INTERNATIONAL COURT OF JUSTICE
The Case concerning the Aerial Incident of 10th August, 1999
(Pakistan vs. India)
Preliminary Objections to the Jurisdiction of the Court
Counter Memorial of the Government of India
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CONTENTS
A. Introduction: The Arguments Advanced by Pakistan
B. Allegations of Pakistan Concerning the Aerial Incident
C. There is no Basis for Jurisdiction
D. Bases of Jurisdiction Proposed by Pakistan: Article 17 of the General Act for the
Settlement of International Disputes
E. Bases of Jurisdiction Proposed by Pakistan: The Agreement on Bilateral Relations between
the Government of India and the Government of Pakistan
F. Bases of Jurisdiction Proposed by Pakistan: Article 36(1) of the Statute of the Court and the
United Nations Charter
G. The Bases of Jurisdiction Proposed by Pakistan: Article 1 of the Agreement on Bilateral
Relations, 1972 in relation to the United Nations Charter
H. The Validity of the Reservation of India Concerning Commonwealth Members:
First Argument: The Reservation Would be Contrary to the Provisions of the Charter
Second Argument: The Reservation would be Contrary to Articles 36, 37 and 38 of the
Statute of the Court
Third Argument: The Reservation would be Contrary to Article 36(3) of the Statute
Fourth Argument: The Government of India would be Estopped from Invoking the
Reservation Against Pakistan
Fifth Argument: Applicability of the Vienna Convention on the Law of Treaties, 1969
I. The "Multilateral Convention Reservation" of IndiaConcluding Submissions
List of Annexures
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INTERNATIONAL COURT OF JUSTICE
The Case concerning the Aerial Incident of 10th August 1999
(Pakistan vs. India)
Preliminary Objections to the jurisdiction of the Court
Counter Memorial of the Government of India
A. Introduction: The Arguments Advanced by Pakistan
1. It may be recalled that India filed its preliminary objections on 2 November 1999 to the
jurisdiction of the Court in response to the Application submitted by the Government of
Pakistan concerning the Aerial Incident of 10 August 1999. Pakistan has now submitted its
observations by way of a Memorial on the Jurisdiction on 7 January 2000 (hereinafter referred
to as the Memorial) and reiterated that the Court has jurisdiction.
2. In this connection, Pakistan makes the following submissions:
i) That the Court has jurisdiction in the present case by virtue of Article 17 of the General Act
for Pacific Settlement of International Disputes read with Article 36(1) and Article 37 of the
Statute of the Court;
ii) That the jurisdiction of the Court is also founded on the provision contained in
Article 36(1) of the Statute which states, "the jurisdiction of the Court comprises all cases
which parties refer to it and all matters specifically provided for in the Charter of the United
Nations or in treaties and conventions in force ", together with Articles 1(1), 2(3) & (4), 33,
36(3) and 92 of the UN Charter. In this connection, it also cited Article 1 of the Agreement on
Bilateral Relations between India and Pakistan of 2 July 1972 which states that "the principles
and purposes of the United Nations Charter shall govern the relations between the two
countries";
iii) That the Commonwealth reservation of India in its Declaration under Article 3 6(2) of the
Statute of the Court is invalid on the ground that it is contrary to Articles 92 and 93 of the UN
Charter and Article 35 of the Statute. It also questions the same on the further ground that it
violates the condition of reciprocity and other conditions laid down in Article 3 6(3) of the
Statute. Accordingly, in its view, the Indian Declaration under Article 3 6(2) should be given
effect by discounting the Commonwealth reservation;iv) That the Government of India is estopped from invoking the "Commonwealth members"
reservation specifically against Pakistan by virtue of the obligation undertaken by the
Government of India under Article 1(2) of the Agreement on Bilateral Relations of
2 July 1972, whereby the parties have agreed to settle their differences by negotiations or "by
any other peaceful means mutually agreed upon between them"; that the compulsory
procedure for settlement of dispute under Article 3 6(2) constituted such a ‘peaceful means’
agreed upon between them and that therefore the unilateral reservation made by India
thereunder could not be invoked against Pakistan or recognized by the Court;
v) That the Indian declaration made under Article 3 6(2), being a treaty obligation cannot
carry with it the Commonwealth reservation, being a prohibited reservation and hence could
not be made at all by virtue of Article 19(b) of the Vienna Convention on the Law of Treaties;
vi) That the "multilateral convention" reservation invoked by India cannot oust the
compulsory jurisdiction of the Court; and
3. Rejecting the above contentions as without any legal basis or authority, the Government of
India respectfully submits the following:
B. Allegations of Pakistan concerning the Aerial Incident
4. The factual allegations made by Pakistan in its Application and in its Memorial are
squarely denied. Pakistan’s claim for compensation is purely a propaganda exercise and an
attempt to cover up its misdeeds. Pakistan is entirely responsible for its own acts. India
reserves its right to counter specifically all allegations made by Pakistan. At the present stage,
the Government of India do not intend to engage the Court with submissions on facts and will
thus confine this Counter Memorial only to the issues concerning Preliminary Objections to
the jurisdiction of the Court.
C. There is No Basis for Jurisdiction
5. The Memorial of Pakistan signally fails to indicate any basis of consent to the jurisdiction
of the Court in accordance with Article 36 of the Statute. As the Court itself has frequently
recalled, the "well-established principle of international law embodied in the Court’s Statute,
namely, that the Court can only exercise jurisdiction over a State with its consent" exists
(Case of the Monetary Gold Removed from Rome in 1943, I.C.J. Reports 1954, p. 32; see also
e.g.: P.C.I.J., Rights of Minorities in Upper Silesia (Minority Schools), Series A, N° 15, p. 22;
I.C.J., Anglo-Iranian Oil Co., I.C.J. Reports 1952, pp. 102-103; Ambatielos, I.C.J. Reports
1953, p. 19; Phosphate Lands in Nauru, I.C.J. Reports 1992, p. 260; East Timor, I.C.J.
Reports 1995, p. 101).
As Sir Hersch Lauterpacht observed in 1958:
"The temper of caution exhibited by the Court in its formulation and exposition of the law
manifests itself with some persistence in its attitude of restraint in relation to the question of
its own jurisdiction. A very substantial number of the decisions of the Court have been
concerned with that question. When appearing before the Court as defendants under a clause
giving it obligatory jurisdiction, Governments show no reluctance to plead that they have not
in fact conferred upon it jurisdiction, which must be proved up to the hilt. Numerous
Judgements show the Court as ‘bearing in mind the fact that its jurisdiction is limited, that it isinvariably based on the consent of the respondent and only exists in so far as this consent has
been given’. Nothing should be done which creates the impression that the Court, in an excess
of zeal, has assumed jurisdiction where none has been conferred upon it. The rule boni judicis
est ampliare jursdictionem applies, so far as the Court is concerned, only subject to that
fundamental limitation." [The Development of International Law by the International Court
(London, 1958), p. 91].
6. The Court’s jurisprudence has consistently affirmed the necessity for clear agreement
between the parties. Sir Gerald Fitzmaurice has also emphasised the importance of consent. In
his opinion:
"As to the application in contentious cases of the principle of the consent of the parties as the
basis of jurisdiction, there is no room for doubt. In the period covered by the 1948-51 cycle of
this series, this principle was emphatically affirmed by the Court in the Peace Treaties cases,
when it is said that ‘The consent of States, parties to a dispute, is the basis of the Court’s
jurisdiction in contentious cases.’ In the period under review, this principle, which is reflected
in paragraph 1 of Article 36 of the Statute, was equally affirmed and acted upon by the Court;
and in all the three cases in which the question of jurisdiction specifically arose, the issue was
whether or not, in the circumstances, the consent of both parties had been given to the
exercise of jurisdiction by the Court. In the Anglo-Iranian Oil cases the Court (I.C.J., 1952,
103) referred to:
‘...the principle that the jurisdiction of the Court to deal with and decide a case on the merits
depends on the will of the Parties. Unless the parties have conferred jurisdiction on the Court
in accordance with Article 36 [sc. of the Statute], the Court lacks jurisdiction.’
In the first phase of the Ambatielos case also, the Court, after referring to doubts as to the
existence of an ‘unequivocal agreement between the Parties’ on a certain jurisdictional issue,
went on to say (I.C.J., 1952, 38) that it had no doubt that
‘.. .in the absence of a clear agreement between the Parties in this respect, the Court has no
jurisdiction to go into. ..the merits of the present case...’
Similarly, in the second phase of the case, the Court said (I.C.J., 1953, 44) that the function it
was carrying out in that case did not involve departing from
‘...the principle, which is well established in international law, and accepted by its own
jurisprudence as well as that of the Permanent Court of International Justice, that a State may
not be compelled to submit its disputes to arbitration without its consent’.
[British Year Book of International Law, vol. 34 (1958), pp. 67-8; Sir Gerald Fitzmaurice,
The Law and Procedure of the International Court of Justice, vol. 11 (Cambridge, 1986),
pp. 493-4].
7. The more recent decisions of the Court have maintained the rigour of the principle of
consent. In this connection, the observations made by the Court in the Fisheries Jurisdiction
case (Spain v. Canada) dated 4 December 1998 may be noted:
" 42. Spain and Canada have both recognized that states enjoy a wide liberty in formulating,
limiting, modifying and terminating their declarations of acceptance of the compulsoryjurisdiction of the Court under Article 36, paragraph 2, of the Statute. They equally both agree
that a reservation is an integral part of a declaration accepting jurisdiction.
43. . . Spain emphasized that a reservation to the acceptance of the Court’s jurisdiction must
be interpreted so as to be in conformity with, rather than contrary to, the Statute of the Court,
the Charter of the United Nations, and general international law.
For its part, Canada emphasized the unilateral nature of such declarations and reservations
and contended that the latter were to be interpreted in a natural way, in context and with
particular regard to the intention of the reserving state.
44. The Court recalls that the interpretation of declarations made under Article 36,
paragraph 2, of the Statute, and of any reservations they contain, is directed to establishing
whether mutual consent has been given to the jurisdiction of the Court.
It is for each State, in formulating its declaration, to decide upon the limits it places upon its
acceptance of the jurisdiction of the Court: "The jurisdiction only exists within the limits
within which it has been accepted" (Phosphates in Morocco, Judgment, 1938, P.C.I.J., Series
A/B, No. 74, p. 23). Conditions or reservations thus do not by their terms derogate from a
wider acceptance already given. Rather, they operate to define the parameters of the state’s
acceptance of the compulsory jurisdiction of the Court..."
The Court further added in the same case:
"46. A declaration of acceptance of the compulsory jurisdiction of the Court, whether there
are specified limits set to acceptance or not, is a unilateral act of State sovereignty. At the
same time, it establishes a consensual bond and the potential for a jurisdictional link with the
other states which have made declarations pursuant to Article 36, paragraph 2, of the Statute
and ‘makes a standing offer to the other states party to the Statute which have not yet
deposited a declaration of acceptance’. [Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v. Nigeria), Preliminary Objections, I.C.J. Reports 1998, para. 25].
[I.C.J. Reports, Judgment, 4 December 1998)".
8. To the same effect is the observation made by President McNair, in his Separate Opinion,
in the Anglo-Iranian Oil Company case:
"A State, being free either to make a Declaration or not, is entitled, if it decides to make one,
to limit the scope of its Declaration in any way it chooses, subject always to reciprocity.
(I.C.J. Reports, 1952, p. 116)."
9. Judge Lauterpacht, in his Separate Opinion in Certain Norwegian Loans (I.C.J. Reports,
1957, p. 46) expressed in a similar vein:
"In accepting the jurisdiction of the Court Governments are free to limit its jurisdiction in a
drastic manner. As a result, there may be little left in the Acceptance, which is subject to the
jurisdiction of the Court. This the Governments, as trustees of the interests entrusted to them,
are fully entitled to do. Their right to append reservations which are not inconsistent with the
Statute is no longer in question".10. In the context of establishing a legal basis for the exercise of jurisdiction by the Court, the
proposal by Pakistan that India should make a voluntary submission to the jurisdiction of the
Court (see the Memorial, paras. 5 and 6) speaks for itself. This proposal constitutes a clear
admission that, in the absence of such a submission, jurisdiction is lacking. In any case the
Government of India rejects this invitation.
D. Bases of Jurisdiction Proposed by Pakistan: Article 17 of the General Act for the
Settlement of International Disputes
11. Article 17 of the General Act (Annex-A) provides 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 to
the Permanent Court of International Justice, unless the parties agree, in the manner
hereinafter provided, to have resort to an arbitral tribunal. It is understood that the disputes
referred to above include in particular those mentioned in Article 36 of the Statute of the
Permanent Court of International Justice".
12. With reference to this provision Pakistan relies upon Article 37 of the Statute of the Court,
which preserves compromissory clauses in the following conditions:
"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 of International
Justice, the matter shall, as between the parties to the present Statute, be referred to the
International Court of Justice."
13. The contention by the Government of Pakistan lacks any basis, first because the General
Act was the subject of an unequivocal notification of termination by the Government of India
in its letter to the Secretary General of the United Nations received on 18 September 1974
(Annex-B). The key passage in the letter is as follows:
"I have the honour to refer to the General Act of 26 September 1928 for the Pacific Settlement
of International Disputes, which as accepted for British India by the then His Majesty’s
Secretary of State for India by a communication addressed to the Secretariat of the League of
Nations dated 21st May 1931, and which was later revised on 15th February 1939."
"The Government of India never regarded themselves as bound by the General Act of 1928
since her independence in 1947, whether by a succession or otherwise. Accordingly, India has
never been and is not a party to the General Act of 1928 ever since her independence. I write
this to make our position absolutely clear on this point so that there is no doubt in any
quarter."
14. In the same communication, the Government of India provided a detailed explanation of
its conclusion. The relevant passages are as follows:
"2.In the aforementioned communication, the Prime Minister of Pakistan has stated, inter alia,
that as a result of the constitutional arrangements made at the time when India and Pakistan
became independent, Pakistan has been a separate party to the General Act of 1928 for the
Pacific Settlement of International Disputes from the date of her independence, i.e.
14 August 1947, since in accordance with Section 4 of the Indian Independence (InternationalArrangements) Order 1947, Pakistan succeeded to the rights and obligation of British India
under all multilateral treaties binding upon her before her partition into the two successor
States.
The Prime Minister of Pakistan has further stated that accordingly, the Government of
Pakistan did not need to take any steps to communicate its consent de novo to acceding to
multilateral conventions by which British India had been bound. However, in order to dispel
all doubts in this connection, the Government of Pakistan has stated that they continue to be
bound by the accession of British India to the General Act of 1928. The communication
further adds that ‘the Government of Pakistan does not, however, affirm the reservations
made by British India'.
3. In this connection, the Government of India has the following observations to make:
(1) The General Act of 1928 for the Pacific Settlement of International Disputes was a
political agreement and was an integral part of the League of Nations system. Its efficacy was
impaired by the fact that the organs of the League of Nations to which it refers have now
disappeared. It is for these reasons that the General Assembly of the United Nations on
28 April 1949 adopted the Revised General Act for the Pacific Settlement of International
Disputes.
(2) Whereas British India did accede to the General Act of 1928, by a communication of
21 May 1931, revised on 15 February 1939, neither India nor Pakistan, into which British
India was divided in 1947, succeeded to the General Act of l928, either under general
International law or in accordance with the provisions of the Indian Independence
(International Arrangements) Order, 1947.
(3) India and Pakistan have not yet acceded to the revised General Act of 1949.
(4) Neither India nor Pakistan has regarded itself as being party to or bound by the provisions
of the General Act of 1928. This is clear from the following:
(a) In 1947, a list of treaties to which the Indian Independence (International Arrangements)
Order, 1947 was to apply was prepared by ‘Expert Committee No. 9 on Foreign Relations’.
Their report is contained in Partition Proceedings, volume III, pages 217-276.
The list comprises 627 treaties in force in 1947. The 1928 General Act is not included in that
list. The report was signed by the representatives of India and Pakistan. India should not
therefore have been listed in any record as a party to the General Act of 1928 since
15 August 1947.
(b) In several differences or disputes since 1947, such as those relating to the uses of river
waters or the settlement of the boundary in the Rann of Kutch area, the 1928 General Act was
not relied upon or cited either by India or by Pakistan.
(c) In a case decided in 1961, the Supreme Court of Pakistan while referring to the Indian
Independence (International Arrangements) Order, 1947 held that this Order ‘did not and,
indeed, could not provide for the devolution of treaty rights and obligations which were not
capable of being succeeded to by a part of a country, which is severed from the parent State
and established as an independent sovereign power, according to the practice of States’. Suchtreaties would include treaties of alliance, arbitration or commerce. The Court held that ‘an
examination of the provision of the said Order of 1947 also reveals no intention to depart
from this principle’."
15. Two distinct legal elements stand out from the above submission of India. The first
consists of the proposition that in customary international law treaties of this type are not
transmissible. The Indian communication quoted above refers to several leading authorities.
The general rule is that when a new State emerges, it is not bound by the treaties of the
predecessor sovereign by virtue of the principles of State succession. The general rule is that
treaties are not transmissible. Whilst there are exceptions to the rule, the Memorial of Pakistan
provides no evidence that the General Act falls within the exceptions.
16. The general position is explained very clearly in the ninth edition of Oppenheim:
"A state’s consent to be bound by a treaty establishes not only a legal relationship between
that state and the other party (or parties) but also a legal nexus between the treaty and that
state’s territory in relation to which its consent to be bound was given. It does not follow,
however, that, where there is a change in the responsibility for the international relations of
the state’s territory, that nexus is necessarily sufficient to require the state which has assumed
those responsibilities for the territory to succeed to all treaties previously applying to it. For
example, no succession takes place with regard to rights and duties of the extinct state arising
from its purely political treaties. Thus treaties of alliance or of arbitration or of neutrality or of
any other political nature fall to the ground with the extinction of the state which concluded
them. They presuppose the continuing existence of the contracting state and may be regarded
as in a sense personal to it: their continued application, in respect of the successor state, would
radically alter the assumptions underlying their operation."
[Oppenheim ‘s International Law, by Sir Robert Jennings and Sir Arthur Watts (eds.),
volume-i, (Ninth Edition, 1992), p. 211. See also Sir Humphrey Waldock’s Second Report
(Article 3) and Third Report (Articles 6 & 7) on State Succession submitted to the
International Law Commission in 1969 and 1970 respectively; Succession of States and
Governments, doc. A/CN.4/149-Add. 1 and AICN. 4/150-Memorandums prepared by UN
Secretariat on 3 December 1962 and 10 December 1962 respectively. In a recent publication,
M.N. Shaw, writes, ‘Political or Personal treaties... do not bind successor states for they are
seen as exceptionally closely tied to the nature of the state, which has ceased to exist.’
Malcolm N. Shaw, International Law (Fourth Edition, 1997), pp. 685-686].
17. While reviewing the question of transmissibility of certain treaties on renunciation of war
and pacific settlement of international disputes, copyright and counterfeiting and weights and
measures upon state succession, O’Connell observed: "Clearly not all these treaties are
transmissible". He noted further that "no state has yet acknowledged its succession to the
General Act for the Pacific Settlement of International Disputes". (D.P. O’Connell, State
Succession in Municipal Law and International Law, vol. 2, International Relations, 1967,
p. 213).
18. Pakistan in its Memorial refers to the Indian Independence (International Arrangements)
Order of 1947 (Annex-C) as a basis for claiming that it is a successor to the General Act
along with India. In this connection, reference could be made to paragraph 4 of the schedule
which states:"4. Subject to Articles 2 and 3 of this agreement, rights and obligations under all international
agreements to which India is a party immediately before the appointed day will devolve both
upon the Dominion of India and upon the Dominion of Pakistan, and will, if necessary, be
apportioned between the two Dominions."
19. From the above the Government of Pakistan concludes that it is entitled to regard itself as
a party to the General Act along with India. It is the submission of Government of India that
the General Act being one not having any territorial nexus but only a political treaty cannot
devolve upon either India or upon Pakistan. Paragraph 4 of the schedule to the Indian
Independence Order of 1947 could only refer to those treaties which are capable of being
automatically transmitted to the successor state under international law. This point has been
well brought out by Oscar Schachter:
"The intended effect of this provision appears to extend to Pakistan treaty rights and duties,
which would not devolve upon it under the generally accepted rule of law. For it has been
recognized that when a territory breaks off and becomes a state, succession takes place only
‘with regard to such international rights and duties of the predecessor as are locally connected
with the part of the territory ceded or broken off, and with regard to the fiscal property found
on that part of the territory’. Conversely, it has been clear that no succession occurs in regard
to rights and duties of the old state which arise from its political treaties such as treaties of
alliance or of pacific settlement. It has also been the view of the majority of writers that the
new state does not succeed to other non-local agreements, such as treaties of commerce and
extradition."
20. He continued:
"In view of these principles, what effect must be given to the bilateral agreement between the
two dominions purporting to transfer to the new state all treaty rights and obligations? It may
be doubted that it will be given effect (even if intended) with respect to agreements which are
essentially political, since both precedent and principle are contrary to recognizing
succession in these matters. On the other hand, it does not appear improbable that succession
will be recognized with respect to multipartite treaties concerned with social, economic, and
technical matters. As an indication of this development, it may be observed that the
Secretariat, as depositary, raised no objection to Pakistan signing the Protocols providing for
the transfer of functions under the Convention for the Suppression of Traffic in Women and
Children of 1921 and under the Convention on Obscene Publications of 1923." [Oscar
Schachter, "The Development of International Law through the Legal Opinions of the United
Nations Secretariat", British Yearbook of International Law, XXV (1948), pp. 91-132, at
page 106.]
21. The above clearly establishes that the General Act cannot devolve upon India being a
political treaty (emphasis supplied) and this rules out any possibility for Pakistan to invoke
the same against India. Moreover and in any case, no authority has ever suggested that new
States automatically succeed to multilateral treaties, whatever their nature. Thus, even
Article17 of the 1978 Vienna Convention on Succession of States in Respect of Treaties
demands that a newly independent State wishing to establish its status as a party to any
multilateral treaty does it by way of a formal "notification of succession" (Paragraph 1). This
is all the more noticeable given that this Convention is seen as an effort to promote as large a
participation as possible to multilateral treaties (see P. Daillier et A. Pellet, Droit international
public (Nguyen Quoc Dinh), Paris, 6th ed., 1999, p. 548). India never made such anotification. By contrast, it is revealing to note that Pakistan felt obliged to make such a
formal notification when it deemed it useful to become a Party in 1973 (even though India
considers that, in any case, this treaty has ceased to be in force since the termination of the
League of Nations).
22. The second legal element, which stands out from the communication of the Government
of India of 18 September 1974 is the attitude or conduct of the parties. Until 1973, that is to
say, 26 years after independence in 1947, the Government of Pakistan did not regard the
General Act as applicable to relations between India and Pakistan, as the Indian Government
explained in its communication of 1974 (quoted above):
23. Only in 1973 did Pakistan seek to rely upon the General Act in the Trial of Prisoners of
War case in 1973. The position of the Government of India on the General Act was indicated
in a communication to the Registrar of the Court dated 4 June 1973 (Annex D). [See I.C.J.,
Pleadings, Trial of Pakistani Prisoners of War, 1973 (sales no. 426), pp. 139 to 152].
24. In the submission of the Government of India, Pakistan has by her conduct recognized that
the General Act is not in force between Pakistan and India. Such conduct is opposable to
Pakistan: [see Arbitral Award of the King of Spain I.C.J. Reports, 1960, p. 192 at p. 213,.
Temple case (Merits), ibid., 1962, p. 6 at pp. 32-33].
25. Alternatively, it may also be noted that the Instrument of Accession (May 21, 1931)
submitted by British India while becoming a party to the General Act had several conditions
attached to it, which is reproduced below:
"Subject to the following conditions:
That the following disputes are excluded from the procedure described in the General Act,
including the procedure of conciliation:
(i) Disputes arising prior to the accession of His Majesty to the said General Act or relating to
situations or facts prior to the said accession;
(ii) Disputes in regard to which the parties to the dispute have agreed or shall agree to have
recourse to some other method of peaceful settlement;
(iii) Disputes between the Government of India and the Government of any other Member of
the League which is a Member of the British Commonwealth of Nations, all of which disputes
shall be settled in such a manner as the parties have agreed or shall agree;
(iv) Disputes concerning questions which by international law are solely within the domestic
jurisdiction of States; and
v) Disputes with any Party to the General Act who is not a Member of the League of Nations.
2. That His Majesty reserves the right in relation to the disputes mentioned in Article 17 of the
General Act to require that the procedure prescribed in Chapter II of the said Act shall be
suspended in respect of any dispute which has been submitted to and is under consideration
by the Council of the League of Nations, provided that notice to suspend is given after the
dispute has been submitted to the Council and is given within ten days of the notification ofthe initiation of the procedure, and provided also that such suspension shall be limited to a
period of twelve months or such longer period as may be agreed by the parties to the dispute
or determined by a decision of all the Members of the Council other than the parties to the
dispute.
3. (i) That, in the case of a dispute not being a dispute mentioned in Article 17 of the General
Act which is brought before the Council of the League of Nations in accordance with the
provisions of the Covenant, the procedure prescribed in Chapter I of the General Act shall not
be applied, and, if already commenced, shall be suspended, unless the Council determines that
the said procedure shall be adopted.
(ii) That, in the case of such a dispute, the procedure described in Chapter III of the General
Act shall not be applied unless the Council has failed to effect a settlement of the dispute
within twelve months from the date on which it was first submitted to the Council, or, in a
case where the procedure prescribed in Chapter I has been adopted without producing an
agreement between the parties, within six months from the termination of the work of the
Conciliation Commission. The Council may extend either of the above periods by a decision
of all its Members other than the parties to the dispute."
26. According to paragraph 2(1) of the schedule of the Indian Independence Order of 1947,
Pakistan cannot claim membership of any international organization together with the rights
and obligations attached to such membership, as a successor to British India. Such rights of
membership of international organizations ‘will devolve solely upon the Dominion of India’.
Accordingly, Pakistan cannot be regarded as a member of the League of Nations. Even if we
consider for a moment but not conceding its argument that the General Act is still available to
states parties for settlement of disputes, Pakistan, in view of the condition (v) of the Indian
Accession noted above, cannot invoke the General Act against India, not being and not having
been a member of the League of Nations.
27. In addition, it is India’s submission that under paragraph 2 of the Indian accession to the
General Act of 21 May 1931 India was free at any time to seek a solution of the dispute by
having recourse to the procedure before the Council of the League of Nations. If a party
elected to have recourse to the League Council, any proceedings instituted before the Court
would stand suspended. In the event of settlement being reached in the League Council, the
proceedings before the Court would automatically terminate. This is a procedure which not
only India but the United Kingdom and other Commonwealth countries reserved for
themselves against any other party to the General Act from 1928. However, with the
termination of the League of Nations such a procedure is no longer available to India. The
original obligation of India, under the General Act of 1928, thus, got transformed to the
disadvantage of India limiting its options to only one procedure, that is, the judicial
settlement. This fundamental change would render paragraph 2 of the Indian accession to the
General Act ineffective and make it unavailable to India with effect from the date of the
termination of the League of Nations i.e., from 18 April 1946. Accordingly the Accession of
British India to the General Act should be deemed to become invalid with the demise of the
League of Nations.
28. The United Nations as per the Resolution of the General Assembly of 12 February 1946
(U.N. Doc. A/18) took over only the secretarial, technical and non-political functions and
powers of the League, and not any of the political functions and powers of the League. ThusIndia was no longer bound by its accession to the General Act after the demise of the League
of Nations.
29. Pakistan in its Memorial (pages 9 and 10, paragraph A.1) contends that the
communication by India to the Secretary-General on 18 September 1974, disclaiming
succession to the General Act, 1928, and denouncing the treaty, does not amount to
denunciation in accordance with the procedure allowed under the Convention. According to
Article 45(3) of the General Act, 1928, "Denunciation shall be effected by a written
notification addressed to the Secretary-General of the League of Nations, who shall inform all
the Members of the League and the non-Member States referred to in Article 43". The Indian
Note of 18 September 1974, is a formal Note, which states why it considered that its
accession to the Act came to a termination, and in addition stated that if the obligation were
considered as continuing India unequivocally was denouncing its obligations. The expression
of the intention to denounce was crystal clear from the text of the note. The plea that there
was no denunciation is totally untenable.
30. Therefore the termination of Indian accession to the General Act, 1928 was effective at
the latest from August 31, 1976, assuming that the treaty obligation had survived after the
fundamental and radical change of circumstances due to the dissolution of the League of
Nations quod non. Under Article 44(2) of the General Act, the Act came into force by virtue
of the first two accessions, i.e., the Act becomes effective from the ninetieth day after the
receipt of the second accession by the Secretary-General of the League of Nations. The Indian
accession communicated on May 21, 1931, came into effect on August 31, 1931. According
to Article 45(2), the accession will remain in force for five years for the Contracting Party and
for extended five-year period if the Contracting Party does not denounce six months before
the expiry of the current period of five years. The ninth five years period came to an end on
August 31, 1976. Assuming that the General Act was still in force at this date, quod non, the
Note of the Government of India dated September 18, 1974, was clearly effective to terminate
the Indian accession on August 31, 1976.
E. Bases of Jurisdiction Proposed by Pakistan: The Agreement on Bilateral Relations
between the Government of India and the Government of Pakistan
31. The Memorial of Pakistan seeks to invoke the Agreement on Bilateral Relations of 1972
(Annex E) in the following passage:
"Assuming, but not conceding that the Indian Communication to the Secretary General,
received on 18 September 74 amounts to a denunciation of the Convention, the means of
pacific settlement of disputes under the Convention by reference to the Court has been
preserved by Article I, paragraph 2 of the Agreement on Bilateral Relations between the
Government of Pakistan and the Government of India of 2 July 1972 (The Simla Accord
Annex ‘H’)". This provides as 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 between them...". [Pakistan’s Memorial pp. 7-8 Emphasis added]
32. This argument has no legal basis. In the first place the reference in the 1972 Agreement is
said to include the General Act of 1928. But this wholly begs the question. The position of the
Government of India is that the General Act was not in force for India at the material time.33. Without prejudice to the general position as explained in the previous paragraph, the
Government of India considers that the provisions of the 1972 Agreement do not refer to pre-
existing instruments concerning arbitration or judicial settlement. The phrase "settlement
through bilateral negotiations or by any other peaceful means mutually agreed between
them", clearly relates to future negotiations and agreements on bilateral basis rather than by
any other methods, such as judicial settlement through the Court. The agreement was
primarily concerned to put an end to the conflict and to initiate the process of establishment of
durable peace inter alia by withdrawing forces immediately after the end of war (see
M.K. Nawaz, "Has the I.C.J. Jurisdiction in the POWs Case ? ", Indian Journal of
International Law, vol. 13 (1973), pp. 25 1-61, at p. 260).
34. The submission made above is reinforced by the general character of the 1972 Agreement.
The Agreement is concerned with confidence-building measures and the avoidance of
conflict. The emphasis is upon normalizing general political relations. Consequently, the
instrument does not employ the term ‘disputes’, but refers to ‘differences’. (See in particular,
Article 1(u) of the Agreement).
35. Further, assuming but not conceding that Pakistan is entitled to succeed to all the
international agreements to which British India was a party by virtue of Article 4 of the Indian
Independence Order of 1947, Pakistan did not adopt any uniform conduct in this respect [see
D.P. O’Connell, State Succession in Municipal and International Law, vol. 11 (1967),
p. 129]. Further in 1953, while informing the Secretary-General of the United Nations that it
considered itself a party to certain treaties (see Year Book of the ILC, 1962, vol. 11, at p. 109),
Pakistan did not inform him, nor the parties to 1928 General Act, that it considered itself to be
a party to that Act.
36. In addition, Pakistan’s contention that it is a successor to the General Act along with India
is unsustainable on the following grounds:
37. Firstly, acceptance of Pakistan’s contention would be contrary to the natural and plain
meaning to be given to the word ‘agreement’ in a multilateral treaty. An agreement requires a
minimum of two parties. An agreement cannot be created by a single party acting in different
capacities: where one of the parties is an original party and the other claims to be an equal
successor because of the split of the original party. In case of succession to British India it has
been accepted by the international community that India is the same legal entity as British
India and Pakistan a totally new state (Year Book of I.L.C, 1962, vol. 11, pp. 101-103). In state
succession either the old entity continues or withers away while giving rise to other new
entities in the place of the old entity. For example the USSR withered away, but the Russian
Federation has been recognized as the continuator of the USSR. In other words, the Russian
Federation is a continuing entity and belongs to the first category as it succeeds the erstwhile
USSR. The example for the second category is the emergence of newly independent states
such as Slovenia, Croatia and Bosnia on the collapse of Socialist Federal Republic of
Yugoslavia (the SFRY). (Malcolm N. Shaw, International Law (Cambridge, Fourth Edition,
1997, p. 679 or Patrick Daillier et Main Pellet, Droit international public (Nguyen Quoc
Din/i) (Paris, Sixth Edition, 1999, pages 522-523).. It follows that there cannot be more than
one party as the continuator state when state succession takes place in international law.
38. Secondly, it may be noted in this regard that the General Assembly of the UN itself has
regarded that the efficacy of the General Act was impaired because of the fact that the organs
of the League of Nations and the Permanent Court of Justice to which it refers has nowdisappeared. As such, it cannot be the intention of India to preserve such an impaired
multilateral treaty through the Simla Agreement of 1972. In addition, Pakistan never objected
to the Indian denunciation of 1974 on this ground earlier nor did it send any protest note to
this effect to the Secretary-General of the United Nations against the Indian communication.
Pakistan, therefore, is precluded from raising this argument now.
F. Bases of Jurisdiction Proposed by Pakistan: Article 36(1) of the Statute of the Court
and the United Nations Charter
39. The Pakistan Memorial also invokes a phrase in Article 36(1) of the Statute of the Court
in order to support the following argument:
B. The jurisdiction of the International Court of Justice is also founded on the provision
contained in Article 36(1) of the Statute of the Court which states, "The Jurisdiction of the
Court comprises all cases which the parties refer to it and all matters specially provided or in
the Charter of the United Nations or in treaties and conventions in force". The said Article of
the Statute is to be read with Article 1(1); Article 2 paras. 3 and 4; Article 33; Article 36(3)
and Article 92 of the United Nation’s Charter. The obligations undertaken under Article-1 of
the agreement on bilateral relations between India and Pakistan of 2 July 1972, reaffirms (sic)
this basis of jurisdiction in Article (1), which states that "The principles and purposes of the
United Nations Charter shall govern the relations between the two countries".
40. The phrase invoked provides no basis for the jurisdiction of the Court. It is generally
recognised that there are no matters ‘specially provided for in the Charter of the United
Nations...’ relating to compulsory jurisdiction. The words were inserted during the drafting of
the present Statue in the expectation that the Charter would contain some provision for
compulsory jurisdiction. In the event, no such provision was made.
41. This view of the issue is accepted by the preponderance of authorities including the
following:
(a) Sir Hersch Lauterpacht (ed.), Oppenheim ‘s International Law vol. 11 (London, 7th ed.,
1948), pp. 58-65 and 112-13;
(b) Sir Gerald Fitzmaurice, British Year Book of International Law, vol. 29 (1952), (pp. 31-2
and 44);
(c) Hans Kelsen, The Law of the United Nations (London, 1951), pp. 516-17;
(d) R.P. Anand, Compulsory Jurisdiction of the International Court of Justice, London, 1961,
pp. 131-134.
(e) Goodrich, Hambro and Simons, Charter of the United Nations (New York and London,
3rd ed., 1969), p. 282.
(f) B.S. Murty, in Max Sorensen (ed.), Manual of Public International Law (London, 1968),
p. 702
(g) Shabtai Rosenne, The Law and Practice of the International Court (1920-1996), vol. 11,
Jurisdiction, The Hague/Boston/London, 1997, pp. 659 and 692-695.42. This view of the legal position is confirmed by many other sources, including Whiteman,
Digest of International Law, vol. 12 (released in August 1971), pp. 1286-87.
43. In the Corfu Channel Case (Competence) seven members of the Court, in a Separate
Opinion, rejected an argument of the United Kingdom based upon the reference to the United
Nations Charter [Article 36, (3)] and declared very clearly that it appeared impossible to them
"to accept an interpretation according to which this article, without explicitly saying so, has
introduced more or less surreptitiously, a new case of compulsory jurisdiction" (I.C.J.
Reports, 1947-1948, pp. 32)
44. These authorities provide a clear and reliable exposition of the correct legal position.
None of these authorities receives consideration in the Pakistan Memorial.
G. The Bases of Jurisdiction Proposed by Pakistan: Article 1 of the Agreement on
Bilateral Relations, 1972 in relation to the United Nations Charter
45. The Memorial next invokes a fanciful basis of jurisdiction consisting essentially of the
argument that Article 1 of the Agreement on Bilateral Relations, 1972 constitutes a treaty or
convention in force for the purposes of Article 36 (1) of the Statue of the Court, together with
the assertion that Article 1 of the Agreement involves a compromissory clause. The
Government of Pakistan expresses the argument as follows:
"B(2). Notwithstanding the above submissions, Article 1 of the Simla Agreement, read with
Article 1; Article 2 paras. 3 and 4; Article 33; Article 36(3); and Article 92 of the UN Charter,
as well as Article 36(1) of the Statute of the Court, further affirms the jurisdiction of the
International Court of Justice in the instant case."
46. The Agreement on Bilateral Relations between India and Pakistan, 1972 provides in
Article 1 thereof as follows:
"1. The Government of Pakistan and the Government of India are resolved that the two
countries put an end to the conflict and confrontation that have hitherto marred their relations
and work for the promotion of a friendly and harmonious relationship and the establishment
of durable peace in the sub-continent, so that both countries may henceforth devote their
resources and energies to the pressing task of advancing the welfare of their peoples."
In order to achieve this objective, the Governments of Pakistan and the Government of India
have agreed as follows:
i) That the principles and purposes of the Charter of the United Nations shall govern the
relations between the two countries: (emphasis added).
ii) That the two countries are resolved to settle their differences by peaceful means through
bilateral negotiations or by any other peaceful means mutually agreed upon between them.
Pending the final settlement of any of the problems between the two countries, neither side
shall unilaterally alter the situation and both shall prevent the organisation, assistance or
encouragement of any acts detrimental to the maintenance of peaceful and harmonious
relations." (emphasis added).47. The fact is that the Agreement on Bilateral Relations does not contain a compromissory
clause and is not concerned with the judicial settlement of disputes. This is clear on the face
of the instrument. Moreover, the Agreement does not appear in the chronological list of
instruments notified to the Registry which is published in the Yearbook of the Court.
(Yearbook 1996-199 7, p. 126 at p. 140).
48. The argument also involves the claim that various Articles of the Charter, including
Articles 92 and 93, have the effect of creating an obligation to accept the jurisdiction of the
Court. No authority is offered in support of this bald suggestion. Moreover, if Pakistan were
correct in its supposition, the system of compulsory jurisdiction would be otiose [See also
B. Simma (ed.), The Charter of the United Nations: A Commentary (1995), p. 544 or
S. Rosenne, op. cit., pp. 692-695].
49.The true intent and effect of Article 92 is well explained by Goodrich, Hambro and
Simons: "the Statute enjoys the same primacy over other international agreements accorded to
the Charter itself in Article 103". It was also noted that because of Article 92, "the entire text
of the Statute is treated as being equal in status to the provisions of the Charter" (p. 552).
50. In view of the above, Pakistan’s contention that there is "an implied" obligation to submit
legal disputes as a general rule to the International Court of Justice, is firmly denied (see p. 10
of Pakistan’s Memorial). For the same reasons, the Government of India also rejects the
contention of Pakistan that "the spirit and underlying obligations of the UN Charter, in any
case, raise the presumption of a residual jurisdiction of the International Court of Justice in
the case of legal disputes, in circumstances when one party has refused to resort to any of the
other peaceful means of settlement enumerated in Article 33 of the Charter." (Memorial,
p. 11).
H. The Validity of the Reservation of India concerning Commonwealth Members
51. In a series of palpably weak arguments the Government of Pakistan seeks to question the
validity of the Indian reservation contained in the Declaration made in accordance with
Article 36(2) of the Statute (Annex-F). The reservation relates to ‘disputes with the
government of any State which is or has been a Member of the Commonwealth of Nations.’
52. The Commonwealth reservation has appeared in successive Indian Declarations of 1940,
1956, 1959, and 1974. The reservation was not challenged by Pakistan during the proceedings
relating to Pakistan Prisoners of War in 1973. There is no basis whatsoever for impugning the
validity of such a reservation. Indeed, the travaux preparatoires of the Statute provide an
unequivocal indication that the acceptance of compulsory jurisdiction could be upon
conditions and, further, that the conditions could involve the selection of States in relation to
which jurisdiction was accepted: (see Thirlway, Netherlands Yearbook of International Law,
vol. XV (1984), p. 97 at pp. 103-4). Thus, in the Report of the Third Committee to the League
Assembly in 1920, the effect of Article 36 as finally adopted was as follows:
It gives power to choose compulsory jurisdiction either in all the questions enumerated in the
Article or only in certain of these questions. Further, it makes it possible to specify the States
(or members of the League of Nations) in relation to which each Government is willing to
agree to a more extended jurisdiction. (footnote omitted).53. Thus it comes as no surprise that the literature does not raise the issue of the validity of
the Commonwealth reservation. The following sources examine the reservation but do not
make the slightest suggestion that it is of questionable validity:
Sir Hersch Lauterpacht, (ed.) of Oppenheim ‘s International Law, vol. 11, (London, 7th ed.,
1948), p. 60.
Professor R.P. Anand, Studies in International Adjudication (Delhi, 1969), pp. 43-5.
Professor J.G. Merrills, British Year Book of International Law, vol. 50 (1979), pp. 103-4, at
p. 37.
Professor Renata Szafarz, The Compulsory Jurisdiction of the International Court of Justice
(Dordrecht, 1993), pp. 45, 50, 56-7.
Professor J.G. Merrills, British Year Book of International Laws vol. 64 (1993) p. 197 at
pp. 221-2.
Dr. Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, vol. 11:
Jurisdiction, The Hague, 1997, p. 802.
Professor Charles Rousseau, Droit International Public, Vol. V, Paris, 1983, pp. 455-456.
Judge Settle Camera, in Bedjaoui (ed.) International Law: Achievements and Prospects,
Dordrecht, 1991, p. 536.
Professor L.A. Shearer, Starke ‘s International Law, 11th ed., London, 1994, p. 454.
Professor Malcolm N. Shaw, International Law, 4th ed., Cambridge, 1997, p. 762.
54. There is no sound principle of legal policy which could be invoked to call in question the
validity of the Commonwealth reservation. There are currently eight declarations in the
Optional Clause, which include the Commonwealth reservation. The States concerned are:
Barbados, Canada, Gambia, India, Kenya, Malta, Mauritius, and the United Kingdom.
55. The Government of Pakistan seeks to impugn the validity of the reservation on five
distinct grounds.
First Argument: The reservation would be contrary to the Provisions of the Charter
56. The Memorial (pages 13 and 18) contends that the reservation is contrary to various
provisions of the Charter. The argument runs as follows:
"C(1) India and Pakistan, as members of the United Nations, are bound by Articles 92 and 93
of the UN Charter. Article 92 provides that, "the International Court of Justice shall be the
principal judicial organ of the United Nations" and hence necessarily open to all its members,
on the basis of the principle of sovereign equality and on an equal footing. Article 93 of the
UN Charter provides that "All members of the United Nations are ipso facto parties to the
Statute of the International Court of Justice". This implies that all members are entitled to rely
on the provisions for Jurisdiction and other matters set out in the Statute on anondiscriminatory and equal basis. This concept is further reinforced by Article 35
paragraph 1 of the Statute of the Court which provides "The Court shall be open to the States
parties to the present Statute". A unilateral reservation of the nature of the Indian
‘Commonwealth reservation’ which is specifically designed to exclude one or more parties
from the operation of the compulsory procedure for settlement is contrary to the above
provisions and the basic norms of the United Nations System. By virtue of Article 103 of the
Charter the grundnorms (sic) underlying the Charter system must prevail. The reservation
being in conflict with the principle of sovereignty equality and the express provisions referred
to above has no legal effect."
57. It would take too much time to catalogue all the legal solecisms contained in this one
passage. The principal flaws in the argument are as follows:
58. First, the Statute of the Court forms ‘an integral part of the Charter’. It must follow that a
reservation which is accepted as valid for the purposes of the Statute is compatible with the
provisions of the Charter.
59. Secondly, the fact that a State is a party to the Statute of the Court does not create a basis
of jurisdiction: if that were so, then the Optional Clause system would not be necessary.
60. Thirdly, Article 103 of the Charter refers to the relationship between the Charter and other
international agreements. It is inapplicable to the issue at hand. The only standard of legality
available is the Statute of the Court, which forms ‘an integral part of the Charter’.
Second Argument: The reservation would be contrary to Articles 36, 37 and 38 of the
Statute of the Court
61. The second argument in the Memorial (at page 14) is formulated as follows:
"C(3) By virtue of their membership of the United Nations and being parties to the Statute,
the contents of Articles 36, 37, and 38 of the Statute are binding legal obligations on both
parties, as also other relevant Articles of the Court’s Statute. The implication of this is that no
unilateral act, such as the ‘Commonwealth Members’ reservation can violate the obligations
set out in these Articles or reserve to the party making it the liberty (sic) to cross the limits set
in the said Articles since they are provisions of a multilateral convention equally binding on
all parties to that convention. Thus India cannot by its unilateral reservation in its declaration
under Article 3 6(2), render the Statute inapplicable to Pakistan in so far as the compulsory
jurisdiction arrangements are concerned. As a party to the Statute, Pakistan is entitled to the
compulsory jurisdiction arrangements against any other state that has made a Declaration
under Article 36(2) (including India) whether or not Pakistan is or has been a member of the
Commonwealth. Article 36(2) of the Statute relates to all parties to the Statute and hence
cannot be wholly excluded a priori in relation to particular parties by unilateral reservations
appended to declarations under Article 36(2). It can only be made on condition of reciprocity
on their part".
62. The practice of reservations has long been accepted by the Court and its predecessor, and
the logic of the argument, such as it is, would apply to all reservations. The argument simply
ignores the fundamental principle that jurisdiction is based on the consent of States.
Third Argument: The reservation would be contrary to Article 36(3) of the Statute63. The third argument in the Memorial (at page 16) is (in material part) as follows:
"D(1) Declarations under Article 36(2) of the Statute can be made unconditionally or under
specified conditions. The permissible conditions have exhaustively been set out in
Article 36(3) as (I) On condition of reciprocity on the part of several or certain states or (ii)
for a certain time. The reservation of the Government of India excluding all disputes with
"Any State which is or has been a member of the Commonwealth of Nations" is in excess of
the conditions permitted under Article 36(3) of the Statute which is a binding obligation
between India and Pakistan and indeed between all Commonwealth members. This condition,
being ultra vires of Article 36(3), has no legal effect. However, to the extent that the
Declaration of the Government of India is in accordance with Article 36(3), it stands and
confers compulsory jurisdiction on the Court."
64. This contention is impressive only for its novelty. None of the commentators on the
jurisdiction of the Court, such as Rosenne, have suggested that the reservation is invalid on
this, or any other, ground. Article 36(3) was envisaged from the beginning as allowing a
choice of partners. The Government of Pakistan apparently fails to appreciate the
ramifications of the concept of reciprocity.
65. The Court explained in the Interhandel case (I.C.J. Reports 1959) the meaning of the
condition of reciprocity incorporated in Article 36(3) of the Statute thus:
"Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court
enables a Party to invoke a reservation to that acceptance which it has not expressed in its
own Declaration but which the other Party has expressed in its Declaration. . . Reciprocity
enables a state which has made a wider acceptance of the jurisdiction of the Court to rely
upon the reservations to the acceptance laid down by the other Party." (I.C.J. Reports 1959,
Judgment, p. 23; see also Case concerning the Land and Maritime Boundary between
Cameroon and Nigeria (Preliminary Objections), I.C.J Reports 1998, pp. 298-299).
66. Thus, the principle of reciprocity would allow Pakistan to invoke the reservation, if she
were a Respondent State faced by a State whose declaration included it.
67. Pakistan argued that the Court should ignore the ‘invalid’ reservation and still hold
jurisdiction on the basis of its Declaration under Article 36(2) of the Statute. However this
argument is unacceptable because a reservation made cannot be isolated from other
reservations as well as the Declaration itself. Together they constitute an integral whole
reflecting the intention of the Party within whose limits the jurisdiction of the Court is
accepted. As the Court said in the Fisheries Jurisdiction case (Spain v. Canada):
"All elements in a Declaration under Article 36, paragraph 2, of the Statute which, read
together, comprise the acceptance by the declarant State of the Court’s jurisdiction, are to be
interpreted as a unity..." (I.C.J. Reports 1998, Jurisdiction, para. 44).
68. In fact, this point was elaborated earlier by Judge Lauterpacht in the Norwegian Loans
case. While expressing the view that a certain reservation made by a Party was not valid, he
pointed out that such a reservation cannot be separated from the rest of the Declaration to
maintain the jurisdiction of the Court. He noted that the declarant State regarded the
impugned reservation as one of the crucial limitations - perhaps the crucial limitation - of the
obligations undertaken by the acceptance of the optional clause of Article 36 of the Statute.As such, he observed, "to ignore that clause and to maintain the binding force of the
declaration as a whole would be to ignore an essential and deliberate condition of the
acceptance as a whole". (Norwegian Loans case, I.C.J Reports 1957, pp. 57-58. He took a
similar view in the Interhandel case, I.C.J. Reports, 1957). Shabtai Rosenne also noted that:
"... if the transaction of making a declaration is taken as a whole, each declaration must stand
or fall as it is. To read a declaration as if incompatible reservation simply did not exist would
thwart the intention of the State making the declaration, acting unilaterally". (Shabtai
Rosenne, The Law and Practice of the International Court, 1920-1996, vol. 11, Jurisdiction,
1997, fn. 91, p. 77O). Pakistan cannot therefore selectively question one of India’s
reservations and still hold India to its Declaration for the purpose of establishing the
jurisdiction of the Court.
Fourth Argument: The Government of India would be Estopped from Invoking the
Reservation against Pakistan
69. The fourth argument advanced by Pakistan in this connection is that (Memorials p. 17):
"Assuming, but not conceding, that the exclusion of disputes with members of the
Commonwealth, in India’s declaration, can limit the operation of Article 36(2) and (3) of the
Statute, such effect cannot be held against Pakistan by virtue of the obligation undertaken by
the Government of India under Article 1 para (3) of the Agreement on bilateral relations of
2 July 1972 whereby the parties have agreed to settle their differences by negotiations or "by
any other peaceful means mutually agreed upon between them". As the compulsory procedure
for settlement under Article 36(2) constitutes a "peaceful means agreed upon between them",
a unilateral ‘reservation’ cannot be invoked by India to defeat this peaceful means of
settlement in the case of Pakistan, whatever may be its effect against other Commonwealth
members. Article 1 para (ii) of the Simla Accord creates an estoppel against the Government
of India from invoking this "reservation" against the Government of Pakistan."
70. This argument lacks substance. The principle of estoppel cannot be used to modify the
relationship between international agreements, when the nature of that relationship is clear.
As explained above, the Agreement on Bilateral Relations does not contain a compromissory
clause. Pakistan does not invoke any conduct on the part of India which adopts the contrary
view. There is thus no basis for invoking estoppel in any event. [For the essential elements of
estoppel, see D.W. Bowett, "Estoppel before International Tribunals and its Relation to
Acquiescence", British Year Book of International Law, vol. 33 (1957), pp. l76-2O2, at
p. 202; For application of the principle estoppel by the Court, see Land and Maritime
Boundary between Cameroon and Nigeria (I.C.J. Reports 1998), p. 303]:
71. The principle of estoppel, preclusion and acquiescence invoked by Pakistan (Memorial,
p. 1 8) are completely irrelevant to the questions at issue.
Fifth Argument: Applicability of the Vienna Convention on the Law of Treaties, 1969
72. Pakistan also questioned the Commonwealth Reservation as violative of Article 19(b) of
the Vienna Convention on the Law of Treaties, 1969.
73. This contention of Pakistan is erroneous and must be rejected. The Court on several
occasions made it clear that reservations made under Article 36(2) cannot be treated as treaty
obligations. The reservations are sui generis by their very nature and in interpreting andexamining their validity, principles of the Vienna Convention on the Law of Treaties are not
applicable. The Court has stated this emphatically in the following manner in the Fisheries
Jurisdiction case (Spain v. Canada,):
"46... The regime relating to the interpretation of declarations made under Article 36 of the
Statute is not identical with that established for the interpretation of treaties by the Vienna
Convention on the Law of Treaties (ibid.)., [Land and Maritime Boundary between Cameroon
and Nigeria, I.C.J Reports 1998, p. 293, para. 30] The Court observes that the provisions of
that Convention may only apply analogously to the extent compatible with the sui generis
character of the unilateral acceptance of the Court’s jurisdiction."
47. In the event the Court has in earlier cases elaborated the appropriate rules for the
interpretation of declarations and reservations. Every declaration "must be interpreted as it
stands, having regard to the words actually used". (Anglo-Iranian Oil Co., Preliminary
Objection, Judgment, I.C.J Reports 1952, p. 105). Every reservation must be given effect "as
it stands" (Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 27). Therefore,
declarations and reservations are to be read as a whole. Moreover, "the Court cannot base
itself on a purely grammatical interpretation of the text. It must seek the interpretation which
is in harmony with a natural and reasonable way of reading the text". (Anglo-Iranian Oil Co.,
Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 104;) (Fisheries Jurisdiction case
(Spain v Canada), Judgment, 4 December 1998, p. 22).
74. Further, the Court was also unwilling in the Anglo-Iranian Oil Company case to
countenance an interpretation that would have created a basic inconsistency between the
effect of the declaration and the underlying intention of the declaring state at the relevant
time. The judgment in that case noted that the "Declaration is not a treaty text resulting from
negotiations" but rather "the result of unilateral drafting". (Judgment, I.C.J. Reports, 1952,
p. 105).
75. The approach of the Court in this regard was analyzed by Fitzmaurice when he wrote that:
"[The] Court, while in general applying ordinary principles of treaty interpretation, seems to
have felt that the voluntary and unilateral character of these declarations put them in a special
position, in which it was necessary to have particular regard to the known, apparent or
probable intentions of the State making the declaration, particularly with reference to any
conditions or limitations which that State had placed on the extent of the obligation it was
assuming..." (Gerald Fitzmaurice, The Law and Procedure of the International Court of
Justice, vol. 11 (Cambridge, Grotius Publications Ltd., 1986), p. 503).
76. Similarly, Rosenne writes that, because a declaration is "the expression of a unilateral act
of policy" and is "stamped by the particular quality of the declaration as a unilateral act, the
product of unilateral drafting", "the Court will seek out the underlying intention of the State
making the declaration". (Shabtai Rosenne, The Law and Practice of the International Court
(Dordrecht, Martinus Nijhoff Publishers, second edition., 1985), p. 406; see also James
Crawford, "The Legal Effect of Automatic Reservations to the Jurisdiction of the
International Court", British Year Book of International Law, vol. 50 (1979), p. 77; Jimenez
De Arechaga, "International Law in the Past Third of a Century" in Académie de Droit
International, Recueil des Cours, vol. 159 (1978), p. 154).77. In view of the above, it is quite clear that the argument advanced by Pakistan that the
Commonwealth reservation of India is a treaty obligation and that it is violative of Article 19
of the Vienna Convention on the Law of Treaties has no legal basis. It is a reservation made
out of the free will of India and hence constitutes a fundamental basis for interpreting the
intention of India as a declarant state within the meaning of Article 36(2) of the Statute. The
Government of India reaffirms that the Commonwealth reservation is a crucial and
inseparable element of its Declaration accepting the jurisdiction of the Court under
Article 36(2).
78. . In sum, India, once again, submits that Pakistan is not entitled to invoke the jurisdiction
of this Court in the present case without a special and express consent from India in view of
the fact that Pakistan is and has been a Commonwealth country.
I. The "Multilateral Convention Reservation" of India
79. Pakistan argues (at pages 19-21 of the Memorial) that the multilateral reservation invoked
by India does not oust the compulsory jurisdiction of the Court.
80. It may be recalled that this is a reservation which both India and Pakistan made in their
Declarations. Four other states also maintain a similar reservation in their Declaration:
El Salvador, Malta, Philippines and the United States. As both India and Pakistan maintain
this reservation, Pakistan cannot suggest to the Court to assume jurisdiction ignoring that
reservation. Comments made on the intersecting roles of treaty and customary international
law obligations, as well as references made to Articles 40, 59, 62 and 63 of the Statute are
outside the main point at issue in terms of this reservation. The Government of India submits
that because of this reservation, it is entitled to request the Court to not to exercise jurisdiction
to settle any question involving the interpretation of Article 2(4) of the Charter as Pakistan did
not join all the parties to the UN Charter to the present case.
81. Several authorities who refer to this reservation made no reference to any question of
invalidity. (See Oppenheim, International Law 3 vol. 11 (London, 7th ed., 1948), p. 63;
B.S. Murty, in Sorensen (ed.), Manual of Public International Law (London, 1968), p. 709;
O’Connell, International Law, vol. 11 (London, 1970), p. 1085; J.G. Merrills, British
Yearbook of International Law 3 vol. LXV, (1979), p. 107; J.G. Merrills, British Yearbook of
International Law, vol. LXIV, (1993), p. 23O-2; Bengt Broms, The United Nations (Helsinki,
1990), p. 780, f.n. 14; Shabtai Rosenne, The Law and Practice of the International Court,
1920-1996, vol. 11, (The Hague, 1997), pp. 803-4).
82. The version of the reservation filed by United States along with its Declaration was
interpreted and applied by the Court in the Nicaragua case (Merits), (IC.J. Reports, 1986,
pp. 29-38): The Court did not seek to question the validity of the reservation. However, there
is a serious difference between the then U.S. reservation and the present Indian reservation.
While the reservation made by the United States excluded from its acceptance of jurisdiction
"disputes arising under a multilateral treaty unless (1) all parties to the treaty affected by the
decision are also parties to the case before the Court" (emphasis added), Paragraph 7 of the
Indian optional Declaration is more general and excludes from the Court’s jurisdiction "any
dispute arising from the interpretation or the application of a multilateral treaty, unless at the
same time all the parties to the treaties are also joined to the case before the Court" (emphasis
added). This difference in the drafting of both Declarations has no bearing on their respectivevalidity, but it makes a major difference as to the stage of the proceedings when the Court
must take it into consideration: in the Nicaragua case, the Court, without questioning its
validity, declared "that the objection based on the multilateral treaty reservation of the United
States Declaration of Acceptance [did] not possess, in the circumstances of the case, an
exclusively preliminary character" (I.C.J Reports 1984, p. 425). But it did so solely because
of the "ambiguities" of the phrase "all parties to the treaty affected by the decision" which was
"at the center of the present doubts", while it expressly noted that "certain other declarations
of acceptance, such as those of India, El Salvador and the Philippines, refer clearly to "all
parties" to the treaties" (id, p. 424) and, therefore, did not raise the same doubts as to their
scope. In contrast to the United States reservation, the reservation of India refers to an
objective condition that requires to be fulfilled and has nothing to do with arguments on
merits, as Pakistan has attempted to allege.
83. Further, reference made to the Agreement between India and Pakistan on Prevention of
Air space Violations of 6 April 1991 (Annex-G) has no effect on the right of India to invoke
multilateral treaty reservation as the issue raised for this purpose is one of violation of
Article 2(4) of the UN Charter. Besides, that agreement does not have any compromissory
clause to obligate India to submit the case to the jurisdiction of the Court.
CONCLUDING SUBMISSIONS
For the reasons advanced in this Counter-Memorial, India requests the Court
- to adjudge and declare that it lacks jurisdiction over the claims brought against India
by the Islamic Republic of Pakistan.
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List of Annexures
Annexure ‘A’ - The General Act for the Pacific Settlement of International Disputes: Geneva,
26 September 1928
Annexure ‘B’ - Communication from the Government of India to the UN Secretary General
(18 September 1974) with reference to the General Act for the Pacific Settlement of
International Disputes, 1928
Annexure ‘C’ - The Indian Independence (International Arrangements) Order, 1947
Annexure ‘D’ - Communication from the Government of India to the Registrar of the
International Court of Justice on the Pakistani Prisoners of War Case, 4 June 1973
Annexure ‘E’ - Agreement Between the Government of India and the Government of the
Islamic Republic of Pakistan on Bilateral Relations (Simla Agreement): Simla, 2 July 1972
Annexure ‘F’ - Indian Declaration made under Article 36 (2) of the Statute of the
International Court of Justice, 15 September 1974Annexure ‘G’ - Agreement between India and Pakistan on Prevention of Air Space Violations
and for Permitting Over Flight and Landings by Military Aircraft, 6 April 1991
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Counter-Memorial of the Government of India - Preliminary Objections to the Jurisdiction of the Court