Summary of the Judgment of 21 June 2000

Summaries of Judgments, AdviNot an official document of the Internationa
l Court of Justice

CASE CONCERNING THE AERIAL INCIIDENTOF 10 AUGUST 1999
(PAKISTAN v. INDIA) (JURISDICTION Ol?THE COURT)

Judgment of 21 June 2000

In its judgment in the case concerning the Aerial By letter of 2 November 1999, the Agent of India
Incident of 10August 1999(Pakistanv. India), by a vote of notified the Courtthat his Government"wish[ed] to indicate
fourteento two, the Courtdeclaredthat it had nojurisdiction its preliminary objections to the assumption of jurisdiction
by the ..Court ...on the basis of Pakistan's Application".
to adjudicate upon the dispute brought before itby Pakistan
against India. Those objections, set out in a note appended to the letter,
The Court was composed as follows: President were as follows:
Guillaume; Vice-President Shi; Judges Oda, Bedjaoui, "(i) That Pakistan's Applicationdid not refer to any
Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, treaty or convention in force between Indiaand
Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh, Pakistan which confers jurisdiction upon the
Buergenthal; Judges ad hoc Pirzada, Reddy; Registrar Courtunder Article 36 (1).

Couvreur. (ii) That Pakistan's Application fails to take into
* consideration the reservations to the
* * Declaration of India dated 15 September, 1974
filed under Article 36 (2) of its Statute. In
The full text of the operativeparagraph of the Judgment particular, Pakistan, being a Cotnmonwealth
reads as follows: country, is not entitledto invokethejurisdiction
"56. For these reasons, of the Court as subparagraph 2 of paragraph 1
THE COURT,
of that Declaration excludes all disputes
By fourteenvotesto two, involving India from the jurisdiction of this
Finds that it has no jurisdiction to entertain the Court in respect of any State which 'is or has
Application filed by theslainic Republicof Pakistan on been a Member of the Commonwealth of
21September 1999. Nations'.
IN FAVOUR: President Guillaume; Vice-President (iii) The Government of India also submits that
subparagraph 7 of paragraph 1 of its
Shi; Judges Oda, Bedjaoui, Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Higgins. Parra- Declaration of 15 September, 1974 bars
Aranguren, Kooijmans, Buergenthal; Judge ad hoc Pakistan from invoking the jurisdiction of this
Reddy ; Court against India concerning any dispute
AGAINST: Judge Al-Khasawneh; Judge ad hoc arising from the interpretation or application of
Pirzada." a multilateral treaty, unless at the same time all
* the parties to such a treaty are also joined as
parties to the case before the Court. The
reference to the UN Charter, which is a
Judges Oda and Koroma and Judge ad hoc Reddy
appended separate opinions to the Judgment of the Court. multilateral treaty, in the Application of
Pakistan as a basis for itslaim would clearly
Judge Al-Khasawneh and Judge ad hoc Pirzada appended fall within the ambit of this reservation. India
dissentingopinionsto it. further asserts that it has not provided any
* consent or concluded any special agreement
with Pakistanwhich waivesthis requirement."
After a meeting held on 10 November 1999 by the

History of thepi.oceediizgs and subnlissions of the President of the Court with the Parties, the latter agreed to
Parties request the Court to determine separatelythe question of its
(paras. 1-11) jurisdiction in this case before any proceedings on the
merits, on the understanding that Pakistan would first
On 21 September 1999,Pakistan filed in the Registry of present a Memorial dealing exclusively with this question,
the Court an Application instituting proceedings against to which India would have the opportunity of replying in a
India in respect of a dispute relating to the destruction, onCounter-Memorialconfinedto the samequestion.
10 August 1999, of a Pakistani aircraft. In its Application,
Pakistan founded thejurisdiction of the Court on Article 36, By Order of 19November 1999,the Court, taking into
paragraphs 1 and 2, of the Statute and the declarations account the agreementreached between the Parties, decided
accordingly and fixed time limits for the filing of a
whereby the two Parties have recognized the compulsory Memorialby Pakistan and a Counter-Memorialby India on
jurisdiction of the Court. that question.Hearingswereheld from 3 to 6April 2000. * (3) paragraph 1of Article 36of the said Statute;
In the Application Pakistan requested the Court tojudge and that India disputes each one of these bases of

and declareas follows: jurisdiction. The Court examines in turn each of these bases
".(athat the acts of India (as stated above) constitute ofjurisdiction relied onby Pakistan.
breaches of the various obligations under the Charter of
the United Nations, customary international law and Article 17 ofthe General Act of1928
treaties specified in the body of this App1ic:ationfor (paras. 13-28)
which the Republic of India bears exclusive legal
Pakistan begins by citing Article 17 of the General Act
responsibility; c)f1928,which provides:
(b)that India is und.er an obligation to make
reparations to the Islainic Republic of Pakistan for the "All disputes with regard to which the parties are in
loss of the aircraft and as compensation to the heirs of conflict as to their respectiverights shall, subject to any
those killed as a result of the breaches of the obligations reservations which may be made under Article 39, be
comimittedby it under the Charter of the United Nations submitted for decision to the Pennanent Court of
International Justice, uilless the parties agree, in the
and relevant rules of customary international law and mannerhereinafterprovided, to have resort to an arbitral
treatyprovisions." tribunal.
In the note attached to its letter of 2 November 1999,
India requestedthe Court: It is understood that the disputes referred to above
includein particularthose mentionedin Article 36 of the
(-i) to adjudge ancl declare that Pakistan's Statuteof the PermanentCourt of InternationalJustice."
Application is without any merit to irivokethe Pakistan goes on to point out that, under Article 37 of
jurisdiction of the Court against India in view t:heStatuteof the Ii~ternationalCourtof Justice:
of its status as a Memberof the Comm.onwealth
of Nations;and "Whenever a treaty or convention in force provides for
reference of a inatter to ...the Permanent Court of
(ii) to adjudge and declare that Pakistan cannot International Justice, the matter shall, as between the
invoke the jurisdiction of the Court in respect parties to the present Statute, be referred to the
of any claims concerning various provisions of InternationalCourtof Justice."
the United Nations Charter,particularilyArticle
2 (4) as it isidentthat all the Statesparties to Finally, Pakistan recalls that on 21 May 1931 British
the Charter have not been joinecl in the T-ndiahad acceded to the General Act of 1928.It considers
Application and that, under the circu~nstances, that India and Pakistan subsequently becaine parties to the
the reservation made by India in subparagraph (ieneral Act. It followed that the Court had jurisdiction to
entertainPakistan's Applicationon the basisof Article 17of
7 of paragraph 1 of its declaration would bar the GeneralAct read withArticle 37 of the Statute.
thejurisdiction of this Court."
At the close of the hearings Pakistan requested the In reply, India contends, in the first place, that "the
Court: (ieneral Act of 1928is no longerin force and that, even if it
''~(i)to dismiss the preliminary objections raised by were, it could not be effectively invoked as a basis for the
C:ourtYjsurisdiction". It argues that numerous provisions of
India; the General Act, and in particular Articles 6, 7, 9 and 43 to
(ii) to adjudge and declarethat it hasjurisdiction to 47 thereof, refer to organs of the League of Nations or to the
decide on the Application filed by Pakistan on Permanent Court of International Justice; that, in
21 September1999;and
consequenceof the demise of those institutions,the General
(iii) to fix time limits for the further proceedings in Act has "lost its original efficacy"; thatthe United Nations
the case." CieneralAssembly so found when in 1949it adopted a new
India submitted "that the Court adjudge and declare that General Act; that "those parties to the old General Act
it has no jurisdiction to consider the Application of the which have not ratified the new act" cannot rely upon the
Govemmentof Pakistan." old Act except"insofar as it might stillbe operative", thatis,
insofar ...as the amendedprovisions are not involved; that

P~ticle 17 is among those amended in 1949 and that, as a
The Court begins by recalling that, to found the result,Pakistancannotinvokeit today.
jurisdiction of the Court in this case, Pakistanrel-iedin its Secondly, the Parties disagree on the conditions under
Memorialon: which they succeeded in 1947to the rights and obligations
of British India, assuming, as Pakistan contends, that the
(1) Afiicle 17 of the General Act for Pacific S1:ttlement CieneralAct was then still in force and binding on British
of International Disputes, signed at Geneva on 26
September 1928 (hereinafter called "the General Act of India. In this regard, India argues that the General Act was
1928"); ainagreement of a political character which, by its nature,
(2) the declarations made by the Parties pursuant to was not transmissible.It adds that, in any event, it made no
notificationof succession.Furthermore,Indiapoints out that
Article 36,paragraph2, of the Statuteof the Court;it clearly stated in its communicationof 18September 1974 grounds,it would no longerbe necessaryfor it to rule on the
to the Secretary-Generalof the UnitedNations that others.
"[tlhe Government of India never regarded themselves As the Court pointed out in the case concerning Certain
as bound by the General Act of 1928 since her Norwegian Loons, when its jurisdiction is challenged on
Independence in 1947, whether by succession or diverse grounds, "the Court is free to base its decision on
otherwise.Accordingly, India has never been and is not the ground which in its judginent is more direct and

a party to the General Act of 1928 ever since her conclusive". Thus, in the Aegean Sea Coirtinental Slrelf
Independence." case, the Court ruled on the effect of a reservation by
Pakistan, recalling that up to 1947 British India was Greece to the General Act of 1928 without deciding the
party to the General Act of 1928, argues on the contrary issue whether that convention was still in force. In the
that, having become independent, India remained party to conimunication addressed by India to the United Nations
Secretary-Generalon 18 September 1974, the Minister for
the Act, for in its case "there wasno succession.There was
continuity", and that consequently the "views on non- External Affairs of India declared that Indiaconsideredthat
transmission of the so-called political treaties [were] not it had never been party to the General Act of 1928 as an
relevanthere". independentState. The Court considers that India could not
Thus the communication of 18 September 1974 was a therefore have been expected formally to denouncethe Act.
Even if, orpendo, the General Act was binding on India,
subjective statement, which had no objective validity. the communication of 18 September 1974 was to be
Pakistan, for its part, is said to have acceded to the General considered in the circumstances of the present case as
Act in 1947 by automatic succession by virfue of
internationalcustomary law. Further, accordingto Pakistan, having served the same legal ends as the notification of
the question was expressly settled in relation to both States denunciation provided for in Article 45 of the Act. It
by Article 4 of the Schedule to the Indian Independence followed that India, inany event, would have ceased to be
(InternationalArrangements)Order issuedby the Governor- bound by the GeneralAct of 1928at the latest on 16August
1979,the date on which a denunciation of the General Act
General of India on 14August 1947.That Article provided under Article 45 thereof would have taken effect. India
for the devolvement upon the Dominion of India and upon could not be regarded as party to the said Act at the date
the Dominionof Pakistanof the rights and obligationsunder
all international agreements to which British India was a when the Application in the present case was filed by
Party. Palcistan.It followed that the Court had no jurisdiction to
India disputes this interpretation of the Indian entertain the Application on the basis of the provisions of
Article 17 of the General Act of 1928 and of Article 37 of
Independence (International Arrangements) Order of 14 the Statute.
August 1947 and of the agreement in the Schedule thereto.
In support of this argument India relies on a judgment
rendered by the SupremeCourt of Pakistan on 6 June 1961, Declai-ations of acceptance of the Court bjzrrisdictioiz
and on the report of Expert Committee No. IX on Foreign I~JtJe Parties
Relations, which in 1947had been instructed, in connection (paras. 29-46)

with the preparation of the above-mentioned Order, "to Pakistan seeks, secondly,to found thejurisdiction of the
examine and make recommendations on the effect of Court on the declarationsmade by the Parties under Article
partition". Pakistan could not have, and did not, become 36, paragraph 2, of the Statute. Pakistan's current
party to the GeneralAct of 1928.Each of the Parties further declaration was filed with the United Nations Secretary-
relies in supportof itsositioilon the practice since 1947. General on 13 September 1960; India's current declaration

was filed on 18 September 1974. India disputes that the
Court has jurisdiction in this case on the basis of these
On this point, the Court observes in the first place that declarations. Jt invokes, in support of its position, the
the question whether the General Act of 1928 is to be reservations contained in subparagraphs (2) and (7) of the
regarded as a conventionin force for the purposes of Article first paragraph of its declaration, with respect to
37 of the Statute of the Court has already been raised, but "(2) disputes with the government of any State which is or
has been a Member of the Commonwealthof Nations;" and
not settled, in previous proceedings before the Court. In the
present case, as recalled above, the Parties have made "(7) disputes concerning the interpretation or application of
lengthy submissions on this question, as well as on the a multilateral treaty unless all the parties to the treaty are
question whether British India was bound in 1947 by the also parties to the case before the Court or Government of
General Act and, if so, whether India and Pakistan became India speciallyagreetojurisdiction".
parties to the Act on their accession to independence.

Further,relying on its communicationto the UnitedNations The ''Conimonwenltkreservation "
Secretary-Generalof 18 September 1974and on the British (paras. 30, 31 and 34-46)
Indiareservations of 1931.India deniesthat the GeneralAct
can afford a basis of jurisdiction enabling the Court to With respect to the first of these reservations,relating to
entertain a dispute between the two Parties. Clearly, if the Sta.tes which are or have been members of the
Court were to uphold India's positionon any one of these Commonwealth (hereinafter called the "Commonwealthreservat:ion"),Pakistan contended in its written pleadings 1:ithergenerallyto certain aspects of any kind of dispute, or
that it"ha[d] no legal effect", on the grounds that: it was in :specificallyto certain classes or lists of disputes, and ...
conflict with the "principle of sovereign equality" and the :these different kinds of reservation can be legitimately
"universality of rights and ol~ligationsof niembars of the ~combined"(resolution adopted on 26 September 1928).

UnitedNations"; itwas in breach of "good faith"; and that it :Moreover,when the Statute of the present Court was being
was in breach of various provisions of the United Nations drafted, the right of a State to attach reservations to its
Charter and of the Statute of the Court. In its Memorial, declaration was confirmed, and this right has been
Pakistan claimed in particular that the reservation in 1:ecognizedin the practice of States. The Court thus cannot
questio~i"[was] in excess of the conditionspermitted under acceptPakistan'sargumentthat a reservationsuch as India's
Article 36 (3) of the Statute'", underwhich, according to ~Clommonwealth reservation might be regarded as "extra-
Pakistan,"the permissibleconditions [towhich a declaration !jtatutoryYb,ecause it contravened Article 36, paragraph 3,

may be made subject] have been exhaustivelyset out [...I as of the Statute. It considers that it need not tliereforepursue
(i) on condition of reciprocity on the part of several or :furtherthe matterof extra-statutoryreservations.
certain statesor (ii) for a certaintime". Nor does the Court accept Pakistan's argument that
In its oral pleadings, Pakistan developed its argument India's reservationwas a discriminatoryact constituting an
based on Article 36, paragraph 3, of the Statute, contending abuse of right because theonly purpose of this reservation
that reservations which, like the Comnionwealth was to prevent Pakistan from bringing an action against

reservation, did not fallwithin the categories authorized by India before the Court. It notes in the first place that the
that provision, should be considered "extra-statutory". On reservationrefers generallyto Stateswhich are or have been
this point it argued that: ''an extra-statutory reservation lnembers of the Commonwealth. It adds that States are in
made by a defendant State rnay be applied by the Court ;my event free to liniit the scope ratione personae which
against a plaintiff Stateonly if there is somethingin the case Ihey wish to give to their acceptance of the compulsory
which allows the Court to conclude [...Ithat the plaintiff has jurisdiction of the Court.
accepted the reservation". Pakistan further claimed at the
hearing:;that the reservationwas "in any event inapplicable, The Court addresses, secondly,' Pakistan's contention
that the Commonwealth reservation was obsolete, because
not because it [was] extra-statutory and unopposable to lnembers of the Commonwealth of Nations were no longer
Pakistan but because it [was11obsolete". Finally, Pakistan unitedby a commonallegianceto the Crown,and the modes
claimed that India's Commonwealth reservation, having of dispute settlement originally contemplated had never
thus lost its raison d'Ctre,coilld today only be directed at come into being. The Court recalls that it "will...interpret
Pakistan. the relevant words of a declaration including a reservation
India rejects Pakistan's line of reasoning. In its contained therein in a natural and reasonable way, having

pleadings, it stressed the particular in~portance to be clueregardto the intentionof the Stateconcernedat the time
attached, in its view, to ascertaining the intention of the when it accepted the compulsoryjurisdiction of the Court"
declarant State. It contended that "there is no evidence (I.C.J. Reports 1998, p. 454, para. 49). Whilethe historical
whatsoever that the reservatic~n[in question] is ultra vires reasons for the initial appearance of the Commonwealth
Article 36, paragraph 3" of the Statuteand referred to "[tlhe reservation in the declarations of certain States under the
fact [...I that it has for long been recognized that within the optional clause might have changed or disappeared, such
system of the optional clause a State can select its :partners9'c:onsiderationscouldnot, however,prevail overthe intention

India also queried the correctness of the theory of "extra- of a declarant State, as expressed in the actual text of its
statutory"reservationsput forwardby Pakistan,pointing out tleclaration. India had in the four declarations whereby,
that my] State against which the reservation [were] since its independence in 1947, it had accepted the
invoked, [could] escape from it by merely stating that it c:ompulsoryjurisdiction of the Court made clear that it
[:was] extra-statutory in character". India also rejects wished to limit inthis mannerthe scoperatione personae of
l'akistari's alternative arguments based on estoppel in its acceptance of the Court's jurisdiction. Whatevermight
relationto the SimlaAccordand on obsolescence. have been the reasons for this limitation, the Court was
bound to apply it.

The Court furtherregardsArticle 1of the SimlaAccord,
The Court first addresses Pakistan's contentioilthat the paragraph (ii) of which provides, inter alia, that "the two
Commonwealthreservation is an extra-statutoryreservation c.ountriesare resolved to settle their differencesby peaceful
going beyond the conditions allowed for under Article 36, rneans through bilateral negotiatiolis or by any other
peaceful means mutually agreedupon between thein ..."as
paragraph 3, of the Statute. According to Pakistan, the an obligation, generally, on the two States to settle their
reservat:ionis neither applicable nor opposable to it in this
case, in the absence of acceptance.The Court observes that cliffereiices bypeaceful means, to be mutually agreed by
paragraph 3 of Article 36 of its Statute has never been them. The said provision in no way modifies the specific
regarded as laying down in an exhaustive ma.nner the rules governing recourse to any such means, including
conditions under which declarations might be made. judicial settlement. The Court cannot tlierefore accept
Already in 1928, the Assembly of the League o:fNations Pakistan's argumentin thepresent casebased on estoppel.
had indicated that "reservations conceivable may relate, In the Court's view, it followsfrom the foregoing that succession as a party to the Act, based its rejection on the

the Commonwealth reservation contaiaed in subparagraph ground that Indiawas not, in any event,aparty to theAct on
(2) of the first paragraph of India's declaration of 18 the date of Pakistan's Applicationin 1999.
September 1974mayvalidly be invoked inthe present case. Judge Oda does not disagree with the Court's reasoning
Since Pakistan "is ...a member of the Commonwealth of on this point. After conductingan analysis of the manner in
Nations", the Court finds that it has no jurisdiction to which the 1928 General Act was drafted and of the
entertain the Application under Article 36, paragraph 2, of development in the 1920s of the issues concerning the
the Statute. Hence the Court considers it unnecessary to
examine India's objection based on the reservation cornpulsory jurisdiction of the Permanent Court in the
League of Nations era, he suggeststhat the Act itself cannot
concerning multilateral treaties contained in subparagraph be considered a document that would confer compulsory
(7) of the firstparagraphof its declaration. jurisdiction upon the Court independently from or in
additionto the "optional clause" underArticle 36,paragraph
Article 36, paragraph 1, of the Statute 2, of the Statute of either the Pernlanent Court or of the
(paras. 47-50) present Court. He also points out the fact that all States

ina allPa,kistan has sought to found thejurisdiction of which acceded to the General Act had already accepted the
the Court on paragraph 1 of Article 36 of the Statute. The coinpulsoryjurisdiction of the Court by making declarations
Court observes that the United Nations Chartercontains no untler the "optional clause" pursuant to Article 36,
paragraph 2, of the Court's Statute and did not intend to
specific provision of itself conferring con~pulsory assume any new obligation as far as the Court's jurisdiction
jurisdiction on the Court. In particular, there is no such was concerned.
provision in Articles 1,paragraph 1, 2, paragraphs 3 and 4,
33, 36, paragraph 3, and 92 of the Charter, relied on by Judge Oda asserts that the Court's jurisdiction is
Pakistan. The Court also observes that paragraph (i) of conferred only pursuant to Article 36, paragraphs 1 or 2, of
Article 1 of the Simla Accord represents an obligation its Statute and therefore couldnot have been conferred by
entered into by the two States to respect the principles and the 1928GeneralAct.

purposes of the Charter in their mutual relations. It does not Separate opinioiz of Judge Kororna
as suchentail any obligationon India and Pakistanto submit
their disputes to the Court. It follows that the Court has no In his separate opinion Judge Koroma stated that,
jurisdiction to entertain the Application on the basis of although he entirely agreed with the Court's findings and
Article 36,paragraph 1,of the Statute. the reasoning underlying them, he felt the Judgment should

have respondedto the issuesofjusticiability andjurisdiction
Obligation to settle disputes by peacejirl means which were raised in the course of the proceedings, given
(paras. 51-55) the importanceof the case.
Finally,the Courtrecalls that its lack ofjurisdiction does He acknowledged that the acts complained of by
Pakistan, and their consequences, raised legal issues
not relieve States of their obligation to settle their disputes involving a conflict of the rights and obligations of the
by peaceful means. The choice of those means admittedly
rests with the parties under Article 33 of the United Nations Parties. He, however, observed that for a matter to be
Charter. They are nonetheless under an obligation to seek brought before the Court, the parties must have given their
such a settlement, and to do so in good faith in accordance consent either prior to the institution of proceedings or in
with Article 2, paragraph2, of the Charter.As regards India the course of suchproceedings.
and Pakistan, that obligation was restated more particularly He elaborated on this by pointing out that the question
in the Simla Accord of 2 July 1972.Moreover, the Lahore whether there is a conflict of legal rights and obligations

Declaration of 21 February 1999 reiterated "the between parties to a dispute and whether international law
determination of both countries to implementing the Simla applies (justiciability) is different from whether the Court
Agreement". Accordingly,the Court reminds the Parties of has been vested with the necessary authority by the parties
their obligation to settle their disputes by peaceful means, to a dispute to apply and interpretthe law in relation to that
and in particularthe dispute arisingout of the aerial incident dispute (jurisdiction). He stated that where the parties have
of 10 August 1999, in conformity with the obligations not given their consent the Court is forbidden by its Statute
which they haveundertaken. andjurisprudence fromexercisingitsjurisdiction.

Judge Koroma also stated that the Judgment thus
Separate opinion of Judge Oda rendered should not be seen as an abdication of the Court's
role but rather a reflection of the system within which the
Judge Oda fully supports the decisions reached by the Court had been called upon to render justice. On the other
Court in concluding that the Court has no jurisdiction to hand, the Court, as an integral part of the United Nations
entertainthe Applicationfiledby Pakistan. system entitled to contribute to the peaceful settlement of
The Court rejects the 1928 General Act which Pakistan
asserts as one basis for the Court's jurisdiction. The Court, disputes, guided by the Charter and its jurisprudence, acted
jutliciously in reminding the Parties of their obligation to
after having analysed India's accession to the Act, India's settletheir disputesby peacefulmeans.
denunciation of the Act, and the possibility of Pakistan's Separote opiiliorl oj'Judge ud hoc B. P.Jeevait Reddj the actions complained of were also breaches under
Judge ad hoc Jeevan Reddy has voted in favour of all cilstomaryinternationallaw.
The Commonwealth reservation was alleged to be
parts of the dispositif of the Judgment. He has, llowever, (trobsolete and (b) discriminatory. Regarding the first
emphasized, in his separate: concurring opin:ion, the
observation contained in paragraphs 47 to 51 of the point, Judge Al-Khasawneh, while acknowledging that
Judgment. In particular, he stressed the element of "good doubts in this regard were justifiable considering the
faith" required of States wishing to settle their disputes by firndamentalchanges in the Commonwealth that had taken
peaceful means. In this connecf.ion,he referred to the Simla p1.ace since 1930, when such a reservation was first
inlroduced, thought nevertheless that the case for
Agreement and the Lahore Declaration whereunder both obsolescence was not conclusively made. Two reasons
India andPakistan have agreed to settle all their differences accounted for this. Firstly, a small number of
by peaceful means bilaterally. They have also coiidemned
"terrorism in allits fornls and manifestations" and reiterated Commonwealth States had included the reservation - in
"their determinationto coinbatthis menace". The Parties are one fonn or another - in their declarations and, secondly,
under an obligation, Judge Iteddy said, "to create an India had maintained the reservation with modifications in
atrnosphe:re"where bilateral negotiations can be conducted it:; successive declarations- a practice from which the
existence of a coilscious will, as well as a degree of
meaningfully. He concluded b,y expressiilg the hope that importancefor India,couldbe firmlyinferred.
both couiltrieswould settle all their differencesin tlie above
spirit and devote their energies to developir~g their However, the reservation had undergone a change in
economic:a^s well as friendlyrelations betweenthern. wording that led to the inescapable conclusion that it was
meant to operate against one State only, Pakistan. This was
confirmed also by analysing the circumstancesthat had led
Disserltiizg opinion of Judge Al-Khasawneh to this change.
In his dissenting opinion, Judge Al-Kha.sawneh,
While not all reservationsthat were extra-statutorywere
reiterating that lackofjurisdiction did not in itself mean that invalid, it was nonetheless open to the Court to pronounce
the dispute was not justiciable, joinedthe call made by the on the validity of a reservation allegedly tainted by
Court on the two States to settle this, and other disputes, arbitrariness or discrimination. Judge Al-Khasawneh felt
through peaceful means. He felt that such a call was urgent that the Indian declaration fell outside the purview of
in view of the possibility of dangerous escalation, and pennissibility becauseit was directedagainstone Stateonly,
pertinent in view of the rejection by India of any other
modes of peaceful settlementbeforethe case was broughtto thereby denying that State the benefits of reasonable
expectations of adjudication,and also because, unlikeother
the Court. reservationsratione personae, the Indian reservation had no
He agreed with the majority that there is no rationale or reasonablydefensiblejustification. He therefore
con~prehensive systein of jurisdiction deriving fi.om the came to the conclusion that the Indian reservation was
United Nations Charter. He also agreed, but with invalid.
considerablehesitation,with the majorityview thatthe 1928
General Act did not provide a basis forjurisdiction in view Dealing with the consequential issue of separability,
Judge Al-Khasawneh felt that not much guidance could be
of the 1!274Indian commui~ication,which, while not a gained from the precedents, both because of their paucity
formal clenunciation of the Act, was treated as a and because they had not been followed. Agreeing that
"notification" by the Secretary-General, there being, concepts from major systems of law were relevant, he went
moreover, no reaction from other parties to the Act on to analysea case decidedby the Indian SupremeCourt in
including Pakistan - assuming that the latter was itself a 1957, which revealed a complex and less severe test for
party.
separability than was suggested to the Court by India. He
He neverthelessthoughtthat.,by notaddressingpertinent noted in this regard that India could not adduce any
and interrelated issues such asIndia and Pakistan's status as su:pporting evidence that the Commonwealth reservation
parties to the General Act, the trailsinittability of the was a crucial element of its acceptance of compulsory
General Act and the question w:hetherit is still in force, the jurisdiction; nor could this conclusion be reached from the
Court's decision,thoughjustifiable underthe circumstances, terms of the reservation, which related to a group of States.
did not attain the certainty necessary to fortify it against
Ur~likethe French reservation on domestic jurisdiction in
recurriilgdoubts. tht:NorwegiaitLoanscase, which defined a general attitude
Moving on to the next ground of jurisdiction, the to the very concept ofjurisdiction, India's reservationcould
optional clause systein, Judge Al-Khasawneh noted that the not be saidto definesuchan attitude.
declarationsmadeby Indiaand I'akistancontaineda number Other major legal systems also admitted of separability.
of resei-vationsand conditions, two of which concernedthe Thus, under Islamic law, the concept would seem to be
pr1:sentcase:
reflected in the maxim: that which cannot be attained in its
(1) The multilateraltreaty reservation; en1:iretyshould not be substantially abandoned. Analogies
(2) The Commonwealthreservation. fromthe law of treatieswere alsorelevant, and Article44 of
the: Vienna Conventions of 1969 and 1986 admitted of
The first of these two reservationswas ilrelevant, since separability arising out of invalidation, albeit in suitablyguarded terms. Applyiilg the test of Article 44, Judge Al- India, in its comn~unicationof 18 September 1974,
Kliasawneh came to the conclusion that the Indian assertedthat it never regarded itself as bound by the General

Commonwealthreservation was both invalid and separable Act of 1928. The said communication was sent to counter
from India's declaration. the declaration of Pakistan of 30 May 1974 whereby, to
dispel all doubts, Pakistan notified that it continues to be
Dissentiizg opinion ofJudge ad hoc Pirzada boimd by the General Act. Such pleas had already beell
raised by Pakistan before the International Court of Justice
In his dissenting opinion-JudgePirzada regretted that he in the Trial of Pakistani Prisoners of Warcase. The Indian
found himself obliged to dissent from the reasoning in the colnmunication was not sent in good faith and cannot be
Judgmentof the Court and its conclusion.However, he is in
agreementwith paragraphs 51to 55 thereof. treated or be deemed to be a denunciation of the General
Act and, among others. it did not comply with Article 45 of
In his view, the effect of the Indian Independence Act the:General Act of 1928. Mere affirmation by India that it
and the Indian Independence (Internaiional Arrangements) was not bound by the General Act, which is denied by
Order 1947 was that British India was divided into two Pakistan, is unilateral and its validity cannot be determined
independent States, India and Pakistan. The British Prime at the preliminary stage in view of the finding of the
Minister, Mr. Atlee, stated: "With regard to the status of the InternationalCourt in the appealby IndiaagainstPakistan in
two Dominions, the names were not meant to make any
the:ICAOcase, which is resjudicata.
difference between them. They were two successor States." India's Commonwealth reservation is obsolete, having
The list of treaties mentioned in Volume I11of the Partition regard to the viewof Judge Ago inthe Nalrrircase, sincethe
Proceedings was not exhaustive (Right of Passage over expectation of the Commonwealth Court could not be
Indian Territory,I.C.J. Reports 1960).The case of Yangtze fulfilled. The IndianCommoilwealthreservation is aimed at
(1961) relied upon by India is distinguishable. In a later
decision, in the caseofZewar Klzan(1969), it was held by Pakistan only, and is discriminatory and arbitraiy. It does
not fall under the permissible reservations exhaustively set
the SupremeCouit of Pakistanthat apart from the statement out inArticle 39 of the GeneralAct and isinvalid.
of the Secretary of State for Conlmonwealth Relations, in In any case the Indian Commonwealth reservation is
international law too Pakistan was accepted and recognized severable from the Indian declaratiotl, having regard to
as a successor government. The Pacific Settlement of Article 44 of the Vienna Conventionon the Law of Treaties,
International Disputes and the General Act 1928devolved
upon andcontinuesto applyto India and Pakistan. tht:opinions of President Klaestad and Judge Armand-Ugon
in the Ii~terlzandlase and the opinionof Judge Bedjaoui in
In June 1948. Indiaand Pakistan signed an Air Services the FisheriesJurisdictioncase. Referencewas also made by
Agreement, which providedfor recourseto the International Judge Pirzada to the rules of interpretationlaid down by the
Court of Justice if no tribunal was competent to decide Indian Supreme Court in the RMDC (1957) and Harakchad
disputes, though both were dominions at that time. As (1970) cases: The International Court of Justice is
regards the water dispute. Mr. Liaquat Ali Khan, the then competent to exercisejurisdiction under Articles 17and 41
Prime Minister of Pakistan, stated in his letter of 23 August
of the General Act.
1950: Though the International Court, in the Nicai-agra case
"Under the optional clause the Government of India (1984), had held that the declarations of acceptance of the
agreed to accept the jurisdiction of the International compulsory jurisdiction of the Court are facultative and
Court on the Applications of countries which are not unilateral engagements, it further held in that very case:
meinbers of the Commonwealth. The exception
doubtless contemplated that there would be "Just as the very rule ofpacta sunt servanda in the law of
treaties is based on good faith, so also is the binding
Commonwealthmachinery equally suited to the judicial character of an international obligation assumed by
settlement of disputes. While such Commonwealth unilateral declaration." These principles will be applicable
machinery is lacking,it would be anomalousto deny to a to the Indiandeclarationas well.
sister member of the British Commonwealththe friendly Judge Pirzada consideredthat, in view of the allegations
means of judicial settlement that is offered by India to
countriesoutsidethe Comn~onwealth." by Pakistan that India, by its incursion into Pakistan's
airspace and by shooting down the Pakistan naval aircraft
Pandit Nehru, the then Prime Minister of India, in his Allantiqueon 10August 1999when 16persons were killed,
letter of 27 October 1950,stated that Indiapreferred to refer committed breaches of obligations of customary
the dispute to a tribunal; if there was deadlock, India international law - (i) not to use force against another
proposed to settle those parts of the disputes through State, (ii) not to violate thevereigiltyof another State-
negotiation, failing that. to submit them to arbitration or
even to the International Court of Justice. In fact, between therefore the International Court has jurisdiction regarding
the claimof Pakistan.Judge Pirzadareliedupon the findings
1947 and 1999 India and Pakistan settled their disputes of'the Court in the Nicaragua case (1984). He also referred
(i) by negotiations, (ii) through mediation of third parties, to the separate and dissenting opinions of Judge
(iii) through judicial tribunals and, (iv) had access to the Weeramantry, Judge Vereshchetin and Judge Bedjaoui in
International Court of Justice through Appeal or the Fisheries Jlrrisdiction case (1998). Judge Pirzada
Applications. In the circumstances, India's conduct is observed that the Court's task is to ensure respect for
coveredby the doctrineof estoppel.internationallaw. It is its principalguardian(JudgeLachsin India's preliminary objectionsto the jurisdiction of the
his separateopinionin the Lockerbiecasein 1992). Courtandoughtto have entertainedPakistan's Application.
Judge Pirzada stated that, in view of the consensual Judge Pirzada emphasizedthat the Parties are under an
nature of itsjurisdiction, the Court generally showsjudicial obligationto settlein good faith their disputes, includingthe

caution and restraint. However, in due colirse of time, dispute regarding the State of Jammu and Kashmir and in
principles of constructive creativityand progressiverealism particular the dispute arising outof the aerial incident of 10
couldbe evolvedby the Court. August 1999.LetIndiaand Pakistan keep in view theideals
Judge Pirzada, for the reasons set out in laisdissenting of Quaid-e-Azam Mohamed Ali Jinnah and Mahatma
opinion, concluded that t:heCourt ought to have rejected Gandhi andtake effectivemeasuresto securepeace, security
andjustice in SouthAsia.