Japan, the
Union of Soviet Socialist Republics and the United Kingdom). The Indian Delegation
protested that the manner in which the vote had been taken was incorrect and
inadmissible under the Rules for the Settlement of Differences, and requested a
roll-call on the remaining propositions.
4. The President noted that only parties to the Transit Agreement):<
( except, of course, India) were eligible to vote on the second proposition, but the
statutory majority would still be required fo_r a decision. The result of the vote
was as follows:
For
Against:
None
Argentina, Australia, Belgium, Canada, the Federal Republic of
Germany, France, Mexico, Nigeria, Norway, Senegal, Spain,
Tunisia, the United Arab Republic and the United States (14)
Abstained: the Czechoslovak Socialist Republic, Japan, and the United
Kingdom (3)
5. After several Representatives had questioned both the necessity
and the desirability of putting the third proposition to the Council - and, indeed,
whether Pakistan had really sought relief from the Council under the bilateral
agreement - the Representative of Pakistan, after consulting his country's Chief
Counsel, stated that it had not; the bilateral agreement had been mentioned simply
to reinforce the case being made for Council action under the Convention and Transit
Agreement. The Indian Delegation protested, calling attention to the frequent
references to the bilateral agreement in Pakistan's Application and to the · fact that
):< The following Council members are parties to the Transit Agreement: Argentina,
Australia, Belgium, Canada, the Czechoslovak Socialist Republic, the Federal
Republic of Germany, France, India, Japan, Mexico, Nicaragua, Nigeria, Norway,
Senegal, Spain, Tunisia, the United Arab Republic, the United Kingdom, the
United States of America.
Annex 8
C-Min. LXXIV/6
(Closed)
178 -
in the Preliminary Objection India had denied the Council's jurisdiction to handle
any dispute under a bilateral agreement; they did not, however, insist upon the third
question being put, having already gone on record as considering any decision taken
at this meeting improper.
6. A roll-call vote was then taken on the fourth proposition, only parties
to the Transit Agreement ( except India) again being eligible to participate. The result
was:
For:
Against:
Abstained:
the United States of America
Argentina, Australia, Belgium, Canada, the Federal Republic
of Germany, France, Mexico, Nigeria, Norway, Senegal, Spain,
Tunisia and the United Arab Republic
th Czechoslovak Socialist Republic, Japan and the United Kingdom.
7. The result of the foregoing votes was the rejection of propositions (i),
(ii) and (iv) and hence the reaffirmation o.f the Council I s competence to consider the
Application and Complaint of Pakistan. Explanations of vote were given by the
Representatives of the United States, Senegal, Spain, Indonesia, Canada, Argentina,
Tunisia and the People's Republic of the Congo, explanations of abstention by the
Representatives of the United Kingdom, the Czechoslovak Socialist Republic and the
Union of Soviet Socialist Republics; :i.ese are reproduced in full in Part II of
these Minutes (Discussion). The Indian Delegation gave notice that India would appeal
the decisions just taken to the International Court of Justice because the manner and
method of the voting had been wrong and expressed the view that until judgement had
been rendered by the Court no further action was possible.
8. In reply to questions, the President indicated that the period given to
India for the filing of its counter-memorial, interrupted by the filing of the preliminary
objection, would start to run again immediately and would expir in ten days; if the
counter-memorial was not filed by the deadline, the Council would be informed by the
Secretary General in a memorandum examining the consequences.
9. The Representative of Australia suggested that in communicating the
Council's decision to India and Pakistan, the invitation to negotiate contained in its
Resolution of 8 April 1971 should be reiterat e d.
Annex 8
- 179 -
DISCUSSION
C-Min. LXXIV /6
(Closed)
Subject No. 26: Settlement of Disputes between Contracting States
Pakistan versus India - Suspension by India of Flights of Pakistani
Aircraft over Indian Territory
1. The President: The Council is in session. This is the 6th Meeting
of the 74th Session, and we shall continue with the deliberations concerning the
Preliminary Objection of India in Cases No. 1 and No. 2. I understand that the
Representative of India wishes to speak.
2. Mr. Gidwani: Thank you, Mr. President. Having regard to the
trend of discussion yesterday, I think it is necessary for me to make a statement.
I shall say only a few words but to my mind these words merit the closest consideration.
For the first time in the history of this Council it has been called
upon to decide the question of the limits of its jurisdiction. It is a question
of the most far-reaching importance invoiving the consideration of weighty arguments,
principles of international law, and judgements and advisory opinions of the International
Court of Justice. It must not be forgotten, Mr. President, that the Council
is meeting today as a judicial court entrusted with the task of reaching a judicial
decision on points of international law and the ambit of its own jurisdiction as an
international judicial authority.
Now, Mr. President, even highly trained judicial minds would require
time and the most anxious consideration before coming to a fair and a correct decision
on an issue like this. It has been admitted very clearly that some of the members
would like ~o have the assistance of their respective Governments in evaluating the
arguments urged at the hearing. Some members have specifically stated that without
an opportunity of discussing the . matter with their Governments or Administration~.
they would have to come to a decision not on the basis of the arguments urged, but
on the basis of the pleadings filed earlier relating to the preliminary objections
and the treaties and the rules applicable thereto. It would make the oral hearing
an idle ceremony if time was not · allowed to the members to study the verbatim records
and take such assistance from their Governments or Administrations as they may require.
If the Council were to come to an immediate decision on an issue of this character,
without waiting for the verbatim records of the arguments and without waiting for the
respective Governments of the Member States to consider those verbatim records of the
full arguments, I am constrained to say that the Council would be failing to discharge
its duty and to function as a judicial body.
Annex 8
C-Min. LXXIV/6 (Closed) - 180 -
It is true that there should not be any delay in the Council arriving
at fair decisions, but what is the meaning of delay? Delay means taking more time
than is necessary for the judicial process. Delay does not mean denying the time
necessary to apply the judicial process fairly after full and adequate consideration.
If unfortunately the administrative set-up of the Secretariat is unable
to produce the verbatim records within 24 hours,as is common with many other organs of
the United Nations, that drawback has necessarily to be accepted as a part of the procedural
problems of the Council, and the time involved in the production of the
necessary verbatim records should not and cannot be construed as delay.
Mr. President, I really fail to understand how an international tribunal
like this Council, after detailed arguments of such far-reaching importance, can possibly
come to a quick decision without full consideration by the respective Governments of the
arguments advanced here of which the Governments so far know nothing or have not been
able to evaluate or assess.
It is most significant, Mr. President, to note that some Members of the
Council have already stated that they are not in a position to evaluate and decide upon
the respective submissions made by India and Pakistan on the preliminary points of
jurisdiction without further consideration. Other members have expressly stated that
if the decision is to be made later, the time-lag must be meaningful and it must be
after the verbatim records are made available for full consideration by them and their
Governments or Administrations. This shows very clearly that if the Council were to
make a decision now, the decision would have no validity or propriety in law because
the Members of the Council, that is some of the judges, are admittedly not in a position
to evaluate and decide upon the arguments and submissions without further consideration.
I repeat, Mr. President, if the Council were to make a decision now, the decision would
have no validity or propriety in law. It is for the Council to consider whether it
would like to come to a decision in such circumstances where time is not given to~
judge to give full and adequate consideration to the issues involved.
Another ground on which the decision of the Council would be vitiated,
if it is arrived at without waiting for the verbatim records, is that the Council, as
already stated above, is here acting as a judicial court, and some of the judges, i.e.
Members of the Council, were not present throughout the oral hearing from the beginning
to the end. They can join in the decision only after reading the verbatim records; and
if they join in the decision without considering the verbatim records, then, Mr. President,
the whole decision of the Council would stand vitiated on the ground that some
of the judges had not applied their minds to the entire case of both sides. It is needless
to add that what India and Pakistan had filed before the Council are only pleadings
on preliminary objections and not arguments or Statements of the Case or full Briefs on
the preliminary objections. If a judge decides a case merely on pleadings, without considering
fully the oral or written presentation of the case, the decision would not be
proper in law.
It is therefore my suggestion that the final decision should be, it bas
to be, arrived at after the verbatim records are made available to the Members of the
Council and, through them, to their respective Governments.
I will furnish a copy of my statement to the Secretariat and if they
would be so kind, I would like to have it distributed to the Members. I was reading
from a prepared speech. Thank you.
Annex 8
- 181 - C-Min. LXXI.V/6 (Closed)
3. The President: The Representative of the Soviet Union.
4. Mr. Borisov: Mr. President, the Soviet Union was not a Member of the
Council when the Council previously discussed this question, first in Montreal and
then in Vienna. It is quite clear that being present for the first time at a Council
meeting on this question I met with some nuances on which I, like Represenatives of
some other countries, have to consult with my competent organs. I request time for
such consultation after receiving the complete records from the Secretariat. I
believe that a week or ten deys would be necessary for this. Failing this, I shall
not be able to make a decision on this question. Thank you.
5, The President: Representative of Colombia.
6. Major Charry: I would like to have the Legal Bureau explain to us
whether a decision taken today would not be valid, as the Representative of India
says. May I hear what the legal secretariat has to say on this point?
7, The President: The Secretary General.
8. The Secretary General: I understand the question put by the Representative
of Colombia, but it must not be forgotten that the Council is now sitting as a
court, as a tribunal. It is for the court to pronounce on this question, not for the
Secretariat to give a legal opinion on it. In my view, for the Secretariat to give a
legal opinion would be contrary to judicial practice and ethics, because a court does
not need a legal opinion. It is for it to give that opinion.
9, The President: Thank you. Is there further discussion? The Representative
of Norway.
10. Mr. Grinde: I should like to state my position briefly. I can say that
I am ready to take a vote todey, but I do understand and respect the difficulties some
Representatives have and their consequent desire to consult with their authorities at
home. If the Council should find it necessary to delay action, I shall not object to
this provided the time given will be meaningful, After hearing the discussion yesterday,
I do not believe that a few weeks will suffice. I understand it will take quite
some time to get the verbatim records and if these are to be given a real legal study
by my authorities, I am quite sure that they will need several months. So mey I
reiterate - I am ready to take a vote today but I shall not object to a delay if the
time given is meaningful. Thank you.
11. The President: Is there further discussion? I am not sure whether
the Representative of the Soviet Union was making a proposal to defer a decision or
just a statement indicating that he had difficulty in taking a decision now. The
Representative of the Soviet Union.
12.
13.
Canada.
Mr. Borisov: It was a statement.
The President: Is there further discussion? The Representative of
Annex 8
C-Min. LXXIV/6 (Closed) - 182 -
14. Mr. Clark: I find reyself supporting the views so ably expressed yesterday
by rey distinguished friend from the People's Republic of the Congo. The question
before this body appears to be fairly straightforward: does the Council have jurisdiction
to hear the case brought before it or not? The preliminary objection lodged was
at least in rey view - and I believe this view would be shared by most Representatives'
on the Council - clear, concise and well-documented and, professsionally speaking,
I think it was as well drafted a document as I have ever had occasion to study. The
reply by the other Party that was distributed and circulated was also concise, clear
and well drafted. The Rules for the Settlement of Differences, Article 5(4), seem to
contemplate that once the written documentation has been submitted, there would be a
hearing of the parties. We have listened here, during the past two days, to the distinguished
advocates for both parties, whose contribution was surely a clarification
and explanation of the written cases, but the main issue remained the same and we
have had the benefit of carefully studying the documentation that was distributed in
advance over a reasonably lengthy period of time. Accordingly, I would be prepared
to proceed to a decision on the issue of the preliminary objection at this time. On
the other hand, I can also understand the preoccupation of the other delegations who
seem to feel that they would rather have time to consult with their authorities. At
the same time, however, the comment made by the distinguished Representative of Italy
would appear to be very sound, and that was that a mere summary of the debate would
not be of any particular benefit to us and therefore a short delay to allow the circulation
of such a document might not, in fact, achieve its purpose. On the other hand,
a delay of several roonths to allow translation correlation and distribution of a complete
verbatim record of the discussion of the'past two days would, in our view, not
really be compatible with what is contemplated in Article 28 of the Rules, and may not
ensure fair treatment of both parties concerned.
So, to reiterate, the Canadian position would be th~t we are certainly
prepared to proceed to a decision today, and would not think that a lengthy delay of
several months to allow correlation and distribution of a complete verbatim record
would be upholding the responsibility of this body to ensure fair treatment of both
parties. Thank you.
15. The President: The Representative of the United States.
16. Mr. Butler: There is just one point I would like to make here and
that is a reminder that we sit here as representatives of governments. We are not
individual members of the Council. Our Governments are members of the Council an
even though the Council may be sitting in a judicial capacity at this time, we sit
as 27 governments, not as individuals. If 26 governments are prepared to go to a
decision today, it is the decision of those Governments, not of the individuals who
sit at this Council table, and I think it is important for us to remember this. We
are unlike the members of the World Court, for example, which sits in a judicial
capacity; they sit in personal capacity as judges not responsible to national administrations.
Here we represent governments, and it is important for all of us to
remember this.
Annex 8
- 183 - C-Min. LXXI.V/6 (Closed)
17. The President: Is there further discussion on this question? The
Representative of the United Kingdom.
18. Air Vice-Marshal Russell: I would just like to express a little disappointment
at the reply given to the Representative of Colombia by the Secretary
General, although I understand his point of view. It is not unique for a body of
persons other than professional judges to sit in a judicial · capacity, at any rate
not in the United Kingdom. It is usual in such circumstances for .the body to have
recourse to legal advice on points of strict law and if I am correct in supposing
that the Representative of India was saying that for reasons which he gave a decision
taken now would not be taken legally, is it possible for me to be advised on
how this point should be determined as a point of law?
19. The President: I think the Representative of India said that the
decision would be vitiated; those were the words that he used. I think the
Secretary General feels that he cannot say that he agrees or disagrees with that
position. This Council has to take a decision itself. If Representatives cannot
decide by themselves, I suppose they will have to check with their own administrations.
As the Representative of the United States just said, Council members are sitting as
representatives of governments. I imagine also that if the decision of the Council
on this question was contested, there is always a superior body to which India could
apply.
20. Mr. Gidwani: Thank you, Mr. President, I just wanted to state that
you quoted me correctly: that the decision if taken now would be vitiated. And
I want to be very clear - it is not that India is seeking any time; India is seeking
fair treatment. What we wish is that these verbatim records should be available,
as indeed is provided for in the Rules for the Settlement of Differences. Quite
apart from that, if it was a question of merely seeking time, it would be very easy
for me to say that this particular meeting has been held here, as per the decision
of the Council in Vienna, for the purpose of hearing the parties. No indication
whatsoever was given to the Government of India that the Council would discuss the
matter and take a decision at this meeting. Otherwise, I could have claimed my
right under the Convention and sought time so that the Government of India might
have an opportunity to appoint a special representative, if it wanted, for the purpose
of this meeting, because every Government has the right to be represented in
regard to a matter affecting its interests. Therefore the indication should be
given. I did not take that pleading because the Government of India is not interested
in seeking time, but it is very much interested that there should be fair treatment
of the parties, that the verbatim reports should be available. If the Council is to
take a vote now, its action will be improper, illegal, entirely invalid and certainly
vitiated, Mr, President.
Annex 8
C-Min. LXXIV/6 (Closed) - 184 -
21. The President: That, of course, is a matter of opinion. I think
that one point Council members are now considering is this: was something brought
forward in the hearing itself that was different from the written presentations and
required them to seek further instructions? I think each Council member is the Judge
of that. Some apparently believe there was, others that they had enough material
before the hearing or that there was nothing new - or not enough new - brought
forward in the hearing to make it necessary for them to consult. That is how I
interpret the position of some Representatives. The Representative of the Congo.
22. Mr, Ollassa: I consider what the Representative of India said an
assertion. The Government of India, like any other government, can make all the
assertions it likes. In any event, after having read and re-read the documents,
and though I did not hear all that has been said here, I find that the arguments
brought forward were, as the Representative of Belgium said, just an illustration
of the preliminary objections we have received. Besides, we know that when there
is a disagreement, the proceedings are generally in writing. Therefore in principle
what has been given to us in writing is the essential; the rest is only an explanation
of the documents we have. Because of that, Mr. President, I am in complete agreement
with the Secretary General that it is not for him to give a legal opinion. We
had these documents in Vienna; administrations have had time to read them. The
explanations given here perhaps are considered by certain members of the Council
to supplement what was said in the preliminary objections, but they may equally be
considered simply as illustrating what was submitted in writing. At all events, that
is what the People's Republic of the Congo thinks; what has been said merely illustrates
the preliminary objections.
For that reason, Mr. President, I think the Secretary General
really has nothing to do now. It is for us to decide, and I would leave the
Representative of India the responsibility for everything he has said. He has said
that the decision would be vitiated. That is not my opinion at all, because we
have had the documents for a long time. There have been brilliant arguments, some
of which, as I have already said, were foreseeable and imaginable. The arguments
were magnificent, brilliant, and to me it was an extremely interesting legal game.
I would have liked to be able to participate in it from the beginning, but it has
changed absolutely nothing, Mr. President. The question remains the same as it
was in Vienna. The arguments have not changed it and they cannot change the solution.
That any decision taken at this time would be vitiated is an assertion by
a government and must be left to that government, but to me the decision would not
be vitiated. I am reaey to take one and if there is no proposal for deferment we
must take a decision today and make an end, because the question is clear to everybody,
at any rate to governments who have had the preliminary objections to read.
Annex 8
- 185 - C-Min. LXYJ.V/6 (Closed)
23. The President: Is there further discussion? Apparently
not, so I shall have to put the questions. There are several,
because you realize that there are two cases and that different
instruments are involved. In the Application of Pakistan there is
the Chicago Convention, the Transit Agreement and the bilateral Air
Services Agreement between India and Pakistan; that covers Case 1.
Then we have Case No. 2, the Complaint. So I shall have to put those
questions separately and it will be realized that all Council Members,
except India, of course, can vote on the question relating to the
Chicago Convention and on the question relating to the bilateral
agreement, but only Council-member States parties to the Transit
Agreement - again, except India - can vote on what concerns that
Agreement. Therefore when the votes are taken we shall have to proceed
on that basis. I shall just read the list of Council-member
States that are parties to the Transit Agreement. You have had that
list for the old Council, but I had better read it again now for this
new Council. The States that are at present parties to the Transit
Agreement are Argentina, Australia, Belgium, Canada, Czechoslovakia,
France, Germany, India - I made a reservation about India already -
Japan, Mexico, Nicaragua, Nigeria, Norway, Senegal, Spain, Tunisia,
United Arab Republic, United Kingdom, Uni t ed States. There are 19,
of which only 18 are eligible to vote. The Representative of France.
24. Mr. Agesilas: Mr. President, if you intend now to ask
us to vote, I should like an opportunity, before the vote, to explain
how I am going to vote. The French authorities have studied the preliminary
objection filed by India with the utmost objectivity and with
concern that the delicate question of the disagreement submitted to
the Council should be treated in a way fair to both parties. I
myself have listened attentively and with keen interest to the very
complete statement by the Representative of India and the reply made
by the Representative of Pakistan. I wish to summarize briefly,
Mr. President, the conclusions on which the position I am going to
take is based.
Three international agreements have been mentioned by
the two parties:
1) the bilateral agreement concluded between India and
Pakistan in 1948;
2) the Chicago Convention, to which the two States are
parties;
3) the International Air Services Transit Agreement.
As far as the bilateral agreement is concerned, we have
noted that in 1952 India recognized the competence of the Council in
applying to it to settle the first difference it had with Pakistan at
that time and the Council itself recognized its competence in agreeing
to consider the Indian request. Naturally we are not forgetting the
events that took place in 1965, but it remains that, to the extent it
is admitted that after the Tashkent arrangements had put an end to the
hostilities the 1948 Agreement had at least partially to be brought
back into force, the right of one of the parties concerned to address
itself to the same court - in this case the Council of ICAO - must
be recognized. This is the rule of estoppel, well known to jurists.
Annex 8
C-Min. LXXJ.V/6 (Closed) - 186 -
As far as the Chicago Convention is concerned, Article
89 has been cited and commented on at some length. This Article, as
we know, provides that in case of war or national emergency Contracting
States regain their full freedom as regards their obligations
under the Convention. If this Article could be invoked in 1965 at
the time of the armed conflict, it is difficult to concede that after
the Tashkent agreement and six years later - in 1971 - a state of war
in the legal sense could be considered to exist between the two States.
As for the state of emergency, which might better correspond to the
actual situation between Pakistan and India, for it to be invoked it
must have been notified to the Council, which is not the case.
Since the particular conditions envisaged in Article
89 of the Convention cannot be maintained, we come back, as regards
the multilateral agreements (Chicago Convention and Transit Agreement),
to the general rules of international law. The two speakers
have cited Article 60 of the Convention on the Law of Treaties, the
Vienna Convention of 1969. We know that this Convention has not come
into force, but as Article 60 does no more than codify customary
international law, it can, in fact, be validly referred to.
This Article 60 recognizes the right of a State to
suspend or terminate an agreement if there has been material breach
by the other party. Has there been a material breach by Pakistan in
the case before us? I shall not reply to this question, which touches
on the very substance of the case submitted to the Council, but we
must at least record that ther e is a dispute on this point of the
existence of material breach. We are, then, faced with a disagreement
in the sense of Article 84 of the Chicago Convention.
For all these reasons that I have just evoked, we cannot
acknowledge that the Council is incompetent and are ready to participate
in the taking of a Council decision on this point.
We could also admit another formula. Since, in the
final analysis, it is a question of judging whether India's decision
to suspend or terminate the agreements is validly based on a previous
and material breach by Pakistan, one could admit that it would only
be possible to pass final judgement on this poi~t after an examination
in substance of Pakistan's application and India's defence. If this
formula were adopted, examination of the Indian preliminary objection
could be associated with examination of the substance. The procedure
which was interrupted would therefore be set in motion again. The
Indian counter-memorial should be filed, and the Council would pursue
its examination of the case, but it would be in the course of this
examination that a definitive decision would be taken on the objection
presented by India.
In short, Mr. President, our position consists either
in voting in favour of the last formula I have just described, if it
is supported, or of expressing an orinion in the sense that the Council
is competent, if the general tendency is in favour of taking an
immediate decision.
Annex 8
- 187 - C-Min. LXXIV/6 (Closed)
25. The President: The Representative of India has asked
for the floor.
26. Mr. Gidwani: I have only one submission to make. I
heard the distinguished Representative of the USSR say that he would
make a proposal after the coffee break, unless I am very much mistaken.
I would also like to consult my advisers about what the
French Delegation has said and therefore wonder, Mr. President, if
you would be kind enough to let us have a coffee break.
27. The President: I had not understood the Representative
of the USSR to say that he wanted to have a break, but if there is no
objection, we can have a short one, until 11 o'clock.
- RECESS -
28. The President: The discussion continues and, as I said,
I hope we can come to a vote as soon as possible if the Council is
ready to vote. I understand the Representative of Czechoslovakia
wanted the floor.
29. Mr. Svoboda: After the consultation, permit me to
propose deferment of the Council's decision until 10 August 1971.
Thank you.
30. The President: Is that proposal supper ted? Supported
by the Soviet Union. Is there discussion now on the proposal that
the Council's decision on this question be deferred until the 10th of
August? The Representative of Tunisia.
31. Mr. El Hicheri: Mr. President, I suppose the statutory
majority rule will be applied?
32. The President: All decisions of the Council on this
case require 14 votes to pass. The Representative of the United Arab
Republic.
33, Mr. El Meleigy: Before we vote on the proposal, could
I know how many Council members will benefit from deferment until the
10th of August?
34, The President: Perhaps when they vote they will indicate
that.
35. Mr. El Meleigy: If some Council members were in a
position to give an opinion on the point it might be helpful.
36. The President: I have some speakers on my list. The
Representative of Nigeria.
Annex 8
C-Min. LXXIV/6 (Closed) - 188 -
37. Mr. Olaniyan: Just a small question. Could I be told
whether the deferment refers only to the voting, not th~t on August
10th we are again going to embark on this question?
38. The President: I understood that the intention of the
of Czechoslovakia is that the taking of the decision
As I explained yesterday, in any case the hearing has
Representative
be postponed.
been closed, so we cannot return to it. The Representative of the
Congo.
39. Mr. Ollassa: I wish to explain what I said yesterday,
now that we have a formal proposal. I said yesterday that what we
are aiming at is fair treatment for the two States, and deferment for
more than a week could be something that favours one State more than
the other. I think, however, that our calculation was not good because
it seems that one of the States asked for four weeks. whereas according
to my calculations it was two. In any event, Mr. President, I believe
I must say this now: for me to support deferment there would have to
be many members of the Council who would have difficulty in deciding
today, because more and more I have the impression that what the Representative
of Tunisia said yesterday is true - these are evasive
tactics. Yesterday we could have decided on deferment; the conditions
were present; everyone was almost ready to agree to deferment, when
suddenly we became aware that no one was making a proposal and at that
moment I changed my mind and took up again my initial position, which
was that we should decide. I came here this morning with the same
feeling. Now we have this new proposal, I believe there must be
extraordinary or exceptional reasons, or in any case wide support,
before my delegation could agree to it. This time I shall not join
with the majority, because I find that this deferment has not been
requested for good reasons; for those we must have the verbatim and
have it for a fairly long time. What other reason could there be for
deferment? To obtain instructions? - we have had this problem before
us for two months, Mr. President, and in my opinion our instructions
are not going to be influenced by some example or other that has been
given now by way of illustration.
I shall therefore abstain in this vote, in full
knowledge of the fact that an abstention is very important in a vote
on which the statutory majority applies. Thank you.
40. The President: The Representative of Tunisia.
41. Mr. El Hicheri: I have the same concern as the Representative
of the People's Republic of the Congo. In all honesty -
especially as the proposal comes from my friend, the Representative
of the Czechoslovak Socialist Republic - I do not believe a deferment
of ten days can be of any use at all. I do not think it can serve
either of the parties or the interests of the Council. I do not think
it can serve even those who have asked for it, because either administrations
are not informed, in which case they must have all the
documents and that will certainly take more than ten days - perhaps
a minimum of two months - or else administrations have had time to
come to a conclusion on the problem before us - the competence of the
Council. I said yesterday that I thought it would have been possible
for them in twc months to form an opinion on the subject.
Annex 8
- 189 - C-Min. LXXJ.V/6 (Closed)
For these reasons, Mr. President, I cannot support the
proposal made by the Representative of the Czechoslovak Socialist
Republic and supported by the Representative of the Union of Soviet
Socialist Republics. I believe it was made in good faith, but I do
not think that in practice it can serve the interests of the Council.
That is my opinion. Perhaps there will be a proposal for a longer
deferment, but that is another problem. Thank you.
42. The President: Is there further discussion before we
go to the vote? Then I will take a vote on the Czechoslovak proposal
that the decision of the Council on this question be deferred until
the 10th of August. Those in favour please raise their hands.
Opposed. Eight in favour, no opposition, but of course 14 votes have
not been obtained,i and so the proposal has failed. Any recorded
abstentions? - Congo, Brazil, Spain, Mexico, Uganda, Senegal, Norway,
Indonesia, Canada, Argentina.
We continue, then, with the discussion with a view to
taking a decision now. Is there any discussion before I proceed with
the questions? By the way I will read the q uestions - all of them -
before we start to vote. The Representative of Australia.
43. Dr. Bradfield: Mr. President, before the vote is taken
I would like to make a statement explaining the Australian vote.
The Australian Delegation appreciates the difficult
circumstances existing at the present time and the background against
which this dispute between Pakistan and India must inevitably be considered.
For this reason we have been more than ever concerned to
approach the matter before us now as one dealing solely with the
Preliminary Objection, and particularly with the legality of it.
We are in a position to state our opinion in a vote
taken on this matter today. We wish to reiterate the point made by
the Representative of the United States that this Council is a Council
of States, not of individuals, and the opinion of Australia that the
Council has competence to consider the dispute is an opinion of
Australia as a State after consideration of the papers submitted by
India by appropriate legal authorities in Australia. I, as Representative
here in the Council, may not have the qualifications to
express a legal opinion, as may be required in a matter of this
nature, but I do consider that I have the ability to determine whether
or not the statements made, and made so ably, by the Counsel for India
have contained any significant new arguments in addition to those which
are contained in the original statement and to advise the appropriate
organs of my Government accordingly. In consequence of this, the
vote to be cast by me today is a vote of Australia based on legal
opinion. I am afraid that I could not agree with the opinion of India
that a decision taken by Council today would be vitiated. If I did so
I would not cast a vote.
Annex 8
C-Min. Lxxrv/6 (Closed) - 190 -
44 . The President: Is there further discussion? I referred
to several questions. Really there are four and I will read all of
them so that you see why I am making the distinction. It has to do
with the fact that three instruments are involved and the voting on
different cases is different. Some Council Members can vote in certain
cases but not in others.
Concerning Case No. 1 there will be three questions
and therefore three votes. The basic propositions are the following;
they are the ones that India has brought forward:
The first is that the Council has no jurisdiction
to consider that disagreement in Pakistan's Application
insofar as concerns the Convention on International Civil
Aviation. In other words, the Council has no jurisdiction
in what regards the Convention.
The second is that the Council has no jurisdiction
insofar as concerns the Transit Agreement; there only States
parties to the Transit Agreement can vote, except India.
The third question i~ that the Council has no
jurisdiction insofar as concerns the Bilateral Agreement
between India and Pakistan.
I hope it is clear. It is always the same question, in one case for
the Chicago Convention, in the second case for the Transit Agreenent,
in the third case for the Bilateral Agreement, and that would complete
the decision regarding Case 1.
Regarding Case 2, the proposition is that the Council
has no jurisdiction to consider Pakistan's Complaint, the word
'Complaint' being taken from Articles 1 and 2 of the Rules for the
Settlement of Differences. So these are the questions which I shall
put in due course. I will ask if there is any more discussion. The
Representative of the United States.
45. Mr. Butler: A question for clarification, Mr. Preside t.
If I understand correctly, the jurisdiction of the Council has been
invoked by Pakistan as far as the Chicago Convention and the Transit
Agreement are concerned under the Application and then under the
Complaint. Could you clarify for me whether Pakistan invoked the
terms of the Bilateral Agreement in their Application and Complaint
and has the jurisdiction of the Council been requested by Pakistan on
that issue?
Annex 8
- 191 - C-Min. LXXIV/6 (Closed)
46. The President: That is the wey the Legal Bureau read the Application
of Pakistan: the Bilateral Agreement was mentioned in the Application but since a
representative of Pakistan is here I will ask him.
47. Mr. A.A. Khan: Mr. Chairman, I must confess my own ignorance and
shortcoming, but so far as I recall - and perhaps the documents would show - we
sought relief under the Convention and the Transit Agreement and we quoted the Bilateral
Agreement in order to strengthen our case. This is perhaps the position.
48. The President: Dr. FitzGerald.
49. Dr. FitzGerald: Mr. President, we in the Secretariat had examined the
relevant documentation as best we could in order to find out how the questions could
be framed as simply as possible and when we came to page 8 of Pakistan's Application
we found a paragraph 8 which said that the decision of the Government of India is
arbitrary, unilateral and illegal and is in violation of the Conventions (plural) and
Agreements (plural). Then further down, when we get to Section F (Reliefs Desired),
we find - and I quote:: "The Government of Pakistan seeks, among others, the following
reliefs by action of the ICAO Council: (1) To decide and declare that the decision
of the Government of India suspending the overflights of Pakistan aircraft over the
territory of India is illegal and in violation of India's international obligations
under the Convention and Agreements" (plural) "aforesaid.", and we took it that the
Bilateral Agreement of 1948 was included. Similar material is also found in the Complaint.
This does not mean that the Secretariat holds any brief for inclusion or
exclusion; it is just a question of trying to ascertain what were the issues to be
put to vote. Thank you, Sir.
50. The President: Is the~e further discussion before I proceed with the
vote on the first point? The Representative of India.
51. Mr. Gidwani: Merely to clarify, in the spirit of helping, sub-paragraph
8 of Pakistan's Memorial also mentions that a disagreement has arisen between
the Government of Pakistan and the Government of India relating to the application
of the provisions of the Convention, the International Air Services Transit Agreement,
and the Bilateral Air Services Transit Agreement of 1948, and throughout they have
referred to all three documents, the Bilateral Agreement along with the other two.
Thank you.
52.
53.
The President: Thank you. The Representative of Pakistan.
Mr. A.A. Khan: Sir, the documents are quite clear.
54. The President: All right, then I will proceed with these four questions.
The first proposition is....... The Representative of the Congo.
Annex 8
C-Min. LXXJ.V/6 (Closed) - 192 -
55. Mr. Ollassa: For a clarification, Mr. President. In Case No. 2 only
the Transit Agreement is involved? - because I cannot participate on what concerns
the Transit Agreement.
56. The President: Yes, in Case No. 2 it is only the Transit Agreement.
The Representative of India.
57. Mr. Gidwani: Mr. President, I thought that even in Case No. 1 the
second issue which you raised relates to the Transit Agreement, does it not?
58. The President: The Representative of the Congo was asking about Case
No. 2. I hope I will be clear each time. So, the first question, on which all Council
Members except India are entitled to vote, is the following proposition of India: that
the Council has no jurisdiction to consider the disagreement in Pakistan's Application
in so far as concerns the Convention on International Civil Aviation. Those who agree
with that please raise their hands. The Representative of India.
59. Mr. Gidwani: Mr. President, surely that will not be the way the vote
will be taken. The Council has to decide it as the preliminary issue and in either
case the statutory majority will be necessary. It is not that India is proposing something
and if it does not receive 14 votes, India loses. Any proposal you make here
has to receive 14 votes. That is rey- understanding.
60. The President: Yes, but the question is this: India has come with a
basic contention to the Council; the contention is that the Council has no jurisdiction.
Now I have to ask those who agree with this contention and, as you say, 14 votes are
necessary. If there are not 14 votes in agreement with that contention, the Council
is rejecting the contention.
61. Mr. Gidwani: That is not the way a vote can be taken. After all, you
have to settle it as a preliminary issue and we have raised a preliminary objection.
You have to say "Has the Council jurisdiction?" or "Has the Council not jurisdiction?"
and each proposal must receive a statutory majori~y. It is not that India is proposing
something and you have rejected it. It is Pakistan saying that the Council
has jurisdiction and that also will be subjected to a vote.
62. The President: No, I am sorry, Pakistan has not said anything. Pakistan
has, of course, replied to India but the Council was working on the basis that it
had jurisdiction. India comes with the Preliminary Objection: you have no jurisdiction.
The Council has to decide on this position of India. If the Council does not accept it,
we continue as we were.
63. Mr. Gidwani: You have to settle it as a preliminary issue and you have
to determine by 14 votes, a statutory majority, that you have jurisdiction. You cannot
do it otherwise.
64. The President: The Representative of the Congo.
Annex 8
- 193 - C-Min. LXYJ.V/6 ( Closed)
65. Mr. Ollassa: Mr. President, the result would be exactly the same, but
I believe it would be well, nevertheless, to admit the justice of what the Representative
of India has said. It would be better for the Council to take the decision and
that this decision should be taken not by saying, if you will, "India is wrong." or
"India is right", but by saying "Has the Council competence or not?" I believe it
would be much better like that, Mr. President. The result is exactly the same, but
if this formulation pleases India, I believe it may please everyone here. The result
is exactly the same.
66 . The President: Well, I don't know whether the result is the same or
not. Really I personally only want a result. Which one it is is not for the Chair
to prefer, but I would not like to put questions in a way that will set a precedent
for future cases. That is the problem I see. As I see it, each time something is
brought to the Council, unless the Council agrees with that something, we continue as
we are. This applies to this case and would apply, of course, to the substance of
the case in the future, because otherwise I shall be asking the Council to take simultaneously
a positive decision and a negative decision, which I believe is rather
difficult. The Representative of Canada.
67. Mr. Clark: Before making a comment I would like to ask a question of
the Secretariat through you, Mr. President. Could I have the date and the text, because
it is extremely short, of the resolution of the Council setting a date for the
filing of the Indian Counter-memorial to the Pakistan Memorial?
68. The President: The text and the date? The date was the 8th of April.
The Secretary General will read the text.
69. The Secretary General: The text is the following:
"The Council:
(1) invites the two parties immediately to negotiate directly
for the purpose of settling the dispute or narrowing the issues;
(2) decides, subject to the consent of the parties concerned, to
render any assistance likely to further the negotiations;
(3) fixes at eight weeks the p eriod within which India is invited
to present its counter-mem orial."
70 . Mr. Clark: It would seem clear, at least to my Delegation, that by
adopting this resolution the Council was acting as if it had jurisdiction in this
case. If we now have a challenge to that jurisdiction, it would be, we would submit,
a question which would have to be upheld by the Council by a statutory majority, because
the Council has already, in adopting this resolution, acted as if it had jurisdiction
and now we have a challenge to the jurisdiction. So in my view there is no
question that the statutory majority required is to uphold the challenge to the jurisdiction
rather than to affirm the fact that the Council does have jurisdiction. Thank
you, Mr. President.
Annex 8
C-Min. LXXI.V/6 (Closed) - 194 -
71. The President: That is how I saw the issue and in non-juridical
language I said that we would continue as we were before the preliminary objection
was filed, unless by 14 votes the Council decided otherwise. The Representative of
Tunisia is next.
72. Mr. El Hicheri: Very briefly, I share your concern a little, Mr.
President. I agree with the Representative of the People's Republic of the Congo
when he says the result will be the same. That is my opinion too, but as this is
the first case of its kind, there is a risk of creating a precedent, as you have
underlined, and perhaps that should determine our action. It is really the only
important point here. Aside from that, I do not think there will be a great difference
if the question is taken one way or the other. Thank you.
73. The President: Thank you. The Representative of the United States.
74. Mr. Butler: Merely to say that we support the view of the Delegation
of Canada. We think it would have important implications for all of the work of
this Council if the proposition put forward by the Representative of India were to
stand. It would be impossible to try to take many decisions of the Council in both
directions, particularly because of the abstention problem. Thank you.
75. The President: The Representative of India.
76. Mr. Gidwani: Mr. President, I do hope that on grounds of expediency
you would not take a vote that I would really consider would result in a decision
which is entirely invalid. Article 5 of the Rules for the Settlement of Differences
is very clear. Clause (1) says: "If the respondent questions the jurisdiction of
the Council" - we certainly have questioned the jurisdiction of the Council in this
matter and we shall continue to do so for valid reasons already given - and Clause (4)
clearly says: "If a preliminary objection has been filed, the Council, after hearing
the parties, shall decide the question ...... ", the question of your jurisdiction.
You have to decide the question of your jurisdiction, not my preliminary objection .
You do not work on my preliminary objection; you decide the question of your jurisdiction
and to come to the conclusion that you have the jurisdiction you need the
statutory majority. Any other decision, Mr. President, would be really trying to
use the statutory majority rule in order to place us in an entirely unfavourable
position, for no rhyme or reason. The Rules are very clear, Mr. President.
77.
India.
tion to
Council
The President: I am not asking the Council to agree or disagree with
The question I am putting to the Council is that the Council has no jurisdic consider
the disagreement. That is all I want the Council to vote on: that the
has no jurisdiction. I want to find out how many agree that the Council has no
Annex 8
- 195 - C-Min. LXXIV/6 (Closed)
jurisdiction and for the reasons the Representative of Canada has just
mentioned, unless the Council decides now that it has no Jurisdiction,
we carry on as we were before the preliminary objection of India.
The Representative of India.
78. Mr. Gidwani: Has the Council jurisdiction or has it not?
Both must receive a statutory majority in any case. It cannot be that
by mere abstentions on the one proposition, the other does not stand.
79. The President: The Representative of the Congo .
80. Mr. Ollassa: Just to say, Mr. President, that I support
the opinion expressed a moment ago by the Representative of Canada
and by the Representative of Tunisia after what you have said, because,
in the final analysis, one could also say that India herself, in coming
here the first time, agreed that the Council was competent. At that
time she could have said "No, I am not going there, because it is a
court that is not competent." So there really is, as they say in
English, a "challenge".
81. The President: Is there more discussion? I regret -
and I am addressing myself to the Representative of India - that I
will proceed on that basis, but I am glad that the discussion has
taken place. That was the way I saw the question and I see that
Council Members as they have spoken now seem to agree that that is the
way it should be considered. So, I repeat, the first proposition is:
"The Council has no juris di ction to consider the disagreement in
Pakistan's Application in so far as concerns the Convention on International
Civil Aviation." Those who agree with that please raise
their hands. Those opposed, please raise their hands. No votes in
favour, 20 votes against. Any recorded abstentions? The United
Kingdom, Japan, Soviet Union, Czechoslovakia. Well, I think that
since there have been 20 contrary votes, the question of a positive
or negative decision has now been superseded. There are 20 votes
against, which means that there are 20 members who consider that
the Council is competent. The Representative of India.
82. Mr. Gidwani: Mr. Chairman, just to ask you to record
my statement that the manner in which the vote has been taken is not
correct and is not permitted by the Rules. Thank you.
83.
question.
The President: Thank you.
The Representative of India.
Now we go to the second
84. Mr. Malhotra: Mr. President, I don't want to raise
any matter of substance, but just to request a roll-call vote. The
first vote has already taken place and nothing can be done about it
now, but may I have a roll-call on the other questions?
Annex 8
C-Min. LXXJ.V/6 (Closed) - 196 -
85. The President: For the information of new Council
members, I am drawing a name to determine who is going to vote first .
On the second question only those States that are parties to the
Transit Agreement, except India, can vote. The question is: The
Council has no jurisdiction to consider the disagreement in Pakistan ' s
Application in so far as concerns the Transit Agreement.
86. Mr. Agesilas: Mr. President, so that it will be very
clear, as a roll-call vote is involved, in replying "Yes" one endorses
the negative position taken by India. Is that it? Then, to oppose
it you must say "No".
87. The President: Yes, those who agree that the Council
has no jurisdiction have to say "Yes", those who consider that the
Council has jurisdiction have to say "No". The first name is Lebanon ,
which is not here and is not a party to the Transit Agreement. Spain .
Spain is a party to the Transit Agreement.
88.
clear.
Lt. Col. Izquierdo: As y ou put it, it was not very
89. The President: Those who agre e that the Council has
no jurisdiction say "Yes". Those who think that the Council has
jurisdiction say "No". The Representative of the Congo.
90. Mr. Ollassa: Mr. President, I don't wish to complicate
matters for you, but in French it is difficult. Those who think the
Council is not competent should say "Yes" and those who think it is
should say "No".
91. The President: I could make it longer. Those who
agree with the proposition that the Council has no jurisdiction to
consider the Application under the Transit Agreement - I think this
is good in the three languages - say "Yes"; those who consider that the
Council has jurisdiction say "No". Spain was first and says "No" .
Will you continue reading, please.
92. Dr. FitzGerald:
Tunisia - No
United Arab Republic - no
United Kingdom - Abstention
United States of America - No
Argentina - No
Australia - No
Belgium - No
Canada - No
That is all, Mr. President.
Mr. President, Spain has said No .
Czechoslovakia - Abstention
France - No
Federal Republic of Germany - No
Japan - Abstention
Mexico - No
Nicaragua - not here
Nigeria - No
Norway - No
Senegal - No
93 . The President: Thank you. There are no votes "Ye s",
14 votes "No". 3 abstentions. The Council has therefore not a gre e d
with the contention that the Council has no jurisdiction regarding
the Transit Agreement as there were 14 votes against. The Re p re sentative
of Belgium.
Annex 8
- 197 - C-Min. LXXJ.V/6 (Closed)
94. Mr. Pirson: When you have put your third question, Mr.
President, may I speak before the vote?
95. The President: Yes, I will put it so as to be clear
and then I certainly will allow statements. The third question is
the same question except that it has to do with the Bilateral Agreement.
I will put it this way: Those who agree that the Council has
no jurisdiction to consider Pakistan's Application in so far as concerns
the Bilateral Air Services Agreement of 1948 between India and
Pakistan should vote "Yes". Those who are against that should vote
"No". The Representative of Belgium.
96. Mr. Pirson: I wish only to say that I am not convinced
that this question should be put to the Council and in these circumstances,
if you proceed to a vote, I shall abstain. I do not want to
go further, but really I have very serious doubts about the necessity
of putting this question to the Council.
97. The President: I asked the Representative of Pakistan
and he made a statement to the effect that the documents were clear.
I don't know whether he wishes to speak again on this question. As
Pakistan made the Application, it tells us how it considers the issue.
I have, however, other speakers and while the · Delegation of Pakistan
is consulting, I will give the floor to the Representative of
Tunisia.
98. Mr. El Hicheri: I am of the same opinion as the Representative
of Belgium; I have very strong doubts about this. It is my
impression that Pakistan has based its case on the Transit Agreement.
On reading the documents, I did not have the impression that the interested
party, Pakistan, came here to ask the Council to pronounce on its
competence in regard to the Bilateral Agreement. I did not have that
impression at all, Mr. President. I therefore wish to associate myself
very strongly with the doubts expressed by the Representative of Belgium.
Perhaps the Pakistan Delegation should be allowed a few minutes to
consult their Chief Counsel. He might be able to give us a clear
answer in this regard.
99. The President: Yes, I agree that we are in the hands
of Pakistan. It is the Applicant and if it now says that it is not
seeking relief under the Bilateral Agreement, India's point is no
longer of interest as far as the Council is concerned. The Representative
of the Congo.
100. Mr. Ollassa: I too am very reluctant to deal with this
question; in fact I shall not deal with it at all, because I do not
think the Council has to pronounce upon a bilateral agreement. I think
our field has to do with multilateral agreements and if we start
entering into bilaterals it is going to be very difficult. In any
case, I for one do not have authority to pronounce on a bilateral
agreement.
Annex 8
C-Min. LXXlV/6 (Closed)
101.
Nigeria.
The President:
- 198 -
Thank you. The Representative of
102. Mr. Olaniyan: Just to say that I share the view
expressed by the Representative of Belgium.
103. The President: Thank you. The Representative of France.
104. Mr. Agesilas: A few minutes ago I expressed our
opinion on this subject, but I think, nevertheless, that it would
probably be better for the Council not to pronounce on this point.
105. The President: Is the Representative of Pakistan ready
to speak now?
106. Mr. A. A. Khan: Mr. Chairman, I am grateful for the
suggestion that I should seek your indulgence to consult our Chief
Counsel on this point and I would appreciate it if a short time could
be given to us for that purpose. Thank you very much.
107. The President: I still have four speakers, but if the
Council agrees that we give the Delegation of Pakistan time to consult
on this particular point, it may not be necessary for them to intervene.
However, I will call them in the order I had them. The Representative
of Spain.
108. Lt. Col. Izquierdo: Very briefly, just to say that I
share the views expressed by the previous speakers on this particular
point and that I shall, of course, be obliged to abstain on it.
109. The President: The Representative of the United States.
llO. Mr. Butler: I still have the question I raised before,
whether we have been asked to come to any decision, and I also
question whether India addressed itself to the question of violation
of the Bilateral Agreement in its preliminary objection. In reading
the summary of Ground 1, it says there is no disagreement between
India and Pakistan relating to the interpretation or application of
the Convention or the Transit Agreement and no action by India under
the Transit Agreement. In other words, there are three questions, not
four. So even assuming that Pakistan had invoked it, if I am correct,
the fact that India has not questioned the jurisdiction of the Council
to deal with the bilateral issue is, I think, an added element.
lll.
Senegal.
The President: Thank you. The Representative of
Annex 8
- 199 - C-Min. LXXIV/6 (Closed)
112. Mr. Diallo: I know that in bilateral agreements the two parties
usually explicitly agree to submit any difference to ICAO, and when they have one
to submit, they must do it together - in other words, by common consent. I also
know that bilateral agreements are registered with ICAO so that it can follow their
application and perhaps be aware of the differences that can arise, but I believe
that in the present case I can say that it is not that the Council has not to express
an opinion on this particular point, but that it is preferable for the Council not to
do so.
113. The President: Thank you. The Representative of Uganda.
114. Mr. Mugizi: Mr. President, I would like to ask if this dispute regarding
the Bilateral Agreement has been submitted in accordance with Article XI of the
Agreement.
115. The President; The Delegation of Pakistan is seeking advice and I
think I will be informed in a few minutes about this. The Representative of Uganda.
116. Mr. Mugizi: Mr. President, is it something to be explained by Pakistan
or by the Secretary General?
117. The President: I think we have to know first whether Pakistan in its
Application has covered also the question of the Bilateral Agreement. The Representative
of Belgium.
118. Mr. Pirson: I do not think so, Mr. President. On your third proposition
I did not wish, a few moments ago, to say what the Representative of the United
States has said, but it is Icy" opinion also. No doubt the Representative of India
could enlighten us: has India challenged the competence of the Council in regard to the
Bilateral Agreement? If India has done so, does this mean that Pakistan requested the
Council's intervention in the framework of the Bilateral Agreement? I do not remember
exactly all the provisions of India's preliminary objection. If we find a contestation
on this point by India, can we ask Pakistan if it wishes, still on this point, the
Council's intervention? After that the Council will have to express an opinion. Does
India wish the third proposition to be submitted to the Council?
119. The President: I think the Secretary General will explain.
120. The Secretary General: I refer to paragraph 39(d), page 25, of the
preliminary objection submitted by India and wish to read the original text, in English,
presented by India: "The Council has no jurisdiction to handle any dispute under a
Special Regime or a bilateral agreement."
121. The President: Thank you. The Representative of Tunisia.
Annex 8
C-Min. LXXIV/6 (Closed) - 200 -
122. Mr. El Hicheri: Really, Mr. President, I do not see how we can
extend the affair. The Government of Pakistan brought two cases before the Council;
this is very clear and, besides, was presented in that way. Case No. 1 relates to
disagreements between the two States in the sense of Clauses (a) and (b) of Rule (1)
of Article 1 of the Rules for the Settlement of Differences. Case No. 2 is a complaint
relating to the International Air Services Transit Agreement in the sense of
Rule (2) of Article 1 of the Rules. Now, Mr. President, the case is being extended.
It is very clear that at no point did the Government of Pakistan bring before the
Council a question concerning the interpretation, or misinterpretation, of the Bilateral
Agreement. It came before the Council on the basis of the Chicago Convention and the
Transit Agreement, and from the beginning the question has been presented in this way:
Case No. 1, Case No. 2. There has never been a Case No. 3 and~ fortiori a Case No. 4.
123. The President! The question is not as simple as that. According to
the Secretariat, Case No. 1 has three parts, but it could have only two and we are
going to learn which from Pakistan. Case No. 1 covers the Convention and the Transit
Agreement; the question now is whether or not it covers the Bilateral Agreement. The
Representative of Tunisia.
124. Mr. El Hicheri: I have not finished, Mr. President. What I said is
in a Council document that has been distributed, C-WP/5372. I was not speaking from
memory; I was reading something before me. Now in Case No. 1 it is a question of the
Chicago Convention and the Transit Agreement, in Case No. 2 a question of the Transit
Agreement. That is how the question has been presented to us from the beginning. It
is another matter if Pakistan now wishes to add something else, but I am basing myself
on what the plaintiff has presented so far.
125.
explain.
The President: We have the delegation of Pakistan here and they will
126. Mr. A.A. Khan: Thank you very much, Mr. President. I apologize for
this slight confusion, which is entirely due to my own shortcomings. I have sought
and received clarification and I fully confirm the understanding which has been
explained by the distinguished Representative of Tunisia. We did not seek relief
under the Bilateral Agreement and we did not argue on that point either. As I stated
earlier, this Agreement was mentioned to reinforce our case.
127. The President: Thank you. That is clear now and will, of course, be
entered in the record. The Representative of India.
128. Mr. Gidwani: I really find it rather strange that at this late stage
we are being told what Pakistan intended or did not intend. Your first memorandum on
this very subject, Mr. President, said that Pakistan has aired, in regard to Case No. 1,
a disagreement under the Chicago Convention, under the Transit Agreement and under the
Bilateral Agreement. Pakistan has said so throughout in its Application. We took the
trouble, therefore, of refuting that and saying that the Council has no jurisdiction.
Now we are told that Pakistan does not wish to raise this after all the pleadings and
after all the arguments. I seek no remedy from you for this. I merely wish to point
out the manner and the method in which Council has been functioning. Thank you and
I do consider it entirely improper, as I said.
Annex 8
- 201 - C-Min. LXXJ.V/6 (Closed)
129. The President: Well, as I explained before, the Secretary General
a:f'ter reading the text was also of the opinion that the Bilateral Agreement was
included. Now 1t has been explained in a different way. The Representative of India.
130. Mr. Gidwani: We were told that the first Case represents this, this
and this and everyone had the documentation. Now people are getting surprised as to
what was before them. This comes from not having the verbatim; this comes from not
having the records; · this comes from giving a snap decision in the offhand manner in
which the Council is giving it. Thank you.
131. The President: Thank you. The Representative of Belgium.
132. Mr. Pirson: I understand that India is objecting to the procedure.
In these circumstances, does India insist that the question be put? - because if India
insists that the question be put, it can be put.
133. The President: I think we should not · complicate matters. The Representative
of India was referring to the manner in which this matter was being
handled. That is how I understood his intervention. The Representative of India.
134. Mr. Gidwani: Yes, Mr. President, you are quite right. I am not suggesting
that any matter be put or not put because, as I said, all matters being put to a
vote and all decisions being taken are vitiated. So it would not help very much if I
put to a vote another matter, the decision in respect of which would also be vitiated.
135. The President: We go now to the next question, concerning Case No. 2:
that the Council has no jurisdi ct ion to consider Pakistan's Complaint. The Complaint
has to do with the Transit Agreement; therefore only those States that are parties to
that Agreement, except India, are entitled to vote. I will ask those who think that
the Council has no jurisdiction to consider Pakistan's Complaint to so indicate by
saying "Yes" and those who disagree with that to say "No", as in the vote we took
before. I will now have to draw the name for the first to vote. Canada is the one and
is a party to the Transit Agreement. Dr. FitzGerald, wili you start calling the roll,
please?
136. Dr. FitzGerald:
Canada
Czechoslovakia
France
Federal Republic of Germany
Japan
Mexico
Nicaragua
Nigeria
Norway
Senegal
That is all, Mr. President.
- No
- Abstention
- No
- No
- Abstention
- No
- not here
- No
- No
- No
Spain
Tunisia
United Arab
Republic
United Kingdom
United States of
America
Argentina
Australia
Belgium
- No
- No
- No
- Abstention
- Yes
- No
- No
- No
Annex 8
C-Min . LXXIV/6 (Closed) - 202 -
137. The President : Thank you . There was one vote in fa vour. 13 votes
against and 3 abstentions. The Representative of the United States .
138 . Mr. Butler : Mr. President , I should like to explain why I voted
against the jurisdiction of the Council in Case 2. Case 2 involves a complaint
brought pursuant to Article II , Section 1 of the International Air Se rvi ces Transit
Agreement . Article II , Section 1 provides the jurisdiction of the Council in cases
in which a Contracting State deems that action by another Contracting State , under the
Transit Agreement , is causing injustice or hardship to it - that is, it invoke s the so called
equity jurisdiction of the Council, when a Contracting State is acting pur suant
to the Agreement, that such action causes injustice or hardship . On the basis
of the pleadings and oral arguments , the issue before us does not appear to us to be
a question of action by a State pursuant to the Transit Agreement , but of whether the
action is in conformity or fails to conform to its provisions . This is a case under
Article II, Section 2 involving interpretation and application of the Agreement and
thus we supported the view that the Council had jurisdiction in Case 1. It is , in o ur
mind, improperly brought under Article II, Section 1 . Article II , Section 1 is not
applicable here and therefore in this Case could not confer jurisdiction on the Council .
139. The President : I was going to say, before the intervention of the
Representative of the United States,that with this decision, of course , the contention
that the Council has no jurisdiction has not passed and therefore we are where we were ,
in other words, we shall continue considering that the Council has jurisdiction and
will continue with the Case. The Representative of the Congo .
140. Mr. Ollassa: Mr. President, I do not understand. Is the majority of
the Council always the same, even when there are States that are not parties to an
agreement? That surprises me, because they cannot vote. How can the majority be the
same? I really do not understand. There are nineteen States that are parties to an
agreement ; the statutory majority should therefore be based on 19 . We cannot base
the majority on States which are not parties to an agreement and by virtue of Article
66 of the Convention cannot participate in a vote . That is incredible .
141. The President: I said nothing about the statutory majority , although
I said at the beginning of these proceedings, as early as February or March , that
according to the legal opinion 14 votes were necessary in any vote taken on this sub ject
. In this case it does not matter because there was only one vote in favour of
the contention. So the contention has not been approved by the Council and we continue
to have jurisdiction. That is all I am going to say and I suggest that we do
not need to discuss at this moment what the statutory majority is . The result is
the same . Any other explanations of vote? The Representative of the United Kingdom .
142. Air Vice Marshal Russell: I should like to record that I abstained
from voting as being unable to participate at this time in a decision which turns
entirely on points of law . I would have been in the same position on any p roposal for
a decision on a question of substance today . I am not ~ Icy'self, sufficiently advised
on the merits of the legal arguments which have been presented , although of course
I accept that other Representatives are so prepared . Thank you , Mr. Pr esident .
Annex 8
- 203 - C-Min. LXXIV/6 (Closed)
143. The President: The Representative of Nigeria.
144. Mr. 0laniyan: This is not to explain nzy-vote. I think the question
that has been raised by the Representative of the Congo is an important one ••••
145. The President: I am going to interrupt you because you are out of
order; we have not documented the subject. If the Council wants documentation we
will provide it. I would not like now to engage in an hour's discussion on a question
on which I said something some time ago. The Representative of Senegal.
146. Mr. Diallo: Mr.-~1President, nzy- delegation voted for the competence of
the Council to deal with the three questions put to us. This in no way prejudges the
position we shall take on the substance of the disagreement. I did not believe I had
to abstain to make clear nzy- Government's neutrality towards the two countries that have
this disagreement, because we think it is more than a question of being on one side or
the other. It is a question of saving the truth, of respecting the law and jurisprudence
already established by the Council. If the Council declared itself incompetent
on this question of overflight which two Contracting States are contesting, we think
that in future it would no longer be sure on what it was competent and on what it was
not. Therefore, Mr. President, unilateral cancellation in the circumstances explained
to us in the statements of the two parties to the disagreement does not appear to us
to be outside the framework of the Convention, because a certain number of Articles in
the Convention explicitly reject the idea of discrimination. That is why, Mr. President,
nzy-delegation voted to support the competence of the Council on the three questions put
to us.
147. The President: Thank you. The Representative of Spain.
148. Lt.Col.Izquierdo: Mr. President, I should like to explain briefly the
position of nzy- Government on the question we have been dealing with these past few
days. We have always considered that problems of this nature, which directly involve
the interests of States, deserve special attention and very careful consideration
from the Council. We are satisfied that these aspects have been taken care of in the
course of our debate. We have considered with the greatest care the preliminary objections
submitted by the Government of India, as well as the reply of the Government of
Pakistan, and have had the opportunity to hear, during these meetings, the thoughtful
presentations made by the distinguished Legal Counsels of the two Governments. For a
variety of reasons which have emerged in the course of our debate, we consider that
the ICA0 Council does have jurisdiction in this case and have voted accordingly, without
this action in any way prejudging the attitude we may take on the substance of the
problem.
149. The President: The Representative of Indonesia.
150. Mr. Karno Barkah: We have voted positively for the competence of the
Council, but this does not prejudge our position regarding the substance of the matter,
Mr. President. Indonesia has always had good relations with both India and Pakistan
and will continue to have and we are doing our best to maintain strict neutrality and
fairness in our decision between the two parties.
Annex 8
C-Min. LXXIV/6 (Closed) - 204 -
151. The President: Any other explanations of vote? On the question on
which I interrupted the Representative of Nigeria, the Secretary General will circulate
a memorandum giving all the reasons why this is so and if the Council, at a later stage,
wis~es to question that, it will have an opportunity to do so. I remember, however,
having explained the situation when we started on this question and the Secretary
General will be able to provide background information on why it is so. The Representative
of India for an explanation of vote, I understand, or rather an explanation of
the situation.
152. Mr. Gidwani: Mr. President, I have no explanation of vote; in fact I
didn't vote. There is only one point I wanted to mention to you: that one should take
these decisions sportingly. Unforttmately I at the moment am not taking them sportingly,
because I felt there was something wrong with the method and the manner. Quite apart
from that, I just wanted to thank you for all the courtesy, all the patience and all
the hearing that you have given me. I also wanted to inform you that having regard to
the manner and method in which the decision has been taken, both on procedure and substance,
it is the intention of the Government of India to move the World Court. Thank
you.
153. The President: Thank you. The Representative of Belgium.
154. Mr. Pirson: Mr. President, I would like you to distribute the exact
text of the three questions that were put to the Council and to repeat for us the votes
on them. I think I have them precisely, but in the first case we voted without a rollcall.
Could you in each case repeat the result of the vote The President: When you
say "distribute", would you like to see them in writing or do you want me to read them
now? Mr. Pirson: In writing, Mr. President. The President: Do you want the votes
now? Mr. Pirson: If you can combine them with the questions it would perhaps be
simpler. We all would then have an official text. The President: Yes, that can be
done, and if you will accept the English text, it can be done this afternoon. The
Representative of Czechoslovakia.
155. Mr. Svoboda: Permit me, Mr. President, to make a statement on my vote.
I abstained solely because I was unable to consult my administration during the debate
which developed during the last few meetings on matters of legal importance.
156. The President~ The Representative of Tunisia.
157. Mr. El Hicheri: I should like to have a clarification from the Representative
of India. I think he said something very important and perhaps certain
States here can be informed. If I tmderstood correctly, the Government of India intends
to appeal to the International Court of Justice. Is it on the decision taken by the
Council today concerning its competence or on the substance? I should like to have a
clarification on this point because I may have to inform my Government, as it is a
rather important development. I do not know whether he said exactly whether the appeal
would be on today's decision by the Council or on the substance, but I understood that
India would appeal - or at least intended to appeal - to the International Court of
Justice on the manner in which the Council interpreted its own competence .
Annex 8
- 205 - C-Min. LXXJ.V/6 (Closed)
158. The President: It is up to the Representative of India to reply if
he so wishes.
159. Mr.Gidwani: Mr. President, the question of substance does not arise
because the substance has not been discussed here. As I mentioned, we shall , go
to the International Court of Justice on the decision taken here today. Thank .you.
160. The President: The Representative of Canada.
161. Mr. Clark: Only an explanation of vote. Canada, like many other countries
represented here, has excellent relations with both India and Pakistan. However,
we were concerned here today strictly with a point of international law and on
that issue, and that issue alone, Canada was of the view that the Council of this
Organization has Jurisdiction. We found that for this reason, on a strict point of
international law, we could not support the preliminary objection.
162. The President: Thank you. The Representative of Argentina.
163. Com. Temporini: As other delegations have said, our country has very
amicable relations with the parties in this case we are considering, but in international
relations Argentina has great respect for law and for the provisions of international
agreements. When the pertinent documentation was received from India, we
immediately sent it to our Government, which has considered it and sent us instructions.
The position we took in the vote does not prejudge in any way the substance of the question.
164. The President: The Representative of Tunisia.
165. Mr. El Hicheri: As there have been several explanations of vote, all
having to do with the relations members of the Council have with the two parties, I
should not like to lose this opportunity to do the same. Of course, it is unnecessary
to say, Mr. President, that we have very good relations with the two parties, and,
addressing eyself particularly to India, I may say that these are not platonic words.
At a time when India was very gravely threatened and many countries failed in their
obligations, Tunisia was one of the few to speak up for what it considered just. But,
Mr. President, this question should not be considered from the standpoint of our friendship
for one country or the other. It must be considered from the standpoint of law
and of the interpretation of existing texts. In any case, the vote today, as several
members of the Council have emphasized, bears only on a point of law, a question of
form on the competence of the Council, and I believe it is inadmissible to interpret
it as an indication of friendship or hostility towards one party or the other. This
vote must be interpreted as a legal decision by the Council on a question of form.
At any rate, that was the intent of our vote.
166. The President: The Representative of the Congo.
Annex 8
C-Min. LXXIV/6 (Closed) - 206 -
167. Mr. Ollassa: We too have excellent relations with the two parties.
We came here only to decide a question of law and I wish to say immediately that
the decision we took on this question has nothing to do with any solution that may
be given to the substance of the problem. We think, and I believe we shall continue
to think, that it is in bilateral negotiations that the two States in question will
find a solution for all their problems.
168. The President: The Representative of Pakistan.
169. Mr. A.A. Khan: Mr. President, I wish to take this opportunity to
thank you,Sir,the Secretariat and particularly the delegates who have been so generous
in extending and reiterating their friendship for my country. We came to this august
body in a spirit of humility, in a spirit of accommodation, in a spirit of goodwill.
M¥ Government does not consider the decision of this august body as a victory or a
defeat for any State. It is our conviction that it is a victory for the Council, for
this august body, for the responsibilities which this august body has accepted and
reaffirmed. As Representative of Pakistan, I do wish to assure you, Mr. President, and
distinguished delegates, that it is our intention to continue appearing before this
Council in the same spirit, adhering to the Convention, adhering to the internationally
established procedures, laws and conventions. With these remarks on behalf of my delegation
I do wish to reiterate, once again, our thanks and our gratitude for the courtesy,
for the kindness and for the consideration that all the Representatives, the
Chairman, and the members of the Secretariat have extended to us. Thank you very much,
Sir.
170.
Union.
The President: Any other statements? The Representative of the Soviet
171. Mr. Borisov: I abstained from voting on the first case because I was
not given time for consultation with the competent organs of my Government. I request
that this be recorded in the minutes. Thank you very much.
172. The President: Thank you. That will be done.
173. Dr. Bradfield: I presume that the decisions of the Council in this
matter will be formally communicated to the representatives of the Governments of
India and Pakistan and I suggest, Mr. Chairman, that when that is done, the point
recently made by the Representative of the Congo be followed and that we reiterate our
invitation to the two parties to make progress towards a solution by negotiation.
174. The President: Thank you. Any further points? I would like to remind
the Council that, because of this decision, the time-limit which ceased to run when
India deposited its Preliminary Objection, begins to run again as of today. Is there
anything else on this question? The Representative of Senegal.
175. Mr. Diallo: Just to clarify our ideas, Mr. President. When will this
period which begins to run again today come to an end?
Annex 8
- 207 - C-Min. LXXIV/6 (Closed)
176. The President: The original deadline was the 11th of June and we
received the Preliminary Objection on the first of that month. India knows the
dates. The Representative of India.
177. Mr. Gidwani: Mr. President, as I mentioned to you, we propose to go
to the International Court of Justice and we will see legally whether or not a countermemorial
has to be filed. Personally I am of the view that no further proceedings of
the Council on this matter are possible. As I said, we will go to the International
Court of Justice. However, this is a matter which the Council separately, and the
Government of India separately, will certainly examine.
178. The President: Thank you. I repeat that the deadline was the 11th of
June and we received the Indian Preliminary Objection on the 1st of June, in other
words there were ten days more. So the deadline will be ten days from today. Today
is the 29th, so I think it will be something like the 8th of August. The Secretary
General will have to determine it. The Representative of Senegal.
179. Mr. Diallo: Then it is in ten days that the period will expire. I
asked the question because my ideas are a little confused, Does the explanation the
Delegate of India has Just given mean that we shall not have the counter-memorial? -
because I cannot place the problem. Are we still in the framework of Article 84 of the
Convention which says that an appeal shall be notified to the Council within sixty
days? The Representative of India has notified us at this meeting, but what are we
to understand? I confess that I am a little lost, because we have not gone into the
substance of the question and one Government has already expressed its intention of
appealing to the International Court of Justice. How are t hings going to develop? I
should like to have your reply summarized in the note on the decisions which was asked
for a few minutes ago. That is not, of course, the "Summary of Decisions", but I
should like to have this point clarified at this meeting. Thank you, Mr. President.
180. The President: I think that this is a very serious business and that
it would not be desirable to ask India now exactly what it intends to do. I think all
the Council has to note now - it is only noting - is that because of the decisions
taken today, the time-limit has started to run again and that ten days from now India
has to present the counter-memorial, and we stop there. What happens next, what India
wants to do, is something we shall learn in time. The Representative of the Congo.
181. Mr. Ollassa: I think that after what the Representati-re of India has
said, it is useless to adopt an ostrich policy. What India has said it has said officially
and it will appear in the minutes. As it will appear in the minutes, one has
a right to ask what the situation is going to be. It therefore would be desirable,
at the very least, for members of the Council to have in a few days a memorandum on
the main possibilities there will be if India does, in fact, do what it has just said
it -will do. To do what you have just said, Mr. President, is really following an
ostrich policy.
Annex 8
C-M:in, LXXJ.V/6 (Closed) - 208 -
182. The President: I don't think it is an ostrich policy. What will
happen is this. We have to wait until, I think, the 8th or 9th of August, when the
deadline comes. The Secretary General will keep the Council informed of what happens.
If there is a counter-memorial from India he will circulate it; if there is no countermemorial
he will tell the Council so and will give further explanations if he can.
The Representative of the Congo.
183. Mr. Ollassa: Mr. President, I venture to tell you that your reply is
not a good one, and it is really a pity, because there are times when even a President
of the Council cannot know everything. A reply that would interest me would be
that of the Director of the ,Legal Bureau. I should like to know, for example, whether
an appeal by India to the International Court of Justice would take the case out of the
Council's hands. That is one of the questions that arise. If the reply is "Yes",
how can you still tell us "Well, the period starts to run again .....•. I shall call a
meeting if India does not file its counter-memorial ....... "? It is not worthwhile.
We want replies to all these little questions, eventual questions, which are less
eventual than you think, Mr. President, in the sense that we have an official declaration
by India which will appear in the minutes. I believe there are times when one
can be right, but also times when it is necessary to open the door to suggestions that
are made. Could we not , as you said just a moment ago in a manner I found at one and
the same time elegant and inelegant, have a memorandum on the question?
184. The President: At least a memorandum, yes. I think it is impossible
for the Secretary General to start making an analysis now of the different possibilities
and what the situation is. It is a very serious question; it has to be seriously considered.
As I have said, in ten days time we shall know what the situation is, perhaps
even sooner, because we may receive something from India today or tomorrow;
I don't know. So we will inform you at the latest in ten days' time. If there is no
reply from India the Secretary General will have to present the analysis you asked for
in announcing that there has been no reply from India. So you will have satisfaction.
What I wanted to avoid at this moment was putting the Secretary General in the position
of having to improvise answers on the different hypothetical possibilities. The
Representative of Senegal.
185. Mr. Diallo: In am really sorry to insist, Mr. President, but I would
like to have clarification. In the note requested by the Delegate of Belgium a few
minutes ago would it be possible at least to make reference to this official declaration
by India that it is going to refer the Council's decision to the International Co"W"t
of Justice? Where is that going to appear - only in the minutes we shall eventually
receive or in the Summary of Decisions? Mr. President, it is proper that our Administrations
know what is likely to happen, or most likely to happen, because we have heard
in conversations - and it is well known - that the International Court of Justice meets
twice a year. If this question was placed on its calendar and taken out of the Council's
hands, we should be left on the sidelines for a considerable length of time without
knowing exactly what was going to be done. If this question, however important it may
be, was placed on the calendar of the International Court of Justice, it might be considered
before the end of the century, but we should not know what we were going tc do
in the meantime. Our Administrations have only us to rely on for an exact idea of ~he
situation, and if we have not understood it, we cannot very well explain it.
Annex 8
- 209 - C-Min. LXYJ.V/6 (Closed)
186. The President: I think this is what will take place. It will be
many days before we have the verbatim minutes, but I am going to ask the Secretary
General to give first priority to the distribution of the Summary of Discussion for
today's meeting, because it is the meeting in which we have had the discussion, voting,
and decisions, and we shall have in that the points made by the Representative of India
today. So you will have that first and then the Summary of Discussion for Tuesday and
Wednesday will be coming out next week, at the latest on Friday, but this one you are
going to have earlier and you will have in it the information you want. I understand,
however, that in addition to that the wording of the questions and the results of the
voting will be distributed separately today in a flimsy. The Representative of France.
187. Mr. Agesilas: I am going to take the liberty of asking another question,
which, though a hypothetical one, the Secretariat may be able to answer more
easily. Supposing India's counter-memorial is received in about ten days, could the
Secretariat give us an indication, even a rough one, of how long it would take to translate
and distribute it and when, eventually, the Council would have to meet to deal with
the substance of the question? It is an eventuality on which it would perhaps be
interesting to have an indication and the Secretariat may be able to give one.
188. The President: Yes, that is something the Secretary General can answer,
I am sure.
189. The Secretary General: The Council realizes that we shall have averbatim
record of these last five meetings and we shall make every effort to publish it
in the three language s. We shall need at least three or four weeks for that. To
answer the question of the Representative of France, obviously we shall do our best to
distribute the counter-memorial in the three languages as soon as possible, but when
we shall be able to do so will depend on its length - how many pages, if there are
attachments,if there are such detailed arguments that it will take quite a time to translate
them. I can, however, assure the Council that this question will be given high
priority by the Language and Production Services, so that the material will be made
available to Council members.
190. The President: As far as a Council meeting to consider the matter, I
believe it is out of question to think in terms of the month of August. It will not
be in August and will probably be even after Labour Day. Unless India makes a very
short presentation, late September is the earliest we would be able to do anything.
The Representative of India.
191. Mr. Gidwani: Mr. President, talking of short presentations , I should
be very grateful if in the Summary Record which you are going to give today or tomorrow,
as you said, the statement made by me this morning, copies of which I handed to the
Secretariat, could be inserted in full. Thank you.
192. The President: We will attach it, because it is not normal to include
statements in extenso in the Summary. The Representative of Belgium.
Annex 8
C-Min. LXXJ.V/6 (Closed) - 210 -
193. Mr. Pirson: I a.m aware of the difficulties, but I wish the Secretary
General would give absolute priority to the distribution of the Summaries. I realize
that the minutes proper will take some time. I a.m thinking particularly of the translation
of the Summaries and I hope that we can have them at the beginning of next week
at the latest, rather than at the end of next week.
194. The President: Well, as far as todey's is concerned, yes, it will be
available early next week. The other four will be within the week and, as I said
before, the last of them will be out by Fridey, noon at the latest. Is there anything
else on this question.? Apparently not, so the Council has completed discussion
of this issue and at 2.30 this afternoon we shall meet for consideration of Resolution
39/1.
Annex 9
ICAO Council, 74th Session, Working Paper: Voting in the Council on Disagreements and
Complaints brought under the Rules on Settlement, ICAO Doc. C-WP/5465 (21 Oct. 1971)
Annex 9
C-WP/5465
INTERNATIONAL. CIVIL. AVIATION ORGANIZATION 21/10/71
COUNCIL - SEVENTY-FOURI'H SESSION
Subject No. 27: Convention on International Civil Aviation
LChicBIZO Conventio g
VOrJNG. IN THE COONCIL rn DISAGREEMENTS AND CCMPLAINTS
BRClJGHT UNDER THE RULES FOR THE SE"l'l'LEMENT OF DIFFERENCES
(Presented by the Secretary General)
References: 1.
2.
3.
4.
S.G~ Memorandum SG 699/71, 1o·August 1971
Chicago Convention, Doc 7300/4
International Air Services Transit Agreement
Draft C-Min. LXXII/20 (Closed) Part II
Introduction
1. Following the issue of the Secretary General's Memorandum of the abovementioned
subject to Council Representatives, No. SG 609/71 dated 10 August 1971,
a Council Representative requested the President of the Council that the subject
of that Memorandum be included in the Work Programme of the Council. The present
paper provides an analysis of the question of the majority required under the
Chicago Convention for a decision of the Council in cases of disagreements and
complaints brought under the Rules for the Settlement of Differences. The opinion
of the Legal Blreau in the matter is stated in paragraph 5, while paragraph 6
recalls the ruling given by the President in two cases recently.
Maj orit y re quired for decisions of the Council
2. (a) The Council is a body of which the number of members
is fixed: Article 50 of the Chicago Convention states:
11lt shall be composed of twenty-seven Contracting
states elected by the Assembly".
(b) Article 52 prow.des that:
11Decisions by the Council sha.11 require approval
.by a majority of its members".
(c) Consequently, at present the requisite number of
members is fourteen.
(d) It is to be specifically noted that the requirement
of Article 52 is that a decision of the Council as
a body is dependent on the number of its members,
and not, for example, as in the case of the Assembly,
on the number of "the votes cast" (Article 48,
para.graph ( c) of the Chicago Convention) .
OISTH26/10/71
Annex 9
C-WP/5465 - 2 -
Cases where some members do not vote
3, The number of votes cast on a given occasion would be less than
the number of members of the Council (namely, 27) in the following cases:
A - Where the Convention states that a member sha.11 not vote:
(i) Under Article 53 which provides:
"No member of the Council shall vote in the consideration
by the Council of a dispute to which it is a party".
~: Article 84 of the Convention contains an
identical provision.
(ii) Under Article 66(b) :
"Members of the .•• Council who have not accepted the
International Air Services Transit Agreement .•. or
the International Air Transport Agreement . • • shall
not have the right to vote on any questions referred
to the . • • Council under the provisions of the relevant
Agreement 11
•
(iii) Under Article 62 of the Convention:
"The Assembly may suspend the voting power .•• in
the Council of any Contracting State that fails to
discharge within a reasonable period its financial
obligations to the Organization".
B - Where it is impracticable for a member to vote because its
Representative is not present, or unable to be present, for
any reason, at the time of the .voting in the Council.
C - Where a member voluntarily decides not to vote: for example,
a Representative may declare that his State is not
participating in the vote; or he, without any such
declaration, simply abstains.in the voting,
Effect of not voti ng
4. The provisions of Articles 53, 84, 66 and 62 mentioned above contain
no reference, expressly or by implication, to Article 52. Consequently, they
do not produce any effect on the requirement specified in Article 52 that:
"Decisions by the Council shall require approval. by a majority of its members".
Therefore that Article is not subordinated to, and operates independently of,
the other four Articles mentioned.
Conclusion
5. In the opinion of the Legal Bureau -
A - Nothing in Articles 53, 84, 66 or 62 of the Convention
amends the figure of twenty-seven which is the membership
of the Council specified in Artie-le 50(a). In other words,
Annex 9
C-WP/5465
- 3 -
a member of the Council does not cease to be a member
of that body solely because its voting power is taken
away for some pa.rticul.ar occasion by a provision of
the Convention. (A State which is not entitled to vote
at a·particular session of the Assembly by reason
of the application of Article 62 or Article 88 does
not cease to be a Contracting state).
B - Nothing in the four Articles mentioned affects the
majority required by Article 52, such majority being
related to the number of members of the Council and
not to the members voting.
C - The foregoing conclusions would only be fortified
by the following provision of Article II, Section 21
of the International Air Services Transit Agreement\l)
which depends on the Chica:go Convention:
"section 2
If any disagreement between two or more
contracting states relating to the interpretation
or application of this .Agreement cannot be settled
by negotiation, the provisions of Chapter XVIII
of the above-mentioned Convention shall be
applicable in the same manner as provided therein
with reference to any dis ag reement relating to
the interpretation or ~~~lication of the abovementioned
Convention. 11 l 2 J ·
Ruling of the President
6. The only precedent relating to voting in the Council on
1) disagreements and 2) complaints,. brought under the Rules for the Settlement
of Differences, is that the President of the Council, in the meeting of the
Council held on 7 April 1971, gave the ruling that in the two cases before the
Council, Case No. 1 and Case No. 2, Pakistan versus India, 11the statutory majority
requirement in Article 52 for any decision taken 11 would be necessary. Replying
to two questions he confinned that the statutory major:i, ty would be required in
Case No. 2 also, (besides Case No. 1), and explained that the Rules could not be
amended to permit decisions to be taken on Case No. 2 by a majority of the Member
parties to the Transit Agreement because 11the majority was governed by the
Chica.go Convention, not by the Rules for the Settlement of Differences 11
: see
Draft C-Min. r.;xx.II/20 (Closed), Part II - DISCUSSION; para.graphs 6, 7, 8 and 9,
There were no further questions raised relating_ to procedure.
Action
7. This paper is presented for information.
{l ) Doc 7500
(2) underlining supplied for this paper.
- END -
Annex 10
ICAO Council, Règlement pour la Solution des Différends (1957, amended 10 Nov. 1971)
Annex 10
,.
I
I
l
i
f
..
~ . ' '
POUR LA
SOLUTION DES 0DIFF:£R.ENDS ',
Approuve pu le Conseil le 9 avril 1957
et amende le 10 novembre 1~7S•
CHAPITRE I
CHAMP o'APPLrtATION nu REGLEMENT
(
, Article premier \~
1) Les regles ehoncees aux Titres I et Il! s'~ppliquent au reglem1nt des
desaccords suivants survenus entre Etats cJntractants qui peuvent @tre soumis
au Conseil: -L 0
a) tout desaccord survenu entre deux ou plusieurs £tats contractants
a propos de !'interpretation ou de l':ipplication de la Convention r~lative
a l'aviation civile intemationale (appelee ci-apres "la Convention") Ft de
ses Annexes (articles 84 a 88 de la Convention); .•, , ' ,
b) tout desaccorc(survenu entre deux ou plusieurs Etats contractants
apropos de !'interpretation ou de l'application de !'Accord relatif au transit
des services aeriens internationaux (appele ci-apres ''Ac"cord de transit")
ou de !'Accord relatif au transport· aerien international (appele ci-apres
"Accord de transport") (Accord de transit, article II, section 2; Accord de
transpof1, article IV, section 3).
2) Les regles enoncees awe Titres II et III s'appliquent a l'examen de
toute plainte relative, soit a une mesure prise aux tennes de l'Actord de transit
par u~Etat partie a cet Accord et qu'un autre Etat partie audit Accord estime
injuste ou prejudiciable a son egard (Accord de transit, ap:ide 2, ~tiort 1),
soit a une mesure analogue iux termes de !'Accord de transport (article
IV, section 2).
Titre I
• CBAPITRE I I
D.ESA.CCORlJS
Arlidtl Z
Tout ttat contra.ctant (appele ci-apres "le de,mandeur") qui soumet · un
d&accord au Conseil awe fins de ~lement, doit introduire un~ req,u~te, a laquelle
est joint un m~moire contenant: -~-
'. ,,.
'
..
• .A.mffldemcnt d• l'ortJclc 29 approa•i por r. Coud le 10 111Wonbre 1975.
1
··----
Annex 10
,'
•• ,r
·:1,11, 1,f
,"''
'":';-"-_'
• - 167 -
a.) le nom du, demandeur et le nom de tout J;:tat contractant (appel~ \~·
ci-apres "le defendeur") avec lequel le desaccord existe;
~) le nom d'un agent autorise a agir pour le demandeur au cours de
!'instance, avec !'indication de son adresse, au siege de !'Organisation, a
- laquelle seront envoyees toutes les communications relatives a l'·affaire, y
compris la notification de.la date des seances;
11_:."-"\
C) un e,.xpose des falts sur Iesq uels la requete est fondee;
d) les pieces a l' appui;
. e) un expose de droit; '•\
f) • le remede sollicite par decision du Conseil en ce qui conce~e le~
div~rs points soumis;
--·~· g) une declaration atte~tant qite des 'negociations ont eu lieu entre
Jes parties pour regler le desaccord, mais qu'elles n'ont pas abouti.
. CBAPITRE I I I
SqrrE Qt{E COMPORTENT LES REQUETES
Article J
R8k · du.· Secreto.ireg eneral
. 1) Desre ception d'une requ@te, le Secretaire general doit:
·~ '
a) verifier si la requete est pr~ntee clans la forme prescrite a l'article
· 2 d-:dessus ei, au besoin, inviter le demandeur A suppleer a toute omission
· ·constatee clans l~ requete;
b) apr~s verification, notifier sans delai la reception· de la requ~te a
"toute~' Ies parties a l'instrument dont l'application ou !'interpretation est
en cause, ainsi qu'i tous les membres du Conseil;
c) communiquer au defendeur copie de la requete et des pieces a l'appui,
0en l'invitant a deposer un contre-memoire clans le delai fixe par le Conseir.
2) Copie de toutes les pieces ae procedure OU. autres documents soumis
ulterieurement par une partie au Conseil sera transmise egalement par le Secre.,.
taire g~neraJ. a l'autre ou aux autres parties en cause.
' ,l> 0
' \
2
\.,
Annex 11
ICAO Council, Cuba v. United States, Memorial of Cuba (11 July 1996)
Annex 11
INTERNATIONAL CIVIL AVIATION ORGANIZATION
ORGANISATION DE L'AVIATION CIVILE INTERNATIONALE
ORGANIZACION DE AVIACION CIVIL INTERNACIONAL
ME>KJJ,YHAPO,O.HAR OPrAHl--13AUl-1R rPA>K,O.AHCKOL/1 ABl--1AL.J,l,1l,1
~J~I ~JAJI <.)1..,...#1 Jo &:rao
INTERNATIONAL AVIATION SQUARE, 1000 SHERBROOKE STREET WEST, MONTREAL, QUEBEC, CANADA H3A 2R2
f ACSIMILE TEL.: (514) 288-4772 CABLES: ICAO MONTREAL TELEX: 05-24513 SIT A: YULCA YA
OFFICE TEL. :
SG 1490/96 30 September 1996
LE 6/3
To: Representatives on the Council
From: Secretary General
Subject: Settlement or Differences: Cuba and United States (1996)
By memorandum SG 1484/96, LE 6/3 dated 29 August 1996, I notified Representatives
on the Council that the Government of Cuba had submitted an application to the Council for settlement
of a difference with another Contracting State. The application, dated 11 July 1996, delivered to the
Office of the President of the Council on 16 July 1996, was submitted with respect to the right of
overflight of Cuban-registered aircraft over United States territory during their flight to and from Canada
and named the United States of America as the Respondent.
In accordance with Article 3, paragraph (1) (b) of the ICAO Rules for the Settlement of
Differences (Doc. 7782/2), I have notified all parties to the International Air Services Transit Agreement
and to the Convention on International Civil Aviation by State letter LE 6/3 - 96/82 dated 30 August 1996
that the above application has been received.
The application of the Government of the Republic of Cuba is set out in the Attachment.
(It should be noted that pages A-7, A-10 through A-13, and A-17 through A-20 o_f the attachments to the
application have been intentionally left blank, since legible copies of these pages have yet to be provided
by Cuba. These will be distributed as soon as received.)
Philippe Rochat
Attachment
I
I
(
Annex 11
JOB NO 2793
.Y' '
D. Gill, D. Wilson ,1 6 JUL \996
CUBA
CIVIL NlKION INSTITUTE OF CUBA
p'RESIDENT
Havana. 11 July 1996
1 ,m sending you hefewith -,he document "Complaint by the Republic of Cuba to the
Council of the lntemation•I Civil Niation 011',aniz.ation" ;vith th• aim of having it included as one of
the items for the next 149th Session of the Council.
Sir,
Accept, Sii; the assurances of my highest ~onsideration.
De Assad Kotaite
President of the Council of !CAO
Montreal ·
(sgd) Rogelio Acevedo Gonzalez
Major-General
President
,,
!~:
•.:_. ,,·
\·
Annex 11
r
I .I
A-2
Compl3int by the Republic of Cub3 to the Council of the lntemation:il Civil Ai:ition Organil..ltion
In accord3ni;e with the Jntem;uion:il Air Services Transit Agreement and particularly
Section I of i1s Aniclc II .:ind Ar1icle 5 of the Con\'ention on lntcm:ition.:il Civil A·i:ition, the Republic
of Cuba deems th.:it th~ actions l~cn by the Go\'ernment of the United St:ites in rcbtion to the right
to O\"Crfly its territory (first Freedom) (or Cuban-registered .:iircr.ift in their flights lo ,md from C;inad;i
.:ire causing injustice and h3rdship lo it. ll therefore requests rhat the Council of the Jntcm.itional Civil
A·i.:ition Qrg311iz:11ion ex:imine this discrimin:uory siruation and consequently thJt the Go\'emment · of
the United $1.;ltes correct such actions.
Jn keeping with the provisions of Article I (2) and Article 21 of the Rules for. the
Setdenrent of Differences, it is referring the present compk1int to the Council owing to the rcstricti\·c
and discrimin~rory unjust and detrimcnt:il actions being applied ag:iinst it by the Go\'cmmcnt of the
United States of America, as referred to in the preceding p:iragr.:iph, which violate the provisions of the
Con\'ention on lntcmation:il Ch·il A·i:ition OrJJniz.:ition and the International Air Services ·Transit
Agreement, to which both St:ites a.re parties.
The Republic of Cuba considers that these actions which have been applied ag~;nst ii
for O\'Cr 15 yc:irs arc unjust and illeg::il and arc causing gre::it hardship to Cuban airlines, since the route
that we are obliged to take. is not the shortest and most expedient, which significantly inc·reases· fuel
consumption, . raises operating costs in general and represents a major inconvenience for the passengers.
fn view of the fact that more than eight months have passed since the holding of the 31st
Session o_f the Assembly .and no result has been achieved in resolving this situation, we are referring
the present complain! to the Council of the International Civil Aiation Organization in keeping with
the provisions of the Rules for the Settlement of Differences since the complainant Party cannot go on
waiting, sine die, for a reaction from the respondent Party.
This pleading submitted to the Secretariat of the International Civil Aiiation
Organization on 16 July 1996.
-
Annex 11
I.
respondent.
A-3
- 2 -
MEMORIAL
The Republic of Cub:i is 1hc applicant and the United States· of America is t'he
2. The Republic of Cuba authorizes Mc Gabriel 1iel Capote as its legal represenr:uive: he
will be assisted by counsel and advocates whose names will be communicated lo the Council in
accordance with whal is established in Article 27 of the Rules for the Settlement of Differences. All
comtnunic:uions related lo the c.isc will be sent lo the Consulate of the Republic of Cuba in the city of
Montreal located at 141 S Pine A·e.; they will have lo be sent with sufficient prior notice lo allow its
representatin:, counsel and advoc:,1es to travel to the city of Mon1real in time.
3. The Republic of Cuba h.is complied strictly with what is established in the Jnrcn1ational
Air Services Transit Agreement and it ~as :icted in acc.ordance with what is_ ~lated in Article 5 and
Article 44 of the Conven1ion on Intemalional Civil A 1ia1ion and, in particul:ir, with what is slated in
subparagraph (g): "A-oid discrimination between contracJing Stares".
4. Cuban airlines, in their flights bound for Canada, have repeatedly requested from lhe
competent authorities of the United States of America the corresponding permission to overfly their
territory on the published international routes ,vhich are more convenient for these commercial flights;
this has been refused, obliging those airlines to overfly an area of routes which are neither competitive
nor economically acceptable to their frank disadvantage as compared to other airlines operating similar
services (Attach·ment 1, telexes of requests and refusals).
5. The detour which Cuban airlines are obliged to make leads lo a significant increase in
operating costs and inconvenience for users (see Attachment 2, Economic Hardship); this is in direct
contradiction with one of the objectives of the Convention which is to provide "international air
transport services [,vhich) may be ... operated soundly and economically".
6. The aeronautical authorities of the Republic of Cuba have authorized all the commercial
airlines and general aviation coming from the United States of America to overfly its territory on their
Oights through the air corridors which cross the FIR of the Republic of Cuba, respecting the principles
and objectives established in the Convention on International Civil Aiiation and the International Air
Services Transit Agreement (Attachment 3, Main airlines of the United States of America which fly
through the airspace of the Republic of Cuba).
7. This discriminatory practice on the part of the United States of America has been the
subject of complaints to the competent authorities of that Slate, taking into account the purely technical
nature of the matter 3Jld the provisions of the above-mentioned Agreement, in addition to the fact that
both States arc signatories to that Agreement; this grants them the right to exercise the first and second
freedoms of the aic The responses have been in lhc neg:uh·c.
8. Independent of the steps take by rhe compelent authori1y of the Republic of Cuba within
the bilateral framework. in order to find a solution to this flJ!!r.int violation of the abo, ·c-mentioned
Agreement and the principles and objectives established in ~he Convention on International Civil
A·iation directed towards ensuring "rh;it inrem;itional civil a,·iation m;iy be developed in :i s::ifc ::ind
orderly mJnner and thJt international air transpon services may be esr::iblishcd on the b::isis of equality
of opportunity". we h:i,·c insistenrly denounced this discrimin:irory policy at \·:irious Sessions of the
Assembly of !CAO. as described bdow:
Annex 11
J;}
i/
I'
;~
.·i
A-4
- 3 -
a) At the 27th Session of the Assembly in Montreal from 19 September to 6 October
1989, in :i Plen.uy Meeting the Repu~lic of Cuba denounced the discriminatory pr.1ctices which
:id\'ersely affected the flights of Cub.lna de A·i.lcion bound for Can.ld.l when it c:ime to overflying the
territory of the United St.lies of America. II was staled that this im·ol\'cd considerable consumption of
fuel ::ind th:11 this w:i.s in \'iolation of the Chicago Convention :md :ilso in contradiction with
Recommcnd:uion 7 of the Third Air Tr:insport Conference. The cessation of such discriminatory
practices was demanded . .
b) Al the 29th Session of the Assembly in Montreal . from 22 September lo 8 October
1992, the Republic of Cub:i r:Jised the question of the non-discriminatory treatment accorded 10
O\'crflights. by foreign aircraft. regardless of all political considerations, which was aligned with the
requirements of the Chicago Con\'ention and international la,1.: II was indicated that Cuba was 001
treated reciprocally and equitably by 1hc United States of America:
c) Al the 31 st Session of the Assembly in Montreal from 19 September to 4 October
1995, the Republic of Cuba :igain repeated its statement with regard to the discriminator)' treatment 10
which it was subjected on its nights to Canada when it came to overflying the territory of the United
Stales of America. Cuba presented to that forum \'6rking Paper A3 I-WP/94 (Attachment 4) which was
considered by the Assembly which directed the Secretary General and the President of the Council to
continue and intensify their efforts to find a satisfactory solution to these problems.
9. In view of the fact that more than eight months have passed since the holding of the 31st
Session of the Assembl): taking into account the actions and insistence of the Republic of Cuba 10 find
a solution to this matter through the good offices of the President of the Council and the Secretary
General of ICAO (Attachment 5) nnd since no result has been achieved in resolving this disagreement,
we tum to the Council of !CAO in keeping with the provisions of the Rules for the Settlement of
Differences since the npplicant Party cannot go on waiting, sine die, for a reaction from the respondent
Partr
Annex 11
A-5
- 4 -
St:itemcnt of L:iw
I. Convention on lntcm:ition:il Ch·il Ai:irion
- Preamble, second and third p:ir.igr.iphs
- Article 5
- Article 44 (a), (d), (f), (g) and (i)
- Article 54 (b). (j) :and (n)
2. lntcmation:il Air Services Transit Agreement
Article J, Section I
Article II, Section I
3. Rules for the Scnlement of Differences
Article I (2)
Article 2
In accordance with the Jntcmation:il Air Services Transit Agreement and particularly Section I of its
Article II and Article 5 of the Convention on International Civil A 1 iation, the Republic of Cuba deems
that the actions taken b)' the Government of the United States of America in relation to the right to
overfly its territory (First Freedom) for Cuban-registered aircraft in their flights to and from Canada are
c:lusing injustice and hardship to it. It therefore requests that the Council of the Jntcmation:ll Civil
A-iation Organization examine this discriminatory situation and consequently that the Government of
the United St:ites correct such actions.
Annex 11
! .
i'. ••
A-6
tn\CHMENT I
Compendium of 1clcxes of requests :ind refusals by seasons
(:i) \\inter 1993
/
(b) Summer 1993
(c) Summer l 994
(d) Winter J 99-t
(c) Summer l 995
(f) \\'inter 1995
(g} Summer 1996
NOTE: S - Cuban request ·
R - Negative response from the United States
Annex 11
A- 7
(fHIS PAGE IS INTENTIONALLY LEFI' BLANK.
IT IS PRESENTLY MISSING AND WILL BE CIRCULATED BY FURTHER MEMORANDUM.)
',
.1
Annex 11
I>/ .HAV
~mit.ir : 018
f:.F KOCAYAYX KR~AYAY,,X
'271900 MUI-IACU81 .,,.,,,
A - 8
RHT 261800 REF RE,WEST OVERFLIGHT PERMISSION FOR CU8ANA !=L lGHT .c:;
AGGREGATE CU8484/.;85 FROM OEC/19 TO HAR/20 OPERA TlNG AS !=ril.L ,ii,J.S
CU8484/485 FROH~EC/10 TO HAR/20 OPERATING AS !=OLLOW STP
ALL TJHE UTC STP
CU8484 190EC20HAR 0000007 IL6 C4Y156 HAV12.JO VRA13no
VRA15-J5 YMk'·t915
CUB4.85 -J.90£C20MAR 0000007 IL6 C4Y156 YMX2-r-t5 VRAO-J-15+·1
CU8485 200EC21HAR 10/JOOOO [L6 C4
1
Y-J 56 VRA0245 J.l1Wn.J ·t 5
REST HI HSG WITI-IOUT CHANGESTP
TJ<S IN ADVANCE FOR YOUR COOP RGOS
CUBANA OPS STP
NNNN
nr HAV
,:..rnit . ir : 052
FF l<OCAYAYY J<RWAYAY~
281340 HUHAr.U8I V C
WINTER ·t99,J/·f994 OPRTING CUP.ANA !=LIGHT r.UB904fJ/9n4 •f ~
HAV/VRA/Y08/VRA/HAV
A/f; IL-62 C<JNF C4Y156 STS ALL STS FOR PAYS STP A/C RFR r:11-T ·1?,-;;.,-
12091121511216/1217/1218112?5/1?26/1252/1259/1280/1?82/1?A~/12~~
STP ALT A/C T()-·154 CONFY·/56 ST.5 ·[5 .1 ST.5 l="(JR PAY.<, STP A.lr, Rf:1'; ,-~/.1-T:f :."?
l/·f224/1253/·J256/·f264/ ·t2651·t275 AS FOLL()t,J_c; STP Al.L TTNF: 1/Tr; .c,o
CU89040 05NOV25HAR 0000500 [L6 C4Y156 HAV1600 VRA16~n
VRA ·f 7.JO \lr~B 2 ·t :;o+ ·f
CU89041 05NOV25MAR 0000500 IU, C4Y·t56 Yr~82.JOIJ VRAfJ.JOn+ ·f
CU89041 06NOV26HAR 0000060 lL6 C4Y156 VRA(J345 HAVn415
TK5 IN ADVANCE !="OP· YOUR C~l>P RGOR
Cf/8ANA /()PS
Annex 11
. LIO HUHACUS T •
'2qiq26 KRWAVAV... A - 9
CZC TCAOJJ 3000~8 ~
////PART 1 OF 2////
SUBJECT Cll0ANA WINTER lqq SCMe'.OULE ·/ ,/ · . ,,( ___ /
REFERENCE VOUR 261800 262 ~ 0t' 2710'55• .271235• 271QOO ANn 2;;-134,-,
MESSAGES. - -- """--
1, FAA APPRECIATES NOTlFIC ION ANO HAS NO QijJE~TTONS.
PRE'VtOIJSLV APPROVE() ROUTES S LISTED BELOW WT.U. N1NTJNlJF. H1 P.F.'
F'LOWN.
A. TO HAVANA
<1) FROM MONTR~AL
V282 8UGSV J570 ALB J37 JFK A300 CHAMP
6437 1QA R628 UVR
<2l FR.OH c;,ue:se:c
V447 VSC J56J AL8 J37 JFK AJOO CHAMP ~417
ZQA Rb28 UVR
en FROM TRONT()
KLOPS J,22 HNK HUO J63 JFK AJOO ~HAMP
6437 Z~A R628 UVR
////ENO PART 1////
NNNN
__.-.__ ___ _ - -- _..,
ZCZC TCA034 JOP~JO
DO MUHACtJB T .._
2Q1926 KRWAVAYX
/ ///PART "2 OF 2111/
8. TO MONTREAi_
<1) UVR R628 ZQA 6437 CHAMP
A RT ART040 J5q4 MSS V203 FRANX
C. TO QUEBEC
<1.l llVR R6'28 ZCilA 6437 CHAMP
J56J VSC V447 CV~0
D. TO TORONTO
<1) UVR R628 lQA 6437 CHAMP
CFS Jq5 BUF V36 CVYZ
/' ..
..,,
A300 .JFI<
CVMX
A300 .JFK
A300 .JFK
.J63 RYR
.137 Al P,
.J6:J Hl_l(I
~-
2 , UNTIL A FORMAL REQUEST 16 MAOE TO THE OEPARTM~NT 0~ STATf NO
CHANGES IN ROUTING WILL SE MADE.
P..EST REGARDS.
ORA IN/A lA-·101
////~NO PART 2/11/
NNNN
K
.. ,
!,'''..
Annex 11
A-10
(THIS PAGE IS INTENTIONALLY- LEFf BLANK.
IT JS PRESENTLY MISSING AND WILL BE CIRCULATED BY FURTHER MEMORANDUM.)
Annex 11
A- 11
(fHIS PAGE IS INTENTIONALLY LEFf BLANK.
IT IS pRESEN'O-Y MISSING AND WILL BE CIRCULATED BY FURTHER MEMORANDUM.)
Annex 11
A-12
(fHIS PAGE IS INTENTIONALLY LEFf BLANK.
IT IS PRESENTLY MISSING AND WILL BE CIRCULATED BY FURTHER MEMORANDUM .)
Annex 11
A- 13
(fHIS PAGE IS INTENTIONALLY LEFT BLANK.
IS PRESENTLY MISSING AND WILL BE CIRCULATED BY FURTHER MEMORANDUM.)
Annex 11
, .. '' i.:.11 " I l
i
1,,
,:!:I
J ·
L-1 r
lr.zr. Tt:AJ19 07 .. ,.,;4
OD HUHACIJBI A-14
041814 KRWAVAVX
//PART 1 OF 2,//
ATTN. ZHA-502.1/ NUHACUBI
SIJB.JECT CUBANA Al RUNES SUHHER 1qq4 SCMEOIJI.E.
REF: FAA/AIA-101 MESSAGE 232120 HAR Q4 ·
REFERENCE MESSAGE IS APPROVAL OF SUMMER FLIGHT SC:MFmltF nN1 v .
RE~UESTEO ROUTINGS ARE UNDERGOING REVtEW ANO ARI: NnT RFFFAT
NOT APPROVED. APPROVAL FOR NEW ROUTINGS WlU. BF. OONI: VTA
01 PI.OHATlC · CHANNELS. lJNTlL THEN THE PREVtorn;t V APPi:WVFri
ROIJTES AS LISTED BEL.OW REHAtN tN F.FFECT:
A. TO HAVANA
t1l FRO~ MONTREAL
V282 · BtJGSY .1570 ALB J37 .JFK A'.300 CHAt-tP
6437 _l~A Rb28 UVR
<2) F~OM TORONOTO
KLOPS .1'5'22 HNK HUO .Jb3 ,JFK A300 C:HAHP
6437 ZQA Rb28 UVR
//f:NO PART 1//
NNNN
---- · -.. -· -· -· . I
./
. r
-ZC:'ZC TCA321 071. b .,,
OD HlJHAClJBl . ..,:.
041814 KRWAVAVX
//PART 2 OF '2//
P.,. TO MONTREAL
t 1 l UVR. Rb28 ZGA 6437 CHAMP A300 .JOK .J63
SYR .. ART ART040 .. . 15q4 MSS V203 FRAN)( C:VMX
C:. TO TORONTO . ·
< 1) \JVR R628 'ZQA 6437 CHAMP A:-300 .IFK .lh3
HUO C~8 J95. BUF V36 cvvz
BEST REGAROS,AtA-101
//END PART 2//
NNNN
R
Annex 11
D. Wilson A-15 JOB NO 2793/3
CUBANA DE A VIACION Havana, 18 October 1994
Routing U~it
We are hereby providing Cubana's international routing for the Winter 1994 season so
that the overflights of the United States for the Canada-bound flights using IL~2M aircraft and the AOMleased
back-up DC-10 aircraft can be processed:
Registration:
Aircraft:
IL/62 ... CUT1209/1215/1217 /1218/1225/1259/1280/1282/1283/1284
Aircraft:
DC-10 ...
FGNEM/FODLX/FODLZ/FODL Y /FBTDD/FGNDC/FBTDE/FGLMX/FGKMY /FG
GMZ/FGHOI
Routes:
VRA/YMX
MUVR-SID-O448-MTH-DCT MIA-DCT-ADDOR-AR7-DIW-J74-ORF-J209-SBY-J79-
JFK-J37-IGN-ALB-J6-PLB-J567-YUL-STAR-CYMX
YMX/VRA
CYMX-SID-J570-ALB-J37-IGN-JFK-J79-SBY-J209-ORF-J174-DIW-AR7-PANALMILOE-
OZENA-ADDOR-DCT MIA-MTH-O448-TADPO-UVR-STAR-MUVR
VRA/YYZ
MUVR-SID-G448-TADPO-MTH-DCT-MIA-ORL-J53-CRG-J55-SAV-J51-CAE-DCTPSK-
J53-EWC-DCT-DKK-ABCID-LINNG-YOUTH-STAR-CYYZ
Annex 11
A-16
YYZ/VRA
CYYZ-SID-DCT-TOBIC-THORL-EWC-J53-PSK-DCT-CAE-J51-SAV-Jl03-OMNVRB-
PBI-MIA-DCT-MTH-G448-TADPO-UVR-STAR-MUVR
Ms Lourdes P6rez Rocca
Head, Legal Department
ECA
Ms Mayda Molina
Head, Internal Relations Department
IACC
(sgd) Rosa Marfa Suarez Ferru
Head, Routing Unit
Annex 11
A- 17
(THIS PAGE IS INTENTIONALLY LEFT BLANK.
IT IS PRESENTLY MISSING AND WILL BE CIRCULATED BY FURTHER MEMORANDUM.)
Annex 11
A- 18
(THIS PAGE IS INTENTIONALLY LEFf BLANK,
IT IS PRESENTLY MISSING ANDWILL BE CIRCULATED BY FURTHER MEMORANDUM.)
Annex 11
A- 19
(fHIS PAGE IS INTENTIONALLY LEFT BLA~.
IT IS PRESENTLY MISSING AND WILL BE CIRCULATED BY FURTHER MEMORAND~M.)
Annex 11
L
\ ll
A- 20
. . . _ . , (fHIS PAG~ IS'INrENTIONALLY LEFT BLANK.
IT JS PRESENTLY MiSSJNG AND WILL BE CIRCULATED BY FURTHER MEMORANDUM.)
Annex 11
TD
CIA12528,001
:iD MULHCUBJ
271844 KRWAYAYX
////PART 1:0F 3////
~ - 21
1. REFERENCE YOUR WINTER 9:5/U BCHEDULE';FOR. CUBANA AIRLINES.
FAA- APPRECIATES NOTIFICATION AND HAS Na. OBJECTION ON THE
FOLLOWING SCHEDULE:
R. TO/FROM MONTREAL
, .
/1/ SUN IL62 CUB4&4/48:5// KIHA134:5 MUMR1415/1:S15
CYMX1915/204 /MON/ HUVR0e4:5/114:5 NUHA921:5
/2/ ?/29 OCT - 18 DEC/ 6UN 1u2· CUB9024/912S//
MUHA1000 MUVR1030/11J0 MUCA121:5/131S 7184:S -
MUCA224S/234:S /MON/ MUVR0030/01 . '
? • 7"-020:S
131 ?/23 DEC - 24 MAR/ SA~ 1L62 CUB9024/9ta25//
MUHA121S MUVR1245/134:S CYMX174:5/191S'· MUVR2Jl:S/024:5 /SUN/
MUHA031S l
141 ?/23 DEC - 24 MAR/- &AT '1L62 CU8903&/9037// ·
MUHA144S MUVR1515/161:S CYMX201:S/21~S /SUN/ MUVR014:5/024:S
MUHA0315 ! ~'
· B. TO/FROM TORONTO
Iii ?/23 DEC - 23 HAR/ SAT ll62 CUB9000/9001//
MUHA1230 MUVR1300/1400 CYYZ17:S:S/1930· MUVR23J0/00J0 /SUN/
////END 1 OF 3)/// -
I
CIA13128.~01 •••• ,·
OD MULHCUBI
271844 KRWAYAYX
////PART 2 OF 3////
MUHA0100 ,
/2/ ?/29 OCT - 18 DEC/ SUN IL62 CUB9006/9007//
MUHA1300; MUVR1330/1430 CYYZ1830/20e0 MUVR23:S9/0100 /MON/
MUHA0130 :
Y3/ 7124 DEC - 24 MAR/ 2.-CUBCJ006/9007i/
MUHA1415 ! CYYZ1830/2000 /MON/ MUHA001:S
C. TOI/FROM QUEBEC
Vl/ ?/24 DEC - 24 MAR/ SUN I 62 CUB9040/9041//
MUHA1230: MUCA1315/141:S CYOB181:S/194:5 MUCA2345/004:S /MON/
UHA0130 ;
2. ROUTES REQUESTED IN YOUR 1:51913 MESSAGE HAVE ·NOT BEEN
APPROVED,L PLEASE CONTINUE TO. FILE AND FLY THE APPROVED ROUTES
AS FOLLOWS1
A. TOi HAVANA
~1/ FROM MONTREAL
; BUGSY J570 ALB J37 JFK A300 - CHAMP 6437
ZQA R628 UVR
12/ FROM QUEBEC
////END PART 2 OF 3////
CIA71:!1030. 001
DO MIJLHCUBI
271844 KRWAYAYX
F///PART 3 OF 3////
,.
J5&3 ALB J~7 JFK A30a CHAMP 6437 ZQA
R628 UVR
/3/ FROM TORONTO
KLOPS J~22 HNK HUO J~3 JFK A300 CHAMP
G437 ZQA R628 UVR
B. TO MONTREAL
/1/ UVR R628 ZOA 6437 ·CHAMP A300 JFK J63 ' SYR
ART ART040 JS94 MSS V203 FRANX - ·
C. =TO QUEBEC
/1/ UVR R628 ZQA 8437 CHAMP A300 JFK J37 ALB
JS6.3
o; TO TORONTO
/1/ UVR R&28 ZQA 6437 CHAMP A300 JFK J63 HUD
CFB J95 BUF V36
BEST REGARDS.
' l)
Annex 11
17: .:.-1
A - 22
. . L.AW or,1c:: ·u
ZUCKERT, SCOUTT & RASE:NSE:RGER, L.L.P .
... acv,HTUNTH aT11,i:T, N,W.
BY U.96XHXL1i
WMHlHOTOH, 0.~ zoooe-:,e:,e
TCI.CPHONI: , 1ada1 ae.:. ••o
,~1w1u:11110~1 ::S4a-O·•-~
1aoa1 ~,.:a-1.:»10
octqber 27 1 l9U
. '
' . I
sra .: ·r.ourdas Piraz-Roea i~rt
Leg* . Depart::lant ' . · ·
Er.lp:raJUl Conaolidada , cuban11-'!da I -~via·ci6n
Calla 23 No. 64 f)
La RfDpa, Ve dado, Habana 4, CUBA }<._
Dearltourdas:
!
ishortly before.we racaivad your latter today, w.e.receiv~d a
letter t~Olll the federal Aviation Adminiatration (''PAA") denying
the ~outing that eubana submitted tor tha .. 1995/1996 wi1:1ter
season. Wa hava enclosed the FAA •·a letter tor your review.
Cubana must continue · to use the routes tl\at it ~as previously
operated. .
j
:Whan you get a chance, ~lease send us the revised routing,
so tri_at we t1ay tile · it with · tna .FAA.
iz'hank you tor your assistance. I! you have any questions
concerning thef?e mattara, plaasa do not hesitate to contact us.
~eat regards,
i
' \.
Enclosure
I
I
j
• Davar ~ }.l~
. Anna J~t.· \)- -
Annex 11
i Ai;.
u.s: Deoanrnant
of Transportation
ocn. orl1rauloDIJAwlidM
WuWq,N, P.C. 2ZWI . ;
TO: Lonnie Jon.caa
Lo::mie,
A - 23
,·
OCt:obe%' 27, 1995
l Paqg (s)
The 'FAA appreciate• n0ti'f'ication of CUba.n.a'a 95-96 Winter
scliedu1e. 'rbQ::a ·ie no ob:)eotio:i to th• •c=eciul.G, however the
a.J.. • rway J:CUti~g_a :equeeted l::2:y CUba.~ "have not baan app=oved. We
riaquast that they continua,,:o !ly th• ~pp:ovgd ::outir.gs.
I~]you hav• ·&ny qu;3ti0:uiplaaee -give me • call.
Be~t regarm.
JIJJ-~
Lt :col v~~~~
AJ:A-101
;
·······················································································-···
· ·······--·--·--··---------------- · ········· · ···························:- .. - . . ........•...
i:>
Annex 11
A- 24
--=="I' F.F0SDX00,027 ,,,, . .
:i_:.,_,,
:1
r.r ~tJLHCUB I KRWAYAVX KDCAYAYX
ilil943 MULHCUBI
~•~~-r ON£ CONTINUED •••••••••••••••••••••••••••••••••••••••••• .••••• ·•
c:;BANA DE. AVIACION GREETS YOU AND REQUEST-OVERFLIGHT PERMISSIONS OVER
.; 1.:J1ED STATES FOR CUBANA IATA SUMMER 96 SEASON TD CANADA USING ACFTS
'fl :,i.ti_/tONFIG/012'1150 STS ACFT REG CUT1209/121S/ 121711218/ 12~5/ 12MI _ 128Q:
t2P.2/J283/1284 AS FOLLOW STP ALL TIMES UTC STP
CUM84 31MAR31MAR 0000007 D12Y1S0 IL6 HAV134S VRA141S/1S15 YM:<1')15
cua48S 31MAR31MAR 0000007 D12V150 IL6 YMX204S VRA0045/0145 HAV0215+1 § . · · .. cutu.91;·: ·01APR?.0ocr. ·00~0001 . 012v1s0 --IU, -HAV1245 URA1315/ l415 VMX tats ·· .:~~-~::.::~~-:··
ClJJ.t.1•85 07APR200CT 0000007 D12Yl50 ·1L6 YMX194S •tJijA2345/0045 HAV0HS -:-J · ,.. . ·-
r.1.!6~000 31MAR200C:T .. 0000007 012Y150 .. IL6 HAV1205 VRA1230/1330 VY21730
. CUB9007 -31MAR200CT , 0000007.-Dl2Yl50 •ILr,-YYZ1900 -\IRA2300/2359 -HAV0030+1 -~ -~-~.
CI.IBtl024 ·JtMAR31MAR 0000007 D12Y150 ' IL6 .. HAV1005 VRA1030/1130 AVI 1215 · ·-- - -- · ~ -
. . . . AVI1315 YMX1715
cua<.>025 31MAR31MAR 0000007 D12Y15et ' IL6 VMX1845 AVI2245/2345 .VRA0030+1 . : _-_-· ·. ·:-- ·: ·CUB9025
01APR01APR ·1000000 D12V150 ·~1(6-~RA0130 "HAV0200 -------- - ------·C'JBt)
024 07APR200CT 0000007 D12Y150 . IL6 HAV0905 VRA0930/1030 AIJI1115
. : _·· . . ..... .. . : __ -~-.: ~:: •. ·~~--AVI1215 \iMX161~i ___ ; __ . ... --- ... . - ~--~ --:
·· Ct.!~~l'l25 ·07APR200CT 0000007 -D12Y150 IL6 VMX1745 AVI2145/2245 tJRA2330 .. .... ·---·-= ·.;-.
CUB9025 07APR210CT 1000000 . D12Y150 iL6 VRA0030. HAIJ0100 @ . ( . . . .
,··· - ·· . ... ·--_--·.- ~- ··• : " ·: ~ ·- -·- • .. ·· • ._ . ~-- . ·-·._· x.: . ~- _· -. --~-- :.:·~~-.- ~:-~::~ -: .. . ·-: ~ . · - .. :~-- : ~· . . - ·--- · .. . . - · .... :r-~< -· --:-· ·!'1.,(-:.r
·- - - - ... --FF0SPX00:-020--~ ·-::·:-··------·-- ·---:- ~ -··---- · --- -- - . --··-· -·
~ F MUI_HCUBI f<RWAYAYX f<DCAVAYX
I' 1 141949 MULHCUBI
PART TWO END, ••••..• ,, ••. ,... . ..
. . ........................ - . •· .. .
H~V/YMX/HAV ROUTE
GD - . . .
MUVR-DCT-UVR-6448-MTH-DCT-MIA-ADOOR- .
· ·JJ7- I GN-ALB-J6-PLB-DCT-NAPEE-YMX ~~7-J?I~-J174-0RF-J209-SBY-J79-JFI<
BACK s · YMX-DCT-EUSTA-V282-BUGSY-J570 ALB J . . .. .. . . .. . . •.. - ~·-·•· -· .. · ·- - ··· . .
DH,!-im7-PANAL-MlLDE-OZENA-DCT=MIA'.':' _37'."'.'IGN-JFK-J79-SBV-J209..:0RF-J174- . -- ~. --
HAV/YYZ/HAV ROUTE . -MTH-6448-TADPO-UVR-DCT-VRA
GO .
VRA-DCT-UVR-G448-MTH-DCT-MIA DCT . . ·.
PSK-J53-El.JC-DCT-DKK-DCT-4242~079;~~=D-CJST3-CRG-JS5-SAV-JS1-CAF-DCTDC,-
YYZ -ABCID-DCT-LINNG-DCT-YOUTHBACI<
.. • __ ..... ·-·-···- · .. -·-· ·--,.- ·-···-~ --- -.. -...... ..
YYZ-SID-TOBIC-THORL-DCT-EWC-JS3-E -
vnR-.J79-PDI-BSY-MIA-DCT-MTH-G448-~~R~~~~~~!~CAE-J51~SA~-OM~-J103- -
CUl:\Al-!A DE AVIACION MUCH-···-..... ·- ·- -· ·----.- -·. ·-·---·-·'---... -··-~~~--:··-•--·- ·- . - -· ·-:-:--:·:-:~--
j' . . ·- ~,:-, i,:~ ' r APPRECIATE_ YOUR ATTENTION AND 'PROMTlY ... . . . .. -· :·.·..,-_.:-~::-:'7::c:::::;:-:::-.~ ;
• -· \.,OULD WANT YOU TO TAKE IN ACCOUNT .. . . .. REPLY . . . . . ., ~
I • • -TH~Y :-':EAN '...ESSER FLYING "TIME . ---- -- . . _ROUTES-WE-REQUEST-:-BECAUSE . . - I
i)If:l;C'rLy RRATED W ' TO OUR POINTS IN CANADA AND IT IS . . .
.... ~, ,, ITH AIR NAVIGATION SECURITY STP --- -·- -·- ·- •---- --. ...... . - .. .. --·· . ··-·· ···-
!-.:. ·•-.")!l 1-JOULO 1-JANT TO WISH YOU ME
~F VQt_r NEED ANY 'NFORMATION RRY CHRISTMAS AND .HAPPY NEI.J VEAR
C!.?r:TAC7!NG US Tr.. AF'TN ADDRES:L;~L:g~B~IVING PERMIT DO NOT HESITATC I.\/
m:11::.; ~ N VOIJ qR TO FAX NR C 537 > 334 719 STP
DHT REGARDS
EN~. U:'.ONARDO ·HAZA
CUBPNA SCHED PLANNING
Annex 11
C!A02630.001
C·O IIIULHCUB I
291&17 KRi.JAYAYX
PART 01 OF 02
A- 25
REFERENCE YOUR CUBANA SUMMER 1996 SCHEDULE. FAA
APPRECIATES NOTIFICATION AND ~AS NO OBJECTION ON THE:~ .
FOLLOWING SCHEDULE .
A. TO/FROM MONTREAL /CYMX/
/1/ SUN IL62 CUB484/48S// MUHA1245 MUVR1315/141S
CYMX1815/194S MUVR2345/004S /MON/ .MUHA0115 .
!ONE HOUR LATER ON 31 MAR/
/2/ SUN IL6?. CUD9024/~02S// MUHA0905
~UVR0930/1030 MUCA1115/1215 CYMX1615/1745 MUCA2145/2245
MUVR2330/0030 /MON/ JUHA0100
/ONE HOUR LATER ON 31 MAR/ .
B. TO/FROM TRONTO /CYVZ/
/1/SUN IL~2 CUB9006/9007// MUHA120S
MUVR1230/1330 CYYZ1730/1900 MUVR2300/2359 /MON/ MUHA0030
ENO PART 01
, :' !
i
_j
:r 'I'
,/
'I ·;
·, ._i
' !
I
I
Annex 11
A.:_26
lFRl J 03. 29' 96 14: 40/ST. l 4: 39/NO. 35o0205~i3
~wo,,~.
ZUCKERT, SCOUTT- ·&·:RASENBERGER, L.'L.P .
. . · .... -.~ ··-
BY ncsmzLB
.... &EVEHTUNTH •TAter, N,W,
WASl:f ~NG'.TP.,,., l:».c.-~0009-.:1939
Tl:L.l:P'H~~£ ·1 caoa1 ae• .. ••0
FACSIMILES:'~2;021 .:Ma~0~83 ·
· 1202J M-Z.-r~J e
Sr. Francisco Marqu6s
Legal Deputm.ent
Empresa con&olidada CUbana da
Aviaci6n
Calle 23 No. 64
La Ram.pa, Vedado, HaJ;,ana 4, COBA
Dear Francisco:
'l'he Federal Aviation Administr,tion ("FAA") denied today th
routing that Cul:>ana submitted for the 1996 summer season. We
have enclosed the FAA'• latter for your review. CUbana must
continue to use the rout a s tha~ it has previously operated.
Ha would appreciate it i~ ycu would-send us the revised
routing, _ so that we may file it with tha FAA • .
If you have any questions concerning this matter, please
not hesitate to contact us.
Best regards. ~;~~tr Lonnie Anne Jones
Enclosure
Annex 11
U S. C)epa(1mar,t
of T,:aniportation
Federal Avi a tion
Admin:i. ■ tration
A-27
OChc:~ ol ·T:H •rt~ a tion.t . - Aviation
Wa•hir.gtor., .L: .<:. · 20§9_ · · ··
Lonnie Jonas
f ACSlMILZ T.RANSMISSlON
FAX HUXBd (202) 267-5306
'l'ZLEPH9NE (202) 267-8115
March 29, 1996
l Paga(s)
'rhe FAA appz-eciatea notiftcation of Cubana's 96 SUlQlller
s9 hedule. ~era is·no ob;ectton to the schedule, however the
a .1.rwo.y routings reque.,t:•d J::,y Cuban& ba v. not .be e n a.p proVftd. we
::e quese tha~ they cont~nu e to .~ly the cu~~ en ~i~ a;p ro vwd
ro utings.
I f you hava any questions please give me a call.
Beet regard.a.
~1.J J'~~ Y
~~ Col Vincen !' sharp
rw.A-lOl.
l l
Annex 11
A-28
ATfACHMENT 2
:Economic hardship
In(Qcators UM 1988-1994 199S 1996 (first
half)
Flights performed number 2 745 398 103
Additional flight hours 3 054 565 145
time
Additional fuel t 18 528 3014 .780
Additional 'cosi . US$ 5 l30 453 636 280 193 200 ,,-..
for fuel
Additional cost us$ 27 023 952 810 439 209 700
for flight time
Total cost US$ 32 154 405 1446719 402 900 34 004 024
Total losses from 1988 to the first half of 1996: US $34 004 024
Annex 11
No.
I
2
3
4
5
6
7
8
9
· 10
11
12
13
14
15
16
17
18
19
20
21
22
A--29
ATTACHMENT 3
Main airlines or the United States or America which fly through
the airspace or the Republic or Cuba ffable 1)
Code Three-letter Airline name
designator
0001 AAL American Airlines Inc.
0810 AJT Amerijet International
1660 AMT American Trans Air
0404 APW Arrow Airways Inc.
1539 CKS American International Ai_rways Inc.
0005 COA Continental Airlines Inc.
0307 ewe Challenge Air Cargo Inc.
1623 FAE Merlin Express Inc.
0340 FBF Fine Airlines Inc.
1780 FWL Florida West Airlines
0012 NWA Northwest Orient Airlines Inc.
1571 oxo . Killon Air Inc.
2091 PAC Polar Air Cargo Inc.
1661 RIA Rich International Airways Inc.
1556 sex Sun Country Airli.nes Inc.
2088 TCN Trans Continental Airlines
0729 TPA Transportes Aereos Mercantiles
Panamericanos S.A.
0015 TWA Trans World Airlines Inc.
0016 UAL United Airlines Inc.
0037 USA U.S. Air
0857 USS USAir Shuttle
1670 WOA World Airways Inc.
·.~·
i ·r•
Annex 11
1987
.1988
1989
1990
1991
1992
1993
1994
1995
1996 (first halt)
A-30
Number of overflights per year in the
Havana FIR (Table 2)
· Total
63 372
. 65 462
69 694
82 531
87 531
102 476
106 476
116 867
118 533
61 824
Daily
174
179
191
227
240
281
292
320
325
340
The table above shows that the 'annual increase of overflights in the aavana FIR is
significant. The daily, average has risen .from · 174 overflights in 1987 to 340 overflights in the first half
of 1996.
Of the total number of overflights per year, 58 % are by aircraft registered i~ the United
States of A.merica. The main airlines appear in Table 1 of this Attachment.
Annex 11
A-31 11' ~-...,..;;;::,r
... .,,.~c:>
<'4~~'!t
o.OAC\•~
INTERNATIONAL CIVIL AVIATION ORGANIZATION
ASSEMBLY .- 31ST SESSION
ECONOMIC COMMISSION
A31-WP/94
EC/14
1119195
Agenda Item 36.1: Regulation of international air transport services
l.
INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT
(TWO FREEDOMS AGREEMEN11 - NEED FOR IMPLEMENTATION BY
ALL ICAO CONTRACTING STATES
(Presented by Cuba)
SUMMARY
The purpose of this working paper is to reiterate the need for the countries which
have signed the Chicago Convention and the International Air Services Transit
Agreement to comply with the latter in accordance with one of the objectives of the
Conve.ntion: to provide international air transport services which may be "operated
soundly and economically".
REFERENCES
Doc 9644, AT Conf/4 .
Doc 9602, Assembly Resolutions in Force (Resolution A2 l-28)
Doc 9587, Policy and Guidance Material on the Regulation of International Air
Transport
Doc 9470, AT Conf/3, Recommendation 7
Doc 7300, Convention on International Civil Aviation
Introduction
1.1 The Final Act of the International Civil Aviation Conference (Chicago, 1944), includes,
inter a/ia, the International Air Services Transit Agreement by which non-'traffic rights for scheduled
services are exchanged multilaterally. Section I of Article I of this Agreement categorically states
that: "Each Contracting State grants to the other Contracting States the following freedoms of the air in
respect of scheduled international air services:
1) the privilege to fly across its territory without landing;
2) the privilege to land for non-traffic purposes."
, .:·.':,
Annex 11
·(
J
·i
/ . . ,
if
' i
(:j
I
dl
,!. ,,
Lf
,/.'
A31-WP/94
EC/14
A-32
-2-
When this paper was drafted, the Agreement had been ratified by 104 Contracting States. The United
States of America (depositary) and the Republic of ·Cuba are among the States which signed this
Agreement, also known as the "Two Freedoms Agreement".
1.2 In Anicle 5 of the Convention on International Civil Aviation, the same rights, among
. others, are granted to aircraft registered· in one of the parties when such aircraft are engaged in nonscheduled
air services.
1.3 Article VI of the Agreement clearly states that: "Any State a member of the
International Civil Aviation Organization may accept the present Agreement as an obligation binding
upon it by notification of its acceptance to the Government of the United States, and such acceptance
. shall become effective upon the date of the receipt of such notification by that Government." ·
I .4 Through ,.Resolution A21-28, the Assembly has· urged States to ratify the Agreement.
The Third Air Transport Conference adopted two recommendations concerning_overflight, one of which
(AT Conf/3-Recommendation 7) recommends that: "Contracting States ensure that overflight of their
territories be permitted on a non-discriminatory basis consistent with obligations assumed by adherence
to the Chicago Convention and the International Air Services Transit Agreement."
1.5 The Final Act of the Fourth Air Transport Conference once again states the following in
its conclusions: "States which have not yet done so should again· be urged to become panies to the
International Air Services Transit Agreement, which is called for in Assembly Resolution A21-8, so that
the international air transport system might benefit fully from universal adherence to and
implementation of this fundamental multilateral regulatory accord."
2 .
In its recommendation (Doc 9644, AT Conf/4), that Conference recommended:
"a) that States pursue, and ICAO promote, universal adherence to and implementatiLJn
of the International Air Services Transit Agreement."
Analysis
2.1 For several years, Cuban civil aviation has been requesting permission for Cubana de
Aviaci6n aircraft to overfly the territory of the United States on the route from Cuba to Montreal and
Toronto and back. These requests for permission have been duly submitted to the aeronautical
authorities of the United States without any official response to them having heen received. These
requests were made on the basis of the precedent that both Cuba and the United States signed the
International Air Services Transit Agreement which, as stated in the introductory part of this working
paper, grants commercial aircraft of signatory countries the right of over6ight on published
international routes. The Cuban aeronautical authorities have strictly respected this.righi since aircraft
of Nonh American airlines have not been denied overflight of Cuban territory.
2.2 In contrast to the international rights established by the international community and in
violation of the Chicago Convention and the Two Freedoms Agreement, mentioned in paragraphs 1.2
to 1.4 of this paper, Cuba is discriminated against and the Department of Transportation of the _Unit~d
States does not allow Cuban civil aircraft to use the most appropriate public international routes in their
flights to Canada, thus causing an excessive waste of time and fuel which affects flight sa(ety and
passenger services, contrary to what is stated in the Convention: that air services may be "operated
soundly and economically".
Annex 11
A-33
-3-
3. Conclusion
A31-WP/94
EC/14
3. 1 In view of what is stated in parts 1 and 2 of this working paper, we consider that the
international aeronautical community should not only urge JCAO Contracting States to adhere to
international agreements and conventions, but also ensure that signatory States comply, with due
seriousness, with the obligations assumed.
3.2 In this new stage of ICAO's work and of its regulations aimed at strengthening the
international aeronauticaJ community, it is necessary to be more demanding with regard to compliance
with what ·has aJready been agreed on and in this way face the chaJlenge to aviation in today's world.
4. Action by the Assembly
4.1 The Assembly is invited to:
a) request that signatory States comply with what is stipulated in the International Air
Services Transit Agreement;
b) recognize the discrimination to which Cuba is being subjected and the waste of
resources caused to Cuba by being prevented from overflying the territory of the
United · States; and
c) declare non-compliance by States with multilateral agreements signed within the
framework of the Organization to be harmful to the proper conduct of ICAO's
work .
- END -
Annex 11
1.
America.
2.
ofICAO.
A-34
ATrACHMENT S
Exchange of correspondence between CuW,a's aeronautical authority
and the President of the Cou .. cil or ICAO · · · ·
Letter .frQID the President of the IACC to the FAA Administrator of the United States of
Letter of 20 October 1995 from the President of the IACC to the President of the Council
3. Letter from the President of the Council of ICAO to the President of the IACC . m reply
to the letter of 20 October 1995.
4.
ofICAO.
Lette~ of 11 January 1996 from the Presi~ent of tb·e IACC to the President of the Council
5, Letter from. the President of the Council of ICAO to the President of the IACC in reply
to the letter of 11 January 1996.
6; . . . .. Letters of 1 April 1996 and 6 June 1996 from the President of the IACC to the President
of !J!e Council of ICAO: .
Annex 11
PRESIDENTE
Havana,
March 27, 1995
Mr. Gen. Thomas c. Richards
Administrator
Federal Aviation Administration
U.S.A.
Mr. ·Richards:
A-35
For many years we have been applying for the permission to
overfly the territory of the United States on behalf of
Cubana de Aviaci6n aircraft following the route from Cuba to
Montr&al and Toronto and back. These applications have been
presented through the Cuban Ministry of Foreign Affairs
before the U.S. Interest Section in Havana, without having
ever received any official answer.
These applications have been presented taking into account
the fact that Cuba as well the United States are •signatories
of the Air Transit Agreement which gives the right for
commercial aircraft of these countries to overfly their
territories using published international routes. This right
has been strictly respected by Cuban aeronautjcs authority
never denying the overflight of our national territo.ry to
aircraft of U.S. airlines.
On the base of the arguments above, I express to you the
interest of this civil aeronautics authority fot ;you to
analize the routes annex to this letter in order that the
FAA gives Cubana de Aviaci6n the co rresponding overfligh t
permit .
Awaiting your reply, we remain,
Sincerely,
GENERAL DE DIVISION
--- ~ J_6
_2iio Acevedo GonzA!ez
President
.. J
,,
·:_;:
}· .,·
i,
Annex 11
D. Wilson
CUBA
IACC
Sir,
,--,·---··
A-36
0 8 NOV t<i95
Havana. 20 Occober 19
As you will recall, we hao a conversation during , the 31 sc Session of the Assembl v
ICAO on the subjecc of the discrimination suffered by our civil airlines ,vith regard to overflights of r
I territory of the Uniced Scates on their routes 10 and from Canada.
t
Al that time, the Assembly reached the following ·condusions:
"the wish for the continuation . and intensifiotion . of diplomatic efforts b,,·
Secretary Gener .al and .the President,of the Council to find a satisfactory solution. The Commissi
considered that the internat:iowtl aliation communi~.-bad a general interest in the resolution of t
matter." ·
(Repon of the Economic Commission, Agenda Icem _36.1, paragraph 36.1: 11.
WP/224, P/57, -approved by the Plenary.)
' '
In view of the above, I am writing to you to reiterate our interest in you imensifying yo
eff oru with the authorities of the United Scates to achjeve a satisfaccory · solution to the siruacion of
overflighcs of the territory of the United States .
Accept, Sir, e_tc ....
Di. Assad Koc.aite
President of the Council of IC.\O
~1omrel.l
(sgd) fy)gelio Acevedo Gonzalez
President. IACC
Major-General
1·.:. , .
Annex 11
A-37
REPORT ON ACTIVITY
TRANSMISSION OK
#TX/RX 2494
Tel. connection 514 288 4772
ID connection
Time of start 02/11 09:39
Time used 00'29
Number of pag~
Result OK
Annex 11
L
i·
f
A~38
TO BE TRANSLATED INTO SPANISH
Ref . : EC 10/1
AN 13/4.6
Dear Major-General Gonulez, /
.. /
~
lA"' December 1995
I wish co acknowledge receipt of vour Je:-:er dated" 20 Occober 1995 conce
difficultie.$ experienced by Cuba with regard 10 overflights of the territory of the United Scates as
as receipt of your letter dated 3 November 1995 concerning panicipation of Cuba ·m the Sec
GREPECAS Meeting on autornatization, operation of foreign airlines in Cuba and the repair of Fo
engines in Canada.
Following my previous contacts with the au:horities ofthe United States of Arne
I would like to inform you that I have written to them regarding the above-mentioned difficult ie
overflights of their territory. I take this oppommicy 10 assure you that I will do my uonost to assi
resolving L'tis problem.
I will keep you informed of any developm~nts.
Major-General Rogelio Acevedo Gonzalez
President.P_.-
lnscinuo de Aeroniu1ica
Civil de Cuba (IACC)
Calle 23 No. 64
Mwticipio Plaza
Apan.ado Postal 6215
Ciuci2d de la Habana
Cuba
Yours sincerely ,
Assad Kocaice
Annex 11
A-39
IACC Havana, 11 January 1996
Sir,
Further to the information which we have provided on the subject of the discrimination
to which our civil airlines are subjected to on their overflights of the territory of the United States on
their tO\ltes to and from Canada, I must inform you that during the months of November and December
1995, of ~e 48 overflights requested of the United States, only two were authorized.
I therefore wish to repeat our interest in your intensifying your efforts with the authorities
of the United States to achieve a satisfactory solution to the situation of our overflying the territory of
the United States.
Accept, Sir, the assurances of my highest consideration.
Dr. Assad Kotaite
President of the Council of ICAO
Montreal
(sgd) Rogelio Acevedo Gonulez
Major-General
President, IACC
Annex 11
/!,
j;:
i
ti
i
A~40 .
FOR TRANSLATION INTO SP~"'JSH
Ref.: EC 10/1
AN 13/4.10
Dear General de Division Acevedo Gonzalez,
31 January 1996
With reference to your letter dated 11 January 1996 and to my leuer of
18 December 1995 concerning the difficulties experienced by Cuba with regard to overflights of th~
territory of the Uni1ed States, I have the honour ro inform you that on Monday, 22 January 1996 I ha
talks with high-level Officials of the Government of the United States of America in Washington, D.C.
regarding this matter. The Officials at the State Department dealing with this subject indicated to me that
they will give serious consideration to my request and will let me know .
Please be assured that I am giving full attention to ch:s mauer and will keep you informed
of any developments.
General de Division Rogelio Acevedo Gonzalez
Presidente
lnstiruto de Aeron:iutica Civil de Cuba (IACC)
CaJle 23 No. 64
Municipio Plaza
Apanado Postal 6215
Ciudad de la Habana
Cuba
Fa."<. no.: 334577
G ·' LETTERS'Cl'BA \IACCPRES
Yours sincerely,
Assad Kotaite
Annex 11
A-41
IACC Havana, 1 April 1996
Sir,
Further to the information which we have provided on the subject of the discrimination
which our civil airlines are subjected to on their overflights of the territory of the United States on their
routes to and from Canada, I must inform you that during the months of February and March, none of
the 70 overflights requested of the United States were authorized.
Accept, Sir, the assurances of my highest consideration.
Dr. Assad Kotaite
President of the Council of ICAO
Montreal
(sgd) Rogelio Acevedo Gond.lez
Major-General
President, IACC
Annex 11
A-42
IACC
Sir,
Further to the information which we have provided on the subject of the discriminatio
which our :civil airlines are subjected to on their overflights of the terrJtory of the .United States on the~
routes to and from Canada, I must inform you that during the months from January to May., none oftb
142 overflights requested of the United States.were autborized.
Accept, Sir, the assurances of my highest.consicleration.
Dr. Assad Kotaite
President of the Council of ICAO
Montreal
(sgd) Rogelio Acevedo Gonzalez
Major-General
President, IACC
Annex 11
#TX/RX
Tel. connection
ID conn~ion
Time of start
Time used
Number of pages
A-43
REPORT ON ACTIVITY
2405
9plp514p288p4772
06/10 09:59
00'30
l
OK
. I
J
i,r,j
I
1.·
Annex 12
ICAO Council, United States v. 15 EU Member State, Memorial of the United States
(14 March 2000)
Annex 12
INTERNATIONAL CIVIL AVIATION ORGANIZATION
ORGANISATION DE L'AVIATION CIVILE INTERNATIONALE
ORGANIZACION DE AVIACION CIVIL INTERNACIONAL
ME>KAYHAPOJ].HAAO PrAHll13AU111ArP A>KAAHCKOlll ABlllAL.ll/1111
~ _,~~I .l.J\ L.l~\\ ~ A 1;i A
00 ~f- ~ ffl AA ~ ffl !,q
999 UNIVERSITY STREET, MONTREAL, QUEBEC , CANADA H3C 5H7
Tel.: (514) 954-8219
Fax: (514) 954-6077
Internet: [email protected]
Sitatex: YULCAYA
Telex: 05-24513
Cables: ICAO MONTREAL
SG 1658/00
LE 6/5
To:
From:
Subject:
Representatives on the Council
Secretary General
3 April 2000
Settlement of Differences: United States and 15 European States (2000)
By memorandum SG 1655/00 dated 15 March 2000 , I notified Representatives on the Council
that the United States had submitted an Application and Memorial to the Council for settlement of a
disagreem ent with 15 other Contracting States . The application, dated and forwarded to my Office on
14 March 2000 , was submitted with respect to the European Council Regulation (EC) No . 925/1999
("Hushkits ") and the provisions of the Convention on International Civil Aviation (Doc 7300/7) and its
Annex 16 (Environmental Protection) . It names as respondents Austria , Belgium, Denmark , Finland, France,
Germany , Greece , Ireland, Italy , Luxembourg , Netherlands , Portugal , Spain , Sweden and the United Kingdom .
In accordance with Article 3, paragraph (1) (a) of the ICAO Rules for the Settlement of
Differences (Doc 7782/2) , I have verified that the Application complies in form with the requirements of
Article 2 of the Rules . In line with Article 3, paragraph (l) (b) of the Rules , I have notified all parties to the
Convention on International Civil Aviation by State letter LE 6/5 - 00/38 dated 31 March 2000 that the above
application has been received .
I am enclosing a copy of the Application and Memorial. A copy of the Attac
enclosed in the original language submitted . Other language versions of the Attac nts will
as soon as translated .
Attachments
Annex 12
:QSG
REPRESENTATIVE OF THE UNITED STATES OF AMERICA
TO THE 1 4 MAR20 00
INTERNATIONAL CIVIL AVIATION ORGANIZATION
TELEPHONE
(514) 954-8304
Mr. Renato Costa Pereira
Secretary General
International Civil Aviation Organization
Montreal
Dear Mr . Costa Pereira:
SUITE 14.10
999 UNIVERSITY AVENUE
MONTRl:7\L,QUEBEC,CANADA
H~C 5J9
March 14, 2000
I am today forwarding to you as Secretary General ofICAO , the Application and
Memorial submitted by the United States pursuant to Article 84 of the Chicago Convention
and the Council's Rules for the Settlement of Differences. The Application and Memorial
seek a decision of the Council on a disagreement with fifteen European countries relating to
European Council Regulation (EC) No. 925/1999. Copies of the Application and Memorial
are included in the submission.
You will note that David S. Newman is the Agent for the United States of America
and he can be reached through the U.S. Mission .
Enc: 16 copies complete with exhibits
2 copies without exhibits
cc: Dr. Assad Kotaite
President of the Council
Sincerely,
~~ 1JJ\
'--c__d/!-ul.-0f R 1/J ~ -~ V ~
Edward W. Stimpson
Annex 12
OSG
1 4 MAR2 000
Mr. Renato Costa Pereira
Secretary General
International Civil Aviation Organization
Montreal, Quebec, Canada
United States Department of State
Waslii11gto1D1,. C. 20520
March/'{, 2000
Re: U.S . Disagreement under Article 84 of the Convention on International
Civil Aviation with Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal,
Spain, Sweden, and the United Kingdom relating to European Council
Regulation (EC) No. 925/1999.
Dear Secretary General:
The United States of America submits herewith its Application and Memorial,
pursuant to Article 84 of the Convention on International Ci vii Aviation and the Council's
Rules for the Settlement of Differences, seeking a decision of the Council on a
disagreement with Austria , Belgium, Denmark, Finland, France, Germany, Greece ,
Ireland , Italy , Luxembourg , the Netherlands , Portugal , Spain , Sweden, and the United
Kingdom ("Respondents ") relating to European Council Regulation (EC) No. 925/1999.
If you have any questions, please contact me through the U.S. Mission to ICAO,
999 University Street, Montreal , PQ, Canada H3C 519. The telephone number of the
U.S . Mission is (514) 954-8304 . Thank you for your assistance in this matter.
Respectfully submitted,
V:1/Al vJ./,Jrv7t1M
David S. Newman
Agent for the United States of America
Enclosures: Application and Memorial of the United States of America
(16 copies complete with exhibits; 2 copies without exhibits)
Annex 12
APPLICATION OF THE UNITED STATES OF AMERICA
The United States of America ("Applicant") .hereby submits its Application,
pursuant to Article 84 of the Convention on International Civil Aviation (the "Chicago
Convention") and Article 2 of the Rules for the Settlement of Differences (the "Rules"),
for the Council of the International Civil Aviation Organization (ICAO) to decide the
below-described disagreement relating to the interpretation and application of the ·
Chicago Convention and its Annexes. The Memorial of the United States of America is
attached hereto, in accordance with Article 2 of the Rules. The Applicant requests that
the Secretary General act upon this Application in accordance with Article 3 of the Rules.
The present disagreement exists with Austria, Belgium, Denmark, Finland,
France, Germany , Greece, Ireland, Italy, Luxembourg , the Netherlands, Portugal, Spain,
Sweden, and the United Kingdom ("Respondents"). As grounds for its disagreement, the
Applicant asserts that the Respondents , member States of the European Union, in
adopting and undertaking to apply in their territories European Council Regulation (EC)
No. 925/1999 (the "regulation") have violated their international obligations under the
Chicago Convention , ICAO guidelines , and international practice for npn-discriminatory
performance based noise certification standards , including Chicago Convention Articles
11, 15, 38, and 82 and Standard 1.5 in Annex 16, Volume I (aircraft noise). Respondents'
actions raise questions of interpretation and application of the Chicago Convention and
its Annexes.
The regulation limits the registration and operation in Respondents' territories of
aircraft that are in full compliance with the most stringent international noise standards.
The targeted aircraft include aircraft modified to meet Chapter 3 noise standards by
adding "hushkits" (equipment that acts like a muffler on aircraft engines) to quiet their
engines and aircraft on which old noisy engines have been replaced with newer quieter
engines designed with a by-pass ratio of less than 3: 1 (the "targeted aircraft"). The
regulation conditions imposition of its restrictions on the basis of the nationality of the
aircraft.
The Applicant asserts that the regulation discriminates among aircraft on the basis
of their nationality with respect to registration and access to airports in Respondents'
territories, in violation of Articles 11 and 15 of the Chicago Convention . Furthermore ,
the regulation's reliance on design standards and whether an aircraft has been modified
and recertificated constitute deviations from ICAO standards set forth in Annex 16. The
Respondents failed to give ICAO the notice required under Article 38 of the Chicago
Convention relative to those differences. Finally, under Annex 16, Volume I, Standard
1.5, Respondents are obligated to accept noise certifications granted by the United States
to aircraft on its registry. However, contrary to that obligation, the regulation obligates
the Respondents to reject aircraft so certificated.
Annex 12
For these reasons , the United States requests that the ICAO Council determine
that the Respondents have violated the Chicago Convention ; order Respondents to
comply with all provisions of the Convention ; and order Respondents to take immediate
steps to procure their release from their obligations μnder the EC regulation.
This Application and the attached Memorial are being submitted to the Secretary
General on March I '/, 2000.
Respectfully submitted ,
r;rJ1,r1,,l11 /;,!PJ'~
David S. Newman
Agent for the United States of America
U.S. Department of State
Annex 12
March/'{, 2000
OSG
1 4 MAR2 000
Before the Council of the International Civil
Aviation Organization (ICAO) Under the ICAO
Rules for the Settlement of Differences (Doc. 7782/2)
MEMORIAL
OF
THE UNITED STATES OF AMERICA
Disagreement Arising under the
Conventinn on International Civil Aviation
done at Chicago on December 7, 1944
David S. Newman
Agent for the United States of America
United States Department of State
Annex 12
MEMORIAL OF THE UNITED STATES OF AMERICA
The United States of America hereby submits for settlement by the Council a
disagreement relating to the interpretation and application of the Convention and its
Annexes, pursuant to Article 84 of the Convention on International Civil Aviation (the
"Chicago Convention") and the Rules of Parts I and III of the Rules for the Settlement of
Differences approved by the Council on 9 April 1957 and amended on 10 November
1975 (the "Rules").
As grounds for its disagreement, the United States of America submits that the
below named respondents, member States of the European Union, in adopting and
undertaking to apply in their territories European Council Regulation (EC) No. 925/1999
(the "regulation"), have acted in a manner inconsistent with Chicago Convention Articles
11, 15, 38, and 82 and Standard 1.5 in Annex 16, Volume I (aircraft noise) (3d ed. July
1993) ("Annex 16"), thereby raising questions of interpretation and application of the
Convention and its Annexes.
(a) Identification of the Parties
The United States of America ("Applicant") pursues the present disagreement
against Austria, Belgium, Denmark, Finland , France, Germany, Greece, Ireland, Italy,
Luxembourg, the Netherlands , Portugal , Spain , Sweden , and the United Kingdom
("Respondents").
(b) Authorized Agent
David S. Newman, U.S. Departm ent of State , is authorized to represent and act for
the Applicant in these proceeding s. All communications relating to this case , including
notice of the dates of any meetings , should be sent to the attention of Mr. Newman to the
U.S. Mission to ICAO, 999 University Street , Montreal , PQ, Canada H3C 5H7. The
telephone number of the U.S. Mission is (514) 954-8304 .
Introduction
The International Civil Aviation Organization ("ICAO") has promulgated, in
Annex 16 to the Chicago Convention, uniform aircraft noise certification standards for
the entire international aviation community. The European Council, acting unilaterally
and with discriminatory intent, adopted European Council Regulation (EC) No. 925/1999
on April 29, 1999. That regulation is inconsistent with ICAO' s noise standards in Annex
16 to the Chicago Convention, Volume I (Aircraft Noise) and with Articles 11, 15, and 38
of the Chicago Convention. The United States and other nations injured by the European
Union's actions have attempted unsuccessfully to resol ve this dispute with the European
Union without resort to formal intervention of the ICAO Council under Article 84 of the
Annex 12
Chicago Convention. The EC regulation, if it is not abrogated, will have a profoundly
disruptive and discriminatory effect on the orderly development and operation of
international civil aviation. It is therefore incumbent upon the !CAO Council to act
swiftly and decisively to find the Respondents in violation of the Chicago Convention;
order Respondents to comply with all provisions of the Convention; and order
Respondents to take immediate steps to procure their release from their obligations under
the EC regulation.
The international aviation community requires
uniform international noise certification standards.
International noise certification standards developed at !CAO "are important for the
undistorted and balanced development of both the aviation and aeronautical industries." 1
!CAO has been the recognized and exclusive source of international aircraft noise
certification standards since its initial adoption on April 2, 1971, of Annex 16, pursuant
to Article 37 of the Chicago Convention. Currently, the issue of aircraft noise is a
principal focus of the Committee on Aviation Environmental Protection (CAEP).
Consistently with the Chicago Convention, including its annexes, and international
practice, the CAEP is working toward stricter aircraft noise certification standards that are
non-discriminatory, considerate of the needs of all contracting States, and phased in to
permit reasonable opportunity for the airlines of the world to plan accordingly .
Pursuant to Article 37, States are bound "to collaborate in securing the highest
practicable degree of uniformity" in regulations and standards relating to aircraft, where
"uniformity will facilitate and improve air navigation ." Article 37. The Respondents'
actions, resulting in adoption of the EC regulation, represent a failure of collaboration and
are inconsistent with the on-going efforts to develop and implement new international
Communication from the Commission to the Council, the European Parliament, the
Economic and Social Committee and the Committee of the Regions , Air Transport and the
Environment Toward Meeting the Challenges of Sustainable Development, Bru ssels, 30
November 1999, COM (1999) at paragraph 11. (See Attachment 1). In this Communication, the
Commission suggested the following guidelines for when an individual EU airport might be
permitted to adopt more stringent rules:
With a view to safeguarding internal market requirements and undistorted competition, it
is important, however, that entitlement for introduction of more stringent rules must be
based on fulfilment of clear and objective criteria constituting an exceptional situation
and on use of common benchmarks for the determination of the noise impact on the
environment of the airport. Such benchmarking will be greatly faciliated by the
introduction of common indicators and assessment methods as discussed above.
Attachment l at para. 62. Under the EU's own guidelines, the EC regulation would be
characterized as one that disrupts the market and distorts competition, because, contrary to these
guidelines , the EC regulation lacks a clear objective, relies on design standards , and disregards
the need for common benchmarks for determining noise impact.
2
Annex 12
noise certification standards. As noted by the President of the Council, "[i]f States believe
that changes to the content or level of implementation of the Standards in Annex 16 are
necessary or desirable, they should use the multilateral mechanism of ICAO." Letter
dated 22 March 1999 from the President of the ICAO Council to the President of the
Council of the European Union (E/4/150) (See Attachment 2).
The EC regulation is inconsistent with the
spirit and letter of the Chicago Convention.
The Respondents, through European Council Regulation (EC) No. 925/1999,
adopted by the European Council on April 29, 1999, violate their international obligations
under the Chicago Convention and its Annexes which require that noise certification
standards be non-discriminatory and performance-based. The regulation limits
registration and operation in Respondents' territories of aircraft that are in full compliance
with the most stringent international noise standards. The targeted aircraft include
aircraft modified to meet Chapter 3 noise standards by adding "hushkits" (equipment that
acts like a muffler on aircraft engines) to quiet their engines and aircraft on which old
noisy engines have been replaced with newer, quieter engines designed with a by-pass
ratio of less than three to meet Chapter 3 standards (the "targeted aircraft"). European
Council Regulation (EC) No. 925/1999 at Article 2, section 2 (See Attachment 3). The
implementing provisions of the regulation condition imposition of these restrictions on
the nationality of the aircraft.
The history of the regulation establishes that it was designed to target U.S.
aircraft. Notably , the regulation was adopted without a full evaluation of its impact, in
terms of both environmental benefits and costs to air carriers and their users. So long as
the EC regulation remains law, its provisions have an immediate and adverse impact on
non-EU registered targeted aircraft, the airlines that operate them, the airlines of other
countries that wish to buy them, and the manufacturers of the targeted technology.
Airlines have no choice but to take account of the regulation in making long-term
decisions concerning the acquisition, modification, positioning , operation, maintenance,
and disposition of aircraft.
The regulation is focused more on targeting
U.S. interests than on reducing airport noise.
Although the preamble to the regulation asserts a purpose to reduce noise
emissions at European airports, the regulation is not reasonably tailored to meet that
objective:
- The substantive provisions of the regulation are not based upon, and make no
reference to, aircraft noise levels. Even if a hushkit could be developed that would make
old aircraft the quietest aircraft in the sky, those hushkitted aircraft would be restricted.
3
Annex 12
- Instead of targeting noise levels, consistently with ICAO objectives and
guidelines set forth in Annex 16, Volume I (Aircraft Noise) and related ICAO resolutions,
the regulation relies on a design standard, intentionally targeting U.S. aircraft. The very
purpose of the regulation was described by its advocates as follows:
It is to be feared that after 31 December 1999 hushkitted Chapter 2 aeroplanes
will be transferred from the USA to the European community's aeroplane
registers. It is the danger of this that should be precluded with the
directive/regulation here under discussion.
"Report on the Proposal for a Council Directive on the registration and use within the
Community of certain types of civil subsonic jet aeroplanes which have been modified
. and recertificated as meeting the standards of Volume I, Part II, Chapter 3 of Annex 16 to
the Convention on International Civil Aviation," (3d ed. July 1993), Committee on the
Environment, Public Health and Consumer Protection European Parliament session
documents A4-0279/98 (21 July 1998), (hereinafter referred to as the "Report on the
Proposal"), Explanatory Statement at p.8. (See Attachment 4).
By targeting U.S. aircraft, and their transfer to airlines of other countries, the
regulation minimizes or avoids adverse impact on owners and operators of aircraft of
Respondents' registries. However, the regulation does harm manufacturers of the
targeted technology, the current owners of aircraft relying on that technology, and the
airlines of other countries that are potential purchasers of the targeted aircraft. As a
result, the regulation impairs the ability of non-EU airlines, particularly smaller airlines,
to economically achieve a fully Chapter 3-compliant fleet.
The reirnlation distorts the resale market for targeted aircraft.
The regulation causes further distortion of the international aviation system by
enhancing the value of older aircraft on Respondents' registries, at the expense of
comparable aircraft on other registries, and by coercing purchasers of these aircraft to
register them on one of Respondents' registries. This occurs because a purchaser of
aircraft employing the targeted technology generally may not operate the aircraft into
Europe after April 1, 2002, unless he purchases an aircraft that was on one of
Respondents' registries and causes the aircraft to remain on one of those registries.
As a result, any purchaser that might desire to operate into Respondents' territories
aircraft that it purchases employing the targeted technology into Europe:
(1) is improperly encouraged to purchase aircraft already on one of Respondents'
registries, rather than aircraft of any other nationality, and would be forced to pay
a premium price for such an aircraft; and
(2) if purchasing aircraft on one of Respondents' registries, is encouraged to keep
the aircraft on that registry, regardless of the nationality of the purchaser.
4
Annex 12
This market distortion highlights the discriminatory and protectionist nature of the
regulation.
(c) Statement of Facts
1. The Applicant and the Respondents are parties to the Chicago Convention.
2. On April 29, 1999, the Council adopted Council Regulation (EC) No.
925/1999. The regulation limits access to European airports by aircraft that "have been
modified to meet Chapter 3 standards either directly through technical measures or
indirectly through operational restrictions," excluding aircraft "completely re-engined
with engines having a by-pass ratio of three or more." Regulation, Article 2 section 2, at
Attachment 3.
3. These restrictions will preclude certain targeted aircraft from being registered
on Respondents' registries or from operating at Respondents.' airports, based on their State
of registration and place of operation prior to application of the regulation. Also, the
regulation discriminates in favor of targeted aircraft of European ownership that transfer
between Respondents' registries, or between Respondents' registries and other registries,
in conjunction with a lease. Specifically, pursuant to the regulation:
a. As from May 4, 2000, Respondents must refuse registration in their States of
targeted aircraft, unless the aircraft continuously has been registered in any
Respondent State since May 4, 2000. Regulation, Alticle 3 sections (1) and (2);
b. As from April 1, 2002, Respondents must deny access to their airports to
targeted aircraft not on a Respondent's registry, unless the aircraft continuously
has been on the same State registry since May 4, 2000, and was operated into the
EU between April 1, 1995 and May 4, 2000. Regulation, Article 3, section (3).
c. Targeted aircraft registered in any Respondent State may continue to operate
into any of Respondents' airports, regardless of a transfer of state of registration,
provided the transfer is between Respondent States. Regulation, Article 3, section
(2); and
d. Respondents may grant exemptions from the regulation's restrictions for
leased aircraft removed from one of Respondents' registries on which it was
registered during the six months prior to the date of application of the regulation,
provided ownership of the aircraft remains in a Respondent State. Regulation,
Article 4, section (3).
5
Annex 12
4. The regulation was designed specifically to restrict U.S. aircraft using
hushkits, an apparatus that acts like a muffler on aircraft engines, to quiet their engines 2
and aircraft whose old noisy engines have been replaced with new quieter engines
designed with a by-pass ratio of less than three. Regulation at Article 2, section 2.
5. The regulation imposes these restrictions in spite of the fact that the targeted
aircraft have been certificated by Respondents and accepted by other governments as
being in full compliance with the most stringent international noise standards. Targeted
aircraft, including re-engined aircraft and aircraft fitted with hushkits, have been
certificated by the United States Federal Aviation Administration ("FAA") as compliant
with Chapter 3 noise standards. 3
6. The regulation discriminates among targeted aircraft on the basis of the
aircraft's nationality, past and present. For example, a targeted aircraft transferred to or
from a non-Respondent registry after May 4, 2000 loses its ability to operate into
Respondents' territories; whereas, the same aircraft transferred between any of
Respondents' registries would not be restricted.
7. The FAA has granted Chapter 3 noise certifications to U.S. registered aircraft
that have been re-engined with Pratt & Whitney JT8D-200 series engines that have a bypass
ratio of less than three, as well as to European manufactured Rolls Royce TAY 651-
54 engines and engines manufactured by CFM International (a U.S./French joint venture),
which have by-pass ratios greater than three. See Attachment 5. The EC regulation's
standard for by-pass ratio would cause the regulations restrictions to hit only the U.S.
manufactured Pratt & Whitney engines. See Regulation, Article 2.
8. The Regulation targets recertificated aircraft re-engined with engines having a
by-pass ratio of less than three , but does not affect other aircraft built with engines having
a by-pass ratio of less than three , such as the MD-80. See Regulation, Article 2.
While the regulation on its face would appear to cover any aircraft modified to meet
Chapter 3 standards, it is clear from the history of the regulation that its target was hushkitted
aircraft. See Report on the Proposal, Attachment 4 , at p. 8 ("The proposal is thus intended to
prevent the re-registration of noisy aeroplanes (i.e. hushkitted Chapter 2 aeroplanes.") and at 9
("it is to be feared that, by the time the directive/regulation enters into force, i.e. 1 April 1999,
recertificated subsonic jet aeroplanes (=hushkitted aeroplanes) may be registered in the EU or
third countries in increased numbers."); "The aim of the proposed directive/regulation is to
prevent an increase in noise pollution due to recertificated civil subsonic jet aeroplanes
(=hushkitted Chapter 2 aeroplanes) .")
FAA's noise compliance findings are made in accordance with 14 CFR part 36, pursuant
to U.S. law. The FAA's test and analysis procedures used to measure noise levels and to grant
Stage 3 noise certification under 14 CFR Part 36 are essentially equivalent to the Chapter 3
standards in Annex 16
6
Annex 12
9. Engine by-pass ratio is not a test criterion for noise certification under Annex
16.
10. Respondents have recognized FAA aircraft noise certifications on U.S.
registered aircraft, thereby acknowledging that the FAA certifications standards,
including its noise certification of hushkitted and re-engined aircraft, are at least equal to
the applicable Standards in Annex 16, Volume I, Chapter 3. See Attachments 6, 7. In
fact, the EU has acknowledged expressly that hushkitted aircraft meet the standards for
Chapter 3. See Report on the Proposal, Attachment 4, Explanatory Statement at p.7
("hushkitted aeroplanes only just satisfy the standards for Chapter 3 .... ").
(d) Supporting Data
1. A copy of European Council Regulation (EC) No. 925/1999 is Attachment 3.
2. An affidavit of Thomas L. Connor, Manager of the Noise Division of
Environment and Energy at the FAA , is Attachment 5. The affidavit discusses the noise
certification process, identifies the equipment and manufacturers of equipment targeted
by the Regulation , and, through copies of portions of supplemental type certificates
(STC), establishes that FAA has granted noise certifications to target~d aircraft.
3. Attachment 6 hereto includes portions of STCs for FAA approved hushkits
and an FAA Approved Airplane Flight Manual Supplement to Boeing ?27-200 Airplane
Flight Manual relating to installation of Pratt & Whitney Internal Exhaust Gas Mixer
Noise Reduction Kit. The attached official documentation reflects that aeronautical
authori ties in the United Kingdom and France have accepted aircraft so modified for
operation in the territories of the U.K. and France .
4. An affidavit of Kenneth R. McGuire, President of Burbank Aeronautical
Corporation II ("BAC II"), is Attachment 7. BAC II is a holder of STCs issued by the
FAA for certain Stage 3 hushkit modifications. The affidavit discusses the FAA noise
certification process and establishes that hushkitted aircraft that are targeted by the
Regulation already have been permitted by Respondents to operate in their territories.
(e) Statement of Law
A principal objective of the Chicago Convention is to allow international air
transport services to be "established on the basis of equality of opportunity and operated
soundly and economically ." Chicago Convention, preamble paragraph 3. This objective
may be achieved only if States do not discriminate on the basis of nationality and they do
not deviate from international standards. The prohibition against discriminating on the
basis of the nationality of aircraft is most clearly set out in Articles 11 and 15 of the
Convention. Those Articles prohibit States from relying upon the State of registration of
aircraft as a basis for discriminating, either in the context of promulgating laws affecting
7
Annex 12
international civil aviation or in permitting access to their public airports. See Chicago
Convention Articles 11 and 15.4
Under the Convention, States also undertake "to collaborate in securing the
highest practicable degree of uniformity in regulations ... in all matters in which such
uniformity will facilitate and improve air navigation." Chicago Convention Article 37.
Unquestionably, noise regulations fall within the category of matters requiring such
collaboration. Nevertheless, the Convention anticipates that there will be times when it is
necessary for a contracting State to adopt regulations or practices differing from the
international standards . Accordingly, Article 38 of the Convention sets out guidelines for
States deviating from the international standard, including the obligation to notify ICAO
immediately.
In adopting a discriminatory, design-based standard, Respondents have
disregarded this framework and have violated the Convention. The Convention provides
no defense to the Respondents' violation of the prohibition on discriminating on the basis
of aircraft nationality. However, if a contracting State meets the standards of Article 38
and must adopt noise certification requirements ~tricter than, or in addition to, the
international standard, there is a procedure for it to do so. It must, however, give notice
to ICAO of that difference, in accordance with Article 38 of the Chicago Convention.
Respondents have failed to give such notice. 5
A. The Reizulation Violates Articles 11 and 15 of the Convention
by Discriminating on the Basis of Aircraft Nationality.
Articles 11 and 15 of the Chicago Convention prohibit States from discriminating
among aircraft on the basis of nationality in allowing access to their airports and airspace
or in applying their laws relating to operation and navigation of aircraft. Article 11
provides:
Subject to the provisions of this Convention, the laws and regulations of a
contracting State relating to the admission to or departure from its erritory of
aircraft engaged in international air navigation, or to the operation and navigation
of such aircraft while within its territory, shall be applied to the aircraft of all
contracting States without distinction as to nationality, and shall be complied with
Article 17 of the Convention provides that "aircraft have the nationality of the State in
which they are registered." Accordingly, "nationality" and "state of registration" are used
interchangeably in this Memorial.
The procedure for notifying differences under Article 38 is expressly limited to
departures from international standards and procedures . See Article 38 (Departures from
international standards and procedures). Clearly, States cannot violate the provisions of the
Convention, such as the non-discrimination provisions of Articles 11 and 15, and invoke an
Article 38 notice as a defense.
8
Annex 12
by such aircraft upon entering or departing from or while within the territory of
that State.
Article 15 provides, in pertinent part:
Every airport in a contracting State which is open to public use by its national
aircraft shall likewise , subject to the provisions of Article 68, be open under
uniform conditions to the aircraft of all the other contracting States.
The regulation is inconsistent with Article 11 of the Convention, because it
distinguishes among aircraft, granting or denying the ability to operate within
Respondents' territory, based upon the nationality of the aircraft. See Regulation, Article
3. For example, under the regulation, a targeted aircraft that transfers registries after May
4, 2000, will be excluded from Respondents' airports, but not if both the old and new
registries were in Respondents' states . Thus, the Respondents will inquire into the past
and present nationalities of aircraft and will discriminate against aircraft with similar
noise levels, depending upon their nationalities at specified times. ·
Under the regulation , a targeted aircraft's transfer of registries between the United
States and Canada would re~ult in an aircraft losing its right to operate into Respondents'
airports, whereas, a similar aircraft transferred between two Respondent States could
continue to operate into any of Respondents ' airports. See Regulation, Article 3.
Consequently, a U.S. registered targeted · aircraft sold to, and re-registerec.i in, a third
country after May 4, 2000, would not be permitted to operate into Respondents' airports
after April l, 2002.
Moreover, pursuant to Article 15, contra cting States may not invoke a condition to
deny access to its airports by aircraft of foreign registry, unless those conditions are
applicable on a uniform basis to national aircraft. The regulation violates that provision ,
because it constitutes a condition on access to Respondents ' airports that is not applied on
a uniform basis to aircraft of all nationalities. The regulation targets certain design
standards and denies access to its airports by targeted aircraft not on a Respondent's
registry, in situations where access would be permitted for aircraft that were on any of
Respondents' registries. For example, targeted aircraft of Respondents ' registries may be
transferred freely among those registries and continue to operate into any of Respondents'
airports. However, if a U.S. airline purchased a targeted aircraft from an airline of any
Respondent after May 4, 2000 , the aircraft could not operate into any of Respondents'
airports after April 1, 2002.
The Discrirninatorv Nature of the Re2:ulation is
Demonstrated by its Disparate Impact on U.S. Intere sts
As established above , the regulation discriminates explicitly on the basis of
aircraft nationality, in violation of Articles 11 and 15 of the Convention. However,
impermissible discrimination also has been interpreted, in the context of civil aviation, to
9
Annex 12
include disparate impact, in addition to direct discrimination. See Award on the First
Question, U.S./U.K. Arbitration Concerning Heathrow Airport User Charges (November
1992), at pages 324-26. Unpublished (on file in the Office of the Legal Adviser, U.S.
Department of State) (hereinafter "Award")(See Attachment 8).6
In the U.S./U.K. Arbitration, the arbitral tribunal rejected the argument that the
disputed pricing structure was non-discriminatory, because, objectively, airlines of each
side were subject to the same rate schedule. Rather, the Tribunal found "nothing in
Article 10(2) [user charges provision of the bilateral agreement] or, indeed, in Article 15
of the Chicago Convention on which it is based, to support the proposition that
discrimination need be assessed only by reference to "overt" behavior, "which may, in
fact, mask actual discrimination, when other operational factors are taken into
account. ... "7 Award, eh. 8, at 324-25, para 7. See Attachment 9. The Tribunal further
concluded that "an examination of potentially discriminatory practices requires more than
a superficial comparison of the schedule of charges on a flight by flight basis; rather, it
mandates a closer inquiry into the overall effect of charges and related rules .... " Id. at
326.
Given the clear evidence in the legislative history of the regulation of the EU
intent to target U.S. hushkitted aircraft, and the effect of the regulation on U.S. interests,
·Respondents' violation of the non-discrimination provisions of the Chicago Convention is
established by the disparate impact the regulation has on U.S. interests.
B. Respondents Have Failed to Comply
with Article 38 of the Chicago Convention.
The Respondents have failed to comply with the requirements of Article 38 of
the Convention, because they have adopted a regulation inconsistent with
international standards, without immediately notifying ICAO of the differences
between their own practice and that established by the international standard .
Pursuant to Article 37 of the Convention, States undertake:
Award on the First Question, U.S./U.K. Arbitration Concerning Heathrow Airport User
Charges . Unpublished (on file in the Office of the Legal Adviser, U.S. Department of State)
(hereinafter "Award"). Relevant portions appended at Attachment 8. Discussed in S.M. Witten,
"The U.S.-U.K. Arbitration Concerning Heathrow Airport User Charges," 89(1) Am. Jrnl. Intl.
Law 174-192 (1995) and J. Skilbeck, "The U.S./U.K. Arbitration Concerning Heathrow Airport
Charges," 44(1) The International and Comparative Law Quarterly, pp. 171-179 (1995).
In the Heathrow Arbitration, the arbitral tribunal also considered whether the U.K. 's
failure to monitor "whether the operation of the sharply differentiated peak/off-peak charging
system [for landing fees] was in practice working inequitably, to the detriment of the U.S.
airlines, by reason of British Airways having some advantage, that was denied to Pan Am/TWA,
in relation to re-scheduling flights out of tenninal peak hours." Award, eh. 6, at 207, para
11.2.37 (See Attachment 8).
10
Annex 12
to collaborate in securing the highest practicable degree of uniformity in
regulations ... in relation to aircraft . . . in all matters in whi..:h such uniformity
will facilitate and improve air navigation .
Pursuant to Article 38:
Any State which finds it impracticable to comply in all respects with any such
international standard or procedure ... or which deems it necessary to adopt
regulations or practices differing in any particular respect from those
established by an international standard, shall give immediate notification to
the International Civil Aviation Organization of the differences between its
own practice and that established by the international standard.
ICAO's global standards for aircraft noise certification appear in Volume I of
Annex 16 to the Chicago Convention. Those standards dictate that the noise
evaluation measure for subsonic jet aeroplanes "shall be the effective perceived noise
level." Annex 16, Volume I, Standard 3.2.1.1. (See Attachment 9). This
measurement is to be in EPNdB (Effective Perceived Noise level in decibels) as
described in Appendix 2 to Annex 16, Volume I. Thus, ICAO's Chapter 3 standards
are based on the acoustic performance of the aircraft. The standards_ include
procedures and guidelines for noise measurement, testing, and certification. See
Annex 16, Volume I, Chapter 3 (Attachment 9).
The EC regulation sets out noise standards based upon whether the aircraft
has been modified to meet Chapter 3 standards and wheth~r it has been recertificated .
In conjunction with these tests, the regulation references specific design standards.
Annex 16 does not establish noise standards based on whether aircraft have been
modified or based upon any aircraft design specifications. 8 Thus, the standards that
the Respondents are bound to implement constitute differences from the international
standards set out in Annex I 6.
There can be no question but that the promulgation of noise standards
constitutes a matter in which uniformity would facilitate and improve air navigation,
within the meaning of Article 37. ICAO has, in fact, long been the recognized forum
for setting international noise certification standards for aircraft. Whereas, the
Respondents, through the EU, have acknowledged their regulation as a new
Annex 16, Chapter 3 relies exclusively on aircraft performance levels. Similarly,
Chapter 2 of Annex 16, volume I, adopted in 1977, also relied on aircraft performance for
purposes of determining which aircraft might be restricted under that standard. However,
Chapter 2 also made reference to aircraft engine by-pass ratio, but solely in the context of
exempting such aircraft from the noise standards. (See Attachmen t 9) The provision did not
establish a precedent for restricting aircraft that meet the international noise standard.
11
Annex 12
environmental standard for aircraft;9 nevertheless, they have failed to comply with
the requirement of Article 38 to notify their difference to ICAO.
The regulation already has been challenged in Europe as an unjustified departure
from international standards - and the High Court of Justice in the United Kingdom
supported that challenge . In the case of Regina v. Secretary of State for the Environment,
Transport and Regions, ex parte Omega Air Limited (UK High Court of Justice
November 25, 1999) (hereinafter referred to as the "Omega" case at Attachment 11), the
High Court of Justice noted serious questions as to the validity of the regulation. The
applicant in that case, an Irish company engaged in trading in aircraft and engine
refurbishment, re-engined a number of Boeing 707 aircraft with engines having a by-pass
ratio (BPR) of less than three. The applicant sought the court's referral to the European
Court of Justice (ECJ) for annulment of Council Regulation EC No. 925/1999, with
respect to its restrictions linked to engine by-pass ratio. The Court noted that the
regulation would prevent Omega's re-engined aircraft fro~ being operated in the EU, thus
making them commercially non viable for potential customers. Omega at 4.
The Omega Court generally found in favor of the Applicant, referring to the ECJ
questions relating to the validity of the regulation. Omega at 33. In reaching that
conciusion, the Judge made a preliminary finding that the international standard for
aircraft noise is based on decibel levels and the regulation fails adequately to explain its
reliance on by-pass ratio . Id. at 17. Reviewing both ICAO standards and Article 2 of the
WTO Agreement on Technical Barriers to Trade, which establishes rules against
technical barriers to trade, the Judge determined that the regulation requires explanation
for moving from a decibel level related test to a by-pass ratio method. Id. at 13-17.
Further , the Judge noted the need for some rationale in support of the specific by-pass
ratio chosen. Id. at 17. The Judge noted "his own view" that the regulation seems wholly
defective for these reasons . Id. at 17.
In accordance with ICAO procedures, the State of Registry of an aircraft relies
upon Annex 16 noise evaluation standards in granting or validating noise certification of
an aircraft. An aircraft that complies with requirements that are at least equal to the
Annex 16 standards must be certificated. Annex 16, Volume I, Standard 1.2
C. Respondents Violated Annex 16, Volume I. Standard 1.5
The EC regulation also violates the Respondents' obligation, set forth in Annex
16, to recognize the noise certifications of other States, so long as the other State's
certification standards at least meet the standards in Annex 16. The obligation of
The European Union published in its web page, at www.eurunion.org/news/press/1999,
under "The European Union Press Releases, on March 29, 1999, as EU PR 14/99, a press release
advising that "This legislation places the EU at the forefront of elaborating the most stringent
environmental standards for aircraft which is the normal responsibility of ICAO." See
Attachment 10 ("Press Release") .
12
Annex 12
contracting States to recognize the noise certification of other contracting States is set out
in Annex 16:
Contracting States shall recognize as valid a noise certification granted by
another Contracting State provided that the requirements under which such
certification was granted are at least equal to the applicable Standards specified
in this Annex.
Annex 16, Volume I, Standard 1.5. (See Attachment 9). The EC regulation compels
Respondents to prohibit operation into their territories by some U.S. registered aircraft
that have been granted noise certification in accordance with ICAO Standards; whereas,
Annex 16, Volume I, Standard 1.5 obligates Respondents to open their airports to all
aircraft so certificated. Thus, the EC regulation's imposition of additional tests (including
whether the aircraft has been recertificated, modified, or transferred between registries) in
the context of regulating noise, for purposes granting access into Respondents' airports,
violates Annex 16, Volume I, Standard 1.5.
The obligation of a State to recognize a noise certification means that the State
into which the certificated aircraft seeks to operate cannot deny access to its airspace or
airports on the basis of some additional noise based requirement. Except to the extent
that a State has, in accordance with the requirements of the Convention,- notified a
difference to ICAO, the obligation States incur under Annex 16, Volume I, Standard 1.5
may not be qualified or modified through legislation or administrative regulations enacted
by the individual State. See British Caledonian Ainvays Ltd. v. Bond, 665 F.2d 1153,
1161 (D.C. Cir 1981) (interpreting Article 33 of the Convention, which employs language
equivalent to that in Standard 1.5 recognizing certification granted by other States party to
the Chicago Convention) (See Attachment 12).
In the British Caledonian case, the British airline was joined by Swissair, Balair
AG, Lufthansa, and Alitalia in challenging an order issued by the FAA prohibiting the
operation of all Model DC-10 airplanes within the airspace of the United States, including
aircraft registered in other countries. The order, which addressed an apparent safety
hazard, was issued following a DC-10 crash that killed 271 people and following findings
by the U.S. National Transportation Safety Board (NTSB) to justify grounding the
aircraft.
The matter came before U.S. courts on the argument that FAA violated U.S. law,
the predecessor to 49 U.S.C. § 40105(b)(A), which obligated the FAA Administrator to
comply with U.S. international obligations. The airlines argued, and the court found, that
absent the Administrator raising the question of whether the foreign governments that had
certificated the DC-lOs had failed to observe the minimum safety standards referred to in
Article 33 and set forth in Annex 8, the FAA could not, consistently with Article 33,
question the airworthiness judgment of the country of registry. 665 F.2d at 1162. 10
10 The British Caledonian case involved a violation of Article 33 of the Convention; whereas,
the present disagreement concerns a violation of Standard 1.5 of Annex 16 to the Convention.
13
Annex 12
Notably, the EU rule is not predicated on any finding that the targeted aircraft,
whether modified in the United States or elsewhere, fail to meet the standards of Chapter
3 of Annex 16, Volume I. Neither has any Respondent challenged the t!lfgeted aircraft's
compliance with international standards. To the contrary, the regulation implicitly
recognizes the targeted aircraft's compliance with Chapter 3 standards, by permitting
some of the targeted aircraft to continue operating in the Respondents' territories without
restriction. Furthermore, Respondents have consistently recognized U.S. aircraft noise
certification, including Chapter 3 noise certification of U.S. hush.kitted and re-engined
aircraft, in accordance with their obligation to do so under Standard 1.5 of Annex 16,
Volume I. (See Attachment 9).
The EC regulation creates two classes of aircraft within Annex 16, Volume I,
Chapter 3. While the aircraft in both classes comply with the noise requirements in that
Chapter, one class could be registered and operated in Respondents' territories after April
2002, whereas the other class could not. These classifications are based upon criteria that
have no relevance to the standards in Annex 16, including: whether the aircraft has been
recertificated, whether the aircraft has been operated in Respondents' territories, and
where the aircraft has been registered. These classifications are incompatible with the
requirements of Annex 16.11
•
For these reasons, the EC regulation differs in particular respects from
international standards and, therefore, Respondents were obligated, under Article 38
of the Convention, to give immediate notice to !CAO of the differences between their
practice and the international performance-based standard, once the EC regulation
became law on May 4, 1999.
Furthermore, by assuming an obligation to exclude from their airports, on the
basis of noise, aircraft certificated by the United States as compliant with applicable
international noise standards, Respondents violate their obligation under Annex 16,
Volume I, Standard 1.5 to recognize the noise certifications of other States.
While the Convention provides no justification for non-compliance with provisions of the
Convention itself, the Convention does provide justification and procedures for non-compliance
with standards and the Annexes in Articles 37 and 38. Accordingly, if the Respondents had
appropriate justification and followed Article 38 procedures for notifying differences, their noncompliance
with Standard 1.5 of Annex 16 would not constitute a breach.
II See generally ICAO Document C-Min 156/16 19/3/99 Council - 156th Session,
Summary Minutes of the Sixteenth Meeting (The Council Chamber, Friday 19 March 1999, at
1000 hours) at p.8, para 23 (comments of D/LEB) (Attachment 13).
14
Annex 12
D. Suspension of the Reimlation Neither Excuses
Respondents' Breach nor Justifies Delay of a Review
The regulation, although not yet applied, has been incorporated into law and
represents a binding undertaking of the Respondents. In that regard, the Respondents
stand in violation of Article 82 of the Convention, which provides, in pertinent part:
The contracting States accept this convention as abrogating all obligations and
understandings between them which are inconsistent with its terms, and undertake
not to enter into any such obligations and understandings.
The regulation constitutes a set of obligations and understandings undertaken by
Respondents that are inconsistent with Articles 11, 15, and 38 and Annex 16 of the
Convention. Therefore, the Respondents presently are in breach of the Convention.
Even before its application, the regulation has caused significant harm to
operators of U.S. aircraft as well as to U.S. manufacturers of hushkits and targeted
engines. This harm is suffered because the regulation forces U.S. airlines and U.S.
aircraft to anticipate, in all decisions relating to acquisition, modification, positioning,
operation, maintenance, and disposition of aircraft, the discriminatory. limitations on their
access to Respondents' airports. U.S. airlines are being prevented from making the
decisions most appropriate for their purposes, even among options that would comply
with all applicable international standards.
Furthermore, there is no just reason for delaying a legal review of the regulation.
Just as was found in the Omega decision, the parties to this dispute and all States affected
by the regulation "should be able to act with certainty in regard to the legal efficacy of the
Regulation." Omega at 6. (Attachment 11). The judge in Omega discussed, in this
context, the case of The Queen v. Secretary of State for Health, ex pa rte Imperial
Tobacco Limited [ECJ 1991], where the European Court of Justice held, in light of
existing uncertainty as to whether a particular directive could be made legally effective,
that the Court "should be prepared to grant declaratory relief in respect of the intention
and obligation of the Government of the United Kingdom to implement the requirements
of the directive ... " Imperial Tobacco, EuLR page 582, quoted in Omega at 4-5.
Likewise here, Respondents are obligated to implement the Regulation, which is now
law, and thus, this matter is ripe for review.
(f) Requested Relief
The Applicant respectfully requests that the Council: (1) determine that
Respondents are in violation of Articles 11, 15, 38, and 82 of the Convention and Annex
16, Volume I, Standard 1.5; (2) order Respondents to comply with all provisions of the
Convention; (3) order Respondents to take immediate steps to procure their release from
15
Annex 12
their obligations under the EC regulation; and (3) grant the Applicant such other and
further relief as the Council deems proper and just.
(g) Report of Negotiations
Negotiations to settle the present disagreement have taken place between the
parties but have not been successful. Protracted negotiations have failed to bring the
parties near to agreement , despite engagement at the highest political levels.
l[)p;jJ !/M7a..
David S. Newman
Agent for the United States of America
16
Annex 13
ICAO Council, 161st Session, Summary Minutes of the Fourth Meeting, ICAO Doc. C-MIN
161/4 (15 Nov. 2000)
– 37 – C-MIN 161/4
COUNCIL — 161ST SESSION
SUMMARY MINUTES OF THE FOURTH MEETING
(THE COUNCIL CHAMBER, WEDNESDAY, 15 NOVEMBER 2000, AT 1000 HOURS)
OPEN MEETING
President of the Council: Dr. Ass ad Kotaite
Secretary: Mr. R.C. Costa Pereira, Secretary General
PRESENT:
Algeria — Mr. T. Chérif
Argentina — Mr. J.L. Bacarezza
Australia — Dr. J. Aleck
Botswana — Mr. K. J. Mosupukwa
Brazil — Mr. A.M. Cunha
Cameroon — Mr. T. Tekou
Canada — Mrs. G. Richard
China — Mr. Y. Zhang
Colombia — Mr. J. Hernández López
Cuba — Dr. M. Molina Martínez
Egypt — Mr. A.Y. El Karimy
France — Mr. M.-Y. Peissik
Germany — Dr. H. Mürl
India — Mr. A.P. Singh
Indonesia — Mr. J. Sjioen
Italy — Mrs. L. Aghilarre (Alt.)
Japan — Mr. K. Okada
Kenya — Mr. S.W. Githaiga
Lebanon — Mr. R. Abdallah
Mexico — Mr. R. Kobeh González
Netherlands — Mr. M.A. Kraan
Norway — Mr. O.M. Rambech
Pakistan — Mr. S.N. Ahmad
Panama — Mr. R.E. García de Paredes
Russian — Mr. V.P. Kuranov
Federation
Saudi Arabia — Mr. S. Al-Ghamdi
Senegal — Mr. M. Ndiaye (Alt.)
Slovakia — Mr. O. Fabrici
Spain — Mr. L. Adrover
United Kingdom — Mr. D.S. Evans
United States — Mr. E.W. Stimpson
Uruguay — Mr. C.A. Borucki
ALSO PRESENT:
Mr. F. Robledo (Alt.) — Argentina
Mr. E.M. Salin (Alt.) — Brazil
Mr. J.F. Murphy (Alt.) — Canada
Mr. J. Yuan (Alt.) — China
Mr. E.E. Falcón (Alt.) — Colombia
Mrs. M.C. Saucedo (Alt.) — Colombia
Mr. D. Wibaux (Adv.) — France
Mr. A. Veillard (Alt.) — France
Mr. T. Mickler (Alt.) — Germany
Mr. E.K. Karayannis (Obs.) — Greece
Mr. K. Ohashi (Alt.) — Japan
Mr. S. Takano (Alt.) — Japan
Mr. K. Keldusild (Alt.) — Norway
Mr. E.N. Lobachev (Alt.) — Russian Federation
Mr. D.S. Newman
(Authorized Agent) — United States
Mr. A.I. Mendelsohn (Adv.) — United States
Mr. F.W. Price (Alt.) — United States
Mr. D.M. Shapiro (Alt.) — United States
Mrs. M. Camposano (Alt.) — Uruguay
Mr. J.-L. Dewost
(Authorized Agent) — 15 European States
Mr. E. White (Adv.) — 15 European States
Ms. M. Tousseyn (Adv.) — 15 European States
Mr. P. van den Heuvel (Adv.) — 15 European States
SECRETARIAT:
Dr. L.J. Weber — D/LEB
Mr. G. Griffiths — C/EPO
Mrs. D. Cooper — EPO
Mrs. C. Rideout — CSO
Annex 13
C-MIN 161/4 – 38 –
1. The President of the Council extended a welcome to Mr. Jean-Louis Dewost, the Authorized
Agent of the 15 Member States of the European Union; the Delegation accompanying him;
Mr. David S. Newman, the Authorized Agent of the United States of America; Mr. Denys Wibaux, Advisor
to the French Delegation; and Mr. Allan I. Mendelsohn, Advisor to the United States Delegation.
Subject Number 26: Settlement of disputes between Contracting States
Subject Number 16: Legal work of the Organization
Settlement of Differences: United States and 15 European States (2000)
(Note on Procedure: Preliminary Objections)
2. The above subject was documented for the Council’s consideration in C-WP/11380, in which
the President of the Council provided an overview of the procedure applicable to the case during the
preliminary objections stage; memorandum SG 1670/00 dated 17 August 2000, in which the Secretary General
transmitted the preliminary objections presented by Mr. Dewost, Authorized Agent on behalf of the
15 respondent European States in accordance with Article 5 of the Rules for the Settlement of Differences
(Doc 7 782); and memorandum SG 1674/00 dated 27 September 2000, in which the Secretary General
transmitted the statement of response to the preliminary objections, filed on behalf of the United States.
3. The President of the Council clarified that the Council’s consideration of this subject was of
a procedural nature, limited to the preliminary objections of the European States and to the response of the
United States, and would not address the merits of the case. The President also clarified that for this case the
above-mentioned Rules for the Settlement of Differences and the Rules of Procedure for the Council
(Doc 7559) would be used. The previous proceedings related to the Pakistan vs. India case (1971) and the
decision of the International Court of Justice in the case Appeal Relating to the Jurisdiction of the ICAO
Council, India vs. Pakistan (1972) would also be taken into account. The President reminded the Council that
for the case before it, the Council was sitting as a judiciary body.
4. The Council heard a presentation by Mr. Jean-Louis Dewost, the Authorized Agent of the
15 Member States of the European Union, who observed that the case before the ICAO Council today, in which
the Council was being invited by one of the ICAO Contracting States–i.e. the United States of America–to
decide, according to Article 84 of the Chicago Convention, a dispute between it and the fifteen Member States
of the European Union, was only the fifth to be brought since 1944. He also pointed out that in only one of
those five cases had the Council taken a decision in favour of one Contracting State and against the other.
Mr. Dewost indicated that he would first present the preliminary objections of the 15 Member States of the
European Union, then reply in detail to the response of the United States, and at the end make some concluding
remarks.
Part I–Presentation of the Preliminary Objections
5. Mr. Dewost recalled that the subject of this dispute was a European Community (EC) Council
Regulation No. 925/1999 adopted on 29 April 1999, designed to “freeze” the number of the noisiest aircraft
which could be registered in, or operated into, the European Union (the so-called “hushkit” regulations). For
those who were not familiar with EU law, Mr. Dewost clarified that the European Union was a political entity
with a separate legal personality from those of its constituent Member States (“the fifteen”), vested with
law-making power as well as treaty-making power and enjoying the capacity to be a party to legal proceedings.
Regulation 925/1999 was therefore a legal act binding States as well as economic operators. Although the
fifteen EU Member States were bound to implement this Regulation, they had no capacity to alter it or to
Annex 13
– 39 – C-MIN 161/4
withdraw it, since it belonged to the Community legal order and was a result of the Community legislative
procedure. For the sake of completeness, Mr. Dewost also explained that he had been appointed as Counsel
of the fifteen Member States in this dispute because the European Union as such was not a member of ICAO.
6. As regards the claims of the two parties, Mr. Dewost observed that on one hand, the United
States was claiming that the Regulation enacted by the Council of the European Union was causing severe
damage to the industries making hushkits and certain low bypass ratio engines, and that it had diminished the
resale value of the fleets operated by some US airlines. This, he contended, had nothing to do whatever with
the interpretation or application of the Chicago Convention.
7. On the other hand, to put it in a nutshell, the fifteen Member States which Mr. Dewost had
the honour to represent claimed, in response to the US claim, that Regulation 925/1999 aimed to reconcile a
sustainable growth of air traffic and the protection of environment, these two objectives being in full agreement
with ICAO policy reflected in Resolution A32-8 (Consolidated statement of continuing ICAO policies and
practices related to environmental protection). In no way did the Regulation violate ICAO noise standards,
as the United States claimed, for the good reason that the Chapter 3 standard applied only for the certification
of prototype aircraft and did not deal with aircraft already in operation. The Regulation addressed, in the least
disruptive manner for civil aviation, the very serious problem of noise around European airports, a problem
with which populations were more and more deeply concerned, as had been demonstrated by the European
Parliament in the debate it had held on hushkits. By freezing noise damage from recertificated aircraft,
Regulation 925/1999 in fact preserved the possibilities for air traffic growth in European airports, which
would benefit the whole civil aviation community.
8. The subject under discussion therefore concerned, on one hand, the private interests of
US industry and, on the other, the growing public concern in Europe for environmental protection of the
populations living in the vicinity of airports as well as the general interest of all carriers landing in Europe.
In these circumstances, the United States was asking the Council to take four decisions:
1) to determine that the fifteen EU M ember States were in violation of Articles 11
(Applicability of air regulations), 15 (Airport and similar charges), 38 (Departures
from international standards and procedures) and 82 (Abrogation of inconsistent
arrangements) of the Convention and Annex 16, Volume I, Standard 1.5;
2) to order them to comply with all provisions of the Convention;
3) to further order them to take immediate steps to procure their release from their
obligations under the EU Regulation; and
4) to grant the United States such other and further relief as the Council deems proper and
just.
9. The fifteen EU Member States were of the opinion that these requests were inadmissible:
1) because the subject of the dispute fell outside the scope of Article 84, since it was not a
dispute about the interpretation or application of the Chicago Convention;
2) because in any case, negotiations on points of law that the United States raised for the
first time in its Application had not taken place before it had been filed;
Annex 13
C-MIN 161/4 – 40 –
3) because the general rule governing public international law disputes between sovereign
States (that is, the necessity to exhaust local remedies before having recourse to
international procedure) had not been respected; and
4) because in any case, the aim of Article 84 procedure was not to issue injunctions or orders
to Contracting States but to give a legal appreciation of the respective claims, leaving to
them the choice of the measures they wished to take in order to implement the Council's
decision.
10. Focussing on the main points, Mr. Dewost argued that although there had of course been prior
negotiations, these had been political negotiations, the constant request of the United States being that the EU
should repeal the Regulation. The United States had never engaged in a legal debate on why the Regulation
could be considered contrary to the Convention or on how it could be amended. The text of Article 84 was
clear. The prior negotiations must relate to the disagreement about interpretation or application of the
Convention. Negotiations to find a political solution–however laudable and desirable–did not serve the same
function, which was to define and narrow the legal issues before they were made the subject of a litigation.
11. The United States’ response to the EU argument concerning the "local remedies rule" was even
weaker. To pretend that the US claim was a claim of direct injury to the United States thus rendering access
to European courts useless, after having developed at length in the Application that there was a huge damage
to US companies, and having based its request for the repeal or setting aside of the Regulation on that damage,
was not very credible. Mr. Dewost wished to inform the Council in this connection that industry had found its
way to the courts and that there were three court cases pending at present in the United Kingdom, Ireland and
the European Union.
12. Last but not least, having not succeeded in their pressures on the European Union to get
Regulation 925/1999 purely and simply repealed because they considered it hurt some industrial interests, the
United States now turned to this Council, asking it to order the Member States of the EU to procure their
release from their obligations under the Regulation, which had been enacted according to the competencies and
rules of procedure of the European Union Institutions.
13. This was a b rand new approach. The fifteen Member States which Mr. Dewost was
representing today were active Members of this Organisation; they supported ICAO’s work and trusted that
this work was essential for an orderly and sustainable development of world civil aviation. They had the utmost
respect for the Council and for President Kotaite’s competence and skills in this respect. But the way this
Organisation had been successful was a classical way of progressive consensus-building among its Members.
Those Members were sovereign States which had accepted well-defined limitations of competencies whilst
ratifying the Chicago Convention. They could not be deemed to have surrendered globally their competencies
in the whole field of civil aviation and, all the more, in the field of environmental protection.
Part II–Detailed Reply to the United States’ Response
Introduction–the nature of the preliminary objections
14. Turning to his detailed, point-by-point reply to the US Response of 15 September 2000,
Mr. Dewost, by way of introduction, wished to offer some comments about the nature of the fifteen
EU Member States’ Preliminary Objections, which had been taken as a denial of the Council’s competence
to deal with the questions posed by the Application. This was a misunderstanding. The Preliminary Objections
Annex 13
– 41 – C-MIN 161/4
concluded with the statement that “the ICAO Council has no jurisdiction to handle the matter presented by the
Applicant”. This formulation had been textually drawn from Rule 5 of the Council’s Rules for the Settlement
of Differences and in fact referred, as the content of the preliminary objections made clear, only to the
admissibility of the Application in its present form and at the present time–not of course to the competence of
the Council to decide a dispute of this kind. If there had been any misunderstanding about the fifteen States’
attitude arising out of this formulation, Mr. Dewost asked that the Council accept their apologies for not being
sufficiently clear from the outset.
15. The Preliminary Objections were indeed not challenges to the Council's competence; they were
challenges to the United States’ right to bring this case before the Council at this time and to its right to demand
the issuing of orders to Contracting States of ICAO.
16. As was made clear in their Preliminary Objections, the fifteen EU Member States fully
recognised–and wholeheartedly supported–the role of ICAO in establishing global standards for all matters
affecting the safety, regularity, and efficiency of air navigation, and also the role of the Council in resolving
disputes on the interpretation and application of the Convention and its Annexes. Mr. Dewost wished to
reassert formally the unambiguous will of the fifteen EU Member States to co-operate fully in the
development of ICAO policies in the field of noise standards and other environmental policies and to promote
their respect through efficient methods such as the audit method that ICAO was successfully developing in the
field of safety.
The Negotiations
Introduction
17. Highlighting the importance of prior negotiations, Mr. Dewost clarified that the preliminary
objection relating to the absence of negotiations was not a formal and technical legal nicety; it was of real and
fundamental importance.
18. The Council, as the key decision-making body of ICAO, had an essential role to play in
developing, formulating, and especially building consensus around the rules, policies, standards and
recommended practices that would allow international civil aviation to develop into the 21st Century. The
Council had also been given a judicial role, to adjudicate disagreements between Contracting States. This role,
if extended beyond reason, had the potential to distract the Council from, and destroy the necessary climate for,
its main role of consensus building. That was why the Convention so clearly and so wisely provided that
adjudication of disagreements by the Council should be a last resort, that is, it should only be available after
negotiations had failed. That was also why the Convention provided that the disagreements which could be
adjudicated in this way must relate to clearly defined legal questions "relating to the interpretation or
application of the Convention", and not to disguised disputes on policy. Policy questions must absolutely be
resolved by the Council acting in its consensus-building mode, not in a conflictive, dispute settlement mode.
19. It was, of course, possible for the legal issues about which there was disagreement to be
defined during the litigation, but there was a significant difference between defining the legal issues before
bringing of a case to an adjudicatory body and doing so during the proceedings. For one thing, it was much
more difficult to come to a settlement in the heat of a dispute than before it had started. But perhaps more
importantly, the fact of defining the exact scope of the legal disagreement helped to find a way of reconciling
the conflicting positions. Once the meaning of "non-discrimination" provisions of the agreement or the relevant
provisions relating to ICAO standards and recommended practices had been debated between the parties and
Annex 13
C-MIN 161/4 – 42 –
some measure of agreement reached as to their meaning, it would be much easier to identify and possibly agree
on the various options available to the parties. Such a debate might well have led the parties to this dispute to
consider changes to the Regulation that would have satisfied any legitimate legal concerns of the United States.
However, as was demonstrated by the documents annexed to the Preliminary Objections, the United States,
instead of engaging in this exercise, had simply reiterated its demand for the total repeal of the Regulation.
20. The respondent States were ready to enter into proper negotiations with the United States. But
for this to happen, it was necessary for the ICAO Council to tell the United States that this was what was
required by Article 84 as a precondition for asking the Council to become involved in the disagreement.
The historical record of the negotiations
21. Mr. Dewost next answered the United States’ detailed arguments on the historical record of
the negotiations, on what it termed "the legal standard" contained in Article 84, and on the question of whether
the negotiations needed to relate to specific legal claims. He noted that the United States alleged in Sections 1.1
and 1.2 of its Response that the history of the dispute contained in Annex 1 to the Preliminary Objections was
“incomplete and inaccurate”.
22. On the question of completeness, there was no claim of course to have presented a complete
account of the contacts between the parties--merely the most recent and relevant documents. As the United
States recognised itself, these contacts had occurred at various levels and in various forms and “it would be
virtually impossible to set out a complete history” (page 2 of the US response). The documents were, to a large
extent, repetitious, but what mattered for the Council was whether any of the documents demonstrated, as
required by Article 84 of the Convention, the holding of negotiations to resolve a disagreement relating to the
interpretation or application of the Convention.
23. The further documents submitted by the United States–who, it must be remembered, had the
burden of proof–did not help prove that the negotiations required by Article 84 of the Convention had taken
place.
24. Before explaining why the contacts that had taken place did not satisfy the legal requirements
of Article 84, Mr. Dewost wished to highlight the following points:
• It was clear from the documents submitted both by the United States and in the Preliminary
Objections that the United States’ concerns related to merchandise matters (the effect of Regulation 925/1999
on hushkits, engines and used aircraft) rather than aviation matters;
• Although the correspondence referred a number of times to Annex 16, nowhere did it
mention the provisions on which the United States was relying in this case, i.e. Articles 11 (Applicability of
air regulations), 15 (Airport and similar charges), 37 (Adoption of international standards and procedures),
38 ( Departures from international standards and procedures) and 82 (Abrogation of inconsistent
arrangements) of the Convention and paragraph 1.5 of Chapter 1 to Annex 16;
• On the occasions where there had been an exchange of views as opposed to the sending of
démarches, this had related to policy issues, not legal issues of interpretation or application of the Convention;
and
Annex 13
– 43 – C-MIN 161/4
• The United States’ allegation that a letter of Mme de Palacio of 3 February 2000 "reflects
the common view of the parties that it had not been possible to resolve the dispute despite extensive
negotiations" was false. What Mme de Palacio had actually said in that letter was that consultations had been
undertaken to find a "mutually acceptable way forward " on the question of hushkitted aircraft and that
"unfortunately it has not so far been possible to find a way to resolve this problem." Clearly Mme de Palacio
was referring to attempts to find a policy agreement ("mutually acceptable way forward") and also considered
that it was still possible to find a solution (she had said "so far").
25. An effort had been made to settle the political dispute with the United States. The
correspondence s howed an agreement ad referendum to an Action Plan and Joint Declaration on
23 February 2000 establishing common objectives for the 33rd Session of the ICAO Assembly in 2001 on the
definition of a new standard on aircraft noise and rules for transition towards this new standard. On page 5 of
its Response, the United States sought to dismiss this as "irrelevant" and "unsubstantiated."
26. Mr. Dewost was confident that the Council would come to its own view of the relevance of
this agreement in establishing the fifteen EU Member States’ good faith. On the issue of its substantiation,
Mr. Dewost wished to submit to the Council a letter dated 1 March 2000, in which the United States industry
rejected the Action Plan and Joint Declaration and demanded that legal proceedings be pursued. However,
the essential point on the inadequacy of the negotiations was that the United States had never engaged in a legal
debate on why or how the Regulation could be considered to be contrary to the Convention. This was despite
the initiative which had been taken, in a letter dated 26 February 1999 from the responsible Member of the
EU Commission to the United States Secretary of State for Transportation, to explain why it was considered
that the Regulation could not be considered as a new noise standard, had no effect on noise certification, and
could not be considered inconsistent with Annex 16 or discriminatory or unjustified. No response had been
forthcoming from the United States to the arguments contained in that letter.
27. It was noteworthy that when the effective date of the Regulation had been suspended, United
States Secretary of State Daley had welcomed the opportunity that this gave to work bilaterally and
multilaterally on a solution to the underlying problem of airport noise. Secretary of State Daley had made at
that time in his statement no mention of any legal objections to Regulation 925/1999 and had indicated that the
United States considered the concerns about aircraft noise to be legitimate. The United States did not in fact
contest that it had not set out the legal basis of its complaint before referring the disagreement to the Council.
Its real arguments were that a failure of settlement by negotiation was a precondition for the Council to decide,
rather than for an application to be made, and that negotiations did not have to cover legal claims.
The legal standard
28. Addressing these arguments in order, Mr. Dewost stated firstly that the United States sought
to escape the consequences of its failure to seek to settle the dispute by negotiation by arguing that the “legal
standard” in Article 84 applied as a condition for the Council to take a decision, not as a condition for a
Contracting State to refer a disagreement to the Council. This argument was based on a fundamental
misinterpretation of Article 84 of the Convention, which stated that “If any disagreement between two or more
contracting States relating to the interpretation or application of this Convention and its Annexes cannot be
settled by negotiation, it shall, on the application of any State concerned in the disagreement, be decided by
the Council.” The Council decided on the application of “any State concerned”, and the application could only
be made if the disagreement "cannot be settled by negotiation." It was clear from the text that the application,
as well as the decision, must come after the failure of negotiations.
Annex 13
C-MIN 161/4 – 44 –
29. The United States was arguing that the failure of negotiations could occur after the application,
at any time during the proceedings prior to the taking of the decision by the Council. This was a contorted
reading of the text that made no sense. If the parties to a dispute settled their disagreement before the Council
decided, there would be nothing left for the Council to decide. The purpose of including in Article 84 a
requirement that the "disagreement cannot be settled by negotiation" was to ensure that the parties first try to
settle their disagreements themselves before referring them to the Council for decision. If this had not been the
intent of the drafters of the Chicago Convention, they would surely have simply omitted any reference to a
requirement that the disagreement "cannot be settled by negotiation."
30. The United States sought to argue that the standard for initiating a proceeding under Article 84
was that specified in Article 2(g) of the Rules for the Settlement of Differences–“that negotiations to settle the
disagreement had taken place between the parties but were not successful.” There was no conflict between the
Rules and the Convention; the phrases meant exactly the same. Indeed, by specifying that an application must
explain that negotiations had taken place but had not been successful, the Rules confirmed the view that
negotiations to settle the dispute were a pre-condition for the making of an application.
31. The above view of the meaning of the obligation to negotiate, i.e. that it was a pre-condition
for the making of an application under Article 84, had also been shared by the judges of the International Court
of Justice ("ICJ") when considering the appeal by India against the Council's decision on its jurisdiction to hear
the disagreement referred to it by Pakistan. For example, Judge Onyeama had had the following to say in his
separate opinion: “It seems to me that the first requirement of Article 84 is that a disagreement between
contracting States should first be negotiated. This requirement fully accords with the expressed desire to avoid
friction.” (In Appeal Relating to the Jurisdiction of the ICAO Council, Separate Opinion of Judge Onyeama
of 19 January 1972, ICJ Reports 1972, page 87).
32. The separate opinion of Judge Onyeama dissented from the view of the rest of the majority
on the question of the jurisdiction of the ICJ to hear the appeal, but agreed with the majority on the competence
of the Council to decide the disagreement. However, the above quoted section did not contradict any statement
by the majority or by itself lead to the conclusion that the majority was wrong. The majority had considered
that the ICJ was competent to hear the appeal essentially because a decision on jurisdiction could determine
the outcome of a case. The real question–whether the "dispute" that must be the subject of the negotiations may
be a dispute about policy, or must rather be an articulated disagreement about the interpretation or application
of the Convention–would be addressed in a moment.
33. In conclusion of the issue of the "legal standard" Mr. Dewost added that even if the United
States were correct, it would mean that the proceeding should be suspended so as to allow negotiations to take
place before the Council could decide. The respondents had, he believed, made abundantly clear their
willingness to engage in such negotiations.
Negotiations must cover legal claims
34. The US finally admitted itself that, for a complaint under Article 84 of the Convention to be
admissible, "an applicant may be asked to prove that negotiations were held but were unsuccessful." (Statement
of Response of the United States attached to Memorandum SG 1674/00 of 27 September 2000, page 7). The
United States avoided specifying, however, on what subject negotiations must be held. The more important
issue in respect of this preliminary objection was not whether contacts had taken place, but whether they needed
to, and did, cover articulated legal claims.
Annex 13
– 45 – C-MIN 161/4
35. Article 84 was clear; it provided that the "disagreement" which could not be settled by
negotiation and was to be referred to the Council must relate to the “interpretation or application of this
Convention”. As already explained, the United States had never articulated issues of interpretation or
application of the Convention. The rationale for requiring negotiations to define the legal issues in dispute was
precisely to distinguish legal from political disputes.
36. As was indicated in the Preliminary Objections, the Council should not, in Article 84
proceedings, be asked to adjudicate political disputes between individual Contracting States. This was not only
an abuse of the procedure, it would also undermine its very function.
37. The respondents’ view of the requirements of Article 84 was borne out by the international
law cases cited in the Preliminary Objections.
38. The United States singularly failed to comment on the explanation of the meaning of the term
"dispute" or "disagreement", referred to in the Preliminary Objections, that had been given in a judgment of the
International Court of Justice in the case Nicaragua vs Honduras. The United States sought to confine its
comments to the Continental shelf case, which the the respondents had only mentioned in connection with the
meaning of "negotiations". The real question here was the "dispute" or "disagreement" that must be the subject
of the negotiations. Article 84 of the Convention clearly stated that it must relate to the “interpretation or
application of this Convention and its Annexes”. That this was also the generally applicable rule in
international law was demonstrated by the following extract from the Nicaragua vs Honduras case just referred
to: “The Court, as a judicial organ, is ... only concerned to establish, first, that the dispute before it is a legal
dispute ...”.
39. In its Response, the United States failed to deal with this issue. Section 1.4 of its Response
was entitled "Negotiations need not cover specific legal claims," but the text that followed did not deal with this
question. It discussed instead the entirely separate issue of the degree of probability that was required that
further negotiations would not resolve the dispute. This question however did not arise until the legal claims
were identified. As demonstrated above, the contacts that had preceded the Application had not identified legal
claims.
40. The section of the opinion of Judge Onyeama in the case between Pakistan and India quoted
above further confirmed the fifteen EU Member States’ point of view. It stated that:
“What is to be negotiated is a disagreement relating to the interpretation or application of the
Convention; that is to say, a difference of opinion as to the meaning of some provision of the
Convention, or as to how such a provision should be applied between contracting States in the field
of aviation." (In Appeal Relating to the Jurisdiction of the ICAO Council, Separate Opinion of
Judge Onyeama of 19 January 1972, ICJ Reports 1972, page 87)
Conclusion
41. For the above reasons, the respondent States asked the Council to declare the Application
inadmissible at the present time, since the necessary preliminary negotiation on the legal subject matter of the
disagreement had not yet taken place, and to reserve its adjudicatory function for a time when this
pre-condition had been complied with.
Annex 13
C-MIN 161/4 – 46 –
The Local Remedies Rules
42. Mr.Dewost was pleased to note that the United States accepted that the local remedies rule
existed and that it was correctly stated in the Ambatielos case, in the passage that the United States itself
quoted, as meaning that:
“the State against which an international action is brought for injuries
suffered by private individuals has the right to resist such an action if the
persons alleged to have been injured have not first exhausted all the
remedies available to them under the municipal law of that State.”
(Response of the United States, page 10)
The point made in the Preliminary Objections was that the injury about which the United States complained
was all damage to companies. It was true that the United States was not asking for damages, but it was relying
on injury to its companies, and its goal was to eliminate the Regulation for the benefit of its companies.
43. The United States could not deny, and had not indeed denied, that the Regulation was
presently subject to challenge before the national courts of EU Member States and before the European Court
of Justice. Although the grounds of challenge to the Regulation in the cases presently with the European Court
of Justice for consideration were to a large extent, but not entirely, different to those sought to be presented
to the ICAO Council, the plain fact was that if those cases were successful, both the Applicant in those cases
and the United States would have achieved the remedy desired - the Regulation being rendered unenforceable
in the European Union. That was an additional reason why it would be wise to await the outcome of the
litigation before engaging in complex legal adjudication before the Council.
The Requested Relief
Introduction--the arguments of the United States
44. The third preliminary objection against the Application, i.e. concerning the excessive remedies
demanded by the United States, had, as mentioned above, been misrepresented as an attack on the competence
of the Council.
45. As the key decision-making body of ICAO, the Council had been given very considerable
powers and duties. Amongst these were specific powers for the resolving of disagreements between
Contracting States. These powers, defined in the Convention, were to decide any disagreement between two
or more Contracting States relating to the interpretation or application of the Convention and its Annexes
which could not be settled by negotiation. These powers were not challenged. All that the responding States
challenged was the pretension of the United States that it could require the Council to impose new obligations
on a Contracting State, i.e., to order a Contracting State to take certain specific action.
46. Accordingly, what was at issue was not so much the powers of the Council, but whether an
individual Contracting State was entitled to demand that the Council issue orders to another Contracting State
concerning the way in which this State had to implement its obligations. The judicial role of the Council must
Annex 13
– 47 – C-MIN 161/4
be interpreted so as not to interfere with, and destroy the necessary climate for, its main role of formulating
and building consensus around the rules according to which civil aviation could develop.
47. The United States was asking the Council to go beyond declaring the correct interpretation
of the Convention, and to take this further step of ordering precise measures that were to be taken by a
Member to implement its obligations. This went further than allowed by the Convention and would constitute
a restriction of the sovereignty of Contracting States, which it was a purpose of the consensus-building
approach to protect.
48. The obligations which Contracting States had under the Convention were those that had been
accepted by them in concluding the Convention and those created under the Convention according to the
procedures set out therein. Article 84 of the Convention existed because there may be disagreements as to what
the obligations under the Convention were. The Council then was called upon to decide, subject to review by
the International Court of Justice, what these obligations were, but not to create new obligations or to decide
how the obligations which existed were to be fulfilled. Either an obligation existed or it did not. A decision
by the Council under Article 84 could not create it. Therefore, the Council could indeed declare the existence
of an obligation to cease the violation, but could not dictate to the party concerned how precisely to bring itself
into conformity with its obligations under the Convention.
49. Regulation 925/1999 had not been adopted in application of the Convention or its Annexes.
The United States’ case was that various provisions of the Convention and its Annex 16 prohibited measures
such as the Regulation. The disagreement between the parties was therefore about the interpretation of these
provisions, and the task of the Council was to decide the disagreement by declaring the correct interpretation
of those provisions. The obligation to respect those provisions as so interpreted, i.e. to implement a
Contracting State's obligations, derived directly from the Convention without any need for the Council to set
it out.
50. The United States seemed to be making a number of arguments to the effect that such a power
to make orders must be implicit in the Convention. These were:
• that the pleadings in the Article 84 case brought by Pakistan against India contained
requests for the Council to issue orders to India;
• that "International tribunals" grant relief of the kind requested by the United States;
• that the Respondent's position would deprive the Council of powers essential to perform
its duties;
• that Article 87 of the Convention referred to airlines "failing to conform” to decisions
of the Council and Article 88 spoke of Contracting States being "found in default";
• that Article 2(g) (sic) and Article 13(2) of the Rules implied that the requested relief was
available; and
Annex 13
C-MIN 161/4 – 48 –
• that International law required a State that was found in breach of international
obligations to cease the illegal conduct and make reparation, and the Council must have
the power to determine the existence of such obligations.
ICAO precedents
51. There was no precedent of the Council ordering a Contracting State to take certain action,
as the previous cases had never reached that stage. It was true that Pakistan had asked the Council to award
damages on the occasion of its dispute with India. There had, however, been no debate on the admissibility
of such a request, and the merits of the dispute had never been adjudicated.
52. The request for the Council to make orders had not, however, escaped comment from the ICJ.
Judge Dillard, who was in "fundamental agreement with all the conclusions of the ICJ and the reasons
supporting them", had commented as follows in his separate opinion, rendered "especially as the thrust of
India's main contention has implications reaching beyond this particular case."
The Council has no general power to adjudicate disagreements among
contracting States. Its powers are strictly derivative and thus depend on the
terms of the Convention and Transit Agreement.
Article 84 of the Convention and Article II, Section 2, of the Transit
Agreement (by reference to Article 84) confer the power to decide ‘... any
disagreement between two or more contracting States relating to the
interpretation or application’ of the Convention and its Annexes”.
53. It was clear to the fifteen respondent States, at any rate, that there was no power for the
Council to award damages or otherwise to impose on a contracting State obligations which were not in the
Convention itself.
The powers of “international tribunals”
54. The United States claimed that "international tribunals" automatically had the powers that
it was asking the Council to assume. In fact, the only "international tribunal" it referred to was the ICJ. It was
clear that the ICJ was vested with wider powers under its statute than was the ICAO Council in the settlement
of disputes under Article 84 of the Convention. Article 36 of the Statute of the ICJ gave the ICJ power to
decide all claims referred to it and specifically jurisdiction in disputes over the interpretation of treaties, any
question of international law, breaches of international obligations and the nature and extent of the required
reparations.
55. The fifteen EU Member States agreed, of course, that international law created an obligation
for a State responsible for a violation of international law to cease its illegal conduct and make reparation. The
American Law Institute and the International Law Commission of the United Nations (“ILC”), referred to by
the United States, correctly stated the principle. However, the point was that the ICJ had jurisdiction to
entertain claims relating to these obligations. According to Article 36 of its Statute, it had jurisdiction over
Annex 13
– 49 – C-MIN 161/4
"all cases which the parties refer to it" and Article 38 provided that it was to apply international law and gave
a complete definition of the sources of international law.
56. The ICAO Council was of course a very different body from the ICJ. It was not a court and
should not be transformed into a permanent court. It was principally a policy-making and management body.
The settlement of legal disagreements was only an ancillary and, one would hope, very occasional function.
The Convention wisely limited the role of the Council in this regard to deciding a disagreement on the
interpretation or application of the Convention by making a declaration as to who was right and who was
wrong, and did not go on to ask the Council to make orders as to how a contracting State should behave in
the future.
57. The Council had recognised the different nature of its powers compared with those of the ICJ
when it had drawn up its Rules for the Settlement of Differences. Article 15, which set out the required content
of the Council decision on a disagreement, merely provided that it should state “the conclusions of the Council
and its reasons for reaching them". This was in sharp contrast to the Rules of the ICJ, which provided that a
judgment shall state its “operative provisions." The terms of the Council's Rules were otherwise quite close
to those of the ICJ on which they were based. But the deliberate change in terminology on that point was a
reflection of the fact that the Council had purely declaratory powers in dispute settlement under the
Convention.
58. The United States sought to find support for its "inherent powers" theory in the Third Report
on State Responsibility of ILC. It misquoted the ILC, however, and the actual words of the ILC in fact
supported the opposite position. What the ILC had actually said was that :
The Commission is of the v iew that all that international law - and
international bodies - are normally fit or enabled to do with regard to
internal legal acts, provisions or situations is to declare them to be in
violation of international obligations and as such sources of international
responsibility and further to declare the duty of reparation, such reparation
requiring, as the case may be, invalidation or annulment of internal legal
acts on the part of the author State itself. (Paragraph 9 of the Commentary
to Article 7 (now Article 43) of the draft Articles on State Reponsibility.
Draft Articles provisionally adopted on second reading by the Drafting
Committee (1998) Source: United Nations Doc. A/CN.4/L.569,
4 August 1998. The United States referred in its Response to the Third
Report which was quoting from the commentary.)
59. It was clear from the terms used ("all that international law - and international bodies - are
normally fit or enabled to") that the ILC had been describing the maximum powers that may be given to
international bodies. It was not affirming that they automatically or implicitly had such powers.
60. The other point to make about this statement of the ILC was that it made clear that the powers
of international tribunals with respect to internal acts is to make declarations. There was no power to grant
orders or injunctions in respect of internal acts of States. That the Chicago Convention was no exception to
Annex 13
C-MIN 161/4 – 50 –
this general rule was clear from the fact that the power to decide legal disputes was limited to the
“interpretation and application” of the Convention..
61. In other international organisations with dispute settlement powers, it was a generally
recognised fact that there were normally a number of ways to “bring a measure into compliance”, including
modification as well as the removal of the measure, and the taking of separate action to solve the dispute.
62. Where States intended to give the organs of the international organisations that they created
the power to impose on Members the means by which certain obligations were to be implemented, they
specifically provided for this. This fact was illustrated by the provisions of the Constitution of the International
Labour Organisation (ILO) which provided in its Article 26 that the ILO Governing Body could establish a
Commission of Inquiry which may issue a report containing "recommendations as it may think proper as to
the steps which should be taken to meet the complaint and the time within which they should be taken"
(Article 28). In case of non-acceptance of the recommendations, the matter could be referred to the ICJ, and
in this respect Article 33 specified that:
In the event of any Member failing to carry out within the time specified the
recommendations, if any, contained in the report of the Commission of
Inquiry, or in the decision of the ICJ, as the case may be, the Governing
Body may recommend to the Conference such action as it may deem wise
and expedient to secure compliance therewith.
The Chicago Convention did not, of course, provide for the Council to adopt recommendations of this kind.
63. The United States was asking the Council to assume powers to restrict a Contracting State's
options for compliance by requiring repeal of the Regulation. This would not only interfere with that choice,
in the absence of any legal basis, it would also be a disproportionate and inappropriate interference in the
sovereignty of Contracting States, who alone were in the position to know how they could best implement their
international obligations.
The Council is able to perform its duties within its existing powers (Articles 82 and 83 of
the Convention)
64. The United States was also claiming that "the authority to ‘create new duties’ applicable to
States found in violation of the Convention ... is essential for the Council to fulfil its mandate to resolve
disputes, as anticipated by the Convention." (Page 20 of the United States’ Response). The Convention
contained the dispute resolution mechanism that the Contracting States wanted to create - not the one that the
United States would like to apply to other countries in order to secure an effective solution to its perceived
problems. The general rule in international law was that States were their own judge of what their obligations
were and how they would implement them. The system was based on the presumption that States would fulfil
their obligations, once it was clear what they were, in good faith. It was also based on the principle of State
sovereignty. Most international agreements did not have any dispute resolution mechanism.
65. The power of the ICAO Council to make declarations of the correct interpretation or
application of the Convention was essential in order to carry its function, which was to decide disputes. The
Annex 13
– 51 – C-MIN 161/4
15 EU Member States had never disputed this power. They failed to see how the United States could consider
that the supplementary powers that it was asking the Council to assume derived from Articles 82 and 83 of
the Convention.
66. Footnote 14 of the Response attempted to import some reasoning into the United States'
undeveloped argument by quoting Article 82 of the Convention out of context and suggesting that Article 82
required the abrogation of inconsistent agreements. The EU Regulation was not of course an agreement but,
quite apart from this, Article 82 simply did not say this. The full text of the sentence of Article 82 from which
the United States quoted in its footnote 14 was:
A contracting State which, before becoming a member of the Organization
has undertaken any obligations toward a non-contracting State or a national
of a contracting State or of a of a non-contracting State inconsistent with the
terms of this Convention, shall take immediate steps to procure its release
from the obligations.
67. It was clear that this provision was not providing for an obligation consequent upon a
decision rendered under Article 84 of the Convention, but merely an obligation consequent upon accession to
the Convention.
68. The United States' reference to Article 83 of the Convention was perplexing. The United
States was suddenly claiming that the Regulation was “inconsistent with” Article 83 of the Convention, which
it claimed "permits States party to the Convention to enter only into those arrangements that are not
inconsistent with the provisions of the Convention". Article 83 had not been invoked in the Application and
could not now be used to allege an inconsistency with the Convention.
69. But more importantly, beyond this procedural point, Article 83, which was entitled
"Registration of new arrangements" was not prohibiting any kind of arrangement; it was providing a right to
enter into certain arrangements and creating an obligation of registration. It stated that:
Subject to the provisions of the preceding Article, any contracting State may
make arrangements not inconsistent with the provisions of this Convention.
Any such arrangement shall be forthwith registered with the Council, which
shall make it public as soon as possible.
70. Article 83 therefore related to the registration with ICAO of bilateral air services agreements.
It did not require the registration with the Council of every measure that Contracting States may adopt in the
field of civil aviation.
The other dispute settlement provisions of the Convention--Articles 87 and 88
71. The United States also argued that the claimed powers were implicit in Article 87 of the
Convention, which referred to airlines "failing to conform" to decisions of the Council and Article 88 which
spoke of Contracting States being "found in default".
Annex 13
C-MIN 161/4 – 52 –
72. How could the existence of sanction provisions necessarily require that the Council had to
impose specific duties on a Contracting State at the end of an Article 84 proceeding? The sanctions could be
imposed once it was established that a Contracting State had taken no action to comply with its obligations
or had taken inappropriate action. There was no need for the means of implementation to be defined in
advance. Indeed, the existence of sanctions provisions demonstrated that the Contracting States intended to
provide in the Convention for all the necessary powers of the Council. The fact that they did not provide for
Council to order a Contracting State to take specific action demonstrated that they did not consider that this
was necessary.
73. Also, Article 87 only applied in the special case of a dispute concerning international airlines
and provided for a decision by the Council on whether an airline was conforming to a final decision under
Article 86, i.e. following an appeal. The fact that no equivalent decision by the Council was envisaged in the
case of compliance measures which needed to be taken by States by opposition to airlines, even following an
appeal, confirmed the view that no such power existed with respect to States, a fortiori prior to appeal.
74. Article 88 provided for the case of States found in default, but such a decision was reserved
for the Assembly. Again, this confirmed that the role of the Council in dispute settlement was to declare the
correct interpretation and application of the Convention as provided in Article 84. This role was essential and
Mr. Dewost wished to stress again that the fifteen States which he represented fully supported it.
Articles 2(f) and 13(2) of the Rules
75. The United States also argued that the existence of the claimed supplementary powers was
evidenced by the requirement in Article 2(g) of the Rules for an applicant to specify the relief that it requested.
Mr. Dewost assumed that the reference to Article 2(g) was a textual mistake and that Article 2(f) was intended
to be invoked.
76. Article 2(f) of the Rules was perfectly consistent with the view of the fifteen EU Member
States of the powers contained in Article 84. The fact that the Rules invited a complainant to state the
requested relief was simply designed to encourage applicants to specify clearly the issue of interpretation or
application on which they were requesting a ruling. The form of the relief would still be however a declaration
of which party was right, not an order for a Contracting State to take specific measures.
77. The United States also argued that a power to "grant the requested relief” must exist because
Article 13(2) of the Rules provided that when the Council appointed a Committee, this Committee prepared
a report including “findings of facts and the recommendations of the Committee". The United States assumed
that the reference to "recommendations” could only refer to a recommendation to take appropriate corrective
measures.
78. For the fifteen EU Member States, it was clear from Article 13(1) of the Rules that the
Committee made its report and therefore its recommendations to the Council, not a Contracting State. These
were recommendations for Council decisions on the disagreement relating to the interpretation or application
of the Convention.
Annex 13
– 53 – C-MIN 161/4
79. Where the Rules envisaged recommendations to Contracting States, they made this clear. This
was done, for example, in Articles 25(2) and 26(3) contained in Chapter VI of Part III, which was not of
course applicable to these proceedings. In any event, recommendations were not orders.
The US requests for the Council to go beyond declaring the correct interpretation of the
Convention seeks to establish a precedent drastically changing the role of the Council
80. The United States argued that since international law required a State that was found in
breach of international obligations to cease its illegal conduct and make reparation, the Council must have the
power to declare or "to determine the existence" of such obligations and therefore order the taking of remedial
measures. Mr. Dewost reminded the Council that the United States requested it order the fifteen EU Member
States to "procure their release from their obligations under the Regulation."
81. As had already been explained, the fifteen EU Member States did not contest that the Council,
acting under Article 84 of the Convention, may declare the existence of a violation; they did however object
to the United States’ assertion that the Council must go further and specify how a Contracting State should
carry out its obligations once their existence had been established. A Contracting State was not entitled to
require the Council to dictate to another Contracting State which measures should be employed. This would
create a precedent drastically changing the role of the Council.
82. There are presently - this was an open secret - several bilateral disputes between Members
of this Organisation which involved the respect of Article 15 of the Chicago Convention, insofar as some of
the contested practices were not in conformity with the principle of "like uniform conditions ... to the use, by
aircraft of every contracting State, of all air navigation facilities..." (Article 15 of the Convention).
83. Would one imagine, in the same vein as the present request of the United States, that this
Council would rule on all these bilateral cases and order that those national laws or regulations be repealed
or set aside? Obviously not. The United States themselves would certainly not accept that an order of the
Council would repeal or set aside an Act of the United States Congress. Therefore, for that third reason,
Mr. Dewost urged the Council to consider the United States’ complaint as not being admissible under
Article 84 procedure.
Conclusion
84. For the reasons given, only the first point of relief requested in the United States Memorial
was justified or indeed necessary. Once the obligations under the Convention had been fully determined and
if violations of those obligations established, there was automatically an obligation to remove the violations.
An addition of a request to bring the Regulation into conformity with those obligations was the maximum
supplementary relief that could be justified.
Time Limits
85. Before making some general concluding remarks, there was one final matter that Mr. Dewost
wished to deal with. It arose because the United States had ended its Response with a request that the Council,
Annex 13
C-MIN 161/4 – 54 –
in the event that it rejected the Preliminary Objections, deny any further requests that the respondent States
might make for additional time to file the Counter-Memorial.
86. For the record, Mr. Dewost had to say that the fifteen States which he represented objected
to this pre-emptive and premature request. He would be happy to explain why this request was inadmissible
at the present time, if the need arose.
Part III--Concluding Remarks
General conclusion
87. For all the above reasons the fifteen EU Member States asked the Council to decide the
questions raised by the Preliminary Objections as follows:
• The Application is inadmissible at the present time since the United States has failed to
demonstrate that there is a disagreement with the Respondent relating to the interpretation or application of
the Convention and its Annexes that cannot be settled by negotiation;
• The Application is inadmissible at the present time since the United States has failed to
exhaust the remedies that are available in the legal systems of the Respondent;
• The second to fourth items of requested relief are inadmissible since the first item fully
describes the form of decision which a Contracting State is entitled to request the Council to take under
Article 84 of the Convention.
88. The fifteen respondent States also asked the Council to dismiss the United States' request to
preclude in advance the granting of more time for the filing of a possible Counter-Memorial.
89. Mr. Dewost wished to end these pleadings on a note of hope. There had been recently, in
Seattle, promising working within the Committee for Aviation Environmental Protection (CAEP). Experts
were developing models, which might lead to a global agreement on noise standards including flexible regional
solutions. The fifteen EU Member States were very keen to contribute to the progress of this work and
Mr. Dewost was authorised to say that the European Union, as such, was very much open to envisage specific
exemptions or timetable derogations for certain nations which might encounter difficulties in implementing
the new standards.
90. Mr. Dewost reminded the Council that the contested Regulation would only start to apply to
third country operators on 1 April 2002. There was therefore a time space up to 2002 allowing the parties
concerned to make progress together within ICAO bodies with the aim of finding, by consensus, an acceptable
solution to all Contracting States. The fifteen Member States of the EU did trust that ICAO was the
competent and appropriate forum to deal with environmental problems linked to the development of civil
aviation.
Annex 13
– 55 – C-MIN 161/4
91. The legal route chosen by the United States was therefore not only improper in legal terms,
but led tem nowhere except to the risk of endangering the results of ongoing work within ICAO to which EU
was very much dedicated.
92. The latest United States position, as Mr. Dewost understood it from the demarches that it had
undertaken in the fifteen capitals of the EU Member States concerned, was that both parties should negotiate
with the personal assistance of the President of the ICAO Council. Mr. Dewost’s legal position was that the
negotiations referred to in Article 84 of the Chicago Convention, as a precondition for filing an application,
had never taken place. Defining the exact scope of the legal disagreement might moreover help to find a way
of reconciling the two parties’ positions. If the United States Administration was now ready to negotiate on
this basis, the fifteen Member States which Mr. Dewost represented had always been ready to do so and would
willingly proceed at this time. They were convinced that the future of ICAO did not reside in the development
of bilateral litigation based on a distorted reading of Article 84 of the Convention. The future of ICAO lay in
its technical and legal competence and its ability to develop rules through consensus building and to see to it
that they were respected through appropriate controls.
93. The Council next heard a presentation by Mr. D.S. Newman, the Authorized Agent of the
United States, who recalled the 1996 dispute concerning Cuba and United States, the difficult issues raised
in that proceeding, and the skilful manner in which the Council had overseen negotiations which had led to a
conclusion and the very skilful hand of its President in guiding the parties to an appropriate resolution.
Whereas very complex issues had been brought in that claim, the issues that arose in this proceeding -
speaking now of the Preliminary Objections - were not, in his view, particularly complex. Mr. Newman
hoped that his words in this opening statement would assist the Members of the Council in framing the issues
that needed to be resolved today, and in understanding and appreciating the importance of these issues.
94. The United States had filed its Application Memorial in this case in March of the current
year, the Preliminary Objections had been filed in July, the United States had responded in September. The
EU Member States claimed that the United States’ claims brought in the Memorial were outside the
jurisdiction of the Council. T he purpose of the hearing was to determine the scope of the Council’s
jurisdiction. It was not to review the merits of the United States’ Memorial or to consider whether additional
negotiations might be a means of resolving this dispute. It was not to condemn the EU Member States for
their unilateral action but to decide the Preliminary Objections. The Council would have to act, in deciding
this matter, in a fashion to preserve its existing authority and therefore each of the Preliminary Objections
would have to be rejected. The Rules required that the Council decide the Preliminary Objections before any
further steps were taken.
95. There were themes that ran through the Preliminary Objections. They suggested that ICAO
should not interfere with States acting to address their political, economic or other concerns regardless of
whether those actions violated the Chicago Convention. In negotiations, the EU Member States had focussed
on their regional concerns; the United States had focussed on global concerns. In their first exhibit to the
Preliminary Objections, a document entitled “Common Conclusions”, the EU Member States noted “the
European concern regarding short-term deterioration of the noise situation at community airports” and referred
to the United States’ concern regarding the need to maintain uniform global aviation standards developed
under the umbrella of ICAO. As the EU Member States acknowledged, those were the positions throughout
the negotiations; they were the positions today. They prevented successful negotiation of this dispute and
Annex 13
C-MIN 161/4 – 56 –
required the United States’ filing its Article 84 Memorial because of United States’ concerns over unilateral
action that violated the Chicago Convention. The United States did not condemn all unilateral actions, but
the Convention had rules. There were limitations, such as the prohibition on discrimination, that limited a
State’s rights when it was acting unilaterally.
96. Setting out his three objectives for this opening statement, Mr. Newman indicated that he
would first review briefly Regulation No. 925/1999 and the claims of the United States, providing only that
information that was necessary to resolve the objections. Second, he would r eview the Preliminary
Objections and explain why each of them must be denied to preserve the Council’s authority. Finally, he
would discuss the implications of the Preliminary Objections for ICAO and why they were of such concern.
97. Regulation No. 925/1999 could be described very briefly as a restriction on the registration
and operation in the European Union of certain types of aircraft, including hushkitted aircraft and aircraft that
had been re-engined with certain types of engines. The affected aircraft were largely United States- registered,
although there were a number that were registered in other States. The EU “hushkits” Regulation excluded
certain aircraft from its restrictions. The exclusions discriminated, based upon the nationality of the aircraft.
The discrimination preferred aircraft registered in the EU Member States.
98. Mr. Newman summarized the United States’ claims set out in its Memorial, which very
clearly were issues regarding the interpretation and application of the Convention.
99. First, the United States argued that the Regulation violated Articles 11 and 15, which
prohibited discrimination based on nationality. When a State promulgated laws affecting international civil
aviation or permitted access to their public airports - as noted in describing the Regulation - it did discriminate
against aircraft registered outside the European Union.
100. The second United States claim was that the Regulation targeted specific aircraft types, most
of which were registered in the United States. This was a discrimination again under Articles 11 and 15,
based on the disparate impact. The European Union may have had environmental concerns and may continue
to have those concerns; those concerns must however be addressed in a non-discriminatory manner, and not
by excluding non-EU aircraft.
101. The third of the United States’ claims argued that the Regulation constituted a deviation from
ICAO noise standards, and that the EU Member States failed to comply with the procedures in Article 38 for
such deviations. If the EU Member States wished to promulgate their own standards, the Convention allowed
them to do so, but it set out rules, and those rules had not been followed.
102. Finally, the United States claimed, and now asserted, that the Regulation caused the EU
Member States to reject United States noise certifications by restricting - on the basis of noise - aircraft that
had been certified by United States authorities as complying with the most stringent international noise
standards.
103. Turning to the objections raised by the EU Member States and the reasons why they must be
denied, Mr. Newman observed firstly that the EU States argued that negotiations had not been adequate.
Before filing its Memorial and Application, the United States had engaged in three years of diplomatic efforts,
Annex 13
– 57 – C-MIN 161/4
including written correspondence, technical level meetings, and high level meetings on both sides of the
Atlantic Ocean involving the Secretary of Transportation, the Secretary of Commerce and senior legislators.
How possibly could all of these efforts fail to satisfy any reasonable requirement for adequate negotiations?
The respondents - i.e. the EU Member States - appeared to admit the adequacy of the negotiations in a
quotation referenced by the Agent for the EU States: “Mme de Palacio acknowledged extensive consultations
that had been undertaken in order to reach a common understanding on a mutually acceptable way forward
on the question of so-called hushkitted aircraft”. That letter, which was Exhibit 7 to the Preliminary
Objections, specifically noted that it had not been possible to find a way to resolve the problem. These were
clear words of an authorized person and a direct viewpoint; what then could be inadequate about the
negotiations?
104. The EU States asserted in their Preliminary Objections that none of the questions of
interpretation and application of the Convention raised by the United States in its memorial had been
discussed. This was not correct. The United States had attached to its written response - Exhibit 2 for
example - written exchanges specifically on these points. At Attachment 2 was a letter from an authorized
United States representative to authorized representatives of the EU Member States, noting that the Regulation
deviated from ICAO noise standards; that it was based on a design, not a performance requirement; and that
it discriminated in favour of aircraft registered in the EU over identical aircraft registered in third countries
in provisions concerning transfers, leases and changes of registration. The letter also specifically noted that
the Regulation restricted hushkitted and re-engined United States aircraft certified by the United States as fully
compliant with ICAO noise standards. There were similar written exchanges but they would be redundant.
105. Noting the reference to Article numbers made by the Authorized Agent for the fifteen EU
Member States, Mr. Newman suggested that this was not a basis for determining negotiations inadequate.
As regards the real question, i.e. “what is the source of the requirement that a State set out its legal claims?”
Mr. Newman asserted that the only applicable requirement for filing an application memorial under Article 84
was set out in Article 2 of the Rules for the Settlement of Differences, the rules primarily applicable to this
proceeding. The requirement was that negotiations to settle the agreement had taken place between the parties
and had not been successful. There was no issue for debate; this was a simple matter. There was no basis
for requiring that all legal arguments and Article numbers be set out in negotiations. There was no legal
requirement that all avenues for negotiation be exhausted. The requirement was that negotiations had been
held and not have been successful. The EU Member States apparently would like to change the 1977 Rules;
they may pursue that, but this was not an appropriate place.
106. Mr. Newman further noted that the United States had indeed exhausted all avenues even
though that had not been required, because the United States understood that the Council’s time was precious
and it did not lightly take to impose additional burdens on the Council unless it was unavoidable. Negotiations
had continued over a period of three years, including negotiations among high level officials, until a point at
which there had been an iimpasse. The two sides had had demands that were not compatible.
107. Mr. Newman noted that the Agent for the fifteen EU Member States had suggested that the
United States had failed to negotiate a proper amendment to the Regulation. He understand this to mean that
the United States had failed to settle on the terms demanded by the European States. That did not, under
international law, constitute a failure of adequate negotiations, it constituted a failure of concession and there
was certainly no requirement for one side to concede its position before filing an Article 84 Memorial.
Annex 13
C-MIN 161/4 – 58 –
108. Turning to the second Preliminary Objection, Mr. Newman noted that the European States
argued that before the United States could pursue its rights under an international agreement, first companies’
nationals of that State must litigate their claims - whatever they may be, and whatever relevance they may
have to the claims of the State - in the local court. Mr. Newman suggested that this was a very dangerous
precedent, a precedent that no Member of the Council would like to see imposed upon its State, whereby a
State was held hostage to decisions of its nationals regarding private litigation before that State could attempt
to vindicate its rights in an appropriate international tribunal. Article 84 specifically stated that disagreements
between Contracting States relating to the interpretation or application of the Convention and its Annexes shall
be decided by the Council.
109. The argument of the European States was based upon the doctrine in international law
referred to as the “local remedies” rule. It did not apply where a State was pursuing a direct injury to that
State - its own claims - it applied where a State had only an indirect injury which derived from the claims of
its nationals, where the State was espousing claims of its nationals to recover damages where one of its
nationals had suffered a violation of its property rights or personal rights. The cases relied upon by the
European States in their brief all fell into that category. T he Interhandel case cited in the Preliminary
Objections involved Switzerland defending the interests of particular nationals seeking restitution for their
property that had been seized. The case involving Electronica Cequla (ELSIE), also referred to in the
Preliminary Objections, had involved United States claims for damages suffered by an Italian company that
was wholly owned by United States companies. The Ambatielos case, also cited, had involved Greece
espousing a claim of a Greek national against the Government of the United Kingdom for damages suffered
due to non-compliance with a contract for the purchase of steamships. Certainly there were cases where a
State suffered injury and its nationals suffered as well; in fact, in most international agreements the agreements
were negotiated for the benefit of the nationals of the respective countries.
110. Mr. Newman observed that the European States would argue, if there were nationals injured
by an act of a foreign State, it was not possible to consider the claims of the State for violation of that
agreement. That argument was not correct, and was not supported by international law. Very similar issues
had been addressed in 1978, in arbitration involving the United States and France, and in 1992, in arbitration
involving the United States and the United Kingdom (the Heathrow arbitration). Both of these disputes had
arisen under bilateral air services agreements. The bilateral agreements - as everyone knew - shared a
common base with the Chicago Convention. Not only did they derive from the foundation of the Chicago
Convention, but they defined the rights of States, which rights benefitted the airlines of those States. In both
of the arbitrations just described, the arbitration tribunals had recognized that specific United States airlines
had been harmed by the actions of the foreign States; however, the arbitration tribunals had recognized that
the United States was pursuing its own rights, that under the relevant agreements no rights accrued directly
to the airlines and that the issues at stake certainly affected the particular airlines at that time but were much
wider than that because they affected airlines in the future. D ecision of the cases had required an
interpretation of agreements that would guide the countries and their airlines in future relations. In all
respects, those decisions were pertinent to the present dispute.
111. Turning to the third of the Preliminary Objections, where the Council, it was argued, lacked
the power to grant the United States’ requested relief beyond determining that there were violations of the
Convention, Mr. Newman, while noting that the argument was incorrect with respect to its interpretation of
the Chicago Convention, more importantly noted that it was not a “Preliminary Objection”. In fact, it
Annex 13
– 59 – C-MIN 161/4
assumed that the Council would decide the dispute in favour of the United States, that there had been
violations of the Chicago Convention and its Annexes, and the question raised by this objection was “what
is the extent of the relief the Council may grant to the United States?”. The ICAO Council addressed many
difficult issues and it should be in its interest to avoid issues that were premature, and that need not be decided
at this point. Mr. Newman suggested that this Preliminary Objection may be dismissed at this point as
premature, but dismissed “with prejudice”, meaning that the European States could raise it at such future time
as the Council had decided the merits in favour of the United States.
112. In the interest of correcting misrepresentations of the United States argument, Mr. Newman
would rely on the Council Members to read the United States’ written submission for themselves, and asked
that they not rely on various representations by the Authorized Agent for the fifteen EU Member States as to
positions taken by the United States. It was not worthy of the Council’s time to now review any misstatements
to the effect that the United States had asserted that all international tribunals had the power to
grant any type of relief. The United States’ submission discussed the Chicago Convention and the Rules for
the Settlement of Differences and explained why they gave the Council the powers to grant the relief requested
by the United States. Reference was made to principles of international law which acknowledged that as a
matter of general principles a finding that there had been a violation of international law was typically
associated with an obligation to cease the unlawful behaviour and to comply with the international obligations.
The EU States suggested it was unreasonable and beyond the Council’s power to grant even that relief. When
the United States’ submission referred to the memorial of Pakistan in the 1971 dispute, it was responding to
an argument raised by the European States that the United States’ request for relief conflicted with Council
precedent. The United States responded by saying “there is no Council precedent, the only relevant precedent
that might be considered is the prior request for relief”. Today the Council had heard the Agent for the fifteen
EU Member States agree that there was no Council precedent, and therefore the United States’ request could
not be inconsistent with any such precedent.
113. In its written submission the United States reviewed the several provisions of the Chicago
Convention and the roles in which it believed the power of the Council was implicit. The Authorized Agent
for the fifteen EU Member States had reviewed those Articles, and Mr. Newman would therefore refrain from
reviewing them again since Representatives on the Council could determine for themselves whether there was
intended the power for the Council to grant appropriate relief to resolve the dispute. He would refer only to
Article 54 of the Convention, para graph (j) indicating that the Council shall “report to contracting States any
infraction of this Convention, as well as any failure to carry out recommendations or determinations of the
Council”. It seemed this language was clear: the Council did not just find infractions but in addition it made
determinations that the State was obligated to carry out. When the time would come for the Council to decide
this issue, the United States anticipated the Council would determine that it had the appropriate authority, but
the time for decision on that authority need not be at the close of this hearing, as this objection could be
dismissed as premature.
114. Addressing his third objective for this opening statement, which was to discuss the
implications of the Preliminary Objections for ICAO and why they were of such concern, Mr. Newman
indicated that the United States had initiated this proceeding to address a unilateral action of the European
States that violated the Chicago Convention and its Annex 16. The Preliminary Objections would attempt to
diminish the Council’s power to address such disputes. The clear result was that it would be that much easier
for Contracting States to violate the Convention in the future through unilateral action. The first of the
Annex 13
C-MIN 161/4 – 60 –
Preliminary Objections required the exhaustion of negotiations, a substantial new and perhaps impossible
burden on States seeking to exercise Article 84 rights. Why impossible? Because after reviewing the
diplomatic efforts engaged in by the United States, over three years at the level of senior government officials,
if the sum total of all those efforts did not constitute adequate negotiations, how would any State meet the
burden that the European States would seek to impose? If the Council rejected these objections, it would have
the opportunity to oversee future negotiations. Future negotiations would be facilitated by the European States
setting out their position by filing a counter-memorial. Absent that, the United States would be in the same
position as before filing the Article 84 case. No further negotiations could take place until the European
position was seen.
115. Mr. Newman had been quite surprised to hear the Agent for the fifteen EU Member States
relate a demarche delivered to capitals of the EU Member States that the United States was now prepared to
negotiate, and would be very interested in seeing it, since it came as a great surprise to him.
116. The second Preliminary Objection, concerning exhaustion of local remedies, first and
foremost was problematic because it would subordinate States’ rights under international agreements to the
rights of their nationals which could be pursued, as the European States suggested, in local courts. The rights
of any State could not be held hostage to decisions of a foreign court. They were to be resolved in international
tribunals, such as ICAO. The United States recognized that Article 84 was a time-consuming process. The
United States had filed its Memorial and Application eight months earlier, and had still not seen the European
defence to its claims. Further delay for years while the matter proceeded in State courts would render
Article 84 useless, although perhaps that was the goal of the European States.
117. The third Preliminary Objection, as the United States noted it, was premature. It was not a
challenge to jurisdiction and could be dismissed on that basis alone. But of greater concern, it conflicted and
would render meaningless provisions of the Chicago Convention and the Rules, and it would diminish the
Council’s power to resolve disputes. In paragraph 44 of their Preliminary Objection, the European States
argued that the Council lacked power to do what was proper and just; the United States certainly could not
believe that the drafters of the Chicago Convention had intended that. If the Council did not have the power
under the Convention and the Rules to grant appropriate relief - and certainly the cessation of unlawful
behaviour and compliance with the Chicago Convention was minimal appropriate relief - then States engaged
in disagreements would be forced to turn to other fora to resolve their disputes or perhaps adopt unilateral
counter-measures. Certainly that was not the intention of the Chicago Convention.
118. In conclusion, the United States would ask that the Council reject the Preliminary Objections
which would deprive the Council and the Contracting States of reasonable access to an important tool for
dealing with violations of the Chicago Convention. Article 84 was a tool of last resort, and it was unfortunate
when States needed to rely upon it. Certainly ICAO and the Council exercised the greatest skill and were
most productive through consensual efforts to develop new standards, but there were times, when a
Contracting State refused to abide by its obligations under the Chicago Convention and sought to undermine
the work of ICAO, that Article 84 was an essential tool and had to be preserved. The denial of each of the
Preliminary Objections preserved the Council’s authority and its discretion in this case and in the future to
oversee negotiations, to settle disagreements or, if all else failed, to resolve them by decision.
Annex 13
– 61 – C-MIN 161/4
119. It was noted that at the next (161/5) meeting, the Authorized Agents would each be given an
opportunity to respond, after which the Council would proceed with the question period provided for under
Article 11 of the Rules for the Settlement of Differences, open to Members of the Council not parties to the
dispute.
120. The meeting adjourned at 1320 hours.
Annex 13
Annex 14
ICAO Assembly, Resolution 38-12: Consolidated statement of continuing ICAO policies and
associated practices related specifically to air navigation, ICAO Doc. 10022 (entered into force
as of 4 Oct. 2013)
Doc 10022
Assembly Resolutions
in Force
(as of 4 October 2013)
________________________________
Published by authority of the Secretary General
International Civil Aviation Organization
Annex 14
Published in separate English, Arabic, Chinese, French, Russian
and Spanish editions by the
INTERNATIONAL CIVIL AVIATION ORGANIZATION
999 University Street, Montréal, Quebec, Canada H3C 5H7
For ordering information and for a complete listing of sales agents
and booksellers, please go to the ICAO website at www.icao.int
Doc 10022, Assembly Resolutions in Force (as of 4 October 2013)
Order Number: 10022
ISBN 978-92-9249-419-3
© ICAO 2014
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, without prior
permission in writing from the International Civil Aviation Organization.
Annex 14
II. Air Navigation II-5
3. Member States should be allowed a full three months for notifying disapproval of adopted SARPs amendments;
in establishing a date for notifying disapproval the Council should take into account the time needed for transmission of
the adopted amendments and for receipt of notifications from States.
4. The Council should ensure that, whenever practicable, the interval between successive common applicability
dates of amendments to Annexes and PANS is at least six months.
5. The Council, prior to the adoption and approval of amendments to SARPs and PANS, should take into account
feasibility of the implementation of SARPs and PANS by the intended applicability dates.
6. The Council, taking into account the definitions of terms “Standard” and “Recommended Practice”, should
ensure that new Annex provisions, uniform application of which is recognized as necessary, are adopted as Standards,
and that those new provisions, uniform application of which is recognized as desirable, are adopted as Recommended
Practices.
7. The Council should urge Member States to notify the Organization of any differences that exist between their
national regulations and practices and the provisions of SARPs as well as the date or dates by which they will comply
with the SARPs. If a Member State finds itself unable to comply with any SARPs, it should inform ICAO of the reason for
non-implementation, including any applicable national regulations and practices which are different in character or in
principle.
8. Differences from SARPs received should be promptly made available to Member States.
9. In encouraging and assisting Member States in the implementation of SARPs and PANS, the Council should
make use of all existing means of ICAO and strengthen partnerships with entities which provide resources and
assistance towards development of international civil aviation.
10. Member States should establish internal processes and procedures by which they give effect to the
implementation of provisions of SARPs and PANS.
11. ICAO should update and develop guidance material in accordance with the established priorities to adequately
cover all technical fields.
A38-12: Consolidated statement of continuing ICAO policies
and associated practices related specifically to air
navigation
Whereas in Resolution A15-9 the Assembly resolved to adopt in each session for which a Technical Commission is
established a consolidated statement of continuing policies related specifically to air navigation up to date as at the end
of that session;
Whereas a statement of continuing policies and associated practices related specifically to air navigation as they existed
at the end of the 37th Session of the Assembly was adopted by the Assembly in Resolution A37-15, Appendices A to W
inclusive;
Whereas the Assembly has reviewed proposals by the Council for the amendment of the statement of continuing
policies and associated practices in Resolution A37-15, Appendices A to W inclusive, and has amended the statement
to reflect the decisions taken during the 38th Session;
Annex 14
II-6 Assembly Resolutions in Force
Whereas a policy or associated practice that requires continued application for a period of more than three years should
be regarded as a continuing policy or associated practice;
Whereas material which is contained in regulatory or readily available authoritative ICAO documents, such as Annexes,
rules of procedures and directives to air navigation meetings should normally be excluded from the consolidated
statements. This pertains, in particular, to the associated practices; and
Whereas the Assembly agreed to develop a new Resolution A38-11 based on Resolution A37-15 Appendices A, D and
E, as a continuing policy in respect to formulation and implementation of Standards and Recommended Practices
(SARPs), Procedures for Air Navigation Services (PANS) and notification of differences that would apply to all Annexes
to the Convention and technical guidance material;
The Assembly:
1. Resolves that:
a) the Appendices attached to this resolution constitute the consolidated statement of continuing air
navigation policies and associated practices of ICAO as they exist at the close of the 38th Session of the
Assembly; and
b) the practices associated with the individual policies in the appendices constitute guidance intended to
facilitate and ensure implementation of the respective policies; and
2. Declares that this resolution supersedes Resolution A37-15 with its Appendices, except for Appendices A, D
and E which are superseded by the new Resolution A38-11.
APPENDIX A
Air navigation meetings of worldwide scope
Whereas the holding of worldwide air navigation meetings is an important function of ICAO and entails substantial
expenditures of effort and money by the Member States and ICAO; and
Whereas it is necessary to ensure that maximum benefit is obtained from these meetings without imposing any undue
burden upon the Member States or ICAO;
The Assembly resolves that:
1. meetings, convened by the Council, in which all Member States may participate on an equal basis shall be the
principal means of progressing the resolution of problems of worldwide import, including the development of
amendments to the Annexes and other basic documents in the air navigation field;
2. such meetings shall be convened only when justified by the number and importance of the problems to be dealt
with and when there is the likelihood of constructive action on them; meetings convened on this basis may also be
requested to conduct exploratory discussions on matters not mature for definite action;
3. the organization of such meetings shall be arranged so that they are best suited to carry out the assigned task
and to provide proper coordination among the technical specialities involved; and
4. unless necessitated by extraordinary circumstances, not more than two such meetings shall be convened in a
calendar year, and successive meetings dealing extensively with the same technical specialty shall be separated by at
least twelve months.
Annex 14
II. Air Navigation II-7
Associated practices
1. Before deciding to refer a matter to a worldwide meeting, the Council should consider whether correspondence
with States or use of machinery such as panels or air navigation study groups could dispose of it or facilitate subsequent
action on it by a future meeting.
2. The agenda should be sufficiently explicit to define the task to be performed and to indicate the types of
specialized expertise that will be needed at the meeting. In an agenda including more than one technical specialty the
types of expertise called for should be kept to the minimum compatible with efficiency.
3. To facilitate the participation of all Member States, the Council should so plan the meeting programme as to
keep to the minimum, consistent with efficiency, the demands upon the time of States’ technical officials.
4. The planned duration of a meeting should allow adequate time for completion of the agenda, study of the report
as drafted in the working languages of the meeting and approval of the report. Following the meeting, the Secretariat
should make any necessary minor editorial amendments and typographical corrections to the meeting report.
5. The approved agenda and the main supporting documentation should be dispatched, normally by air, not less
than ten months in advance of the convening date in the case of the agenda and not less than three months in the case
of the main supporting documentation; other documentation should be dispatched as soon as possible.
APPENDIX B
Panels of the Air Navigation Commission (ANC)
Whereas panels of the Air Navigation Commission have proved a valuable medium for advancing the solution of
specialized technical problems; and
Whereas it is necessary to ensure that maximum benefit is obtained from Air Navigation Commission panels without
imposing any undue burden upon the Member States or ICAO;
The Assembly resolves that:
1. the Air Navigation Commission shall establish panels if necessary to advance the solution of specialized
technical problems which cannot be solved adequately or expeditiously by the Air Navigation Commission through other
established facilities;
2. the Air Navigation Commission shall ensure that the terms of reference and the work programmes of panels
shall support the ICAO Strategic Objectives, be clear and concise with timelines and shall be adhered to;
3. the Air Navigation Commission shall review periodically the progress of panels and shall terminate panels as
soon as the activities assigned to them have been accomplished. A panel shall be allowed to continue in existence only
if its continuation is considered justified by the Air Navigation Commission; and
4. panel activity shall support a performance-based approach to SARPs development to the extent possible.
Associated practice
Reports should be clearly presented as the advice of a group of experts to the Air Navigation Commission so that they
cannot be construed as representing the views of Member States.
Annex 14
II-8 Assembly Resolutions in Force
APPENDIX C
Certificates of airworthiness, certificates of
competency and licences of flight crews
Whereas Article 33 of the Convention does not explicitly define the purposes for which recognition is to be accorded to
certificates and licences;
Whereas several interpretations exist as to whether or not there is any obligation on Member States to recognize
certificates and licences issued or rendered valid by other Member States pending the coming into force of SARPs
applicable to the aircraft or flight crew involved; and
Whereas with respect to certain categories of aircraft or flight crew licences, it may be many years before SARPs come
into force or it may be found most practicable not to adopt SARPs for some categories or flight crew licences;
The Assembly resolves that:
1. certificates of airworthiness and certificates of competency and licences of the flight crew of an aircraft issued
or rendered valid by the Member State in which the aircraft is registered shall be recognized as valid by other Member
States for the purpose of flight over their territories, including landings and take-offs, subject to the provisions of
Articles 32 (b) and 33 of the Convention; and
2. pending the coming into force of international Standards respecting particular categories of aircraft or flight
crew, and certificates issued or rendered valid, under national regulations, by the Member State in which the aircraft is
registered shall be recognized by other Member States for the purpose of flight over their territories, including landings
and take-offs.
APPENDIX D
Qualified and Competent Aviation Personnel
Whereas the satisfactory implementation of SARPs and PANS is contingent upon having qualified and competent
personnel;
Whereas difficulties are being experienced by Member States in these matters due to a lack of qualified personnel to
support the existing and future air transportation system;
Whereas special effort is required to support Member States in meeting their human resource needs; and
Whereas learning activities conducted by ICAO are an effective means of promoting a common understanding and the
uniform application of SARPs and PANS;
The Assembly resolves that:
1. ICAO shall assist Member States in achieving and maintaining competency of aviation personnel through the
ICAO Aviation Training Programme;
2. the ICAO Aviation Training Programme shall be governed by the following principles:
a) qualification of aviation professionals is the responsibility of Member States;
b) the highest priority is placed on learning activities that support the implementation of SARPs;
Annex 14
II. Air Navigation II-9
c) cooperation with Member States and industry is essential to develop and implement learning activities to
support the implementation of SARPs; and
d) priority shall be placed on cultivating the next generation of aviation professionals.
3. ICAO advises operators of training facilities but does not participate in the operation of such facilities; and
4. Member States assist each other to optimize access to learning activities for their aviation professionals.
Associated practices
1. The Council should assist Member States to harmonize aviation professionals’ levels of competency. These
efforts should be based on:
a) data analysis to determine priorities and needs;
b) identified training needs for the implementation of ICAO provisions; and
c) a competency-based approach.
APPENDIX E
Formulation and Implementation of Regional Plans
including Regional Supplementary Procedures
Whereas the Council establishes Regional Plans setting forth the facilities, services and Regional Supplementary
Procedures to be provided or employed by Member States pursuant to Article 28 of the Convention;
Whereas the Regional Plans require amendment from time to time to reflect the changing needs of international civil
aviation;
Whereas ICAO has established an approach to planning of facilities and services that centres on the Global ATM
Operational Concept and the Global Air Navigation Plan; and
Whereas any serious deficiencies in the implementation of Regional Plans may affect the safety, regularity and
efficiency of international air operations and, therefore, should be eliminated as quickly as practicable;
The Assembly resolves that:
1. Regional Plans shall be revised when it becomes apparent that they are no longer consistent with current and
foreseen requirements of international civil aviation;
2. when the nature of a required change permits, the associated amendment of the Regional Plan shall be
undertaken by correspondence between ICAO and Member States and International Organizations concerned; and
3. when amendment proposals are associated with the services and facilities provided by States and such
amendment proposals:
a) do not represent changes to the requirements set by the Council in the Regional Plans;
b) do not conflict with established ICAO policy; and
Annex 14
II-10 Assembly Resolutions in Force
c) do not involve issues which cannot be resolved at the regional level;
the Council may delegate authority for processing and promulgating such amendments to the regional level.
4. Regional Air Navigation (RAN) meetings, although important instruments in the determination of the facilities
and services, shall be convened only to address issues which cannot be adequately addressed through the Planning
and Implementation Regional Groups (PIRGs);
5. priority shall be given in the implementation programmes of Member States to the provision, and continuing
operation of those facilities and services, the lack of which would likely have an adverse effect on international air
operations;
6. the identification and investigation of and action by ICAO on significant deficiencies in the implementation of
Regional Plans shall be carried out in the minimum practicable time; and
7. Planning and Implementation Regional Groups (PIRGs), using a project management approach, shall identify
problems and shortcomings in Regional Plans and in the implementation thereof, along with suggested remedial
measures.
Associated practices
1. The Council should ensure that the structure and format of regional plans is aligned with the Global Air
Navigation Plan and is in support of a performance-based approach to planning.
2. In assessing the urgency of any revision of the Regional Plans the Council should take into account the time
needed by Member States to arrange for the provision of any necessary additional facilities and services.
3. The Council should ensure that implementation dates in Regional Plans involving the procurement of new types
of equipment are realistically related to the ready availability of suitable equipment.
4. The Council should ensure that web based regional plans are developed, with supporting planning tools, in
order to improve efficiency and expedite the amendment cycle.
5. The Council should use the Planning and Implementation Regional Groups (PIRGs) it has established
throughout the regions to assist in keeping up to date the Regional Plans and any complementary documents.
APPENDIX F
Regional air navigation (RAN) meetings
Whereas RAN meetings are important instruments in the determination of the facilities and services the Member States
are expected to provide pursuant to Article 28 of the Convention;
Whereas these meetings entail substantial expenditures of effort and money by Member States and ICAO;
Whereas it is necessary to ensure that maximum benefit is obtained from these meetings without imposing any undue
burden on Member States or ICAO; and
Considering that regional air navigation planning is normally accomplished by Planning and Implementation Regional
Groups (PIRGs);
The Assembly resolves that:
Annex 14
II. Air Navigation II-11
1. RAN meetings shall be convened only to address issues which cannot be adequately addressed through
PIRGs;
2. the convening of such meetings and their agenda shall be based on the existence or expectation of specific
shortcomings in the Regional Plans of the respective areas;
3. the geographical area to be considered, account being taken of the existing and planned international air
transport and international general aviation operations, the technical fields to be dealt with and the languages to be used
shall be decided for each such meeting;
4. the organization best suited to deal with the agenda and to ensure effective coordination among the
components of the meeting shall be used for each such meeting; and
5. meetings of limited technical and/or geographical scope shall be convened when specific problems, particularly
those requiring urgent solution, need to be dealt with or when convening them will reduce the frequency with which full
scale RAN meetings must be held.
Associated practices
1. The Council should endeavour to hold RAN meetings at sites within the areas concerned and should
encourage the Member States within those areas to serve as host, either individually or jointly.
2. The approved agenda and the main supporting documentation should be made available, by electronic means,
not less than ten months in advance of the convening date in the case of the agenda and not less than three months in
the case of the main supporting documentation.
3. The Council should ensure that adequate guidance is made available to RAN meetings on operational and
technical matters relevant to their agenda.
4. Each participating Member State should inform itself, in advance of a meeting, on the plans of its air transport
operators and its international general aviation for future operations and, similarly, on the expected traffic by other
aircraft on its registry and on the overall requirements of these various categories of aviation for facilities and services.
5. The Council, taking into account the requirement to improve still further existing safety levels, should foster the
establishment, for and by RAN meetings, of up-to-date planning criteria which would aim to ensure that Regional Plans
satisfy the operational requirements and are economically justified.
6. The Council should develop and maintain specific and detailed directives for consideration of implementation
matters at RAN meetings.
APPENDIX G
Delimitation of air traffic services (ATS) airspaces
Whereas Annex 11 to the Convention requires a Member State to determine those portions of airspace over its territory
within which air traffic services will be provided and, thereafter, to arrange for such services to be established and
provided;
Whereas Annex 11 to the Convention also makes provision for a Member State to delegate its responsibility for
providing air traffic services over its territory to another State by mutual agreement;
Whereas cooperative efforts between Member States could lead to more efficient air traffic management;
Annex 14
II-12 Assembly Resolutions in Force
Whereas both the delegating and the providing State can reserve the right to terminate any such agreement at any time;
and
Whereas Annex 11 to the Convention prescribes that those portions of the airspace over the high seas where air traffic
services will be provided shall be determined on the basis of regional air navigation agreements, which are agreements
approved by the Council usually on the advice of regional air navigation meetings;
The Assembly resolves, with reference to regional air navigation plans, that:
1. the limits of ATS airspaces, whether over States’ territories or over the high seas, shall be established on the
basis of technical and operational considerations with the aim of ensuring safety and optimizing efficiency and economy
for both providers and users of the services;
2. established ATS airspaces should not be segmented for reasons other than technical, operational, safety and
efficiency considerations;
3. if any ATS airspaces need to extend over the territories of two or more States, or parts thereof, agreement
thereon should be negotiated between the States concerned, taking into account the need for cost-effective introduction
and operation of CNS/ATM systems, and more efficient airspace management, in particular, in the upper airspace;
4. the providing State in implementing air traffic services within airspace over the territory of the delegating State
shall do so in accordance with the requirements of the delegating State, which shall establish and maintain in operation
such facilities and services for the use of the providing State as are mutually agreed to be necessary;
5. any delegation of responsibility by one State to another or any assignment of responsibility over the high seas
shall be limited to technical and operational functions pertaining to the safety and regularity of the air traffic operating in
the airspace concerned;
and, furthermore, declares that:
6. any Member State which delegates to another State the responsibility for providing air traffic services within
airspace over its territory does so without derogation of its sovereignty; and
7. the approval by the Council of regional air navigation agreements relating to the provision by a State of air
traffic services within airspace over the high seas does not imply recognition of sovereignty of that State over the
airspace concerned.
Associated practices
1. Member States should seek the most efficient and economic delineation of ATS airspaces, the optimum
location of points for transfer of responsibility and the most efficient coordination procedures in cooperation with the
other States concerned and with ICAO.
2. Member States should consider, as necessary, establishing jointly a single air traffic services provider to be
responsible for the provision of air traffic services within ATS airspace extending over the territories of two or more
States or over the high seas.
3. The Council should encourage States providing air traffic services over the high seas to enter, as far as is
practicable, into agreements with appropriate States providing air traffic services in adjacent airspaces, so that, in the
event the required air traffic services over the high seas cannot be provided, contingency plans, which may require
temporary modifications of ATS airspace limits, will be available to be put into effect with the approval of the ICAO
Council until the original services are restored.
Annex 14
Annex 15
ICAO Council, Rules of Procedure for the Council, ICAO Doc. 7559/10 (2014)
Approved by the Council and
published by its decision
Tenth Edition — 2014
International Civil Aviation Organization
Rules of Procedure for the Council
Doc 7559/10
Annex 15
Doc 7559/10
Rules of Procedure for the Council
Approved by the Council and
published by its decision
Tenth Edition — 2014
Note.— Throughout these Rules of Procedure, the use of the
male gender should be understood to include male and female
persons.
International Civil Aviation Organization
Annex 15
Published in separate English, Arabic, Chinese, French, Russian
and Spanish editions by the
INTERNATIONAL CIVIL AVIATION ORGANIZATION
999 University Street, Montréal, Quebec, Canada H3C 5H7
For ordering information and for a complete listing of sales agents
and booksellers, please go to the ICAO website at www.icao.int
Eighth Edition, 2007
Ninth Edition, 2013
Tenth Edition, 2014
Doc 7559, Rules of Procedure for the Council
Order Number: 7559
ISBN 978-92-9249-579-4
© ICAO 2014
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system or transmitted in any form or by any means, without prior
permission in writing from the International Civil Aviation Organization.
Annex 15
(iii)
Table of Contents
Page
PRELIMINARY SECTION
Definitions ....................................................................... 1
SECTION I
Representatives, Alternates and Observers,
and their credentials ......................................................... 2
SECTION II
Officers of the Council and the Secretary General .......... 3
SECTION III
Commissions, Committees and Working Groups
of the Council .................................................................. 6
SECTION IV
Sessions of the Council .................................................... 7
SECTION V
Work Programme and Order of Business ........................ 8
SECTION VI
Conduct of business ......................................................... 12
SECTION VII
Voting .............................................................................. 17
SECTION VIII
Approval of proposals with respect to
administrative matters ...................................................... 20
Annex 15
Page
(iv)
SECTION IX
Languages of the Council ................................................ 21
SECTION X
Records of proceedings ................................................... 21
SECTION XI
Interpretation, revocation, suspension and amendment
of the Rules of Procedure ................................................ 23
APPENDIX A
Rules and Procedures for the election of the
President of the Council .................................................. 24
APPENDIX B
Rules and Procedures for the election of the
Vice-Presidents of the Council ........................................ 26
APPENDIX C
Rules and Procedures for the appointment of the
Secretary General ............................................................ 27
APPENDIX D
Rules and Procedures governing the appointment
of the Members, Alternates and President of the
Air Navigation Commission ............................................ 29
APPENDIX E
Rules and Procedures governing the appointment of the
Members, Alternates and Chairmen of Commissions
(other than the Air Navigation Commission),
Committees and Working Groups ................................... 31
APPENDIX F
Guidelines on when Council meetings should be
held in closed session (Rule 37) and when Council
documents should be marked “Restricted” ...................... 32
Annex 15
1
RULES OF PROCEDURE
FOR THE COUNCIL*
PRELIMINARY SECTION
DEFINITIONS
For the purpose of these Rules, the expression:
Alternate — means a person designated and authorized by a Member of
the Council to act on its behalf in the absence** of the
Representative, and holding credentials as evidence thereof.
Convention — means the Convention on International Civil Aviation.
Majority of the Members of the Council — means more than half of the
total membership of the Council.
Meeting — means a single sitting of the Council from the time the
Council comes to order until it adjourns.
Member of the Council — means a Contracting State elected by the
Assembly to form part of the Council in accordance with
Article 50 of the Convention.
Observer — means a person representing a Contracting State not
represented on the Council, a non-Contracting State, an inter-
* Revised on 28 November 1969, entered into force on 27 April 1970; amended by the
Council on 12 May 1971 (Rule 50), 17 March 1976 (Rules 56 and 57), 13 April 1976
(Rule 16 a)), 12 September 1980 (Rule 56), 9 June 1999 (Rule 56), 9 June 2006
(entered into force on 1 August 2006), 16 March 2007 and 20 June 2013 (Rule 12).
** This does not require the Representative to leave the room in the case of a Council
meeting.
Annex 15
2
national organization or other body, designated and authorized by
his State or organization to participate in one or more of the
meetings of the Council without the right to vote or to move or
second motions or amendments, under such further conditions as
the Council may determine and holding credentials as evidence of
his appointment.
Order of business — means a list of items of business for consideration
at one meeting.
President — means the President of the Council.
Representative — means a person designated and authorized by a
Member of the Council to act on the Council, and holding
credentials as evidence thereof.
Secret Ballot — means a ballot where the marking of the ballot paper
by a Representative takes place in private and cannot be overseen
by any person other than the Representative’s Alternate. All ballot
papers distributed should be exactly alike so that it cannot be
determined how any one Representative voted.
Work Programme — means the list of items to be considered during a
session of the Council.
Working Day — means a weekday on which the Organization conducts
business at Headquarters and does not observe a public holiday.
Working paper — means a paper proposing Action by the Council.
SECTION I
REPRESENTATIVES, ALTERNATES AND OBSERVERS,
AND THEIR CREDENTIALS
Rule 1
Each Member of the Council shall have one Representative, whose
place may be taken by an Alternate. No person may represent more
than one State.
Annex 15
3
Rule 2
Credentials of Representatives, of their Alternates and of Observers
shall be signed on behalf of the State, organization or body concerned
and indicate the capacity in which the individual is to serve, and shall
be deposited with the Secretary General.
Rule 3
The credentials shall be examined by the President, one of the Vice-
Presidents and the Secretary General, who shall report to the Council.
Rule 4
Any Representative, Alternate or Observer shall be entitled, pending
the presentation of the report on his credentials and Council action
thereon, to attend meetings and to participate in them subject, however,
to the limits set forth in these Rules. The Council may bar from any
further part in the activities of the Council, Commissions, Committees
and Working Groups any Representative, Alternate or Observer whose
credentials it finds to be insufficient.
SECTION II
OFFICERS OF THE COUNCIL
AND THE SECRETARY GENERAL
Rule 5
The Council shall elect its President for a term of three years, the exact
dates of commencement and termination of which will be determined
by the Council. Candidates shall be nominated by Contracting States.
The rules and procedures governing the election of the President are set
out in Appendix A.
Annex 15
4
Rule 6
The President of the Council may be removed from office at any time
by a decision of the Council taken by a majority of its Members,
provided that the motion for that purpose is introduced in writing and is
moved jointly by not less than one third of the Members of the Council.
Upon the introduction of such a motion, the meeting shall be adjourned.
As soon as practicable thereafter, a meeting to consider the motion
shall be called by the Vice-President entitled to act under Rule 10.
Pending the decision of the Council, the President shall refrain from
carrying out the normal functions of the President.
Rule 7
In the event of the President’s death, removal from office, or
resignation, or if the President is otherwise unable to complete his term
of office, a new President shall be elected by the Council as soon as
possible thereafter and the latter shall hold office for the remainder of
the term of his predecessor. If the President gives prior notice of
resignation, the election shall be held on a date to be decided by the
Council, if possible before the resignation takes effect.
Rule 8
The Council shall elect from among Representatives a First, a Second
and a Third Vice-President. Candidates shall be nominated by one or
more Council Members. The rules set out in Appendix B shall govern
the election of each Vice-President.
Rule 9
The term of office of a Vice-President shall extend for one year from
the date of his election, but he may continue to hold office thereafter
until his successor is elected, provided that his term of office shall not
extend beyond the end of the term of the Council unless the State which
he represents continues to be a Member of the Council.
Annex 15
5
Rule 10
In the absence of the President, the First Vice-President, the Second
Vice-President or the Third Vice-President in that order shall exercise
the functions vested in the President by these Rules of Procedure.
Rule 11
A Vice-President when acting in the absence of the President shall
retain his right to vote.
Rule 12
The Council shall appoint the Secretary General for a term of three
years. Candidates shall be nominated by Contracting States. A
Secretary General who has served for two terms shall not be appointed
for a third term. The rules and procedures governing the appointment of
the Secretary General are set out in Appendix C.
Rule 13
The Secretary General of the Organization shall be the Secretary of the
Council.
Rule 14
The Secretary General may be removed from office by a decision of the
Council taken by a majority of its Members, provided that the motion
for that purpose is introduced in writing and is moved jointly by not
less than one third of the Members of the Council. As soon as
practicable thereafter, a meeting to consider the motion shall be called
by the President. Pending the decision of the Council, the Secretary
General shall refrain from carrying out the normal functions of the
Secretary General.
Annex 15
6
Rule 15
In the event of the Secretary General’s death, removal from office, or
resignation, or if the Secretary General is otherwise unable to complete
his term of office, the Council shall, notwithstanding the procedure in
Appendix C, draw up an appropriate timetable for appointing a
successor. If the Secretary General gives prior notice of resignation, the
appointment shall be held on a date to be decided by the Council, if
possible before the resignation takes effect.
SECTION III
COMMISSIONS, COMMITTEES AND
WORKING GROUPS OF THE COUNCIL
Rule 16
a) The Council shall appoint the Members of the Air Navigation
Commission from candidates nominated by Contracting States.
Such appointment shall be for a term of three years, or for the
remainder of the term of a predecessor.
b) The Council may appoint Alternates to act in the absence of a
member of the Air Navigation Commission.
c) The Council shall appoint the President of the Air Navigation
Commission in accordance with the Guidelines set out in paragraph
4 of Appendix D.
d) The rules and procedures governing the appointment of the
Members, Alternates and President of the Air Navigation
Commission are set out in Appendix D.
Rule 17
a) In addition to the Air Navigation Commission, the Air Transport
Committee and the Finance Committee, the Council may establish
Annex 15
7
other Commissions, Committees or Working Groups, either
Standing or Temporary. The Council shall elect the Members and
Alternates of standing bodies and shall specify at the time of
establishing such bodies whether the body shall also elect its own
Chairman. Standing bodies shall elect their own vice-Chairmen.
b) The Council may elect an Alternate who may act and vote on
behalf of a Member of the Standing Commission, Committee or
Working Group who is absent or who is discharging the functions
of Chairman.
c) The rules and procedures governing the election of the Members,
Alternates and Chairmen of Commissions (other than the Air
Navigation Commission), Committees and Working Groups are set
out in Appendix E.
d) The temporary bodies mentioned in paragraph a) shall elect their
own officers, unless the Council decides otherwise.
e) The method of selection, terms of reference and working methods
of Temporary Commissions, Committees or Working Groups shall
be determined by the Council in each case.
SECTION IV
SESSIONS OF THE COUNCIL
Rule 18
The Council shall meet at such times and for such periods as it deems
necessary for the proper discharge of its responsibilities. The Council
shall determine the dates of the opening and termination of each session.
Annex 15
8
Rule 19
a) Between two consecutive sessions of the Council, the President, on
his own initiative or at the request of a Contracting State, after
consulting the Members of the Council and with the approval of
the majority of the Members of the Council, shall call an extraordinary
session or change the date which the Council has set for
the opening of the next session. No such action shall result in a
Council Meeting being held on less than seven days’ notice.
b) When the President considers that the urgency of a situation so
warrants, he may, after consultation with the most senior Vice-
President available, convene a special session of the Council
provided that no less than 48 hours’ notice is given.
Rule 20
If a part of a Council session is devoted primarily to Committee
meetings, the President may call such Council meetings as he considers
necessary. No such meetings shall be called on less than 48 hours’
notice without the approval of the majority of the Council.
Rule 21
The Council shall meet at the seat of the Organization unless the
Council decides that a particular session or meeting shall take place
elsewhere.
SECTION V
WORK PROGRAMME AND ORDER OF BUSINESS
Rule 22
A Provisional Work Programme of each session of the Council shall be
prepared by the Secretary General after consultation with the President,
Annex 15
9
and presented to the Council for approval. The presentation to the
Council should normally, and wherever practicable, be made during the
preceding session. The Council should indicate the priority which it
attaches to the consideration of the various items in the Provisional
Work Programme.
Rule 23
In preparing the Provisional Work Programme, the Secretary General
shall include therein:
a) subjects which require consideration by the Council by virtue of
provisions of the Convention or other international agreement;
b) subjects to be considered by virtue of decisions of the Assembly or
decisions taken by the Council at a previous session;
c) reports presented or references made to the Council by bodies of
the Organization or other international bodies;
d) any subject proposed by a Member of the Council and transmitted
directly to the President or the Secretary General;
e) any subject referred by a Contracting State for consideration by the
Council;
f) any subject which the President or the Secretary General desires to
bring before the Council;
g) a report on action carried out to implement the decisions of the
Council taken at its previous session;
h) a report on the financial situation of the Organization; and
i) a report on the progress made by the Organization towards its
strategic objectives and the objectives of the Business Plan.
Annex 15
10
Rule 24
a) Supplementary items may be placed on the Work Programme
during a session at the request of any Member of the Council, or of
the President or the Secretary General, subject to the approval of
the Council.
b) Any additional subject which fulfils the conditions specified in
Rule 26, paragraph d), shall be deemed to be included in the Work
Programme of the session concerned.
c) Supplements to the Work Programme should be issued by the
Secretary General showing results of the application of paragraphs
a) and b) of this Rule.
Rule 25
The Order of Business for each meeting shall be prepared by the
Secretary General and approved by the President.
Rule 26
a) The Order of Business shall be distributed to all Representatives at
least 24 hours before the meeting of the Council.
b) All documents listed in the Order of Business shall be distributed
to all Representatives in advance of the meeting of the Council to
which the Order of Business relates as follows:
i) for working papers containing proposals for adopting or
amending the Annexes under Article 90 of the Convention —
at least 10 working days before the meeting;
ii) for other working papers — at least 5 working days before the
meeting;
Annex 15
11
iii) for reports from Standing Commissions or Committees of
the Council or reports of other bodies established under
Rule 17 — at least 48 hours before the meeting; and
iv) for all other documents — at least 24 hours before the meeting.
c) A revised Order of Business may be distributed less than 24 hours
before the meeting of the Council to include, without substantial
change, items of business included in the Order of Business
already distributed for that meeting or an item carried over from
the immediately preceding meeting provided that the revised Order
of Business shall not list any documents not distributed in
accordance with paragraph b) of this Rule.
d) If the Secretary General, or the President, or a Contracting State
requests that a new subject, whether or not included in the Work
Programme, be considered at a meeting of the Council, such
subject shall be listed in an Addendum to the Order of Business to
be issued by the Secretary General. Any such additional item shall
be considered only if the Council so decides by a majority of its
Members.
e) Notwithstanding paragraphs a) and b), for special sessions of the
Council convened pursuant to Rule 19 b), the Order of Business
and other documents shall be distributed as soon as practicable in
advance of the meeting.
Rule 27
Any subject on the Work Programme of the Council and any document
presented in connection therewith may be referred by the Council to an
appropriate existing Committee, Commission or Working Group for
consideration and report before its consideration by the Council.
Rule 28
Any Member of the Council may have placed on the Order of Business
any item of the Work Programme which it wishes to be considered
Annex 15
12
forthwith by the Council. This right is subject to the provisions of the
second sentence of paragraph d) of Rule 26, and subject also to the
proviso contained in clause b) of Rule 30.
Rule 29
a) Any Member of the Council, the President or the Secretary
General may introduce for the consideration of the Council documents
bearing upon any item on the Council Work Programme, or
present any recommendations with respect thereto.
b) The Council shall, as necessary, issue guidelines on the structure
and presentation of working papers and other documents.
Rule 30
The Council may at any time:
a) amend the Work Programme of a session; or
b) decide, by a majority of its Members, to amend the Order of
Business of a meeting, provided that no item or other matter which
was not included in the Order of Business as distributed in
accordance with the provisions of Rule 26, shall be brought to final
action at that meeting except by the unanimous consent of all the
Members of the Council represented at the meeting.
SECTION VI
CONDUCT OF BUSINESS
Rule 31
Any Contracting State may participate, without a vote, in the
consideration by the Council and by its Committees and Commissions
of any question which especially affects its interests (Article 53 of the
Annex 15
13
Convention). Subject to the approval of the Council, the President may
invite such participation where he considers that the condition of
special interest is fulfilled. If a Contracting State requests permission to
participate on the grounds of special interest, the President shall refer
the request to the Council for decision.
Rule 32
a) The Council may invite non-Contracting States and international
organizations or other bodies to be represented at any of its
meetings by one or more Observers.
b) The President shall invite the United Nations to be represented by
Observers at meetings of the Council.
c) Subject to the approval of the Council, the President may invite
Specialized Agencies in relationship with the United Nations to be
represented by Observers at meetings of the Council in which
matters of special interest to them are to be discussed.
Rule 33
A majority of the Members of the Council shall constitute a quorum for
the conduct of the business of the Council.
Rule 34
a) The President shall convene meetings of the Council (Article 51 a)
of the Convention); he shall preside at, and declare the opening and
closing of each meeting, direct the discussion in a structured and
focused way, accord the right to speak, put questions and announce
the decisions.
b) He shall ensure the observance of these Rules.
c) During the discussion of any matter, a Representative may raise a
point of order or any other matter related to the interpretation or
Annex 15
14
application of these Rules. The point of order or matter related to
the interpretation or application of these Rules shall be decided
immediately by the President, in accordance with these Rules. A
Representative raising a point of order may only speak in relation
to that point of order.
Rule 35
a) The President shall call upon speakers in the order in which, in his
opinion, they have expressed their desire to speak, taking into
account the desirability of maintaining a structured and focused
discussion; he may call a speaker to order if he considers that the
speaker’s observations are not relevant to the subject under
discussion, or for any other appropriate reason.
b) Generally, no speaker shall be called to intervene a second time on
any question, except for clarification, until all others desiring to
intervene have had the opportunity to do so.
c) The President of the Air Navigation Commission and the
Chairman of a Commission, Committee or Working Group may be
accorded precedence for the purpose of explaining the conclusions
arrived at by the body concerned.
Rule 36
Rulings given by the President during a meeting of the Council on the
interpretation or application of these Rules of Procedure may be
appealed by any Member of the Council and the appeal shall be put to
vote immediately. The ruling of the President shall stand unless overruled
by a majority of the votes cast.
Rule 37
Meetings of the Council shall be open to the public unless the Council
rules by a majority of votes cast that any particular meeting or part
Annex 15
15
thereof be closed. Guidelines on when Council meetings should be held
in closed session and when Council documents should be marked
“Restricted” are found in Appendix F.
Rule 38
Closed meetings of the Council shall be open to the Alternates and
Advisers accompanying the Representatives; to Observers from any
other Contracting State, unless the Council decides otherwise; to the
members of the Secretariat whose attendance is necessary to the
conduct of the meeting or is desired by the Secretary General; and to
any other persons invited by the Council. Closed meetings shall not be
broadcast by the Organization’s monitoring exchange.
Rule 39
Subject to the approval of the Council, the President may invite the
President of the Air Navigation Commission and the Chairmen of
Commissions, Committees or Working Groups who are not Representatives
to attend any open or closed meeting of the Council and
participate in its discussion without the right to vote when business
relating to the work of their Commission, Committee or Working
Group, or to any documentation connected therewith, is before the
Council.
Rule 40
Any Member of the Council may introduce a motion or amendment
thereto, subject to the following rules:
a) with the exception of motions and amendments relative to
nominations, no motion or amendment shall be discussed unless it
has been seconded;
b) no motion or amendment may be withdrawn by its author if an
amendment to it is under discussion or has been adopted;
Annex 15
16
c) if a motion has been moved, no motion other than one for an
amendment to the original motion shall be considered until the
original motion has been disposed of. The President shall
determine whether such additional motion is so related to the
motion already before the Council as to constitute a proper amendment
thereto, or whether it is to be regarded as an alternative
motion, consideration of which shall be postponed as stipulated
above;
d) if an amendment to a motion has been moved, no amendment other
than an amendment to the original one shall be moved until the
original amendment has been disposed of. The President shall
determine whether such additional amendment is so related to the
original one as to constitute an amendment thereto, or whether it is
to be regarded as an alternative amendment, consideration of
which shall be postponed as stipulated above.
Rule 41
a) The following motions shall have priority over all other motions
and shall be taken in the following order:
1) a motion to reverse a ruling by the President;
2) a motion to adjourn the meeting;
3) a motion to fix the time to adjourn the meeting;
4) a motion to suspend the meeting for a limited time;
5) a motion to defer further debate on a particular question, either
indefinitely or for a limited period greater than that covered by
Rule 42;
6) a motion to refer the matter to a Commission, Committee or
Working Group;
7) a motion to invite the opinions of Contracting States on a
matter, and to postpone final action thereon until reasonable
time for the receipt of such opinions has been allowed;
Annex 15
17
8) a motion to terminate the debate on a particular motion and to
take at once a decision thereon.
b) Action on these matters will be determined by a majority of the
votes cast.
Rule 42
Upon the request of any Member of the Council, and unless objection is
raised by the majority of the Members of the Council, further debate on
any item of business shall be deferred for a period of not over two
working days, or until the next Council meeting following the second
day; but no such action under this paragraph shall be admissible when
it would have the effect, due to the anticipated adjournment of a
Council session, of making it impossible to resume consideration of the
deferred item by the seventh day following the action of deferment.
Any such request shall be privileged, and shall be considered
immediately on its presentation.
Rule 43
The Council may decide, by a majority of its Members, to reopen the
discussion of an item already disposed of by the Council in the same
session. In that event, and unless the Council by a majority of its
Members decides that the item be dealt with forthwith, the item
concerned shall be placed on the Order of Business of the next meeting.
SECTION VII
VOTING
Rule 44
Each Member of the Council has one vote.
Annex 15
18
Rule 45
With the exception of motions and amendments relative to nominations,
no motion or amendment shall be voted on, unless it has been seconded.
Rule 46
Upon the request of any Member of the Council, and unless a majority
of its Members decide otherwise:
a) final action on any motion or amendment thereto shall be delayed
until the proposed text of the motion or amendment thereto has
been available to Representatives for at least 24 hours;
b) a vote or final action on any item which has been considered shall,
after any initial discussion of the item, be postponed for a period
not exceeding that indicated in Rule 42.
Rule 47
Any amendment shall be voted on before the motion or amendment to
which it refers.
Rule 48
On the request of any Member of the Council, and unless opposed by a
majority of the votes cast, parts of a motion shall be voted on separately.
The resulting motion shall then be put to a final vote in its entirety.
Rule 49
Except in the case of a secret ballot, the vote or the abstention from
voting of any Member of the Council shall be recorded upon his
request. Subject to the same exception, upon the request of any
Member of the Council, the individual votes of all the Members of the
Council shall be recorded. In the latter case, the roll-call shall be taken
Annex 15
19
in the English alphabetical order of the names of the Members,
beginning with the Member whose name is drawn by lot by the
President.
Rule 50
Unless opposed by a majority of the Members of the Council, the vote
shall be taken by secret ballot if a request to that effect is supported, if
made by a Member of the Council, by one other Member, and, if made
by the President, by two Members.
Rule 51
A vote received by correspondence or electronically shall not be
counted unless, in a particular case, the Council has previously decided
otherwise. In the latter event, a communication approved by the
Council or under its authority shall be sent to the Member of the
Council concerned for the purpose of ensuring that due consideration is
given to the major points of view expressed on the question before the
vote is sent, and reasonable time shall be allowed for a reply.
Rule 52
In the event of a tie vote, a second vote on the motion concerned shall
be taken at the next meeting of the Council, unless by a majority of the
votes cast the Council decides that such second vote be taken during
the meeting at which the tie vote took place. Unless there is a majority
in favour of the motion on the second vote, it shall be considered lost.
Rule 53
The President may take a preliminary informal vote or poll of the
Members of the Council on any issue, in terms to be phrased by him,
for the purpose of facilitating the subsequent framing of a motion. Such
Annex 15
20
informal procedure shall not commit the Council or any Member
thereof. The results of such informal procedure may be recorded in the
Minutes, but no mention of the vote of any Member of the Council
shall be made.
SECTION VIII
APPROVAL OF PROPOSALS
WITH RESPECT TO ADMINISTRATIVE MATTERS
Rule 54
Notwithstanding the other provisions of these Rules of Procedure,
proposals of the Secretary General with respect to such administrative
matters including amendments to administrative regulations as require
approval of the Council may be approved in accordance with the
following procedure:
1) the Secretary General shall distribute to the Representatives of the
Members of the Council a paper explaining his proposals, and the
existence of this paper shall be noted on the Orders of Business of
two Council meetings, the first of which shall be held at least one
week after the date of the distribution of the paper;
2) upon the request of any Member of the Council, filed with the
President at least 24 hours before either of these two meetings, the
paper shall be brought before the Council for consideration under
the normal procedure;
3) in the absence of a request for discussion under the provisions of
paragraph 2) of this Rule, the proposal of the Secretary General
shall be deemed to have been approved on the date of the second
of the two Council meetings in the Orders of Business of which the
existence of the paper has been noted.
Annex 15
21
SECTION IX
LANGUAGES OF THE COUNCIL
Rule 55
The discussions of the Council shall be conducted in the English,
Arabic, Chinese, French, Russian and Spanish languages, and
interpretation shall take place accordingly. By unanimous agreement,
the Council may decide that interpretation into one or more of such
languages shall be waived.
Rule 56
The Council shall decide from time to time in which language or
languages, specified in Rule 55, the documentation for the Council
shall be drawn up.
SECTION X
RECORDS OF PROCEEDINGS
Rule 57
a) The Secretary General shall prepare Draft Decisions taken at each
meeting within five working days of the meeting to which they
relate. These shall be submitted to the President for agreement and
shall be distributed to Representatives who shall have three
working days to comment thereon. If there are no objections raised
by Representatives to the content of the Draft Decisions, the
President shall declare them approved. If any objections are raised,
the President shall attempt to resolve them with the Representative
concerned. If the objections are not so resolved, the matter shall be
considered by the Council, without reopening the substance of the
debate, if at least two Representatives ask for it to be so.
Annex 15
22
b) The Secretary General shall prepare Draft Minutes of each meeting
within six weeks of the session of the Council to which they relate.
These shall be submitted to the President for agreement, distributed
to Representatives who shall have ten working days to comment
thereon and adopted by the Council either through written
procedure or at a subsequent meeting.
c) After adoption, the text of Decisions and Minutes shall be made
available to Representatives and to Contracting States.
Rule 58
Council documents other than the Minutes of closed meetings may be
provided to non-Contracting States, to international organizations and
to the public, unless otherwise directed by the Council or, between
sessions of the Council, by the President.
Rule 59
The final texts of all resolutions and decisions of the Council, together
with Council working and other papers, shall be made available by the
Secretary General to all Contracting States as soon as possible.
Rule 60
Press releases concerning the proceedings of the Council shall be
prepared by the Secretary General and shall be approved by the
President after consulting with the most senior Vice-President available,
before being made public.
Annex 15
23
SECTION XI
INTERPRETATION, REVOCATION, SUSPENSION
AND AMENDMENT OF THE RULES OF PROCEDURE
Rule 61
Any Member of the Council may request that any application or
interpretation of these Rules by the President otherwise than during a
meeting of the Council, be reviewed by the Council. Such request shall
be considered by the Council at its next regular meeting, unless the
President considers it advisable to call a special meeting for that
purpose under Rule 20 of these Rules of Procedure. The action taken by
the President shall stand confirmed unless decided otherwise by a
majority of the votes cast.
Rule 62
In the case of any provision herein which does not specify the majority
by which a decision shall be taken, it is understood that a majority of
the votes cast will be sufficient, provided that if a Member of the
Council has requested that the decision be taken by a majority of
Members of the Council, the latter majority shall apply.
Rule 63
a) These Rules of Procedure or any portion thereof may be revoked,
temporarily suspended or amended by Council decision taken by a
majority of its Members, provided that no such action is in conflict
with the Convention or with any direction given or decision taken
by the Assembly. The Secretary General shall maintain and make
available to Council Members a central record of all such
temporary suspensions.
b) Notwithstanding Rule 26, proposals to amend or revoke these
Rules of Procedure shall be circulated to Representatives at least
ten working days in advance of the meeting of the Council in
which they will be considered.
Annex 15
24
Appendix A
Rules and Procedures for the election of the
President of the Council
1. The Council shall, not less than three months before the
opening of the ordinary session of the Assembly which will elect a new
Council, inform Contracting States that the Council to be elected at that
Session of the Assembly will elect the President of the Council. The
communication should also:
a) invite attention to the provisions of Article 51 of the Convention;
b) set out the qualifications, experience and abilities which candidates
are expected to demonstrate; and
c) indicate the date by which the names of candidates for the
Presidency should be in the hands of the Secretary General.
2. The names of the candidates shall be circulated by the
Secretary General to all Contracting States as soon as they are received.
3. The Council shall invite candidates, at an appropriate date
before the election, to present their views and ideas to a meeting of
Representatives, and to answer any questions which may be posed.
4. The election of the President shall require a majority of the
Members of the Council.
5. If no candidate receives the majority on the first ballot, a
second and, if necessary, subsequent ballots shall be held on the two
candidates who received the largest number of votes in the preceding
ballot. Candidates tying for the last qualifying place in a ballot shall all
be included in the next ballot.
Annex 15
25
6. The election shall take place by secret ballot, unless waived by
unanimous decision of the Members represented at the meeting.
Annex 15
26
Appendix B
Rules and Procedures for the election of the
Vice-Presidents of the Council
1. The election of each Vice-President shall require a majority of
the Members of the Council.
2. If no candidate receives the majority on the first ballot, a
second and, if necessary, subsequent ballots shall be held on the two
candidates who received the largest number of votes in the preceding
ballot. Candidates tying for the last qualifying place in a ballot shall all
be included in the next ballot.
3. The election shall take place by secret ballot, unless waived by
unanimous decision of the Members represented at the meeting.
Annex 15
27
Appendix C
Rules and Procedures for the appointment of the
Secretary General
1. The appointment of the Secretary General will take place
approximately five months before the termination of the period for
which the incumbent was appointed.
2. Ten months before the termination of that period, the Council
shall inform Contracting States that it will proceed to the appointment
of the Secretary General. The communication should also:
a) invite attention to the provisions of Articles 54 (h), 58 and 59 of
the Convention;
b) set out the qualifications, experience and abilities which candidates
are expected to demonstrate; and
c) indicate the date by which the names of candidates for the
Secretary General should be in the hands of the President; that date
to provide Contracting States three full months for reply.
3. The names of the candidates shall be circulated by the
President to all Contracting States as soon as they are received.
4. The Council shall invite candidates, at an appropriate date
before the election, to present their views and ideas to a meeting of
Representatives, and to answer any questions which may be posed.
5. The appointment of the Secretary General shall require a
majority of the Members of the Council.
Annex 15
28
6. If no candidate receives the majority on the first ballot, a
second and, if necessary, subsequent ballots shall be held on the two
candidates who received the largest number of votes in the preceding
ballot. Candidates tying for the last qualifying place in a ballot shall all
be included in the next ballot.
7. The election shall take place by secret ballot, unless waived by
unanimous decision of the Members represented at the meeting.
Annex 15
29
Appendix D
Rules and Procedures governing the appointment
of the Members, Alternates and President
of the Air Navigation Commission
1. The appointment of the Members, Alternates and President of
the Air Navigation Commission shall require a majority of the
Members of the Council and, unless waived by unanimous agreement
of the Members represented at the meeting, shall be by secret ballot.
Appointment of Members and Alternates
2. If the number of candidates receiving the required majority on
the first ballot is in excess of the number of places to be filled, those
receiving the highest number of votes shall be appointed. If the number
of candidates appointed on the first ballot is less than the number of
places to be filled, additional ballots shall be held as necessary. In each
ballot subsequent to the first one, the names considered shall be those
having received the highest number of votes in the previous ballot, up
to a total number of candidates equal to twice the total number of
places to be filled. Candidates tying for the last qualifying place in a
ballot shall all be included in the next ballot.
Appointment of President
3. If no candidate receives the majority on the first ballot, a
second and, if necessary, subsequent ballots shall be held on the two
candidates who received the largest number of votes in the preceding
ballot. Candidates tying for the last qualifying place in a ballot shall all
be included in the next ballot.
Annex 15
30
4. Pursuant to Rule 16 c), the following constitutes the Guidelines
relating to the appointment of the President of the Air Navigation
Commission:
a) the candidacies to the post of the President of the Commission
should be declared to the President of the Council;
b) the Commission should indicate to the Council what is expected of
its future President, the major tasks to be performed during its
mandate, and the main qualities needed by its future President in
this context;
c) the Commission should refrain from voting on this issue.
Annex 15
31
Appendix E
Rules and Procedures governing the appointment
of the Members, Alternates and Chairmen of
Commissions (other than the Air Navigation
Commission), Committees and Working Groups
1. In cases where the Council has to elect Members, Alternates or
a Chairman of a Standing Commission (other than the Air Navigation
Commission), Committee or Working Group, each Member of the
Council may present names from among the Representatives or
Alternates, with their consent, for inclusion in a list to be presented to
the Council by the President. Not more than one Representative or
Alternate of any State may be elected.
2. The election of Members, Alternates and Chairmen of such
Commissions, Committees and Working Groups shall require a
majority of the Members of the Council and, unless waived by
unanimous agreement of the Members represented at the meeting, shall
be by secret ballot.
Election of Members, Alternates and Chairmen
3. If the number of candidates receiving the required majority on
the first ballot is in excess of the number of places to be filled, those
receiving the highest number of votes shall be elected. If the number of
candidates elected on the first ballot is less than the number of places to
be filled, additional ballots shall be held as necessary. In each ballot
subsequent to the first one, the names considered shall be those having
received the highest number of votes in the previous ballot, up to a total
number of candidates equal to twice the total number of places to be
filled. Candidates tying for the last qualifying place in a ballot shall all
be included in the next ballot.
Annex 15
32
Appendix F
Guidelines on when Council meetings should be held
in closed session (Rule 37) and when Council
documents should be marked “Restricted”
1. Meetings of the Council should normally be open to the public.
In general, meetings should only be held in closed session if discussion
involves the following:
a) the level of aviation security in specified States or in general;
b) current or future provisions concerning aviation security;
c) salaries or allowances of an individual member of staff or of a
category of staff;
d) disputes between Contracting States; and
e) issues where Representatives’ personal security could be
endangered if their statements were made public.
2. Normally, only documents relating to meetings considering
the subjects listed under a) to e) above should be marked “Restricted”.
— END —
Annex 15
Annex 15
Annex 16
Convention on International Civil Aviation, Annex 15: Aeronautical Information Services
(15th ed., July 2016)
Annex 16
INTERNATIONAL CIVIL AVIATION ORGANIZATION
Annex 15
Practices, see Foreword.
For information regarding the applicability of the Standards and Recommended
This edition supersedes, on 10 November 2016, all previous editions of Annex 15.
Fifteenth Edition, July 2016
to the Convention on International Civil Aviation
Aeronautical Information Services
International Standards
and Recommended Practices
Annex 16
INTERNATIONAL CIVIL AVIATION ORGANIZATION
Annex 15
Practices, see Foreword.
For information regarding the applicability of the Standards and Recommended
This edition supersedes, on 10 November 2016, all previous editions of Annex 15.
Fifteenth Edition, July 2016
to the Convention on International Civil Aviation
Aeronautical Information Services
International Standards
and Recommended Practices
Annex 16
Published in separate English, Arabic, Chinese, French, Russian
and Spanish editions by the
INTERNATIONAL CIVIL AVIATION ORGANIZATION
999 Robert-Bourassa Boulevard, Montréal, Quebec, Canada H3C 5H7
For ordering information and for a complete listing of sales agents
and booksellers, please go to the ICAO website at www.icao.int.
First edition 1953
Thirteenth edition 2010
Fourteenth edition 2013
Fifteenth edition 2016
Annex 15 — Aeronautical Information Services
Order Number: AN15
ISBN 978-92-9258-033-9
© ICAO 2016
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, without prior
permission in writing from the International Civil Aviation Organization.
Annex 16
(iii)
AMENDMENTS
Amendments are announced in the supplements to the Products and Services
Catalogue; the Catalogue and its supplements are available on the ICAO website at
www.icao.int. The space below is provided to keep a record of such amendments.
RECORD OF AMENDMENTS AND CORRIGENDA
AMENDMENTS CORRIGENDA
No.
Date
applicable
Date
entered
Entered
by No.
Date
of issue
Date
entered
Entered
by
1–39-A Incorporated in this edition
Annex 16
ANNEX 15 (v) 10/11/16
TABLE OF CONTENTS
Page
Foreword ................................................................................................................................................................ (ix)
CHAPTER 1. General......................................................................................................................................... 1-1
1.1 Definitions ........................................................................................................................................... 1-1
1.2 Common reference systems for air navigation ..................................................................................... 1-9
1.3 Miscellaneous specifications................................................................................................................ 1-11
CHAPTER 2. Responsibilities and functions .................................................................................................... 2-1
2.1 State responsibilities ............................................................................................................................ 2-1
2.2 AIS responsibilities and functions ....................................................................................................... 2-1
2.3 Exchange of aeronautical data and aeronautical information .............................................................. 2-2
2.4 Copyright ............................................................................................................................................. 2-3
2.5 Cost recovery ....................................................................................................................................... 2-3
CHAPTER 3. Aeronautical information management ........................................................................................ 3-1
3.1 Information management requirements ............................................................................................... 3-1
3.2 Aeronautical data and aeronautical information validation and verification ....................................... 3-1
3.3 Data quality specifications ................................................................................................................... 3-1
3.4 Metadata .............................................................................................................................................. 3-3
3.5 Data protection ..................................................................................................................................... 3-3
3.6 Use of automation ................................................................................................................................ 3-3
3.7 Quality management system ................................................................................................................ 3-4
3.8 Human factors considerations .............................................................................................................. 3-5
CHAPTER 4. Aeronautical Information Publications (AIP) .............................................................................. 4-1
4.1 Contents ............................................................................................................................................... 4-1
4.2 General specifications .......................................................................................................................... 4-2
4.3 Specifications for AIP Amendments .................................................................................................... 4-3
4.4 Specifications for AIP Supplements .................................................................................................... 4-3
4.5 Distribution .......................................................................................................................................... 4-4
4.6 Electronic AIP (eAIP) .......................................................................................................................... 4-4
CHAPTER 5. NOTAM ....................................................................................................................................... 5-1
5.1 Origination ........................................................................................................................................... 5-1
5.2 General specifications .......................................................................................................................... 5-3
5.3 Distribution .......................................................................................................................................... 5-5
Annex 16
Annex 15 — Aeronautical Information Services Table of Contents
10/11/16 (vi)
CHAPTER 6. Aeronautical Information Regulation and Control (AIRAC) ...................................................... 6-1
6.1 General specifications .......................................................................................................................... 6-1
6.2 Provision of information in paper copy form ....................................................................................... 6-1
6.3 Provision of information as electronic media ...................................................................................... 6-1
CHAPTER 7. Aeronautical Information Circulars (AIC) ................................................................................... 7-1
7.1 Origination ........................................................................................................................................... 7-1
7.2 General specifications .......................................................................................................................... 7-2
7.3 Distribution .......................................................................................................................................... 7-3
CHAPTER 8. Pre-flight and post-flight information .......................................................................................... 8-1
8.1 Pre-flight information .......................................................................................................................... 8-1
8.2 Automated pre-flight information systems .......................................................................................... 8-2
8.3 Post-flight information ......................................................................................................................... 8-3
CHAPTER 9. Telecommunication requirements ................................................................................................ 9-1
CHAPTER 10. Electronic terrain and obstacle data ........................................................................................... 10-1
10.1 Coverage areas and requirements for data provision ........................................................................... 10-1
10.2 Terrain data set — content, numerical specification and structure ...................................................... 10-3
10.3 Obstacle data set — content, numerical specification and structure .................................................... 10-3
10.4 Terrain and obstacle data product specifications ................................................................................. 10-4
CHAPTER 11. Aerodrome mapping data ........................................................................................................... 11-1
11.1 Aerodrome mapping data — requirements for provision .................................................................... 11-1
11.2 Aerodrome mapping data product specification .................................................................................. 11-1
11.3 Aerodrome mapping database — data set content and structure ......................................................... 11-2
APPENDIX 1. Contents of the Aeronautical Information Publication (AIP) ..................................................... APP 1-1
Part 1 — General (GEN) ................................................................................................................................ APP 1-1
Part 2 — En-route (ENR) ............................................................................................................................... APP 1-17
Part 3 — Aerodromes (AD) ............................................................................................................................ APP 1-29
APPENDIX 2. SNOWTAM format ................................................................................................................... APP 2-1
APPENDIX 3. ASHTAM format ....................................................................................................................... APP 3-1
APPENDIX 4. Information to be notified by AIRAC ........................................................................................ APP 4-1
APPENDIX 5. Predetermined distribution system for NOTAM ........................................................................ APP 5-1
APPENDIX 6. NOTAM format ......................................................................................................................... APP 6-1
Annex 16
ANNEX 15 5-1 10/11/16
CHAPTER 5. NOTAM
5.1 Origination
5.1.1 A NOTAM shall be originated and issued promptly whenever the information to be distributed is of a temporary
nature and of short duration or when operationally significant permanent changes, or temporary changes of long duration are
made at short notice, except for extensive text and/or graphics.
Note 1.— Operationally significant changes concerning circumstances listed in Appendix 4, Part 1, are issued under the
Aeronautical Information Regulation and Control (AIRAC) system specified in Chapter 6.
Note 2.— Information of short duration containing extensive text and/or graphics is published as an AIP Supplement
(see Chapter 4, 4.4).
5.1.1.1 A NOTAM shall be originated and issued concerning the following information:
a) establishment, closure or significant changes in operation of aerodrome(s)/heliport(s) or runways;
b) establishment, withdrawal and significant changes in operation of aeronautical services (AGA, AIS, ATS, CNS,
MET, SAR, etc.);
c) establishment, withdrawal and significant changes in operational capability of radio navigation and air-ground
communication services. This includes: interruption or return to operation, change of frequencies, change in notified
hours of service, change of identification, change of orientation (directional aids), change of location, power
increase or decrease amounting to 50 per cent or more, change in broadcast schedules or contents, or irregularity or
unreliability of operation of any radio navigation and air-ground communication services;
d) establishment, withdrawal or significant changes made to visual aids;
e) interruption of or return to operation of major components of aerodrome lighting systems;
f) establishment, withdrawal or significant changes made to procedures for air navigation services;
g) occurrence or correction of major defects or impediments in the manoeuvring area;
h) changes to and limitations on availability of fuel, oil and oxygen;
i) major changes to search and rescue facilities and services available;
j) establishment, withdrawal or return to operation of hazard beacons marking obstacles to air navigation;
k) changes in regulations requiring immediate action, e.g. prohibited areas for SAR action;
l) presence of hazards which affect air navigation (including obstacles, military exercises, displays, races and major
parachuting events outside promulgated sites);
m) erecting or removal of, or changes to, obstacles to air navigation in the take-off/climb, missed approach, approach
areas and runway strip;
Annex 16
Annex 15 — Aeronautical Information Services Chapter 5
10/11/16 5-2
n) establishment or discontinuance (including activation or deactivation) as applicable, or changes in the status of
prohibited, restricted or danger areas;
o) establishment or discontinuance of areas or routes or portions thereof where the possibility of interception exists and
where the maintenance of guard on the VHF emergency frequency 121.5 MHz is required;
p) allocation, cancellation or change of location indicators;
q) significant changes in the level of protection normally available at an aerodrome/heliport for rescue and fire fighting
purposes. NOTAM shall be originated only when a change of category is involved and such change of category shall
be clearly stated (see Annex 14, Volume I, Chapter 9, and Attachment A, Section 18);
r) presence or removal of, or significant changes in, hazardous conditions due to snow, slush, ice, radioactive material,
toxic chemicals, volcanic ash deposition or water on the movement area;
s) outbreaks of epidemics necessitating changes in notified requirements for inoculations and quarantine measures;
t) forecasts of solar cosmic radiation, where provided;
u) an operationally significant change in volcanic activity, the location, date and time of volcanic eruptions and/or
horizontal and vertical extent of volcanic ash cloud, including direction of movement, flight levels and routes or
portions of routes which could be affected;
v) release into the atmosphere of radioactive materials or toxic chemicals following a nuclear or chemical incident, the
location, date and time of the incident, the flight levels and routes or portions thereof which could be affected and
the direction of movement;
w) establishment of operations of humanitarian relief missions, such as those undertaken under the auspices of the
United Nations, together with procedures and/or limitations which affect air navigation; and
x) implementation of short-term contingency measures in cases of disruption, or partial disruption, of air traffic
services and related supporting services.
Note.— See Annex 11, 2.31 and Attachment C to that Annex.
5.1.1.2 Recommendation.— The need for origination of a NOTAM should be considered in any other circumstance
which may affect the operation of aircraft.
5.1.1.3 The following information shall not be notified by NOTAM:
a) routine maintenance work on aprons and taxiways which does not affect the safe movement of aircraft;
b) runway marking work, when aircraft operations can safely be conducted on other available runways, or the
equipment used can be removed when necessary;
c) temporary obstructions in the vicinity of aerodromes/heliports that do not affect the safe operation of aircraft;
d) partial failure of aerodrome/heliport lighting facilities where such failure does not directly affect aircraft operations;
e) partial temporary failure of air-ground communications when suitable alternative frequencies are known to be
available and are operative;
f) the lack of apron marshalling services and road traffic control;
Annex 16
Chapter 5 Annex 15 — Aeronautical Information Services
5-3 10/11/16
g) the unserviceability of location, destination or other instruction signs on the aerodrome movement area;
h) parachuting when in uncontrolled airspace under VFR (see 5.1.1.1 l)), when controlled, at promulgated sites or
within danger or prohibited areas;
i) other information of a similar temporary nature.
5.1.1.4 At least seven days’ advance notice shall be given of the activation of established danger, restricted or
prohibited areas and of activities requiring temporary airspace restrictions other than for emergency operations.
5.1.1.4.1 Recommendation.— Notice of any subsequent cancellation of the activities or any reduction of the hours of
activity or the dimensions of the airspace should be given as soon as possible.
Note.— Whenever possible, at least 24 hours’ advance notice is desirable, to permit timely completion of the notification
process and to facilitate airspace utilization planning.
5.1.1.5 NOTAM notifying unserviceability of aids to air navigation, facilities or communication services shall give an
estimate of the period of unserviceability or the time at which restoration of service is expected.
5.1.1.6 When an AIP Amendment or an AIP Supplement is published in accordance with AIRAC procedures, a
NOTAM shall be originated giving a brief description of the contents, the effective date and time, and the reference number
of the amendment or supplement. This NOTAM shall come into force on the same effective date and time as the amendment
or supplement and shall remain valid in the pre-flight information bulletin for a period of fourteen days.
Note.— Guidance material for the origination of NOTAM announcing the existence of AIRAC AIP Amendments or AIP
Supplements (“Trigger NOTAM”) is contained in the Aeronautical Information Services Manual (Doc 8126).
5.2 General specifications
5.2.1 Except as otherwise provided in 5.2.3 and 5.2.4, each NOTAM shall contain the information in the order shown
in the NOTAM Format in Appendix 6.
5.2.2 Text of NOTAM shall be composed of the significations/uniform abbreviated phraseology assigned to the ICAO
NOTAM Code complemented by ICAO abbreviations, indicators, identifiers, designators, call signs, frequencies, figures and
plain language.
Note.— Detailed guidance material covering NOTAM, SNOWTAM, ASHTAM and pre-flight information bulletin (PIB)
production is contained in Doc 8126.
5.2.2.1 When NOTAM are selected for international distribution, English text shall be included for those parts
expressed in plain language.
Note.— The ICAO NOTAM Code together with significations/uniform abbreviated phraseology, and ICAO
Abbreviations are those contained in the Procedures for Air Navigation Services — ICAO Abbreviations and Codes
(PANS-ABC, Doc 8400).
5.2.3 Information concerning snow, slush, ice and standing water on aerodrome/heliport pavements shall, when
reported by means of a SNOWTAM, contain the information in the order shown in the SNOWTAM Format in Appendix 2.
Annex 16
Annex 15 — Aeronautical Information Services Chapter 5
10/11/16 5-4
5.2.4 Information concerning an operationally significant change in volcanic activity, a volcanic eruption and/or
volcanic ash cloud shall, when reported by means of an ASHTAM, contain the information in the order shown in the
ASHTAM Format in Appendix 3.
5.2.5 The NOTAM originator shall allocate to each NOTAM a series identified by a letter and a four-digit number
followed by a stroke and a two-digit number for the year. The four-digit number shall be consecutive and based on the
calendar year.
Note.— Letters A to Z, with the exception of S and T, may be used to identify a NOTAM series.
5.2.6 When errors occur in a NOTAM, a NOTAM with a new number to replace the erroneous NOTAM shall be
issued or the erroneous NOTAM shall be cancelled and a new NOTAM issued.
5.2.7 When a NOTAM is issued which cancels or replaces a previous NOTAM, the series and number of the previous
NOTAM shall be indicated. The series, location indicator and subject of both NOTAM shall be the same. Only one NOTAM
shall be cancelled or replaced by a NOTAM.
5.2.8 Each NOTAM shall deal with only one subject and one condition of the subject.
Note.— Guidance material concerning the combination of a subject and a condition of the subject in accordance with
the NOTAM Selection Criteria is contained in Doc 8126.
5.2.9 Each NOTAM shall be as brief as possible and so compiled that its meaning is clear without the need to refer to
another document.
5.2.10 Each NOTAM shall be transmitted as a single telecommunication message.
5.2.11 A NOTAM containing permanent or temporary information of long duration shall carry appropriate AIP or AIP
Supplement references.
5.2.12 Location indicators included in the text of a NOTAM shall be those contained in Location Indicators
(Doc 7910).
5.2.12.1 In no case shall a curtailed form of such indicators be used.
5.2.12.2 Where no ICAO location indicator is assigned to the location, its place name spelt in accordance with 1.3.2
shall be entered in plain language.
5.2.13 A checklist of valid NOTAM shall be issued as a NOTAM over the aeronautical fixed service (AFS) at intervals
of not more than one month using the NOTAM Format specified in Appendix 6. One NOTAM shall be issued for each series.
Note.— Omitting a NOTAM from the checklist does not serve to cancel a NOTAM.
5.2.13.1 A checklist of NOTAM shall refer to the latest AIP Amendments, AIP Supplements and at least the
internationally distributed AIC.
5.2.13.2 A checklist of NOTAM shall have the same distribution as the actual message series to which they refer and
shall be clearly identified as a checklist.
5.2.13.3 A monthly plain-language list of valid NOTAM, including indications of the latest AIP Amendments, AIC
issued and a checklist of AIP Supplements, shall be prepared with a minimum of delay and forwarded by the most
expeditious means to recipients of the Integrated Aeronautical Information Package.
Annex 16
Chapter 5 Annex 15 — Aeronautical Information Services
5-5 10/11/16
5.3 Distribution
5.3.1 NOTAM shall be distributed on the basis of a request.
5.3.2 NOTAM shall be prepared in conformity with the relevant provisions of the ICAO communication procedures.
5.3.2.1 The AFS shall, whenever practicable, be employed for NOTAM distribution.
5.3.2.2 When a NOTAM exchanged as specified in 5.3.4 is sent by means other than the AFS, a six-digit date-time
group indicating the date and time of NOTAM origination, and the identification of the originator shall be used, preceding
the text.
5.3.3 The originating State shall select the NOTAM that are to be given international distribution.
5.3.3.1 Recommendation.— Selective distribution lists should be used when practicable.
Note.— These lists are intended to obviate superfluous distribution of information. Guidance material relating to this is
contained in Doc 8126.
5.3.4 International exchange of NOTAM shall take place only as mutually agreed between the international NOTAM
offices concerned. The international exchange of ASHTAM (see 5.2.4), and NOTAM where States continue to use NOTAM
for distribution of information on volcanic activity, shall include volcanic ash advisory centres and the centres designated by
regional air navigation agreement for the operation of AFS satellite distribution systems (satellite distribution system for
information relating to air navigation (SADIS) and international satellite communications system (ISCS)), and shall take
account of the requirements of long-range operations.
Note.— Arrangements may be made for direct exchange of SNOWTAM (see Appendix 2) between aerodromes/heliports.
5.3.4.1 These exchanges of NOTAM between international NOTAM offices shall, as far as practicable, be limited to
the requirements of the receiving States concerned by means of separate series providing for at least international and
domestic flights.
5.3.4.2 A predetermined distribution system for NOTAM transmitted on the AFS in accordance with Appendix 5 shall
be used whenever possible, subject to the requirements of 5.3.4.
_____________________
Annex 17
Convention on International Civil Aviation, Annex 11: Air Traffic Services (14th ed., July 2016)
Annex 17
. JICAO International Standards
and Recommended Practices
Annex 11 tc the Ccnvent1on 01) lr1IC'rriat1or1JI Civil /..:..v1c=Jtiori
Air Traffic Services
Air Traffic Control Service
Flight Information Service
Alerting Service
Fourteenth Edition, July 2016
Thie, ed1t1on <,uper,;edes, on ·:; November 20, 6, all r ev·o..is erJ t1ons of A:--nex 11
For informat·on r egarding the appl1cabil ty of the Standards a·1d RecommendPd
p, dct1cec,, s, rord
INTERNATIONAL CIVIL AVIATION ORGANIZATION
Annex 17
Annex 11 -Air Traffic Services Chapter1
2.29 Common reference systems
2.29.1 Horizontal reference system
World Geodetic System - 1984 (WGS-84) shall be used as the horizontal (geodetic) reference system for air navigation.
Reported aeronautical geographical coordinates (indicating latitude and longitude) shall be expressed in terms of the
WGS-84 geodetic reference datum.
Note.- Comprehensive guidance material concerning WGS-84 is contained in the World Geodetic System - 1984
(WGS-84) Manual (Doc 9674).
2.29.2 Vertical reference system
Mean sea level (MSL) datum, which gives the relationship of gravity-related height (elevation) to a surface known as the
geoid, shall be used as the vertical reference system for air navigation.
Note.- The geoid globally most closely approximates MSL. It is defined as the equipotential surface in the gravity field
of the Earth which coincides with the undisturbed MSL extended continuously through the continents.
2.29.3 Temporal reference system
2.29.3.1 The Gregorian calendar and Coordinated Universal Time (UTC) shall be used as the temporal reference
system for air navigation.
2.29.3.2 When a different temporal reference system is used, this shall be indicated in GEN 2.1.2 of the Aeronautical
Information Publication (AIP).
2.30 Language proficiency
2.30.1 An air traffic services provider shall ensure that air traffic controllers speak and understand the language(s)
used for radiotelephony communications as specified in Annex 1.
2.30.2 Except when communications between air traffic control units are conducted in a mutually agreed language, the
English language shall be used for such communications.
2.31 Contingency arrangements
Air traffic services authorities shall develop and promulgate contingency plans for implementation in the event of disruption,
or potential disruption, of air traffic services and related supporting services in the airspace for which they are responsible for
the provision of such services . Such contingency plans shall be developed with the assistance of ICAO as necessary, in close
coordination with the air traffic services authorities responsible for the provision of services in adjacent portions of airspace
and with airspace users concerned.
Note 1.- Guidance material relating to the development, promulgation and implementation of contingency plans is
contained in Attachment C.
10/11/16 2-18
Annex 17
ATTACHMENT C. MATERIAL RELATING TO
CONTINGENCY PLANNING
(Chapter 2, 2.3 I refers)
1. Introduction
1. 1 Guidelines for contingency measures for application in the event of disruptions of air traffic services and related
supporting services were first approved by the Council on 27 June 1984 in response to Assembly Resolution A23-12,
following a study by the Air Navigation Commission and consultation with States and international organizations concerned,
as required by the Resolution. The guidelines were subsequently amended and amplified in the light of experience gained
with the application of contingency measures in various parts of the world and in differing circumstances.
1.2 The purpose of the guidelines is to assist in providing for the safe and orderly flow of international air traffic in the
event of disruptions of air traffic services and related supporting services and in preserving the availability of major world air
routes within the air transportation system in such circumstances.
1.3 The guidelines have been developed in recognition of the fact that circumstances before and during events causing
disruptions of services to international civil aviation vary widely and that contingency measures, including access to
designated aerodromes for humanitarian reasons, in response to specific events and circumstances must be adapted to these
circumstances. They set forth the allocation of responsibility among States and ICAO for the conduct of contingency
planning and the measures to be taken into consideration in developing, applying and terminating the application of such
plans.
1.4 The guidelines are based on experience which has shown, inter alia, that the effects of disruption of services in
particular portions of airspace are likely to affect significantly the services in adjacent airspace, thereby creating a
requirement for international coordination, with the assistance of ICAO as appropriate. Hence, the role of ICAO in the field
of contingency planning and coordination of such plans is described in the guidelines. They also reflect the experience that
ICAO's role in contingency planning must be global and not limited to airspace over the high seas and areas of undetermined
sovereignty, if the availability of major world air routes within the air transportation system is to be preserved. Finally, they
further reflect the fact that international organizations concerned, such as the International Air Transport Association (IATA)
and the International Federation of Airline Pilots' Associations (IFALPA), are valuable advisers on the practicability of
overall plans and elements of such plans.
2. Status of contingency plans
Contingency plans are intended to provide alternative facilities and services to those provided for in the regional air
navigation plan when those facilities and services are temporarily not available. Contingency arrangements are therefore
temporary in nature, remain in effect only until the services and facilities of the regional air navigation plan are reactivated
and, accordingly, do not constitute amendments to the regional plan requiring processing in accordance with the "Procedure
for the Amendment of Approved Regional Plans". Instead, in cases where the contingency plan would temporarily deviate
from the approved regional air navigation plan, such deviations are approved, as necessary, by the President of the ICAO
Council on behalf of the Council.
ANNEX 11 ATT C-1 10/11/16
Annex 17
Annex 11 -Air Traffic Services
3. Responsibility for developing, promulgating
and implementing contingency plans
Attachment C
3. 1 The State(s) responsible for providing air traffic services and related supporting services in particular portions of
airspace is (are) also responsible, in the event of disruption or potential disruption of these services, for instituting measures
to ensure the safety of international civil aviation operations and, where possible, for making provisions for alternative
facilities and services. To that end the State(s) should develop, promulgate and implement appropriate contingency plans.
Such plans should be developed in consultation with other States and airspace users concerned and with ICAO, as
appropriate, whenever the effects of the service disruption(s) are likely to affect the services in adjacent airspace.
3.2 The responsibility for appropriate contingency action in respect of airspace over the high seas continues to rest
with the State(s) normally responsible for providing the services until, and unless, that responsibility is temporarily
reassigned by ICAO to (an)other State(s).
3.3 Similarly, the responsibility for appropriate contingency action in respect of airspace where the responsibility for
providing the services has been delegated by another State continues to rest with the State providing the services until, and
unless, the delegating State terminates temporarily the delegation . Upon termination, the delegating State assumes
responsibility for appropriate contingency action.
3.4 ICAO will initiate and coordinate appropriate contingency action in the event of disruption of air traffic services
and related supporting services affecting international civil aviation operations provided by a State wherein, for some reason,
the authorities cannot adequately discharge the responsibility referred to in 3. l. In such circumstances, ICAO will work in
coordination with States responsible for airspace adjacent to that affected by the disruption and in close consultation with
international organizations concerned. ICAO will also initiate and coordinate appropriate contingency action at the request of
States.
4. Preparatory action
4.1 Time is essential in contingency planning if hazards to air navigation are to be reasonably prevented. Timely
introduction of contingency arrangements requires decisive initiative and action, which again presupposes that contingency
plans have, as far as practicable, been completed and agreed among the parties concerned before the occurrence of the event
requiring contingency action, including the manner and timing of promulgating such arrangements.
4.2 For the reasons given in 4. 1, States should take preparatory action, as appropriate, for facilitating timely
introduction of contingency arrangements. Such preparatory action should include:
a) preparation of general contingency plans for introduction in respect of generally foreseeable events such as
industrial action or labour unrest affecting the provision of air traffic services and/or supporting services. In
recognition of the fact that the world aviation community is not party to such disputes, States providing services in
airspace over the high seas or of undetermined sovereignty should take appropriate action to ensure that adequate air
traffic services will continue to be provided to international civil aviation operations in non-sovereign airspace. For
the same reason, States providing air traffic services in their own airspace or, by delegation, in the airspace of
(an)other State(s) should take appropriate action to ensure that adequate air traffic services will continue to be
provided to international civil aviation operations concerned, which do not involve landing or take-off in the
State(s) affected by industrial action;
b) assessment of risk to civil air traffic due to military conflict or acts of unlawful interference with civil aviation as
well as a review of the likelihood and possible consequences of natural disasters or public health emergencies.
Preparatory action should include initial development of special contingency plans in respect of natural disasters,
public health emergencies, military conflicts or acts of unlawful interference with civil aviation that are likely to
affect the availability of airspace for civil aircraft operations and/or the provision of air traffic services and
10/11/16 ATTC-2
Annex 17
Attachment C Annex 11 -Air Traffic Services
supporting services. It should be recognized that avoidance of particular portions of airspace on short notice will
require special efforts by States responsible for adjacent portions of airspace and by international aircraft operators
with regard to planning of alternative routings and services, and the air traffic services authorities of States should
therefore, as far as practicable, endeavour to anticipate the need for such alternative actions;
c) monitoring of any developments that might lead to events requiring contingency arrangements to be developed and
applied . States should consider designating persons/administrative units to undertake such monitoring and, when
necessary, to initiate effective follow-up action; and
d) designation/establishment of a central agency which, in the event of disruption of air traffic services and
introduction of contingency arrangements, would be able to provide, 24 hours a day, up-to-date information on the
situation and associated contingency measures until the system has returned to normal. A coordinating team should
be designated within, or in association with, such a central agency for the purpose of coordinating activities during
the disruption.
4.3 ICAO will be available for monitoring developments that might lead to events requiring contingency arrangements
to be developed and applied and will, as necessary, assist in the development and application of such arrangements. During
the emergence of a potential crisis, a coordinating team will be established in the Regional Office(s) concerned and at ICAO
Headquarters in Montreal, and arrangements will be made for competent staff to be available or reachable 24 hours a day.
The tasks of these teams will be to monitor continuously information from all relevant sources, to arrange for the constant
supply of relevant information received by the State aeronautical information service at the location of the Regional Office
and Headquarters, to liaise with international organizations concerned and their regional organizations, as appropriate, and to
exchange up-to-date information with States directly concerned and States which are potential participants in contingency
arrangements. Upon analysis of all available data, authority for initiating the action considered necessary in the
circumstances will be obtained from the State(s) concerned .
5. Coordination
5 .1 A contingency plan should be acceptable to providers and users of contingency services alike, i.e. in terms of the
ability of the providers to discharge the functions assigned to them and in terms of safety of operations and traffic handling
capacity provided by the plan in the circumstances.
5.2 Accordingly, States which anticipate or experience disruption of air traffic services and/or related supporting
services should advise, as early as practicable, the ICAO Regional Office accredited to them, and other States whose services
might be affected. Such advice should include information on associated contingency measures or a request for assistance in
formulating contingency plans.
5.3 Detailed coordination requirements should be determined by States and/or ICAO, as appropriate, keeping the
above in mind . In the case of contingency arrangements not appreciably affecting airspace users or service provided outside
the airspace of the (single) State involved, coordination requirements are naturally few or non-existent. Such cases are
believed to be few.
5.4 In the case of multi-State ventures, detailed coordination leading to formal agreement of the emerging contingency
plan should be undertaken with each State which is to participate. Such detailed coordination should also be undertaken with
those States whose services will be significantly affected, for example by re-routing of traffic, and with international
organizations concerned who provide invaluable operational insight and experience.
5.5 Whenever necessary to ensure orderly transition to contingency arrangements, the coordination referred to in
this section should include agreement on a detailed, common NOT AM text to be promulgated at a commonly agreed
effective date.
ATIC-3 10/11/16
Annex 17
Annex 11 -Air Traffic Services
6. Development, promulgation and application
of contingency plans
Attachment C
6.1 Development of a sound contingency plan is dependent upon circumstances, including the availability, or not, of
the airspace affected by the disruptive circumstances for use by international civil aviation operations. Sovereign airspace
can be used only on the initiative of, or with the agreement or consent of, the authorities of the State concerned regarding
such use. Otherwise, the contingency arrangements must involve bypassing the airspace and should be developed by adjacent
States or by ICAO in cooperation with such adjacent States. In the case of airspace over the high seas or of undetermined
sovereignty, development of the contingency plan might involve, depending upon circumstances, including the degree of
erosion of the alternative services offered, temporary reassignment by ICAO of the responsibility for providing air traffic
services in the airspace concerned.
6.2 Development of a contingency plan presupposes as much information as possible on current and alternative routes,
navigational capability of aircraft and availability or partial availability of navigational guidance from ground-based aids,
surveillance and communications capability of adjacent air traffic services units, volume and types of aircraft to be
accommodated and the actual status of the air traffic services, communications, meteorological and aeronautical information
services. Following are the main elements to be considered for contingency planning depending upon circumstances:
a) re-routing of traffic to avoid the whole or part of the airspace concerned, normally involving establishment of
additional routes or route segments with associated conditions for their use;
b) establishment of a simplified route network through the airspace concerned, if it is available, together with a flight
level allocation scheme to ensure lateral and vertical separation, and a procedure for adjacent area control centres to
establish longitudinal separation at the entry point and to maintain such separation through the airspace;
c) reassignment of responsibility for providing air traffic services in airspace over the high seas or in delegated
airspace;
d) provision and operation of adequate air-ground communications, AFTN and ATS direct speech links, including
reassignment, to adjacent States, of the responsibility for providing meteorological information and information on
status of navigation aids;
e) special arrangements for collecting and disseminating in-flight and post-flight reports from aircraft;
f) a requirement for aircraft to maintain continuous listening watch on a specified pilot-pilot VHF frequency in
specified areas where air-ground communications are uncertain or non-existent and to broadcast on that frequency,
preferably in English, position information and estimates, including start and completion of climb and descent;
g) a requirement for all aircraft in specified areas to display navigation and anti-collision lights at all times;
h) a requirement and procedures for aircraft to maintain an increased longitudinal separation that may be established
between aircraft at the same cruising level;
i) a requirement for climbing and descending well to the right of the centre line of specifically identified routes;
j) establishment of arrangements for controlled access to the contingency area to prevent overloading of the
contingency system; and
k) a requirement for all operations in the contingency area to be conducted in accordance with IFR, including
allocation of IFR flight levels, from the relevant Table of Cruising Levels in Appendix 3 of Annex 2, to A TS routes
in the area.
10/11/16 ATTC-4
Annex 17
Attachment C Annex 11 -Air Traffic Services
6.3 Notification, by NOTAM, of anticipated or actual disruption of air traffic services and/or related supporting
services should be dispatched to users of air navigation services as early as practicable. The NOT AM should include the
associated contingency arrangements. In the case of foreseeable disruption, the advance notice should in any case not be less
than 48 hours.
6.4 Notification by NOTAM of discontinuance of contingency measures and reactivation of the services set forth in
the regional air navigation plan should be dispatched as early as practicable to ensure an orderly transfer from contingency
conditions to normal conditions.
- ENDATIC-
5 10/11/16
Annex 18
ICAO Council, ICAO Annual Report: Settlement of Differences, available at https://www.icao.
int/annual-report-2017/Pages/supporting-implementation-strategies-legal-and-external-relationsservices-
settlement-of-differences.aspx (last accessed: 31 Jan. 2019)
Annex 18
ICAO / Annual Report 2017 / Supporting Implementation Strategies- Legal and External Relations Services - Settlement of Differences
Settlement of Differences
Brazil and the United States (2016)
On 2 December 2016, Brazil (the Applicant) presented to ICAO an Application and Memorial pursuant to Article 84 of the Convention on
International Civil Aviation (Chicago Convention), seeking a decision of the Council on a disagreement with the United States (the
Respondent) relating "to the interpretation and application of the Convention and its Annexes following a collision, on September 29th
2006, of the air carrier Boeing 737-8EH operating a regular flight GLO 1907, and air jet Legacy EMB-135BJ operating a flight by ExcelAire
Services Inc."
On 27 March 2017, the Respondent submitted a Statement of preliminary objection to the Application. On 19 May 2017, the Applicant
submitted Comments on the Statement of preliminary objection. After hearing the Parties, the Council, at the ninth Meeting of its 211th
Session, decided with 4 votes in favour, 19 against and 11 abstentions, not to accept the Respondent's preliminary objection. The Council
further decided to invite the Parties to continue their direct negotiations and also requested the President of the Council to be available to
provide his good offices as Conciliator during such negotiations. The Respondent subsequently filed its Counter-memorial on 31 August
2017.
At the eighth Meeting of its 212th Session, the Council considered a progress report on negotiations. The Council endorsed an agreement
reached between the two parties to suspend the filing of a Reply by the Applicant to the Respondent's Counter-memorial in order to allow
for further consultations among them.
Request submitted under Article 54 n) of the Chicago Convention
At the tenth Meeting of its 211th Session, the Council considered and approved a request, submitted by Qatar pursuant to Article 54 n) of
the Chicago Convention, to schedule an extraordinary session for the consideration of the actions of Bahrain, Egypt, Saudi Arabia and the
United Arab Emirates to close their airspace to aircraft registered in Qatar. On 31 July 2017, following its consideration of the item, the
Council rendered a decision urging all ICAO Member States to continue to collaborate, in particular, to promote the safety, security,
efficiency and sustainability of international civil aviation.
Qatar and Bahrain, Egypt, Saudi Arabia and the United Arab Emirates (2017) - Application (A)
On 30 October 2017, Qatar presented Application (A) and its corresponding Memorial under the terms of Article 84 of the Chicago
Convention. Bahrain, Egypt, Saudi Arabia and the United Arab Emirates were named as Respondents. The said Application (A) and its
corresponding Memorial relate to a disagreement on the "interpretation and application of the Chicago Convention and its Annexes"
following the referenced announcement by the Governments of the Respondents on 5 June 2017 "with immediate effect and without any
previous negotiation or warning, that Qatar-registered aircraft are not permitted to fly to or from the airports within their territories and
would be barred not only from their respective national air spaces, but also from their Flight Information Regions (FIRs) extending beyond
their national airspace even over the high seas". On 15 November 2017, the Council fixed a time-limit of 12 weeks for the filing of Countermemorials
by the Respondents with respect to Application (A).
Qatar and Bahrain, Egypt and the United Arab Emirates (2017) - Application (B)
On 30 October 2017, Qatar also presented Application (B) and its corresponding Memorial under the terms of Article II, Section 2 of the
International Air Services Transit Agreement (Transit Agreement) and Chapter XVIII of the Chicago Convention. Bahrain, Egypt and the
United Arab Emirates were named as Respondents. Application (B) relates to a disagreement on the "interpretation and application" of the
Transit Agreement, following the referenced announcement by the Governments of the Respondents on 5 June 2017 "with immediate
effect and without any previous negotiation or warning, that Qatar-registered aircraft are not permitted to fly to or from the airports within
their territories and are barred from their respective national air spaces". On 15 November 2017, the Council fixed a time-lim it of 12 weeks
for the filing of Counter-memorials by the Respondents with respect to Application (B).
Annex 19
Hernán Longo, “Sharing information in order to fight against terrorism”, ICAO, Hong Kong
ICAO TRIP Regional Seminar (2017), available at https://www.icao.int/Meetings/TRIPHongKong-
2017/Documents/1.HERNAN%20LONGO.pdf
Hernán Longo
Terrorism Prevention Coordinator
United Nations Office on Drugs and Crime
Regional Office for Southeast Asia and the Pacific
Sharing information in order to
fight against terrorism
Hong Kong ICAO TRIP Regional Seminar
Annex 19
United Nations Office on Drugs and Crime
(UNODC)
Specialized agency of the UN Secretariat
Mandated to assist UN Member States on the implementation of the conventions against
illicit drugs, organized crime, corruption and terrorism conventions
RESEARCH
LEGAL REFORM
CAPACITY BUILDING
INTERNATIONAL COOPERATION
Annex 19
Foreign Terrorist Fighters (FTF) in SEA
Annex 19
UNSCR 2178
Foreign Terrorist Fighters (FTFs)
Individuals who travel to a State other than their States
of residence or nationality for the purpose of the
perpetration, planning, or preparation of, or
participation in, terrorist acts or the providing or
receiving of terrorist training
Annex 19
Profiles
All Backgrounds
Male and Female
Criminal Trend
Personal “Vacuum”
Annex 19
Estimated Number of FTFs Globally
27,000 – 31,000 from at least 86 countries have travelled
to Syria/Iraq
75% of FTFs are from 12 countries:
Tunisia
Saudi Arabia
Russia
Jordan
Turkey
France
Morocco
Lebanon
Germany
United Kingdom
Egypt
Indonesia
Annex 19
Estimated Number of FTFs From Southeast
Asia
980 91
Annex 19
How do they travel?
Annex 19
“Violent Jihadist Highway”
• Majority of FTFs travel across the border between Turkey and
Syria
• Turkey has direct flights to/from at least 107 countries
• FTFs Utilise “broken travel” to hide their final destination by
stopping at multiple points on route to Turkey.
• However, many will use various modes of transport
• Train, boat, cars etc.
Annex 19
Muhammad Wanndy Bin Mohamed Jedi
Annex 19
Left Malaysia in January 2015
I took the train to Butterworth to Bangkok. Stayed in Bangkok
for a week. Then I took a flight from Bangkok to Moscow to
Turkey… The transit at Moscow lasted 4 hours… At the Thai
airport, I was followed and asked questions until I boarded
the plane
Annex 19
Some reported FTF movements in SEA…
• July 2016 : 4 Bangladeshis jailed in Singapore for terrorist financing
• January 2017 : 1 Indonesian killed by airstrike in Philippines
• February 2017: 1 Filipino charged in Malaysia for recruitment
• March 2017: 3 Russians and 1 Tajikistani Deported from Malaysia
• April 2017 : Kuwaiti and Syrian arrested in Philippines
• April 2017: 3 Indonesians and 1 Malaysian JI Members killed in Philippines
• Intel reports of at least 28 Indonesians, 26 Pakistanis, 21 Malaysians, 3 Bangladeshis, 1
Singaporean among FTF in Southern Philippines (Marawi)
Annex 19
Returnees
• 62 FTFs have returned to Indonesia, 8 to Malaysia
• Conflict experience
• global networks
• Deeply embedded ideology
• Southeast Asia Wilayat
• Many FTFs are required to burn their passports upon joining ranks
Annex 19
“Wilayat” in Southern Philippines?
• Several terrorist groups pledged allegiance to Daesh
• June 2016 – Propaganda video “If you can’t travel to Syria/Iraq, join
Mujahideen in Philippines”
• Reports of 4 Indonesians Travelled to Philippines
from Syria (deported back to Indonesia)
• December 2016 - Isnilon Hapilon moved to
Central Mindanao to find a suitable area to
establish a “Wilayat”
• May 2017 – Martial Law declared in Marawi
Annex 19
UN framework against terrorism and FTFs
Annex 19
Universal legal framework against terrorism
• UN Global Counter-Terrorism Strategy (UNGA)
• Conventions and protocols
• UN Security Council Resolutions (UNSCR)
Annex 19
Global Counter-Terrorism Strategy
• Effort to move beyond traditional law
enforcement to a holistic approach
• Provide strategy framework and
practical guidance
• First time UN members agreed on a
common single strategy on CT
• Adopted unanimously by UNGA in
September 2006
Annex 19
19 international conventions and protocols against
terrorism
Common elements:
Define terrorist offences
Set up rules for jurisdiction
Promote international cooperation
Annex 19
Universal CT Legal Instruments concerning Civil Aviation
1. 1963 Convention on Offences and Certain Other Acts Committed On Board Aircraft
2. 1970 Convention for the Suppression of Unlawful Seizure of Aircraft
3. 1971 Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation
4. 1988 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International
Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation
5. 2010 Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation
6. 2010 Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of
Aircraft
7. 2014 Protocol to Amend the Convention on Offences and Certain Acts Committed on Board
Aircraft
Annex 19
Civil Aviation Treaties: Information Sharing
Beijing Convention (2010)
Article 17
1. States Parties shall afford one anther the greatest measure of assistance in connection with criminal proceedings
brought in respect of the offences set forth in Article 1. The law of the State requested shall apply in all cases.
Article 18
Any State Party having reason to believe that one of the offences set forth in Article 1 will be committed shall, in accordance with
its national law, furnish any relevant information in its possession to those States Parties which it believes would be the
States set forth in paragraphs 1 and 2 of Article 8.
Annex 19
Civil Aviation Treaties: Information Sharing
Montréal Protocol 2014
Article 3 bis
If a Contracting State, exercising its jurisdiction under Article 2, has been notified or has
otherwise learned that one or more other Contracting States are conducting an investigation,
prosecution or judicial proceeding in respect of the same offences or acts, that Contracting State
shall, as appropriate, consult those other Contracting States with a view to coordinating
their actions. […]
Annex 19
Civil Aviation Treaties: Information Sharing
Montreal Protocol 2014
Article 13
When a State, pursuant to this Article, has taken a person into custody, it shall immediately notify the
State of registration of the aircraft and the State of nationality of the detained person and, if it
considers it advisable, any other interested State of the fact that such person is in custody and of the
circumstances which warrant his detention. The State which makes the preliminary enquiry contemplated in
paragraph 4 of this Article shall promptly report its findings to the said States and shall indicate whether it
intends to exercise jurisdiction.
Annex 19
Key UN Security Council Resolutions on CT & FTFs
Resolution 1373 (2001)
Calls upon all States to find ways of intensifying
and accelerating the exchange of operational
information, specially regarding the movements
of terrorist persons or networks (o.p. 3)
Annex 19
UNSCR 1267 (1999)
Decides to establish, in accordance with rule 28 of its
provisional rules of procedure, a Committee of the
Security Council consisting of all the members of the
Council to undertake the following tasks and to report on
its work to the Council with its observations and
recommendations
Annex 19
SECURITY COUNCIL COMMITTEE PURSUANT TO
RESOLUTIONS 1267, 1989, AND 2253
All states are required to prevent the entry into or transit
through their territories by designated individuals
• 1(b) of resolution 2161 and renewed in 2 (b) of resolution 2253
Sanctions List
• Al-Qaeda, ISIL, Abu Sayyaf Group, Jemaah Islamiyah
Annex 19
UNSCR 2178 (2014)
Calls for Member States to:
exchange of operational information regarding actions or movements of terrorists or
terrorist networks
cooperate in efforts to address the threat posed by foreign terrorist fighters
require that airlines operating in their territories provide advance passenger information
to the appropriate national authorities Member States shall prevent the entry into or transit
through their territories
Annex 19
UNSCR 2309 (2016)
• Adopted unanimously on September 2016
• First stand-alone UNSCR focusing on civil aviation
• Aims at enhancing the safety of global air services
Annex 19
UNSCR 2309 (2016)
Calls for Member States to:
Work within ICAO to ensure that international security standards were reviewed,
updated, adapted and implemented.
Strengthen cooperation and collaboration and sharing experiences in regards to
developing security check technologies
Further engage in dialogue on aviation security and cooperate by sharing
information
Require that airlines operating in their territories provide advance passenger
information to the appropriate national authorities
Annex 19
UNSCR 2322 (2016)
Reiterating the obligation of Member States to prevent the movement of
terrorists and terrorist groups, in accordance with applicable international
law, by, inter alia, effective border controls, and, in this context, to exchange
information expeditiously, improve cooperation among competent
authorities to prevent the movement of terrorists and terrorist groups to
and from their territories, the supply of weapons for terrorists, and financing that
would support terrorists
Annex 19
UNSCR 2322 (2016)
Calls upon States to:
share, where appropriate, information about foreign terrorist fighters and other individual
terrorists and terrorist organizations, including biometric and biographic information,
as well as information that demonstrates the nature of an individual’s association
with terrorism
Consider, where appropriate, downgrading for official use intelligence threat data on
foreign terrorist fighters and individual terrorists, to appropriately provide such
information to front-line screeners, such as immigration, customs and border
security and to appropriately share such information with other concerned States and
relevant international organisations
Annex 19
ASEAN Implementation Status
Annex 19
API Implementation Status
As of February 2017
iAPI System in Force
API System in Force
API not Legally
Authorized
Annex 19
Legislation Against the Travel of FTFs
Specific
Legislation
Enacted
No Specific
Legislation
Enacted
Annex 19
Information Sharing
Not systematic
Ad Hoc
Whatsapp and informal channels
Lack of Integrated databases
Including with Interpol’s databases
THE GAP
Annex 19
Concluding Thoughts
Annex 19
Way Forward
• Political engagement
• Institutional and Legal Reform
• Capacity Building
• Regional platforms
Annex 19
Thank you for your attention
Hernán A. Longo
Terrorism Prevention Coordinator
United Nations Office on Drugs and Crime
Regional Office for Southeast Asia and the Pacific
http://www.unodc.org/southeastasiaandpacific/
[email protected]
@hlongoUN
Annex 19
Volume II (Annexes 1-19)