ORAL ARGUMENTS
MINUTES OFTHE PUBLICSI'ITINGS
heldor thePeacePalace, TheHague,
fro4 ro 26 Jurre1973 FlRST PUBLIC SITTING (4 VI 73, 3 p.m.)
Present: PresideLACHS; Vice-PresideAMMOUN ;~~dgesORSTERG , ROS,
BENGZONP,ETRÉNO , NYEAMA I, NACIO-PINT O, CASTROM , OROZOVJ,IMÉNEZ
DE ARÉCHAGAS,IR Humphrey WALDOCK,NAGEKORA SINGE,RUDA; Ji~dge
ad hoc Sir Muhammad ZAFRULLA KHAN; RegisrrarAOUARONE.
Alsopreseitt:
Far tlreCovernnlenrof Pokisran:
H.E. Mr. J.G. Kharas, Ambassadorof Pakistan to IheNetherlasAgent;
Mr. S. T. Joshua, Secretary of Embaas Deputy-Agent;
Mr. Yahya Bakhtiar, Attorney-General of Pakisas Clrief Counsel;
Mr. Zahid Said, Deputy Legal Adviser, Ministry of Foreign Affairs, Govern-
ment of Pakistanas Cowtsel. PAKISTANI PRISONERS OF WAR
OPENING OF THE ORAL PROCEEDLNGS
The PRESIDENT: The Court meets today to consider the request for the
indication of interim measures of protection, under Article 41 of the Statute
of the Court and Article 66of the 1972Rules of Court, filedby the Government
of Pakistan on II May 1973, in the case concerning the Trial of Pakistani
Prisoners of War, brought by Pakistan against India.
The proceedings in this case were begun by an Application by the Govern-
ment of Pakistan, filed in the Registry of the Court on 11 May 1973'. The
Application founds thejurisdiction of the Court on Article IX of the Convention
on the Prevention and Punishment of the Crime of Genocide, adopted by the
United Nations General Assembly on 9 December 1948, generally known as
"t~e~G~nocide Convention". and on Article 36. paraaraph 1, of the Statute of
the Coun. ~he ~~~licani ask5 the Court to adjhg 3nd declare that Prikisian
hîs an exclusi\,e righi io e~ercisejurirdiciion o\,er the Pakisiani naiiondls, now
in Indiîn custodv...nd accused of commiiiina acts of genocide in I'akistani
rerritsry.by vinue of the Genocide ~on\,ention; that the illegations agîinst the
aforesaid prisoners of war arc related ta acts of genocide; that there cm be no
ground in international lajvjustifying the trdnsfer of custody of the prironers of
war Io tlanglü Desh for tri31 in face of I'akistan'i exclusi\e right to ehercibe
iuriidi:iion oi,er 11snationals accu,eJ of commiiting ulrences in Pirkiit3ni
territory, and that India would act illegally in transferring such persons to
Bangla Desh for trial, and that even if India could legally transfer Pakistani
prisoners of war to Bangla Desh for trial, it would be divested of that freedom
since in the atmosphere which, according to the Government of Pakistan,
prevails in Bangla Desh, a "competent tribunal" within the meaning of Article
VI of the Genocide Convention cannot be created in practice nor can it be
expected to perform in accordance with accepted international standards of
justice.
On II May 1973,the day on which the Application was filed, Pakistan fileda
request, under Article 41 of the Statute and Article 66 of the 1972 Rules of
Court, for the indication of interim measures of protection2. 1 shall ask the
Registrar to read from that request the details of the measures which the
Government of Pakistan asks the Court to indicate.
The REGISTRAR:
"(1) That the process of repatriation of prisoners of war and civilian
internees in accordance with international law, which has already
begun, should not be interrupted by virtue of charges of genocide
against a certain number of individuals retained in India.
(2) That such individuals, as are in the custody of India and are charged
with alleged acts of genocide, should not be transferred to 'Bangla
Desh' for trial till such time as Pakistan's claim to exclusive juris-
diction and the lack of jurisdiction of any other govemment or
authority in this respect has been adjudged by the Court."
' See pp. 3-7,supro,and p. 111,infra
a See pp. 17-18,supra,and p.111, infra OPENING OF THE ORAL PROCEEDINGS ON INnRlM MEASURES 23
The PRESIDENT: The Government of India was informed forthwith bv
telegrarn of the filingof the Application and of the request for interim measurei
of protection. and of the preciw rneasures requested. and a copy of the Applica-
tion and of the request were sent toit hy air mail the same dayi.
By communications of 22 May, confirmed on 25 May, the Parties were in-
formed that the President proposed to convene the Court for a public Sitting
on 29 May 1973 at 10 am. to hear the observations of the Parties on the
request by Pakistan for the indication of interim measures of protection2.
On 24 May 1973, a letter dated 23 May from the Ambassador of India at
The Hague was received in the Registry of the Court3. In this letter it was
observed that the A~dication foundsthe iurisdiction of the Court on Article IX
~ ~ ~ -
of the Cienocide con-vention and on ~rt/clc 36, pariigraph 1. of the Statute of
the Court. and attention uas driiurn 10 the res~r\~ationattached hy India to its
ratification of the Convention. to the effect that for the suhmfssion of anv~ ~~ ~~-~
dispute in terms of Article IX !O the jurisdiction of the court, the consent if
al1the parties to the dispute would be required in each case. The Government
of India, the letter continued, presumed that the Application and request were
communicated to them for their consideration whether consent should be given
in terms of Article IX, but regretted that they could not give consent for
Pakistan ta raise the alleged subject-matter of the claim before the Court. It was
therefore stated that there was no legal basis whatsoever for the jurisdiction of
the Court, and that Pakistan's Application and request were without legal
effect. The Court will deal with this auestion in accordance with the relevant
~ ~ ~ ~ ~ ~ ~.~.
rules of the Statute and its KU~CiS n dbe course
The texi of this lettçr from ihe lndian Ambassador u,ascommun,cirted io the
Agent of I'akistiin. urhoaddreited iiletter4 to the Court in u,hich ~~ itiviis~laimrd
that the consent of lndia 10 the jurisdiction of the Court was not necessary,
that the reservation attached to the Indian ratification of the Genocide Con-
vention was inadmissible and without le-l effect. and that Pakistan also reli~d ~
on al1 othcr provision* establishing the Couri's jurisdiction, and in particular
the Indian declararion or acceptanîc of the compulsory jurisdiciion of the
Court under Ariicle 36. piirsgriiph 2, of the Staiute. and Article 17 of the
Ccnerdl Act for the PacificSettlement of Intern~tional Disputes of 1928,read
with Article 36, pariigraph 1,and Ariisle 37 of the Statute.
A further letter was received on 28 Mav from the Indian Ambassador.
enclosing 3 document cntiild '.Siatenient kf the Go\,ernment of India in
support of ils letter dated 23 .May 1973addressed ti) the Registriir of the Inter-
national Ci~urtof Justise"5. In this document the arguments of lndia in sumort
of itscontention that the Court iswithout jurisdictionwere set out and devei&ed
at greater length.
On 28 May the Court decided. as a result of communications received from
the ~overn&ents of Pakistan and India. to postpone the opening of the public
hwrings; and on I June the Court fixed4 Juneas the date for the opening of the
hearings, and the Parties were immediately sa informede.
Shortly before 1p.m. on 4 June 1973,the Ambassador of India at The Hague
handed to the Registrar a further letter, enclosing a document setting out the
' Seep. 113, infra.
Seepp. 116and 120, infra.
Seep. 117, infra.
See pp, 118-120, infra.
- 5 Seep. 121, infra.
Seepp. 137and 138, infra.24 PAKlSTANl PRISONERS OF WAR
position of the Government of India'. A copy of the letter and the document
was su..lied as ra~..lv as p.ssible to the Aze..ntof Pakistan.
Sincc the Court in the pre\eni case include, upon the Rench no JUJW oi
Pakisiani narion3liiy. ihc Ciobernment uf 1'3kist;in nt~titieJ the Court on I?
hlay 1973of irjcnoi:e of Sir Muhammad Z;ifrulla Khan io sit as judge u<//ti>r
in the case puriuani rs .\riicle 31, pdragroph 2, ufihe SI~~UIC~ N.ilobjeciion I<I
rhij na, m3Je by In.lia within the time-limir iixcd ihercfir pur,u;int IO Arii.lc 3
of the Rules of court.
1shall therefore cal1upon Sir Muhammad Zafmlla Khan to makethe solemn
declaration required by Article 20 of the Statute, and 1invite the Court to rise.
Sir Muhammad ZAFRULLA KHAN: I $olemnlydcclnre that Iiiill pcrform
niy dutics and excrcisc my powcrs as judge, honourably, Fdithfuliy,inipliriially
and conscientiously.
The PRESIDENT: 1place on record the declaration made by Sir Muhammad
Zafrulla Khan and declare him duly installed asjudge adhoc in the present case.
1 regret that Judge Dillard is not with us today, being prevented hy illness
from being on the Bench, and it is doubtful whether he will beable to take part
in the case.
1 declare now the oral proceedings open and request the Agent of Pakistan
to take the Roor and present his case for the indication of interim measures of
protection.
Seep. 139, infra.
2 Secp. 114,infra. STATEMENTBY MR. KHARAS
STATEMENT BY MR. KHARAS
AGENT FOR THE OOVERNMENT OF PAKISTAN
Mr..K----~: Mr. President. Members of the Court. 1 deem it a areat -
privilege and honour ta stand before this august tribunal, once more, in my
caoacitv as Agent of the Government of the Islamic Republic of Pakistan.
~akistan hcs always striven to ensure the resolution of al1disputes through
conciliation and negotiation, and where these means have failed, through
adjudication. Our record during the 25 years of Pakistan's independence bears
testimony to these endeavours. It is in the same spirit and tradition that the
Government of Pakistan have moved the International Court of Justice, the
orincioal iudicial orsan of the United Nations to adiudge.-pon th~ dispute
betw&n india and ~akistan regarding the Pakistani prisoners of war in lndian
camps and the threatened transfer of 195 of them to Bangla Desh for trial for
alleged acts of genocide.
The Government of Pakistan will be represented by Mr. Yahya Bakhtiar,
Attorney-General of Pakistan, as Chief Counsel, and Mr. Zahid Said, Deputy
Leaal Adviser of the Pakistan Ministry of Foreign Affairs, as Counsel.
~r. President, 1 request the Court to cal1upon Mr. Yahya Bakhtiar to make
submissions on behalf of the Government of Pakistan. PAKlSTANl PRISONERS OF WAR
ARGUMENT OF MR. BAKHTIAR
CHIEF COUNSEL FOR THE GOVERNMENT OF PAKISTAN
Mr. B-~HTIAR: Mr. President and Members of the h~no~ ~ ~e ~ourt.
This is a request-under ~rticle 41 of the Statute of the Court read with Rule 66
of the Rules of Court, wherehy the Government of Pakistan are seeking an
indication of provisio"al measüres of protection, with regard to 195 or~any
other number, out of over 92,000 Pakistani prisoners of war, detained by India
in Indian orison camos for over 17months. India has threatened to hand over
these 195prisoners of war to Bangla Desh for trials on charges of genocide and
what they cal1crimes against humanity. It announced that the trials would be
held by the end of May 1973.
The Government of Pakistan have much appreciated the steps which you,
Mr. President, and the Court, have taken in giving priority to our request, and
to treat it as an urzent matter. oarticularly when the Court has yet to consider,
at the appropriatestage, the merits of the case and also satisfy itself about its
competence to deal with and decide the dispute between the Parties.
The comDetenceof the Court to decide the case on merits has been challenged
by Indiü. lndia has every right to do so. It is, hoae\.er, asronishing thai lrirlia
should do so iiithout appointing an agent or follo!ring the procedure of rliising
oreliminarv obiections at the orooer time. It is remettable that India has chosen
ioienore ihe orocess of thisCo;rt. and has ~h~n~-~~herself from these nro-
ceezngs. 1ndia is a Party to the statute of the Court, and is obliged to foilow
the procedure laid down by the Statute and Rules ofCourt. This, Mr. President,
is not merelv a matter of courtesv to the Cour- -~t is an inescaoable dutv
impored by Iaw upon parties ro thc Statute. In piirtisular, the attention of the
Court indrawn 1,)the niiindatory pruvision cont3ined in Article 38, par~graph 3.
of the rcbised Ilule> of Court. 'Thisattitude of India. in our ooinion. ir hichlv
contemptuous as it amounts to arrogating to herself'the functlon of the court
by purporting to predetermine the issue ofjurisdiction which it isfor the Court
to decide in duecourse. In view of the irregular manner in which India has
ohjected to the exercise of jurisdiction by the Court to decide the dispute, the
Court would be fullyjustified in disregarding India's observations, as they have
not been oresented in accordance with the r~le~ ~Nevertheless. in the course of
my suhmisiions, I shall comment briefly un the nature, rele\iince and iniplird-
lions of India's i)hiïction to the Court exerciiing iurisdiction.
The Government of Pakistan felt obliged to iniiitute these proceedings since
the Goverament of India, disregarding the rights of Pakistan, under Article VI
of the Genocide Convention and under international law. DroDosedto ~ ~d ~
over 195Pakistani nationals to Bangla Desh for the purpose of trials for alleged
acts of genocide and of so-called crimes against humanity. The central issue in
the proceedings instituted by Pakistan will be whether or not Pakistan has an
exclusiveright to try these persons by virtue of Article VI of the Convention on
the Prevention and Punishment of the Crime of Genocide, adopted by the
General Assembly on 9 December 1948,to which both India and Pakistan are
parties. Article VI of the Genocide Convention reads as follows:
"Persons charaed with aenocide or anv of the other acts enumerated in
Article III shall bé tried bis competent thbuna1 of the State in the territory
of which the act was committed, or by such international penal tribunal as ARGUMENT OF MR. BAKHTIAR 27
may havejurisdiction with respectto those Contracting Parties which shall
have accepted its jurisdiction."
At the time the acts in auestion are alleeed to-have been committed. the
rerritcir). nou conrtituiing Rangla Veih ii,a>unii,ersally recognized as a pari oi
I'akistan and Article VI uf rhc Genocide Con\ention. therefure. confers on
Pa~~ ~ ~~ ~~x~lusi\e iurisdistiun to hold such trials. This iuriidiitirin i\furrher
strengthened by the fact that the individuals accusedof the oKencesin question
are Pakistani nationals.
In addition to those accusedof acts of genocide, India has in her hands over
92,000Pakistani prisoners of war and civilian internees, who should long since
have been repatriated under Article 118 of the Third Geneva Convention of
~ ~9~on--~e~ ~ ~tment of Prisoners of War and Articles 133 and 134 of the
Fourth Geneva Convention on~the Protection of Civilian Persons in Time of
War. The ohysical conditions and morale of the prisoners and internees con-
cerned is iapidly deteriorating and their return~to Pakistan has become a
matter of extreme urgency. 1 shall revert to this matter at a later stage of my
submissions.
Ke~~... in view thesefacts. the Government of Pakistan have reauested the
Couri for indication of the following measuresoiproteciion in order io prewrve
the rçroecii,e righis of l'srtie,. pcnding the de-ision of the Court on the merits
of the case:
"(1) That the processof repatriation of many thousandsof prisoners of war
and civilian internees in accordancewith international law. which has
already begun, should not be interrupted by virtue of charges of
genocide against a certain number of those still detained .. .
(2) That such individuals, as are in the custody of India and are charged
with alleged acts of genocide, should not be transferred to 'Bangla
Desh' for trial till such time as Pakistan's claim 10exclusivejurisdic-
tion and the lack ofjurisdiction of any other government or authority
in this respect has been adjudged by the Court."
We submii ihat the facts of the case.as al50 the principles of law applicable
tu rhc indication of intcrini meîsures of prritc;tirin, fully jiistify such action hy
the Court.
Refore I procced IO submit IO the Caiurt a sistemenr uf the facl, oui oi which
the diiierence betucen Pakisian and India necei\iiüring rhe instituiion of theic
oroceedings has arisen. 1 would heg leave of the Court to make a brief ex-
7~~ ~ ~ ~ ~ ~ ~ - - ~ ~
The specific issuesubmitted to the Court in Pakistan's Application hasarisen
out of India's deliberate and orolonged default in carrying out her clear, im-
e~~~~~~e~a~ ~ ~ ~nditional~oblie~ ~o-~n resoectof the rëoatriation of Pakistani
prisoners of war in her custody. That obligation is spelled out in Article 118of
the Third Geneva Convention and under Articles 133 and 134 of the Fourth
Geneva Convention. to which 1 shall revert in due course
India's default in Carrying out that obligation has given rise to several other
diKerencesalso, but with those the Court is not concerned in theseproceedings.
To enable the Court. however. to .oorec..te fullv the hackmound of the issue
here submitted to the court it is necessaryfor meio explainit somelength the
facts leading up to the emergenceof that issue.
Mr. President. the circumstances which forced Pakistan to institute these
proceedings requirs to be mentioned briefly. so thar Our cüse,and the urgcncy
of the msttsr, are properly apprccidtcd. The honourable Court may be pleüred 28 PAKISTANI PRISONERS OF WAR
to know that it has been the desire, anxiety and endeavour of the Government
of Pakistan to settle the question of repatriation of the prisoners of war in
accordance with the Geneva Convention and through bilateral talks and
negotiations witb India. We were, and still are, ready to discuss and settle al1
other matters of disoute with India: but while India has been urofessinc:
willingness to discus; and settle the question of prisoners of war and othei
disputes, she has in actual fact beencreating difficultiesand attaching conditions
in order to gain political advantage. 1think, therefore, it would be appropriate,
at the very beginning of my address, ta give the Court a somewhat detailed
exposition of the circumstances in which this dispute has arisen soasto make
clear ta the Court the necessity for interim measures of protection, pending a
finaldecision of the case.
The war between India and Pakistan in 1971was a result of the intervention
of the Government of India in the interna1 affairs of Pakistan. followed bv
armed aggression against Pakistan. The Government of India ~"pported and
instigated the secessionist movement in East Pakistan led by extremist elements
in the Awami Leaxue. the maior no,itic.l nartv ,n E.st ~akistan. When. in
llirch 1971, the niilitiry Go\ernmenr 01 I1akintande-ided 10 take actiti" tu
restorc Id\\and tirder in Fair Iàkisian, ihe Indian Cio\ernment, il,I'arli;tment
and high oihiial~, puhliily declared iupptiri for the A\i;imi I.eigue. Exlier, IO
ni:ikc11 more dil1i:~Ii ior the Cio\ernmeni of Pakimn to re5rsre Iïw and urder
in Fast I'aki>ian, the Government of India, a, the Court alielJy Lno\ri, pro-
hibiied u\er-tlighrs uf Ihki>t;tni :iircrifi beineen the ti\o \i;nçs oi Puki,i3n in
riolntion of the principlcs of internaiional lau and[lieohliption oithe Cio\ern-
nient of lndid under intern1tion31 ion\eiitions. India g:i\.c mone!.. arnis 2nd
ammunition to the rehels in East Pakistan. and Indian armed forces ~ersonnel
infiltrated into Pakistan territory ta commitacts of sabotage. Later in 1971,India
provided modern weapons, training and sanctuary to the so-called "Mukti
Bahini" guerrillas.
~inally, on 21 November 1971, in complete violation of her obligation under
the Charter of the United Nations to refrain from the threat or use of force
aaainst the territorial intexritv of anvState. India commenced aeeressive militarv
oierations across the international border into the territoryof the eastern
province of Pakistan. Those attacks continued to mount. Thus a state of war
was imoosed unon Pakistan. The fiehtine snread to West Pakistan also and on
4 ~ecehher 1971 India formally iotifiedihe existence of a state of war to
Pakistan through the Government of Switzerland. While the conflict raged on
both sides of the subcontinent. action hv the Securitv Council was blocked bv
repeaied ietoes of the Si)\iel union. \ihiih enabled lndiü tu acliieve her miliiar;
ob~esti,ej in Fahi I1ski>tdn.rolloiiinp ï dcadli>ik in rhe Seiurily Couni~il,tllc
uniting-for-peace procedure was invoked to place the matter bef&e the General
Assembly of the United Nations. The General Assembly adopted resolution
2793 (VI) by an overwhelming majority, on 9 December 1971, whereby 104
nations called uoon the Governments of India and Pakistan to take forthwith
al1 measures foi an immediate cease-fire and for withdrawal of their armed
forces on the territory of the other to their own side of the borders.
In the meantime, pressure was steadily mounting against the far out-
numhered Pakistani forces on the eastern front. On 11 December 1971, the
Chief of Staff of the Indian Armed Forces, General Manekshaw, called upon
the Pakistan forces in East Pakistan to surrender to the Indian Armv. In a radio
broadcast hc gaie hi, "\olemn assurance" that the personnel who surrendered
uould be trcaied with the digniry and respe;t XII\oldierr areeniitld ro. and thai
Indii u,ould abide by the pro\i\ii)ns of the Geneva Cun\entionj. ARGUMENT OF MR. BAKHTIAR 29
The External Affairs Minister of the Government of India confirmed in the
United Nations Security Council on 12 Decemher 1971 that the prisoners of
war would he India's responsibility, in these words:
"During the conflict India stands committed to dealing with the enemy
forces according to the Geneva Conventions. India's Chief of Army Staff
has assured his Pakistani counterpart of this commitment of the Govern-
ment of India on 7 December. ~ehas gone onestepfurther in assuring the
West Pakistani troops in East Bengal of their safe evacuation to West
Pakistan if they would surrender ..."
Consequent upon the cal1 of General Manekshaw and the assurances
repeated by the Minister of External Affairs of the Government of India in the
SecurityCouncil, and in order to avoid further bloodshed, on 16December 1971
the Eastern Command of the Pakistan army surrendered to India and a large
number of personnel became prisoners of war of India. Consistent with Article
12of the Third Geneva Convention of 12August 1949relative to the treatment
of prisoners of war, these persons passed into the hands of the helligerent
power-India. It is to be noted that paragraph 1 of the said Article 12 states
as follows:
"Prisoners of War are in the hands of the enemy powei and not of the
individuals or military units who have captured them. Irrespective of the
individual resnonsibilities thatav exist the detainina Doweris res~onsihle
for the treatment given them."
The commentary of the International Committee of the Red Cross on this
Article is also significant. and states as follows:
"War is a relationship between one State and another, or, one ma; also
sav. hetween one belligerent Power and another; it is not a relationship
betkeen individual persan The. logical consequence is that prisoners of
war are not in the power of the individuals or military units who have
captured them. They are in the hands of the State itself of which these
individuals or military units are only the agents." (Commenlary of the
I.C.R.C., Jean S. Pictet, pp. 128-129.)
Accordine-to information received from the International Committee of the
Ked Cross. India look XI.XxX srmcd per,snnel as prisoners <ifiidr In ;id~liiioii,
India alvi dei.iint.3 der 10.000 :,\iIians in2luJing 6.500 ,ionien and ;hilJrsii.
On Ih Dctenibcr 1971, InJia, hd\ing acliic\cd hcr niil~rir)~~hjecti~csin Es>[
I1ski>rdnand fa;inginircas:iigcriii:ijnironi the \iorlJ 3nJ niouniingdipl<imaric
pressure. Jc.'lsred ihaiir\vi>uld3;icpi 3.esse-tire iithe \rcbirrn ihenirc of ihr.
iiar if Pakisian a.ou1.Ido likea.ise. On 17 De:eniber 1971. I'akiiran agrced 1,) a
celise-rire. Il(iiilirie, heiueen Indlii and Pakijian <iin\equently ceascd al 14.30
houri G.V i on 17De:eniher 1971.The Sc;uriry Council again look iogni7ance
of rhc ~onfli21.and donicd rcwluiion 307 on ?I Deiember 1971. in \ihiih il
noicd ihc r.c\,siion <ifhohiiiiities .ind called upon India and Püki>idn Io u,:ih-
Jra\r from ierriiories o~iupied by ihcm. 'lhc Securiry Council also called for the
observance of the Geneva ~on;entions. The Security Council resolution has
been rcproduzcd in Annci B (if P~kistan's ,\ppliwtio~". and ii tiould bcu3eful
iiI reaJ <luiihesperaiise pîragraph numher I for the informari,~noiiheCour1.
The Security ~ouncil:
"B~~m~i~idtsh,31 3 durable ccïse-lire and cessaiion of al1hoiiiliiier in al1
areas of conrlicihc stricrly observed and remain in elTeciuniil uirhdr~wiilr30 PAKISTANI PRISONERS OF WAR
take place, as soon as practicable of al1 armed forces to their respective
territories and to positions which fully respect the cease-fire line in Jammu
and Kashmir supervised by the United Nations Militas. Observer Group
in India and Pakistan;
Calls won al1member States to refrain from anv action which mav az-
gratatc the sttuarion in the huh-coniincni or endanger inrern31ional &ci:
Cflllrupon 311thore conscrned Io take al1mcdjurcs nc:e,idry to pre,er\c.
human lirednd for the obrcriancc of rhc Gcncia Con\.cntil>ns (if1949and
to apply in full their provisions as regards the protection of wounded and
sick, prisoners of war and civilian population."
1 would like to stress that it isclear, from the preamble to this resolution, that
Pakistan and India were the only belligerent powers in the armed conflict, and
that the Security Council recognized that cessation of hostilities had already
taken place on 17 December 1971. The preamhular paragraphs 2-7 read as
follows :
''.\'i~I;i<;encra1Ajjeninly re~olution 2793(XXVI) of7 Uc;ember 1971.
.Yuli/lr the reply of the Ciovernmtnt oi I'akisran on 9 De;enibcr 1971
(doc. S/10440),
Noting the reply of the Government of India on 12December 1971(doc.
S/10445),
Having heard the statements of the Deputy Prime Minister of Pakistan
. and the Foreign Minister of India,
Noring further the statement made at the 1617th meeting of Security
Council by the Foreign Minister of India containing a unilateral declara-
tion of cease-fire in the western theatre,
Noting Pakistan's agreement to the cease-fire in the western theatre with
effect from 17 December 1971."
These recitals indicate that Pakistan and India were the only belligerent
powers in the conflict. 1 also draw attention now IO preambular paragraph 8
which states as follows: "Noting that consequentlya cease-fire and cessation of
hostilitiesprevail." India acknowledged its responsihility as the sole belligerent
power against Pakistan before the Security Council. The Foreign Minister of
India stated before the Security Council on 21 December 1971,as follows:
"With the inde~endence of 'Banda Desh' and surrender of Pakistani
troops there, thei; earliest possible Ïepatriation from the Eastern theatre
has to be arranged. They are under our protection [I emphasize this, MI.
President, they are under our protection] and we have undertaken to treat
them in accordance with the Geneva Convention. The presence of the
Indian forces in 'Bangla Desh' is, therefore, necessary for such purposes as
the protection of the Pakistani troops who have surrendered ta us and for
prevention of reprisais and the like."
The Government of Pakistan have made every possible effort to settle the
dispute with India and to ensure implementation of the Geneva Conventions.
These efforts have been made through diplomatic channels, public statements,
bilateral talks and even through unilateral actions.
On 20 December 1971.the Government of Pakistan. takine note of~ ~~ ~e~ ~ ~
. ~ ~ -
from Dxca abi)ur the indiscriminate killings by the Mukti Bahini gucrrillîs and
pointing out that the Indian forces Iiadassrimedcornrnand and full rcsrionsibilitv
for law-and order in East Pakistan, asked al1 governments, including that if
Switzerland, which is the Protecting Power for the interests of the Government ARGUMENT OF MR. BAKHTIAR 31
of Pakistan in India. to use their influence with the Government of India to
bring an end to the ütro;li~es in East Pahistxn. On rhe wme Jay. hy anorher
aide-memuire. the Ciovernment of Pakidan rcquc,ied fricnjly goi'crnmcnis, ilic
Iniernational Red Crosi and i~ihcrhumiinitarim orcani7arion\ for imniediaic
assistance in respect of Pakistani prisoners of war aid other civilians in Indian
custody. The Government of Pakistan added that civilians, police officialsand
others who could be released without waiting for further formalities, should be
repatriated immediately.
Again on 25 December 1971 the Government of Pakistan expressed to the
Government of India. throuah the Government of Switzerland, Pakistan's deep
concern over reports of lawlëssness and indiscriminate killings in East ~akistan
of those who were loyal to Pakistan. The Government of Pakistan stated:
"Now that the cease-fire has become~ ~~ ~ ~ ~ and the hostilities have
ceased, it is necessary that al1 those whose life is threatened by the un-
settled and disturbed conditions in East Pakistan, should be placed under
the care of the Red Cross and repatriated without any delay."
In the last week of December 1971. the Government of Pakistan saw nress
reports to the effect that Dacca and N~W elh h ire thinking of holding irials
of the former Governor of East Pakistan and other Pakistani high officials.The
British Broadcasting Corporation quoted the Foreign ~ecretaryof the Govern-
ment of India, to the effect that the Geneva Convention did not provide for
protection of armed forces personnel accused of committing serious crimes, and
that the Government of India would deliver to Bangla Desh those persons
included in the list of "criminals" being prepared hy the Bangla Desli authorities.
For the first time this news emanated, Mr. President, from lndia and Indian
authorities, not from Bangla Desh, that the trial should be held. Thereupon, in
early January 1971,the Government of Pakistan requested the Government of
Switzerland, as well as the International Committee of the Red Cross, to
immediately convey the concern of the Government of Pakistan to the Govern-
ment of India, pointing out that the Government of Bangla Desh had no locus
standi in the matter of the recent international conflict between India and
Pakistan and that the Geneva Conventions iere aooli. .le onlv between India
and Pakisiin. A~.cordingl!..the <;overnment of India uar bounJ ru rnrurc thai
I'akiziani per.,onncl acre nui suhjeacd to 3ny triÿli by rhr.ïuihoriiiciciiahliiheJ
by the Government of India in Dacca.
As regards the prisoners of war and civilian internees generally, the Court will
appreciate that Article 118 of the Third Geneva Convention of 1949 and
Articles 133and 134of the Fourth Convention require their release-in the case
of prisoners of war-"without delay" after the cessation of active hostilities;
and in the case of internees "as soon as possible". Accordingly, in numerous
communications to forcien eovernments. includine the Government of Switzer-
land, the Government ofPakistan pointed out th; there was no moral or legal
basis for the continued detention and non-release of the prisoners of war by
India and called for compliance with the Geneva Conventions.
In regard to the repatriation of prisoners of war the relevant provision is
Article 118 of the Third Geneva Convention relative to the Treatment of the
Prisoners of War. This article provides as follows:
"Prisoners of war shall he released and repatriated without delay after
the cessation of active hostilities.
In the absence of stipulations to the ahove effect in any agreement con-
cluded between the Parties to the conflict with a view to the cessation of32 PAKISTANI PRISONERS OF WAR
hostilities. or failineanv such agreement. each ofthe detainine uowers shail
itself establish and execute without delay a plan of repatriation in con-
formity with the principle laid down in the foregoing paragraphs . . ."
With regard to civilian internees, who could only have been validly detained
under Article 42 of the Fourth Geneva Convention if the security of India made
it absolutelv necessarv..A.ticle 134 of the Convention is aoolica..e and Drovides
ai f<~llows:'"lhcContra~ring I'.irriei shdl cnrle.ii.~ur, upon close di h&iilitics,
to ensure ihc reiurn <iiaIIinierneîr td the lasr plaie of rcsidcnre. or Io laciliiaie
iheir rcpairi~tion " .\rri.de 133,piir;ipr.lph 1,i~fthe Courrh C;cnc\,;iConi,enrioii
iseicn more c31~guricalïnd si.iie\: "lntcriirnenl ,hall ceûse as soon ils posiible
aftcr the cessarion oi hi),iiliiies." Also tlie Ci<i\crnnicni tif Pdkisidii IsJged
innumerable orotests with the Government of India aeainst the cruel and in-
human treatment of Pakistani prisoners of war and c&ilian internees. On 24
October 1972,for instance, the Government of Pakistan requested the Govern-
ment of Switzerland to convev to the Government of India Pakistan's serious
concern over the frequency of firing incidents in the prisoner of war camps in
lndia and over the failure of the Government of India to takeappropriate action
to nunish the Indian oficials resnonsible for causine death~or iniurv to the
prisoners. In accordance with ~rti'cle132of the ~hird~eneva conGeniion, the
Government of Pakistan requested that an enquiry be instituted prom~tly to
investigate two such incidents. Also in accoidance with that Article, the
Government of Pakistan expressed the desire that the representatives of the Iwo
sides should meet to decide on the manner of the enquiry, expressing the view
of the Govern~ ~t o~ ~ ~ ~tan ~ ~ ~a ioint enouirv woul~.be~desirahle as it
would help to establish confidence inuthe fairness and impartiality of the
enquiry. The Government of India, however. reiected Pakistan's request for an
enquity, taking the position that the request for instituting an enquiry should he
addressed no1 only to India but also to Bangla Desh.
On 11 December 1972, the Government of Pakistan once again drew the
attention of t~e Go~ ~nment of India to the various incidents of firing bv lndian
armed guards at the helpless and defenceless ~akistani prisoners if kar and
civilian internees in India. Besidescalling for an enquiry in10these incidents, the
Government of Pakistan requested thatthe Government of India comply with
the Geneva Conventions, release the prisoners of war without further delay and
ensure their treatment in conformity with the Geneva Conventions.
As mentioned earli~ ~ on.fr~ ~ ~t occasions t~ ~ ~vernment of Pakistan
drew the attention of foreign governments to the continuing violations of the
Geneva Convention of 1949 by the Government of India. Their attention was
drawn ta the following provis~ionscontained under Article 1, common to al1
four Conventions: "The High Contracting Parties undertake to respect and to
ensure respect for the present Convention in al1circumstances."
Durine -anu~ ~ 19,3 ~he Gov~ ~ment of Pakistan once aeain informed a
large number of the signatories ofthe Gen&a conventions of rhe failure of the
Government of India to carrv out her obligations under the Geneva Conventions
and expreisred the hopc [ha; the sigiiaii>ri&ro rhr Con\cnlions would lakc nole
ofthe rerultant sirualion and "~oniidcr siepi rucnsure reipr.3 for rheobscrvanre
of these Conventions".
Recently again, on 30 March 1973, the Government of Pakistan invoked
Article 1 of the Conventions and requested each of the signatory States with
which Pakistan has diolomatic relations todo everythin. in i.s power to ensure
that the Geneva ~onvëntions were respected by the Government of India.
A number of States that are parties to the Geneva Conventions have in- ARGUMENT OF MR. BAKHTlAR 33
formed the Government of Pakistan of the efforts they have made to ensure
respect for these Conventions. Many of these States have issued public state-
mentscalling upon India to releaseandrepatriate Pakistani prisoners of war and
civilian internees without delay.
The General Assembly of the United Nations unanimously adopted resolution
2938 (XXVII) on 29 November 1972, whereby it: "Calls for the return of the
prisoners of war in accordance with the Geneva Conventions and relevant
7ro~is~ ~s~ ~ t~ ~ ~ ~ ~tv Council resolution 307 .1971.."
Besides approaching CheGovernment of India officially through the Swiss
Government for com~liance with the Geneva Conventions of 1949, the
Government of pakistan also repeatedly called, publicly, and in negotiations
with the Government of India, for the release and repatriation of Pakistani
prisoners of war and civilian internees.
The Government of Pakistan has repeatedly expressed its desire for the
normalization of the situation in the subcontinent. Speaking to the National
Assembly of Pakistan on 14April 1972, the President of Pakistan said:
"We want to live in peacewith India. We want Sheikh Mujibur Rehman
to overcome his nroblems and his dificulties. For we ardentlv believe that
the people of the whole subcontinent deserve a better future than the
constant friction and conflict that has marred their past. Our peoples, both
theirs and ours. are too Door to live in a state of Dermanent hostility. We
want to direct al1Oureneigies from wars of destruition to wars on piverty,
illiteracy and hunger. We shall go on trying to resolve Our differences and
shall always remain ready to seizeany reasonable opportunity to realize
this supreme objective.
We are prepared to resolve al1Our bilateral differences. But we cdnnot
barnain State ~rinci~lesfor human fiesh. The right of self-determination of
the-wople ofJam;u and Kashmir has not b& bestowed on them either
by India or Pakistan-it is their inherent right which no one can take away
from them.
We made many overtures, took many initiatives, and now India has
corne back wiih its first positive response.Recently, 1receiveda letter from
the Prime Minister of lndia stating that India was prepared to discussal\
outstanding issues unconditionally and that she seeks peaceful co-
existence with Pakistan. My answer welcorning this approach has been
communicated to her.
It is my earnest hope that the negotiations we are going to start will be
conducted in a spirit of fairness. Given that kind of approach, there is no
reason why we should not make a good beginning and resolve amicably
at least the more pressing issues."
The first round of talks between India and Pakistan was held, at the level of
Special Emissaries,in Murree and Rawalpindi from 26 to 29 April 1972.In the
course of~th~s~~-~l~ ~ Mr. D. P. Dhar. the Soecial Emissarv of the Prime
Minister of India, stated on the one hand,'th; the Governmentof lndiadid not
desire to detain the Pakistani riso on e ors war a day longer than absolutely
necessarv-bu~ ~.n~ ~ ~other band .e said the oriso&rs of war could not be
releasedwithout (a) the association of the Go;ernment of Bangla Desh with
discussionson thequestion, and (b) theconclusion of a peaceagreementbetween
India and Pakistan. At that meetine. and subseauentlv in oublic statements
issued by the ~xternal Affairs ~inEier of the Goverimeni of India, it was
clearly stated that the question of recognition of Bangla Desh was a bilateral
matter between Islamabad and Dacca. ARGUMENT OF MR. BAKHTIAR 35
for some years and when public opinion viewed with disapproval the
continued detention of prisoners of war at a time when there was no longer
any reasonable possihility that hostilities might te resumed."
What 1 have jus1 quoted exactly describes our case. The Government of
India did not, however, respond to the request for the release of the Pakistani
soldiers and civilians.
Realizing hy that time that public opinion throughout the world was highly
critical of her treatment of and attitude towards the Pakistani prisoners of war,
the Governments of India and Bangla Desh issued ajoint statement on 17April
1973. 1quote from that statement:
"... the two Governments are readyto seeka solution to al1humanitarian
prohlems rhroughsinrulta,reous repatriarion of the ...prisonersof war and
civilian internees,exceptthoserequiredby the Governmentof the People's
Republicof Bangladeshfor trial on criminal charges, the repatriation of
Berigalis forcihly detained in Pakistan and the repatriation of Pakistanis
in Bangladesh. . ."
and then they defined those Pakistanis in Bangla Desh, that is "al1non-Bengalis ,
whooweallepianceandhaveooted for reoatriation to Pakistan".
It may be ioticed that the q;estion of récognitionof Bangl? Desh hy Pakistan
was omitted, but India persists in attaching other conditions to the release of
orisoners of war and civilian internees whidi are totallv inadmissible under the
~eneva Conventions. The 17 April statement called upon Pakistan to (a)
acquiesce in the trial of a certain numher of Pakistani prisoners of war, and (b)
acceot the transfer. from Banela-Desh to Pakistan. of memters of an ethnic
and linguistic minority who in fact are victims of Bengali racial prejudice but
who, according to the said joint statement, allegedly owe allegiance and have
ooted for reoakiation to ~akistan. as oreconditions for the release of Pakistani
prisoners of war. . .
Quite clearly there is no warrant for the imoosition of such conditions on the
relcd\e of prii"neri of \bar. ,\ccord~ngly, the Gù\erniiieni of Pakisrin Jeclsred ,
on 20 ,\pril 1973ihai ii~,>uldnoi a~~pt ihew denixnds ai pre~ondiiions for the
release of Pakistani prisoners of war. although it was prepared to discuss al1
humanitarian issues.-~he Government of ~ndia, howe;er, has, in a letter of
8 May 1973, continued to insist that Pakistan accept in princip!e the package
deal mentioned above. India thlis refused even to hold discussions except on
the hasis of nrior accentance of the~s~id .ro~.~~ls. In its re. . of 16 Mav 1973.
the Ci(ii,crnnientoiPbki$ian ha$snx dgain \iigpc\icJ thai the tuo Goiernment%
ihould rebumc di,cussii~ns i\ithout prccondiiions in the inicreii of an e3rly
solution of the humanitarian nr.bl~ ~ ~
.Asfor Renp~li,in 1'3ki.,iiin,u,ho ivi,h io rciut~iihçir hornes inBaiiglaUe>h.
the Governmcnt of Pakiitin ha\ ihrsughoui follo\~ed 3 humxnitariin poli:)'.
In Januïry 1972, the I'rc3ident i>f Pdkisisii un;undiricinally irccd Sheikh
hiujlbur Kahman.an(l hlr. Kanial Hoss~in.the noir Prime hliniiicrand tsreign
Miniiicr, respeiti\cly, of Usngla De3h. \,ho uîrc under deiention in Pakisran
on charees of incitine and oreanizine a rebellion azainst the Government of
~dktstan Wiih regar; io rhe orlier l<nglili\ in ~aki;i~n, ihe Goserninenr has
publicly dcclared iis i\illingness to CO-opernie in arrangenienri for iheir
rc~alriaiiun. Ab a fir4 sten. c~ii ncrmiii ha\e been isuïJ infai,our uf 12.000
~éngalis.With the issue ofadditional permits, this numher will rise to 15,000.
Pakistan has informed the International Committee of the Red Cross and the
United Nations Secretary-General of its willingness to allow these persons to36 PAKISTANI PRISONERS OF WAR
leaveeither by the landroute or by sea.The delay in their departure is aresult of
the failure of Bangla Desh to make arrangements for their transportation. The
rest of the Bengalis in Pakistan, totalling over 157,000according to estimates
prepared by the International Committee of the Red Cross, will likewise be
permitted to leave Pakistan, if they so wish. Meanwhile, they are being treated
in a humane manner. The Government of Pakistan will naturally accept the
transfer of Pakistan nationals from Bangla Desh. As to who is a Pakistan
national is a question that can be determined hy Pakistan alone. It is a well-
known principle of international law that a State has the exclusive right to
decide who its nationals are. The determination of eligibility of persans in
tlangld Deih I;)r iransier Io Pdkistaii ~3111101, tto~te~er. Ih.link~lr(10 the relea%!
oi I'akictaiii prisoneri oi \ur. There is no logic in rhe prop<>>ilion[hiil unle.,
Piihisi~ii axepis al1ihe non-Bengali\ in Bangla Deih, the prisoners di war uill
nui he r~.le.i\e.i.I'ri,.>ners of\vsr h.i\e a spt~iltl siaius In intcrn~ti.)n:i13\i \ihish
eniitles iheni to be Jeali \iiih in ;i;:ordance \\irh ihe rule. independently of311
extraneous considerations
1hr.Citi\ernmîni of I1ski>idn h3J hopcd [liai the Governmeni OC lndia uould
;igrçe io siniulianeous implenicntation oi the pni\iii<iii\ 01 Article 118 of thc
Third C;cne\a C'on\cntion and Ariiclc, 133and 131of ilif fourih Cilnvcniion
o~ ~ ~ecioroTa~ ~ ~i~ ~As the -~~ernme-t of India continued to delav the
relcaw i~fPakiiixni prisoners of \i.ar and ciiilian internees. the Cioiernmeni oi
I1aki>idnpr<iceedcdio carrv i~ut it,i~hlixationi unilaier;ill.v an.1un<i~ndiiion~lly.
Ftrct. the lndian snilors under dereniion in Pÿkisixn ncrc r~.lca\edin Janiixry
1972ünu rcpsiriared. Tlicn Indisn naiionalr a.ho nere sir~ii~ledin Pskisian as
3 resuli oi lndia-I'nkisinn hostilities ucre aIlo\rcd IO Icaie I'dki\13n. Iater in
the same ve.r. a,1Indian civilian internees in Pakistan were releasedand reps-
triated. The sick and wounded Indian prisoners of war were repatriated on a
priority basis. Finally, on 1 December 1972. the Government of Pakistan an-
iounced its decisionto rel~as~. unilaterallv. the Indian nrisoners of war. Thev
were repatriated in ~ecember y972 and 1&uld like to siressthat today there k
not a single Indian soldier or civilian who is under detention in Pakistan in
connectioi with the events of 1971
The Government of Pakistan also gave full effect of the provisions of the
Geneva Convention in rezard to the treatment of sick and wounded prisoners
.
of \rar and :i\ilian internees. In ii> iinrl report on the Indian priu~neri af hvdr
;amp ai I.y.illpur in I'akistan, the Inicrnütional C'ommiiter iif the Ke.1 Crti,\
paid :oni~liinçnt. IO ihe suihi~ritiei <ifthe Go\,ernineni of P~ki~taitfL)rensuring
full ~oni~liance \vit11the proiisions ni the Geiie\a Conteniion.
In %piteuiüll ihese erloris, noi only h3i the Goiernmeni of Iiidia <i~niinued
11sunlniiiul derr.niion of ihc Pakijiani çnldicr. and ~ivilinns in ~onira\~eniioii oi
il\ <ihlig.tiions un,ler ilie Gcneva Con\eiiiiort, ith;~s2lsi1 iuhjï;ie.l them [LIcruel
and iriti.im~n ircaimcnt. \\'c<uhmir. hlr. l're~ident.ihdtihcsondili~in~ndmorale
of Our prisoners as a result of the inhuman treatment being meted out to them
is relevànt Io the issueof urgency in this request for interim-measures of protec-
tion. It would not he out of place to draw the attention of the Court to just a few
instances of inhuman treatment. According to the information received by the
Government of Pakistan. more than 40 orisoners of war have beenshot dead bv
Indian armed guards and more than 80have been wounded. Insults and indig-
nities, extraordinary punishments, and mars reprisais have been inflicted upon
them. and there ha"e heen reoorts of torture and atrocities hv the Indian
authorities against the defenceiessprisoners. Over-crowding, unhygienic con-
ditions and inadequate medical supplies have been reported from several of the ARGUMENT OF MR. BAKHTIAR 37
It has ben reoorted that the Government of India maintained a secret camo. ..
Nu. 66, 31 elh h iur inrcrroSûtion and hriiin-wishing of ~elr.<iedPaki,tmi
pribuner, of a3r. Elr~.tri<ihucks iiere administered to Piikiitani soldien and
some of them were incarcerated with insane oersons. In an article. based on the
reports of the International Comrnittee of tie Red Cross, the ~oshington Post
of 23 December 1972revealed that in one incident Indian army dogs were let
loose on Pakistani orisoners and eieht received severe bites. ails of Prisoner
Shafqat Husain wwe pulled out during interrogation in Amritsar and his
ankles were burnt with cigarettes. A rope was tied around his body and wetted,
causinr terrible contraction. At a camn in Allahabad. a orisoner was soread-
ciigleu in the sun ior seteral houri in.1 ihc puriijhnieni ii*.Jc\;rihcd hv the
anip conimander .I,"light". A serir.\<iici>llc;ti\e nunisliments verc inlliaed on
the prisoners of war inenclosures which were not evenscenes of escape attempts.
In a campat Ramgarh, prisoners were deprived of food for two days and put on
half ratiotis for 45 days. Prisoners in camp No. 99 at Allahabad were denied
water for one dav and forced to lie for two hours in the burnine middav sun.
In another camp.at Allahabad, prisoners were locked inside cells-and not even
allowed to go to latrines. They had to relieve themselves in buckets placed in
their overcrowded cells and to sleeo.rie-t next to the buckets. Desoite the ,
stitling >umrn:r heÿt. the cle;tri; idn. in rhc barraiks trere rwiiçhel <>If,\II
uindoii\ :ind iluori irere hcpi <'.>,eJ. '1he IVoiltinr.ri>,P~OJI quotcd another
IC'KC'reoori to dcnici ih~.<i~ndittunsof iniorii~>iimcniin the i;~lli~ainenilrui.
"Never has the tek 'cage' been used more accurately than in describing the .
Meerut maze of harbed wire where each barrack is closely fenced by barbed
wire."
On 13 October 1972, in camp No. 35 at Allahabad, Indian armed guards
opened fire on the prisoners. The ICRC later reported: "Of the six prisoners
killed during this incident, two at least if not three, seemed to be cases rather of
cold-blooded murder than of self-defence."
One of the consequences of the publication of the ICRC Report on the ill-
treatment of the Pakistani prisoners of war was the expulsion by the Govern-
ment of India of Mr. George Hoffman, chief ICRC delegate in India. In fact,
Mr. Hoffman was declared persona non grata. Further, the Government of
India refused ICRC teams oermission to visit orisoner of war camos. This
refusal was in direct contravention of Article 126.d the Third Geneva conven-
tion which requires that the delegates of the ICRC "shall have permission Io go
to al1 nlaces where orisoners ofwar mav be". One could reasonablv oresum. .
thlitthese i\iosieps.;iken bsthc~o~ern~ieni of lndia,\veredeii~nc~ ti><ih*tru;i
the fun~tii~n,of ihc lCllC 2nd tcintirniJite itifunciion~irei. \%hohad Jonc no
more than their duty by faithfullyreporting on the conditions in the prisoner of
war camps in India. The visits of the ICRC were suspended for a number of
weeks, and Mr. George Hoffman had to be replaced by a new chief delegate
of the ICRC (Mr. Nils de Uthemann).
The ill-treatment of the Pakistani prisoners of war by India raised protests
even in the Parliament of Switzerland, which is acting as the Protecting Power
of the Government of Pakistan. It was reoorted in the-newsoaoe.s.on 17March
1973 that on 16 March 1973:
"Dr. Claudius Alder raised the question of Pakistani War Prisoners in
the Swiss Parliament and said 'there are tens of thousands of [Pakistani]
POWs held in India under vulnerable circumstances'.
He asked the Syiss Government Io answer the following questions:
'(1) Has the Swiss Government knowledge of scandalous conditions in38 PAKISTANI PRISO~RS OF WAR
Indian prison camps which led to sharp exchanges between ICRC and
India?
(2) What has the Government done to secure their release and why have
itsefforts until now produced no success?
(3) 1sthe Government not also of the opinion that it can forceimmediate
measures in favour of release of POWs on humanitarian mounds and
uhai docs the Go\ernrncnt propow io do in iir caliacity 3s thc pro-
tc~iingputver 16mlike Inrliachange her attitude and initiale ininicdi:itc
releaséof the POWs?'"
In contrast, the Indian prisoners of war while in detention in Pakistan were
accorded treatment even more nenerous than ~rescribed by the Geneva Con-
vention. There was not a single uitoward incident at any of the camps forlndian
prisoners of war or civilian internees. Even attempts at escape by the Indian
soldiers were ~revented without recourse to the use of force. The International
Committee ofthe Red Cross described the main camps in Pakistan as "a model
of good POWs camp".
The conduct of the Government of India in regard to the detention of
Pakistani .ri~ ~ ~ ~ ~ ~ar and civilianinternees and t<eir ill-treatment evidences
a pattern of deliberate disregard and contravention of obligations under the
Geneva Convention. 1will not go into further details, but 1find it incumbent to
submit for the ~erusal of the-Court a booklet reflectine wo-ld-wide oublic
opinion on the subject, entitled Voices against Barbarify '.
With this background, we corne to the facts out of which the immediate
dispute between India and Pakistan has arisen.
I>uririSthe ozcupation oi East Pakirtan by Indian .trnic,l for.'r's,anil nith
India's ericouragemcnt and hclp. sonie Aiidmi I.c.~guele~dr'rsdcdarcd Eaii
I'akiitsn asthe in~lcocndïnt State i~fBansls Ue3hand Idter on dnnouncerl their
intention of holdingtrials for charges of genocide and crimes against humanity
made against a number of Pakistani prisoners of war in Indian custody. These
trials were to be in resuect of alleged actscommitted before the outbreak of war,
in what was then ~ast ~akistin and indisputably Pakistani territory. The
authorities in Bangla Desh have from time ta time reiterated their intention to
proceed with such trials. In paragraph 5 of the Application, Pakistan has drawn
attention to the various statements made by authorities in Bangla Desh
regarding the holding of trials for alleged acts of genocide. This intention isalso
clear from Presidential Order No. 8 of 1972 issued by the President of Bangla
Desh, and entitled the "Bangladesh Collaborators (Special Tribunal) Order
1972". Jn the preamble of that order it is stated as follows:
"Whereas certain persons, as individuals oras members of organizations,
directly or indirectly, have been collaborators of the Pakistan Armed
Forces which had illegally occupied Bangladesh by brute force and have
aided and abetted Pakistan armed forces and CO-operatedin committing
genocide and crimes against humanity .. ."
It is clear, therefore, that whatever other allegations there may be, those made
against certain personnel of the Pakistan Army are in respect of, or include
acts of genocide. The various statements made by government spokesmen of
Bangla Desh, and also by the Prime Minister of Bangla Desh, have heen set out
'Not reproduced. ARGUMENT OF MR. BAKHTIAR 39
in Annex C to Pakistan's Application, and do no1 need repeating here. The
most significant ofthese, however, is the statement of the Foreign Minister of
Bangla Desh, Dr. Kamal Hossain, on 17 April 1973. This is reproduced in
Annex C-VI11of the Application, and 1would like to read it out for the Court's
information.
"The ïimes of India News Service. Dacca, April 17.
The Foreign Minister, Dr. Kamal Hossain, today announced the Bangla
Desh Government's decision to try 195 POWs for war crimes. The proceed-
ings will begin by the end of May.
Dr. Hossain made the announcement soon after his return from New
Delhi where he had gone on a four-day visit Io draw up a joint strategy
with India for solving outstanding problems in the sub-continent.
He said the trial will beheld in Dacca by a special tribunal comprising
persons of the status of Supreme Court Judge.
Details of the trial decision were given in the form of a Press release at
a news conference. It said the trial will be held in accordance with uni-
versally recognired juridical norms. Eminent international jurists will be
invited as observers.
Investigations of the crimes allegedlv committed by the Pakistan
occupation forces and members of the auxiliary forces have heen com-
pleted. The 195prisoners to be tried have heen charged with serious crimes,
including genocide, crimes against humanity, breach of Article 3 of the
Geneva Convention, murder,>ape and arso".
The accused will be given facilities to arrange for their defence and
engage counsel of their choice, including foreigners.
The Foreign Minister, however, did no1 have an immediate reply to
the question whether Pakistani lawyers would be allowed to appear at the
trial."
On the same day, that is 17April 1973, Radio Bangla Desh carried the follow-
ing news:
"One hundred and ninety-five Pakistani prisoners of war will be tried
in Bangladesh for committing genocide, war crimes against humanity and
breaches of the Geneva Convention.
Announcing this official decision a Press release issued in Dacca this
afternoon said that the accused were exoected to he nroduced before a
spccial tribundlinDxcü by ille end oinr.hrmonrh. In\esiipiriion, iniu ihc
crime, ~.i~mniirtedby P~kisrani i1c;up3tion iur:es \rere üImo>tc<impleis.''
From this statement it isclear that trials for acts of genocide are contemplated
and are likely tobe held very soon. In fact, these could commence at any time;
and hence the great urgency in the case for interim measuresnding the Court's
final decision.
The statement of the Foreign Minister, Dr. Kamal Hossain, king made soon
after the Joint Communiqué of India and Bangla Desh on 17 April 1973, is
significant. The relevant part of that communiqué has been reproduced in
paragraph 7 of the Application:
"Without prejudice to the respective positions of the Government of
India and the Government of the Peo~le's Renuhlic of Bangla Desh. the
tuo Goiernnienis are reïdy to seeka so.luiiito al1humirniiahîn problemr
ihrough simulianeous repairiaiion of the I'akiriani prisoners of war and
civilian internees, except those required by the Government of the People's40 PAKlSTANl PRISONERS OF WAR
Reoublic of Baneladesh for trial on criminal charees. the reoatriation of
~engalis forcibKdetainedin Pakistan and the reparriation of ~akistanis in
Bangladesh. Le., al1non-Bengalis who owe alle~iance and have opted for
It is clear from this communiqué that India is proposing to surrender to Bangla
Desh those prisoners of war who are wanted for trial on criminal charges even
though India is at present refusing to repatriate the remaining prisoners. These
charges relate, according to the Foreign Minister of Bangla Desh, inter alia,
to acts of genocide allegedly committed hy Pakistani armed personnel. It is
also relevant to bring to the notice of the Court that Pakistan issued a statement
in response to the India-Bangla Desh Joint Communiqué on 20 April 1973,
with regard to the trial of the prisoners of war. The Government of Pakistan
in this statement declared as follows:
"The Government of Pakistan notes with concern that the 'initiative'
embodied in the statement issued in Delhi invites Pakistan to comoromise
the principle by agreeing to, or acquiescing in, conditions which are
irrelevant and unrelated to the reoatriation of the Prisoners of War.
The Government of Pakistan cannot recoen-se the comoetence of the
authorities in Dacca to bring to trial any among the Prisoners of War on
crimindl charges. Accordina to an established orinci~le of International
Law, only a 'ompetent tribunal of Pakistan can have jurisdiction in this
malter, since the alleged criminal acts were committed in a part of Pakistan
and since also the persons charged are the citizens of Pakistan. It would be
reo.e..nt to a nation's~so~e~ ~entv-,o surrender its exclusive iurisdiction
inthir regard. 1hc <;o\ernrncni oi Pïhirian rcircrare, iijre~dine,s toc.>nsii-
iurc a Judizi~l ïrihunll. of iuch 2hardcir.r anJ conioojiiiun ïi will inspire
international confidence to try persons charged with rhe alleged offences."
This was followed by a communication dated 23 April 1973from the Minister
of State for Foreign Affairs, Government of Pakistan, to the Minister of
External Affairs, Government of India, in which he stated as follows:
"Dear ~ardar Swaran Singh,
By the time this reaches you, your Government will have seen the state-
ment that the Pakistan Government has issued in response to the lndian
Bangladesh Declaration on the question of repatriation of prisoners of war
and related matters. We should like you to know that in defining its
response the Government of Pakistan has been motivated by a sincere
resolve to see the obstacles to sub-continental reconciliation removed.
MYGovernment feels that the Government of India's statement opens
the rli)i~i61rc,umpiion of di.tloguc beiuccn our tus Go\crnments, uhich,
unforiun.Irely. ha$ remïincd su.pc.iJeJ for ,e\eral month,. \\le <onsider il
important that we resume discussions with your Government with a view
Io an cdrly retilenienr of ihc prisoncrr of \\ir quc,ii,in ro as ro bc able Io
iake i'uriher .tep, to implemenr the Sinil Agrniiieiit and pave ihc \vdy for
the normalization of the situation in the sub-continent.
Mv Government would be hannv to receivein lslamaba~-~~~e~r~sentative
of théGovernment of India to diicuss this matter. From our point of view
the period 28 April-3 May, both days inclusive, will be suitable. However,
if that should not be convenient forvour Government the Indian deleeation
would be equally welcome if it came at a later datilpreferably in thethird
week of May, when the President and 1will have returned from Iran.
With hest wishes." AROUMENT OF MR. BAKHTIAR 41
The response fromthe Minister for External Affairs, Government of India, was
received in a message on 9 May and 1 quote the relevant part of the message,
with regard to trials, which is as follows:
"Likewise. the contentionof Pakistan Governmenl in DaraaraD. 3 o-.ils
stafemeirf questioningthe competenceof the Governnzerrtof Bangla Des11to
brina to trial certain prisonersof war oncrime charzesis unacceptable. The
same is the case with the u~t~nable observation contained in .aran-.oh 7
of Pskistaii's stdtement iihout the I'dki\ini natiunsl\ in Bdngld Uesh, \iho
ha\e dc:lsrcd rheir allcnian~e 10 Pakist3n and 3rc Jeiirous of repdrriati<in.
We earnestlv h.oe. .~.refo~ ~ . that the Pakistan Government would
review their stand on joint Indo-Bangla Desh declaration which suggests a
practical way for simultaneous resolution of al1 humanitarian issues
emanated from the Decemher 1971 conflict. Obviouslv there cannot he a
solution which takes into account only those issues which interest Pakistan
and ignore the position of Bangla Desh and India." (Emphasis added.)
Now here it is important what he says:
"ln orrr view, talks con be pirrposefuland lead to quick resuitsif Pakistarr
Government wasto indicate their agreement irrprinciple to the solulion set
out iti paragraph 5 of thejoint declaration of 17 April 1973.The represen-
tatives of lndia and Pakistan can then work out the modalities for im-
olementine the solution.
1 shouldlike to add that 1 have consulted Dr. Kamal Hussain, Foreign
Minister of Bangla Desh and this letter represents the joint voice of India
and Bangla ~esh." (Emphasis added.)
This statement. .s ~ su~ ~ ~ ~ ~ ~ ~received on 9 Mav. wher.,n thev refused
to accept Pakistan's claim of exclusivejurisdiction and also statedthat Pakistan
should in orincideacceot the oackane deal that forced us on 11May to approach
this huno"r;ible Court àn~ iiie Jn ~ppli~atiun ia.~i1.1)~1iiir.r.
'1he <;o\crnnieiit of Indi:, ha, theref<ire ~lesrly denied ~li;irPaki\tiin hh,
exclu,i\r. iuri\di<ri<>nnith rca-rd IO iIic Ir131ai tlic IYSor any othrr numlxr <if
prisoners of uiir in que,ii<>nand h;i, sii.,ihed inipropcr ;.)nditii>ni. <onIrdry 1s
the C;enc\;i Conicnti~in*, uiih regard tu ihc repairidri<in ,iiI'akisi;iiii prisoners
of war. A dispute has, therefore, arisewhetween the Government of India and
the Government of Pakistan within the definition laid down hy the Permanent
Court of International Justice in the Mavrommatis Palestine Concessions case,
namelv "a disagreement on a ooint of law or fact, a conflict of leaal views or of
intereit betwee; two persons". It is this dispute which the Government of
Pakistan has found it necessary to refer to the International Court for decision.
On 2 July 1972Pakistan and India signed an agreement on hilateral relations
at Simla. which nrovides.~.inter alia. that the renresentatives of the two sides
will meet to discuss further the modalities for repatriation of prisoners of war
andcivilian internees. Since then, afteraconsiderable delay, India has withdrawn
her trooos from Pakistan territorv. However India has. till the oresent. refused
to discuss the modalities for repatriation of prisoners of war and civilian
internees, in accordance with the Geneva Conventions. Pakistan, however, in
accordance with her oblieati-ns under Article 118 of the Third Geneva Con-
\enlion, drcirled ir,elf IO esiablizh iind e.%ecuic.aithoui iuriher dela)., a plan ni
repairi~iion ,>fihe In.liaii prisoners of uiir being hcld in I'aki\iiin. AccorJingly,
as mentioned before. ~akistan returned 617 Indian orisoners of war on 1
December 1972. ~ndia, however, responded by only repatriating 550 prisoners
of war who had been captured in the fighting between Indian and Pakistani42 PAKlSTANl PRISONERS OF WAR
troops on the Western borders of Pakistan. The implementation of Article 118,
whicb had thus kgun. has been arbitrarilv halted bv India in relation to the
remaining prisoneriofkar, although this isclearly nit justified by the fact that
only about 195individuals may be accused of alleged acts of genocide or for
anv otber reason.
~he Court may also be pleased to note that the Geneva Convention has been
implemented by both sides with regard to the repatriation of the wounded and
the sick
The Government of Pakistan, therefore, submits that while granting interim
measures of protection in respect of those accused of genocide, the Court may
also be oleasëd to indicate that the imolementation of the Geneva conventions
should be soni,nucd. and should nor bc halisd mrrely becüusc oi the naiure of
ihe prcsent ilibpure, regarding the ei;.Auri\e righrs Io ehcr.'i\e juriidiction o\,cr
the 195indiviiludli in quesrion. 1uould IiheIO sirers thir the npplis3ilon of ihe
Gcnozide Conieniion Jocs nor narrant the holding of o\er 92,M)Opri,dnçrs oi
($31.2nd citlliitn interneci, \rhen ihere arc allegarions of gcno;idç dg.iin<ionly
a fewof tbem, or forobtaining political concessions. ~akistan, therefoÏe, submits
that it is necessary for the Court to spell this out while granting interim
measures of protection, so that the present dispute is not used to delay, or
defeat the right of repatriation of Pakistani prisoners of war, and civilian
internees now in India, keeping in mind the inhuman treatment to which they
have been constantly subjected.
Before finishing with the facts. Mr. President. 1would also like to draw the
attention of the Court to paragraph 10 of ~akistan's Application, in which we
have asserted that a "competent tribunal", within the meaning of Article VI
of the Genocide Convention. cannot be set uo in Bangla Desh. in view of the
extrsnie emoriun~lly rh.irged rituarion ihat p;e\ail. there. \+'chnw niride thii
i\\ertii>niiiihoiir prïjudi~e iu Our clsim Furchclu\i\e juriidicii<in. and wc aih
the Court to give the term "com~etent tribunal". in the content of the charges
of genocide, a somewhat wider cnterpretation than that of its literal meaning.
With respect to this aspect of the case, 1 would draw the attention of the
Court to the recent trials of the so-called collaborators held in Dacca and the
manner in which Sir Dingle Foot, the chief counsel for Dr. A. M. Malik, the
former Governor of East Pakistan and other eminent persons, was not allowed
to enter the citv after arrivinp at Dacca airoort. Each one of these versons was
çonvicted and sçnienced ri)sdtagc p~nishnients aiter summary proceejings fur
80-called compliziiy i\,ith ihe P3kiiirini forces in alleyeJ act, [ii genocide. Thit
a tribunal, comoetent in the sense 1am sueeestine. cannot be set uo. or function
-- -. ..
impartialiy, in ihese categories of cases, can be shown by reference to a recent
Reuter's report, about demonstrations by thousands of Bengalis outside the
jail in Dacca, demanding capital punishment for those detained there and
awaiting trial for CO-operatingwith the Pakistan army in 1971.
Mr. President, you can well imagine why the Government of Pakistan
apprehends that if trials were to be held in such circumstances in Bangla Desb,
the requirements of justice and impartiality will not be met. The trials will be
viewed in West Pakistan as merely a witch-hunt and could lead to a very
dangerous situation, We are anxious that such trials do not lead to anv reoer-
cussions in West Pakistan, adversely affecting the minority communit; of the
Bengalis. We do not want any further communal violence, and wish to make
every effort to avoid it.
1want to bring specially to the attention of the Court that the representative
and democratic Government of Pakistan of today stands for the principle of
accountability for any wrongs that may have been committed by Pakistani ARGUMENT OF MR. BAKHTIAR 43
nationals in East Pakistan. In the absence4 request the Court Io mark my
submission-of an international oenal tribunal aereed uoon between the oarties
and funstioning on ncutral terriiory. ihc ~oi,enkent of Pdkiitan has made it
clear that the princiolc of~ccountability will beupheld by us. In this connection
1 refer aeainto the statement of the~overnment of Pakistan issued on 20
April 1973,in which the Government policy has been clearly stated as follows:
"The Government of Pakistan reiterat'es its readiness Io constitute a
Judicial Tribunal, of such character and composition as will inspire inter-
national confidence, to try persons charged with the alleged actions."
1 now come Io the principles of law relating to the indication of interim
measures of protection and would endeavour to show that on the basis of these
principles the Court would bejustified in granting the interim measures prayed
for.
In brief, the jurisprudence of the Court has established:
(a) that an Order indicating interim measures would be justified where it is
apprehended that in the absence of such Order a party to the case might
take action of a nature that would render the final judgment of the Court
ineffective in whole or in oart: and
(b) that for the purppse of indicatin&.interim measures the Court is competent
to act except in a case in which the absence of the jurisdiction of the Court
to deal with the merits of the case is self-evident.
The first principle that 1propose to deal with is that governing theexercise of
jurisdiction by the Court in relation Io a request for indication of interim
measures of orotection. MI. President. we are aware that recentlv the Court has
had occasion, in relation to the requests for interim measures by the Govern-
ments of Australia and New Zealand, to hear very well-presented and detailed
expositions of the principles governing this matter. 1 shall, therefore, confine
myself to the principles which are immediate!~ relevant and shall try to be as
brief as possible.
1 refer first to the Order of the Court in the FisheriesJurisdicrion case
I U»iredKit~~ilu~ ~.iIi.rluiicmlinating froni the request of the Unitcd Kingdoni
for ihc indication <ifinterim niCasure<of protestion. In tliis case the Court has
summed UD the nrincioles aovernina-the i-risdiction of the Court in urantina -
interim miasures of p;otecjion in paragraphs 15 to 19of the Order. -
1would invite the attention of the Court to paragraph 15of the Order, which
is as follows:
"Whereas on a reauest for nrovisional measures the Court need not.
hefore indicating the& finally iatisfy itself that it has jurisdiction on the
merits of the case, yet it ought not to act under Article 41 of the Statute
if the absence of jurisdiction on the merits is manifest;"
1 shall attempt to interpret this proposition in the light of Article 41 of the
Statute. It is our submission that the grant of interim measures of protection
flowsfrom Article 41 of the Statute to which al1oarties have eiven their consent.
The Court's power to indicate interim measures;therefore, flowsfrom Article 41
itself which provides an independent consensual basis for the Court's juris-
diction. It may also be noted that paragraph 1of the Article provides as foljows:
"The Court shall have the oower to indicate. if it considers that circum
stances so require, any proviiional measures which ought to be taken to
preserve the respective rights of either party."44 PAKlSTANl PRISONERS OF WAR
Interim measures in terms of Article 41 are intended to preserve the respective
rishts of the parties, that is, rights under international law claimed by them.
This power of the Court has not been expressly made conditional upon the
existence of the jurisdiction of the Court. In Ourview, Article 41 of the Court's
Statute clearly states the position that so long as there are rights to be preserved
the Court may indicate interim measures. We contend that under Article 41
of ihe Sidtuic jnrerim nicasiires niay be indi;:iieJ iinecc>,ary. and ifthe urgcnc?.
exisis, mcrely i\iilirefcrcncc to the rights of ilie pdrtio and uirlioui regard to
the ei;i\ten~cof the iurisdi~tion oi ihe Court Hoirctcr, iie sl~ contcnJ rhat a
clearjurisdictional basis does in fact exist in this case for the purpose of enabling
the Court to grant interim measures.
The proposition that with regard ta interim measures of protection, the
Court's jurisdiction is governed principally by the terms of Article 41 of the
Statute was c:early stated by Sir Hersch Lauterpacht in the Interhandel case as
follows:
"In deciding whether it is competent to assume jurisdiction with regard
to a request made under Article 41 of the Statute the Court need not satisfy
itself-either proprio motu or in response to a Preliminary Objection-that
it iscompetent with regard ta the merits of the dispute. The Court has
stated on a number of occasions that an Order indicating. or refusing to
indicate, interim measures of protection is independent ofthe affirmaiion
of itsjurisdiction on the merits and that it does not prejudge the question
of. . .merits. ... Any contrary rule would not be in accordance with the
nature of the request for meaiures of interim protection and the factor
of urgency inherent in the procedure under Article 41 of the Statute."
(I.C.J. Reports 1957, p. 118.)
We therefore submit that the nrooosition set out in the first oart of oarag.aoh -.
15 of the Order in the ~isheries'cak is the governing rule, th& is, on a request
for provisional measures, the Court need not, before indicating them, finally
satisfv itself that it har iurisdicti~n o~ the ~eri~s of the case. Indeed. we would
go furtherand suggest ih~i ii would nor bc approprixie. in any :ir;um\iiinces.
fsr the Court iinally ii>deicrniinc wheiher il 11.1or 11tiiisiisiluriidi;tion on ille
merits of the case, at the stage of a request for indication of interim measures of
protection. Such a determination can only be made in relation to a preliminary
objection as to jurisdiction raised by a party and only after the necessary
D'ocedure under the Statute and Rules of Co~ ~ ~as~ ~en followed.
In parügraph 15 of ihc Order in ihc I.(slz,~ri~~dss, it tiüs alio siaicJ that:
". ..the Court. . .oughi net ru ICI unJer ArriLlt41 uf ihe Stat~te ilthe absence
oijurisdiction on the nicriis is manilesi." \\'e aould rrpcctiiilly zubmit ihiit the
absence of ~urirdiciion on tlic mcriii is nt:in~ieri i\ithin the mwning of ihit
exprcsrisn, as uscd in parngraph 15 of the Order in ihe I~i~lr~~r ciïc,r only
ivlicn ihc peiiiioner irunahlç iciciiça h~bi\for the iurisdiiiion oithe Co~ri and
invites the other party to submit to the jurisdiction of the Court and that party
is not willing to do sa, as was the position in the Aerial Incident cases. If, on the
other hand, one of the narties asserts that the Court has iurisdiction, and cites a
prima facie basis for it,'whilethe other party disputes thh, then clearly there is a
controversy about jurisdiction and the Court would not then hold that the
absence ofiurisdiction is manifest without making a final decision with respect
to its jurisdiction. But this would be a decision ihich, in accordance withthe
Statute and.Rules of Court, cannot be made at this stage without taking into
consideration written and oral oleadinns. It would seriously preiudice the appli-
cant's position if he were denied interim relief onthe ground ihai the ~ourt,by a ARGUMENT OFMR.BAKHTlAR 45
purely summary view, had come to the conclusion that it would probably hold
later on that it was no1entitled to exercisejurisdiction.
Under Article 41, the Court has not only power to indicate interim measures
when thev are considered necessarvbut it must do so. if the circumstances so
require, for the purpose of preserviig the respectiverights of the parties pending
final determination of the case.A Party may re~uest~interim measuresin a grave
and urgent situation involving, as in the present case, the life and liberty of a
large number of persons, and where denial of indication of interim measures
may cause irreparable loss of a grave nature involving such human life and
libertv. which could never be made uo or com~ensated for. Moreover 10
Jeiermine that Idik ofjurisdiciion is rn3nife5i nia). silmeiimes ini~ol~~ee~hsusii~e
argument. \Vhai mliy he manifest t<ione m.iy no1 beapparent to another. Lord
Samuel. in his book Bf~liufn~rAdcrin~r.referred IO the orîdmhle sf the American
~eclaration of lndependence which siates that:
"We hold these truths to he self-evident that al1men are created equal,
that they areendowed by their Creator with certain inalienahle Rights, that
among these are life, liberty and pursuit of happiness."
He went on to say that a truth is not self-evident unless it is such that no sane
man will deny it. At the very time that the Declaration of Independence
oroclaimed the inalienable riehts of al1 men Io libertv. negro slaverv was a
.. -
iegalized institution in the ~nyted States and remained sa for nearly acentury
afterwards. Therefore, 1suhmit, Mr. President, that when the Court statesthat
the lack of iurisdiction shall be manifest. it obviouslv means "self-evident" in
the wn,c ~orJ Samuel has use3 iland mknr lliai it~hould bc solipp~rcni ihai
ncisnnem:iri riiII deny ilAhbenceofjuriidi;tion. tliercfor~. cannguhc siiid Io be
manifest where a decision can only be reached after careful consideration, close
examination and exhaustive arguments.
Without finally satisfying itself as to its jurisdiction, how can the Court-and
1 resoectfullv ask the Court to consider this submission-without finally
saiisfying it5elf ai ti)il> juri\Jiciion. Jecliirc31 the stage of graniinp interim
measuresthal ihc Iack ~C~uri~iJ~ction is ma~liferl. If the Csurt s(iholds ihen il
i\,(iuld mcan thai ith3s Iinlillv satirfied itself. \\,hi,\urelv not u ha1the Court
intended to indicate in parairaph 15 of theorder in the ~isheries case.
Coming to Our own case, the jurisdiction of the Court is clearly founded on
the basis of a provision in the multilateral convention in force between India
and Pakistan. This is Article IX of the Genocide Convention, which provides as
follows:
"Disputes between the Contracting Parties relating Io the interpretation,
aoolication or fulfilment of the present Convention includinr those relating
10-the responsihility of a ~tak for Genocide or any ofthe other acts
enumerated in Article III shall be suhmitted to the International Court of
Justice at the request of any of the parties to the dispute."
However, the Government of lndia in a letter addressedIo the Registrar of the
Court dated 23 May 1973', has stated as follows:
"Upon instructions received from the Government of India, 1 have the
honour to communicate to you as follows:
.The Government of lndia have received your telegrams of May 11, 13 and 14, 1973,respectively.They have also received on May 16, 1973,your
airmail letter No. 54249of May 11, 1973,along with its enclosures, which
include a certifiedcopy each of the Application filedby Pakistan instituting
oroceedinns azainst India. entitled 'Trialof Pakisrani Prisoners of War
ilurisdiction under theeno oc id on vent io nPakistan versus 1ndid)'and
of the Request for the indiclttion of intcrim meïsures of protection.
The Government of India have ~erusedthe A~~licationand the Reauest.
Pakistan has attempted to seize the Court by invoking Article IX of the
Genocide Convention, 'inaccordance with which', it is stated in the Appli-
cation, 'dispute between contracting parties relating to the interpretation,
annlication or fulfilment of the Convention. shall-be suhmitted to the
niern nati Court of Justice at the request of any of the parties to the
disDute'.It is further stated in the Application that 'the Court hasjurisdic-
tioh under Article 36 (1) of its statute'.
The Court would, no douht, be aware that while filing its Instrument of
Ratification on 27 August, 1959, to the Convention on the Prevention
and Punishment of Crimes of Genocide, 1948, the Government of India
entered a reservation on Article IX of the Convention, which reads as
follows:
'With referenceto ArticleIX of the Convention. theGovernment of India
declarc thjt.for thesuhmi\iion cifany dispute in lerms ofthis Article to the
jurisdiction of Internîtional CourOC Justice. the consent of a11the parties
to the dispute is required in each case."'
Then it further says:
"The Government of India accordingly presume rhat the Application
and the Reauest \rere comniunicîted IO them for tht'ir consideration
whether consent should be e-ven bv them in terms of Article 1X of the
p en oc iCeonvention.
The Government of lndia regrets that they cannot giveconsent, in terms
of their aforementioned reservation to Article IX of the Genocide Conven-
tion, to Pakistan for raising the alleged subject-matter before the Inter-
national Court of Justice under that Article.
Without such consent, the Court cannot be in proper seisin of the case
and cannot proceed with it.
It may be further stated that there is no legal basis whatsoever for the
jurisdiction of the Court. Accordingly, with the highest respect for the
President of the Honourahle Court, it is submitted that Pakistan's Applica-
tion and Request are without legal eiiect.
(Signed) YADAVINDRAS~N~H.''
\\le ha\e alre3Jy made a coniniunicîtion to the Court in reply to Indiü's said
leiter rcf~ting her contcntionr for reïron\ hriçny set out therein'. I ui,uld now
reipe~.tfullydriiw the attention of the Court to Article 40 of thc Court's Statute
which dc~lswith the institution ofproceedings. shichisthegu\erningpro\isii)n
inthis iiiatter, and which does no1 makeilohligstory to indicate the grounds
on \ihich the Court's jur~sdictioisfoundcd. Article 40 states as follous:
"Cases are brought before the Court, as the case may be, either by the
notification of the special agreement or hy a writteo application addressed
' Seep. 118, infra. ARGUMENT Of MR. BAKHTIAR 47
to the Registrar. In either case the suhject of the dispute and the parties
shall be indicated."
Equally Article 35, paragraph 2, of the revised Rules of Court, which has been
framed to carry out the purposes of Article 40, only States that the parties in-
stituting proceedings shall "as far as possible" specify the provision on which
the applicant founds the jurisdiction of the Court. Keeping in view the Statute
and Rules of Court, the Government of Pakistan, in its Application, merely
referred to the main provision on which the jurisdiction of the Court could he
founded, that is,ArticleIX of theGenocide Convention, which has already been
quoted. It is clear that prima facie the Court's jurisdictioncan he founded under
this Article at the request of any of the parties to a dispute.
The Government of Pakistan wishes to place on record that it regards as
re.rettable in the extreme that the Government of India has sought to exclude
the jurisdictia>noftheCourt in re,pect oii multilarcr~l.wn\entii)n ofsurh major
humanitariari importincc, \$lien the Internationdl C~urt had heen made the
only gu'irantor and supervisory body rcg'irding the Con\cntion's intcrpreiatii)n.
iipplicatiun and fulfilrncnt. The Guvernment of India purportcd iu rely on ils
decliiration of 27 Augu.1 1959,a.liich I >@in read:
"With referenre to Article IX oi the Comeniion the Go\crnmcnt of
Indu dcrlarc thai, for the jubmission oiïny dispute iiiternis ofthis Article
to the iurisdiction of the International CO& of Justice. the consent of al1
parties to the dispute is required in each case."
As already stated in our communication we assert that the Indian declaration,
referred to above. is inadmissible under the Genocide Convention and is of no
~u~~~~~~-~~ ~ ~ ~~- ~ ~
I nnuld suhmlt thiithe mcreeuiircnxof adeclüration of the ndture made hy
India. which i ha\c auotcd cannot render the ~b\ense OCjurtsdicliun of the
court manifest, since ihe Court has prima faciejurisdiction by virtue of Article
IX of the Genocide Convention. Reliance hy India on a declaration which
purports to exclude the jurisdiction of the Court, would result in a dispute
reeardine the validitv of the declaration itself. This would raise an extremelv
iniportani issucof princ:ple ihich isould fiillto bccxüniincd hy the Court inJur
course, in 3;iaird3nce wiih the praivihions or the Sriiute and Rules rcgarding
oreliminarv. .iections with resvect to iurisdiction. and cannot he dealt with
sumnisrily. 1may 3iso subniit that this iv.1~preci\ely the course adopteil hy the
Court in ihc Fisl,r~rh.cajc This 13aniply clcar froni paragraph5 Ihto 19 oi the
Court's Order which 1now read:
"16. Whereas the penultimate paragraph of the Exchange of Notes
between the Governments of Iceland and of the United Kingdom dated
11 March 1961 reads as follows:
'TheIcelandic Government willcontinue to work for the implementation
of the Althine Resolution of Mav 5. 1959. reeardine the extension of
fisheriesjurisdiction around ce lan hd", shali give to the United Kingdom
Government six months' notice of such extension and, in case of a dispute
in relation to such extension, the matter shall, at the request of either Party,
be referred to the International Court of Justice';
17. Whereas the ahove-cited provision in an instrument emanating from
both Parties to thedispute appears, prima facie, to afford a possible basis
on which the jurisdiction of the Court might be founded;
18. Whereas the complaint outlined in the United Kingdom Application48 PAK~STANI PRISONERS OF WAR
is that the Government of Iceland has announced its intention, as from
1September 1972,to extend unilaterally its exclusivejurisdiction in respect
of the fisheries around Iceland to a distance of 50 nautical miles from the
baselines mentioned in the 1961 Exchange of Notes; and whereas on 14
July 1972 the Government of Iceland issued Regulations to that effect;
19. Whereas the contention of the Government of Iceland, in its letter
of 29 May 1972, that the above-quoted clause contained in the Exchange
of Notes of 11 March has been terminated, will fall to he examined hy the
Court in due course; .. ."
Keeping in \,ieu the principlei adopted hy ihc Couii n.hile niahing [hi.;Ordrr,
a$ ici oui in the pdragrnph5 ihat I Iiaie~usi quoteJ, I \i.~iulrlre$pc.'ifullysubmii
that. :isin ihc Fi,l~t~ri<~rcaAer.iiclc I~iftheGenocidcCon\ention isa pri>vi\ion
in an instrument, emanating from hoth parties to the dispute, and which appears
prima facie to afford not only a possible but a clear basis on which the jurisdic-
tion of the Court might he founded. As the Goverriment of India purports to
exclude the jurisdiction, as in the Fisjeries Jzillirisdictiocnase, this matter will fall
Io be examined by the Court in due course.
The Court may also kindly refer to the precedent in the Anglo-lranian Oil
Companycase, interim measures, where the Iranian Government had raised an
objection regarding the jurisdiction of the Court. The Court, however, did no1
at thît stage go into the objections of the Iranian Government as to its juris-
diction, and while making the order for interim measures noted as follows:
"Whereas the indication of such measures in no way prejudges the
question of the jurisdiction of the Court to deal with the merits of the case
and leaves unaffected the right of the Respondent to suhmit arguments
against such jurisdiction" (I.C.J. Reports 1951, P. 93).
Similarlv. in the Interkande[case. the Court declined to a~~lvthe Dreliminarv
jurisdictionprocedure priscribed i'nArticle 62 of the ~ules'ti proceedings foi
interim measures, governed hy Article 61 of the old Rules, and asserted its
jurisdiction to examine the request for interim measures on the hasis of the
finding that the subject of the dispute fell within Article 36, paragraph 2, of the
Statute, regardless at that stage of any reservations. (I.C.J. Reports 1957,
...110-111.)
In the lighi oFiheir precedenri \ie rc~pcctfiill) suhniit ihsi ihc prolier courie.
in thesir;urnil~iiie~ of the preienr cÿssi.sfor ihr Court Io hold ihai ilwre i, nu
jurisdictional issue thatcan prevent it from granting interim measures, and that
any such issue is a matter to be taken up at the appropriate time and in the
appropriate manner.
Before referring to the other principles governing the grant of interim
measures by the Court, 1 would like brieflyto touch upon the jurisdiction of the
Court on the merits of the case. 1 do this not with the intention of trying to
establish before the Court that it does have iurisdiction, for this isnot theDraper
,rage ior thal, bu1rnerely to in<liate thii ihere i, niore ttt.in onbûsis on \\hich
ihc )urisdirtioii cûn hc esr~bli\hed, and thdi nor only is thcrc cicry possibiliiy
ihûi rhe Court will have jurisdiction on nicriis but thar prima fdcie ihiijiiris-
Jiciian clrarly e~isis. Ai the sanie iime. iiii only the porribiliiy oi excrciing
juri,J~ction on nierii ihïi 1sreletÿnr trhilc the Cuuri ci~ni;dcrsn requesi for the
indication of interim measures.
1 shall now say a few words about Pakistan's right to challenge the admis-
sibility of India's declaration in respect of the Genocide Convention made on
27 August 1959, which 1 have already quoted. In this respect 1would like to ARGUMENT O MR. BAKHTIAR 49
submit that the hd\irory Opinion oi 1951oiihe Internûtion;il Court rcgard~np
Kt,~<~r>uriun , th?G.~~iociilC~u,zi<viriotrkcpi spfn th?qiicsrion of ihc admi\,i-
hiliry of rewri,atii>n., ai ~Isoihcir Ikgslcffc~r.At the ouiset of ils Opinion. ihc
Court disiussed ihen;iiureoiihequeitioii rcfcrrcJ loiibyihcGcner;il Asscnibl)
of the Unircd Nation,. Thc obscrrüiioni uf ihc Coiirr in thi, rc,pcct are \igniii-
cant and are stated on page 21 of the Court's Opinion as follows:
"The three questions are purely abstract in character. They refer neither
to the reservations which have, in fact, been made to the Convention by
certain States, nor to the objections which have been made to such
reservations by other States. They do not even refer 10 the reservations
whichmay infuture be made in respectof anyparticular article; nor do they
refer to the objections to which these reservations might give rise.
Question 1is framed in the following terms:
'Can the reservine State be reearded as beine. a oartv to the Convention
iihile rit11n1;iini;iiniiigiis rcscr~;tiiifihc rcscr\Xiion is <ih~c~.ir.d3 hy
one or niore of the p~riies of ihc <'i>n\cniii>nbut nitr by ,iihcrr?'
TheCourt observesthar thisqaestiorirefers, no110thepossibility of making
reservationsto the Genocide Convention,biif solelv to the auestioriwhether
a contractingStare whicnhasmade a reservationcan, whilesri11maintaining
if, beregardedas beingaparfy to the Convention, when there isa divergence
of viewshetween the contracting parties concerning this reservation, some
accepting the reservation, others refusing to accept it." (Emphasis added.)
Thus from this it is clear that the reference to the Court did not relate to the
admissibility of any particular reservation or even the possibility of making
reservations to the eno oc i d envention
\Vhilcconiidcringq.iestion I rcicrrcdIO ilihc Court al.;(>made the fdlloning
oh,ervati<in u,hich\h<~n\ihar I'aki.ixn cm q~ç\iion the adniisribility .Ir ialiJiiy
of anv declaration in resnect of the Genocide Convention. At page 22,~th-
court's Opinion reads: -
"In this state of international practice, it could. ..not be inferred from
the absence of an article providing for reservations in a multilateral con-
vention that the contracting States are prohibited from making certain
reservations. Account should also be taken of the fact that the absence of
such an article or even the decision not to insert such an article can he
explained by the desire not to invite a multiplicity of reservations. The
character of a multilateralconvention, its purpose, .. .mode of preparation
and adoption, are factors which mus1be considered in determining, in Fhe
absence of any express provision on the subject, the possibility of making
reservations, as well as their validityand effect."(Emphasis added.)
From this it is clear, that in the terms of what is implied by the Treaty the
question of the possibility of making reservations, as well as their validity, can
be raised. It is also clear from the Opinion of the Court that not al1reservations
are admissible. On page 24 of its Opinion the Court States:
"The object and purpose of the Convention thus limit both the freedom
of making reservations and that of objecting Io them.
.................................
It has neverthelessbeenaraued that any State entitled to becomea party
to the Genocide ~onvenrionmay do si while making any reservarion il
choosesby virtue of ils sovereignfyThe Court cannot share this view. It is ohvious that so extreme an application of the idea of State sovereignty
could lead to a complete disregard of the ohject and purpose of the
Convention." (Emphasis added.)
That such reservations or de;larations can be questioncd beiorc the Inter-
national Court 15cleiir from what is stated on page 27 i)fthe Opinion:
"II may be that the divergence of views between parties as to the ad-
missihility of a reservation will not in fact have anv conseauences. On the
othcr hand, itniay be that certain parties who zonsider that ;hc assînt given
hy other parrie, ru a rrservation is incumpatible nith the purpoce of the
Convention, will decide to adoot a oosition on the iurisdictional olane in
respect of this divergence and & setile the dispute &hich thus arises either
hy special agreement or [and this is important] by the procedure laid down
in Article IX of the Convention."(Emphasis added.)
This las1 statement is, 1 suhmit, of the greatest importance-for if the test
of the validity of any reservation is to he. in the last resort. recourse to adiudica-
tion, under Article ÏX, then this clearly ikplies, and mus1entail, that no riserva-
tion can validly he made to Article IX itself, or, if made, must be held abortive.
Otherwise, the test which the Court clearly contemplated as the ultimate
safeguard would be destroyed, and the statement as made on this point
ohviously assumes that Article IX will always remain fully operative and
availahle. This is very much in line with the reasoning of the Court in 1962, in
the jurisdictional phase of the South West Africa cases, as respects the super-
visory functions of the Court in regard to mandated territories.
To this 1 may add that Article 19 of the Vienna Convention on the Law of
Treaties 1969, which to a large extent codifies general international law,
provides as follows:
"A State may, when signing, ratifying, accepting, approving or acceding
to a treaty, formulate a reservation unless:
(a) The reservation is prohihited hy the treaty;
IbJ The treatv ~rovides that onlv soe,ifi.d reservations. which do nnt ~~-~
includc the ~eser\ation in question, m3y bemade; or'
(c) In c;isesno1 falling under suhpùragraphs ((1, and (h,. the rescrvaiion
i5 incomp~tiblc nith the obje~r and purpose si the tre3ry."
It therefore follows that a reservation cannot he made if that particular type of
reservation was expressly or impliedly intended to he excluded hy the treaty
itself.
Pakistan asserts that theGenocideConvention impliedly prohibits the making
of a reservation or declaration in resoect of Article IX ouroortine to exclude the
jurisdiction of the Court in the teAs in which it is set Out in YhatArticle. In
the case of a convention having the character of the Genocide Convention,
Article IX must rank as a fundamental orovision on which the verv future and ~ ~ ~ ~ ~
fulfilment of the Convention depends. It states that disputes hetwéenthe con-
tracting parties with respect to the following matters shall he suhmitted to the
International Court of Justice, at the requesi of any other party to the dispute:
(i) interpretation;
(ii) aoolication:
(hi) fiifilment; '
(iv) the responsibility of a State for genocide or any of theotheracts enumerated
in Article III. ARGUMENT OF MR. BAKHTlAR 51
Thus both as regards the fulfilment of the Convention, and the responsibility
for-~en~ ~de.the International Court of Justicehas beenrendereda com~ulsorv
supervisory body which can be moved by any party without having toobtain
the consent of the other. This clearly excludes any liberty on the part of one
State to defeat the entire supervisory jurisdiction of the Court by declaring in
advance that this is dependent upon its consent to be obtained in each case. If
this could be done contracting parties would become the final judges as to the
int~7or~tati~n and a~..ication as well as the fulfilment of the Coiivention. and
iould casily a\.uid 3 finding with refard tu rripdnsibiliiv for gcnoctdc. This
cannot hate hccn the intention oi the partie.. tu the Conrentiun. for rights aiid
obligation., under the Genocidc Con\cntion could clearly be renrlerçrl illuiors
in the abscnccof a conipulsory prcicedurc for itsintcrpreiation. application and
fulfilment Ilence a dcclaration of the nature made hy India. cxcluding the
compul5ory pr<icrdure for ihe jurisdiction of the Court, i\ impliedly prohibitrd
by the Genocidç Convention and i:.without an) force.
The Court may also be pleased to note that there are many international
treaties providing for the compulsory jurisdiction of the International Court,
such as the International Civil Aviation Convention of 1944and the Vienna
Convention on the Law of Treaties in re:ation to certain important articles of
that Convention. If, therefore, declarations of this nature are held toexclude the
compulsoryjurisdiction of the International Court this would render impossible
the iudicial settlement of dis~utes. Such declarations must, therefore, be
rega;ded as prohibited by the multilateral treaty in question and hencewithout
any legal efïect whatsoever unless, of course, the Convention specifically
permits the making of such reservations.
Mr. President, Pakistan will also, if necessary,contend that the Court has
jurisdiction under Article 17 of the General Act for the Pacific Settlement of
Disputes, done at Geneva on 26 September 1928,read with Article 36 (1) and
Article 37 of the Statute of the Court. Article 17 of the General Act reads as
follows:
"All disputes with regard to which the parties are in conflict as to their
respective rights shall, subject to any reservations which may be made
under Article 39. be submitted for decision Io the Permanent Court of
International Justice, unless the parties agree, in the manner hereinafter
provided, to have resort Io any arbitral tribunal.
It is understood that the disputes referred Io above include in particular
those mentioned in Articlc 36 of the Statute of the Permanent Court of
International Justice."
A reading of this and other relevant provisions of the Act will indicate that the
jurisdiction of the Court can be founded by virtueof the obligations undertaken
by theGovernment of lndia under the Convention. Pakistan, for her part, daims
succession to this multilateral treaty by virtue of the Indian lndependence
(International Arrangements) Order 1947:
"The Indian Independence (International Arrangements)
Order 1947.
Whereasthe agreement set out in the Schedule to this Order has been
reached at a meeting of the Partition Coiincil on the 6th day of August
1947;
And Whereosit is intended that, as frorn the 15th day of August, 1947
the said agreement shall havethe force and eiïcct of an agreement between
the orn ni nio ofnsndia and Pakistan:52 PAKlSTANlPRISONER Sf WAR
Now therefore in exerciseof the nowers conferred unnn him bv Section 9
of the Indian lndekndence Act. 1947and of ail o~her'~ouersei~bling him
in that behalf. the Co\,ernor-Cieneral hereby orderr ai fol10x.i:
1. This Order mav be cited as the lndia" Indeoendence (International
Arrangements) 0rd& 1947.
2. The agreement set out in the Schedule to this Order shall, asfrom the
appointed day, [15 August 19471have the effect of an agreement duly
made between the Dominion of lndia and the Dominion of Pakistan."
Now the Agreement is as follows:
"Agreement as to the Devolution of International Rights and Obligations
upon the Dominions of lndia and Pakistan
1. The International rights and obligations to which India is entitled
and subject immediately before the 15th day of August, 1947, will devolve
in accordance with the provisions of this agieement.
2 (1). Membership of al1 international organisations together with the
rights and obligations attaching to such membership, will devolve solely
upon the Dominion of India."
1 will read this again:
"Membership of al1international organisations together with the rights
and obligations attaching to such membership, will devolve solely upon
the Dominion of India.
For the purposes of this paragraph any rights or obligations arising
under the FinalAct of the United NationsMonetarv and Financial Confer-
ence will be deemed to be rights and obligations aitached to membership
of the International Monetary Fund and to membership of the Interna-
tional Bank for ~econ~ ~u~tion and Develooment~.
(2) The Dominion of Pakistan will take such steps as may benecessary
to a~ ~y~for membershin of such international organisations as it chooses
to ioin.
3 (1j. Kights and obliç2iions under intern3tion:tl agreements hxi,ing an
exclusive territurial applicïtion to an are3 comlirised in the Diminion of
India will devolve un~r-hat Dominion.
(2) ~i~hts und obligations under International Agreements habing an,
CXCIU~I\,tCerritorial a~~lication to an arca comnrised in the Dominion 01
Pakistan will dev01vè;~on that Dominion."
Now, Mr. President, this is the fast provision which is relevant in Our case:
"(4) Subject to Articles 2 and 3 of this agreement, rights and obligations
under al1 international aereements to which lndia is a nartv immediatelv
before the appointed da; will devolve both upon the ~ominion of 1ndk
and upon theDominion of Pakistan, and will, if necessary,be apportioned
between the two Dominions.
MOUNTBATTEN OF BURMA,
Goverilor-Cenerai."
With regard to the succession of treaties in respect of India and Pakistan,
Professor D. P. O'Connell, who holds the Chair of Public International Law
at Oxford University, in hisleading work on Tlie Slate Siiccessio~iin Inlertiatio~tal
and MunicipalLaw (Vol. II, pp. 128and 129), states as follows:
"The actual treaties listed were included in Volume II, Annexure V, of
the partition Proceedings of 1947, and they were apportioned between ARGUMENT OF MR. BAKHTIAR 53
lndia and Pakistan pursuant to the lndian Independence (International
Arrangements) Order, 1947,which among other things provided that lndia
was tobe the only one of the two Dominions to remaina member of inter-
national organizations. The same Order, however, made provisions for
the apportionment of other treaty rights and obligations between the two
Dominions. Those having an exclusive territorial application ta an area
comprising the Dominion of India were to devolve on it alone, while
Pakistan was Io inherit those having a similar application to its territory.
Treaties not havinr! such an exclusive territorial aoolicaiion~wcre~ ~ ~evolve
'both iipon the ~ominion of India and upon the Dominion of Pakistan,
and would, if necessary, beapportioned between them'. The effect of this
latterprovision wasIo makeeach ofthe Dominions a party to those treaties
which had no1a localized operation, and the obligations of which could be
severally discharged.
.................................
P~kisiïn'r oan altitude IO the pritblcin hasncier hcen~l;irificd. Clenerally
rhe \ccnis dispdred ii)claim ïutomatic inhcr113nceof ircïties. and imme-
diately after partition claimed to be a party ta the Conventions relating IO
Obscene Publicationsand the Traffic in Wornen and Children in virtue of
the signature of British India. The Secretary-General notified signatory
States of this claim, and havinc received no comments assumed that there
were no objections to it. In thécase of Conventions such as the Chicago
Convention, in which membership of organizations is involved, Pakistan
acted in response Io the decision of the United Nations on membership and
filed accessiccs."
Mr. President, Pakistan's attitude is to follow faithfully the lndian Inde-
pendence (International Arrangements) Order in so far as multilateral conven-
tions are concerned and to consider, in accordance with Article IV of the
Schedule to that Agreement which 1 havejus1 quoted Io the Court, that rights
and obligations under al1 multilateral agreements to which lndia was a party
immediately before partition devolve bath on India and Pakistan. It is. therefore.
Our case, ~r. President, that the General Act for the Pacific ~eklement of
International Disputes of 1928 is binding between lndia and Pakistan and,
conseauentlv. that there isa ~ossiblefoundation for the iurisdiction of the Court
on the basir oiihii insirunient also. II 1s[ru< thai InLiid, purporting io ;ici undcr
Ariicle 3')of ihc Gcnersl Aci. ha\ m~dc rcscr\ïlion. in re,pcci of her ohligïtii~n
undcr Article 172nd the Ci)urt \iIII nti Jtiuhiiriili is sonsider ihe eirecis ol'ihç$e
reservations during the jurisdictional phase of the case, when Pakistan will be
ready Io present full argument concerning them. In Our view these reservations
do no1 affect the present case. but at this stage Our contention is. sim.v. t..t
Aritcle 17oi the 6eiicral Act. ïs ucll as,\rti.% IX of ihc Cieno.-ideCon\ention
constiiuic, io u,e ihe Ianguïge of the Court's Icr'landic inierim measurcsOrdçr.
a 'provision in an instrument emanatinr! from both parties which amears.
prima facie, to afford a possible basis O; which the ju'risdiction of thé couri
might be founded. We shall, therefore, leave il to the Court to indicate whether
il wishes to hear any further arguments on the General Act during the present
interim measures proceedings.
Mr. President, since Pakistan also relies on Article 17 of the General Act in
order Io found the jurisdiction of the Court, as Article 41 of the General Act
specifically provides that any dispute concerning interpretation or application54 PAKlSTANl PRISONERS OF WAR
of the Act shall equally be submitted ta the International Court of Justice, we
also submit that Article 33 of that Convention is applicable. This provides as
follows :
"In al1cases where a dispute forms the object of arbitration or judicial
oroceedinas. and oarticularlv the auestion on which the oarties differ arises
but of 3c1( alreüdy cummiÏted O; on the point of king committed, the
I'ermiiiientCourt of International Ju>ti;e, acting in accordance\\ith Article
41 of ir, Sidrute, or the Arhirral Tribunal, rhüll Iay dinvn ivithin the
>horiest pos,ible rime thc pro\ isional meùiurer to k dopied. The partics
to thc dispute hall be bound io accept ruch melisures.
If the dispute 15 brouxlit kiore a Coii;ilidtion Commission. the Iütrer
m3y reconimend to the iürties the adopticin of such provisional measures
as itconsiJçrs suitable.
The oarties undertake to abstain from al1 measures likelv to react
prejudt&~ll) upon the execution of thejudi:iül or arbitral dç~isionor upon
tlicarrangement~ proposcd byrhcCon:iliariunConimisrion and, ingeneral,
ta abstain from any sort of action whatsoever which may aggravate or
extend the dispute."
We draw special attention to the words:
". ..the Permanent ~burt of International Justice acting in accordance
with Article 41 of its Statute or the Arbitral Tribunal shall lay down
within the shortest possible time the provisional measures to be adopted.
The parties to the dispute shal1.k bound to accept such measures."
MI. President, here 1 should have mentioned also that, apart from relying
on the law of State succession in order to show that Pakistan is a paRy to the
General Act for the Pacific Settlement of International Disputes of 1928,
Pakistan also relies, independently of this, on the fact that that Indian In-
dependence (International Arrangements) Order 1947sets out, in the schedule
of that Order. an aereement dulv made b@tweenIndia and Pakistan. The
Treaty isentitléd"~greement as to the Devolution of International Rights and
Obligations upon the Dominions of India and Pakistan" and paragraph 4 of
this ~meement between India and Pakistan orovidesxas follows-as 1 have
alread; quoted:
"Subject to Articles 2 and 3 of this Agreement, rights and obligations
under al1 international agreements ta whish lndia is a party immediately
before the appointed day will de\olve hoth upon the Dominion uf lndia
and upon the Dominion of Pakistan, and will, if necessary, be apportioned
hctueen the ti\o dominions.''
In view of the obligation under this agreement the General Act of 1928,which
is amultilateral treatv. hecame bindina both on India and Pakistan, irresoective
and independently of any rule of gineral international law regardin; State
succession. Moreover, MI. President, wesubmit that by virtue of this agreement
India is estoooed from denvi.e -he aoo. .abilitv of the General Act as between
India and ~akistan.
As 1 have already submitted, the Court could also act under the power con-
ferred under this General Act for interim measures of orotection.
While dealing with the possibility of the Court exercising jurisdiction on
merits, 1would also submit that botb the Government of India and the Govern-
ment of Pakistan have made ootional clause declarations and the iurisdiction
of the Court could also be founded on the basis of those declarations without ARGUMENT Of MR. BAKHTlAR 55
regard, at this stage, to any reservation made by either Party. I again refer here
to the precedent in the Interhandel case.where the Court asserted its jurisdic-
tion to examine the request for interim measures under Article 61 of the old
Rules of Court on the basis of the finding that the dispute fell prima facie
within Article 36, paragraph 2, of the Statute regardless, at that stage, of any
reservations.
Mr. President after this I have to make some comments on the letter which
the Government of India bas sent to the Registrar and as the Court is aware,
before we came to the Court another letter had been sent.If you will permit me
1 will commence and deal with this part of the letter which we have already
received-1 have not read the other letter yet-tomorrow morning, because
there is very little time now left to conclude this subject of dealing with India's
letter and objections.
The Court rosear 17.50 p.m. SECOND PUBLIC SITTING (5 VI 73, 10.30am.)
Presenl: [Seesitting of4 VI 73.1
Mr. BAKHTIAR: May it pleasethe Court, just before 1addressed the Court
yesterday, a further communication, bearing yesterday's date, was received
from the Government of lndia addressed to the Renistrar of the Court. which
hüs no rloubi ken disiributed Io the hlcmherq of iic Court1.
Whût 1said io ihc Court yesicrd;is. and \ihai I shûll hace tu va).to the Couri
today in continuation of my address, was of course prepared before the receipt
of this latest Indian communication. In point of fact, what 1have and will say,
touches on a number of points raised in tbat last communication, and I shall
also comment on the previous Indian communication dated 28 Mayz. 1 have
already made some brief comments on their previous letter of 23 May 19733;
but obviously, in the time available, it bas not been possible to prepare any
specific reply to this latest communication-the one dated 4 June-and 1 feel
sure that the Court would not expect me to make one at this stage.
1 would go further and submit that Pakistan is not bound to do so in these
present proceedings. These various Indian communications, taken together,
amount to a full Memorial, not on the question of interim measures, but on the
substance of the Court's jurisdiction to consider and pronounce upon the
ultimate merits of the case-a matter which cannot arise at this stage so
long as the Court is satisfied that a possible basis for its eventual jurisdiction
exists.
In our view the course being followed by India amounts to an abuse of the
process of the Court. India, while declining to appear and professing ta
disregard these proceedings is, in fact, arguing her case virtually as fully as if
she were aowarine. bv means of a series of communications which the Court
cannot weli=void;&éiving, or looking at, although they should strictly. in the
circumstances, be regarded as out of order and irreceivable. Nor can we be in
any way sure that the latest lndian communication of 4 June will be the end of
the matter.
When 1 have completed my present address, there will be nothing to prevent
India sendinr! in a further communication. commentine on it: and if Pakistan
then asks thc~ouri for an opponunity torenly t<iil,and this irscrorded. an
Indiiin rejoindcr tih~t cm bccupectcd. Such a proce$scould go on indefiniicly
if the Court allowed it. and it is one which enables lndia to reao almost al1the
advantages of king a Party to the proceedings, while simultan~ously reserving
the right not to recognize them.
Moreover. it is a orocess which seriouslv handicaos Pakistan in the oresenta-
tion of her case. lnstead of being able to deal in a straightfonvard wa; with the
issue of interim measures as such, Pakistan has been side-tracked into a number
of hieblv comolex issues of iurisdiction which do not reallv arise now. and should
be goni into it a later stage; and, even so, Pakistan bai not been able to deal
with tbese jurisdictional questions on the basis of, and by way of answer to, a
completed Indian mernorial or oral statement, which Pakistan would have
' See pp. 139. infra.
See pp. 121,infra.
See pp. 117, infra. ARGUMENT OF MR. BAKHTIAR 57
before her for the purpose of preparing the sort of considered reply which is
customarv in oroceedinas before the Court.
The lndian arguments-ha\.ccomeout ptesemedlin successivecommunicstions,
cach oneo\eriaking Pakistan in dcïling wiih the prçviour one. und in the middle
of the proceedings of an inherently urgent character that do not afford time for
a comprehensivetreatment, at thisjuncture, of issuesthat arestrictly extraneous
to the question of interim measures.
It is not for me to say what the Court should do in thesecircumstances. The
situation is evidently a very difficult one bath for the Court and for us. We feel
certain, however, that the Court will ensure that justice is done to Pakistan,
and 1 will, therefore, now resume the thread of my address where 1 left off
yesterday, only reserving the right to ask for further time when we have been
able to study the Indian communication of 4 June more carefully.
As the Court is aware, the Government of India, in a further letter addressed
to the Registrar of the Court and dated 28 May, has raised a series of points
on the question of thecompetence of the Court to grant interim measuresin this
case.It may be convenient to the Court if 1 comment specifically on the most
important of these points in so far as 1have not been able to do so already.
After dedling with this Indian letter, 1 shall go on to consider the principles
ao..icable reeardine the substanceof the reauest for interim measures.
However, i;eforecommenting on the asseriions made by the Government of
India in its letter to the Registrar, 1 would like to say a few words about the
character of such letters and their relevance. kee.-nn in view the orovisions of
the Siaiuie and the Rulcs of Couri.
The iirst of theselctrcrj, \r,hi:h wusdai23 May, appe3rsto sçekclïritic~tiun
ïboui the bxis on whiih the iuridi-tioil oi the Cour1 \vas IO be founded. since
it made the following statemént:
"The Government of India accordinnlv oresumethat the Aoolication and
the Request were communicated to t<e% for their consideiaiion whether
consent should be given by them in terms of Article IX of the Genocide
Convention."
This, of course, wasnot at al1the reason. On the contrary, the Government of
Pakistan, in a communication to the Registrar dated 25 May 1973'. made it
clear that Pakistan did not invite India to give her consent but founded the
iurisdiction of the Court on the basis of various instruments in force between
the Parties. We expected that the Government of India would then follow the
procedure laid down in the Statute and Rules of Court, and appoint an agent
and out in an aooe..ance at the oresent hearing of the case~reaardinn the
indicition of interim mcdsurcsof prbiection. lniieid. the ~overnniéni of Ïndia
choietosubmit the lctier of28 hlay. in p~ragraph 33ofwhich they forcshado~i'cd
still further correspondencewith the ~egistrar without entering any appearance
in the caseor appointing an agent.
At this juncture, therefore, and in this context 1 would like to refer to the
Statute and Rules of Court. 1 draw attention to Article 42 of the Statute which
States,in paragraph 1, that: "The parties shall be represented by agents."
Article 43 of the Statute is also relevant and provides, in paragraph 2, as
follows:
"The written proceedings shall consist of the communication to the
Court and to the parties of Memorials, Counter-Memorials and, if
necessary,Replies; also al1papers and documents in support."
' Seep. 118,infra.58 PAKISTANI PRISONERS OF WAR
It is clear, thercfore, that the letter sent by India, without the appointment of
an agent, is not a written proceeding within the meaning of the Statute and
Rules of Court.
Let me now refer to Article 38, paragraph 3, of the Revised Rules of Court,
which states as follows:
"The party against whom the application is made and to whom it is
notified shall, when acknowledging receipt of the notification, or failing
this, as soon as possible, informthe Court of the name of its agent."
It is clear that India has acknowledged receipt of the notification of the
nresent nroceedines transmitted to her by the Reaistrar in accordance with
~rtizlc j6, piiragriph 1,of the I<ulcsof t'ouri. ~&iei,er, in spiie of Indiï.3
obligîiion IOappoint an ügcni in iheie cir~.umsiances,she ha5 not done sn. rlie
lctter of the Governinenr of India of 28 May 1973. \\hich is or the nature oi a
written pleading, therefore, has no legal staius.
We recognize, of course, that independently of any arguments that may or
mav not be advanced bv the Parties. the Court is oblized to consider for itself
whither it is cornpeten; to act. ~eGertbeless, we feel?hat if India has a case
against the granting of interim measures, or the exercise ofjurisdiction for that
purpose, she shnuld appear before the Court and make her oral submissions
on these points.
In spite, however, of the inadmissibility, under the Statute and Rules of
Court, of a document such as the Indian letter of 28 May and the subsequent
letter of 4 June, and without prejudice to our rights in this respect, 1 would,
nevertheless, with the minimum of repetition, try to show that the contentions
made therein have no substance whatsoever and are not such as the Court could
accept. As far as the letter of 4 June is concemed, 1will make my submission
at a later stage.
1 submit that the point to which the whole Indian contention leads is that
contained in paragraph 31 of their letter of 28 May 1973(p. 131 infra).That is,
that the absence of jurisdiction is so manifest that the Court is not properly
seised of the case forany purpose, even for that of considering the indication of
interim measures of protection. It is suggested that there is no occasion for
any oral proceedings and that the only proper action for the Court to take
after itself examining the Application and theRequest, in the light of India's
observations, is to remove the Application from the list hy an administrative
order.
1 have alreadv referred to the relevant iurisdictional clauses under various
instruments in -force between the parties which establish prima facie the
possibility of exercisingjurisdiction by the Court in respect of the merits of the
dispute, and 1do not find it necessary to refer to these clauses again.
1 would like ta emphasize that the whole elaborate Indian argument on
Atticle IX of the Genocide Convention and on the General Act, in their latest
letter. in itself showed that the absence of iurisdiction is not manifest. If they
t;ike niore ihan 50clase-typed pîgru and giv&argument> in them mercl>,lu shoi;
that the Ia;k of juris.ii;tion is niiiniferr, then zerisitis not. and ihere uould
be no need for such elaborate argument. The Indian letters thenselves show
that on the contra~ ~ ~ ~aue.~~ ~ of iurisdiction m~st. ~.~the verv least. be
contro\crrial and ojsuch a nature 3s tic C'ouric3n nnly deïl uiih a&cr h;i;,ing
heïrd full argument at the~uri~diiiional stage of the case. II is quitc cleïr froni
the Indian letierithît ihelaik of iurisdiciiunoftheCourt to JeaI wiihihemîiier
is not self-evident but requires exhaustive examination. This is clearly the case, ,
for instance, in regard to the question of the validity of India's reservation to ARGUMENT OF MR. BAKHTIAR 59
Article IX of the Genocide Convention and i't is also the casein regard to such
a question as that of the relevance and effect of Article 23 of the Vienna Con-
vention of the Law of Treaties. But we submit that theseare no1 matters to be
gone ~ntoal this stage, in advance of the Court's considcistion c>f it,substanti\c
jurijdi:tion rïspc;ting the cdre a a i\liole. \\'c liate dlre<idy outlincd Our con-
tentions on some of these matters and wish to reserve ourselves on others,
unless directe* hy the Court Io go into them even at the present stage. There
are, however, certain further points in the Indian letter of 28 May which we
find necessaryto comment on al once.
For instance, the passagefrom paragraph 31 of the Indian statement which
1 quoted a short time ago is quite misconceived, because the only cases in
which the Court has held itself not even to be seisedof a casefor any purpose
are those in which there was no tent or instrument on which the jurjsdiction
could be based, so that jurisdiction depended entirely on the consent or
acceptance of the respondent. This occurred in several of the Aeriul Incident
casesand in two Antarcricacaseswhere the Applicant admitted the absenceof
any possible prior basisofjurisdiction and invited the Respondent Io accept the
Applicant's offer regarding the Court's jurisdiction. It was only when that
acceptance was clearly not forthcoming that the Court removed the casefrom
the list.
For instance, the Application of the United States regarding the Aeriul
Incident of 10 March 1953, in sa far as the jurisdiction of the Court was
concerned, stated as follows:
"The United StatesGovernment, in filing thisapplication with the Court,
submits Io the Court's jurisdiction for the purposes of this case. The
Czechoslovak Government appears not to have filed any declaration with
the Court thus far. although it was invited to do so bv the United States
<;u\crnmeni in the noir annened hrrctti. The C~e<lii)sloi.ak C>u\crnmcnt,
hinieier, i\qualiticd t.)\uhmit IO 1hejuii\iliition of theCourt in ttii; mstter
and mav uoon notification of this aÜulic..ion bv the Reristrar. in accor-
danic %\.:th'thcRules of the C<>urt. I.I!.Cthe rccs\iary sr6i 16)enable the
Court'; juricJiztion oser Iii~th parties to thedispure to hecdntirnicd.
1hç UniteJ States Cio\crnmcnt thi.5 iound, the iurisJ:<ti.~n of tIii\
Court on the foregoingconsiderations and on Article 36(1) of the Statut?."
(I.C.J. Reports1956, p. 7.)
It is clear, therefore, that the Applicant is merely inviting the Reîpondent to
accept the jurisdiction of the Court and is no1 relying on any instrument
emanating from the Parties, as in the Fisheriescase, or for that niatter in the
Inrerhondelcase.The same is true of the Aeriul Incidentcaseof 8 October 1953
hetween the United Statesand the USSR. 1refer the Court to the I.C.J. Reports
at .aee 10. The invitat~ ~ ~ ~ mor~ ~ ~les~ of a similar nature and 1 do not
propo,e to quote it. I nia)sir,)rçfer [LIthe .Appli:atiun i~fthe LnireJ States in
thrcdsc concL.rninr thr Arrtul I,rchk,rrof4 Scptcnibcr 1954.in \\hich the L'nite,l
States went so faras to state:
"... the Soviet Government in a note dated 10 October 1957 which is
made an Annex to the present application rejected the United States
Government's invitation. The Soviet Government is aualified Io submit to
thc juridictii~n of the Court in this matter and mxy, upon notificdtiun oi
[hi\ application hy tlie Rcglstrdr. in accor,ldnce with the Kulcsof the C<iurt.
take the necessarvsteosIo enable the Court's iurisdiction over bath Parties
to the dispute to-be confirmed."60 PAKISTANI PRISONERS OF WAR
1may also refer ta just one of the Afltarcficacases, that is the one instituted by
the United Kingdom against Argentina in its Application of 4 May 1955
(I.C.J. Reports 1956 at p. 13).The Application contains the following reference
to the question of jurisdiction:
"The~ ~i-~ ~K~nedorn Government ... declares that it herebv submits
to the jurisdiction o'rthe Court for the purposes of the case referred to the
Court in the oresent Aoolication ... The Argentine Government has not,
so far ~ ~t~ ~ ~ited~~inedom Government is aware. vet filedanv declara-
lion sccepting the C,iuri'r,uriiiliction, eiihcr gcnerally under Article 36 (21
<ifthe Siaiutc or 5peciallyin tliç prerent cüie. The Argentine Goiernmïnt.
iihi~h Ii:ir irequeiiily e\prc,.ed ils adlierence ti~ ihe prinsiplc of judicilil
setrlcincnt oiinternati<~nnldispute,. ii.h<i\\e\er. leg:illyqulilitieJ to subniit
13 the iiiriiiliction oitlie C<~urtinthis casc Consequçntly, ~pon iiotifi;siion
of thëpresent Application to the Republic of ~rgentina by the Registrar
in accordance with the Rules of Court, the Argentine Government, under
the settled jurisprudence of the Court, can take the necessary steps to that
end, and thereby cause the Court's jurisdiction in the case to be constituted
in respect of both Parties."
It isto this class of case that the passages fromHudson, Rosenne and Shihata
cited in the Indian letter (m. 129-131. infra) refer and it is altogether a differ-
ent type of case from the'piesent one. Moriover, and 1 particufarly draw the
Court's attention to this aspect, in those cases there was no question of interim
measures of orotection. In marked contrast are such cases as the Anzio-Iranian
Oil ~o,ii~u,~; iasc, the li,rerlio<iih~.'lAbeand the Iï,hrr;rr J«r;tilic1iotrcasc, \rhere
the Court jeiscd ii~eliofthc rïque,t for inrcrini mea\urei becïuic there nli; an
instrument emanating from the Parties which auueared mima facie to afford a
possible basis on which the jurisdiction of the Court might be founded. As
regards the existence of any reservations and their validity and legal efect-a
auestion which must of course be gone into.at the urouer timeit. . rnav be
nientioned ihiii in the I,r/.~r/r~i~rizl~as~elthe auti>maii; reseri,ation of the IJnited
Star<<regardiiig dornc,tic jurid~ction %\,ac $lear. The qucition oi the jurisdistion
of the Court under that reservation was to be decided by the Government of the
United States and they had made their decision to the effect that the case fell
within their reservation. Nevertheless, the Court seised itself of the case and
went into the auestion of interim measures. The reason whv it did notgrant the
interim measuies in that case was connected with the substantive mer& of the
matter as urgency no longer remained. The Court, therefore, did not think any
. ~
interim measures were necessary but this was not because it heldthat it did not
have jurisdiction to grant them.
1would therefore like to stress that Pakistan is not required for the purpose
of a reauest for interim measures to establish the Court's iurisdiction, but onlv
to show that there isa possible hasis for it and that its absence is not so apparent
asto be beyond argument. It is not of our choosing, Mr. President, that wehave
been led at this stage of the oroceedings into saying .o .uch about the question
of the Court's substsnti\c jurisd~ction in regard to the ca\e a.; a \\hole. \vhish
should of;ourre bf rescri,cd for a later stage. I would reiall ihat in the An#lo-
Ironi(i~rOil Cl»>ro<i»ria .ie. the Court rpc:ifi;ally siated thlit a erlint fi~rinterim
measures in no' way ??re,udiced the question-of its ultimate jurisdiction to
pronounce on the merits of the case.
Mr. President, 1would nowliketo cover some of the other points raised bythe
Government of India in its letter of 28 May 1973.In this letter (p. 123,infra)the
Government of India has made certain preliminary observations and has stated AROUMENT OF MR.BAKHTlAR 61
that she regards the Genocide Convention as among the most important
humanitarian conventions adopted by the United Nations. If the Government
of India truly regarded the Genocide Convention as so important then whv did
,he purportto kke 2 re\cr$;ition in respe;t <if tlic lurisdiciion of ihe inter-
n,itional C<~urt rrliicli, undçr ihe C<in\eniion. i, inc nidiil guarani<Ir and jupcr-
\i,ury bod) rerar<lins tlic due iultilmeni of [hi. Con\enrion'! I ,Io n<ii nretciiil
to be awGe if the motives of lndia in making the purported reseFvation.
However, one wonders whether the reservation was made in view of the treat-
ment accorded bylndiato the Muslim community in India and Kashmir and
also to the Sikhs and Nagas and the Miros.
In the letter (p. 123, infra) lndia assertedthat any controversy, difference or
dispute relating to the interpretation, application or fulfilment of the Genocide
Convention should be invoked bv the victim~of t~e eenocid- to enforce ~h~ ~ ~ - ~ ~~~.
object and purpose of the Convention. According to India, the Applicant
should be a sufferer and the Remondent mus1 explain and defend anv of his
actions alleeed to constitute a breach of the obiectand ouroose of the ~onven- ~ - ~ - ~ ~ ~
tion. 1 wouid, however, like to stress that Article VI if the Convention in no
way stipulates that the State in whose territory the acts occurred must also he
the sufferer from them. One can imaeine ca-erwhere ~~~s mieht not be so-for ~ ~ ~ ~ ~ ~-~
instance, actsof genocide committed by one body of foreign workers in acountry
in respect of another such body. also tem~orarily in that country. 1 would also
submit that Pakistan was not idy, at the-time, the State in whoie territory the
acts occurred but was also, by that very fact, the victim of those acts whenthey
occurred, since they ivere committed in respect of Pakistani nationals on
Pakistan territory.
India says (p. 124, infra) that the territory where theseacts werecommitted, the
State whose nationals were victims of aenocide .nd who wish to brina the -
<irfenJcrs 10 ju~ti~c. 1, ncithcr the AppIic.int in the preicnt iise iior c\cn the
Vcfenilant or ille Ke\pi~nJcni. TL!ihii Our aris\rsr isth31 ihr. rr.\rdaic niusi bc
rhsd.,ic when tIical1ccc:l xts to,A pld;c. hc;au>c ili\on iIi;ir d;iie ihsi the rtahi
to trv the accused arose and on that date the territories that now constitute ~ ~ ~ ~ ~
~angla~esh were~akistatii territories. We submit, MI. President, that a change
in the status of the territory taking dace subseguently is irrelevant and cannot
affect a riaht which had alieadv a&ed
On the samepage,lndia statesthat since Pakistan has pointed to the difficulty
of being able to establish in practice a competent tribunal in Bangla Desh
within the meanine of Article VI of the cenicide Convention. the court has
beenapproached b; Pakistan to adjudge and declare upon the rights, obligations
and competence of a third State, viz. Bangla Desh which is a Party in interest
even in the absenceof its consent to the court's iurisdiction. ~nthiscontext the
Mo?zeturyCold casehas been cited about whichi will presently say something.
1would, however, first emphasire that quite apart from anything to do with the
case. the Indian argument is incorrect.for il is not Bangla Desh's riehts and
obligations which Fakistan is asking the Court to consider but the position of
India.
If we have argued that no tribunal in Bangla Desh would be competent-in
the sensethat no fair trial can be expected from any court there-that is in
order to showwhy, quite apart from Pakistan's exclusive right to try the persons
concerned. thev should not be sentto Banela Desh. and whv the Court should.
in respect of ~ndia, not Bangla Desh, gran? interim measurésto prevent it; foi
once done it would be irreversible and hencecompletely prejudicial to Pakistan's
right to trv these Dersons if the Court in due course holds that Pakistan has62 PAKISTANI PRISONERS OF WAR
We submit that the Monetary Gold case is not a precedent which is relevant
in the present context. Firstly, hecause it did not deal with an application for
interim measures'and, therefore, the Court was at once seizedwith the question
as to whether or not it had jurisdiction to pronounce on the merits of the
Ao..ication made to it hv the Governments of Italv and the United Kingdom.
And, recondly, be;ause in rhar i3ie the gold in que;tii,n %\asadmiiicdly chat of
Alblinia and the Govcrnments of the Cniied Kingdom and Italy uere claiming
the riaht 10 sci off their claims acüinït Albania as aaain\r Albania's riaht Io thc
recov& of the gdd. It was a &se which could Lot be decided without first
determining the merits of the Italian claim against Albania, for in order to
consider the ouestion of orioritv of claims as between ltaly and the United
Kingdom inter se, it was first necessary to determine wheiher Alhania had
committed any internationally wrong action against Italy and whether she was
under an obliiation to oav comoensation to her and, if so, to determine also the
amount of%uIh comp'n~~tion~nly if Iialy had a good claim agüinsi Albinis
could ihc question of prioriiv of ihai slaini as against thai ot'the United King-
dom arise. The Court ac;orJirigly hcld thai the Albanian legal interesi ii'ould
no1only be alfcited hy ils decision hui would forrn the vcrysubject-niîtter of the
decision and hence ir deïlined to exercije jurirdiition.
Iuould refcr In risrtiiular. as IO rliefacis, io pages 21 anJ 22 of the Judgmcnt.
an~ ~o oa,es- ~.--3- ~ ~ ~ - ~ ~iew taken hv the-Court. We therefore submit that
this argument of India is wholly misconceived and 1 would once more stress
that weare not askine the Court to pronounce on Bangla Desh's rights vis-à-vis
P~ ~ ~ ~ ~but ~~-~ - ~ r~, ~~~ ~rtine as aeainst India that we have the exclusive
right ta iry the persons concerned who-should not, therefore, he handed over
bv India in a manner irreversibly oreiudicial topakistan's rieht if it exists, as we
.. . .
contend it does, and as is for the Court to decide.
For two additional reasons Bangla Desh has no locr~s sfandi in this matter.
First, Bangla Desh is not a party to the Genocide Convention and can, there-
fore, ha\.e no rights under Article VI as such and, secondly-and this 1submit
is important-st the time the alleged acts are said to have heen committed,
Bangla Desh was not even in existence and Pakistan had already acquired
and comp!eted rights by virtue of the commission of the said acts. These
acquired rights arose contemporaneously with the commission of the acts in
question. It is also a fact that Bangla Desh is not even a party to the Statute
of the Court. nor a member ~ ~the United Nations. However. Banela Desh's
, - - ~~~
lack of status is not the real point in these proceedings. The Point whether,
as between Pakistan and India, the persons concerned should be irreversihly
handed over, and whether the Court should grant interim measures in respect
of that matter.
1 have not commented on al1 the points contained in the Indian letter of
28 Mav. ..d desiened-v sa...ecause these ooints-al1 of them controversial and
controverte(l hy u, arc relevani, if at all, only io the substance of ihe queitiim
of the Court's jurisdiciion to pronounce on thc rnerir.,of the case. Thcy cannot,
in our view. orooerlv he reearded as material at this stage. when the auestion
is simply whethe; ornotto kake a gant of interim measurff. 1shall, thirefore,
now leave the issue ofjurisdiction and pass on to the substance of OUI applica-
tion for those measuris.
As 1ha\e said. Ino\\ propose IO drsl iviih the principler applicïble regdrding
the subjian~x of î rcqucjt for interim mcasurcr. SUL3 .^s the existense of urgency
in the case and the &d for orotection. Most imoortant of al1is the urincide
expressed in paragraph 21 of ihe Order of the court in the Fisheries ~u;isdiction
case, which was as follows: ARGUMENT OF MR. BAKHTIAR 63
"21. Whereas the right of the Court to indicate provisional measures as
provided for in Article 41 of the Statute has as its ohject to preserve the
respective rights of the Parties pending the decision of the Court, and
presupposes that irreparahle prejudice should not be caused to rights which
are the subject of dispute in judicial proceediiigs and that the Court's
judgment should not be anticipated by reason of any initiative regarding
the measures which are in issue."
1 first refer to the principle regarding urgency and the need for interim
measures of protection. This principle is implied in the Court's action in the
Interhandel case, which concerned the proposed sale of some shares in the
General Analine and Film Corporation hy the United States. The shares in
auestion. which were vested in the United States Government. as a result of
trading-tiith-ihç-ençmy legirlniion, uere clnimerl by ihrSui\s Cio\ernnicnt ai
ihe prsptriy of iis nürionals The Sa,isi Cioiernmeni :oniendcd ih*i the ihares
in question were not enemy property and could not be vested in the United
States Government. The Swiss Government, apprehending that the United
States was about to seIl the shares, requested the Court to prevent it from
selling "so long as the oroceedings in this disoute are pendina". The Court
declincd IO grüii interi; me~surc<oi proie~tion <in evijencc Ging pruduccd
ihat the sharei could no[ bc sold uniil sficr the terniinaiion 0ijudi~i3l prii.czJ-
ings taking olace in the United States with regard to whether or not the shares
coistituted énemy property, and that therëwas no likelihood of a speedy
conclusion of those proceedings. Moreover, the United States Government
indicated to the Court that it was not taking action at that time even to fix the
time schedule for the sale of shares.
In the recent Fisheriescase between Great Britain and Iceland on the other
hand, the Government of Iceland was preparing to take, within a month,
action involvine the extension of its exclusive fisherieszone. the result of which
~ ~ ~---~ ~ ~ ~ ~- ~ ~ ~ ~ .
would have heen to exclude British trawlers from fishing in those waters in the
future. The uraency oleaded by the British Government was the need for fishing
c~~oar~~~ ~ ~t~e Ü~--~~d~inedom to olan in advance the erounds to which thev
could direct their vessels,andthat a voyage to Iceland tooi perhaps three weeis
to orepare and undertake. On the basis of these facts the Government of the
~nited Kingdom succeeded in pleading "urgency" in the case. The Court
thought fit to grant interim measures of protection.
Let us now look at the facts in the present case. 1 refer once again to the
statement of the Foreien Minister of Banela Desh. Dr. Kamal Hossain. which
was reported by ~adio~angla Desh and ihe ~imei of Indiunews service, and 1
only auote the first oaraeraph of that statement as reported, which 1think, is
sie"ificant. The who6 statement anoeared as Annex ch111 to the Aoolication.
"The Foreign Minister, Dr. ami 'Hossain,today announced the ~angla Desh
Government's decision to try 195 POWs for war crimes. The proceedings will
begin by the end of May." 1may also refer to the message sent to the Govern-
ment of Pakistan by the Minister of External Affairs of India on 8 May which
States, inter aliu:
"Likewise the contention of Pakistan Government in paragraph 3 of its
statement questioning the competence of the Government of~angla Desh
to bring to trial certain prisoners of war on criminal charges is unac-
ceotable."
This clearly showed that India, in complete disregard of Pakistan's rights
and claims, contemplates to transfer Pakistani prisoners of war for trial to64 PAKISTAN~PRISONERS OF WAR
Bangla Desh any time now, and hence the requirements of urgency are clearly
met.
With respect, Mr. President, 1would like to submit that in regard to urgency
this case stands at a higher footing than the Fisheries case. in which interim
orders were er-nted bv the Court since. in this case. human lives are involved.
This hringi me IJ the lasi principle 3ppli.-able in the ciic of inierim meilsurci,
and cxprejscd by the Ci>urtin Iiirlgrilph 21 si the Order in the Iïrht,rit,caw.
In accordance with this, three points have been borne in mind:
(a)The right of the Court to indicate provisional measures as provided for in
Article 41 of its Statute has as its object to preserve the respective rights of
the parties pending the decision of the Court.
(b) The ohjict in exercisingthis right isthat irreparable prejudice should not be
caused to rights which are the subject of dispute in judicial proceedings.
Ic) That the Court's judgment should not be anticipated by reason of any
initiative regarding the matters which are in issue.
Hence we are referrine to the oower of the Court under Article 41 of the Statute
only. I shilll \eplrüiely refer IO rhe inJzpenJex poi\crj of the Court io grint
interim mc:a\ure iin~1i.rArticle 33 oiihc Generül Acr for ilic Pacitic Sertlement
of International Disoutes of 1928. Let us then consider each of these ooints
emphasized by the Court in paragraph 21 of its Order in the Fisheriescase.
The question in issue between lndia and Pakistan in these proceedings is
whether or not Pakistan has exclus~v~ ~urisdiction with resoect to the holdine
an).sthcr numbii
oi irilili ior gcno:idc.ind oihcr:rims,. in relliiion r<iihr 195.
of Pakist;ini orisoncrs of a,;ir. non in Indiln cuiioJy. Should ihc Go\eriimeot
of Ind~ ~ ~ ~ ~e the decisionof ~h-~C~ ~ ~ hand over the Pakistani orisoners
of war i" question to Bangla Desh for trials; it would not be possible to'preserve
the rights of Pakistan pending settlement of the dispute and the proceedings
before the Court will be rendered infructuous. The respective rights of the
Parties can best be preserved through interim measures of protection calling
upon India not to make such a transfer until the Court has finally decided
whether Pakistan's claim to exclusive iurisdiction is valid. If the orisoners of
war are transferred to Bangla Desh this-step will be clearly irreversible for, even
if they remained alive, the Bangla Desh authorities would be unwilling to hand
them-hack. In this context 1draw attention to the statement of Sardar Swaran
Singh, Minister of External Affairs of the Government of India in the Security
Council on 21 December 1971, which 1 referred to yesterday and which 1am
going to refer to again:
"The presence of the Tndianforces in Bangla Desh is, therefore, necessary
for such purposes as the protection of the Pakistani troops who have
surrendered to us and [here it is important] for the prevention of reprisals
. and the like."
The moment the troops are sent back Swaran Singh says that there will be
reprisals. Before they come and see the court they may be lynched. This is Our
apprehension. 1would now show, Mr. President, that this gives an indication
of the fact that the Banela Desh oeoole and the Government will not be willine
to reverse any steps whTchthey Aaitake in regard to the trials and sentencini
of Pakistani prisoners of war. even if the Court's decision declared Pakistan's
exclusivejurisdiction.
1will now show that the handing over of the prisoners of war will result in
irreparable prejudice to rights which are the subject of dispute in these judicial
proceedings. My submission is that if the prisoners of war in question are ARGUMENT OF MR. BAKHTIAR 65
handed over to Bangla Desh, not only would the requirements of fair trial not
be met, but also Pakistan's exclusive right to hold such trials will be prejudiced.
It is Pakistan's right and duty to hold such trials and to expel from its armed
forces and punish those individuals who may have been responsible for any
kind of criminal acts. This is absolutelv essential from the ooint of view of
discipline in the iirntcd forces of iny country and. ihcrcfore. uur righti !riIl bc
irrepar3blv ..ciu.iced iiihr. pers<in,;onxrnç.i are h:inJeJ iner 10 H~nglaIle\h.
~~~ ~ ~ela Deshtrials will be ooliticallv motivated and of a vindictive nature.
2nd in our viçu uiII nor br.sii;hajcsn imp~rtiiillgesiahlish rhcgii:Itor inndicncc
of the indi\iduals inii~lved. Inilia heraclf spprr.ltr.rtJcJ \ucli a iitu:irion whcn
~ ~ ~-~~~n ~oreien Minister. whose statement 1 have iust auoted. stated ao-
-
prehension about the ~revention of reprisals and the like. But whether they weie
found auiltv or acquitted, the accusedcould then take shelter behind the prin-
.~-~..--- c~ ~ ~ ~ ~ ~~~f ~ni~ersal validitv that a oerson mav not be olaced in
doublejeopardy. Pakistan would then he excluded from trying the prisoners of
war at anv future time. and hence its riaht to hold such trials would be irrep-
srlbly prejiiilicr.J. Mi)rco\er. ihç trials nill be ticiied in I'akisinn :i$having
iaken plxe illcgally in disrcg~rd of PaAi,tdn', righr unJcr intcrnaiii~nïl lia.
and the Geni~iide Convçniiun. and uill i~teiiiably leid 1s :XIIincrcasing crintiiy
and to the reversal of steps taken so far to movétowards an era of peaceand
amity in the subcontinent, thus further extending and aggravating this dispute
hetween India and Pakistan.
I.astlv. Mr. Pres~ ~~~. it is clear from the Order of the Court in the Fisheries
3. ~ .
casethat no party should anticipate the ultimate decision of the Court on the
merits bv means of any initiative taken regarding thematters which are in issue
r-~~-~-~uhe~ ~ A~~~--of~ ~e~Court. We suhmij that India has a dutv not to
anticipate that the caseinstituted by Pakistan before the Court will be.decided
against Pakistan and in favour of the contention of the Government of India
r&arding the exercise of jurisdiction over the prisoners of war in question. To
anticipate such a decision in a final and irreversible manner would amount to
prejudging the decision of the Court on the merits of the care.
Before coming to the end of my suhmissions, Mr. President, 1 would like also
to refer to the independent power of the Court under Article 33of the General
Act for the Pacific Settlement of Disputes of 1928. Since Pakistan has invoked
Article 17 of the General Act as an additional basis for the jurisdiction of the
Court, 1draw attention to the mandatory provision in Article 33 which States:
"the Permanent Court of International Justice . .. shall lay down within the
shortest possible time the provisional measuresto be adopted."
1 would respectfully submit that, in contrast to Article 41 of the Statute,
Article 33of the General Act is more stringent, and involves an element of duty
for the Court. since the word "shall" instead of the word "mav" has been used
with regard to the provisional measures to be indicated.
1also draw attention to the obligationthat the parties have undertaken under
Article 33, paragraph 3, of the ~eneral Act to abstain from al1 measures likely
to react prejudicially upon the execution of the judicial decision and abstain
from any sort of action whatsoever which may aggravate or extend the dispute.
1 submit that if the prisoners of war are transferred to Bangla Desh and the
Court subsequently decides that Pakistan alone has jurisdiction, it will be
impossible to give effect to that decision. Again there is no doubt whatever that
the trials in auestion. if held in Banala Desh. will he merely a public show in
ordcr io ,ust;fy the exe~uiion of ih;arbiiriirilg selecied high-ranking niilitary
pçrsonnel of the I1aki$tanarmy and civil rîrvanrs. In thi, conreïr I \ioulJ again
drau aiicniion io the ohligiition or the p~riics in the Agreement on R~lüieral66 PAKISTANI PRISONERS OF WAR
Relations between the Government of Pakistan and the Government of India,
signed at Simla on 2 July 1972,which provides in Article 1, paragraph 2, as
follows:
"That the two countries are resolved to settle their differences by peaceful
means through bilateral negotiations or hy any other peaceful means
mutually agreed upon between them. Pending the final settlement of any
of the problems hetween the two countries neither side shall unilaterally
alter the situation and both shall prevent the organization, assistanceor
encouragement of any acts detrimental to the maintenance of peace and
harmonious relations."
Under this treaty also India cannot unilaterally hand over 195 or any other
number of prisoners of war.
The present issue between India and Pakistan regarding Pakistan's right to
exclusive iurisdiction is a difference between them which has been referred to
the ~nternational Court of Justice, which provides a peaceful means for the
settlement of differences. There is, 1 submit, an obligation on lndia that pending
final settlemeat of the problems between the two countries, including the ques-
tion of jurisdiction with respect to the said prisoners of war, India shall not
unilaterally alter the situation hy transferring the Pakistani prisoners of war in
auestion to Banela Desh. Such an act would also be clearlv detrimental to the
inainicn.incc oi peise and h~rnionioui rclati~ins.
II ma). he noieJ ihat oxcr 17long moiiihs ha\c PA\\CJ~ithoui any .tllcçation
be~ngIe\ellcJ ni ;in). pariisular indix iduïl. and ifthç Cio\erniiicnt of In.liï c<>ulrl
%\aitjo long merelv io rc;ci\c ;illegati<in\, ihere is no re:i\on \ihy India innnot
!\ait for the de;isiuii of this C.)uri regarrling tlie quesiioii ofluridiaionIn facl.
if her claim is indeed in accordance $th heFprofessedregard for the Convention
she should not hesitate to have the matter adjudged by the Court rather than
unilaterally take action which would be considered illegal and not conducive
to the maintenance of friendlv relations in the subcontinent.
Ilr. I're,iJent. ihcrc rcniaiiii ilne final nintier, aiiù that ;.>nierils i1.11~of
the rhousandj df pri3onerr of iinr aiid cii'ilian intcrneci \%honrc iioi numbered
amonast the srnall nurnber accused of eenocide. We recoenize. of course. that
their s'ituation in respect of any grant ofinterim measures different, inasmuch
as the fact that India continues to detain them, though illegally, does not by
'
itself-at least in theor.-or.vent their ultimate re~atriation to Pakistan. We
hûic, lioire\er. in.ii.xaic3 ihai the deeply unr;itisPdst~iryc:rcuni<iancci of iheir
deienrion. \rh~~haniouni io a sort of indefinile \çntenié of inipri,c~nmsni. are
gravelv affectinr! their Dhvsicai and mental health. so that bv the time thev are
repatriated thei;condiiioh may havedeteriorated or suffered in such a wa; that
the effectscannot easily be reversed; and also, Pakistan's right to the return of
her troops and other nationals asuseful human beingswill be prejudiced. It was,
as 1 mentioned earlier, precisely the public concern over the harmful results of
detention continued long after any military justification for it had ceased to
exist. that led to the change introduced bv Article 118 of the 1949 Geneva
Conventions in orJer io bring the dbligaiion icirep~triaie inro play immediatcly
upon the ce($3110noi;icii\.e h<>>iilitie\.nother fncior ijthe ~inxieryand funhcr
mental strain causedto thoseconcerned.and to their families. bv theever-~resent
po\sihilii) ofsurrcnder io Rangla Dç\h; the uniertïirir?. jurroinding ihemïtier
and the whole queiion of rcpairiarion.
In \icw OC Iiidia's undouhted c)hligation IO rcpairiate al1ihc\e priioiicrs and
internets, and the paieni invalidiry of the groundr adduccd for not doing so,
I1aki>tanh:is in the present pro.'ceding%re1raine.l from nsking the Couri for an). ARGUMENT OF MR. BAKHTIAR
67
direct declaration to that effect, since this might only serve as a pretext for their
continued detention durina the months that mav well elavse before the Court
was able Io give its final decision on the matter. khereas our contention is that
the obligation to repatriate exists at this very moment, and should be im-
olemented imrnediatelv. We do. however. feel iustified in reauestin~ the Court
if, as we hope, it granis Our reiuest for ifiterim measures in respectof those in
danger of transfer to Bangla Desh, to add as a natural corollary that the non-
transfer of these versons and their continued dentention in India oendinn -he
Caiurr'r uliini.ite ilc:isi4% io ivhs ti;isthe right to try thcm is no1IO zonstitiitc
J ground for the (untinueJ derentiun i)f al1 the i~rhïr priionerb and internees
as well-seeing that in thiscase no question of a possible transfer to Bangla Desh
can arise and there exists no valid cause why they should not forthwith be
released and returned to Pakistan. We believe that it is within the power of the
Codrt to nive this indicatioii. and we esrnestlv reauest it todo so.
I iruiild nosi like 1,)draa the üttcntiuii oi the Cuuri ti~the cunncïri<in rhai
cxirts hetiicen the question of repatriation ofüll tlie rcmüining prironerr si \iar
and theallera-ions of n-nocideaiainst 195or anvother number ofsuch DersonS.
and 1,) itii~rthar the Couri can also indi;üte I<IlnJi~ the intcrim me:i.urcs of
pruteztion praye.1 f~ir hy I'aki*t.tn in p:irügrnpli 3 (1) ui Pakijtün's reque\t.
that is:
"That the p'rocessof repatriation of prisoners of war and civilian inter-
nees in accordance with international law. which hasalreadv bezun. should
not beinterrupted hy virtue of charges of Lenocide against a-cerginnumber
of individuals detained in India."
The Government of India hascontinued to illegallydetain over 92,000 Pakistani
prisoners of war and civilian internees for over 17months, and has maintained
that a number of these prisoners of war are wanted hy Bangla Desh for having
committed acts of zenocide. This number has now been stated as beinr 195
perr<>n,.Hoireter, r<ithir Jdy InJi3 ha; iioi ~pc:ilie<lille name, uf indivGu<tl>
againsr whim iiciuj~iior,~ ;ire goilil:ti)he niddr. The eirc;t oi ihij liai been tliat
Iiidia h;is lield <inru useYZ.000 Pükkidni pr.ioners oi ivdr2nd civilidn internccs
taken from East Pakistan after its occupation hy India. The process of im-
plementation of the Geneva Conventions and, in particular of Article 118 of
the Third, and Articles 133 and 134 of the Fourth Convention. which had
ülre~dy bcgun. ha, heen halreJ hy Indix ni;iinl) oii the cxcu\e, or one ai the
exzuse,, that there .ire ;~lleg;itions of geno.kie x<aiiist a fat, indi\~iluals
Pahist4n'i riahr tu the rer>atriatii)n tifit,pri,onerr oi aar, in accairJan~r \i,ith
internationaÏlaw, is hein; prejudiced by-virtue of these allegations against a
certain numher of individuals, who have not to this day been named. 1 would
repeat here what we have stated in paragraph 9 of Pakistan's Application, that
is, that the Genocide Convention does not warrant the holding of over 92,000
persons in custody, in breach of rights under international law regarding their
repatriation, merely because of allegations against a few regarding acts of
-enocide. In order. therefore..to .reserve theriehts of Pakistan. theCourt could.
ue buhmir, cal1upon India to obiain inimcdiütcly from t)angl:i Dcsh thc nainei
and p3rliiulürs <ifthe 1~5accu,çJ, xnJ r,iLontinuc the proLe..; oi implemcnta-
tion of the Geneva Conventions with respect to the rest. This submission is of
course without prejudice to Pakistan's right to repatriate and try the 195
prisoners of war.
In conclusion 1 would resoectfullv submit that if there ever was a case in
which the requirements of iaw and considerations of justice and humanity
called for immediate action by means of measures of protection, and in the68 PAKISTANI PRISONERS OF WAR
other ways we have mentioned, it isthis one. The life, liberty and well-being of a
large number of persons is at stake, as also the right of their State with regard
to their repatriation and the trial of those of them who may be accused of
orences. The urgency is obvious, and so is the irreparable character of what
may occur if no steps are taken to prevent it. The Court alone can take these
steps, and we believe it will do so.
Having concluded my submissions, Mr. President, 1thank youand the Mem-
bers of the honourable Court for giving me a very patient hearing.
The Cour! adjoirrnedfrom 11.35a.nr. ro 11.45 a.m,
Mr. President, before 1am asked any questions, I think I made a submission
in the course of my address that, on thelatest Indian letter, the Court did not
instruct meto makeany comment at thisstage. By "at this stage" 1didnot mean
at this stage of interim measures,1 meant today. 1 will naturally require tinie
to consider that lengtby document, running into over 30close-typed pages,with
many references, and unfortunately for three days the libraries are closed, so
that will take us upuntil some time next week, probably Wednesday or Thurs-
day, to be of some assistanceto the Court in making comments on that letter.
The PRESIDENT: 1 understand that you wish Io be given an opportunity
to make some additional statements in connection with the last letter of the
Indian Government, at a later stage. At the end of these comments you will
make your submissions.
Mr. BAKHTIAR: Yes, naturally, after we conclude, Mr. President.
The PRESIDENT: This opportunity will be granted to you. The Court will
then hold a hearing in order Io give you this opportunity not earlier than next
Thursday: meanwhile, three of my colleagues would like ta put some questions
to you today. QUESTION SY MEMBER S FTHECOURT
QUESTIONS BY JUDGES ONYEAMA' JIMENEZ DE
ARCCHAGA AND SIR HUMPHREY WALDOCK
Judge ONYEAMA: My question is this: What in your view is thelegal effect
of Pakistan's failure ta abject to India's reservation ta Article IX of the
Genocide Convention?
Judge JIMÉNEZ DE ARÉCHAGA: Has the Government of Pakistan
addressed to the depositary any communication, declaration, notification of
succession or accession regarding the 1928 Geneva General Act or the 1949
Revised General Act on the Peaceful Settlement of Disputes?
Mr.BAKHTIAR: 1 havealready made some submissions on this point, but
1 will make some further submissions.
Judge Sir Humphrey WALDOCK: 1 should be glad if the Government of
Pakistan could clarify a little further the reasons why they consider that the
Indian reservation to Article IX was nrohibited bv the Genocide Convention.
1hc aiiher quc%ti<insnhi~h I sliduld Iikc io put io the Cioicriiinent of I'ikiiian
zonzcrii the InJidn InJcpenJcncc Iiiicrndti<~n~lArrdnccnienis Or,lcr. Thsrs are
Iwo auestions: the first is: Does the Government of Pakistan aereewith the
sisicmeni i)f the In.lidn Go\ernnienr, in ils Icrier 01'4 June'. thai the <;enr.rdl
?\sr oi 1928is ntii includcd in ihe li,i of irc~tici ihar wdr drauii up by the L~peri
C'oniniirtce So 9: ;id. if ,o. in the oninion cii the C><i\ernmentof Pxkistan.
doe, ihxi ifle-tthr.dcvbluiid" of 1li;~igrecnientai beiuecn ihc lii,i> Cio\.ern-
ment,! Anil then, the se~ondquchiidii ir:\VoulJ the(;s\crninent oi 14kisi3n I-e
gd~J cntiugh iicxpliin furiher il,argunient ii I uiiderstoo~if~orre~il)-thai
the dc\olution iIgrwnir.ni. cdntaineJ in ihdr Indian IndepenJcnce Interndiional
r\rrangemcnt\ OrJer <if 1947, .wniined in agrecmeni \.hich ile\ol\cd of irt
own force on the Government of Pakistanand the Government of India so asto
create mutual obligations betweenthem in connection with the General Act of
Geneva? If you could be good enough to exulain a little further your argument
. -
upon that point.
Mr. BAKHTIAR: 1 shall certainly endeavour Io answer al1these questions,
and 1shall try to do them bv Thursday. so that mv addressisconcluded on that
. .
day, if you willpleasegran; me permission for that.
The PRESIDENT: Yes, the Court will now rise, and the exact date of the
next hearing will be announced early next week. The hearing will no1 be held,
according ta your wishes, earlier than Thursday, 14June.
MI. BAKHTIAR: 1 am much obliged ta the Court.
The Cour! rose a!11.55 am. THIRD PUBLIC SITTING (26 VI 73, 10am.)
Sir Humohrev WALOOCKN . AGENDRSA INGH: Jud~e ad hoc Sir Muhammed
Le VICE-PRÉSIDENT faisant fonction de Président: La séanceest ouverte.
La Cour est réuniepour permettre à l'agent du Pakistande répondre aux ques-
tions qu'ont poséesM. Onyeama, M. Jiménezde Aréchaga et sir Humphrey
Waldock. II lui sera loisible de orésenter éealement les observations au'il
juçera pertinentes à ce stade de la Procédure. -
M. le Président Lachs et M. Dillard, souffrants, ne peuvent assister à I'au-
dience. M. Ruda a étéégalement excusépour cette audience.
MI. BAKHTIAR: May it please the Court: my presentation today will fall
into two parts. It will be mainly directed ta furnishing the Court with out
comments on the Indian letter to the Registrar of the Court which, as 1 said
when 1 last addressed the Court.~ ~ ~almost the dimensions o~ ~ written lea ad-
ing. In sa doinç 1shlill :o\er se\eral of the points r&ed in the questions thai
Iisvc ken put ti~mïbs JuJgesOnyeania. Jimcnczile ArichliraandSir Humphrey
Waldock.~owever. sincelt ma; be c~ ~ ~ ~ ~ to the CO& to hav~ ~~e au&-
, ~ ~~ ~
tions separately dealt with, 1shall begin by giving our answers to them.
1oropose Io deal with the questions in the followin order. The first was that
put-by-ludge Onyeama concerning Pakistan's failÜre to abject ta India's
reservation to Article IX of the Genocide Convention-if, in fact, there was
any such failure, a point 1shall return to later. However. hefore replying to this
quesiion II ivillbcconi.enirnt. for resions ihdt irill hecomc üpp3kni in due
courw, ICIopen with the tirs! or Judge Sir Ilumphrey \Valdo<k's queilion>.
naniely ahy uecuniidcrcd the Indian reservarion to Ariiilc IX to bc prohibiied
-thatis tisay, as we would put it, impliedly prohibited. This will p&e the way
for Our answer to Judge Onyeama's question, and alter that 1 shall come ta
Judge Jiménezde Arechaga's question and Sir Humphrey Waldock's second
auestion. hetween which there is~ ~ ~~t~ ~ ~onnection. and then 1will end UD
with Sir ~umphrey Waldock's third question.
Judge Sir Humphrey Waldock's first question was:
"1 should be glad if the Government of Pakistan could clarify a little
further the reasons why they consider that the Indian reservation to
Article IX was prohibited by the Genocide Convention."
It is not Ourcontention that the Convention exoresslv orohibited reservations
to Article IX or, indeed, to any article of the onv vent ioor,.on the other
hand, did it expressly allow them. It was simply silent on the subject. In these
circumstances the permissibilitv of anv reservation mus1 deoend on its own
inirinsic chiiracirr in relation t(;that oi the Con\ention itself.~lhe Couri in ils
Adtisory Opinion in the case OCH<~s?ri.urio u, i/,r(;enu<idc,Cu!zi.r~~rliu m~ade
it clear that altliough the dence OCthe Con\ention about re;ervations did no1
rule out the po\sibility ihai thcy could be mlidc. it equally Jid noi mean that the
parties could mAe any rcseriations ihey liked al \\il1 At page 2?of il,Opinion
the Court stated: ARGUMENT OF MR. BAKHTIAR 71
"The character of a multilateral convention, its purpose . . mode of
preparation and adoption, are factors which must be considered in deter-
mining, in the absens of any . .. provision on the subject, the possibility
of making reservations, as well as their validity and effect.':
1 would stress those last few words "the possibility of making reservations,
as well as their validity and effect". Again, on page 24of its Opinion, the Court
stated:
"The object and purpose of the Convention thus limit both the freedom
of makine reservations and that of obiectine to them. ..
It h<isieverthele.s been argued thatny ~ïaiecntitled IO kcome ï pïriy
tu the Gcnocidc Coni,cntiun msy do rti uhile ni~kinç an) rexri,ation il
chooses bv virtue of its soverei~ntv. The Court cannot share this view. It is
obvious Ïhat so extreme an application of the idea of State sovereignty
could lead Io a complete disregard of the object and purpose of the Con-
vention.''
From these passages it is clear that the Court visualized that a reservation
:oulJ only be ialid ànd haie leçal elfea. as such. ifitwd* nui agatnii the objc:t
and purpusc of thc Conveniion or. in dther iwird.;,lis bï,ic atm and chsracter.
Conversely, the Court reconnized that the basic character of the Convention
would be a restricting factor on the making of reservations.
In view of this, ive contend that reservations that are inconsistent with the
basic character of the Convention must be regarded as impliedly prohibited by
if, or, 10put the matter in another way, such reservation must, in the light of the
character of the Convention, be considered as nuIl and void and without legal
effect.
In the Rrsr~r~nlio,~ i35r the Couri u;is iioi conjidçring any pariisular rcir.r\a-
tiim. II $va\ ïnswering ipccific quc3riuns oddrçsed IO 11 hy thc United Nations
General Assembly which. as their terms and the circumstances in which they
came to be put toihe court clearly show, were to a significant degree directed to
clarifying the position of the Secretary-General in receiving and dealing with
ratifications and accessions to the Convention Io which reservation might be
allowed. This can al~ ~ ~ ~ ~ ~ ~ ~t~e Court'~ ow- ~ --rk~~-~out the middle
of page 19 of its Opinion. The Opinion cannot, therefore, be regarded as an
exhaustive statement of the law relating to reservations, and a careful study of it
does reveal certain seemine inconsist&cies in the viewsexoressed. For instance.
in answer Io the first of thethree questions addressed to it; the Court said that a
State which made and maintained a reservation that was not compatible with
the object and purpose of the Convention could not be regarded as being a party
to the Convention.
On the other hand, in answer to the second part of the question (Question
JI (b)), the Court said that any other party which accepted the reservation as
king compatible could regard the reserving State as being a party Io the Con-
vention. It seems to us, however, that any given reservation mus1 either be
obiectivelv comoatible or else not. It is difficulfto see how the same reservation
cohd be :ompitible for someStates but no1for others. Equally, it is difficult Io
see how, in the case of a convention having the character of the Genocide
Convention. theoblieations of which areessen~iallvabsolute but not contractual.
a State can be a pa& to it in relation to certainparties to the convention but
not in relation to certain other parties, for this would seem to imply that the
same acts of genocide can be contrary Io the Convention in some contexts and
not in others. ARGUMENT OF MR. BAKHTIAR 73
confer a supervisory role on the Court, as a guarantee for the fulfilment of the
objects and purposes of theConvention, much in the same wayas the Court held
in its 1962 South WesrAfrica Judgment-and by implication in ils SorrthWest
Africa Advisorv.Ooi.ion of 1950-that the Court had a suoervisorv function
in rerpeLt of the niaiidaie. Ariiilc IXndi intended 1,) s~xc süfcguard iigsinst
bre:izlics of thc C'on\.eniii~nanilthiiu.aB unquectionably the iiea. taken hy ihc
Court itself in the Reservations case, as shown by the last passage cited by me
in my oral submission earlier on this point, on page 50, srqra.
In view of the importance of the matter, 1will venture to read that passage
again, and also the comment 1 then made on it. On page 27 of the Court's
Opinion, it States:
"Il may be that the divergence of views between parties as to the
admissibilitv of a reservation will no1 in fact have anv conseauences. On
the other hand, it may be that certain parties who consider that the assent
given by other parties to a reservation is incompatible with the purpose of
the Convention. will decide tn adovt a oosition on the iurisdictional olane
in respect of this divergenceindio séttle the disputé which thus irises
either by special agreement or by the procedure laid down in Article 1X
of the Convention."
This las1statement is-as 1submitted before. and 1submit anain-of the greatest
importance; for if the test of the validity of any reservationis to be ma& in the
last resort, recourse to adjudication under Article IX, then this clearly implies
and must entail that no reservation can validlv he made to Article IX itself or. if
made, must be held abortive. Otherwise, fhe test which the Court clearly
contemplated as the ultimate safeguard would be destroyed and, the statement
it made on this ooint obviouslv assumes that Article IX will alwavs remain fullv
<ipcr.iii\e anJ ;iv:iilablc. Ilence. a rr~er\üiion io ~irtiIXetiiu~rlie rcg.irJeJas
ssiitrary to the polit) of the Con\eniion and hel<linliilmii\ihle. In tliizonicxt
we also refer to and adopt Australia's argument about the automatic-type
reservation to an optional clause declaration being contrary ta the policy of the
Statute and, therefore, void. [Nirclear Tests,sitting of 22 May 1973.1
1 will now revert to Judge Onyeama's question, which was: "What in your
view is the legal effect of Pakistan's failure to object to India's reservation to
Article IX of the Genocide Convention?"
It may be that Pakistan did not enter any specific objection to India's
reservation, as such, because-and 1 shall return to this in a moment-for the
reasons 1 gave in answering SirHumphrey Waldeck's first question we regarded
this reservation as being inherently invalid, and therefore nuIl and void, irre-
spective of whether any objection was or was not taken to il.
However, Pakistan did in fact, by a different process, object to this reserva-
lion, because we publicly objected to any reservations at al1being made to the
Genocide Convention. In fact Pakistan has consistently taken the stand that the
convention could no1 properly be subject to reservations.
1may refer here to the statement of Pakistan in the General Assembly of the
United Nations, when the Advisory Opinion of the International Court of
Justice was being discussed. The representative of Pakistan stated-and 1
quote from the Summary Record:
"Mr. Ali (Pakistan) did not intend to examine in detail the various
i~pinii~,?~xpressed Juring the di\;usri<in but trislied ti~make ssnic com-
menis on rhc queitii~n of reserraiionj to the C'on\eniinn on Genoride.
While condering the Court's opinion with 311 the respect duc to it, he74 PAKlSTANlPRISONER OSF WAR
keenly regretted that he wasunable Io accept an opinion which did not take
account of the humanitarian asnect of the oroblem. It was not without
value to recall the atrocities coimitted. for purposes of racial extermina-
tion,against groups of human beings, in particular women and children.
After seeinasuch deeradina acts. it was cornfortina to find that the human-
itarian feeling$a.hich ihouïd ani'mîte îny civilizefsoïiet).had inqpired the
drtfiing of the Convention on Gçni>cide It seemed scîrccly conceiiable
.Iem~.asizethesewords that Mr. Ali. the re~resentative of ~akistan. said
'II seemedscarcely conceivable'] thatthe gi;ing of a certain flexibility Io
that convention should now be visualized, and it was in any casecontrary
to the orincioles of the Charter. accordinp.to which Stateswere determined
'10 reaffirm faith in fundamental human Ïights, in the dignity and worth of
the human person'. No reservation to the Convention on Genocide could
be examined in the lieht of the so-called criterion of compatibilitv with the
aim and purpose oflthe Convention. The terms of 'compatil;ilityx and
'incompatibility' could be given no clear legal definition, and consequently
th<:adootion of that criterion would xive rise Io the most serious dangers.
as the United Kingdom representativë had stressed.No one could dispute
the fact that the Convention on Genocide, in view of its very nature, and
scope, could no1 be the object of any reservation whatsoeve;." (UN, CA,
OR, 6th Session, 1951-1952,Sixth Committee, 7 November to 29 January,
at p. 88.)
This hasalways beenand continues to be Pakistan's position today, and even
if Our statement in the General Assembly was a little too sweeping, becausewe
realize that some reservations may be trivial or only technical, it was un-
questionably intended to relate to and cover any reservation of a fundamental
character such as, for the reasons 1gave in replying to Sir Humphrey Waldock,
the Indian reservation clearly is.
However, we go further than this, and contend that ex liyporhcsi there can be
no necessity to objert to an inherently invalid reservation. Objection, or non-
objection, can only be relevant in those cases where, in the abscnce of any
objection, the reservation could become valid. When the reservation is in-
herentlv invalid Der se. irresoective of obiection. it is a nullitv and void ab initio.
~ons&ently, there isnothing to which an objection couid attach. Objection
cannot invalidate what is already invalid. nor can failure to object validate it.
Accordingly, the question of objection or non-objection becomes immaterial
in relation to this type of reservation. This is really the short answer we would
give Io Judge Onyeama's question-namely that even if Pakistan had no1
declared a general objection to reservations Io the Genocide Convention, the
absence of any specific objection to India's reservation would not have any
adverse legal efect on Pakistan's position, becausethe reservation was in any
casevoid. 1shall indicate later, in my comments on India's letter of4 June', why
we contend that this did no1 produce the further effect of causing India no1 Io
be, or to ceasebeing, a Party to the Genocide Convention.
1come next to the question asked by Judge Jiménezde Arechaga which was
as follows:
"Has the Govern~ ~ ~ ~ ~ ~ ~tan addressed to the desoositarv anv
. .
communication, declaration, notification of succession or accession
regarding the 1928Geneva General Act or the 1949 Revised General Act
oi the ~acific Settlement of Disputes?"
' Secp. 139. infra. AROUMENT OF MR. BAKHTIAR 75
The answer to this auestion. in the terms in which it is framed. is that the
Go\ernment of ~aki;ian hapniir sddrejrcd to the depositnry nny iommunisa-
lion, de~lararion, no11ri:atisn si ,u:cession or accession regarding the lY2h
General ,\ci for the PdcificSeltlemenr of Disnute*. and Pdkistan has nor iiccedçd
ta the 1949 Revised General Act. ~oweve; so far as the 1928 General Act is
concerned, Pakistan contends that she was, as a matter of law, a separate party
to this treaty as from 14August 1947,the date of independence, and absence of
notification to the depositary cannot of itself undo or nullify that. We know
of no text or principle of law which could cause Pakistan to cease to be a party
to the Act of 1928. if she was one. merelv be.au~ ~ ~ ~ ~-~ ~ ~ation was not
made, particularly in circumstances where there was no positive obligation to
do sa. In any event, notification isessentially a formal step and the absence of it
cannot in our view cancel substantive riehcs.
In answer to this question 1would make two further submissions. First, that
Pakistan was not a new State and hence there was no requirement of notice, and
secondly, even if there was such requirement, sufficientnotice was in fact given
hy Pakistan.
1 respectfully suhmit that there was no requirement of notifying succession
on the Government of Pakistan hecause Pakistan, as already submitted, was,
not a new State, but a continuation of the old personality of British India. It
was not a case of Pakistan seceding from India, but of a partition of British
India into two States, hoth of which carried on the personality of the former
one. This is a position that Pakistan has.consistently taken and which was
declared by Pakistan in its very first statement before the General Assembly of
the United Nations. to which 1 shall oresentlv refer. In this resoect Pakistan's
position has always been clear and Consistent with regard to succession to
multilateral treaties entered into by British India. We have, as 1 suhmitted in
mv oral submission earlier this month. faithfullv followed the Indian Indeoen-
d&ce (International Arrangements) 0rder 1947, which 1 have quoted eailier.
Hcre 1may, with the permission of the Court, give the historical background to
the said lndian ~ndeoendence (International ~~ ~n~em~~~--~O~ ~r ,917.so that
the position may hemade clcar beyond doubt that Pakistan along with'lndia is
a successor to the personality of British India.
Both the Dominions of India and Pakistan were estahlished on 15 Aunust
1947under the Indixn Independerice ,\ci pa,>eJ hy the British Parlidnient. '11is
noteaorrhy thai Sc:tioii IX. p.irdgrjph 1.,\rticle 1.of the Indian Independcncc
Act provides as follows-1 will ail; read the first'section and its subsections:
"(1) The Governor-Generalshall by order make such provision as appears
. to him to he ne;essary or expedient:
(a) for bringing the provisions of this Act into effective operation;
(6) for dividing between the new Dominions, and between the new
Provinces Io be constituted under this Act, the powers, rights,
property, duties and liabilities of the Governor-General in Council
or, as the case may be, of the relevant Provinces which, under this
Act, are to cease to exist;
(c) for making omissions from, additions ta, and,adaptations and
modifications of, the Government of lndia Act, 1935, and the
Orders in Council, rules and other instruments made thereunder
in their application to the separate new Dominions."
Throughout a picture appears of the old India emerging iito two niw
dominions.76 PAKISTANI PRISONERS OF WAR
"(dl for removing difficultiesarising in connection with the transition
to the provisions of this Act;
(e) for authorising the carrying on of the business of the Governor-
General in Council between the passing of this Act and the
appointed day otherwise than in accordance with the provisions
in that behalf of the Ninth Schedule to the Government of India
Act, 1935."
1respectfully draw the Court's attention to this provision, because what hap-
pened was that from the day the Act was passed till the appointed day, that is
15 August, when freedom was to come. the administration of the countrv was
carrici un iinder thii Act, author.,ing the :.irrying on of the bu,inî\\ ;f the
G~vernor-Gcneri in C'oun:il bctueen the p.i,,ingofihi,Act dnd the 3ppoinied
day, otherwise than in accordance with the orovisions of the Government of
lndia Act. It means a partition council was ;et up, two separate cabinets for
future governments were set up and they carried on the business. All important
decisions were carried on with the consent of the Iwo future cabinets which met
together through their representatives in the partition council.
"(f for enabling agreements to be entered into, and other acts done,
on behalf of either of the new Dominions hefore the appointed
day."
Agreements could be entered into on behalf of the Dominions before the
appointed day, that is before 15August.
"(g) for authorising the continued carrying on for the time king on
behalf of the new Dominions, or on behalf of any two or more
of the said new Provinces, of services and activities previously
carried on on behalf of British India as a whole or on behalf of
the former Provinces which those new Provinces represent;
(h) for regulating the monetary system and any matters pertaining
to the Reserve Bank of India; and
(i)so far as it appears necessary or expedient in connection with
any of the matters aforesaid, for varying the constitution, powers
or jurisdiction of any legislature, court or other authority in the
new Dominions and creating new legislatures, courts or other
authorities therein.!'
It is thus sufficientlyclear from this section of the Indian Independence Act
that two new dominions were to replace the old personality of British India,
namely, Bharat-that is, India-and Pakistan. Here 1 may also respectfully
draw the attention of the Court to the Indian Constitution. The Court will be
pleased to find that the Indian Constitution 1 believe in the first article states
"India", that is, Bharat. For interna1 purposes the country is called Bharat,
for external, internationalDurposes the countrv is called India.
After the passing of the 1nd:ian1ndependencLAct and hefore the two domi-
nions came into existence, a Partition Council was set up which was composed
of the representatives of the two future dominions. All decisions of imoortance
with regard to the partition of the country were taken in this ~ouncil, which
was presided over by the Governor-General of British India but which had in
fact a tripartite character, because the Cabinets of the future dominions had
already started functioning under Section IX of the Independence Act. Several
expert committees were set up to suhmit reports to the Partition Council with
a view to facilitating the partition of the country in various fields. Expert ARGUMENT OF MR. BAKHTlAR 77
cornmittee No. 1X dealt with foreign relations. The terms of reference of this
committee, as given in thePartirioiz Proceedingsl,Volume III, at page 203,may
be of interest to the Court. The first term of reference was:
"To examine and make recommendations on the effect of oartition4i)
on the relations of the successorGovernments with each otcer, and wGh
other countries (including the countries of British Commonwealth and
border tribes)."
1will not go further into theseterms of reference at the moment. 1 respectfuily
draw the attention of the Court to the words "successor Governments", that
is to say that hoth governments were to be the successorgovernments. This
committeesuhmitted its reoortwhich came ~ ~ ~o,before a hieher ~om~i~~ ~ ~alled
ihe Stcering Conimitice. Tlie Siecring C'oniniittee in iii note <inthe ssiil repiirt
of tlie thpcrt C'ammiitcc No. IX starcd 2s f,>lloi\;:
"The report of Expert Committee No. IX appointed to examine the
effect of ~artition on foreian-relations is attached. The Steerinr Comm-ttee
are in substantial agreement with views expressedtherein and recommend
that the conclusions reached by the Committee be approved.
2. The Exoert Cornmitteehas beenunableto reach~anapred decisionon
II!,. itiriili~iil pi?>iti,,i~rcpor,li,rg rl,e ii,r,~iii,l<~rsuii<rlirh,)' /,r</i011.1
P<>iihi.~r(~a,irngrdphi Il ;ilid 15) <in,/il.<,.19zcr,i]'i,>roit irtirr~.uhli~virii»is
(~ar~crxrihs 13 xiiJ 441 ai>./,,i<,i>iht,r~lr>Ii,i~<,r,rotio,i<ii,li~,,o,\~rr~>t.he '
.. - . . -
Steering Committee propose to put up separately a note on this subject
for consideration by the Partition Councii at a iater date."
The Steering Committee's note was put up before the Partition Council and
the Partition Council dezided as follows:
"The Council approved the recommendations of the Steering Committee
on tlie report of Expert Committee No. IX.
The Council noted that the Steering Committee would put up separately
a note for considcration on the iuridical oosition regardinr th~-int~~~~
national responsihilities of India and Pakistan and its effect, if any, on
treaty obligations and membership of iiiternational ~r~anirations."
In compliance with the decision of the Partition Council. the Steerinc Com-
miitec prcpsred a note on ilie jurldicdl p<r\irioii regsrdin~ iiiternlttisndl Pr-
io~idil). mil ireaiy ohl!g.~tion\. I hi, noie rr3.prep~rc<lhy hlr. Patelrr'prc.cnring
Indix, hut 3lr. \l<ih.ininied Ali, re~rcbcniinr Paki\t.in. dld not sub,~rihc to ilie
views set out in it. 1 read from the ~teerinP~ommittee's note on the iuridical
u ~ ~ ~ ~~ ~~ ,~
p<~,irion regdr.lina ilic int~rn:ii~on;il pcrioii;iliiv and iir eik:i <in in[ern;iiion<il
riblig.~tions ;ippcirinx on pxgc 291 oithe Pi~rririi»iPr~~<~~~~~. /r,iurii,ic 111:
"The attaclied note on the juridical position regarding the international
personality of lndia and Pakistan and its effect on international obligations
has beenprepared by Mr. Patel and is based on a summary of the corre-
spondence exchanged tetween the Secretary of State for India and His
Excellencv the Governor-Generai. Mr. ~ohammed Ali does not subscrihe
to the iiew ieiin il. Ile consider. (2nd 1re~pe:iiully drda the .~tteniion of
tlic Couri th31r~~lii from the berinning, uhur 1'akisi;in'i \innce hiii hccn 1s
what Mr. Mohammed Ali's view has exoressedl that the oresent Govern-
ment of India will disappear altogether as an entity and ;il1 he succeeded
Seepp. 156and 171,infra.78 PAKISTANI PRISONERS OF WAR
by tua indepcndeni I)uminions ofequïl intcrnationïl status both of ahom
will be eligible to lay claims io the rights and obligations of the prescnt
Government of ~ndia.
The note is submitted for the consideration of the Partition Council."
This note was submitted to the Partition Council, where the views of Mr.
Mohammed Ali and Mr. Patel were considered. Pakistan had in the Council.
by iiay oi~omproniisc and I entphasire this, b)<\&y ufcunipr61nii\e-«greeJ
ihlii Hriti\h India', member,hip of inicrnational organi7aiioni Iihe the Unitcd
Nations nould de\ol\e on ihc donlinion oilnrlia but insi,ted-dnd I rïdd frorn
the PartitionCouncil's decision appearing on page 292of the PartitionProceed-
ings,Volume III-that :
"Pïkirtan'r i,iewpoint uas, hoiievsr,thdr horh Doniinionïshoulda.\\ume
211intern~tionlil i>hligürioniand cnjoy iilrtghis rtrising oudi treatier and
agreements neaotiated bv the existina Government of India or bv His
~ajesty's ~ovërnment acting on behGf of the Dominions overseas-.The
practical advantage of this course would be that Pakistan would not have
to neaotiate afresh in rerrard to such matters.
111;E\cellcniy suggcsÏcd ihai \Ir. Coohe, the Constiiuti~nal ,\driscr,
shoulrl heaiked iuevi>lte. if pi~iiihle,a formula irhich n,ould meet ihecaie
of boih sides. He would dace ihis formula hefiire thc I'akiiiïn and Indian
Cabinets for consideration when they met ta consider the adoption of
Adaptation Orders."
Before the decision could be put into an Order, as 1have already submitted, the
two Governments were already meeting and contemplating them. Then the
decision of the Council is given in the same volume and the same page:
"The Council agreed that the Constitutional Adviser should be requested
ta evolve, if possible, a formula which would meet the case of both sides.
Such a formula, if evolved, would be placed before the Pakistan and
Indian Cabinets for their approval."
Consequcntly,afier a11ihai appro\aI wa\ obtained lind a fi,rmula eti~lvrd, ihe
Indian Indcpendcn~c (Internaiion;il Arrangements) Order, 1947, was proniul-
eated. 1bes leave of the Court to read this 0rder a-ain. It .o.ears on .a-e 293
of the sami volume:
"The Indian Independence(International) ArrangementsOrder,
14 August1949
Whereas the agreement set out in the Schedule ta this Order has been
reached at a meeting of the Partition Council on the 6th day of August,
1947;
And whereas it is intended that, as from the 15th day of August, 1947,
the said agreement shall have the force and effect of an agreement between
the Dominions of India and Pakistan:
Now therefore inexercise of thepowérsconferred upon him by Section IX
of the Indian Independence Act. 1947. and al1other powers enablina him
in that behalf, the~overnor-~ineral herehy orders as follows:
This Order may be cited as the Indian Independence (International
Arrangements) Order. 1947.
The agreement ict out in the Schedule ru this Order shsll, as irom the
appointed drty [ihat i>,15August 19471.have the elreci of an agreement
dulr miide hetuccn the Dominion of Inùia and the Dominion of Pa- ARGUMENT OF MR. BAKHTIAR 79
Agreement as ta the,devolution of international rights and obligations
upon the Dominions of India and Pakistan:
1. The international rights and obligations Io which India is entitled and
subiect immediatelv before the 15th day of August, 1947, will devolve in
accordance with the orovisions of this ameement
2. (1) ~embership if ail international-organisations, together with the
rights and obligations attaching to such membership, will devolve
~~Ï~. .uoon~ ~ ~~om~nion of~l~ ~a
tor the purptiws of this pdragrdph ails rights or ohligatioiir arising
undcr the 1inal Act or the United Nations Monctary and tinanciiil
Conference will be deemed to he riahts or ohliaations attached to
n~emker,h/~ t~fthe Intern~tianal hloietar). tun&nd to membership
of ihc Interniitioiial Rank iur Rccon>tru;ii~in and Dc\clopment.
(2) The Dominion of Pakistan will take such steps as may be necessary
ta apply for membership of such international organisations as it
chooses to join.
3. (1) Rights and obligations under international agreements having an
exclusive territorial application to an area comprised in the
Dominion of India will devolve upon that Dominion.
(2) Rights and obligations under international agreements having an
exclusive territorial application to an area comprised in the Do-
minion of Pakistan will devolve upon that Dominion.
4. Subject to Articles 2 and 3 of this agreement, rights and obligations
under al1international agreements [Mr. President, kindly note the words
'ail international agreements'] to which India is a party immediately
before the appointed day will devolve both upon the Dominion of India
and upon theDominion of Pakistan, and will, ifnecessary, be apportioned
between the two Dominions."
Again, on being admitted ta the membership of the United Nations the
representative of Pakistan declared as follows, as late as August 1947:
"In one sense. the admission of Pakistan to the United Nations is not
the admission ofa new member. Until August 15of this year, Pakistan and
India constituted one State. On August 15 they agreed to constitute them-
selves into Iwo separate sovereignStates. One &ose Io continue to cal1
itself by the old name of India, which had applied to the whole of the
country, and the other elected Io cal1itself by the name of Pakistan.
Inasmuch as Pakistan had been a part of India, it was, in effect, under
the latter name, a signatory ta the Treaty of Versailles and an origi-
nal Member of the League of Nations.. . In the same sense, Pakistan,
as a part of India, participated in the San Francisco Conference in
1945 and became a signatory to the United Nations Charter. There-
fore, Pakistan is not a new Member of the United Nations, but a co-suc-
cessor to a Member State which was one of the founders of the Orga-
nizatinn."
Pakistan did not suhscribe Io the viewof the secretariat ofthe United Nations
that it was a new State, and that view has been criticized by Professor D. P.
O'Connel1in his leading work on State succession, as follows:
"The opinion of the Secretariat has been criticized as drawing an im-
proper analogy from the cases of the Irish Free State and Belgium. In80 PAKlSTANlPRISONER OSF WAR
those casesthe old sovereignsactively participated in the act which created
the new States. The creation of Pakistan, on the other hand, was not the
act of India, nordid India directly participate in it. It was a division enacted
by a constitutional superior, and in no sense of the word could it he
considered that there was any secessionon the part of Pakistan. Both the
Dominions were in the position of new States." (State Successiot~ in
MunicipolLaw andInternarionalLaw, D. P. O'Connell, Vol. 1, p. 8.)
In the Security Council France accepted Pakistan's original argument,,and
maintained that Pakistan~h~ ~~nherited. alone with India. the orieinal member-
..
rliip oi Hriii,h 1nili.t. 2nd ihii iherr.C,ire n.1 applicsti,>n for nicnihcriliip ua;
nece,s;,ry iC\: do<. S 496. IX AuAusr 19.47).Ai the opening oi ihe debaie in the
~eneral~ssembl~ on thequestion of admission of ~akistin, the representative
of Argentina declared that in his view Pakistan was already a Member of the
United Nations since, with India, it inherited the original membership held by
the previous Indiaii Government.
It is noteworthy that these and many other United Nations Members
regarded Pakistan to have succeeded, along with Bharat, to the rights and
obligations of British India. Pakistan's own attitude, which is the determining
factor in these circumstances, has consistently been to regard in herself the
continuation of the personality of British India.
Pakistan's attitude in this respect is also illustrated by her communication as
regards automatic succession to international labour conventions. Whenever
an oooortunitv arose and whenever we were asked to state Our ~osition, we
said 50. On this and on other occasions, as 1 said, Pakistan's attitude in this
respect is also illustrated by her communication asregards automatic succession
to international labour conventions. Pakistan communicated to the Inter-
national Labour Organisation as follows:
"1 ltm ii, itxic ihli ilie Ciov~.rnmt.nt <if I'aki>ian rec<>gni\cdihxi ihe
~>hli~~iioiisrçsuliing froni the Intcrniiioii;il Labour Con\cntioiis rdtiiied
hy Inrlilt prior ti>Augiiit 14 1947,continue 10 hc hinding up,iii I'aki>t.tn in
a:<ordan;e \iiih ihc icrm, ihcrdof." (Foreign Se:rei.tr) of P;,kisian id 11.0,
O.aih<.r ?Y 1917 -0Jfii.i~iIti,,l/,~ri,r,\',IIXYX. \'o. 5. 1947, p. 334.1
1 respectfully submit that the background leading to the partition of British
India, which 1havejust brought to the notice of the Court, as also the attitude
and practice of Pakistan, clearly shows that Pakistan, along with Bharat,
succeededto the ner7o~ ~i~v~ ~~,ritish India. and hencether~ ~ ~ ~n automatic
dc\ol~tion of ltll ;Igrecmeriir on hoih the ncu doniitiions. In :onscqucnze. iherc
n.ts iioohligatii~n on P;ii,isian r\i noiif).>u:cei.;ion under rhc Gencri~l Act of 1928
I nia!. also rercr1%)the ;~iiiiude oi ilic prcde<ei,<ir Sixte un rhi\ que\ti<in. and
jubniit ihdr <<;thregard to ihc iran,m~iiion ofper\onalit! itissurcl) theartitujc
of the ~redecessor and the successor State which must determine whether
the same pcrs<inïliiy sonrinucd. Thui the Se~reiar! of Sihie for Coniniom\ealrh
Relations sia1r.Jin the Iloure of Cornmon, on 30 Junc 1949ihai in ihc I3ritish
Government's view:
"Pakistan is in international law the inheritor of the rights and duties
of the old Government of India and of His Maiestv's Government in the
United Kingdom in these territories and that thé~Lrand line is the inter-
national frontier." (446 Houseof Commonsdebares 5 S.: 1491.)
In view of the fact that Pakistan was a successorto the personality of British
India there was, as stated earlier, no need for notification of succession. ARGUMENT OF MR. BAKHTlAR 81
Even if it be assumed that Pakistan was a new State, and that consequently
its consent to the continuation of the General Act needed to he estahlished de
novo, Pakistan did give sufficient notice of its intention to other States to be
bound by the multilateral treaty obligations of British India. In this context 1
aaain drawattention to Pakistan's verv first statement beforethe United Nations
Genera~ Assembly which was a notice to al1 member States, including India,
that Pakistan regarded itself as having succeeded to the obligations of British
India under mul~ilateralconventions. Iquote the part which isdirectly relevant:
"Inasmuch as Pakistan had been a part of India, it was, in effect, under
the latter name, a signatory to the Treaty of Versailles and an original
member of the League of Nations. ..In the same sense, Pakistan, as part
of India. ~artici~ated in the San Francisco Conferencein 1945and becarne
LIsign-itoiyIO the Ilnitcd N'ttions Chiirrcr. Thcreforc I>aklsrùnISiiotù ncrr
nicnibcr ui the Cilitcd Ndtiotic. but.20-sui;casur of a rnernher Stale\i hisli
was one of the founders of the Organization."
India itself had notice of Pakistan's succession to al1multilateral conventions
entered into by British India before partition, since this was clearly stated in
Article 4 of the Agreement as to the devolution of international rights and
obligations between-India and Pakistan.
In this context it is to be noted that Article 7 of the International Law
Commission draft Article on State Succession in Respect of Treaties, which
India has relied on in its letter of 4 lune (p. 139, infra) lys down that a new
State, in relation to any multilateral treaty in force in respect of its territory at
the date of succession, is entitled to notify the parties that it considers itself a
. .rtv to the ~ ~ , ~~ ~~~ ~own r-eht. It is not stated that~- - eivine of such notice
is a condition of enjoying the substantive rights provided for hy the treaty.
However, we contend sufficient notice was given by Pakistan's general statement
to which 1 have iust referred. and bv virtue of the treatv between India and
Pakistan on the dévolution of iights and obligations under international treaties.
We therefore submit that this constitutes sufficient notice as between Pakistan
and India. which is what matters for the D. .osesof the nresent case
In any case a formal notification of succession is not necessary. It may be
noted that the lnternational Law Commission has defined notification of
succession as follows:
"'Notify succession' and 'notification of succession' mean in relation to
a treaty any notification or communication made hy a successor State
whereby, on the basis of its predecessor's status as a Party, contracting
State or signatory to a rnultilateral treaty, it expresses its consent to he
bound by the treaty."
In the commentary the International Law Conimission goes on to state:
<<.. .' notify succession and 'notification of succession'. These terrns
connote the act hy which a successor State expresses and establishes on the
international i la nies consent to be bound by its predecessor's expression
of consent to be bound by the treaty in respect of the territory whjchisthe
subject of the succession."
Clearly the expression of the will to continue to be bound rnay be expressed
without followine anv formal nrocedure.
It is relevantal& to mentionthe League of Nations practice in dealing with a
change of status. The International Law Association, in its work, TheEffectof
Independence on Treofies, in this respect has stated on page 172 as follows:82 PAKISTANI PRISONERS OF WAR
"The problem arose in the League of Nations in connexion with Burma, which
was separated from India on 1 April 1937 [The Court will be pleased to note
that Burma was never a part of India. It was just, for Parliamentary and ad-
ministrative purposes, an extra involvement of India. That was a case of seces-
sion actually, but even there, with the League of Nations help, it was separated
from India on 1April 19371,and thereafter possessed the status of an overseas
territorv of the United Kinzdom of Great Britain and Northern Ireland. The
~ccreu~~-~cncr~loi the I c&ue of Niition,, in the ei;ercisr of the funciions as
deporiiary, hcld rhdt hrma continues 10 bc boiind by a rdtificatiun or iicccb,ion
recorJeJ on i-r,hÿlfof InJia heforr rhr date abose meniioncd. Raiiiicüiions or
accessions recorded on behal'fof India since 1 April 1937 are not, of course,
binding on Burma."
It would appear therefore that the practice of the League was to accept
automatic inheritance to the rights and obligations of the predecessor State.
Before 1 go to the next question MI. President, 1 have to make some other
submission on the question asked bv Judee Jiménez de Aréchana. Mv last
submission on the cqiestion posed by Judgejiménez de Aréchaga relatesio the
connection that exists hetween a devolution treaty, devolution agreement and
notification of succession. My submission is thata devolution agreement acts
as a notification of succession vis-à-vis third States. Thus, Professor D. P.
O'Connel1states at page 371 of his work on State succession:
"It is believed that the devolution agreements are confirmatory of a
general succession to treaties under international law, and are intended
mainly to put other parties on notice of the successor State's affirmative
policy."
Pakistan clearly put other parties on notice of its affirmative policy in respect
of succession to multilateral conventions, and on this point 1 would like to
quote from page 185 of O'Connell's State Successionin Municipal and Inter-
nariorialLaw, where he states as follows:
"On 27 August 1947 the United Nations was informed of the promul-
gation on 6August of the Indian Independence International Arrangements
Order, 1947 [as far back as 27 August 1947 the United Nations was
informed bv Pakistan about the Indian Indenendence International
~rrangeme~ts Order, 19471which achieved a devilution of British Indian
treaties, where relevant upon Pakistan. On the day of Pakistan indepen-
dence. the Minister for Foreien Affairs of that -countrv informed- the
Secretary-General that in his ~ivernment's view both lnoia and Pakistan
were automatically Members of the United Nations."
It is therefore clear that Pakistan, by communicating the devolution agree-
ment to the United Nations. . -ave sufficient notice to third States that~it ~ ~hed
to e~ersise ils righi oi ~oniinuing IO be hound hy muliilateral treatics entercd
into by British India. I mliyeniphdsile ihsi the Iniernaiisnal Law Commision
in iti driifi articlei on thLaw of Treatiei hlid de;larîJ that a Statc hacla right
10 succession of niultil~teral trcatici entercd into by the predcccsror Stlite, and
iihaJ alio ken made clcïr. ai mentioncd hy me earlicr. that thç act oCnotiiying
succession need not be formal in nature. hat te ve mrieht be the oosition bith
respect to other States, as far as India isconcerned no n&ce was needed because
India was a party to the devolution agreement.
The Court adiournedfrom 11.15ro 11.35 o.m. ARGUMENT OF MR. BAKHT~AR 83
Mr. President, 1 shall now pass to the second of Judge Sir Humphrey
Waldeck's questions. This was as follows:
"Does the Government of Pakistan agree with the statement of the
Indian Government, in its letter of 4 June, that the General Act of 1928
is not included in the list of treaties that was drawn UD bs the Exwrt
CommitteeNo. 9; and, ifso, in the opinion of the Governmeni of ~akistan,
does that affect the devolution of that agreement as between the two
Governments?'
Apparentls, the General Act was not included in the list of treaties drawnUD
by Eiperi ~;niniittec Ku. <)The Iiiof ircjiics is in rii3y .iic\liaiisiiie one
and UJS composeJ ior 1112he:ielii di the mcmher, of ihe Expert Cominiiiee
Su 9 on I:oreirn I<clarion.;.35iould be wcn ir.m Volume III ui the I'ariition
Proceedings. ~his list was madeup byasking various ministries and departments
to communicate names of treaties to be included in the list. An examination of
the listwill show that a great nun~ber of treaties to which British India was a
Party have been omitted from it. The list was drawn up for administrative
convenience and 1 would respectfully draw the attention of the Court to
some of the many instances of omission, irrelevance and duplication in
the list.
In TlieEfecr of Independetice on Trealier, the International Law Association,
in their book, at page 109, Appendix 3, lists 45 Extradition Treaties with
foreign countries executed by the United Kingdom Government on behalf of
India hefore independence, and still in force. Of these 45 treaties, only two are
included in the list prepared as Annexure V. These Extradition Treaties are
with Iraq and Siam.
A bilateral Air Transport Agreement tetween lndia and the United States
of America appears both on pages 221 and 252 of Volume III of the Partition
Proceedings, which shows the superficial manner in which the list was hurriedly
prepared.
1 may also mention that included in the list are sonie treaties which were
specifically mentioned as not devolving on either India or Pakistan as they
concern direct relations between the British Crown and Bahrain. Also included
in the list, at pages8and 229, etc., are treaties with Indian rulers which, under
Section VI1of the Indian Independence Act, had terminated or lapsed. 1would
draw the attention of the Court to Section VI1 of the Independence Act, which
says:
"(1) As from the appointed day-
(a) His Majesty's Government in the United Kingdom have no respon-
sibility as respects the government of any of the territories which,
immediatelv before that da". were included in British India:
(b) the suzerainty of His ~ajegi~ over the Indian States lapses, and with
it, al1treaties and agreements in force al the date of the passing of this
Act between His ~aiestv and the rulers of Indian tat teal1.functions
exercisable by His Maje;ty at that date with respect to indian States,
al1 obligations of His Maiesty eïisting at that date towards Indian
States or the rulers theréof,. and al1 powers, rights, authority or
jurisdiction exercisable by His Majesty at that date in or in relation to
Indian States by treaty, grant, usage, suRerance or othenvise."
As 1was submitting, also included in thelist at pages 228and 229 are treaties
with Indian rulers which, under Section VI1 of the Indian Independence Act,84 PAKISTANI PRISO~RS OF WAR
had terminated or lapsed. On page 228 there is a treaty with Khan of Kalat
of 1899; again with Khan of Kalat in 1903; again with the Jam of Las Bela
(an Indian ruler) of 1861, 1889, 1896,1901and 1925;then the ruler of Kharan
in 1885and 1909.And it goes onto indicate treaties with several Rulers-these
treaties are given on pages 228, 229,etc. These treaties had lapsed. They had no
status whatsoever.
This would show that the list was neither exhaustive nor free from error. It
was obviously drawn up in great haste and there is nothing ta show that it was
ever verified. Neither the Indian Independence International Arrangements
Order-and this isimportant Mr. ~residënt-nor the devolution agreement that
it embodies, makes a reference to this list, nor is it included in the schedule or
annexure to that Order.
It does not, therefore, rank as an authentic statutory document, and is not
also connected ta the devolution agreement. The proceedings of the Partition
Council do not disclose that the list was ever examined or dehated upon. Thus
the absence of the General Act from the list is not of any significance and does
not affect the substance of rights and obligations of Pakistan and India as
defined in Article IV of the Agreement between India and Pakistan of 15
August 1947regarding the devolution of international rights and obligations
upon the Dominions of India and Pakistan. The operation of that agreement
is in no way circumscribed by any list nor is any list hy itself creative of rights
or obligations which were created by Article IV of the said Agreement. 1shall
respectfully draw attention once more to that article:
"Subject to Articles 2 and 3 of this agreement, rights and obligations
under al1international aereements to which India is a oartv II emvhasize
the words 'al1international agreements'] immediately beforéthe appointed
day will devolve bath upon the Dominion of India and .. .the Dominion
of~pakistan, and will,~if necessary, be apportioned between the two
Dominions."
This article makes no distinction between international agreements to which
India was a party immediately before the appointed day. All these agreements
devolved both upon the Dominion of India and upon the Dominion of
. .......~ ~
The International Law Association Handbook, entitled The Effect of
Indeoendenceon Treaties. o. .ished bv Stevens in 1965.contains the followins
statément on page 92:
"When India became independent in 1947, a list had been drawn up of
627 treaties.~e~~~~,~~-~~ne on India. Of these. eleven affected India. ex-
clusively, 191affectedpacstan and 425were ofcommon interest. ~rofessor
Alexandrowicz. in his lectures at The Hague Academy, delivered in 1961,
lists a laree nukber of treaties made with-the Indian Princes before Great
Britain took over the territory, including some made by the East India'
Company. Very few of these treaties are included in the total number of
627, but this is not necessanly significant because, as we shall see, the
International Court in the Rights of Passage Case upheld the succession
of both India and British India to a treaty between the Portuguese and the
Marathas, which is not included in the list, nor did the list include the large
number of treaties made by Princely States which subsisted until 1947.It
may be that the actual lists should be greatly increased to include India's
succession to treaties made by the pre-British sovereigns on various parts
of Indian territory." ARGUMENT OF MR. BAKHTlAR 85
Thus the International Court of Justice recognized, in the Righrof Pussuge
case, that the list is not exhaustive, and upheld the succession of India and
British India to a treaty not included in the list.
The third question of Sir Humphrey Waldock was a follows:
"Would the Government of Pakistan be noo- enouah t- exolain further
its argument-if 1understood it correctly-that the devolution agreement,
contained in that Indian Independence lnternational Arrangements Order
of 1947. contained an agreement which devolved of its own force on the
~overnhent of ~akistan and the Government of India so as to create
mutual obligations between them in connection with the General Act of
Geneva? If you could be good enough to explain a little further your
argument upon that point."
In answer to this question, 1 would submit that the title of the Indian In-
dependence International Arrangements Order of 14 August 1947 mav be
sometrhat misleading. as iireally\etiout a bilateral agreemeir rïached heiuecn
Indi3 and Pakist3n 3>to the Jeioluiion of internattonal rights and obligation>.
It is to be noted that the very first preambular paragra~h of the Order states:
"Whereas the Agreement setout in ihe ~chedule-to this 0rder has beenreached
at a meeting of the Partition Council on the 6th day of August, 1947." The
so-called Order, therefore, merely evidences the agreement already reached by
the two countries inthe Partition Council. The PartitionCouncilwasaooarentlv
set up after 3 June 1947, under the lndian IndependenceAct,and hy aireemeit
it continued to function even after partition of British India and the estahlish-
ment of the two dominions. 1refer to the work of Mr. V. P. Menon. the then
Constitutional Adviser to the Governor-General of British India, TII TLroirsfer
ofPower in Indiu. On page 397 the learned author states:
"By an Order of the Governor-General under the Indian Independence
Act, 1947.the Partition Council continued in existenceevenafter 15August.
Its composition was then altered to include two members drawn ?rom
each of the Dominion Cabinets. India's representatives were Patel and
Rajendra Prasad, while Pakistan was represented by such ministers as
were able to attend the meetings in Delhi."
The International Arrangements Order then goes on to state: "Whereas it
is intended that ... the said agreement [that is the agreement set out in the
schedule] shall havethe force and eiï'ectof an agreement betweenthe Dominions
of India and Pakistan."
Il is therefore clear that the agreement set out in the schedule of the Inter-
national Arrangements Order was an international agreement between India
and Pakistan. The Order, although in form an act of the former British India,
evidenced this agreement. Consequently, independently of any general law
regarding State succession,Article 4 of the said Agreement mus1apply between
India and Pakistan.
We submit that the General Act for the Pacific Settlement of Disputes of 1928
is an international agreement which, under Article 4 of the said Agreement,
devolves both upon the Dominion of India and the Dominion of Pakistan. The
Government of Pakistan can, therefore, invoke the provisions of the General
Act as against India. This ground is indeoendent of anv riaht of Pakistan to
ini,oke the Gcneral Act of 1524by \,irtue of the gencral lia ;f Sraie suc~cssion.
I noii. iumç to the secondpïrt oimy riatemeni and will make someiommçntb
on the Indian leiier <i4Junc 1973.addrcsscd IOthe Keristrar i)f the Court. in
which further objections to theurikdiction of the Court have beentaken. HOW-86 PAKISTANI PRISONERS OF WAR
ever. 1make these comments without oreiud.ce,to Pakistan's oosition in reswct
uf thcrc viirious Indian communicdtions !ihich isthat the" ha;,c becn sent ta;the
Court incomr>letcdisregard of the ~roccdurc laid d<in,nin the Statuie and I<ulri
of Cour~~~.~~ ar~~n~~~ ~mmunicaiion~ ~ ~ ~~ch the Court should take coeni- -
zance. Nevertheless, we are confident that any point as to jurisdiction that has
been mentioned in these letters can be effectivelymet by us at the iurisdictional
stage of the case. 1shall, therefore, only brieflyiouch upon the points raised in
the Indian letter.
In the letter of 4 June 1973 (p. 139, infra), India deals with her reservation
to Article IX of the Genocide Convention, and States: firstly, that Pakistan did
not raise any objection to it; and, secondly, even if the Indian reservation be
held incomoatible or void. the conseauence would be that India will not be
regarded as-a party Io the convention-either vis-à-vis the other parties thereto
or in any case vis-à-vis Pakistan.
1 have already dealt with the first of these arguments in my replies to Judge
Onyeama's question and Sir Humphrey Waldock's first question, and 1 need
not Sayany more as to that, except that 1will refer to Articles 19 and 20 of the
Vienna Convention on the Law of Treaties, which bear out the propositions 1
made. The~ ~ ~.~on o~~~~iectio, to ~ ~e~ervation or its acceotance bv non-
ubjeLtion under Article 20only ari,e, if the rcscr\;ition i, one thai can he made
iic;nrdinr tu the tcrnls of Article 19.This nlcanj that ilniusi no1hill under any
of the piragraphs (a) to (c) of Article 19. Our contention is that the 1ndian
reservation to Article IX of the Genocide Convention is excluded by Article 19.
In any case Pakistan has always objected that reservations Io the Genocide
Convention cannot be made. 1havealreadv referred to the statement of Pakistan
before the General Assembly of the United Nations, in answer to Judge
Onyeama'sauestion. 1shallrepeat here the relevant part ofthat statement, which
was as follows: "No one could dispute the fact that the Convention on
Genocide, in view of its very nature and scope, could not be the object of any
reservation whatsoever." This ispreciselywhat Pakistan's position is today, that
ir, that the Grnocide Conicntion cannot be subject to an). rescr\,atiun, psrticu-
larlg one delering fur ûIIprüirical purpdres Ariicle IX of the Contention, which
is3 hûtii prwision on iihich the ful~ilmcnrof the Con\ention dcpcnJs.
\Vith regard IO the point raisïd hy the second Lndianargument in their leticr
(p. 139, it~J;.o)ihat is, rhu e\.en if the Indian rescrviitiun be hcld incwnp~iiblc
or void, the consequence will he that India will not be regarded as a party
to the Convention, either vis-à-vis al1the parties thereto or in any case vis-à-vis
Pakistan, we submit as follows:
First, that the force of this argument depends almost entirely on the answer
which the Court gave Io the first of the three questions addressed to it in the
Reservations to the Genocide Conventioncase, because we know of no general
princiole of law that entails that when an intrinsicallv invalid and therefore void
rcscrvatii)n i\ iittached ioa Si:tte'r axeplance of a ircaty itis the 3ccrptrncc
whiih isthcreby destroycd, 2nd not merely the rcscrviiricin.Prima Pü:ie. indecd,
this would seem to be a vew curious conseauence. Logical.v one.would expect
th31a void reser\,aiion, hein-g a nullity, would haie no e1Te.ion ihc ;ic:eptancc,
and nould lca\.c the latter intact and rian~ling. We \vould. thercforr, regdrd the
correct ~osition as being that taken up in the Australian argument in the
~uclear-Tests case (1refe; to Nuclear Tests,the sitting of 22 ~ay-19731, namely
that intriosically invalid reservations, being nuIl and void, cannot be invoked at
all. Accordingly, they produce no effects whatsoever and leave the acceptance
they purport to relate Io standing, as if the resewatinn had no1 been made.
Moreover, we believe that in this respect it makes no difference whether the88 PAKlSTANl PRISONERS OF WAR
conventions. the Secretarv-General adheres to the orovisions of that
resolution and communic&es to the States concernéd the text of the
reservation accompanying an instrument of ratification or accession
without oassine-on the leea- effect of such documents. and 'leavine it-to
eïih State ro dran lcgal ionjequenie> irom such communicaiidiis'. Hc
rrdnsmits the uh,ervaiions receivedon rcscr\aiion\ IO the Staics conîcrned,
also witbout comment. A gen-ral table is keot .o t. date for each conven-
lion, shoiiiny ihc rciervaiioni made and ihc obbervations Iransniiticd
ihcrcon by ihe Siaies soncerned. A Srair:which has deposiicd an inbtrumeni
accomoanied bv reservations is counted amone the oarties reauired for the
entry &to forcéof the agreement." (Ofiial Records, ~wenly&sf Session,
SupplemenrNo. 9 (A/6309/Rev.I), p. 37.)
Ktis important to note first. that each State is free to draw legal consequences
from the rext of the rcservation cummunicaied IO ii, and secondly, thai Slatc
which hîs deposiieJ an inirrument accompnnied by re,ervations is .-ounted
among the oarties reauired for the entw into force of the agreement. It follows
thai a-Siiiieniükinç arescrvation isto & regarded 3s a pïri; to rhc ion\enrion,
bu1 iliai the vïlidity of itr rcsrviition san be challcnged on the ground ihar
iti, prohibiied undcr ihe ireair. There is nu rcasiin u,hy the Genocide Cunven-
tionshould he treated any differently, especially as theCourt, in its Opinion of
1951,clearlyvisualizedthe probahility of challengingthevalidity of a reservation
hy invoking the procedure under Article IX of the Convention, which also
means that the Court implied that reservations to Article IX itself could not be
made, since that Article must always remain availahle to the parties.
1pass onto theIndianletter of4 June (on. 140-141.infra). Hereit isstated that
~akistan has aitempied to iiivoke new r&s oflurirdi&on nor \pcciiicJ in her
Applii~tion, and ihai rhis i, no1 permissiblc. In rhir contcxi. \Ir. Pre>ident, I
hatc alrcïdy rçfcrrçd during the course of my orïl aiarcmeni io Article 40 of the
Statute of the Court. which stioulates that in the case of a written ao..ication
instiruiing procecdings "the subjecr of the dispute ancl the Party >hl11he
indicalcd". Il iinor mündarurv ar rhür\rage, under the Srürurçof the Cuuri, iu
indicate the nround on which-the iurisdicïion of the Court is founded. Article
35, paragraph 2,of the Rules of court seemsto recognire the absence of such an
obligation since it states tbat the application must also "as far as possible,
s.ecif. the orovision on which the a~ol..ation founds the iurisdiction of the
Courr". The proper siüçc, ne submit Forretting oui ;in cxhxurii\s basis for the
Court's jurirdiiiion is thc Memorial of the Aoolicant. Ilis notcuurihy rhiit in
accordance with Article 67 of the Rules of ~oÜrt a preliminary objection as to
jurisdiction "shallbe made in writing in the lime-limit fixed for the delivery of
the Counter-Memorial". It follows that it sufficesif the possible bases for the
jurisdiction of the Court are exhaustively set out in the Memorial, even if this
was not done at an earlier stage.
We would also submit that the point taken by India is a technical one, and
does not merit consideration. Since the Court must in anv event consider the
question of ilsjurisdictionproprio morrr,it ought not to exciude a possible hasis
ofjurisdiction to which its attention is called in the written or oral proceedings
merelv because this had not been mentioned in the Aooli..tion. Such an obiec-
lion i\i>uldalru noi in the Iiistrewrr ha\edny ctfccrsincç P~kiriancould amend
ils Appliçdtion. Thc Indiïn ohjccri~ln iaihercfore withoui îny force.
Inoaramanh4inhcrletier(o. 141.i~ifiai.Indiah<r~aoneonti~sia:erhatPaki~tan
cannbi reïy on addirional ritics ofjurkdi>iion suchai the General Act of 1928,
and Ariicle 30,parügrïph 2, ofrhc Starure, as uell üiArricle IX of the Genoside90 PAKISTANI PRISONERS OF WAR
"2. The States parties to the prescnt Statute may at any time declare
that they recognize as compulsory ipso facto and without special agreement,
in relation to any other State accepting the same obligation, the jurisdiction
of the Court in al1legal disputes concerning .. .
3. The declarations referred to above may be made unconditionally or
on condition of reciprocity on the part of several or certain States, or for a
certain time."
Our submission is that paragraph 3 of Article 36 lays down the limits within
which reservations can be made to such declarations. In accordance with this
paragraph a declaration mus1be made either unconditionally oron the follow-
ing conditions only: (1)reci~rocity on the part of several or certain States, and
.2,for a certain ti-me:
Wenow refer to Article 19of the Vienna Convention on the Law of Treaties,
which India recognizes to be declaratory of customary international law and
which provides as follows:
"A State may, when signing, ratifying, accepting, approving or acceding
to a treaty, formulate a reservation unless:
..................................
(b) the treaty provides that only specified reservations, which do not
include the reservation in question, may be made."
India herself, in her letters, invokes the provisions of the Vienna Convention
regarding reservations as heing accepted rules of customary international law,
and in view ofthe wide acceptance of this Convention 1respectfully submit that
the Court must look afresh at the reservations made by States under Article
36, paragraph 2, of the Statute. The second and sixth lndian reservations,
which 1 have just quoted, are not of such a nature as ta fall within the class of
reservations enumerated in Article 36, paragraph 3, of the Statute and cannot,
therefore, affect the jurisdiction of the Court which is based upon the Indian
- -r-.-.-. -...
1 also respectfully submit that the reservation relating to Commonwealth
rnernbcrs,eicn iipc;missiblc. hlid as ils raiionalç the a\;iilÿbilit). oa prosedure
or con~ultationr uitnin ihc Comniunirc~lth iihich, in the preieni cunrcut, no
longer exists
lfiiriher subrnit th;it ihc rcseriaiion a5IO not Iiiivinganydiploniaiicrelaiioni
on ihc dale of the Appli.xtion, if il ciin bc niade at AI, musi surely man and
cover those situations where till that date there have been no diplomatic rela-
tions at all, and not the case of Pakistan and India, which have always had
diplomatic relations, such relations having only been temporarily suspended
due to hostilities. It is noteworthy that Article 3 of the Simla Accord provides
as follows:
"3. In order progressively to restore and normaliserelations between the
two countries steD.. sten. .t was agre.d that:
(11Steps <hall he tlikcn ta resume communicîrions: poilal, telcgr~phic,
seli,land. including border posts, ;ind air links including overflight\.
(..) ADDroDriatestem shdll be taken to nromote tra\el fa~ilities fsr the
nation~ls of the-other country.
(iii) Trade and CO-operationin economic and other agreed fields will be
resumed as far as possible.
(iv) Exchange in the fields of science and culture will be promoted."
We wonder how al1these steps can be visualized without diplomaticrelations. ARGUMENT OF MR. BAKHTlAR 91
That diplomatic relations havemerely been suspendcd is also clear from Article
6 of the Simla Accord which provided that the representatives of the two sides
will meet to "discuss further the moralities and arrangements for the establish-
ment of durable peaceand normalisation of relations including . ..the resump-
tion of diplomatic relations". The Court will t;e pleased to mark the word
used is not "establishment" of diplomatic relations but "resumption" of
diolomatic relations. The two sides are obviously visualizing the resumption
oidiplumatic relations nhich had hccn temp<irarily >uspendej. The position at
the moment i%that both \ides h~\c mcrely toe~<hnngeambaswdor;. and in view
of this, this reservation of India is not applicable in the circumstdnces of the
-~~--~
There is also another reason why-and this is important-both thesereserva-
tions are imoliedlv orohibited bv Article 36 itself. Theiurisdiction of the Court
under ~rticie 36; paragraph 2, of the Statute, relates to al1 parties 10 the
Statute, and hence cannot be wholly excluded a priori in relation to particular
parties. Itcan only be made conditional on reciprocity on their part.
In paragraph 11(p. 142,iiifro), India relies on Pakistan's reservation to its de-
claration under the optional clause, which is as follows:
"... disputes arising under a multilateral treaty unless:
(i) al1parties to the treaty affected by the decision are also parties to the
case before the Court, or
(ii) the Government of Pakistan specially agree to jurisdiction."
I respeitfully bubmit that thi, reservation docj not e~cludc the jurisJiction ul
thcCourtcvcn if Indm can rcly upon ir. The partic, to th? GenoiidcCon~cntion
îtTeitcd by the cvcniual de:ijion of the Court on the merits. and uhi~h ivill bc
buund hy that deci\iun. are India and I'dkistan only. Iiiditi has becn namçd asa
pxty in I1iikistan'\ Applii.rti<inBangla Dcsh is no1 a pdrty to the GenociJe
Con\ention Pakirtnn's Applii~tion nicrcly zalls kir in intcrpretation of the
Cçnu~.iJc Con\cntion In rcrpcct of I'aki,ran'\ ilaini tu ehilus~\c jurisdict~un tu
try certain individual, iiithe iusti>Jy of India. Honc\er, itiï to bc 11~1tcI.iIçre.
and tliisis signiricÿnt. that Indicl, in piragraph I Iui her lctter. docs no! asbcrr
thai Ihnpla Derh will beatTc;tcd in sn? manncr. In\tcsd. rhcîsscrtsthat wcral
pdriiej to the Gcno~idc Con\cntion. 15 ,ii theni. !%hohase niade re,ervations
to the Cenoiide C.~n\rntii>n, must sll be pariicj to the ca\e hcforç the Court I
rcsrccifully iubiiiii th21 ihc icrm "&-Tccted hy the decision" nicans afictcd by
the Csurt's dcciriun un the ,>ii,,.ir,of the case heforç il. In the prcrent case, the
decision of the C-~rt on~the merits will relate to theexercise of iurisdiction over
the 195or more Pakistani prisoners of war concerned, and none of theseother
States, mentioned by India, have any interest in regard Io the individuals who
have beencharged with such offences. Consequently, it is clear that they cannot
be affected by the decision of the Court.
It is also to be noted that any State which considers that it has an interest in
any dispute before the Court can invoke Article 69 of the Rules of Court in
order to intervene in the proceedings. No State has done so. Moreover, the
interprctation India has placed on Our reservation would result in an absurdity.
since al1 parties to a multilateral treaty would have to be present hfore the
Court could exercisejurisdiction. This was clearly never Our intention.
1would now like to comment on that part of India's letter which deals with
the applicahility of the 1928 General Act for the Pacific Settlement of Inter-
national Disputes. In paragraph 12, the Government of India have correctly
noted that theGovernment of Pakistan seeksto rely on Articles 17and 41 of the
General Act of 26 September 1928,as read with Article 36 (1) and Article 37 of92 PAKlSTANl PRISONERS OF WAR
the Statute of the Court. India has, however, incorrectly assumed that Pakistan
does not rely on Article 33 of this Act concerning interim measures.
In the .ara-.aohs followine-.the Government of India has soueh- to establish
the following propositions:
(1) The General Act of 1928is either not in force or its efficacyis impaired.
(2) Onthe assumption that the 1928General Act is still in force, Pakistan is not
a party thereto, under the law of State succession.
With regard to the first proposition 1 will respectfully submit that when the
General Assemhly adopted resolution 268 (111)on the matter of revision of the
General Act of 26September 1928,it made it clear that the 1928Act was and
would continue to be in force. Thus the fourth preambular paragraph of the said
General Assembly resolution Statesas follows:
"Whereas these amendments will only apply as between States having
acceded to the General Act as thus amended and, as a consequence, willnot
affect the rights of such States, parties to the Act as established on 26
September 1928,as should claim to invoke it in so far as it might still be
operative."
It is, therefore, clear that the General Act of 26 September 1928is still basically
in force.
As regards the efficacyof that Act, which the Government of India says is
absent, 1would like to stress that the General Assembly in the aforementioned
resolution acknowledged that a party to the Act of 26 September 1928could
invoke it in so far as it might still be operative. A reference to the report of the
lnterim Committee of the General Assembly,whichsuggeststhe adoption of the
revised Act, would indicate in what manner the 1928General Act was regarded
as effective.The Committee recorded as follows:
"It was noted, for example, that the provisions of the Act relating to the
Permanent Court of International Justice had lost much of their effec-
tiveness in respect of the parties which are not Members of the United
Nations or parties to the Statute of the International Court of Justice.
(Reports of the International Committee of the General Assembly-5
January-5 August 1948, GA, OR, Third Session, Supplement No. 10,
United Nations doc. No. A/605, 13August 1948,para. 46, pp. 28-29.)
Both India and Pakistan are, however, Members of the United Nations and
parties to the Statute of the Court and the reason why the lnterim Committee
did not consider the General Act of 1928 had lost its effectivenesswas a very
simple one, namely because for those States, Article 37 of the Statute of the
Court is binding and provides as follows:
"Whenever a treaty or convention in force provides for reference of a
matter to a tribunal to have been instituted by the League of Nations, or
to the Permanent Court ofInternational ~usticë.the mattir shall.as betwien
the parties to the present Statute, be referred to the ~nternational Court of
Justice."
Thus for Members of the United Nations, who are ipsofacto parties to the
Statute, Article 37, which 1have just quoted, givesefficacyto the provisions of
the General Act in question. Therefore, in respect of such States the relevant
provisions of the General Act are fully operative. As 1 have said, India and
Pakistan are both Members of the United Nations and parties to the Statute,
and hence for them the General Act of 1928 in this particular case is fully
effective. ARGUMENT OF MR. BAKHTlAR 93
1 shall now deal with the Indian contention that even assuming the 1928
General Act is still in force, Pakistan is not a party thereto. The various argu-
ments in suooort of this orooosition are setout in the Indian letter (DD.144-148.
~ ~ ~ ~
infro).1 shali deal with ;hem very briefly because most of the points involved
have been covered in my answer to the questions posed by Members of the
Court.
India asserts that Pakistan, having come inIo existence in 1947, wasno1 an
original party Io the 1928 General Act nor was it a member of the League of
Nations. To this our answer isthat both India and Pakistan were parts of former
British India and the former British India was a member of the League of
Nations. 1 again draw attention here Io the statement of the Representative of
Pakistan when Pakistan was admitted to the United Nations. which 1 have
already quoted in answer to the question posed by Judge ~iménezde Aréchaga.
It may be recalled that out of British India Iwo States emerged.One called itself
Pakistan whereas the other named itself as Bharat. while at the same time
continuing wiih the nanic of India in ihc international sphere. Borh the Siaies
could ihcrefore lcgiiimarcly daim taihesuxesrors io the personality of I3riiish
India. \Vhar I'akibtan succeeded[o. rherefore. ncrc thc rirhrr of tlritiih lndia
as a Member of the League and also to ~ritish India's rights and obligations
under the 1928General Act. 1 also draw attention to Article IV of the Agree-
ment between India and Pakistanregarding devolution of international agree-
ments, and emphasize that in its plain meaning it covers al1 multilateral
conventions to which British India was a party.
India also asserts that succession to a treatv re.ard.ng the settlement of
iiispurei. u,hich is esjciiti.illy a poliiic.al rreüiy, is not perniiisiblc undcr inicr-
naricinal laivTai [hi, the Jnawer is quitc siniplc. If the liri i)iireaiie$ set out by
the Expert Comniiiiee No. 9 irere iu becxamincd, iru,ould bc round ihai iherc
are man) treaties of a poliricïl nature r<i\\hi;h Iiidid and Pakiiian su;~wdcJ
In ihesaidleiter(pp. 114and 145,i11frul,Indi3 Ii~squoredAriicle 3oilhc Ilrdft
,\rti;le, of the Internaiiondl Ldiv Coniniir$ion un Srate Suciession, and h3s
,raicd ihai in accordance \rith ihi, .Arti;le s uc\.oluiion :igrermcnt ir nairbinJing
on third Stiitci. \Vc ivi~uld, ho\ievcr, >ubniit thït n,hiiiai is,ue bciore us noa.
is ihai the Jet~luiisn arreemeni ijbindinc a\ hcrucen the Sistcr parties ro that
devolution agreement,that is, India and Pakistan, and this suffices for the
purpose of the present proceedings. 1 would, hou,ever, add that a devolution
agreement, although it may no1 be binding on third States, is nevertheless a
declaration of intent regarding succession to the predecessor State's treaties,
and in the caseof multilateral treaties it is a general notice to third Statesof the
successor State's intention to continue, as of right, the predecessor State's
treaties. In the caseof multilateral treaties, the International Law Commission
has conceded the right of the successorState to inherit the multilateral treaties
which were applicable in respect of its territory.
It is oertinent to mention also that the Draft Articles under consideration bv
the ~ntérhational Law Commission are no1 of course in force but still being
debated, and it is common knowledge that the chief matter of controversy has
been how far there is any automatic successionof new States to the rights and
obligations of treaties entered inIo for them, or covering their territories, prior
to independence. One thing is clear, however, that no one has ever doubted
the right of a new State to be or continue asa party to a multilateral convention
if it wants to, exceptin the three caseslisted in Article 7, citein the Indian let-
ter (p. 145,infra),none of which is applicable here.
In her letter of 4 June 1973(pp. 147-148, infra), India has also cited two pas-
sagesfrom ajudgment of the Pakistan Supreme Court to show that under clause 94 PAKISTANIPRISONER OF WAR
4 of the lndian lndependence (International Arrangements) Order, 1947, Paki-
stan was not successor to al1 kinds of international agreements entered into
by or on behalf of British India.
1 do not consider it is necessaryat this stageof the proceedings, by going into
details, to show that the judgment does not in fact support India's contention
before this Court except to submit very briefly that:
First, the case oertained to a foreian award aiven bv the London Court of
.Arbiiraiion tvhichiilisaiughi to beeiforied in Ï'likist~n under the Arbitraticin
(Protacol and Con\entionj Ait. 1937.
Secondly. thït the Pakisrani Court had held ihat the c~inditions laid doivn in
that Act for the enforcement of the award had not been fulfilled.
Thirdly, the Supreme Court in the said judgment States:
"Under the svstem of law which orevailed in British lndia and now
prevails in this country international arrangements affecting private rights
and obligations do not become operative of their own force but require
some legislalion or other sanction. Such international arrangement; are
recognized and enforced in Our national courts only to the extent they
are incorporated into the municipal law or domeslic law of Our country
and subject to the conditions, if any, therein specified."
The Court in the samejudgment further observed as follows:
"In matters oertaininlr ta international arrangements. the courts should
act in aid of théexecutive authority and should leither say nor do anything
which might cause emharrassment to that authority in the conduct of its
international relations. Thus if the notification contemolated under the
Act had been issued, the national court would have been bound to hold
that the conditions prescribed for treating anaward asa foreign award had
heenfulfilled and would not have beenentitled to eo behind the notification
and investigate whether reciprocal provisions did in fact also exist in the
notified country."
Professor O'Connell in his book entitled Srate Sitccession irr Municipal Law
and InternationalLaw, Volume II, at page 354, on the subject-matter of this
judgment of the Pakistan Supreme Court says:
"ln view of the fact that India was not designated a party in the United
Kingdom Order, iseemsthat the requirement of the United Kingdom law,
when the United Kingdom is the forum, has not been fulfilled, and ac-
cordingly that awards made in India and Pakistan are unenforceable. Even
if this difficulty could be circumvented in the case of India, additional
doubts would remain concerning that of Pakistan, for whether Section 18
of the Indian Independence Act directs an English court ta substitute
Pakistan for lndia [Here 1 will pause to explain that in the Indian In-
dependence Act, because 'India' was used everywhere-they said under
such a heading it may well be appropriate, for 'India' use 'Pakistan',
because two dominions came into existence-so this is reference to the
Act, that the British Court will also be authorizedto interpret in that man-
ner, for under Section 18, the Indian Independence Act directsan English
Court 'to substitute Pakistan for India'l wherever relevant must be
controversial. [This is important.] The result might bethat, although bath
India and Pakistan are parties to the protocol and conventions at the inter-
national level they are not such at the municipal level when the United
Kingdom is the forum." ARGUMENI Of MR. BAKHTIAR 95
Again on page 356, Professor O'Connell further statesthat:
"(., I~ anv.event. itis not at al1clear that the courts of the oarties to a
devolutionary agreement are entitled to regard it as res iiirer alios acra.
(d) Novation by devolution certainly does occur with the engagement of
ta& con~e~t ofother oarties. and this would never occur if the successor
State commenccd u,ith the prcsuiiiption thst the rlevolutionary instrument
is inval~d.(elThe faci th;it tlie Order of 1947\vasmade by ihe gi)\çrnmcnt
of the oredecessorState is immaterial. becauseit was oart of the leaislative
poce& by which Pakistan becameindependent and is'inseparable 6om the
lndian Independence Act itself."
1, therefore, submit that the reliance by India on the said judgment is mis-
conceived and not relevant to the subject-matter of the present dispute.
India then goes on to deal with the point that Pakistan did no1 notify its
succession in respect of the General Act and the point regarding the absenceof
the General Act in the lis1 prepared by the Expert Committee No. 9 in the
partition procecdings. This aspect of the matter has beenfully covered by me in
my answer to the questions posed by Judges JimCnez de Aréchaga and Sir
Humphrey Waldock and it is therefore not necessaryto repeat my submissions
here. 1shall, therefore, go on to the Indian letter (p. 148, infra) at which point
India states as follows:
"Assuminn that the 1928 Act is in force and that Pakistan is a Party
thereto, eveRthen Pakistan cannot unilaterally invoke this Act to make the
Court seizedof the subject-matter of its Application, aswill be patent from
the following."
lndia then goes on to set out Iwo independent arguments in subparagraphs
. . and (bl.
In ~ara&a~h 5 (a) of thelndianletter (p. 148,infra)it isstated thatArticle29(i)
of the General Act provides as follows:
"Disputes for the settlement of which a special procedure is laid down
in other conventions in force between the parties to the dispute shall be
settled in conformity with the provisions of those conventions."
The Indian contention is that, invoking the 1928General Act, by virtue of the
aforementionedArticle, brings back the reference to Article IX of the Genocide
Convention of 1948. and bearinn in mind the reservation entered bv lndia to
that Article, the consent of the Government of India is required in each
particular case before the Court can be seised of the subject-matter of any
..
We respectlully submii thai [hi.. point h~sbcen mis;oncei\ed. The General
Act is an independent basi: <ifjurisdlclion. Thercfore, invokinp itdoes no1Ic3d
the matter back to the Genocide Convention. This view is in no wav contra-
JicteJ bu1rathcr borne out by ihc passagcfrom the Austrsli3n argumgnt in the
.SUCIPI)ITPIIS ~35~. clled in the Indilin Içttcr (p. 149i,i/r,rwhich ivill be fciund
in ICJ Pleo<lores.iV~<clrurTzlrs. Volume 1. ihc record uf ihe iitiina of 22
May 1973.Of course, jurisdiction invoked under Article IX of the Génocide
Convention will be subject to any conditions specified in the Convention and Io
any valid reservations to that basis ofjurisdiction. Similarly, jurisdiction under
the General Act will besubject to any General Act conditions and reservations.
But what cannot happen is that jurisdiction arising under the General Act
should be subject to reservations made, no1 Io that jurisdiction but to Article96 PAKISTANI PRISONERS OF WAR
IX of the Genocide Convention. Nor can Article IX jurisdiction be subject Io
General Act reservations.
In the same paragraph, lndia also invites attention ta Article 1, paragraph 2,
of the Simla Agreement of 1972,which was signed by the President of Pakistan
and the Prime Minister of India on 3 July 1972, and ratified thereafter by the
Iwo countries.
It is claimed that in accordance with this clause. which has only been auoted
in pari by India, the subject-matter of Pakistan's application mustbe consjdered
and resolved in conformity with the provision of the Simla Agreement, and only
through consultations
ItiS al~ ~~l~im~ ~ ~ ~ ~ ~ ~ ~ ~ ~l neeotiations have vet taken t lace on the
subject-matter of Pakistan's applicationr~ am glad that india has ielied on the
Simla Accord and therefore 1shall set out the relevant clause in full. Article 1,
paragraph 2, of the Simla Accord statesas follows:
"That the two countries are resolved to settle their differences by
peaceful means through bilateral negotiations or by any other peaceful
means mutually agreed upon between them. [Now here an important
passage in the same clause.] Pending the final settlement of any of the
~roblems between the two countries. neither side shall unilaterallv alter the
iituation and both >hall pre\ent theorganisiiiion, assistanceor encourage-
ment oiany ~CISdetrimenid ti~the m3inienance of peaceand h3rmonious
relations."
1first draw the attention of the Court to the words "pending the final settle-
ment of any of the problems between the Iwo countries, neither side shall
unilaterally alter the situation". There is thus a clear obligation on India no1 to
hand over the 195 or any other number of persons Io Bangla Desh for trial
pending the final settlement of this dispute with Pakistan.
This provision by itself is sufficient for the Court to indicate the interim
measures prayed for.
Secondly, 1 would respectfully submit that the plain meaning of the words
"or by any other peaceful means mutually agreed upon between them",
includes any agreement, past or present, under which the parties have agreed
to refer the matter ta adjudication by this Court. In the present case there are
not less than three of these: Article IX of the Genocide Convention, Article 36,
paragraph 2, of the Statute of the Court, and Article 17of the General Act for
the Pacific Settlement of Disputes.
As regards the need to hold bilateral negotiations, 1 may also respectfully
submit that Article 2 does not make the holding of bilateral negotiations a
precondition ta settlement through other peaceful means agreed upon by the
oarties. In anv case.the facts of the diso.te. ,hich 1 have oresented before the
'Court earlier; cleariy demonstrate that negotiations with india with regard Io
this matter had entered a deadlock, since India refused to have any further
discussions on the question of Pakistan's right ta try the 195, or any other
number of prisoners of war in question.
In subparagraph (b) (p. 149,infra), India has stated that, while becoming a
party to the 1928 General Act on 21 May 1931, India made reservations ex-
cluding the following disputes from the procedure described in the General
Act, including the procedure of conciliation:
"Disputes in regard to which the parties to the disputc hme agreed or
sh311agra to hai,e rccourse to some othcr rnethod of peaceful \ettlement.
Disputes between the Government of lndia and the Government of ARGUMENTOF MR. BAKHTlAR 97
any other member of the Leaguewhich isa member of the British Common-
wealth of Nations, al1of which disputes shall be settled in such manner as
the parties have agreed or shall agree.
Disputes with any party to the General Act who is not a member of the
League of Nations."
India claims that the application of these conditions or reservations to
Pakistan's Application is manifest. Mr. President, we beg to differ with the
Government of India, and 1 submit that the reservations made by India to
Article 17 of the General Act are urohibited bv that Act and are without legal
effect because the operation of ~rticle 17of the-General Act issubject Io ~rticle
39. It is therefore necessary to read out this provision for the benefit of the
Court. Article 39 reads:
"1. In addition Io the power given in the preceding article, a Party, in
accedine- Io the oresent General Act. .av ,ake his acceotan.e~ ~~ ~tional
upon the reservations exhaustively enumerated in the following paragraph.
These reservations must be indicated at the time of accession.
2. These reservations may be such as to exclude from the procedure
described in the present Act:
(a) disputes arising out of facts prior to the accession either of the
Party making the reservation of or any other Party with whom the said
Party may have a dispute;
(b) disputes concerning questions which hy international law are
solely within the domestic jurisdiction of States;
(c) disputes concerning particular cases or clearly specified subject-
matters, such as territorial status, or disputes falling within clearly
defined caregories.
3. If one of the parties to a dispute has made a reservation, the other
parties may enforce the same reservation in regard to that Party.
4. In the case of Parties who have acceded to the provisions of the
present General Act relating to judicial settlement or to arbitration, such
reservations as they may have made shall, unless otherwise expressly
stated, bedeemed not to apply to the procedure of conciliation."
1 draw the attention of the Court uarticularlv to the words "mav make his
acceptanie condiiional upon the re~~rvîtions ;~hau~ti\.sly enumer<ite~in the
following paragrdph", and submit thît none of Indiî'i reser\ÿtioii\ fall under
any of these paragraphs.
In addition, the first of India's reservations does not apply for the simple
reason that the parties have not agreed to some other method of peaceful
settlement. The method agreed in Article IX of the Genocide Convention and
under Article 17 of the General Act is to refer the matter to the International
Court of Justice. The two bases of jurisdiction are independent of each other
and bath can be relied on bv Pakistan. But neither constitutes another method
<ifsettlement; ihey in\ol\,cihe .rame method, vi7.îdjuJicaiion by this Court.
As regards the ieiond rrrervniion. thdt is, the one relating to Common\\eîlih
members. 1\\,ould submit that Paki5tan is no Ionaer a mcmhsr of ihe Common-
u.eÿlih. ~oreo\er. th15 r~xr\ation hîr no lesal effsrt. since the reser\,ations ihat
could be made were exhaurtii~elyenumeraied in Ariicle 39, parîgrtiph 2. of the
General Act. and relate rurio>,,,,>rureriuio the subiect-mîtter of the dispute
and not to the party with which the dispute has arisen. It was not permissible,
therefore, to make a reservation excluding disputes with particular parties such
as members of the Commonwealth. ARGUMENT OF MR. BAKHTIAR 99
however, submit that the very detailed arguments set out in al1these letters by
the Government of lndia themselvesdemonstrate that the lack of jurisdiction
of the Court isnot manifest.
This is further borne out by the character of the reply 1havemade and of the
answersgiven to the questions put by certain Members of the Court. In regard
to the presentcasebefore the Court there are severalrelevant instruments prima
facie conferring jurisdiction on the Court and, at the very least, there are
possible baseson wliich jurisdiction of the Court might be founded.
We are confident that the correct course in thesecircumstances would be for
the Court to adhere to its jurisprudence so well establishei by a series of
Orders, more particularly in the FislreriesJsrisdictioircaseand the Interl~arrdel
caseand now, also, in the N~iclearTestscases,on which 1will comment at the ,
end of my statement.
With your permission, 1shall now quote the paragraphs in the Order made in
the Irrterhai~declase which deal with the questions of jurisdiction. The Order
runs as follows:
"Whereas Switzerland and the United States of America have, by
Declarations made on their behalf, accepted the compulsory jurisdiction
of the Court on the basisof Article 36, paragraph 2,of the Statute;
Whereasby its subjcct-matter the presentdispute falls within the purview
of that paragraph;
Whereas the Government of the United Statesof America has invoked.
against the request for the indication of interim measures of protection,
thereservation by which it excluded from its Declaration mattersessentially
within its domestic iurisdiction as determined bv the United States and
ivhçrçïs the Governkent accordingly .rcspecifuliy declines .. to submit
the matter of the saleor disposition of such shrlrcs10the iurijdiciion of the
Court';
Whereas at the hearing the Co-Agent of the Swiss Government
challenged this reservation, on a number of grounds, and stated that, in its
examination of a request for the indication of interim measuresof protec-
tion, the Court would not wish to adjudicate 'upon so complex and delicate
a question as the validity of the American reservation';
Whereas the procedure applicable to requests for the indication of
interim measures of protection is dealt with in the Rules of Court by
provisions which are laid down in Article 61 and which appear, along with
other procedures, in the section entitled: 'Occasional Rules';
Whereas the examination of the contention of the Government of the
United States requires the application of a different procedure, the
procedure laid down in Article 62 of the Rules of Court, and whereas,
if this contention is maintained, it willall to be dealt with by the Court in
due course in accordance with that procedure;
Whereas the request for the indication of interim measuresof protection
mus1accordingly beexamined in conformity with the procedure laiddown
in Article 61;
Whereas, finally, the decision given under this procedure in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case and leaves unaffected the right of the Respondent
to submit arguments against such jurisdiction." (I.C.J. Reports 1957,
pp. I IO-III.)
It is, therefore, clear that the consideration of evensoautomatic a reservation
as that relied upon by the United States in the Interhandelcasewas ruled out1M) PAKlSTANl PRISONER OSF WAR
by the Court at the stage of a request for the indication of interim measures of
protection. The juxtaposition of Articles 61 and 62 of the Rules of Court then
in force impelled the Court in the same direction. That juxtaposition has not
been disturbed in the corresponding Articles 66 and 67 of the 1972 Rules of
Court. Anv deoarture from this orocedure would invite and encouraee the kind
of situation wiih which the couri has unfortunately been confronted this case.
Assume that in the oresent case there had been no request for the indication
of interim measures of protection, and the Respondent on receipt of notice of
the Application had intimated to the Court that it did not see the necessity of
appointina an agent or of outting in an aowarance. as there was a manifest
absence O?jurisdiction, ïndthat Ïhe ~ounought IOremove the casr from the
list of pending cases: what procedure would the Court have follou,ed?
Assume the Applicant were to withdraw its request for the indication
of interim measures of protection: what procedure would the Court follow
thereafter?
1 venture to submit that in both such situations the Court would disregard
the Respondent's informal objections at this stage and would proceed Io fix
time-limits for the written pleadings. The question of jurisdiction would thus
fa11to be decided under Article 67 of the Rules of Court.
The rnanifest absence of iurisdiction referred to bv the Court in its Orders
in the Iislzcrirr Jvrisdicriwsc; sîn only meïn such absence as \vas manifest
on the face of the Applications in the Arriol Iticidenrcases. uith its Iogical result
of removal of the cases from the Court's list of oendine cases. ~here the aues-
tion ofjurisdiction requires any kindof determination ofthe pleasof the patties,
particularly as in this case, on jurisdictional issues of major importance, the
correct solution of which is far from beine obvious. then the absence of
jurisdiction clearly cannot be manifest and the determination hy the Court of
these pleas at the stage of a request for the indication of interim measures of
protection would be premature and would prejudge the question of jurisdiction
on the rnerits, which, with al1 respect, is not permissible under the Rules of
Court.
Again, assume that in a case in which there is no request for an indication of
interim measures of protection the applicant cites a text which, prima facie,
gives the Court jurisdiction to proceed with the case. On the respondent being
notified itdoes not aoooint an aeent and does not out in an aooearance. but
requests that the casé'be removed from the lis1 of'pending cask as there is
manifest absence of jurisdiction by virtue of a conclusive resewation made by
the resoondent to the cited text. What orocedure would the Court follow?
Even where there is no apparent answer tothe reservation, 1conceive the Court
would cal1for written pleadings. Would it have made a diiïerence if in such a
case the a. .icant had made areouest for the indication ofinterim measures of
protection? M'ouldthe requcqt ha& been rurned doun on thcground that. prima
facie, the re\çrvati<~npleaded by the rcspondent had force?
It would be idle to contend that a reiection of a reauest for indication of
interim meïiuro of protectiun on the ground of apparent Iack of juriidiction
u,ould not pre~udicethe question of jurisdiction on the merits. for in mo.;i 5uch
cases the resoondent could. in the meantime. defeat the whole ouroose and
object of the application and the priweeJing$ institutcd therehy by carrying
out the design u hich had ken sought IO be restrained by man$ of recourse to
the Court.
For in$tance, in the prcscnt case, in which the Respondent. withoui appoint-
ing an agent and without putting inan appearance. kas raised a whole cluster
of oblations to the jurisdiction on which the Applicant has had to comment ARGUMENT OF MR. BAKHTIAR 101
under stress of time and without recourse to detailed scattered materials and
authorities, which would need to be collated and studied if the procedure
prescribed in Rule 67 of the Rules had been adhered to; if the court were to
turn down the request for indication of interim measuresof protection on the
ground thatiurisdiction wasnot established. prima facie. itwould benocomfort
rhat the order made IIclar that this would no1foreilore the krue ufjurirdiition
and th~t the ,\pplicïnt uas ai liberty to sîtisfy the Court in duc courjo that it
had jurisdiction to deal with the merits of the case. As soon as such an Order
was nwde the Kerpondcnt would transfer the 195 prisoners of war concerned
Io tlangla Desh. thus frustrîting the ivhole objmt of the pri~cecdingsand causing
irrepïrablc loss On the othor hand. if the Kerpondent's plcabon the mïtter of
jurisdiction ivereexaminïd in due <ourse.ïs thc jurisprudence of the Court has ,
slarly pre~cribed, the Kapondent would bulier no prejudi~v, tihïtever vicw
the Court might adopt on the question of jurisdiction.
1 resoectfullv submit that anv deoarture bv the Court from the course
followed in thé Inferhandelcase, and other cases mentioned by me, on the
question of jurisdiction. at the stageof the request for the indication of interim
measures of orotection. would encouraxe at-end that the resoondent State
would seek t8 get a decision from the Court on the question ofkrisdiction on
the merits without following the procedure prescribed in Article 67.
In short, it is clear that for the purpose of pronouncing upon a requestfor the
indication of interim measures of protection it is enough if the application
discloses a prima facie or possible basis of jurisdiction, or clse a situation in
which itis clear that the Court may havejurisdiction and not clear that it has
not. Where this is the case the Court may proceed to deal with the request,
notwithstanding objections to jurisdiction submitted by the respondent and
notwithstanding that these may merit consideration. Such objections are
objections to the Court's exercising jurisdiction on the merits of the case asa
whole and they fall to be considered and determined at a later stage.
lndia has a~~ended to her letter of 4 June a section entitled "Additional
Points" As th& do not appcîr to bepart of her legalargument my comment on
them niII bebrief Se\erül ofihne pointsclurly rcl~tc10 thenierit, of Pdi.i,tdn'>
Ao~lication and do not arise at this staee. forinstance the alleeation that if the
195 accused persons were surrenderedto Pakistan we wouldlfail to try them.
Then some other of theseadditional points deny India's interest in the matter
and assert that of Bangla Desh. But the recent war was between Pakistan and
India, not Pakistan and Bangla Desh. Itis India not Bangla Desh who holds the
prisoners of war and civilian internees.Itis India who is proposing to surrender
the 195accusedto Banela Desh. There is in conseauenceno other entitv than
lndia againstwhom ~akystancouldhavesought relief:~lso, severalof the matters
lndia refers to are matters that lie primarily between herself and Bangla Desh,
with which Pakistan has no directconcern.
As regards the concluding paragraphs of India's letter, we are glad that any
intentional disrespect to the Court is disclaimed, but this cannot regularize
what has been an improper process. We are also glad to seethat India admits
that the various jurisdictional arguments she has advanced do not constitute
preliminary objections within the meaning of Article 67 of the Rules. Our
comment is that it is precisely becauseof the irregularity of the course taken by
lndia that her arguments cannot rank as proper preliminary objections and
are therefore strictly irreceivable at this stage.
In conclusion 1 would respectfully submit that in the present casethere are
severalrelevant instruments which, to usethe words of the Court's Order in the
Fislieriescase, "appear prima facie to afford a possible basis on which the 102 PAKlSTANl PRISONERS OF WAR
jurisdiction of the Court might be founded". Pakistan founds the jurisdiction
of the Court in particular on the following instruments:
(i) Article IX of the Convention on the Prevention and Punishm ~nt o-f t-e-
Crime of Genocide of 1948.Pakistan claims that the Indian reservation is
not permissible and has no validity. The ratification of India is not affected
by the reservation in question, and India continues Io be a party vis-
à-vis Pakistan.
(ii) Article 17 of the General Act for the Pacific Settlement of Disputes 1928,
as read with Article 37 of the Statute of the Court, and Article 4 of the
Indo-Pakistan Devolution Agreement of August 1947. The reservations
made by India to the Convention are inadmissible and, in any.case, are
not applicable in the circumstances of the case.
(iii) The lndian declaration of acceptance of the compulsory jurisdiction of
the International Court of Justice under Article 36, paragraph 2, of its
Statute. The reservations of India are not permissible under the Statute
and, moreover, are inapplicable to the circumstances of the case.
We also draw renewed attention to Article 1, paragraph 2, of the Simla
Accord, which is as follows:
"That the two countries are resolved to settle their differences by
oeaceful means throueh bilateral neeotia-ions or bv anv . .er oeacefulz ~ ~ ~~~ ~
means mutually agreed upon between them. Pending the final settlement
of any of the problems between the Iwo countries, neither side shall uni-
laterally alter the situation and both shall prevent the organization, assist-
ance or encouragement of any acts detrimental to the maintenance of
peace and barmonious relations."
We also resoectfully submit that the contentions of the Government of India
with regard to-lack ofjurisdiction of the Court, expressed in its letters of 28 May
and 4 lune 1973, will fall to be examined by the Court in due course in accor-
dance with the orocedure orescribed under the Statute and the Rules of Court.
We submit thai in order'to ensure that irreparable prejudice should not be
caused to rights which are the subject of dispute in these judicial proceedings,
that is, the auestion of Pakistan's rizht and claim to exclusive iurisdiction to
hold such trials, the Court may be pleased to grant the interim measures prayed
for by the Government of Pakistan. If the Government of India is permitted
Io transfer the 195 or any other number of prisoners of war in question, by
anticipating the Court's judgment, this will prejudice the rights claimed by the
Government of Pakistan and affect the possibility of their restoration in the
event of a judgment in favour of Pakistan. On the other hand, if the prisoners
in question are not transferred it will no1 affect any of India's rights or cause
any prejudice, pending the decision of the case.
Within the last few days the Court has issued its Orders in the Nuclear Tests
cases; and 1submit that, havingregard to the closesimilarityof thejurisdictional
issues involved in those cases and the present one, the issue of those Orders can
only strengthen the grounds for manting the interim measures now asked for
by ~akist6. Indeed, Ttseems to US that tge considerations as to thejurisdiction
adduced by the Court in its recent Orders apply a fortioriin the present case.
For the sake of convenience 1 will take the Order made in regard to the
Australian application for interim measures. The paragraphs of that Order
chiefly relevant to the question of jurisdiction are Numbers 13, 17, 19-23,and
also Numbers 32 and 33, al1of which, we would submit, apply equally, mutotis
mutandis, to the case of Pakistan. It is in these paragraphs particularly that the ARGUMENTOF MR. BAKHTIAR 103
Court states how the auestion of iurisdiction should he aooroached..n relation
Io an application for interim measures. These paragraphs put the matter in
different ways, but it seems to us that the differences are differences of emphasis
only, and that they al1lead to substantially the same result, and we believe also
that Pakistan's casefalls within the language of each of these paragraphs.
Paragraph 13 reads as follows:
"Whereas on a reauest for orovisional measures the Court need not.
before indicating theh, finally ;atisfy itself that it has jurisdiction on the
merits of the case, and yet ought not to indicate such measures unless the
orovisions invoked hv the Aonlicant aooear, mima facie. to afford a hasis
on which the jurisdiciion of ihe ~ourt'hightbe founded."
In relation io the Iüsi piri of thij par~graph, iii, pre.wely P.ikistan'sconieii-
tisn ihxt the juri.di<tional pro\,iiionï 5hc h;i, in\okrd sppcür, prinix Pd.'ie,to
alford a basis on ivhich the iuri\di~iioii oi the Court niighi hr iounded-xnJ I
stress the~wor~ "mieht- b~cau~ ~ ~~ ~ ~ nass~.e the court does not sav that the
provision invoked must be one on which the Court's jurisdiction clearly can or
must be founded. The imdication is indeed that it suffices if, prima facie, it
possibly can.
1 pass on to paragraph 17, which appears ta us ta re-state the last part of
paragraph 13and to confirm the interpretation of it 1havejust given. Paragraph
17 reads as follows:
"Whereas the material submitted to the Court leads it to the conclusion,
at the present stage of the proceedings, that the provisions invoked by the
~nnlicant anoea; mima facie. to afford a hasis on which the iurisdiction
of fhe ~ouri'mighf be faundid; and whereas the Court will accordingly
proceed ta examine the Applicant's request for the indication of interim
measures of protection."
That exactlv describes Pakistan's case. We have submitted material to the
Court, and it-is our contention that this material is such as should lead the
Court at the present stage ofthe proceedings-and that is al1weask for now-to
the conclusion that the orovisions we invoke appear, prima facie, to afford a
basis on which the jurisdiction of the Court might be founded. Again the word
used is "might", and 1need not repeat my argument on that point.
1corne next to paragraph 19, which is as follows:
"Whereas the Court is not in a oosition to reach a final conclusion on
ihii puint ai the preseni stage of the pri>cu'ding\,and u,illihsrcforeçxamine
the rçquesi fur the indication oi iniçrim measures only ln the context of
~rticle~41of the Statute."
Here. aaain. the lanauaae used hv the Court seems to us to be exactly applicable
to our own case. ~hroi~hout these proceedings we have contended-ihat the
jurisdictional issues involved are sa complex, and involve such major points of
orincio.e..that the Court cannot nossihlv be in a position to reach a final conclu-
sion on ihcni 31 the prescni stage of the pros~xding\. Simildrly, aith refcrcnce
io the Iasi inu linçiofp~ragraph 19, iiha, ihroughour ken our .'onteniisn ihni
the Court should examine Our request for interim measures only in the context
of Artic~e~ 41~ ~ ~~ ~ ~-~~~~~~~~
The Court then proceeds in the next paragraph, paragraph 20, to statewhat
examinina the matter in the context of Article 41 of the Statute involves. This
Article, the Court says in paragraph 20:104 PAKlSTANl PRISONERS OF WAR
". ..has as its object to preserve the respectiverights of the Parties pending
the decision of the Court, and presupposes that irreparable prejudice
should not he caused to rights which are the subject of dispute in judicial
proceedings and that the Court's judgment should no1 be anticipated hy
reason of any initiative regarding the matters in issue before the Couri".
This is exactly the effect which we ourselves have ventured to ascribe to
Article41 of the Statute. as beine its clearlv intended obiect. and but for which
iluould serve no useTu1purpos~. And it ha\ &ri our contention al1through
that ihis objeci would be defmted iTihc mcre raising ofjurisdictional objections.
unless manifestlv and indubitablv aood ones. could of themselves orevent the
grani of inirrimkeÿsurcs, Torihc~\,alidilyof ihese objections is pan of whai has
to be deicrmined in relation to the hscniidls of the case. Rut whai would be the
use of such determination if. bv the time it is made. the oosition has already
been prejudiced by unilateral îiiion raken by one of'ihe Grlies?
I now pdss on to parÿgraphs 21-23of the Court'sOrder. Paragraph 21readj
as follows:
"Whereas it follows that the Court in the present case cannot exercise
its power to indicate interim measures of protection unless the rights
claimed in the Application, prima facie, appear to fall within the purview
of the Court's jurisdiction."
Having said this, the Court in the next paragraph, paragraph 22, proceeds to
indicate what, in the context, it understands by an Application that appears,
prima facie. to faIl within the ourview of the Court's iurisdiction. In this Dara-
graph the court sets out briefl; the nature of ~ustralia's claim on the mehts of
her basic Application as a matter of substantive international law. ln other
words. the Court. in oaragraoh 22.is not referrina to Australia's a~~lication for
interim measures, b;t tohe; sub;tantive claim on the merits; and clearly the
object of doing so must beto se whether this claim appears, prima facie, to be
one that isaoverned bv international law. If this iscorrect. then in this ~articular
conieiri.ihai is. ihai oiparagraphi 21.23ofihcCoun'sOrdcr, the tesi ofwhether
ï clîim appwrs. prima facie. io TaIlwiihin the purvie\\, of ihç Caiun's jurisdic-
[ion is whether itïppcars. prima faiic, io te one ihai is goierned by inter-
nationdl Iîu. This vieii,is fully confirmed by the ne~t p~ragraph oTthe Order,
pjragraph 23. ivhich reads as follo~vs:
"Whereas it cannot be assumed apriori that such claims fall completely
outside the ourview of the Court's iurisdiction. or that the Government of
Australia &y not be able to establish a legai interest in respect of these
claims entitling the Court to admit the Application."
Now, Mr. President. the facts ofpakistan's case are, of course, quite different
from those of Australia's. But the principle here involved is exactly the same;
for it is abundantly clear that, whatever may te the oosition in the Nuclear
Trsrr cases, 13ükirtin's subsianii\e claim in ihe pre,eni case is onc \%,hichis
indubiiably gosernzd by internition31 lait iirise itis made undzr a mulrilaieral
convention, the Genocide Convention, and involves the interpretation and
application of that Convention. The claim, which is based on Article VI of the
Convention, isthat in the circumstances of the present case, the provision which
Statesthat persons charged with an act ofgenocide shall be tried by a competent
tribunal of the State in the~ ~rrito~v of which the act was committed has the
effect that it is ~akistan that has théright to try the 195persons now held in
India and accused ofgenocide. In relation to suchaclaim, and using the language ARGUMENT OF MR. BAKHTIAR 105
of the Court in paragraph 21 of the recent Order-which repeats that employed
in the Analo-Iranian Oil Cornoanvcase-il certainlv cannot be assumed a priori
thdt the ilaim falls ~ompleiei~ouisidc the purvie\; of the Coun', jurisdiition,
or rhiit the Go\,ernment of P~kistan may no1 be üble IO e>rahlirh legal iiiierest
in respect of this claim entitl-ng the Court to admit Pakistan's ..oiication on
the merits.
Finally, sa far as the Court's recent Order isconcerned, 1corne to paragraphs
32 and 33, which read as follows:
"32. Whereas the foregoing considerations do not permit the Court ta
accede at the present stage of the proceedings ta the request made by the
French Government in its letter dated 16 May 1973 that the case be
removed from the list;
33. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court ta deal with the
merits of the case, or any questions relating to the admissibility of the
Application, or relating to the merits themselves, and leavesunaffectedthe
right of the French Government to subrnit arguments in respect of those
questions."
As regards these two paragraphs, al11need ta say is that iffor the words "the
French Government" are substituted the words "the Government of India",
they are exactly applicable to the present case. 1 would only add, and this is
important from my point of view,that whereas the Court's indication of interim
miï>ures in this cÜ& iannoi prejudice India's CJje on jurisdiitiun, the Couri's
refus31to do su iiould seriously and irremediahly prejudice Pakirian'r case on
the substantive merits of her basic Application
It only remains for me to refer verybriefly to the individual declarations or
dissenting opinions of certain Members of the Court. We have read these with
great interest and respect and. if 1 may venture to sav so. admiration for the
cogency oithe i,ic!vre:~presied,eten irherc, 3s is narurÿl, ue cannoi shiire thcm.
It iiould be out iif plaie for nie io aiicnipt io answer rhemhercand I only \\an1
to make three particular short oints
Firsi,ilwms io us that ihe\,&w asiording io whichihc Court, &fore indiin-
ting inierini riieïsurc.>,muit bc niore or lcrs ratisficd in rhe poritive rïnil thal
has jurisdiction in relation to themerits ofthe case,tends to overlook what isthe
reaipurpose of the Court's faculty to indicate interim measures, which is to
meet a situation of an emergency character that cannot await the completion
of the normal procedural stages of the case. Where the jurisdictional issues are
complex and important, the Court can never be satisfied, in any positive sense,
either that it has or has not got jurisdiction as to the merits, withouta full
examination of the matter, which must take a period of, at least, several months.
It is oreciselv this situation that the facultv to indicate interim measures. in
order 1;presekc intiiithe iliimaie righi of iie pariLs. isde,igncd io den1wirh,
and ils whole purpose \iould he dele~ied ii the Court hïd ro go any deepcr in10
the iurisdictional~issuesthan to satisfv itself that the oossibilitv that it would
havéjurisdiction to determine the me& of the case could not & ruled out.
Secondly, two of the learned judges who delivered dissenting opinions
exoressed the view that the NucIear Tests cases beloneed. or mieht belonr.
to'that class of case in which an indication of interim meaiures b; the COU%
would, in practice, have an effect equivalent ta a decision on the merits of the
case, or, to use the language of the Permanent Court in the ChorzbwFactory
case (P.C.I.J., SeriesA, No. IO,p. IO) , ould smount ta giving an interim
judgment on the claim formulated in the basic Application. Now wbethw the STATEMENT BY MR. KHARAS
STATEMENT BY MR. KHARAS
AGENT FOR THE GOVERNMENT OF PAKlSTAN
Mr. KHARAS: Mr. President. 1shall now read Pakistan's final submissions
rcearrling it,requc,t kir the iiirli<sii<inof interiiii nie3suieprotç<rion.
I'heGo\ernnierii oi Pakisian siibniiis th:it ithii rase rhere are instrunicnls
emanatine from the oarties which. at the verv least. aoDear. mima facie. to
afforda basison which thejurisdiction of the court mighf be founded in respect
of the merits of the case institutedby Pakistan, through its Application of II
Mav 1973. and that this enables the Court to indicate interim measures as
requested. At this stage of the proceedings the Court is not called upon to
finally satisfy itself that it has jurisdiction on the merits of the case, which must
be leftta the stage when preliminary objections are raised by the Respondent
in accordance with the Statute and Rules of Court.
Pakistan further submits that in view of the irreversihle nature of the action
about ta be taken by India, the urgency of the matter and the prejudice that
might otherwise be occasioned to the final decision of the Court from such
action, the Court may, in order ta preserve the rights of Pakistan, pending a
decision on merits, he pleased to indicate the following interim measures of
protection under Article 41 of the Statute of the Court and Article 33 of the
General Act:
(1) That those individuals, who are in the custody of India and are charged
with alleged acts of genocide, should not be transferred out of Indian
custody otherwise than to Pakistan until such time as Pakistan's claim to
exclusivejurisdiction to try them has heen adjudged by the Court.
(21 That the orocess of reoatridtion from lndia to Pakistan in accordance with
international law of the Pakistani prisoners of war and civilian internees,
which has already begun, should not he interrupted hy virtue of the charges
of genocide against a certain humber of those still detained
This. Mr. President, completes Pakistan's suhmissions forthe grant of interim
measures of protection prayed for and 1once again thank you and the Members
of the Court.
Le VICE-PRESIDENT faisant fonction de Président: Je déclareque nous
sommes ici parvenus au terme de la présente phasede la procédure. Néanmoins,
je prie l'agent du Pakistan de resterà la disposition de la Cour pour le cas où
des questions pewent se poser ou que la Cour ait besoin de certains éclaircisse-
ments.
The Court rose at 3.50p.m.
Oral Arguments - Minutes of the Public Sittings held at the Peace Palace, The Hague, from 4 to 26 June 1973 (Request for the indication of interim measures of protection)