Counter-Memorial submitted by the Government of Pakistan

COUNTER-MEMORIAL SUBMITTEDBY

THE GOVERNMENTOFPAKISTAN

INTRODUCTION

1. The Counter-Mernorial is submitted to the InternationaCourt of
Justice by the Government of Pakistan in pursuance of theder made on
19January 1972by the Vice-President,ischarging the duties of the President
under Article 13 of the Rules of Court.
2. The dispute has arisen because the Government of lndia has thought fit
tochallenee the iurisdiction of the Council of the InterCivil Aviation
~r~anizacon tlconsider the "Application"and the "Complaint" presented
by the Government of Pakistan. wherein Pakistan challenged the decision of
the Government of lndia to susoend overfliahts of al1~akistan airnaft over
the territory of India as fro4 ~ebruary-1971. The said decision of the
Government of India was in breach of its obligations under the Convention
on International Civil Aviation19441and the International Air Services
Transit Agreement (1944).
3. The Counter-Memorial has been divided into various parts and largely
follows the scheme of the Memorial submitted on 22 December 1971 bv the
Agent for the Government ofIndia.
4. Consequently, the Counter-Memnrial is divided into the following Parts:

Part 1. Statement of the case.
Part 11. Exposition of relevant facls and the hisiory of the dispute, supple-
menting 2nd correcting the e.xposition gjven in the Memorial of the Govern-
ment of India.
Part III. Jurisdiction of the Court.
Part IV. The submissions to the Court regarding the principles and rules of
law applicable to the issues inAppeal.
Part V. Submissions. ICA0 COUNCIL

PART 1

STATEMENT OF THE CASE

A. Uniloreru1 Ssspetrsio~rof Overflighrs by
India in Breach of 11sObligations

5. Pakistan and lndia are bath Parties ta the Convention on International

Civil Aviation (hereinafter referred to as the Convention) and the Inter-
national Air ~èrvices Transit Agreement (hereinÿtter referred to as the
Transit Agreement). Under Article 1 of the Transit Agreement, lndia has
granted ta Pakistan the following freedoms of the air in respect ofscheduled
international air services:

(0) the privilege to Ry across its territory without landing;

(b) the privilege to laiid for non-trafic purposes.
By virtue of Article 5 of the Convention, Pakistan and lndia have agreed

that aircraft ofeither Party not engagedin scheduled international air services,
shall have the right to overfiy the territory of the other Party or make tech-
nical landings therein without the necessity of obtaining prior permission.
Both Pakistan and lndia had beenenjoying the privileges and rights under the
Transit Agreement and the Convention till 3 February 1971 when India. by a

Note dated 4 February 1971, informed Pakistan of its unilateral decision to
suspend with immediate eiiect. al1 Pakistani Rights over ifs territory. In doing
so lndia acted unilaterally and arbitrarily; violated the provisions of the
Convention and the Transit Agreement and committed a breach of its obli-

gations thereunder. The decision of the Government of lndia is also per se
discriminatory in that aircraft of other States continue to make Rights over
lndian rerritory and is contrary ta the principle of pacro sunt servanda in
resoect of the treatv oblirations. The decision of the Government of India
ha; resulted in a considerable increase in the cost of operations of Pakistan

International Airlines, inconvenience ta passengers,immense loss and injury
to Pakistan

B. Pohisian Approuchr<lthe ICA0 Coroicil Axrrinst rhe Decisiu!~u/'In<lia

6. Pakistan made repeated efforts to settle the dispute with Lndia by
peaceful negotiations as is evident from the diplomütic correspondence that
wds exchanged between the two countries but unfortunately these efforts
proved fruitles1. In the circumstances, Pakistan had no other alternative but

to file the Application and the Complaint witli the Council in March 1971 2.
The Council. u,hile considerine t-e said A~olication and Comolaint at ils
incetin<: held un 8 ,\pril1971,dccided Io .n\ite Indid 1s prcscnt iii coi~nter-
meniorla1 ;snd alio iiiviicJ ille PJriies in iiegotiiite Jircfor ihc purpose of

,ettling the <I.s~iiic or n3rr<iirin): the ~ssu3.India. inste;id of ciibmittingil<

1Annexesto the Meiiiorial of IliGovernnient of India (hereinafterrefcrredto as

I.M.), pp.77-79,supra.
2 LM., AMex A a1p. 63 and Annex B a1p. 92,supro.
3 Annex 1. inh. COUNTER-MEMORIAL OF PAKISTAN 371

counter-memorial; filed Preliminary Objections challenging the jurisdiction of
the Council to handle the matters oresented in Pakistan's Aoplication and
Coniplaint In the Preliminar) Objection\. India Jedit uith the merit\ of the
dispute ~nd refcrrcd to ihc eicnts and circumstdnccc uhich are cxtrmeous 10
ihc oreseni disoute 1.Pdki<i.tn in its uriitcn rcoly. refutcd a11the contentions
whiih India had sought to raise in the Prelimkary Objections. The Council

after hearing hoth Pakistan and lndia on 27-28 July 1971 decided not to
acceot the Preliminarv Obiections filed by India and called uoon India to
suhmit her counter-mwnohai by 8 ~u~uit 1971 2. Thereafter on 30 August
1971 the Government of lndia suhmitted an Application to the International
Court of Justice appealing against the aforesaid decisions of the Council.

1 I.M.,Annex C. pp. 98-121,supra.
2 Annex II, infra. PART II

EXPOSITION OF RELEVANT FACTS
AND HISTORY OF THE DISPUTE

A. PokistonAircroff Hove the Righrro Overfly
AcrossIndio Under the Convention andthe
Transir Agreement

7. Pakistan and India are Parties to the Convention and the Transit
Agreement andthe Bilateral Air Services Agreement of 1948. Under Article 1
of the Transit Agreement, Pakistan has the followiiig freedoms of the air in
respect of scheduled international air services:
(a) the privilege to fly across lndian territory without landing:

(b) the privilege to land in Indian territory for non-traffic purposes
By virtue of Article 5 of the Convention, Pakistan aircraft no1 engaged in
scheduled international air services have the right to make flights in10 or in
transit non-stop across Indian territory and to make stops for non-traffic

DurDosesin that territorv without the necessitv of obtaininp. vrior vermission
ind'subject IO the righ; of India Io require ianding ~akiian had been en-
joyingthe aforcsatd freednms and rights 1113 Fcbruary 1971, when lndia, by
a Note dated 4 Februarv 1971 1.informcd Pakistan of ils unilateral decision Io
suspend. with immediaie efTect,the overflighls of al1 Pakistan aircraft over
its territory. lndia thus violated the provisions of the Convention and the
Transit Agreement and cornmitted a breach of its obligations thereunder.

B. The Bilateral Air Services Agreement of 1948

8. Pakistan and India entered into a Bilateral Air Services Agreement on
23 June 19482. The purpose of this Bilateral Agreement, like al1similar Bila-
teral Air Services hreements. is to establish and reaulate commercial air
-
services between theÏwo couniries.
It is submitted that even after the conclusion ofthe Bilateral Agreement,
the Convention and the Transit Agreement continue to govern the rights of
the Parties in respect of non-scheduled air services and the first two freedoms
in respect of scheduled air services. The said Bilateral Agreement issupple-
mentary to and not incompatible with the Convention and the Transit
Agreement. This is clear from the preamble thereof, which reads as follows:

"The Government of Pakistan and the Government of India. herein-
after described as the Contracting Parties, being Parties to the Conven-
tion on International Civil Aviation and the International Air Services
Transit Ameement. both omned for signature at Chicago on the 7th day
of ~ecemker, 194'. and desiring to coiclude an ~~reement for the pur-
pose of establishing and operating air services between and beyond the
territories of Pakistan and India."

Annex IV, infra.
2I.M. p.110,supra. COUNTER-MEMORIAL OF PAKISTAN 373

Secondly, in addition to re-affirming, as a right, the privileges to overfly

and to land for non-traffic purposes set out in the Transit Agreement, the
Bilateral Agreement also provides for commercial air traffic between and
beyond the two countries.
9. In any event, lndia is estopped by its conduct from asserting that the

Bilateral Agreement of 1948 supersedes its obligations under the Convention
and the Transit Agreement in as much as lndia continued ta act vis-à-vis
I'akistan on the basis of the Convention and the Transit Agreement.
10. In 1952, India herself accepted the jurisdiction of the Council and
lodged a complaint with that body charging Pakistan with acts violating

Articles 5, 6 and 9 of the Convention and with violations of the Transit
Agreement 1.In its complaint. India submitted the following:

"A disagreement has arisen between the Government of India and the
~overnm~nt of Pakistan relating ta the interpretation and application of
the provisions of the Convention on lnternational Civil Aviation signed
at Chicago on December 7, 1944, particularly Articles 5, 6 and 9 thereof
and as to the interpretation and application of the International Air

Services Transit Agreement. The Government of lndia consider that the
action of the Government of Pakistan ~urportinp. ta be under that Con-
vention~ ~~ ~~~~r ~ ~t Aereement in i~e-manner hereinafter stated. is . ~-
causing hardship and injustice to the Government of India. It ha~,

unfortunately. not been possible to settle such disagreement bynegotiation
between the two Govemments."

In that case Pakistan adopted a constructive and co-operative approach
and in pursuance of the Council's recommendation, an amicable settlement
was reached 2

C. The Convention and theTransit Agreement Were
in Operation BetweenPakistan and Itidia ot the Timr

of Arbirrory Siispensionof Overflightsby India

II. In 1948, pursuant to the resolution of the United Nations Security
Council. Pak~~ ~ ~ ~ ~ ~dia. thr,ueh~ ~ ~xchanee~o~ Notes entered into a
Bilateral Agreement under which biÏh the partie; accepted the obligation of
determining the future of the State of Jammu and Kashmir in accordance
with the wiihes of the people of the State td be ascertained through a fair and

impartial plebiscite. However, since the signing of this Agreement, lndia has
persistently refused to carry out her international obligations under this
treatv and has induleed in a oolicv of reoression aaainst the oeoule of Jammu
2nd ~ashmir. nho h;vc \icid~~,ii, rioh f,>ra pihi\cits 1; d;tcrminc thcir
future. In Augii\t 1965 reprcssivc mc:i>urcsh) India lcd 10 an upri5ing in the

disputed tat t eesulting in tension across the ceasefire line in Cashmir. On
6 September 1965 India resorted to an unprovoked attack across the Inter-
national frontier of Pakistan. The armed conllict lasted for 17 days, after
which the parties agreed ta a ceasefire in accordance with the Security Coun-

cil resolution of 20 September 1965 (S/Res/ZI 1 (1965)).
12. On 10January 1966the then Prime Minister of India and the President
of Pakistan signed the Tashkent Declaration 3.BYArticle 6 thereof the Prime

1Annex III,infra Sec alro ICAV I>iu C-U'PIl69 1IcJJ21.
Reportof the IC.40 Council. 1952: I('A0 L>oc7367 (A 7-p II.PP. 74.76. ICA0

<'oun;il Dw (18ihSr.,~ion)7!61(C 858). pp. 15-26i195i);IM U.VTS.3l1953J.
3 LM, p.352, supra,Minister of lndia and the President of Pakistan agreed "to take measures to

implement the existing agreements between India and Pakistan".
13. On 3 February 1966the Prime Minister of lndia wrote to the President
of Pakistan as follows:

"Our Foreign Minister and Defence Minister, on their return from
Tashkent, informed 11sof your desire for the early resumption of over-
Rights of Pakistani and lndian aircrdft across each other's territory. We

hadthought that this matter would be settled at a meeting between the
Ministers of both coiintries within a few days along with other problems
connected with the restoration of communications. As it appears that
such a meeting mieht take some lime. we woiild be aereeable Io an imme-
diate resumpzoonof over-flights across each other's Grritory on the same

basis as that prior to 1st August 1965. Instructions are being issued Io
Our civil and military authorities accordingly.
1 very much hope that in both Our countries emphasis will be placed
on the positive aspects of the Tashkent Declaration, such as early nor-

malisation of relations and the initiation of various processes of co-
operation between our two countries in mutually beneficial fields l."

In reply, the President of Pakistan,inter alia,stated. "1 am glad tu learn of
your constructive decision in a matter which is of high benefit to lndia and
Pakistan. I am also issuing immediate instructions to Our Civil and Military

authorities Io permit the resumption of air Rights of lndian and Pakistani
planes across each other's territories on the same basis at that prior tu the
First of August 1965 1."
It is thus clear that in view of the decision at the highest level, overflights
across each other's territory were resumed on the basis of the Convention

and the Transit Agreement which even by India's own admission were in
operation between the Parties prior to I August 1965.
14. Moreover the conduct of India, subsequent to the armed conflict of
1965, shows that the Convention and the Transit Agreement continued to be
in operation between the two countries. Two events may be particularly

mentioned.

(al In 1969. an lndian aircraft met wirh an acci~~-t i~ East Pakistan. In
accordance with the provisions of the Convention. ~akistan investigated
the accident. lnvoking Annex 13to the Convention. lndia nominated its
reoresentative on the enauirv and reauested Pakistan Io erant the
nkessary facilities Io the 1nd;an represéntative andadvisers.-~akistan

afîorded full facilities to Tndia in accordance with the Convention and
Annex 13. During the course of the investigation, the Pakistan lnspector
examined the Duty Air Trafic Controller of Calcutta Airport in order to
ascertain whether the provisions of lCAO Document 4444 had been
comnlied with bv them.

(b) ~uring the Middle East/South East Asia Kegional Air Navigation
Meeting held in Manila inNovember-December 1968.an informalmeet-
ing took place between the representatives of Pakistan and lndia on 21
November 1968 under the Chairmanship of the President of the ICA0

Council to resolve the matter concerning the boundary between Lahore
and Delhi Flight Information Regions. It wds agreed that the Civil

1 I.M., p. 354,supra. COUNTER-MEMORIA OLF PAKISTAN 375

Aviation Administrations of the Iwo countries should meet under the
auspices of ICA0 to resolve the matter. The matter involved was the
implementation of recommendations of the Limited Regional Air Navi-

gation Meeting held in Geneva in 1965. A meeting was accordingly held
in Bangkok in 1970.

D. Pakisran's Eforrs ru Improi%' Relarions
wirh India Failed

15. After the Tashkent Declaration attemots were made to normalize rela-
tions and towards that end telecommunications were revived. The Indus
Water Treaty of 1960 was implemented. The dispute over the Rann of Kutch
was referredto an International Arbitration Tribunal and was resolved. Over-
flights were resumed on the same basis as that prior to 1 August 1965. The

Government of India had agreed in February 1966 to forego their alleged
rieht to demand orior settlement of outstandine issues and consented 10
resume mutual ov~rflights. However, in spite ofall the possible efforts by
Pakistan, relations did not fully improve becauseof India's intransigenceand
ils refusal to resolvethe Kashmir dis~ufe which is the basic cause of tension

between the two countries. Pakistan'has always been ready and willing to
settle peacefully al1 disputes wifh lndia through the accepted international
. .rocedures of neeotiat~on. mediation and arbitraiion. Pakistan had also
pritposed the estalblijhmen~ <ifd self-c~eiuting niachiner) ior the rerolution
ofall ouist:ind~ng di,pute\ hut the Government of India reje~ted II.

E. Pakisran Had iro Connecrion wirh or Responsibiliry
for the Hijacking of rhe /,idion Aircraft

16. Pakistan categorically denies that it had any connection whatsoever
with the hiiackine of the lndian aircraft which was hiiacked when in the
airspace ofihe diGuted State of Jammu and Kashmir. ~he allegations of the

Government of lndia to implicate the Government of Pakistan therewith,
are baselessand unjustified.
As early as I September 1970 the Government of Pakistan reminded the
Government of India that when the Pakistan High Commissioner in lndia was
informed of the consoiracv of the hiiackine of an Indian plane, the High

Commissioner immediatel; asked thé lnd'in Government to indicate in
what manner Pakistan could help and requested details of the so-called
conspiracy to enable the Government of ~akistan to take the necessary
action. On the Government of India's refusal to disclose any details, the High
Commissioner advised the Government of India to bring the facts to the
notice of INTERPOL if itfelt any hesitation in taking the Government of

Pakistan into its confidence in this-inatter. It is, therefore. surprising that the
Government of India should hold Pakistan responsible for the hijacking
incident of January 1971'.
17. A Commission of Enquiry headed by a Senior Judge of the High Court
of Pakistan examined the two hijackers and other wiinesses and look into

consideration the statements made by Sheikh Abdullah and other Kashmiri
leaders and came to the conclusions, i~lrrralia:

"(b) (i) The persons directly responsible for the hijacking are:
Mohammad Hashim Qi~reshi, who is a known agent of the lndian

1 I.M., p. 86, para.6, supra. Intelligence Services. and who held the post of Sub-Inspecter in the
lndian Border Security Force and who visited Pakistan in 1969 as
suchan agent, and was again put across the Cease-Fire Linein April,

1970, by the Intelligence Services of India. apparently 10 play the
role of an agent provocateur, and his accomplice, Mohammad
Ashraf Qureshi.

iiiiThe lndian Intelliaence Services, the lndian Border Security
Force and othcr (ii>vrr~mciit.ilAuthorities in thç Indian-held ~ash-
mir u,thout uhose active c.omplicbty. encouragemeni and assislance
the vlan for hiiackina could no1 have been put into execution al all.
It i; probable-that ~ohammad Hashim ~ureshi was even trained

within lndiato hijack the aircraft, probably during his posting at the
Srinagar Airport.
Maqbool Butt and his NLF do not appear to have made any
significant or material contribution to hijacking except to fall in
with the suggestion made to this effect by Mohammad Hashim
Qureshi, and then when the hüacking occurred, to claim credit

therefor."
Pakistancannot therefore be fixed with any responsibility for the hijacking

incident.
18. The two hiiackers and their accomolices are beina tried hv a Swcial
Court headed bya Judge of the ~upreme'~our1 of ~akgtan.
19. As regards the hijacking incident the correct position is as follows:

(a) On 30 January 1971, at 12.35 hours, an lndian Aircraft F.27 (Reg.

VT-DMA). Service ICC-422-A, en route from Srinagar to Jammu, con-
tacted Lahore Air Traffic Control Radio Teleohone and informed that
the aircraft was king hijacked to Lahore and'would be landing within
10 minutes' time. lmmediately on receipt of this information, fire and
security services were alerted by the~irport Manager.
(b) The aircraft landed al Lahore airport al 12.45 hours local time. Il was

parked away from other aircraft with security and fire services standing
~.~
(c) Immediately on landing. the hijackers were requested 10 allow the pas-
sengers and the crew to disembark. This was not agreed to by the
hiiackers at first hut after a lot of oersuasion t.ev-aareed tolet thecrew
and the passengersout at 14.32hours local time.

(dl The passengers and the crew were immediately taken to the passenger
loune- and subse~~~ntlv ,~ansoor.ed to a hotel where arranneme-ts for
thcir accommodation. etc.. hîd heen made.
Ir, Thc Dircctor General. Civil Aviation of India. nas informed of the safe
landing of the aircraft.
If) The Captain of the Aircraft (Capt. G. H. ~beroi) wasgiven clearance in
writing by the Regional Controller of Civil Aviation, Lahore, that he

could take off at any lime he wished. The receipt of this communication
was acknowledged in writing by the Captain.
(g) The Director General of Civil Aviation, India, requested permission for
a relieffliaht to Lahore to transoort the crew and the passengersof the
hijacked aircraft back to India. ~he permission was immediateiy granted.
However, before the proposed aircraft could take off from Delhi, the

law and order situation had deteriorated due 10 a large nowd having
gathered al the Lahore Airport. The lndian Director General of Civil COUNTER-MEMORIA OLF PAKISTAN 377

Aviation was informed accordingly and advised that the relief flight
should not take off for Lahore until further advice.

(h) Throughout this period one or both the hijackers remained on board the
aircraft. Attempts by the Pakistan authorities to persuade them to
release the plane made no headway as they refused to negotiate directly
with the Government authorities. Consequently, the hijackers were
allowed 10contact some non-officiaisin the hope that they would per-
suadethe hijackers to agree to releasetheaircraft. At no time the hijackerc

came out of the plane at the samc time. One of them invariably remained
on board.
Any attempt to disarmor arrest one would havesurely hlown up the aircraft

as the two had threatened to do.
20. Pakistan is a signatory both to the Convention on Offences and
Certain Other Acts Coinmitted on Board Aircraft, Tokyo, 1963, and the
Convention on the Suppression of Unlawful Seizure of Aircraft, The Hague,
1970. Pakistan has always condemned hijackingand is a party to the resolu-

tions ado~ted hv the International Civil Aviation Oreanization. ~articularlv
thihe ad;prcd ;i the 17th (thirisrdin.ir)l Se\>:oii liel~ in hlciniredl iuni.
1970. P~kiiian h.is ~1.o ~hscrbed ti,311 ilie Uiriied N.iiions rer<il~ii~lns <in
acrial hiischine. In connc:iiori ,sith the hiia:kiirincident rn uircrtion. Pdki\-
tan took al1 possible measures in accoFdance-with international law and
practice.It arranged for the safe return of the passengers and crew of the

plane at the first available opportunity.
21. Pakistan has also adhered to and acted in accordance with the ohjec-
tive of the Convention and the Transit Agreement. It has taken and continues
to take al1 possible measures to ensure safety of flights in its airspace. This is
substantiated by the fdct that the air services of 23 international airlines and

other international non-scheduled air services operate io and across the ter-
ritorv of Pakistan with cornolete safetv of operation. The Indian aircraft
havéalso been overflying the'territory of ~akistan for the last 23 years until
4 February 1971, when India herself stopped overflights of heraircraft over
Pakistan territory, not for reasons of safety, as India has alleged, but as a

prelude to herarbitrary decision to ban the overflights of Pakistan aircraft.
Pakislan has not imposed any ban on lndian aircraft overflying Pakistan ter-
ritory or on making technical landings. If lndia did not wish to avail itselfof
the prii,ilegcs and Gghtj ithl> underÏhc Transit Agrrenicnt snd the (:onven-
lion, the privileges 2nd righrs do not becomc theorerical. I hercforr, India's
allecations lhdl I'ak~staii'j CL~JUCIhas militated ae~in4 the oh~çcti\es of rhe

convention, are unjustified and baseless.

P. There Has Beenno SpecialAgreement or Regimein
1966, BerweenPakistan andIndia as Alleged by India

21. Pakistan maintains that overflights across each other's territory were
restored and resumed on the same basis as that ~rior to IAuaust 1965. It is
denred ihdt the i~vcrflighir ucre resisred un s provisional bisis or on rhe

basts of rcciprocii) or uere ~uhjcci to jpeiidl permii\ion as xllcged by InJia.
Thc sisnalsrnchanncd bciwren rhe C'ibil,\viation duthoriiics of Pdkisisn and
India were merel; of administrative character for implementation of the
decision of the two Governments to resume overflights. By these signals
flight schedules in respect of overflights were filed with the Civil Aviation

authorities in accordance with the practice prevalent al1 over as was also
being done prior to 1 August 1965. The combined effect of Articles 82 and 83of the Convention is that there cannot be any special agreement or arrange-
ment regarding righfs and privileges of non-scheduled and scheduled flights
respectively which is inconsistent with the provisions of the Convention
and the Transit Agreement. PART III

JURlSDlCTlON OF THE INTERNATIONAL COURT OF JUSTICE

22. The Government of India has sought to found the jurisdiction of the
Court on Articles 36 and 37 of the Statute read with Article 84 of the Conven-

tion and Article II,Sections 1 and 2, of the Transit Agreement.
23. The Appeal of the Government of India against the decision of the
Council in respect of the Application of Pakistan could be founded, if at all,
on the following provisions:

(a) Article 37 of the Statute;
(bj Article 84 of the Convention; and
(cl Article II, Section 2, of the Transit Agreement.

24. The Respondent contends that the reference by the Government of
lndiato Article 36on page 28 of her Memorial, is irrelevant and misconceivcd.

The said Article does not apply to the Appeal of the Government of lndia on
the following, among other, grounds:

(A) Article 36 (1) relates to the original jurisdiction of the Court and
comprises "all caseswhich the parties refer to it". The Parties have not re-
ferred any case to the Court in its original jurisdiction under this provision.
(B) Although Pakistan has made a Declaration accepting as compulsory

the jurisdiction of the Court in disputes of a legal nature, she relies on the
reservation in the Declaration of the Government of India which excludes
the jurisdiction of the Court under Article 36, paragraph 2. in the following
disputes:

"Disputes with the Government of any State which, on the date of this
Declaration, is a member of the Commonwealth of Nations."

Though Pakistan has recently left the Commonwealth, on the date of
India's Declaration, i.e., 14 September 1959, shewas a member of the Com-

monwealth. In view of the above, Article 36 (2) of the Statute cannot be in-
voked. That the Respondent can rely on the reservation of the Applicant is
well established. In the case of Cerraitz Norwegian Loans (France v. Norway),
the International Court of Justice in itsjudgment of 6 July 1957 noted that
its jurisdiction depended upon the Declarations made by the parties on

conditions of reciprocity; and that since two unilateral Declarations were
involved, such jurisdiction was conferred upon the Court only to the extent
to which the Declarations coincided in conferring it. Consequently, the
common will of the oarties. which was the basis of the Court's iurisdiction.
c.iisied u,ithin the narrouer .linlic ind r:itrhl the French rescrvariun.

25. Il issuhmitied ihai the Appeïl uf the <;uverninçnt of India in rerpcct ol
the Jrsision uf the Council in Pskistiln's Cornplaint is incompctcni and nui
maintainable on the following grounds:

(A) Article II of the Transit Agreement has two Sections. Under Section 1,
a contracting State. in the circumstances mentioned therein, can request the
C-~ncil to ~-am~ne the situation. The Rules for the Settlement of DilTerences

approved by the Council provide for Ming of a Cornplaint in respect iherçof.
Under Section 2. in the eveni of disagreement betnccn tu,o suntracting Statesrelating to the"interpretati0n"or "application"of the Agreement, provisions
of Chapter XVlII of the Convention have been made applicable. It will be
noticed that Chaoter XVlll has no1 been made aoolicable to Comolaints
that are filed under Section 1.The reference to Chapier XVlllof the Conven-
lion in Section 2 and the omission of such reference in Section 1, is deliberate.
The manim exoressio uniiis est exclusiu alteri(exoress mention of one is
the exclusiono fnoiherj is cle,irl) attrilctcd.
(R) In dealing uiih Ciimpl<iinis. the ICA0 Council and 115Cummiiteej

act \erv much Iikc fact-lindinw and concili3iiobodics. In Idciiihilr dealinp
\rith ~"m~lainis, the counci~hss Iirnited pouers and can only hakeappropri-
aie findings and recommendations Io ihe conirïcting States concerncd. The
decisions of the Council in respect thereof, are not subject Io appeal COUNTER-MEMORIA OF PAKISTAN

PART IV

THE SUBMISSIONS TO THE COURT REGARDING THE

PRINCIPLES AND RULES OF LAW APPLICABLE TO
THE ISSUES IN THE APPEAL

A. There 1sa Legal Obligation ro Observe Trearies in Good Fairh

26. Article 26 of the Vienna Convention on the Law of Treaties 1969.
which reflects customary international law, provides that a State is bound IO
carry out in good faith its treaty obligations. This is a fundamental principle
of the law oftreaties 1.

The preamble Io the Charter of the United Nations afirms the determina-
lion of the peoples of the United Nations "Io establish conditions under which
justice and respect for the obligations arising from treaties.. . can be main-
iained". Paragraph 2 of Article 2 thereof expressly provides that Members

"shall fulfil in goodfaith the obligations assumed by them in accordance with
the Charter".
27. lnternational tribunals havealso affirmed the principle ofgood faiih in
the performance of treaty obligations. In the Norrh Arlanrir Coasr Fisheries

case, a tribunal of the Permanent Court of Arbitration declared: "Every
State has to execute the oblieations incurred b~,treat~,bo~ ~fide~-~ .y A
former judge and distinguished coimentaloron the Permanent Court ob-
served: "The assuin~tion runs throiighout itsjuris~rudence that States will in
. .
good faith observe-and carry out the obligations which they have under-
taken 3."
In the case of Certain Norwesiarr Lootu. Judge Lauterpacht stated:

"Unquestionably, the obligation to act in accordance with good faiih,

being a general principle of law, is also part of lnternational Larv 4."

Sir Gerald Fitzmaurice. commenting on this statement observed:

"Action in good faith is an lnternational Law obligation. . .and

accordingly action not in good faith mus1 be considered as a breach of
lnternational Law.. . 5"

28. II therefore follows that lndia has an obligation Io implement the Con-
vention and the Transit Agreement in good faith.

1 Reportsofthe International Law Commissionon ihesecondpart of ilseventeenth
sessionand on ils eighteenthsessionCA. OR. 2lsl Session.Supplement No. 9. p.42.

2 UN. Reporrsoflnleri~alionolArbirrulAw<ir~lVol. XI. p. 186.
.j M. O. Hudson. The PermoiicnrCosrr of It!rcrnarioizalJirsiir~ 1920-19(1943).
p. 636.
4 I.C.J. R~porfs1957,p. 53.
5 "Hersch Lauterpacht-The Scholar Judge: Book of
I!rter»otioi~l aw 9(1962). B. Tlic Co~rve~rrioa~ti~dthe Tratisit Agreement IVere 1101Siispetided
Dirring tlie Ar17iedCoiiJlictoj Srptember 1965 and CVerein Operation
Betwee,,the Pnrtics or the Time of Unilritrra1Saspensionof Flights

by lndia

29. Il is submitted that the Convention and the Transit Agreement do no1
provide for suspension even in the event of war or national emergency but
oiily give freedoiii of action to any contracting State in relation to its rights
as a belligerent or iieutral.

Article 89 reïds:
'.ln case of war, the provisions of this Convention shall not affect the
frecdom of action of any of the contracting States aiïected, whether as

belli-erents or as neuirals. The same orinciole shall aool.. . the case of
any contracting State wliich declares a state of national emergency and
notifies the fact to the Council."

This means ihat when a State ceases IO exercise its rights as a belligerent or
neutral or when itrevokes ils national emergency, ifs freedom of action no
longer exists and the Convention has to be fully implemented.
30. The Transit Aere-nient is also not susoended as a result of war or
naiiimdl cnicrgcrii). r\ri~~lc 1. Sc:iion2. of ilic l'rini.iAçrsemcnt pri,videi

tli~lthe c\cr.l>c 01 IIIC tao prl\iie€es i.\.Ihje;t Io the prti\.aionc ol ihc C'<in-
veni.c~n, <h.ch ~%o~.Iidnclt~cl: ,\rtl;Ist) ihercoj. I~~rihcr, Seii~un l of Art~clc
I of theT~ansit Agreement provides as under:

". . .In arsas of active hostilities or of military occupation and in lime
of war aloiig the supply routes leading to such areas, the exercise of such
privileges shall be subject 10 the approval of the competent military
authorities."

31. It is thereîore clcar that in spite of the armed conflict in September
1965,the Conueiition and the Transit Agreement were no1suspended. During
that period, ai the most. the parties were eniitled to freedoin of action to the
extent indicaied abovc.

32. On 10Janlrary 1966 the Prinie içfinister of lndia and the President of
Pakistan sirned the Tashkent Dcclaration and in Article VI thereof agreed

relating 10overllights, letters were exchanged between the Prime Minister of
India and the President of Pakistaii on 3 February 1966and 7 February 1966,
respectively. in which they decided to immediately resyme overflights across

each other's territory "on the same basis as that prior to the First of August
19652".The plain ineaning of the words "on the sanie basis as that prior 10
1st of August 1965" is that overflights were to be resumed on the basis of the
Convention and the Transit Agreement, which. by India's own admission,
were in operation between the Parties before the conflict of September 1965.
33. India by ils conduct subsequent to the armed conflict of September

1965, mentioned in parngraph 14 of Part II of the Counter-Memorial. acqui-
esced in the continuance of the Convention and the Transit Agreement. In
any event lndia is estopped from denying that the aforementioned treaties
were in operation.

1 I.M., p. 353,supra.
2 Ibid .,354,supra.the treaty; the issue musi be settled either by the consent of the parties or

must be resolved through third-party settlement. And fourthly, such a right
is subject to the doctrine of proportionate and101disproportionate reprisal.
39. Article 95 of the Convention, and Article III of the Transit Agree-
ment, expressly provide the procedure for denunciation and the method by
which a party may withdraw therefrom. lndia cannot thus unilaterally

denounce, terminate or suspend the Convention and the Transit Agreement
save in conformity with the provisions of the aforementioned agreements.
40. The Respondent contends that the allegations of the Government of
lndia in relation to the hijacking incident, quite apart from the fact that these
are false. do no~ ~ ~ate Io the breach of the Convention or the Transit Aeree-

ment, lei alone any "material breach" thereof. No question therefore sies
regarding the suspension of the Convention or Transit Agreement on the
grounds of "mate;ial breach". lt is not open to lndia to arbitrarily suspend
the operation of these agreements on the basis of a bare and unjustified
assertion which, in reality, has no bearing on the obligations under the Con-

ventionand the Transit Agreement. In the events that have happened it is
clear that India has no1 acted in good faith.
41. As submitted above, when one party claims suspension of the treaty on
the arounds of "material breach" and the other Dartv obi.cts .hereto. the
former i!obliged to settle the issue by consent of ihe parties or by resoit to

third-party settlement. In the instant case, lndia cannot act as a judge in its
own cause and arbitrarily suspend the agreements in question. The principle
nemojicdex NI re sttois a general principle of law recognized in the jurispru-
dence of the Court. Thus in the Advisory Opinion on the Inrerpretarion of the
Treaty of Lousanne the Permanent Court of International Justice found that.

notwithstanding the comprehensive language of the Covenant to thecontrary,
this principle applied generally 10the interpretation of the Covenant and that
in determinine unanimitv of members of the Council the votes of the oarties
IO the di\pute-~i~iulil ni~ibc counted '. II ~~iiiybe noted that the lniernàtioniil
Liiir Coiiiiiiissio~!II iiCi~mmcntary >taled 3s foIIu\<s:

"paragraph I provides that a 'material breach' of a bilateral treaty by
one party entitles the other to 'invoke' the breach as a ground for ter-
minating the treaty or siispending ils operation in whole or in part. The

formula 'invoke as a ground' is intended to underline that the right
arising under the Article is not a right arbitrarilyto pronounce the treaty
terminated. If the other party contests the breach or its character as a
'material breach' there will be a 'difference' between the parties with
regard to which the normal obligations incumbent upon the parties

under UN Charter and under general internationallaw to seek a solution
of the question lhrough pacific means will apply 2."

42. The Respondent also contends that when Pakistan denied that any
breach of the agreements had taken place, lndia could no1 unilaterally
suspend the agreements since a remedy under Article II. Section 2, of the
Transit Agreement. and Article 84 of the Convention, is available. Any
question relatina to the breach of ail asreement or ils sus~ension is a auestion

i>f tir applic~iioi 2nd interpretaiioii .Ïnd uould fiill uiih;n ihe jurisd<ction of
the Council undcr the aforemeniioncd provisions.

1P.C.I.J., Series B. No. 12.
2 Repartof the InternationalLaw Commissionon thesecondpart OCils seventeenth
sessionand on ils eighteenthsession1966(p. 83). COUNTER-MEMORIAL OF PAKISTAN 385

43. It is further submitted that the principle set out in Article 60 of the
Vienna Convention is subject to Article 45 of the Convention which recog-
nizes that a State may no longer invoke a ground for terminating or sus-
pending the operation of a treaty, if it has, by reason of ifs conduct, acqui-
esced in the operation of the treaty. After the hijacking incident, the Govern-

ment of lndia sent a letter ta the ICA0 Council on 4 February 1971 which
was ciiculated by the President to al1Council Members.
The communication stated:

"The Government of lndia would like Io reiterate ils declared policy
of condemning and curbing acts of unlawful seizure of aircraft and un-
lawful interference with civil aviation. Il deplores the detention of pas-
sengers and crew members in Pakistan for a-period of two days and the
destruction of the hijacked aircraft. This is conlrary Io the principles of

the Chicaeo Convention and other international conventions. Article II
of the convention on Offences and Certain Other Acts committed on
Board Aircraft, signed at Tokyo on 14th September 1963, Article 9 of
the Convention for the Suppression of Unlawful Seizure of Aircraft

adopted at The Hague on 16th December 1970 1."
So even on 4 February 1971, when lndia purported 10 suspend the over-

Riehts of Pakistan aircraft. she aporoached the Council and made various
al6gations against ~akista", one ifwhich was that the action of Pakistan was
contrary to the principles of the Chicago Convention and other international
conventions. ~his shows that India oroceeded on the basis that the Conven-
tion and the Transit Agreement were.in force and in operation. In accordance

with the principle embodied in Article 45 of the Vienna Convention the
conduct of lndia shows that there was no suspension or termination of the
Convention and the Transit Agreement.
44. It is also submitted that even by lodging an Appeal under Article 84 of
the Convention, Article II of the Transit Agreement and Article 37 of the

Statute of the Court, lndia has acquiesced in the continued operation of the
said Agreements.

E. The Advisory Opinionof the Internafional Court of Jmrice
in the ReferenceregardingNamibia

.-. T-~~~~soondent subm-~s~that the Advisorv O~ini. .of the Internation-
al Court of Justice in the Reference regarding Namibia has no bearing on the
Dresent case. In the said Reference which has been relied uoon by lndia the
"ciestion was whether the Mandate of South Africa ovér ~amibia was

;ei%inated by the United Nations General Assembly with the concurrence of
the Security Council, for material breach of obligations under the Mandate.
T.~~.o~ ~ ~~~n of South Africa was that the Mandate was irrevocable as
there was no provision for revocation in the Mandate. The Court expressed
its opinion on the issue of revocation of the Mandate of South Africa on the

hasi; that the General Assembly and the Security Council possessed super-
visory powers, and in that capacity, could terminale the Mandatefor hreaches
of obligations by South Africa. lndia does not possess any such supervisory
co~ers over Pakistan.
46. lndia has also referred to and relied upon the statement of the Counsel

of the United States in answer to the Court's question on the said Reference.

1I.M., p. 297.supra.It is submitted that the said statement and the observations of Judge Hardy
C. Dillard, mus1be read in their proper context.
47. In any caseeven in the said Reference. the distinction between treating
a treaty as terminated and putting an end Io il was pointed out by Judge si;
Gerald Fitzmaurice in the following words:

"There is an important conceptual diiïerence. Strictly speaking, al1
that one pdrty alleging fundamental breaches by the other can do, is to
declare that it no longer considers itself bound to continue performing ifs

ownpart of the contract, which it will regard as terminated. But whether
thecontract has,in the objective sense,come to an end, is another matter
and does no1 necessarily follow (certainly no1 from the unilateral decla-
rationofthat partytortherewould be an al1too edsy way out of incon-
venient contracts 1."

48. It is therefore clear that the Convention and the Transit Agreement
cannot come to an end or be otherwise suspended unilaterally or arbitrarily
by India.

F. Scopeand lnrerprefarionof Article 84 of the Convenrion
as Read wifh Article II,Secfion 2, of fhe Transir
Agreement

49. 11is an established principle of international law that the provisions of
a multilateral treaty which establishes a permanent organization and mach-
inery of permanent character ta deal with disputes, ought to receive a broad
and liberal interpretation. In the case concerning Certain Expenses O/ the
UnitedNarions,Judge Sir Percy Spender observed as under:

"ln the interpretation of a multilateral treaty ... which establishes a
permanent international .. .organization to accomplish certain stated
purposes there are particular considerations Io which regard should ...
be had. [The Charter's] provisions were of necessity expressed in broad

and general terms. II attemprs Io provide agdinst the unknown .. .Its
tex1 reveals that it was intended-subiect Io . .. amendments .. . to
endure ... for al1time ... Its provisions were intended to adjust them-
selves Io the ever changing pattern of international existence. If estab-
lished international machinerv to accom~lish ils stated ~ur~oses .. . its
p~rticular pro\,,sionr should ieceive n hroîd and liberil interpretation
unlesç ihr conle\i of an). particullir pri~i.ision requirei. or there i\ to be

found elsewhere in the Charter, somethina . to comoel a narrower and
restricted interpretationz."
50. The Convention and the Transit Agreement must, therefore, receive a

wide and liberal interpretation and should not be construed in any narrow
sense as has been suggested by India. In this matter Pakistan relies on the
principle of effective interpretation which has largely been followed in
practice by international tribunals while interpreting treaties.
51. The language of Article 84, especiaily the expressions "any disagree-
ment", "interpretation" and "application" are wide enough to cover a dispute
as to application or non-application or suspension or termination. In this

connection reference may be made to some of the decisions of the Permanent
Court of Iniernational Justice and the International Court of Justice.

1 I.C.J. Reporrs1971, p.266.
2 I.C.J. Reports1962,p. 185. COUNTER-MEMORIAL OF PAKISTAN 387

Ln the caseconcerning the Inrerprerario~i of Peace Trearies, the Court said:
"Whether thereexistsan international dispute is a matter for objective

determination. The mere denial of the existence of a dispute does not
prove ifs non-existence .. .'
........................

Inasmiich as the disputes relate to the question of the performance or

non-performance of the obligations provided in the articles dealing with
human rights and fundamental freedoms, they are clearly disputes con-
cerning the interpretation or execution of the PeaceTreaties2."

In the caseconcerning Mavrommaris Palesrine Coticessions,the expressions
"dispute" and "disagreement" were interpreted as follows:

"A dispute is a disagreement on a point of law or fact, a conflict of
legal views or ofinterests between two persons. The present suit between
Great Britain and Greece certainly possessesthese characteristics. The
latter Power is asserting its own rights by claiming from His Britannic
Majesty's Government an indeninity on the ground that ... one of its

subjects has been treated by the Palestine or British authorities in a
manner incompatible with certain international obligations which they
are bound to observe.
..............................................................

The fact that Great Britain and Greece are the opposing parties to the
dispute ... is suficient to make it a dispute between the two States3."

In the case concerning the Facrory al Chorzow, the provision conferring
jurisdiction on the Permanent Court of International Justice was Article 23,
paragraph 1, of the Geneva Convention of 15 May 1922,which stated:

"Should differences of opinion respecting the construction and appli-
cation of Articles 6 to 22 arise between the German and Polish Govern-
ments, they shall be submitted to the Permanent Court of International
Jiistice4."

The Court in Judement No. 7. exercised iurisdiction on the basis of this
clause for alleged br&ches of the~oiivention by Poland. In Judgment No. 8

the Court. in an effective interpretation of the above jurisdictional clause,
further held that bv imolication the Court also had iiirisdiction to determine
compensation for breac'hof the treaty. The Coiirt obServed:

"If is a principle of international law thnt the reparation of a wrong
may consiyt in an indemnity corresponding to the damage which the
nationals of the injured State have suffered as a result of the act which
is contrary to international law. This is even the most usual form of
reparation ... The reparation due by one State to another does not

however change ifs character by reason of the Fdctthat iltakes the form
of an indemnity for the calculation of which the damage sufïered by a
private person is taken as the measure.

1 I.C.J. Reporrr 1950.p. 74.
Ibid., p. 75.
J (1924). P.C.I.J.,SC~~~J.AN,o.2,p. 12
4 (1927), P.C.I.J.sr rie.A, No. 9. ... the Court 0bsert.e~that ii i3 principle ofinternational law. and even
a general conception of law, thai an). breach of an enpagemeni involves
an obligation to make reoaration. In Judament No. 8. .~.the Court has
alreadysaid thai reparati.on is the indispensablecomplemeni ofa failure
Io apply a con\ention. and thcre 1sno neccssity for this to bc stated in the
convention itself1."

In the South West Ajrica case (1962), the International Court of Justice
held:

"The question which calls for the Court's consideration is whether the
dispute is a 'dispute' as envisaged in Articl7of the Mandate and within
the meanine of~rticle 36 of the Statute of the Court.
The esp pin den constention runs counter tothe natural and ordinary
meaning of the provisions of Article 7 of the Mandate. which mentions
'anv disoute whatever' arisine between the Mandatorv and another

~embeiof the League of acon 'relating to the interiretalion or the
application of the provisions of the Mandate'. The lanauaae used is
broad. clear and orecise: i- eives rise to no a~.,eu,tv and itoermits of no
cxcepiion. It refers to any dispute uhdtever relating no1 IO any one
pariicular provision or provisions. but io'the provisions' of the !dandate,

ob\iously mcaning a11or any provtsions. whether they rcl3te IO sub-
stantive obl~gations of the hlandatory touard the inhabitants of rhc
Territory or i<iivarJ ihe other .llembcrb of the Ledrue or to ils ob1ir;ition
to submit to supervision by the League under ~rticle 6 or to protection
under Article 7 itself. For the manifest scope and purport of the provi-
sions of this Article indicate that the Members of the League were
understood to have a legal right or interest iii the observance hy the

Mandatory of ils obligations both toward the inhabitants of the Man-
dated Territory and toward the League of Nations and ils Members 2."
52. Even in municipal law. a dispute as to whether a breach of contract by

one party had ooerated to discharae the other. or whether the contract had
been~frustrated, is a dispute arisingoutof the contract. In the caseof Heyman
v. Darwin, Lord Wright had observed:
"1 see no objection to the submission of the question whether there

ever was a contract at al1or whether, if there was, it had been avoided or
ended. In general, however, the submission is limited to questions arising
upon or under or out of a contract which would prima facie include
questions whether it has beenended 3."

53. B. P. Sinha an Indian author, in his book Unilateral Denr~nciutionof
Treaty Becauseof Prior Violationsof Obligatio~~s bj. Other Party (1966). has
pointed out that one party to a treaty might accuse another of committing
breaches of obligations in order to release itself from ils obligations. The
other party might retort by charging the denouncing party with "mala fides".

The author adds:
"A complaining or denouncing party may refuse to accept the bona
fides of the accused party and vice versa. Consequently a situation may
beforeseenwherea disputemay arise from'adivergenceofopinionbetween

1 (1928),P.C.I.J.Series A.No. 17. pp.27 and29.
2 I.C.J. Report1962.p. 343.
3 A.C. 356,1942. p.385. COUNTER-MEMORIAL OF PAKISTAN 389

the parties related to interpretation or application or treaty obligations
... Thus thequestion posed is not only the law of unilateral denunciation
but also of the determination of the occurrence and effects of a violation
of a treaty obligation 1."

54. The Respondent contends that the principle of effective interpretation
applies also to jurisdictional clauses. Hersch Lauterpacht States that the
principle of restrictive interpretation, which has sometimes been referred to
by the Court, has been resorted to only if al1other methods of interpretation

have failed 2. On the other hand the practice of the International Court, and
its predecessor the Permanent Court of lnternational Justice shows that
jurisdictional clauses have been sa interpreted as to give them full effective-
ness.
In the case concerning Factory at Chorzow, Jurisdiction, Judgmenr No. 8,
(Second Phase) the Court held that iurisdiction ~iven to it in the matter of
ihe inicrpretat;t,n snd 3pplii.ition of ihs ~ain\enii<>n g.i\,eitlur!rdiction Io
decrcc and s\\e\s rspxations in reipect uf the disegard of the obligations of

the Convention. ~s~reoaration. it considered. was an indisoensable comole-
ment of a failure ta apply a treaty, it was not necessary that jurisdiction in
resDect of such reparation should be specifically provided for. Only an express
provision to the cintrary could have excludedihatjurisdiction 3.
In the Free Zones case the Permanent Court of International Justice ex-
pressed the opinion that "in case of doubt the clauses of a special agreement
by which a dispute is referred to the Court must, if it does not involve doing
violence to their terms, be construed in a manner enabling the clauses them-

selves to have appropriate effect 4".
The International Court of Justice held in the Corfu Channelcase that the
jurisdiction to determine the question whether there is any duty to pay
compensation iniplied thecompetence to assess the amount of compensation.
Accordinelv. the Court held that the iurisdiction to decide what kind of
"satisfactyon" was due to Albania inciuded the jurisdiction to decide the
"amount of compensation" due to the United Kingdom5.
55. The question of suspension of a treaty on the hasis of an alleged
material breach by one of the parties is nota question de hors the treaty but is

a question arising out of the treaty and relates ta its application. It also in-
volves a question of interpretation of the treaty. In the instant case, India is
claiming that the Convention and the Transit Agreement have been sus-
pended or terminated by it. On the other hand Pakistan maintains that the
Convention and the Transit Agreem-nt continue to be ooerative between the
Parties and lndia cannot unilaterally suspend or terminate the treaties. The
assertion of lndia and the denial by Pakistan is certainly a disagreement and
raises the question of application or non-application or interpretation of the

Provisions of these agreements.
C. Scope of Secrion 1,Article II, of rhe Transi! Agreement

56. Section 1 of Article II of the Transit Agreement reads:

1 B. P. Sinha,op. cir.p. 2.
2 HC~SCL ~auterpacht, "Restrictive Lntrrpretarioand the Principleof Effectiveness
in the lnterpretatian of Treaties", BririYear Book of I,rler>rarionalLaw,Vol. XXVI,
p. 61.
3 P.C.I.J.,S~riesA,No.9.p.23.
4 P.C.I.J.,SrriesA, No.22, p. 13.
5 I.C.J. Reporls 1949,p. 26. "A contractine State which deems that action bv another contractine
State under this~~reement is causing injustice oÏ hardship ta it, ma;

request the Council to examine the situation. The Council shall thereup-
on-inquire into the matter, and shall cal1the States concerned into con-
sultation. Should such consultation fail to resolve the difficulty, the
Council may make appropriate findiigs and recommendations to the
contracting Statesconcerned. If thereafter a contracting State concerned
shall in the opinion of the Council unreasonably fail to take suitable
corrective action, the Council may recommend to the Assembly of the
above-mentionedOreanization that such contractinz State be sus~ended
from its rights and p;ivileges under this Agreement Gntil such action has

been taken. The Assembly by a two-thirds vote may so suspend such
contracting State for such period of time as it may deem proper or until
the Council shall find that corrective action has been taken by such
State."

57. Thomas Buergenthal, in his study Law Making in theInternational Civil
Aviation Organization (1969) gives the following interpretation of the provi-
sions:

"A State which 'deems that action by another contracting State
under this (Transit or Transport) Agreement is causing injustice or
hardshio to it ma. .eouest the council to examine the situation'. That is
ta Say, ft may file a complainf. The facts justifying the submission of the
complaint could include questions relating to the interpretation or appli-
cationofthe Aereements.. .Inother words. an'iniusticeor hardshi~' mav
be caused by action on the part of a contracting~tate which is ii viol;.
tion of the Agreements, but it is not limited thereto. An 'injustice or
hardshio' mav encomoass measures which. while otherwise oermissible

arc in a particul~r csse, imprciper or incqiiitahlc bccausc of ihc enèsi ihey
have or bc?diisc of ihc inanncr In uhich the) are npplied 1."
58. The use of the word "deems" in the above article indicates that it is a
matter of subjective satisfaction of the aggrieved State that action by the

other State is causing injustice or hardship to it. Further the word "action"
does not mean only positive action; it would include an omission on the part
of the contractine State to carrv out its oblieations under the Aereement.
India's decision Co suspend the-overflights of Pakistan aircraft isboth an
action as well as an omission. Therefore. Pakistan's com~laint is not incom-
pefent as alleged by India.

H. The Manner and Method Employedby the Councilin Reoching

Ifs DecisionsAre Proper, Fair and Valid

59. Pakistan em~hatically denies the allegations made by the Government
of ~nd~ ~ ~ ~ the manner and the method ~ ~~vl. .d bv the ~ouncil in reachine
11.;dc:iii<in~. rcndcred thc dcciiions impropcr. unfair'and prcjiidicial IO llidi;
and b~d irIxu. Thc riianricr and riiciliod eiiiplo!r'd b)iticCouricil in re~shine.
its decisions are proper, fair and valid as:

1. The oro~ositions were framed in a manner which was consistent with the
~relihiiary Objections filed by India and were not in any way against the
practice of the Council. In any case, the manner of formulation of the

1 Buergenthal, op.cil.,pp. 159-1M) COUNTER-MEMORIAL OF PAKISTAN 391

propositions did not affect the result of the vote or the validity of the
decisions.
2. The decision of the Council as regards the Complaint was in accordance
with the Transit Aereement. the Convention and the Rules for the Settle-
-
ment of Difierences approved by the Council. It may be pointedout that
Article 52 of the Coiiveiition is subject to Article 66 (hi of the Convention
whereunder Members of the Council who have not accepted the Transit

Agreement were not entitled Io vote on the Complaint. The decision on
the Complaint was supported by the requisitc majority. The manner in
which the propositions were framed did not result in any miscarriage of

justice. It is not correct to say that the decision of the Council would have
been in favour of lndia if the propositions had been framed in any other
manner.
3. The decisions of the Council were not vitiated on the alleged ground of

want of reasonable time or non-availability of records or otherwise. lndia
had been attempting to delay the proceedings. The Members of the Council
heard the,arguments of the Parties, deliberated, applied their minds and

decided the questions raised in the propositions in a regular and proper
manner and in accordance with the rules and practice of the Council.
4. In any case it is submitted chat any alleged irregularity in the manner and
method employed by the Council in reaching the decisions does not affect

the validity of the decisions.
5. The circumstances in which the Council reached the decisions may be set
out hereunder:

A. The Government of India submitted ifs Preliminary Objections
dated 28 May 1971 to the Council of the International Civil Aviation

Organization challenging the jurisdiction of the Council to handle the
matters presented by Pakistan in its Application and Complaint. The
Council met on 27-29 July 1971 to consider the Preliminary Objections

and he~~-~~-e~ ~ ~~-~ts o~ b~th the oartics.
B. During the deliberations, the Council members felt that the argu-
ments by both the parties having been concluded, they should arrive al a
decision without delav in accordance with Rule 5 (4) of the Rules for the
~ ~ ~ ~ ~ ~ ~ ~~~ ,
Settlement of Differences '.Morcover, the representatives of the United
States of America and Australia pointed out that the Council was
C~ ~ ~l of States~a~d iiot of individuals and. therefore. the Member

State\ riii.ili~\c arr.i,e.t41 s Jcr'ibion .ifter goinl: thr<>i.gtitlie I'rclii~iinhr)
Ohjeiti,,n,. the rcpl! of Pdkilt~n thcrct<~;inil [lie .~rgiinieni* ,if h<iili ilic
Parties. The rcprc~eiit.tti~c~>itIi~ I'eoplcr Kepuhli. of ('.~iig<~siiic.l:

..th31 tI,e ohjr.~i.oni anil the repl) Ihy Itirlianil Pakiii:lri rrerc tlirb~w
iI<>c.imeni, iih.ih the \Iriiiher Si~tes Iiad re.ci\eJ quite 1.1iig A<.> .in4

the are-mcnts before the Council were onlr an claboration of those
documents."

He further said:

"1 would like to say that although 1 have not had the benefit of the
brilliant argumentation herc yestcrday, I am rcady to take decision
that has to be taken, because,as matiy speakers have said. the problem

has been with us since Vienna and we have had time Io think about il.
Obviously, it can be said that to take a decision without having heard

1 I.M., pp. 330-336,supro.392 ICA0 COUNCIL

the varlies is ~erhaos uniust. but in a certain wav the oroblem is

objeitive. It isa matier oiknowing whether the Coincil is'competent
or not. Ifis a legal problem that does no1depend on the arguments of
one D.rtv.or the other and in mv . .nion itis a orobiem that oresents
itself in a rather simple ivay. Itis claimed that we need to have in
writing al1the argumentation prescnted here. Well, 1heard a good part
of il and without being a grea~lawyer I can say immediately Ïhat &any

of the arguments were foreseeable and imaginable and therefore we
have already taken them in10 accoiint in Our reasoning."

C. Most of the Council Menibers look the view that the question
sliould be decided al once and that tliere was no need for deferment of
the decision to a later date. The verbatirn record of the Council will
show that the views evpressed by the represenrative of India regarding
the formulation of the questions were no1accepted by the President and
niost of the ivlembers of the Council. The President explained that the
Couiicil had so far beeii proceeding oii the assumption that it did have

jurisdiction.India challenged ils jurisdiction. The Council had now 10
decide on the challenge. A number of representatives spoke in support
of the President's formulation of the questions maintaining that the
purpose of the vote was to determilie whether the challenge was to be
upheld and iiot wheiher the Couticil had jiirisdiction. It \i.ould be ap-
propriate to quote what the representative of Canada said:

"Itwoiild seemclear .. .that by adopting this resolution[resolution
of the Council of 8 April] the Council wasacting as if it hadjurisdiction
in this case. If we now have a challenge to that jurisdiction, it would

be, weu,ould submit, a question which would have to be upheld by the
Council by a statutory majority, because the Council has already. in
adopling this resolution. [resolution of 8 April] acted as if ithad
jurisdiction and now we have a challenge 10 the jurisdiction.Soin my
view. there is no auestion that the statutorv maioritv reauired is to
uphold the challenge to the jurisdiction ratGer than 1; affiim the Fact

that the Council does havejurisdiction."
D. The President finally stated tliat lie wasglad that discussion had
laken place, that was the way he saw the question and the Council

Members, as they had spoken, now seemed to agree that that was the
way il should be considered. The President then put the following
propositions based on the Preliminary Objections to vote-

Case I : (Applicition of Pakistan under Article 84 of the Convention and
Article II, Section 2, of the International Air Service$ Transit
Agreement).

(i) The Council has no jiirisdiction 10 consider the disagree-
ment in Pakistan's Application iii so Fdr as concerns the
Convention on International Civil Aviation.
(ii) The Council has no jurisdiction to consider the disagree-
ment in Pakistan's Application in so Far as concerns the
International Air Services Transit Agreement.

Case 2: (Complaint of Pakistan iinder Article II, Section 1. of the Inter-
national Air Services Transit Agreement).

(i) The Council has nojurisdiction 10 consider the complaint of
Pakistan. COUNTER-MEMORI OFLPAKISTAN 393

In case 1, there was no vote in favour, 20 votes against and 4 absten-
tions. In case 2, there was I vote in favour, 14 votes against and 3
abstentions.

The result of the foregoing votes was the rejection of the propositions
and hence the reaffirmation of the Council's competence toconsider the
Application and Complaint of Pakistan 1.

1 I.M., p. 26supra. PART V

PRAYERS FOR REJECTION OF THE APPEAL
AND FOR NECESSARY ORDERS

1. In vie- of [lie P~stsand statcnicnts presentcd in the Counter-\lcmoridI,
may ir pleuse rhr Courrto rejeci the Appeal of the Government of lndia and
to confirm thc dccisions of the Council of the International Civil Aviation
Organization and toadjudgeand declare:

A. That the question of Pakistan aircraft overflying lndia and lndianaircraft
overflying Pakistan is governed by the Convention and the Transit

R. TL^ the contention of the Go\,ernment of India that ihc Council h~s no
c irisd dicttnhandle the matters prcscntcd by Pakistan in itc Application
is misconceived.
C. That the Appeal preferred by the Government of India against the
decision of the Council in respect of Pakistan's Complaint is incompetent.
D. That if the answer to the submission in C above is in the negative then the
contention of the Government of India that the Council has no juris-

diction to consider the Complaint of Pakistan, is misconceived.
E. That the matter and method employed by the Council in reaching ils
decisions are proper, fair and valid.
F. That the decisions of the Council in rejecting the Preliminary Objections
of the Government of India are correct in law.
2. Moy it please the Courr10 Order that the cost of these proceedings be
paid by the Appellant.
3. The Respondent reserves the right 10request the Court to declare and

adjudge with respect to such further matters as theRespondent may deem
appropriate to present to the Court and to pass such orders as the circum-
stances may require.

(Signed)R. S.CHHATARI
Ambassador of Pakistan at The Hague,
Agent of the Government of Pakistan.
The Hague,
29 February 1972. COUNTER-MEMORIAL OF PAKISTAN

TABLE OF CASES ClTED

A. INTERNATIONAL COURT OF JUSTICE

1. Interpretation of Peace Treaties, I.C.J. Reports 1950.

2: Certain Norwegian Loans, I.C.J. Reports 1957.
3. Certain Expensesof the United Nations, I.C.J. Reports 1962.
4. South West Africa, Preliminary Objections, I.C.J. Reports 1962.
5. Legal Consequeneesfor States of the Continued Presence of South Africa
in Namibia (South West Africa) norwithstandiiig Sectrrity Council Reso-

lution 276 (19701, Advisory Opinion, I.C.J. Reports 1971.
6. Corfu Channel, I.C.J. Reports 1949.

B. PERMANENT COURT OF INTERNATIONAL JUSTICE

1. Mavrornmoris Palestine Concessions, 1924,P.C.I.J., Series A, No. 2.
2. Certain Cerrna~rlnterests in Polish Upper Silesia (Merits). 1926. P.C.I.J..
Series A, No. 7.
3. Chorzciw Factory (Jurisdiction), 1927, P.C.I.J., Series A, No. 9.

4. Chorzciw Facrory (Indemnity), 1928,P.C.I.J., Series A, No. 17.
5. The Free Zones Case. P.C.I.J.. Series A. No. 22, p. 13.

C. OTHEK

1. 1942 Appeal Cases (Hotire of Lords) (H<,.vmaiiv. Darwirr). BOOKS AND ARTICLES

A. BOOKS

1. Buergenthal T., Law Making in the International Civil Aviation Organi-
zarion,1969.
2. Hudson, The PermanentCourt O/ InternurionalJustice, 1940-1942 (1943).
3. Sinha, B. P.,Uniloreral Denrinciatioirof Treaty Bt'caiiseofPrior Violarions
of Obligationsby Other Party, 1966.

4. Russel, Arbitrarion.

B. ARTICLES

1. Sir Gerald Fitzmaurice. "Hersch Lauter~acht - The Scholar as Jude-:
Pari II", 38 Rrrrirh Year Book O/ lnrern~i!onulLaw. 1962
2. Sir Hersch Lauicrpacht. "Restrictive Interpretdi~on and the Principle of
Effectiveness tn ihe Inter~retaiion oFTreatiesvRrtrtsh Year Bookof lnrer-
nationalLaw, Vol. XXV~, p. 49. COUNTER-MEMORIAL OF PAKISTAN

ANNEXES TO THE COUNTER-MEMORIAL

SUBMITTED BY THE GOVERNMENT OF PAKISTAN

Annex 1

RESOLUTION ADOPTE0 BY THE ICA0
COUNCIL ON 8 APRIL 1971 REGARDING
PAKISTAN'S APPLICATION AND COMPLAINT

"The Council:

(al invites the two oarties immediately to neeotiate directly fo. .he Durpose
of settling the dispute'or narrowing the issues:-
(b) decides suhject to the consent of the parties conceined, to render any
assistance likely to further the negotiations:

(c) fixes at eight weeks the period within which India is invited to present
its Counter-Memorial." DECISION OF THE COUNCIL DATE0
29 IULY1971 ON THE PRELlMlNARY
OBlECTlONS FILE0 BY INOIA

Tel: 866-2551 Cables: ICA0 Montreal
Organisation de l'Aviation Civile Internationale

International Civil Aviation Organization

INTERNATIONAL CIVIL AVIATION ORGANIZATION

International Aviation Building
1080 University Street
Montreal 101, P.Q., CANADA
When replying, Please quote. LE 6/I
Référenceà rappeler dans la réponse: LE 612
Indiquese en la respuesta esta referencia:
30 July 1971.

The Secretarv General of the International Civil Aviation Orrranization
prcsents his compliment snd has the honour to refer Io the ~;elim,nary
Objections. dated 28 May 1971.filed by the Govçrnment or India and relating
resocctivelv Io the Aonlication of the Government of Pakistan. dat3dMarch
1971,filedknder ~riicle 2 of the Rules for the Settlement of ~i~erences and

the Cornplaint of the Governrnent of Pakistan dated 3 March 1971, filed
under Article 21 of the said Rules.
On 29 July 1971,the Council decided not to accept the Preliminary Objec-
tions aforesaid.
Accordinrrlv. the time-limit set for deliverv of the counter-memorials bv the
~overnrnen~&f India and which had cea5ed ;Orun on I June 1971,the daÏc on
which the Prcliminary Objection$ u,cre filed. bcgan Io run again os from 29
Julv 1971and wille.voireon 8 Auaunt 1971.
The Secretary ~eaeral desires,on this occasion, once more to draw your
attention to the Coiincil's resolution8oApril 1971in which the parties were
invited to nexotiate.
The ~ecretar~ General takes the opportunity of conveying to your Ex-
cellency, the assurances of his highest consideration.

(Signed) Assad KOTAITE,
Secretary General.
His Excellency M. S. Shaikh,
Chief Agent of Pakistan.
clo The Pakistan High Commission,
Suite 606. "The Drurnmond-McGrezor".
1230 McGregor Street,
Montreal, P.Q. COUNTER-MEMORIA LF PAKlSTAN

Annex. III

APPLlCATlONOFTHE GOVERNMEN O F INDIA

DATED19APRIL 1952TO THE ICA0 COUNCtL

Telegrams: No. 8-A/37-51.
"Communicarions" Ministry of Communicdtions,

New Delhi.
Government of lndia 19 April 1952.
From

Shri A.V. Pai, I.C.S.,
Secretary to the Covernment of India,
Ministry of Communications,
New Delhi.

To
The President of the Council of the
lnternational Civil Aviation Organization,
lnternational Aviation Building,
1080, University Street,

Montreal, CANADA.

Siibjecr: Flighr of lndian aircrafr berweenIjrdiu and
Afghanisrafiin rransirnon-stop across WesPrakistair
rerrirory and wirhsrops /or non-trafic purposesin rhar

terrirory

Sir.
I am dirccied b) the Presideni of Indra to make this application on behalf
of the Gobernment of India to the C<iuncil of the International Civil A\iati<in
Organisation.
2. A disagreement has arisen between the Government of lndia aiid the

Government of Pakistan relating to the interpretation and application of the
provisions of the Convention on lnternational Civil Aviation signed at
Chicago on December 7, 1944, particularly Articles 5.6 and 9 thereof and as
to the interpretation and application of the lnternationalAir Services Transit
Agreement. The Government of lndia consider that the action of the Govern-

ment of Pakistan purporting to be under that Convention and under that
Agreement in the manner hereinafter stated, is causing hardship and injustice
Io the Government of India. It has, unfortunately, not been possible to settle
such disagreement by negotiation between the two Governments.

'3. (a) The Government of India and the Covernment of Afghanistan
'desire and have agreed that scheduled international air services be
established between their territories by India.
(6) Any practicable air route for the above service involves flight of
aireraft across the territory of West Pakistan.

lrl The Governnicni of lndii are entiiled. under the International Air
Service5 Trançit Agreement. to the privilege of flying iheir aircrafi
acrosç the territory of \Vest Pdkisi.in uiihout Ianding and the
privilege of landing the aircraft in that territory fornon-traffic
purposes. (d) But the Government of Pakistan have denied the aforesaid privi-
leges, particularly in respect of the following routes:
(i) Delhi-Kabul viaPeshawar. The length of this route is 642 miles.
It is the direct and natural route between Delhi and Kabul.
(ii) Delhi-Karachi-Querra-Kondhar-Kobu/. This route involves a
fliaht of about 1450miles. In March. 1950.the Government of
~a-kirtan prewribcd this ar the onl) route for nichti of ioreign
aircraft hetaeen India and Afghanirtan. Rut in Sepicniber.
1951the Governnient of Pakistan denied India the prii,ilegç of
transit for an international scheduled air service even on-this
route.

(iii) India-Karochi-Jiwani-ZahidoTnh- isKrutel.is even longer
than route (ii) above. But in March, 1951 the Government of
Pakistan denied the aforesaid privileges to lndia by this route
also.
4. Under Article 5 of the Convention of lnternational Civil Aviation 1944,
lndian aircraft not engaged in scheduled international air services have the
right, subject to the observance of the terms of the Convention, hut without
the necessitv of ohtainine orior oermission. to flv non-stoo across. and to
-.
make stops for non-traffic purposes in, the territory of West Pakistan on
Rights between lndia and Afghanistan. But the Government of Pakistan have
denied the exercise of such riehts to Indian aircraft.
5. The Government of ~akistan have expressed the view that the privileges
specified in Section I of Article 1 of the lnternational Air Services Transit
Àgreement have heen superseded by Article 6 of the Chicago Convention.
The Government of lndia do not agree with this view. The Advisory opinion
of the Council of the lnternational Civil Aviation Organisation expressed on
the 22nd March. 1951.on a reference made bv the Government of Pakistan. is
no1 being folloied by'pakistan in relation toihe Government of India.
6. The Government of Pakistan have taken the view that they are entitled
to withhold the aforesaid orivileees from India inasmuch as fliehts of aircraft
between India and ~f~hinistanwould involve flights across an area which
Pakistan has declared to be a prohibited area. Such prohibited ared, as
shown on the enclosed map. extends along the entire length (of approximate-
ly 1900 miles) of West Pakistan's Western Frontier, from the Himalayas
almost down to the Ardbian Sea. The Government of India, however. are of
the view that the extent and location of that prohibited areaare not reasonable
and that the said prohibited area interferes unnecessarily with air navigation.
The Government of lndia are also of the view that the Government of
Pakistan arc nut cunipetent to declare the areci as [>rohibited laithe Ilight of
the alrcrsft hecau<c s.icli prohibttiuiiiiriai i.iiifornil) niade ind\nluch as an
airline dc<tcnated b) the Cio\crnmcnt of Iran unerater :isshcrluled inter-

national air-service,on the sector ahi id an- ara n tie circumstances, the
Government of lndia feel reluctantly compelled to conclude that the real
intention of the Government of Pakistan is to prevent easy communication
between India and Afghanistan by prohibiting flights of aircraft by an easy
and direct route on the plea of the said prohibited area.
7. The Government of India. realizing that settlement of the disagreement
with regard to the orohibited area of Pakistan would take time and mav in-
volve reference of the matter to the Council of the lnternational Civil ~viation
Organization. decided, in October 1951, to request the Government of Pa-
kistan taconfirm that they would have no objéction ta the operation of an COUNTER-MEMORIAL Of PANSTAN 401

lndia Air Service to Kabul on the route Delhi-Ahmedabad-Karachi-Jiwani
(without 1anding)-Zahidan-Radhu Chah (approximately 39 miles north
north-west) of Zahidan-Kandhar-Kabul. They addressed the Government
of Pakistan accordinglv and exoresslv stated that there would be no flvina
over any portion of ~ikistan's Gohih;ted area Nevertheless the ~overnment

of Pakistan impeded the flighi of an lndian aircrdft engaged in a scheduled
air service on the above route. On the 21st Januarv 1952ihévat last intimated
agreement to the operation of the air service on tic said &te, subject to the
furtheronerous condition that the aircraft befnre proceeding to Zahidan shall
reoort over Jiwani. This route involves flie-t to 2080 miles: and the nroblem
of'the prohibited area still remains.

8. The Government of India therefore request the Council of the Inter-
national Civil Aviation Organization-

(i) to declare that the prohibited area in West Pakistan is no1 reasonable
eithcr in extent or in location and that it interferes unnecessarily with
air navigation;
(ii) to declare that lndia has the following freedoms of the air in respect of
scheduled international air services between India and Afghanistan-

(a) the privilege to fly its aircraft across West Pakistan territory with-
ou1landing;
(b) the privilege to land its aircraft in West Pakistan territory for non.
traffic purposes;

(iii) to declare that lndian aircraft have the right, subject to observance of
the terms of the Convention on International Civil Aviation, to make
fliahts into. or in transit non-stoo across. West Pakistan territory and to
make stops for non-traffic purposes in that territory without the neces-
sity of nbtaining prior permission, and subject to the right of Pakistan
to require landina. at a Pakistan Customs Airport. on non-scheduled
flight; between ~ndiaand Afghiin,stan;

(IV) 10declare that the sdid action taken by Pakistiin in respect of the flighi
of lndian aircraft on scheduled international air services between lndia
and Kabul is causing irijustice and hürdship to India;
(v) 10 find thai Indian aircrïft are cntiiled to opcraie scheduled inierna-
rional air serviccs between lndia and Afahanistan across West Pakistan
-, the shortest oractica~.~-a~~ ~~ute:.
(vi) to recommend to the Government of Pakistan not to impede in any
manner the operation of scheduled international air services by lndian
aircraft-

(a) between Delhi and Kabul over the Delhi-Peshawar-Kabul route,
and

(b) on the route between Bombay or Ahmedabad and Kabul via
Karachi-Zahidan and Kandhar, and
fc) also by anyother commercially feasible route;

(vii) to investigate the situation in order to obviate obstacles Io the devel-
opment of international civil aviation and the establishment of air
services between lndia and Afghanistan; and
(viii) to make such other findings, declarations and recommendations as the
Council may consider appropriate in the circumstances of the case and in order to enable air services to be operated economically between
India and Afghanistan.

9. 1amdirected to request that action in the above rnatterbe kindly taken
by the Council al a veryearly date as the matterisvery urgent.
Yours faithfully,

Secretary to the Government of India. COUNTER-MEMORIAL OF PAKISTAN

Annex IV

THE TEXT OF A NOTE OF THE GOVERNMENT OF INDIA
DATED 3 FEBRUARY 1971 HANDED OVER TO THE PAIUSTAN

HlGH COMMISSIONER ON 4 FEBRUARY 1971

With reference to note dated February 13th. 1971, handed over to High
Commission for India in Islamabad by Ministry of Foreign Alïairs. Govern-

ment of Pakistan. Ministry of External Affairs has the bonour ta state as
follows:

2. The Government of India regret to note that instead of making any
effort ta seekan amicable settlement of situation arising from hijacking and
eventual destruction of IAC aircraft on lines sunaested in note of Februarv
9th. the Go\crnmcnt of Pdkirtdn hdve agdin soiiht to confuse the issue b;

introdu;ing extraneous and irrelevant matter, and b) making obv~ously in-
correct stajements, e.g., tbat lndian aircraft continued 10 overfly ~akistan
even after overflights by Pakistani aircraft had been banned. The Govern-

ment of Pakistan are well aware that overflights of Pakistan by Indian aircraft
had completely ceasedbefore ban in question was imposed.
3. The Government of India have already stated their position to the
Government of Pakistan. The Government of Pakistan's failure to deal with

two hijackers and the manner in which they have dealt with whole matter
cannot but be an open encouragement to the repetition of such criminal acts
in future..

4. The Government of India wish ta remind Government of Pakistan that
after Indo-Pakistan conflict of August/September 1965theywould have been
well within their right to disallow the resumption of overRight so long as
~ ~ati~ ~ ~etween lndia and Pakistan had no1 been fullv normalised. How-

ever, on a specific request made by the then President of Pakistanthe Govern-
ment of India aareed, in February 1966to forego their right to demand ri or
s~ ~l~me~t of ~~tstandine issuesand consentedto resume mutual overfl&hts.
Such overflights by sche~uled services of civil airlines of one country &oss

the territory of another are,as Ciaivernment of Pakistan are aware. a matter of
nrivile-e. ~hev constitute a facet of normal relation between the countries
concerned and the privilege in question is extended in the context of broad

and universally accepted objective of fostering better relations and friend-
liness within the family of nations. In this contex1 Government of lndia
would reiterate that hijacking of IAC aircraft and ils destruction were the
direct result of policy of confrontation and interference pursued by Govern-

ment of Pakistan over the years. In the circumstances. the Government of
lndia are constrained to conclude that hostile policy of Government of
Pakistan against India and the manner in which they have dealt with the

recent hiiackine of lndian aircraft Dosea direct threat to safetv of aviation
and air cransit and national securit; of India. The Governmeni of lndia are
therefore ~erfectly within their right to demand action against hijackers.
compensaiion fa; the lors and adequate assurance from Government of

Pakistan regarding the future.
5. The Government of India take serious objection 10 slanderous accusa-
tions contained in the note under reply and categorically reject them. They404 ICAO COUNCIL

further wish ta state that should the Government of Pakistan genuinelv desire
an amicable settlement of the present question and restoraiion of Rorma~
relations, they should refrain from interfering in our infernal affairs. On their
part, the Government of lndia will be willina 10 receive from the Govern-
-
ment of Pakistan direcily ihrough normal diplomaiic channelr any concrete
indications of willingness of Government of 13aki<tan ti>procced touard a
settlement of the question of com~ensation for the loss of Indian Airlines
Corporation aircra-ft, punishment of the two criminals who hijacked it and
adequate assurancesregarding the future.