Reply submitted by the Government of India

REPLYSUBMIIITED BYTHE

GOVERNMENT OFINDIA

INTRODUCTION

This Reply issubmitted to the International Court of Justice by the Govern-
ment of India (hereinafter sometimes referred to as "the Applicant") pursuant
ta an Order of the Acting President of the Court dated 20 March 1972 and
within the tirne-lirnit fixed therein, following upon submission ta the Court
by the Governrnent of Pakistan (hereinafter sornetirnes referred to as "the
Respondent") of its Counter-Mernorial on 29 February 1972.
2. The Applicant reaffirms every statement of fact and law and every
submission and contention contained in its Mernorial dated 22 Cecember
1971, and denies every statement, allegation, submission and contention
contained in the Respondent's Counter-Memorial, which is contrary to or
inconsistent with what is set out in the Applicant's Mernorial. In order to
ensure brevity, it is thought unnecessary to set out here and deny specifically
every such contrary or inconsistent statement, allegation. subrnission and
contention contained in the Respondent's Counter-Memorial.
3. The Applicant submits that the Respondent's Counter-Mernorial
contains several errors and misconce~tions in reaard to the subrnissions
made in the Applicant's Mernorial. ~n'addition, ibe observed that in
its Counter-Mernorial the Respondehas chosen to remain silent on rnany
important points of fact and law raised in the Applicant's Mernorial.
4. The Applicant now proceeds to deaseriatiwith the fact and argu-
ments set out in the Respondent's Counter-MemoriaThe Applicant also
desires to state that it reserves its vosition with reaard to al1facts and argu-
ments which are adduced in the ~espondent's ~oÜnter.~emorial and which
are not expressly adrnitted in this Keply. CHAPTER 1

STATEMENT OF THE CASE

(Counrer-Mernorial, Paragraphs 5 and 6)

A. No Breaeh of Obligations by India

5. The true nosition in fact and in law is set out in Chanter IV of the
Applicant's Mcnioria~, &der the heading "History and ~ackground of the
Dispute", and the contrary assertions contained in u.rag- -hs 5 and 6 of the
~e'pondent's ~ounter-~&noria~ are incorrect.
6. The fact that the Applicant allows aircraft of other States which are
parties to the Convention on International Civil Aviation, 1944 ("the Con-
vention"), and the International Air Services Transit Agreement, 1944 ("the
Transit Agreement"), to overfly India, while not allowing Pakistan aircraft
to overffy India, is in no way discriminatory or contrary to the principle of

pacta sunr servanda in respect of the treaty obligations. The treaties in
question were suspended only as between India and Pakistan, and not as
between India and the other contractinp, States.
7. There has been no breach by ~ndia, as alleged, of any of its obligations
towards Pakistan under the Convention or the Transit Agreement. As a
result of the suspension, the alleged obligations did not exist.

B. Principal Question hefore the Court

8. The principal question before the Court is whether a dispute relating
to the termination of suspension of a treaty can be regarded as a dispute

relating to its "interpretation" or "application", and whether suspension
of a treaty can be regardedas "action under" the treaty.'This was the only
question which was in issue before the Council ("the Council") of the Inter-
national Civil Aviation Organization ("ICAO) when the Applicant and
the Respondent argued their case before the Council on the Applicant's
Preliminary Objections.

C. Pakistan's Negative Attitude

9. The Auulicant denies that the Resoondent made efforts to senle the
dispute with ihe Applicant by peaceful negotiations and that such efïorts
proved fruitless. On the contrary, the Respondent did not show any willing-
ness to settle the matter amicahly, to pay compensation for the loss and

damage caused to India, and to ensure safety of civil aviation.
10. The allegation that India dealt with the merits of the dispute in the
Preliminary Objections and referred to events and circumstances which
were extraneous to the present dispute, is denied. India confined itself to the
competence and maintainability of Pakistan's Application and Complaint
before the Council, and to replying briefly to the untrue allegations made
by Pakistan. CHAPTER II

THE EVENTS OF 1965 AND 1966

A. Convention and Transit Agreement Suspended since 1965

11. Since the outhreak of armed hostilities between India and Pakistan
in 1965, Pakistan aircraft have neither the right ta overfly India nor the
right to land for non-traffic purposes in India, because the Convention and
the Transit Agreement, as between India and Pakistan, have remained
suspended, at least in relation ta overflights and landings for lion-traffic
purposes. The Respondent's contention that Pakistan aircraft have such

riehts under the Convention and the Transit Aere-ment and that thev had
heen enjoying those rights till 3 February 1971, is untenable. The Bilateral
Air Services Agreement of 1948 between India and Pakistan was also sus-
pended in 1965-and was never revived.

B. Special Agreement of 1966 and the Notification
of 10 February 1966

12. As stated in the Applicant's Memorial, following the Tashkent
Declaration of 10 Januarv 1966. the Governments of India and Pakistan
reached "the special m gréeme nft1966" regarding overflights 1. In im-

plementation of this Agreement, a Notification 2 dated 10 February 1966
was issued by the ~~plicant to theeiïect that no aircraft registered in Pakistan,
or belongin& to or operated by the Government of Pakistan or persans
who are nationals of Pakistan, shall be flown over any portion of India
exceot with the nermission of the Central Government and in accordance
with'the terms and conditions of such permission. This Notification, which
was in operation till4 February 1971, is wholly inconsistent with the Con-
vention and the Transit Agree-nt and proves conclusively that these
treaties which had been suspended in 1965, were not revived as between
India and Pakistan 3. This Notification was reproduced in the form of an
Aeronautical Information Circular (A.I.C.) No. 8 of 19664 read with A.I.C.

No. 27 of 1965 4 issued by India.
13. Aeronautical Information Circulars are issued pursuant to the Inter-
national Standards orescrihed bv ICA0 in Annex 15 to the Convention:
and they are di~trib~ted to al1concerned. The Standard in paragraph 6.1.1.1
of Annex 15 to the Convention requires that an Aeronautical Information
Circular shall be orieinated whenever il is desirahle to oromul~ate. amonEst
others, any major change in legislation, regulations, procedur& O; facilices
or information or notification of an explanatory or advisory nature con-

Para. 17and 18of Memorial.
2 See Memorial,p. 120,supra.
3 Seepara. 20of Memorial,p. 32, supra.
4 SceAnnex A to thiseply,p. 433,i+.cerninp. le~islative matters. An International Standard in paramaph 6.2.3 of
- -
Annex 15to the Convention also provides that a check-lkt of~eronautical
Information Circulars currently tn force shall be issued (as an Aeronautical
Information Circular) at Icast once ii vear. Another International Standard
contained in paragraph 7.1 of ~nnex 15 to the Convention provides that
for preflight planning purposes, the flight operations personnel must have.
amongst others, information contained in Aeronautical Information Circu-

lars. The continued validity of the said A.I.C. No. 8 of 1966 was reiterated
in thecheck-list of A.1.C.s1issued periodically andcirculated to al1concerned
including ICAO.
14. Paraera~h 10 of the Res~ondent's Counter-Memorial is whollv irrele-
vant since r'tdeals with an incident which occurred in 1952, i.e., before the
suspension of the Convention and the Transit Agreement as between India

and Pakistan.

(Counrer-Mernorial,Paragraphs 11-15)

15. The Applicant denies the allegations contained in paragraph II of
the Respondent's Counter-Memorial, except the last sentence of that para-

araoh. and does not deal with them soecificallr since thev are irrelevant to
[hi; Appeal. As regards the ewnts of hugust 1965 in lammu and Kashmir,
the recordof the United Nations zclelirly establirhed that peaceulis disturbed
bv Pdkistan on 5 Auaust 1965. with mas.ivr crosrinrs-of thc Cease Fire Line
b; Pakistan armed personnel.'

16. The Respondent has sought, in paragraphs 12 and 13 of ils Counter-
Memorial, to give an untenable interpretation to the provisions of the
Tashkent Declaration and the letters that were exchanged between the
Prime Minister of India and the President of Pakistan on 3 February 1966
and 7 February 1966, respectively. The hopes entertained for restoration of
normalcy between the two countries were not fulfilled; the Convention and

the Transit Agreement were never revived but continued to remain under
susDension as between the two countries 3.
ij. The Respondent's assertion that "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", is
incorrect. Equally untenable is the Respondent's assertion that "overflights

across each other's territory were resumed on the basis of the Convention
and the Transit Agreement". The incontrovertible basic facts are the fol-
lowing:

(a) Whereas previously Pakistan planes were permitted to overfly India
without the Indian Government's permission, a total prohibition on
Pakistan planes overflying India was imposed on 6 September 1965.
This total prohibition was modified on 10 February 1966 to the limited
extent that Pakistan planes were permitted to overfly India with the
permission of the Indian Government and in accordance with the terms

and conditions of such permission4. But the freedom to overfly lndia
without the permission of the Indian Government, which is of the

See Annex B 10this Reply, p. 435infra.
UN Dm. S16651.
3 Seeparas. 16to 24 of Memarial, pp. 30-33,supro,
' See Memorial, p. 120,supro. REPLY OF INDIA 409

essence of the Convention and the Transit Agreement and which was
enjoyed by Pakistan prior ta September 1965,was at no time restored.
(b) The right ta land for non-trafic purposes without the Indian Govern-
ments permission, which is of the essence of the Convention and the
Transit Agreement, and which was enjoyed by Pakistan prior ta 1965,
was never restored. After September 1965, Pakistan has had to seek
India's special ad hoc permission in case any Pakistan aircraft wanted
to land inIndia for non-traffic purposes, and this situation has continued
up to date 1.

C. Instances Showing that lndian Government's Permission Was
Sought for Landings

18. After the Tashkent Declaration in 1966, there was not a single case
in which Indian aircraft overflew Pakistan, or made a non-traffic halt in
Pakistan, without the permission of the Pakistan Government. Further,
there was nota single case in which Pakistan aircraft overflewndia, or made
a non-traffic halt in India, without the permission of the Indian Government.
In some cases, the permission asked for was refused or granted subject ta
special conditions. The following few instances should suffice:
(1) CASE1. YEAR1966
On 7 June 1966. the D.G.C.A.. Pakistan. sent to the D.G.C.A.. India.

a signal requesting permission foi landing at Delhi (Palam) Internationai
Airport for non-traffic purposes by Pakistan aircraft AP-AMC which was
toflv from Karachi to Dacca. On 8 June 1966. the D.G.C.A.. Pakistan.
was informed that the request was under consideration.
Subsequently, the D.G.C.A., Pakistan, was informed that permission
for landing at Delhi could not be granted.
(2) CASE2. YEAR1966
On 26 September 1966, the D.G.C.A., Pakistan, sent to the D.G.C.A.,
India, a signal requesting permission for landing at Delhi (Palam) Inter-
national Airport for non-traffic purposes on 7 October 1966 by Pakistan
aircraft which was tofly from Lahore to Dacca. On 30 September 1966,
the D.G.C.A., Pakistan, was informed of the request being under con-
sideration.
Subsequently, the D.G.C.A., Pakistan, was informed that permission
for landine. at Delhi could not be ~ranted. Instead. the D.G.C.A..
Pakistan, ;as asked ta commence th; flight from ara c andi avoid
landing at Delhi.

(3) CASE 3. YEAR1967
On 8 June 1967, the D.G.C.A., Pakistan, sent to the D.G.C.A., India,
a signal requesting permission for landing at Delhi Airporl for non-
trafic purposes by Pakistan aircraft AP-AMC which was to fly from
Lahore to Dacca. On 9 June 1967,the D.G.C.A., Pakistan, was informed
of the request being under consideration.
Subsequently, the D.G.C.A., Pakistan, was informed that permission
for landing-at Delhi could not be granted. Instead, the D.G.C.A.,
Pakistan. was asked to commence the flight from Karachi and avoid
landing at Delhi.

1 Sec,further.paras25 and26 of thisReply,pp413-415,infra.(4) CASE4. YEAR 1968
On 14 February 1968, the D.G.C.A., Pakistan, sent to the D.G.C.A.,
India, a signal requesting permission for landing at aerodromes in India

by Pakistan Helicopter en route Dacca-Karachi. On 17 February 1968,
the D.G.C.A., Pakistan, was informed that the permission for landing
could not be granted.
(5) CASE5. YEAR 1969
On 4 March 1969. the D.G.C.A., Pakistan, sent to the D.G.C.A.,

India, a signal requesting permission for landing at Delhi for non-trdffic
purposes by Pakistan aircraft AP-AMC which was to fly from Karachi
to Dacca. On 5 March 1969,the D.G.C.A., Pakistan, was informed of the
reauest beinr under consideration.
~ubse~ue&y, the D.G.C.A., Pakistan, was granted permission to
operate the flightinaccordance with a specific Notice to Airmen, of 1966,

which drew attention 10 A.I.Cs. in force.
(Karachi and Lahore are in West Pakistan; while Dacca is in Bangla

Desh which was formerly East Pakistan. In the above cases, Pakistan desired
to make a non-traffic stop at Delhi which is between West Pakistan and
what was formerly East Pakistan.)
19. In short, the special Agreement of 1966 and the uniform practice
of the two countries after that date were inconsistent with the Convention

and the Transit Agreement. and leave no doubt that those two treaties
which had been suspended in 1965, were never revived as between India and
Pakistan

D. Two Incidents Wrongly Alleged 10Show that the Convention
and the Transit Agreement Continued to Be in Operation

20. The interpretation placed by the Respondent on the two incidents
mentioned in paragraph 14 of ils Counter-Memorial is wholly erroneous.
Even the basic facts of the two incidents have not been correctly stated by
the Respondent.
21. The following facts and aspects may be noted in regard to the incident

referred to by the Respondent in sub-paragraph (a) of paragraph 14 of ils
Counter-Memorial:

(i) Pakistan's allegation that "lnvoking Annex 13 to the Convention, India
nominated its representative on the enquiry and requested Pakistan ta
grant the necessary facitities ta the ~ndian representative and advisers"
is incorrect. The first intimation of the accident referred to was received
from Pakistan which sent a signal Io India stating, inter alia-

"Nature of the accident not known. Aircraft destroyed. Awaiting nomi-
nation of yr representative."

In reply, the D.G.C.A., india, sent a signal stating, inre! alia-

"V. N. Kapur Controller of Aeronautical Inspection Calcutta nominated
as Our representative on the inquiry. Please advise the place and date
on which his presence is required."

The two telegrams referred to above make it clear that it was Pakistan
which invited India to nominale its reuresentative and there was no
question of India "invoking" Annex 13-to the Convention.
(ii)Further, Pakistan was obliged ta invite India to participate in the REPLY OF INDIA 411

enquiry in accordance with its own national laws and practices and not
under Annex 13 to the Convention. Rule 77A of the Aircraft Rules,
1937 1, of Pakistan provides for an accredited representative of the
country in which the aircraft is registered ta take part in the investigation
or inquiry as the case may be.

This Rule is reproduced below:
"77A Geneialql) Where an Inspecter's investigation or a public

inquiry relates ta an accident which has occurred in or over Pakistan
to an aircraft registered in any country other than Pakistan, and an
accredited representative of the country in which the aircrafts registered
or of any country which has, on resuest. furnished information in
connec~i~n with the accident, may takc part in the investigation or in
the inquiry as the case mliy be; he ma). he accompanied by such technical
and other advisers as may he considered necessary by the authorities
of the country hy which he is appointed 2."

It may he noted that:the foregoing Rule envisages participation in
inquiries and investigations by a representative of the country of registra-
tion, regardless of the question whether such country is a party to the
Convention or not. '.
(iii) It is the general practice al1 over the world ta permit representatives
of the State of registratioo ta participate in an accident inquiry. Rule 77
of the Indian Aircraft Rules, 1937, also provides for similar action.

(iv) From mere participation by one State in an inquiry conducted hy
another State, it does not follow that the States concerned are acting
under a multilateral treaty. For example, in March 1958 an Indian
aircraft met with an accident in Nepal and while the investigation was
conducted by the Government of Nepal, an accredited representative
of the Government of India was also associated with the investigation,
although at that time Nepal was not a party ta the Convention.
(v) Equally misleading and unwarranted is Pakistan's reference to provisions
of ICAO Document 4444. It has been stated in the Respondent's Me-
marial that "during thecourse of the investigation, the Pakistan Inspecter
examined the Duty Air Traffic Controller of Calcutta Airport in order

to ascertain whether the provisions of ICAO Document 4444 had been
complied with by them". Naturally, India does follow the provisions of
ICAO Document 4444 which sets out the Procedures for air naviration
scri,icr.1.h:s document is i<implemrnt.!ry ta the St3nddrd1 and ~icum-
menJed Priictiies conrdined in Aniie~ 2 (Riiles of the Air) and in Annex
II (Air Trafic Servi~.cslto the C'on!cntiun. Thcse Standards. Pr~~.tises
and Procedures are adopted by India in respect of aircraft operations
of al1 countries, regardless of the question whether they are parties to
the Convention or not. Even a country which is not a Party to the
Convention can also follow these standards, Practices and ~rbcedures
to facilitate safe and orderly flow of air traffic. Thus the Procedures
outlined in Document 4444 have no relevance to the point at issue, viz.

whether the Convention was suspended as between India and Pakistan.
22. The following facts and aspects may be noted in regard ta the incident

1 Aircrafl Manirai-A Compiiation of rhe Legislalion and Ruies Governing Civil
Aviation inPakisran,1966,pp. 11-187.
2 Ibid.p. 66.referred to by the Respondent in sub-paragraph (b) of paragraph 14ofits
Counter-Memorial:

(i) Establishment of jurisdiction within a Flight lnformation Region is a

matter for the national administration to decide, taking into account
aeronautical. administrative and other considerations. includine the
recommendations of ICAO. When the boundaries of the Flight infor-
mation Region extend to the air space of another State, it becomes a

matter of bilateral arrangement between the two States. The fact that
an informal meeting was held between lndia and Pakistan, under the
Chairmanship of the President of the Council, does not in any way

prove that the Convention and the Transit Agreement were in force
between the two countries. After all, lndia and Pakistan both continue
to be parties 10 the Convention and the Transit Agreement, even after
the susoension of the treaties as between the two countries. The fact that

the good oRces of ICA0 or the President of the Council may have been
made available to India and Pakistan has no bearing on the question
of suspension of the treaties as between the two countries.

(ii) Pakistan's allegation in the last sentence of sub-paragraph (b) of para-
graph 14 of its Counter-Memorial that "a meeting was accordingly held
in Bangkok in 1971" is incorrect. The meeting was held between the
representatives of lndia and Pakistan in 1970.

23. Summing up, itis clc..ir that the tiincidents <lied by the Kerpondcni

in suh.paragr.iphs (a, dnd Ib, of par~grsph 14 Ji) nor in any wiy show
th31 the Convention and the Trinsit Agrcen-ent continued to be in operation
betweenthe two countries.
24. Both the incidents are wholly consistent with the treaties continuing

under susuension from Seutember 1965 uu to date. In any view of the matter,
t~ ~ ~o ~ncidents re~-~red~ ~ ~v the Resn~ ~ent did not involve anv auestion
of overflying or landing in each other's ierritory, and have thus norélevance
to the auestion whether the Convention and the Transit Agreement were

suspended. as between the two countries, at least in relation 10 overflights
and landings. (a) The essence of the Convention and the Transit Agreeme-it is the
cumularive and inseverableriahts to overfly across each other's terri-
tory and to land in each other's territory-for non-tralï~c purposes l.
Thcsc rights consiiruied a single. indivisible arr<ingcmcn~or hargain.

The aforesaid letters in February 1966rcferred mercly to overflights
and did not 31 a11dcîl with rhe righl Io land in e3ch othcr's rerritory.
(b) While the aforcsaid lctters exprcsscd the willingness of the l'rime
Minister of Indiî 3nd the Prcsident of Pitkistan to resumeoverfli-.is.
the actual terms of the Agreement were later embodied in the

signals2 exchanged between the two countries and the Notification 3
dated 10 Februarv 1966 issued bv India. The sienals and the Notifi-
cation show that ihe resurnption-of overflights ;as on a provisional
basis and on a basis of reciprncity and "with the permission of the

Central Government and in accordance with the terms and condi-
tions of such permission". Such a basis for having overflights is in
flat contradiction ta the basis provided for overflying under the
Convention and the Transit Agreement urider which the freedom
of overflying has to be on an enduring basis and wirhorit rhepermis-

si011of the Governrnent concerned.
(c) The Notification of 10 February 1966 was issued by India to im-
plement and give legal sbape ta the special Agreement of 1966 and
it was declaratory of the understanding of the two Governments
with regard to the resumption of overflights. The Notification was

embodied in the Aeronautical Information Circulars 4 issued by
India, which were circulated to ICA0 and given international
distribution visualized in Annex 15 Io the Convention. There was
no protest or objection by Pakistan or any other party against the

Notification or any Circulars embodyina the Notification which
negatived the freedom of overflying unde; the Convention and the
Transit Agreement.
(d) Between 1966 and 1971 Pakistan aircraft invariably complied with
the said Notification dated 10 February 1966, and overflew India

only with the permission of the Indian Government. Further, on a
number of occasions between 1966 and 1971 Pakistan asked for
exoress ~ermission to let its aircraft land in Indias. Such reauest
foi perm'ission would have been wholly unnecessaiy if the convention
and the Transit Agreement had been in operation hetween the two

countries after 1966, as suggested by the Respondent. Further,
permission to land for non-traffic purposes was in fact refused in
several casesby India, as mentioned onre, in neaation of the freedom
assured by the convention and the Transit Agreement. It is in-
conceivable that Pakistan would have asked for permission or

accepted the refusal without protest, as it did, if the two treaties
had been in operation between India and Pakistan.

-
SeeMernorial, Annexes H and 1,pp. 303,and 327,supra.

Ibid., pp. 117-119,supra.
3 lbid., p. 120,supra.
4 SeeAnnexA to this Reply, p. 433,infra.
Seepara. 18of this Reply, pp. 409-410,supra. REPLY OF INDIA 415

B. The Council Had no Jurisdiction, Whether the Convention
and the Transit Agreement Were Suspended in 1965
or in 1971

26. Even assuming for the purpose of argument that the Convention
and the Transit Agreement were revived as between India and Pakistan
in February 1966, they must be held to have been suspended by India,
vis-à-vis Pakistan, on 4 February 1971. Even if the unilateral suspension

of the treaties byIndia vis-à-vis Pakistan was in February 1971, that would
have no bearing on the real point arising in this Appeal, which is as regards
the limits of the Council's jurisdiction.In other words, the Council would
have no jurisdiction to deal with questions relating to suspension of the
Convention or the Transit Agreement, whether the suspension was in 1965
or in 1971 1.

Sce Mernorial,para. 30, p36,supra. CHAVTER IV

THE HIJACKING INCIDENT OF 1971

(Counter-Mernorial, Paragraphs 16-21)

27. The Applicant denies al1 statements, allegations, submissions and
contentions contained inparaaraphs 16 to 20 of the Respondent's Counter-
Memorial, which are contrary to or inconsistent with what is stated in
paragraphs 25 to 31 of the Applicant's Memorial.
28. The finding of the sa-called "Commission of Enquiry" set up by
Pîkistan, that the Indian Government virtually procured the hijacking of
its own aircraft is too ahsurd Io need any serious refutation. First, the
conclusion is untenable having regard ta the facts concerning the hijacking
incident set out by the Respondent itself in paragraph 19 of its Counter-
Memorial and by the Applicant in paragraph 28 of its Memorial. Secondly,
the Commission's finding that the arms carried by the hijackers were "dis-

covered to be dummy weapons" 1 is wholly inconsistent with Pakistan's
own admission both before 2 and after 3 the Commission's Report that the
aircraft was blownup by the hijackers. Thirdly, it is wholly inconsistent with
the reception given to the hijackers in Pakistao and the other facts set out
in the next paragraph.
29. The hijackers were lionised as heroes, as reported in the newspapers
puhlished in Pakistan. For instance, Pakisran Times of 1 February 1971,
describing a meeting between Mr. Z. A. Bhutto (now, President of Pakistan)
and the hijackers, reported that Mr. Bhutto waving to one of the hijackers
said, "We are with you". The Morning News of Karachi of 1 February 1971
reported that Mr. Z. A. Bhutto visited the hijackers and "assured them
that they had full support of the people of Pakistan and everything possible

would be done to look after their interests".TheMorning News of 2 February
1971 reported as follows:
"Although Pakistan seerns to iegard hijacking an undesirahle practice
as a matter of orincide. a Foreien Office s~okesman todav ex~ressed
the view that hijacking of rndianxirliner hi IWO Kîrhmiri young nien

on Saturday ivasjustitiable inihe vieu ol the pre\,ailing political condi-
tions in the Occupied Kashmir ...
The spokesman hoped that the Indian plane would he returned to
India as soon as hijackers agree to surrender it but apparently no force
would be used to secure its release from hijackers."
The Khyber Mail of 31 January 1971 carried a statement reported to have

been made by Dr. Mubashir Hassan, a prominent leader of People's Party
of Pakistan, which reads as follows:

1See Mernorial.p. 135,supro.
2 Ibid..o.71. suoro.
3 lbid.:P.126,shpro,and Pakistan'sCounter-Mernorial,lasttwo linesof paragraph
19,p. 377,supro.Curiouslyenough, Pakistan'sCaunter-Menorial ornitsta mention
the rneanby whichthe aircraft wasdestroyedwith ifsbaggage,cargo and mail. REPLY OF INDIA 417

"1, on behalf of Pakistan People's Party, Lahore, salute the two
Kashmiri freedom-fighters who chose our city to land their enemy's
plane and gave us the opportunity and honour of giving them active
support."

Pakistan Times of 1 February 1971 carried a report that MI. Maqbool
. Butt described as the President of Jammu and Kashmir Plebiscite Front,
stated that "the National Liberation Front was the militant wing of the
Plebiscite Front" and that the two hijackers "hijacked the plane under
instructions of the Front" and that "the command took full responsibility

for the operation". The Duwn reported on 2 February 1971 that another
member of the National Liheration Front, MI. Javed Saghar, "today joined
the two hijackers to keep a watch over the plane". Pakistan Times of 12
February 1971 reported that the hijackers would address a public meeting
at Lahore on "Saturday" and that they would visit Gujranwala on Monday,
Sialkot on Tuesday, Bhimber on Wednesday, Jhelum on Thursday, Mirpur
on Foay and Rawalpindi on Sunday as the itinerdry for tours and rallies
and that the dates for Gilgit and Peshawar would be decided later.
30. The Applis.rnt f.irther siibnlitthdi the rcfercnce to'.rhe air>p.iceof the
dihpiited St;ite ol'J.immu and Kashiiiir"in p~ragr~pli 16of the RejponJeni's
Counter-Memorial is unwarranted and irrelevant to the issue before the
Court.
31. Paragraph 19 of Pakistan's Counter-Memorial gives the Respondent's
version of the "correct position" as regards the hijacking incident. The
Captain of the hijacked aircraft is said to have been given clearance to
"take-off at any time he wished", but the possession of the aircraft was
never restored to him. Permission to operate a relief aircraft is said to have
been "immediately granted" by Pakistan to India to pick up the stranded

passengers, but Pakistan did not give visas to the crew of the relief aircraft
to proceed to Pakistan. The permission to operate a relief aircraft was, in
any case, rendered infructuous by further instructions from the Pakistan
authorities that the relief plane should not take off until further specific
instructions from the D.G.C.A., Pakistan.
32. Further, the Respondent has stated in paragraph 19 of its Counter-
Memorial that "any attempt to disarm or arrest one (of the hijackers)
would have surely blown up the aircraft as the two had threatened to do".
This statement is intended to e-ve an imoression to the Court that the
Ke,pondcnt \rai otheruire \,illin&to .irrc,t the hipckcrs on the spot. Ho\\-
ci,er, an) \ilch inteniton on ihc par01th~ Keip~indent ircompletel) dispri>i'eJ
by the facts that an announcement was madeby the Government of ~akistan
that the hijackers had been given asylum in Pakistan, that the hijackers
wereprovided with food and other amenities which enabled them to continue
their so-called occupation of the aircraft for three-and-a-half days, and that
the hijackers were not arrested even after they had blown up the aircraft but
were allowed to address rallies and meetings in Pakistan day afterday.
33. Pakistan assertion in ~ararraoh 20 of its Counter-Memorial that it
. .
..took al1 po*sihle niedsuresin sci,irh.ince r\ith ~nrcrnationîl 1aw 3nd prdc-
lice" i,contr:irj to the ci)rreci facis uhiih îrc set oiit in p~rsgr.iplis 28 and 29
of the Applicant's Memorial.
34. The Resoondent has conceded. in oara. -.h 21 of its Counter-
Menlorial. thîi'lndi3n .iircrifi have c&ed overflying Ilïkirian front 4 Fe-
brulir) 1971.F4rlic.r.in att;ichmenr"K' 1s thc Applic.itiain and the Coniplîint
>ubinitted hy I1.ikirtanIcithe Council. P~ki\i3n hîd unrruly allcgcd lli:il"even after India's unilateral and illegal action, Indian planes continue to
fly over Pakistan"1.

35. The averments in the next paragraph again numbered 21 in the
Respondent's Counter-Memorial are incorrect. The true factual and legal
position is set out in paragraphs 18 and 19 of the Applicant's Memorial.
It is incomprehensible how the Respondent can possibly deny that over-
flights of Pakistan aircraft acrossIndia were suhject to the permission of the.
Government of India, when the statutory Notification dated 10 Fehruary
1966issued by India says so in express terms 2,and al1overflights by Pakistan
aircraft were in accordance with the terms of that Notification. If the Con-
vention and the Transit Agreement had not been suspended, the Respondent
would be riaht in con tend in^that the combined effect of Articles 82 to 83 of
the ~onbcnÏion is thar thGe cannot be any speci~l arrangement betueen

contracringStates which isinconsistent with the provisions oflhe Convention.
It is oreciselv because the Convention and the~ransit Aereement had been
suspended ai between India and Pakistan, that the specialkgreement of 1966
(set out in parawaohs 18 and 19 of the Applicant's Memorial) could be
validly entered iito-by the two countnes.

2 Ibid.,p.'l20,supra.,supra. CHAPTER V

JURISDICTION OF THE INTERNATIONAL COURT OF
JUSTICE

(Counter-Mernorial, Paragraphs22-25)

36. As stated in its Application and Memorial, the Applicant founds the
jurisdiction of the Court on Article 84 of the Convention, Article II of the
Transit Agreement, and Articles 36 and 37 of the Statute of the International
Court of Justice. The wntention of the Respondent that Article 36 of the
Statute of the Court and Section 1 of Article II of the Transit Agreement
arenot relevant to this Appeal, is without any hasis in law.
37. While stating that Article 36 of the Statute of the Court is irrelevant
to this case, the Respondent contends that "Article 36 (1) relates to the
original jurisdiction of the Court and comprises 'al1cases which the parties
refer to it'. The Parties have not referred any case to the Court in its original

jurisdiction under this provision". The Respondent has chosen to ignore
the latter part of paragraph 1 of Article 36 of theatute which hrings within
the jurisdiction of the Court
"al1matfers specially provided for in the Charter of the United Nations
or in treafies and conventionsinforce".(Italics added.)

The Chicaeo-Convention and the Transit Agre-ment are "treaties and
conventions in force".
38. The Respondent's contention that the decision of the Council in
resnect of Pakistan's Comnlaint filed under Section 1 of Article II of the
~ransit Agreement is not subject ta appeal is equally unfounded in law;
the correct position is set out in paragraphs 83 to 91 of the Applicant's
Memorial. It is the submission of the Applicant that the Transit Agreement
has heen suspended as between India and Pakistan since 1965, and that no
action has been taken hy India under the Transit Agreement. Even if the
Transit Agreement has heen revived hetween India and Pakistan after 1965,
the latter's Complaint would still be outside the scope of Article II (1) of

the Transit Agreement, since the action complained of would amount to
suspension of the Transit Agreement in 1971 and would not be under that
Agreement. It is further suhmitted that even assuming India had committed
a breach of the Transit Agreement, such a breach cannot he the suhject-
matter of a Complaint under Article II (1) of the Transit Agreement. For
these reasoiis, Iiidia requested the Council to hold that Pakistan's Complaint
was incompetent and not maintainable and that the Council had no juris-
diction to deal with it. Pakistan, on the other hand, maintained that,
2... the word 'action' does not mean only positive action; it would

include an omission on the part of the contracting State to carry out its
obligations under the Agreement. India's decision to suspend the over-
flights of Pakistan aircraftis hoth an action as well as an omission.
Therefore, Pakistan's Complaint is not incompetent as alleged hy
India 1."
1 Seepara. 58of Pakistan'sCounter-Mernorial. CHAPTER VI

PRINCIPLES OF I.AW RELATING TO
TF.R\IINATION AND SUSPENSION

A. Obligation to Act in GoodFaith

(Counier-Mernorial, Paragraphs 26-28)

42. The ob~~eation to observe a~1~t~-~ ~es in eood faith is a fundamental
rule. This prinzple of law referred to in paragraihs 26 and 27 of the ~espon;
dent's Counter-Memorial is unexce~tionabie. The Government of India
believes that scrupulous observance of treaty obligations by parties is neces-
sary for stahility of treaty relations as well as for international order and
CO-operation.The Government of India has acted in good faith throughout.

It was in ahsolute eood faith that it sus~ended the Convention and the
Transit Agreement Gs-à-vis Pakistan. The &gestion in paragraph 28 of the
Respondent's Counter-Memorial that India has an obligation to implement
these treaties in eood faith is misconceived. since there can be no obligation
to implement a Geaty after it has been susbended vis-à-vis another taj je.

B. Suspension of the Convention and the
Transit Agreement

(Counier-Mernorial. Paragraphs 29-33 and 36)

43. Paragraphs 29, 30 and 31 of the Respondent's Counter-Memorial

contain the following syllogism : (i) there can be no suspension of an inter-
national treaty unless the treaty provides for such suspension; (ii) the
Convention and the Transit Agreement do not provide for suspension;
(iii) therefore, there can be no suspension of those treaties as between India
and Pakistan. The first premise is patently erroneous and has led to the
patently erroneous conclusion. Suspension can he, and was in this case, de-

hors the treaty, under a rule of general international law, as has been pointed
out in paragraphs 33 to 51 of the Applicant's Memorial. Article 89 of the
Convention and Section 1 of Article 1 of the Transit Agreement have no
relevance to this Appeal: they do not supersede the right of suspension
under general international law.
44. In any view of the matter, even the aforesaid contention raised by
Pakistan is outside the iurisdiction of the Council. Ouestions relatine to

suspension,-e.g., whethér the suspension of a treaty b; a contracting Gate
was competentor justified, on the facts of the case and having regard to
the principles of general international law-are not within the Council's
jurisdiction, since they do not involve disagreement relating to the "inter-
pretation" or "application" of the treaty, nor do they relate Co "action
under" the treaty.

45. The pleas of acquiescence and estoppel, contained in paragraph 33 of
the Counter-Memorial, are wholly misconceived and have no basis in fact.
46. The fact of the matter is that the Respondent, being a party to the
special Agreement of 1966 the terms of which are contradictory of theprovisions of the Convention and the Transit Agreement, and having acted
in conformity with the special Agreement since 1966, is estopped from
denying its existence. As stated by Judge Alfaro in his separate opinion in
the Preoh Vihear case:
"This principle, as 1understand it, is that 'a State party to an inter-
national litigation is bound by its previous acts or attitude when they
are in contradiction with ils claims in the litiaation.. .

Whatever term or terms he employed to des'ignatethis principle ...its
substance isalways the same: inconsistency hetween claims or allegations
put forward by a State, and its previous conduct in connectio" there-
with, is not admissible (allegans conrraria non oudiendusesr) 1.''
47. The contention of the Respondent, based on Articles 82 and 83 of
the Convention. that the soecial Aereement of 1966 was not oermissible
since it was inconsistent uith the terms of the Convention. is misconceivcd.

Thc Convenrion having been suspcndcd, the question of inconsistency does
not arise. The Tactthït the special Agreement of 1966 was inconsistent with
the Convention and the Transir Agreement demonstrares that thwr two
treüties were suspended as betueen India and Pakistan.

C. Right of Unilateral Suspension or Termination of a Treaty

(~ounrer-~emorial, Paragraphs 37-42)

48. The statements of law and the contentions set out in paragraphs 37-39
of the Counter-Memorial are misconceived and are denied. The Applicant
will refer to and rely on the Vienna Convention on the Law of ~reaties,
1969, for its proper effect.
49. The contention of Pakistan that a party cannot suspend or terminate
a treaty unilaterally, as a consequence of its material breach hy the other
party, in the face of the latter's objection to such suspension or termination,
is without any hasis in law. That the consent of the defaulting State for the
termination or suspension of a treaty is not required and that no "third-

party settlement" is necessary before such termination or suspension, is
evident from Article 60 of the Vienna Convention. the existina customary
iniernarional Iau on the subject ai held by the Inrernational ~oirt of~usiic>
in the A1u\'u>nibise. and the practicc of sovere~gn States on the subject 2.
The third-oart, seitlcmcni m~chincrv envisared in the Vienna Convention
h.is nor yci becn established. since th<l~ienn<i~on\eniion has not )ei come
intii force. Accordingly, a dispute regarding the suspension of a trcaty can
be iettled bs ihe pürties direcil) or ihrouconly ch "ihird-~.rtv seitlcnient"
as may ,be Speci6cally agreed jo betwee" them.
50. The Applicant further denies the contention of the ~espqndent that
the right to terminate or suspend a treaty as a consequence of.its material
breach hy the other party'is subject to the doctrine of proportionate and/or
disproportionate reprisal. In any event, this contention of the Respondent
has no relevance to the real issue arising in this Appeal, which is whether
the Council has jurisdiction to handle disputes regarding termination or
suspension.

Temple of Preoh Vihear,Merits, Judgment, I.C.J. Reports1962,p. 6 at pp. 39
and 40.
2 SeeMernorial,ChapterV, pp. 38-44, supra. REPLY OF INDIA 423

51. The Respondent refers to Article 95 1 of the Convention and Article
III 2 of the Transit Agreement which deal with denunciation of the said
instruments and maintains that "lndia cannot thus unilaterally denounce,

terminate or suspend the Convention and the Transit Agreement save
in conformity with the provisions of the aforementioned agreements".
This proposition is totally untenable in law. The correct position is that
denunciation of a treaty on the one hand, and. termination or suspension
of it on the other hand, are distinct and separate legal concepts. India has

not denounced the Convention and the Transit Agreement in the present
case; and consequently the reference to Article 95 of the Convention and
Article III of the Transit Agreement is irrelevant. Further, the aforesaid
Articles of these treaties provide for denunciation by one State as regards
'
al1 the other States which are parties to tbese treaties; whereas the present
case is one of suspension of the treaties by India vis-à-vis Pakistan alone,
and not anv of the other contractinp. States.
52. ~ssuming that the convention and the Transit Agreement were io

force in February 1971 as between India and Pakistan. the Aoplicant denies
the ~esoondent's co~te~tion that its conduct in relation to ihe hiiackine
incident' has no relevance to the obligations imposed upon contracting
States by the Convention and the Transit Agreement. It is not necessarv or

relevant-in this Appeal to go into the legal ~ustification for the ~p~licant's
action on 4 February 1971, withdrawing permission to Pakistan aircraft
to overfly India. However. the conduct of the Resoondent amounted tothe
very ne&tion of iill the aims and objeciiies. the scheme and provisions.
of the Con\ention and the Transir Agreement. The Rcspondcnt shorrcd no

reliard for the most elementarv notions of safetv in civil aviation. and made
it ;mpossible for the ~pplicaht to enjoy its rights under the convention,
and its privileges under the Transit Agreement, over Pakistan territory.
The correct legal position is set out in paragraphs 30, 31 and 32 of the

~A-rr~~~~~-- -emn~ia~.-.~~~.
53. The Applicant submits that the Advisory Opinion of the Permanent
Court of International Justice on the Inrer~retarion of rhe Treatv . .ausanne 3
hiis no beîring, direct or indireci. on the issue iirising in rhir Appcal-a heiher

ihe Council u,hu>ejuriidiciion is limitcd 10 disputes regarding intcrprcrxtion
or application of the Convention and the Transit Alireement. can handle
disp;ies regarding termination or suspension of the-treaty. Nor are the
observations of the International Law Commission quoted in paragraph 41

of the Respondent's Counter-Memorial of any relevance to the issue hefore
~~~-C-u~~.~~
54. The Applicant reiterates that the concepts of termination and sus-
pension of a treaty are distinct and different from the concepts of interpreta-
tion and application; and that thejurisdiction of the Council, under Article 84

of the Convention and Article II, Section 2, of the Transit Agreement
does not extend ta the question of suspension or termination of the said
treaties.

-
1 SeeMemorial,p. 325, supra.
2 Ibidp ..,328, supra.
3 P.C.I.J., SeriesB, No. 12. D. Misconceived Plea of Acquiescence

(Counier-Mernorial, Paragraphs 43 and 44)

~5~ The contention set out in narazranh 43 of the Resne ~ ~ - ~ ~ - - ~ -
Memorial, namely,~that lndia has a&uiesced in the operation of the Con-
vention and the Transit Agreement and is therefore disentitled under Article
45 of the Vienna Convention to suspend the treaties, is misconceived. First,
Article 45 of the Vienna Convention has no application, since India has not
acquiesced in the operation of the treaties as hetween the two countries.
None of the circumstances which are essential to attract the application of
Article 45 of the Vienna Convention exist in the present case. Secondly, in
any event the question whether the suspension of the treaties by India
was rightful or wrongful, justified or unjustified, under general principles
of international law or under Article 45 of the Vienna Convention, is a
question relating to the suspension of the treaties and is outside the juris-
diction of the Council.
56. The interpretation placed hy the Respondent on the letter dated
4 Fehruary 1971addressed hy India to ICA0 Council is wholly unwarranted.
The letter bears no evidence of India having proceeded on the hasis that
the Convention and the Transit Agreement were in operation as hetween
India and Pakistan. It was a letter from the Government of India to the
President of the Council informina the Council about Pakistan's conduct
in the hijacking incident. India aiproached the Council as the keeper of
the conscience of the world so far as safety in international aviation is

concerned. The Respondent relies upon the fact that the Applicant in the
said letter expressly refers to the Chicago Convention and to the conduct
of the Respondent as heing contrary to the principles contained therein.
But it is imoossihle to infer from this that the A..licant r-earded the Con-
vention as heing in force between India and Pakistao. It is most significant
to note that in thesame letter the Ap~licant also referred to the Convention
on Offences and Certain Other ~cts Committed on Board Aircraft, 1963
("the Tokyo Convention") and the Convention for the Suppression of
Unlawful Seizure of Aircraft, 1970 ("The Hague Convention"), to neither
of which was India or Pakistan ever a o. .v. This clearlv shows that India's
letrer was addrcsscd io the Council in rhc contexr of ils gencral functicins
and powers conccrning rafety in international civil aviation. and the reference
ta the Convention ai ucll 3s to the Tokyo and The Haguc Conventions
was merely Io indicate the norms of rcsponsiblc bchaviour against uhich
Pakirt3n's conduct fcll to be judgcd 1.
57. The Applicant denie; the Respondent's contention that even hy
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 treaties. The present Appeal
arises from the decision of the Council; and a challenge by means of an
appeal to the jurisdiction of the Council to hear Pakistan's Application
and Complaint cannot he construed as acquiescence on the part of India

in the continued operation of the said treaties as hetween India and Pakistan.

1See Memorial,pp. 58 and 59, supra. REPLY OF INDIA 425

E:. The Adrisory Opinion of the Internutional Court ofJustice
in the Keferenee re~irding Namibiu

(Counter-Mernorial, Paragraphs 45-48)

58. Tlicre ii no h.i\is fc>rthe argument of the Respondent thxt. according
to the Numihiu ca\c. onl) ü siipcrvisory poiiçr is c<impclcnt io terminüic J
treaty for material breach of obligations thereunder. and since the Aoolicdnt

does-not possessany such powersover Pakistan, it cannot unilateralfitermi-
nate the Convention and the Transit Agreement vis-à-vis Pakistan. The Court
has not laid down anv such qualification in regard to the right to terminate
or suspend a treaty on account of material brëach. The ~oirt categorically
asserted the general principle of law that the silence of a treaty as to the right

of termination cannot be interpreted as implying the exclusion of a right
which has its source outside of the treaty 1. The Advisory Opinion of the
Court in the Namibia case has, therefore, a direct and significant bearing on
the ooint of law which the Court is called uoon to decide in the mesent case.

Y. The Kc,pi>ndcnt rcferr io an <ih,cr\x;ic,n of Jiiilge Sir Cicr[ild ritlnisu-
rice whi~li .ippc.irs in.iI;~oiiioic in 11siiscnting opinitin in the .\'~~<i»~zh:se.
First. the Ao. .cant submits that the maior.tv o..nioo of the Court lavs down
iliçiorrcii I;i\r dnil hhould bc fulli>acil. Sccondl'. ilic oh>eri,~i.~in~of J.idsc
S.r Gcr.il,l I:.i7maiir1:c. tihich arc quoicd in p.ir:igr.ipli 47 <ifihr' Kc\p<)ndcnr'%

Counter-Memorial, do not express~anydissent on the point that the concepts
of termination and suspension of a treaty are distinct and different from the
concepts of interpretation and application of the treaty. Thirdly, even as-
sumina the said observations of Judae Sir Gerald Fitzmaurice are to be read
as disintitling a State to terminate or suspend a treaty. that would only go

to the validity of the termination or suspension, and would have no bearing
on the question whether the Council has thejurisdiction to pronounce on the
validity of or justification for the termination or suspension.

1 I.C.J. Reports 1971,p. 16at p. 47 CHAPTER VI1

INHERENT LIMITATIONS ON THE COUNCIL'S JURlSDlCTlON

A. Composition, Powers and Functions of the Council

60. The ADDlicant submits that the vital oint missed in the Resoondent's
counier-~emorial is that the Council has'inherent limitations on its juris-
diction, arising not only from the very words of the Convention and the
Transit Ag-eement conferrine - the iurisdiction but inherent in the verv
composition and character, duties and functions, of the Council. Ii is in-

conceivable that the contractinç States intended the Council. which is not
ex~ected to consisr of trained l&vers. ..iurists or.iud-.s. to decide~.uestions
of international law. to go inio the legal rights and wrongs of political con-
frontations between States. to decide whether the conduct ofa State was such
asto iustifv termination or sus~ension of a treatv t-v the State which is -o~cial-
. .
ly ariected by a material breach by another State, and to pronouncé upon
the validity ofa sovereign State's exercise of its right under international Iaw
to terminate or suspend a trcaty. Only a Court of International Law, duly
equipped and qualified to weigh the evidence in its legal aspect and to lay
down principles of international law, can deal with such disputes. The
Council is clearly not such a body. It performs extremely useful fiinctions in

its own area which is far reinoved rrom that of a Court of International Law.
61. In short. the inherent limitations on the Council's jurisdiction are
reiiected in its composition, ifs liinitcd powers and functions; and the limits
of its jurisdictionare enpressly circumscribed by the clear provision in the
Convention and the Transit Agreement that only disputes relating to "inter-
pretation" or "application" would be decided by the Council, or disputes

relating to "action under" the Transit Agreement.
62. The ver? points of international Iaw raised by the Respondent in its
Counter-Mernorial.-challenging the riçht of India to suspend the Convention
and the Transit Agreement,-themselves afford striking examples of the type
of questions of far-reaching signiiicance which arise when a sovereign Srate

chooses to enercise its rie-t iinder international law to terminar~ ~~ ~~ ~-~~.
a treaty. The Council is no[ at al1equipped to deal with the relative merits of
the rival submissions in international law made by the A~~licant and the
Respondent

B. lnterpretation of Article 84 of the Convention and Article II,

Section 2, of the Transit Agreement

63. Thc currect principlo of intcrprcttion of ;iirc.it). c,ufcrriiigjiiris-
dict~on un .In iniern.itii1nii1 hody hiivc bccn sci our in paragraphq IOU 1,)103

or the ~\pplicaiil'~ Mciiiori31. The Res~on<lcni has no! citcJ :in\ iiurhuritv
to refute the principles enunciated in those paragraphs. Tt is erroneous to
attempt to determine the Council's jurisdiction by reference to principles of
interpretation applicable for determininx the iurisdiction of the Permanent
Court of International Justice or the lnternatknal Court of Justice. ln any REPLY OP INDIA 427

event, even by reference to those principles of interpretation, the Council does
not have the jurisdiction claimed by the Res~ondent.
64.The ~pplicant submits that ihc cons~ruction of Article 84 of the Con-
vention. and Article II. Section 2. of the Transit Agreement. should be neither
narrow nor liberal but should be such a fair and proper interpretation as to
satisfy the principle of "strict proof of consent" laid down by Sir Gerald

Fitzmaurice, Le., the rule of exclusion of jurisdiction outside the scope of the
consent given by the contracting States 1.On a fair and reasonable con-
struction, the words "interpretation" and "application" cannot cover
"suspension" or "termination".
65. Reference may also be made to the principle of interpretation laid
down by the Permanent Court of International Justice in the case concerning
Polish Postal Service in Danzig that, "It is a cardinal principle of inter-
pretation that words must be interpreted in the sense which they would

normally have in their context, unless such interpretation would lead to
something unreasonable or absurd 2".This principle has been confirmed by
the InternationalCourt of Justice also 3.
66. ln short, no principle ofinterpretdtion, no case, no authority. no text-
book, citcd by the Respondent. supports its proposition thxt a body whose
jurisdiction is Iimitcd Io handling disputes relating to "interpretation" and
"application" of a trcaty is cntitled ro adjudicate upon disputes relating to
termination or suspension of the trciity. The citations and quotations in

paragraphs 49 Io 54 of the Counter-Memorial are nor relevant to the real
issuearising in this Appeal.
67. In paragraph 50 of the Counter-Memorial. the Respondent has
claimed that a "wide and liberal" interpretation should be put upon the
Convention and the Transit Aereement. The Annlicant is const~ai~ ~ to sav
that nothing short of misinterpretation would'be necessary to clothe thé
Tribunal with jurisdiction to decide disputes as to suspension or termination.
68. In oaraera~h 51 of the Counter-Memorial. the Resoondent has cited

cases on ihe meaning of the word "dispute" or "disagreekent". Those cases
are of no relevance to the present Appeal where the existence of a dispute or
disagreement is not denied, the only question being whether the dispute or
disagreement relates to interpretation or application of the Convention or the
Transit Agreement.
69. The observations of the International Court of Justice in the South
West Africa cases, 19624, relied upon by the Respondent are not apposite
to this Appeal. In that case, the Court was considering the scope of the
expression "any dispute whatever .. .between the Mandatory and another

Member of the League of Nations relating to the interpretation or the appli-
cation of the provisions of the Mandate.. .". The Court expressed the
opinion that "any dispute" to fall within the scope of Article 7of the Mandate
should relate to "the provisions" of the Mandate. In the present case the
suspension of the Convention and the Transit Agreement was dehors the
treaty and represented the exercise of a right under a well-settled rule of inter-
national law.

1 See Memorial,para. 101, pp. 57and 58, supra.
2 P.C.I.J., SeriesB.No. II,p.39.
3 Competence of the CenerolAssembly /or the Admissionofa Store ro the Unired
Nations,Advisory OpinionI ,.C.J. Reports 1950p. 4 a1p. 8.
4 I.C.J. Reports 1962,p. 343.428 ICAO COUNCIL

70. The case of Heyman v. Darwins ' has already been dealt with in para-
ma~h 83 of the Applicanl's Memonal 2. This decision really supports India's
- ~ ~ ~-~-~~~~...- shows how broad the iurisdiction clause should be in
order ta cover disputes regarding matters other than application or inter-
pretation. In Heyman's case. the Court was considering the scope of a very
widely drawn arbitration clause which read as follows:

"If any dispute shall anse between the parties hereto in respect of this
agreement or any of the provisions herein contained ..."

Viscount Simon, L.C., said in the above case,
"the governing consideration in every case must be the precise terms of
the lanauaac, in which the arbitration clause is frarned 3".
- -
71. The observations of Lord Wright in the case of Heyman v. Darwins
do not support the Respondent. Lord Wright's words 4, preceding those
quoted in paragraph 52of the Counter-Memorial. are:

"1 should prefer ta put it that the existence of his (arbitrator's) juris-
diction in this as in other cases is to be determined by the words of the
submission."
It may thus be seen that Lord Wright's observations support the view that the

jurisdiction of a forum depends upon "the words of the submission" to it.
72. The observations of MI. B. P. Sinha, referred Io hy the Respondent,
have been auoted out of context. These observations. apart from the fact
lhat the. donn.. . ...t theview that a auestion of termination or susuension
of a treaty is a question relating to its interpretation or application, occur in
Chauter 1of his book wherein he deals with the "Statement of the Problem".
~he-author's opinion on the question of unilateral termination of a treaty
for material breach has been cited by the Applicant in paragraphs 42 and 46
of its Memorial.

73. The Respondent has relied on the cases,-the Factory at Chorzdws,
Certain Germon Interests in Polish Upper Silesia6 and the Corfu Channel
case 7.The Applicant submits that these cases have no bearing at al1 on the
auestion of the limits of iurisdiction which fall to be considered in the uresent
case. Therefore, it is not necessary to discuss the facts of the said caies and
the principles laid down therein which have no direct or indirect relevance Io
this Appeal.
74. The Respondent has argued that the principle of "effective inter-
pretation applies also to jurisdictional clauses". The Applicant submitsthat

this orinciole is of no avail to the Res~ondent in the uresent case. Hersch
~auierpacht warns that a judge should not "conrcio"sly and deliberately
usurp the function of legislation". and adds that the principle of elïectiveness
"cannot be a substitute for intention; it certainly cannot claim to replace
it8". In other words the doctrine of effective interpretation cannot create a

1 119421All EnglandReports 337.
2 Sec Memorial,pp. 52 and 53. supra.
3 119421All Encland Rcoorts 337ai 0.344.
ibid.,pp. 353-and 354..
P.C.I.J., SerieA, No. 9.
6 P.C.I.J., SeriesA,No. 7.
7 I.C.J. Reports1949, p.4.
8 H. Lauterpacht. "Restrictive Interpretation and the Principleof Eiïativeness in
the Interpretation ofTreaties",BritishYear Baok of Intermiional ïaw, Vol. XXVI,
1949, p.48 at pp.83 and 84. REPLY OF INDIA 429

new title of jurisdiction, where it does not exist by virtue of the specific
jurisdiction clause in the treaty.

C. CornplaintUnder Section 1 of Article II of the
Transit Agreement

(Counter-Memoriol,Parogrophs56-58)

75. That Pakistan's Comolaint to the Council was incomoetent has been
demonstrated by the ~pplicant in paragraphs 86-91 of its ~emorial. The
Resoondent relies on the word "deems" in Section 1 of Article Il of the
~rahsit Agreement and contends that it connotes the "subjective satisfaction
of the aggrieved State". The correct position is that the word "deems" in
Section 1 of Article II of the Transit Agreement relates to the "injustice or
hardshio" asoect: it does not relate to the word "action". That "action" has
ben taien underihe Transit Agreementhas to be objectivelyestablished.
76. Termination or suspension of the Transit Agreement, or even a hreach
of the Transit ~ereement.-cannot he the subiect-matter of acomolaint under
Section 1 of u gicle Il. DI. Eugene ~epin; the then Director of the Legal
Bureau of ICAO, in reply to a question from the Chairman of the Working
Group nominated by the Council for preparing the Rules for the Settlement
of Differences, gave the following answer at the Working Group meeting on
14July 1952:

".. .in the Air Transport and Air Transit Agreementsthere is a case of
complaints which invilve not somcthing wr;ngly done in respect to the
provisionof the Convention but something donc in accordance or in pur-
suance to the orovisions of the Agreementsbut whichcauses hardshio or
injurtice to another Party. ~hcrcforI think there is a fundamental diffe-
rencc bctwcena disagrcemeni, which is 3omething contrary Io the Con-
vention, and a complaint which is something exactly pursuant to the
Convention but which causes injustice 1.''

1 Minutesof theWorkingGroup Meeting onRulesfor Settlementof Differmces,
14July 1952 (aftemoon). MANNER AND METHOD EMPLOYED BY THE COUNCIL
IN REACHINC THE DECISION

(Counter-Mernorial, Paragraph 59)

77. The Applioant reiterates thatthe manner and method employed by the
Council in reacbing its decision rendered the decision improper, unfair and
&re-udicial toIndia and badin law. for the reasons set out in oarauaohs 93 to
99 of the ~emorial. The points made out by the ~pplicant inth& para-
graphs have not been met in paragraph 59 of the Respondent's Counter-
Memorial.
78. The Applicant suhmits tbat, under Article 52 of the Convention, the

Council would have to observe the requirement of approval by a majority
of the total number of its members for anv decision taken. even where. in
accordance with Article 66 (bl of thc Convention, somc'of the ~ouncil
Mcmbcrs did not have the right to vote because they had not accepted the
Transit A~recrnent. This ~osition of the Amlicant 1has bcen clarificd in a
~cmoran&m oi 10 ~ugust 1971 submitied by the Secretary-General of
ICA0 to the Reoresentatives on the Council 2. The Prcsidcnt of the Council
also reoeatedlv maintained 3that a statutor...aioritv of 14votes is necessarv
for an; dccision of the Council, since there are 27 members of the Council
as itis constituted at present. The Applicant reiteratcsthat the decision of the

Cuun~il in regard to Pakistan's Complaint was supported by 13 mernbcrs
only 4. whereas the minimum number required to constituie a majority of the
members of the Council is 14; and hence the decision was invalid in law.
79. The decision of the Council wds further vitiûted by the fact that the
propositions put to vote 5in respect of Pakistan's Application and Cornplaint
were neither introduced nor seconded by any member of the Council as
rcquircd in Rules 41 and 46 of the "Rules of Procedure for the Council6".

1 See Memorial,para. 93(21,p. 55, supra.
2 SeeAnnexD to this Reply,p. 451,infra.
3SeeAnnex E to this Reply,p. 453,infro,and Mernorial,pp. 264and 276,supra.
4 SeeMernorial,paragraph 6, p. 268, supra. The staternentsin the Respondent's
Countcr-Mernorial,p. 393,supra,regardingthe numberof votesin favour of Pakistan
are inaccurate.
5 SeeMernorial,pp. 267-268,278.279,282-283,286287, supra. The President of
the Councilwhoput the propositionsto vote isnota memberof the Council,and no
one semnded the propositions.
6See Annex F to this Reply. p. 455,infia. RKPLY OF iNDlA

CHAPTER IX

80. Upon the basis of the statements of fact and law in the Applicant's
Memorial, supplemented by those set forth herein or which may subsequently
be made before this honourahle Court, the Applicant respectfully reiterates
its prayer that the Court adjudge and declare in accordance with, and on the
basis of, the Statement of Claim set forth in Chapter VI11of the Memorial,
which Statement of Claim is hereby reaffirmed and incorporated by reference
herein.

(Signed) Lt. General YADAVINDRSA INGH,
Ambassador of India at The Hague,
Agent of the Government of India.

The Hague, 17 April 1972. BOOKS AND ARTICLES

A. BOOKS

1. Aircrafl Manual-A Compilation of the Legislotion and Rules Governing
Civil Aviation in Pakistan, 1966.
2. B. P. Sinha. UnilateralDenunciarionof Treaty Becauseof Prior Violationsof

Obligationsby OtherParty, 1966.

B. ARTICLES

H. Lauterpacht, "Restrictive Interpretatiand the Principleof Eliectiveness
in theInterpretationof Treaties",British Year Book of InternationalLaw,
Vol. XXVI, 1949, p. 48.

TABLE OP CASES CITED

1. Corfu Channel,Merits. Judgment, I.C.J. Reports 1949. p. 4.
2. Competence of the General Assembly for the Admission of a State to the

United Nations, Advisory Opinion, I.C.J. Reports 1950, 4.
3. Temple of Preah Vihear. Merits, Judgment, I.C.J. Reports 1962, 6.
4. South W$ Africa. Preliminary Objections.Judgment, I.C.J. Reporrs 1962,
o. 319.
5. iegal Consequencesfor States of the ContinuedPresence of South Africa in
Namibia (South West Africa) notwithsfanding Security Council Resolurion
276 (1970), Advisory Opinion. I.C.J. Reports 1971. p. 16.

B.PERMANEN C7URT OP INTERNATIONAL lUSTICE

1. Polish Postal Service in Danzig, Advisory Opinion, 1225, P.C.I.J., Series
B. No. II.
2. Interpretation of Article 3. Paragraph2, of the Treaty ofLausanne, Advisory

Opinion,1925,P.C.I.J., Series B. No. 12.
3. Certain German Interests in Polish UpperSilesia, Merits, Judgment No. 7,
1926, P.C.I.J., Series A. No. 7.
4. Factory or Chondw, Jurisdiction, Judgmenf No. 8, 1227, P.C.I.J., Series
A. No. 9.

C. OTHER

Heyman and Another v. DarwinsLtd. [1942]All EnglandReports337. ANNEXES TO THE REPLY SUBMITI'ED

BY THE GOVERNMENT OF INDIA

OOVERNMENT OF INDIA AERONAUTICAL INFORMATION
CIRC~LARS,NOS. 2711965AND 811966

Phone: 70401169

Telegraphicddress:-
Aeronautical :VIDDYA
Commercial : AIRCIVIL
NEW DELHI

GOVERNMENTOF INDlA
AERONAUTiCALINFORMATION ClRCULAR

No. 2711965

Attention of al1concerned is invited to Notification No. G.S.R. 1299dated
the 6th September,965115Bbadra, 1887issued hy the Government of India,

Ministry of Civil Aviation, reproduced helow:-

New Delhi,

8 Seplember,1965 R. N. KATHIU
17 Bhadra 1887 (Saka) Director General of Civil Aviation

No. 2711965 (1/1/65-GR)

GO~RNMENT OF INDIA
MINISTRY OF CIVIL AVIATION

Dared, New Delhi-2,lh6fhSepteniber,1965
15 Bhadra, 1887

NOTIFICATION

G.S.R. 1299.-WHEREAS the Central Government is of opinion that
in the interests of the public safety and tranquillity the issue of an order under
clause (b) of suh-section (1) of section 6 of the Aircraft Act, 1934(22 of 1934),
is expedient :
Now, THEREFORE in, exercise of the powers conferred hy'c(b)sof

sub-section (1) of the said section 6, the Central Govemmenthereby directs
that no aircraft registeredPakistan or belonging to or operated hy the
Govemment of Pakistan or persons who are nationals of Pakistan shall be
flown over any portion of India.
V. SHANKAR,SsY. Phone: 70401169
Telegraphic Address:-
Aeronautical: VIDDYA
Commercial: AIRCIVIL
NEW DELHI

OOVERNMENTOF INDIA
AERONAUnCAL INFORMATIONCIRCULAR

No. 811966

Attention of al1wncerned is invited to Notification No. G.S.R. 239 dated
10th February, 1966121Magha, 1887 issued by the Government of India,
Minishy of Transport and Aviation (Department of Aviation), reproduced

bcl0w:-
This is to bc rad with A.I.C. No. 2711965.

New Delhi,

21 February1966 B. M. OUPTA
2 Phalguna1887 (Saka) Director General of Civil Aviation

No. 811966 (1/1/65-GR)

GOVERNMENTOF INDIA
MINISTRYOF TRANSPORTAND AVIATION
(Department of Aviation)

New Delhi, the 10th February.1966
21 Magha, 1887.

NOTIFICATION

G.S.R. 239.-Whereas the Central Government is of opinion that in the
interests of the public safety and tranquillity it isnecessary so to do:

Now, THEREFORE. in exerciseof the powers conferred by clause (b) of
sub-section (1) of section 6 of the Aircraft Act, 1934(22 of 1934)the Central
Government hereby makes thefollowing amendment to the notification of the
Governent of India in the late Minishy of Civil Aviation No. GSR 1299
dated the6th September. 1965,namely:-
In the said notification, after the words "any portion of India", the follow-
ing words shalbe inserted, namely:-

"except with the permission of the Central Government and in accor-
dance with the terms and conditions of such permission."
(F. No. 21-A/4-66)

V. SHANKAR,
Secretary. GOVERNMEN TF INDIA AERONAUTICAL INFORMATION
CIRCULARS:URRENTAS ON1MARCH 1970AND
1JANUARY1971

GOVERNMEN OF INDIA
Aeronautical Information Service
Director General of Civil Aviation
R. K. Puram, New Delhi-22.

Telegraphic Address: No. 311970
Aeronautical:IDDYA 1 2nd March. 1970 1
Commercial: A~RCML
11 Phalguna, 1891 (Saka)
NEW DELHI

THE FOLLOWMG CIRCULAR 1S HEREBY PROMULGATED
FOR INFORMATION. GULDANCE AND NECESSARY ACTION.

G. C. ARYA
Director General of Civil Aviation

AERONAUTICAL INFORMATION CIRCULARS: CURRENT
AS ON IST MARCH 1970

NUMBER

STRUCTURE OF AIRCRAFT WHILE
FLYING IN TURBULENT WEATHER.
YEAR 1961

3 25-2-1961 SAFDARJUNG AIRPORT-NEW DELHI.
22 18-9-1961 CHAKULIA AERODROME.
36 18-12-1961GAYA AERODROME.436 ICAO COUNCIL

NUMBER DATE TITLE

18 CORRIGENDA TO AERONAUTICAL
INFORMATION CIRCULAR NO. 3 OF
1961.

1962 (NEW
SERIES)

14 NOTIFICATION - PROHIBITION OF
FLIGHTS - PEOPLE'S REPUBLIC OF
CHINA (G.S.R. 1637).

YEAR 1963
3 FORCED LANDINGS.

8 MEDICAL EXAMINATION FOR THE
ISSUE AND RENEWAL OF FLIGHT
CREW LICENCES.

YEAR 1963

VISHAKHAPATNAM AERODROME

BHOPAL AERODROME.

BHUBANESHWAR AERODROME.

BHUJ AERODROME.
KANDLA AERODROME.

LUCKNOW AERODROME.

VARANASI AERODROME.

CUSTOMS EXAMINATION OF GOODS
EXPORTED BY AIR.

PATNA AERODROME.
1 BEGUMPET AERODROME.

TRWANDRUM AERODROME.

GAUHATI AERODROME.

AURANGABAD AERODROME.

UDAIPUR AERODROME.
MADURAI AERODROME.

MANGALORE AERODROME. REPLYOFINDIA 437

NUMBER DATE TITLE

MUZAFFARPUR AERODROME.
COMPLIANCE OF THE LAWS OF
OTHER STATES BY AIR-CRAFT
REGISTERED IN INDIA.
WAYAWADA AERODROME.

PARKING OF AIRCRAFT.
PROVISION OF ARTIFICIAL HORIZON
ON TRAINING AIRCRAFT.
AGARTALA AERODROME

COIMBATORE AERODROME.
CORRIGENDA TO AERONAUTICAL
INFORMATION CIRCULARS ON
AERODROMES.
TECHNICAL EXAMINATION FOR
FLlGHT CREW (PILOT'S &
NAVIGATOR'S LICENCESIRATINGS).
NOTIFICATTON- PROHIBITION OF
FLlGHwPAKISTAN (G.S.R. 1299).

1 20-1-196/BHAUNAGAR AERODROME. 1

25-1-1966 AINFORMATION CIRCULARUNO.22
1 / OF 1965,

NOTIFICATION- PROHIBITION OF
FLIGH-PAKISTAN (G.S.R. 239).
22-2-1966GROUND WEATHER EQUlPMENT
AVAlLABLE AT AERODROMES AND
WEATHER RADAR SERVICESPRO-
ViDED FOR AIRCRAFT.
6-6-196/ NOTIFlCATiON OF ACCIDENTS.
1 I
REQUISITTONS FOR SPECIAL
WEATHER FORECASTS FOR NON-
SCHEDULED FLIGHTS. DATE 1 TlTLE

13-7-1966 SAFETY PRECAUTIONS WHILE USING
NAVAL AERODROME-COCHIN.

28-6-1966 BlRD STRIKES ON AIRCRAFT- PRE-
CAUTIONSTO BE TAKEN BY PILOTS
-SUBMISSION OF INFORMATION
IN STANDARD FORM.

28-9-1966 POSITION REPORTS.
27-10-1966CORRIGENDA TO AERONAUTICAL
INFORMATION CIRCULAR NO. 15
OF 1963 ON VISHAKHAPATNAM
AERODROME.

27-10-1966CORRIGENDA TO AERONAUTICAL
INFORMATION CIRCULAR NO. 25
OF 19640N MADURAIAERODROME.
CORRIGENDUM '10 AEROSAUTICAL
INFORMAI ION CIRCULAR NO. 4 OF
1966ON BHAVNAGAR AERODRO.UE.

20-1-1967 BELGAUM AERODROME.
13-3-1967 TREND TYPE LANDING FORECASTS.

10-4-1967 CORRIGENDUM TO AERONAUTICAL
INFORMATION CIRCULAR NO. 9 OF
1966.

4-4-1967 HlGH RADIO MASTS IN INDIA

15-12-1967NOTIFICATION (G.S.R. 1851).
ACCEPTANCE OF DATE AND PLACE
OF BlRTH PARTICULARS.

AIRMISS REPORTING PROCEDURE.

USE OF IAF AND NAVAL AERO-
DROMES BY CIVIL AIRCRAR.

NOTIFICATION (G.S.R. 1926)
RESTRICTIONS OF FLYING lNTO OR
OVER CERTAIN AREAS OF NORTH-
EAST INDIA.

20-3-1968 AVOIDANCE OF FIRE HAZARD-
FUELLING NEAR JET AIRCMFT.
I REPLY OFINDIA 439

DATE TITLE
NUMBER

-1968
20.5-1968 AERODROMES AVAlLABLE FOR CIVIL
11
USE.
15 4-9-1968 INDIAN AIRCRAFI MANUAL.

19 12-8-1968 AMENDMENT TO PARAGRAPH I(d)OF
SECnON K OF SCHEDULE IITO THE
AIRCRAFT RULES, 1937(G.S.R. 1392).

21 18-6-1968 PROCEDURE IN CONNECnON WITH
FLIGHTS TO, WITHIN OR OVER
INDIA BY FOREIGN AVIATORS.

24 23-11-1968 CEILOMETER INSTRUMENT AT IN-
TERNATIONAL AIRPORTS-BOM-
BAY, CALCUTïA AND MADRAS.

25 25-11-1968 ALTIMETER SElTING FOR LANDING
PURPOSES.

27 30-11-1968 MINIMUM FUEL AND OIL TO BE
CARRIED BY AEROPLANES BEFORE
COMMENCEMENT OF FLIGHTS.

28 24-12-1968 NOTIFICATION-AMENDMENT TO
AIRCRAFI RULES, 1937(G.S.R. 2147).

-969

1 6-1-1969 AVIATION WEATHER CODES.

4 31-3-1969 NOTIFICATION- ADDITION OFRULE
78-8, TO THE NRCRAFT RULES, 1937
(G.S.R544).
NOTIFICATION - AMENDMENT TO
5 2841969
CLAUSE (b) OF PARAGRAPH 3 OF
SECTIOND OF SCHEDULE II TO THE
AIRCRAFï RULES 1937(G.S.R. 182).
NOTIFICATION - AMENDMENT TO
7 145-1969
CLAUSE (a) OF PARAGRAPH 4 OF
SEmION M OF SCHEDULE II TO THE
AIRCRAFï RULES, 1937(G.S.R. 1045).
STORM DETECTION RADAR-BEGUM-
8 24-6-1969
PET AIRPORT.
9 8-7-1969 AERONAUTICAL INFORMATION PUB-
LICATION (SECOND EDITION) AND
ITS AMENDMENTS NO. 1 TO 7-
SALE OF.

11 4-7-1969 CONDITIONS GOVERNING THE USE
OF GOVERNMENT OWNED AERO-
DROMES IN INDIA. 440 ICAOCOUNCIL

NUMBER DATE TITLE

1969
-
12 21-7-1969 NOTIFICATION (G.S.R.370).
13
22-7-1969 PRECISION APPROACH RADAR (PAR)
EQUIPMENT AT BOMBAY AIRPORT.
14 31-7-1969 METEOROLOGICAL PROCEDURES
FOR PILOTS.

15 14-8-1969 PARTIAL AMENDMENT TO A.I.C. NO.
II OF 1968.
16 15-12-1969REGULATION AND CONTROL OF
AERONAUTICAL INFORMATION.

18 31-12-1969NOTIFICATION-CUSTOMS (G.S.R.
1910).
19 31-12-1969
MPROCEDURES IN AIRCNAVIGATION
SERVICES.

AIRCRAm RADIO EQUIPMENT.

11-2-1970 AIRCRAFï RADIO MAINTENANCE
1 ENGINEERl LICENCE.

CIRCULARS NOT INCLUDED IN THIS LIST HAVE EITHER BEEN
CANCELLED, SUPERSEDED BY FURTHER CIRCULARS, INCORPORATED
IN A.I.P. INDlA OR ARE CONSIDERED TO HAVE BEEN SUFFICIENTLY
PROMULGATED. REPLY OP INDIA

GOVERNMEW OFINDIA
Aeronauticûl Information Service
Director General of Civil Aviation
R. K. Puram, New Delhi-22.

Phone: 795011252 No.'1/1971
Telegraphic Address:
Aeronautical: VIDDYA 15January. 1971
Commercial : AIRCIVIL
25 Pausa, 1892 (Saka)

THE FOLLOWING CIRCULAR IS HEREBY PROMULGATED FOR
INFORMATION. GUIDANCE AND 'NECESSARYACTION.

G. C. ARYA

Director General of Civil Aviation

AERONAWïCAL INFORMATION CIRCULARS: CURRENT AS ON
1ST JANUARY 1971

NUMBER

YEAR 1961

YEAR 1962
(OLD SERIES)
17 28-6-1962 NOTIFICATION OF FLIGHT, FLIGHT
PLAN, AIR TRAFFIC CLEARANCE
AND ARRIVAL REPORT.

(NEW SERIES)
14 5-12-1962 NOTIFICATION - PROHIBITION OF
FLIGHTS -PEOPLE'S REPUBLICOF
CHINA (G.S.R. 1637).

YEAR 1963
3 1341963 FORCED LANDINGS.

8 31-7-1963 MEDICAL EXAMINATION FOR THE
ISSUE AND RENEWAL OF FLIGHT
CREW LICENCES.442 [CAOCOUNCIL

NUMBER DATE

YEAR 1963

15 14-9-1963 VISHAKHAPATNAM AERODROME.
17 26-11-1963 BHOPAL AERODROME.

AR 1964

1 1-1-1964 BHUBANESHWAR AERODROME.
4
2-1-1964 BHUJ AERODROME.
5 1-1-1964 KANDLA AERODROME.

7 2-1-1964 VARANASI AERODROME.

14 8-2-1964 PATNA AERODROME.

16 4-2-1964 BEGUMPET AERODROME.

18 19-5-1964 TRIVANDRUM AERODROME.
22
4-8-1964 GAUHATI AERODROME.
23 19-8-1964 AURANGABAD AERODROME.

24 19-8-1964 UDAIPUR AERODROME.

25 19-8-1964 MADURAI AERODROME.

30 20-10-1964 MANGALORE AERODROME.

YEAR 1965

2 11-1-1965 MUZAFFARPUR AERODROME.

5 11-1-1965 VUAYAWADA AERODROME.
6
8-2-1965 PARKING OF AIRCRAFT.
7 6-2-1965 PROVISION OF ARTIFlCIAL HORIZON
ON TRAINING AIRCRAFT.

16 26-2-1965 AGARTALA AERODROME.

19 16-2-1965 COIMBATORE AERODROME.

20 14-4-1965 CORRlGENDA TO AERONAUTICAL
INFORMATION CIRCULARS ON
AERODROMES.

22 18-5-1965 TECHNICAL EXAMPJATION FOR
FLIGHT CREW (PILOT'S AND NAVI-
GATOR'S LICENCES/RATINGS).

27 8-9-1965 NOTIFlCATION - PROHIBITION OF
FLIGHTS - PAKISTAN (G.S.R. 1299). REPLYOFINDIA 443

NUMBER DATE 1 TlTLE I

I
YEAR 1965
36 PREGARDING AFUELLING AND DE-
i FUELLING OF AIRCRAFT, FIREAND
GENERAL SAFETY.

YEAR 1966
l BHAUNAGAR AERODROME.
AMENDMENT TO AERONAUTICAL
INFORMATION ClRCULAR NO. 22
OF 1965.

NOTIFICATION - PROHIBITION OF
FLIGHTS - PAKISTAN (G.S.R. 239).
REQUlSlTIONS FOR SPECIAL
WEATHER FORECASTS FOR NON-
SCHEDULED FLIGHTS.

SAFETYPRECAUTIONS WHILE USING
NAVAL AERODROME - COCHIN.
BIRD STRIKES ON AIRCRAFT -PRE-
CAUTIONSTO BE TAKEN BY PILOTS
-SUBMISSION OF INFORMATION
IN STANDARD FORM.

POSITION REPORTS.
CORRlGENDA TO AERONAUTICAL
INFORMATION CIRCULAR NO. 15
OF 1963 ON VISHAKHAPATNAM
AERODROME.
CORRIGENDA TO AERONAUTTCAL
INFORMATTON CIRCULAR NO. 25
OF 1964ON MADURAI AERODROME.

CORRIGENDUM TO AERONAUTICAL
INFORMATION CIRCULAR NO. 4 OF
1966ON HIIAUNAGARAERODROME.

BELGAUM AERODROME.

HIGH RADIO MASTS IN INDIA.
NOTIFICATION (G.S.R. 1851).

ACCEPTANCE OF DATE AND PLACE
OF BlRTH PARTICULARS.

NOTIFICATION (G.S.R. 1926).

AVOIDANCE OF FIRE HAZARD -
FUELLING NEAR JET AIRCRAFï. NUMBER DATE TITLE
1 I
1YEAR ::68 ,120-5-1968AERODROMES AVAILABLE FOR CIVIL
1 USE.
I 15 / 4-9-1961INDIAN AIRCRAFI. MANUAL. I
NOTIFICATIO- AMENDMENT TO
THE AIRCRAFRULES, 1937 (G.S.R.
1392).
PFLIGHTSTO, WITHINOR OVERH
INDIA BY FOREIGN AVIATORS.
25-11-196ALTIMETER SETTING FOR LANDiNG
1 25 I l PURPOSES.
24-12-1968TIFICATION AMENDMENT TO
2147).RCRAFRULES, 1937 (G.S.R.

YEAR 1169 AVIATION WEATHER CODES.
4 NOTIFICATIO- AMENDMENT TO
THE AIRCRAFT RULES, 1937(G.S.R.

NTHE AIRCRAFT RULES. 1937(G.S.R.
182).
NOTIFICATION AMENDMENT TO
THE AIRCRAFïRULES, 1937(G.S.R.
1045).
ALICATION (SECONDITION) ANDB-
ITS AMENDMENTS NO.t7SALE
OF.
CONDITIONS GOVERNINTHE USE
DROMES 1N INDIA.NED AERO-

1 12 / 21-7-191NOTIFICATION (G.S.R. 1370).I
13 PREQUIPMENT AT BOMBAYRPORT.AR)
l
15 14-8-196PARTIAL AMENDMENT TO A.I.C. NO.
1 1 ( IlOFl968.
18 1 31-12-1(1910).CATIO- CUSTOMS (G.S.R.
1 REPLYOFINDIA 445

NUMBER 1 DATE 1 TiTLE 1

YEAR 1969
19 31-12-1969METEOROLOGICAL PRACTICES AND
SERVICES.S IN AIR NAVIGATTON

AIRCRAFT RADIO EQUIPMENT
AiRCRAFT RADIO MAINTENANCE
ENGINEER'S LICENCE.
NOnFICATlON - AMENDMENT TO
THE AIRCRAFT RULES, 1937(G.S.R.

AERONAUTICAL INFORMATION PUB-
LICATION (SECOND EDITION) AND
ITS AMENDMENTS NO. 8 TO II-
SALE OF.
NOTIFICATION - AMENDMENT TO
THE AlRCRAFT RULES, 1937(G.S.R.

NOTIFICATION-AMENDMENT TO
THE AiRCRAFT RULES, 1937(G.S.R.

NOTIFICATION-AMENDMENT TO
THE AIRCRAFT RULES, 1937(G.S.R.

RESTRlClïONS OF FLnNG INTO OR
OVER CERTAIN AREAS OF NORTH-
EAST INDIA.
NOTIFICATION-AMENDMENT TO
THE AIRCRAFT RULES, 1937(G.S.R.

VISUAL APPROACH SLOPE INDICA-
TOR SYSTEM (VASIS) AT BOMBAY.
CALCUïTA AND DELHI AIRPORTS.
MINIMUM FUEL AND OIL TO BE
CARRIED BY PUBLIC TRANSPORT
AlRCRAFT BEFORE COMMENCE-
MENT 0F.FLIGHTS.

EXCESSIVE LOADING OF AIRCRAFT
STRUCTURE WHILE FLYING IN
TURBULENT WEATHER AND TUR-
BULENCE IN THE WAKE OF AIR-
CRAFï.
NOTIFICATION-AMENDMENT TO
THE AIRCRAFT RULES, 1937(G.S.R.
1009).
SAFDARJUNG AERODROME.
NOTIFICATION-AMENDMENT TO
THEAIRCRACFTRULES. 1937(<i.S.R.
1198).-

NUMBER DATE TITLE

YEAR 1970

REGULATION AND CONTROL OF
AERONAUTICAL INFORMATION.

PREDETERMINED DISTRIBUTION
SYSTEM FOR NOTAM CLASS 1.
GROUND WEATHER RADAR EQUIP-
MENT AVAILABLE AT AERODRO-
MES AND WEATHER RADAR SER-

VICES PROVIDED FOR AIRCRAFT.

CIRCULARS NOT INCLUDED IN THIS LIST HAVE EITHER BEEN
CANCELLED, SUPERSEDED BY FURTHER CIRCULARS, INCORPORATED
IN A.I.P. INDIA OR ARE CONSIDERED TO HAVE BEEN SUFFICIENTLY
PROMULGATED. Annex C

NOTES ON ARTICLE 86 OF THE CHICAGO CONVENTION RELATING TO APPEALS

FROM DECISIONS OF THE COUNCIL-A WORKING PAPER PRESENTEO BY THE
SECRETARY GENERAL OF THE INTERNATIONAL CIVIL AVIATION ORGANIZATION~

INTERNATIONAL CIVIL AVIATION ORGANIZATTON

COUNCIL-SE VENTY-FOURTH SESSION

SubjecrNo. 27: Convention on International Civil Aviation

(Chicago Convention)

NOTES ON ARTICLE 86 OF THE CHICAGO CONVENTION RELATINC
TO APPEALS FROM DECISIONS OF THE COUNCIL

(Presented by the Secretary General)

References; 1. President's Memorandum LE 611, LE 612 of 16 August
1971

2. Doc 7782

3. Doc 730014

4. Proceedingsof the International Civil Aviation Conference
(Chicago, Illinois,I November-7 December 1944), Vols.
1and II

5. Doc 7500

Inrroducrion

1. In his Memorandum LE 611, LE 612of 16 August 1971, the President
of the Council referred (in thefirst paragraph on p. 2) to the question of
suspension of the Council decision against which an appeal is made. Subse-
quently, some Ropresentatives on the Council requested the President andthe
Secretary General for a Council working paper on the interpretation of
Article 86 of the Chicago Convention.

1.1 This paper has been prepared in response to those requests.

Drafiing hisroryof Articl86

2. The original proposal which was presented to the International Civil
Aviation Conference (Chicago, I November-7 December 1944) and which
eventually, after several modifications, became the present Article 86 of the

1 RepmduŒdfrom ICA0 DOC. C-WPtS433,dated 9-9-1971.448 ICAO COUNCIL

Chicago Convention will be found in Article XV. Section 3. of the oro~nsal
jointlysubmitted by the Delegations of the ~nited States'of ~m&ica, the
United Kingdom and Canada (Chicago Document 358); the text of the draït
was: -

"SECTION 3
A decision of the Board shall remain in effect until reversed on appeal
or by agreement between the parties. The decision of the Permanent
Court or of an arbitral tribunal shabe final and binding."

(See: Proceedingsof the Internarional Civil Aviation Conference, Chicago,
Illinois, 1 November-7 December 1944, Vol. 1, p. 427.)
2.1 This proposal was considered at the second meeting of the Joint
Subcommittee of Committees 1, III and IV and was referred to the Drafting
Committee for further study, in consultation with the Cornmitte of Legal
Advisers. (Ibid.p. 472.)
2.2 The Drafting Committee of the Joint Subcommittee of Committees 1,
III and IV redrafted the text to read:
"SECTION3

Unless the Council decides otherwise, its determination shall remain
in effect until reversed on a~peal. The decisioni of the Permanent Court
or of an arbitral tribunal shabefinal and biding."
(Document 402, ibid.p. 415.)
2.3 The redrafted text mentioned in paragraph 2.2 above was considered
at thefourthmeetineof the JointSubcommitteeof Committees 1. III and IV.
At that meeting the Representative of Uruguay proposed that'~rticle XV,
Section 3, be amended soas to suspend the execution of thejudgment of the
Council if one Dartv desires to ao~eal. The Reoresentative of Cuba ur~ed that
the proposalÏhf Uruguay be adopted and argued that a soverei& State

should not be denied the rights which an ordinary citizen gets before an
ordinarv court. The Reoresentative of Af-hanistan and Liberia su..orted the
viewsof Uruguay and cuba.
The Representative of Canada argued that a typical dispute would involve
comolaint bv countrv A of a violation bv an airline of countrv B which.
even though a maj&ity of the Council declared in the wrong; would go
unpunished for an indefinite period under the formula proposed by Uruguay
and Cuba.
After discussion, it was finally agreed to refer Sections3 and 4 to the
Drafting Committee, with the substance of Section 3 unchanged.
(Document 420, ibid.pp. 480-481.)
2.4 The Drafting Committee thereafter redrafted Section 3 of Article XV
as follows:
"SECTION 3

Unless the Council decides otherwise, any decision by the Council on
whether an international airline is operating in conformity with the
provisions of this Convention shall remain in effect unless reversed on
appeal. On any other matter, decisions of the Council shall, if appealed
from, be suspended until the appeal is decided. The decisions of the
Permanent Court of International Justice or of an arbitral tribunal shall
be final and binding."
(Document 422, ibid.pp. 401-402.)
2.5 Article XV as redrafted was then approved at the fifth meeting of the REPLY OF INDIA 449

Joint Subcommittee of Committees 1, 111 and IV and thereafter remained
unchanaed and its Section 3 eventually became Article 86 of the Convention

as signe> at Chicago on 7 December 1944.

Conclusions ro be drawnfrom the drafiing hisrory of Article 86

3. The drafting history of Article 86 of the Chicago Convention explains
why the first sentence of that Article specifically relates to a decision of the
~ouncil "on whether an international airline is deratine in conformitv with
the provision of this~onvention" and why adecision of fhe ciuncil on such a ~~~-

question "shall remain in effect unless reversed on apwal"; no doubt this
wording was accepted to meet the concern of the~canadian Delegation
mentioned in paragraph 2.3 above.
3.1 The drafting history of Article 86 also explains why "on any other
matter". namelv. other than the ouestion whether an international airline
isoperating in7ionformity with tie Convention, decisions of the Council
shall, ifappealed from, be suspended until the appeal is decided; this wording,

obviously, was adopted in response to the arguments of the Delegations of
Uruguay, Cuba, Afghanistan and Liberia mentioned in paragraph 2.3
above.

Interpreration of rhe second sentence of Article 86

4. ,a, "On anvot,er matter": Occurrine. as i~-.~~s. in~~.aoter XVIII of- --~ -~
the Convention, the expression quoted denotes only such matters as relate to

a decision of the Council rendered under Article 84.The words "other matter"
have the effect of excluding the matter specified in the preceding sentence
which relates only to the case of an international airline operating in contra-
vention of the Convention. The drafting history of Article 86 shows the
reason for the distinction made between cases covered by the first sentence of
the Article and "any other matter" found in the second sentence.
(b) "decisions of the Council": There are no qualifying words which
would exclude any particular class of decision 1.The legislative history of

Article 86reveals no such distinction.
(c) "Shall, if appealed from, be suspended until the appeal is decided":
The words "if appealed from" denote a fact, namely whether or not an appeal
has been filed. The words "shall ... be suspended" are imperative, so that
the Council's decision is ipsofacto suspended during the pendency of the
appeal. The decision appealed from would confer no right on any of the
parties to the dispute and would not begiven effect, during the pendency of
the appeal, namely "until the appeal is decided".

1 For example,the decisionmay be oneaffinningor ncgatingthejurisdictionof the
Councilina particular matter: seethewords"shalldecidethequestion"inArticle5 (4)
of the Rules for the Settlementof Differences, Doc. 7782. Article 15of those Rules
refers to a decision of the Council subsequent to arguments or consideration of a
report of a mmrnittee. Again, the Council rnay take a decision without hearing
arguments:for example,underArticle16.Theremay bealsoa decisionof the Council
underArticle 19 (4)in favourofor axainstthe admissionof an intervention.Article 23
alro provide5that ihe Councilshal~'formally decide" the caiegoryof a givencom-
plaint.Amin. a decicionmay be taken by the CouncilundcrArticle 28(2), i.e.. "aftcr
hcaringobjeciions".This Iistolacis whichuould constituiea decisionof th? Council450 ICAO COUNCIL

Distinctionbetween cases of "disagreements"and those of "complaints"

5. The foregoing observations apply to cases govemed by Chapter XVIII
- -the Chicae- Convention. namelv. c. .s of disaereement between narties to
that Convention or parties to the International Air Services ~raniit ~gree-
ment as to the internretation or application of the provisions of either of
those instruments cohcerned. Section 2 of Article II of the Transit Agree-
ment specifically mentions Chapter XVIIl of the Chicago Convention.
5.1 Section 1of Article II of the Transit Agreement makes no reference to

C--nter XVIII of the Chicaeo Convention. The auestion mieht therefore
ariseas to whether in the caseof a "complaint" broight under that Section 1
the second sentence of Article 86, which forms a part of Chapter XVIII of the
C-~caeo Convention. would a~nlv. This noint is~considered~below.
5.2 'Assume that in the case'concerned there is no other elemcnt present
excepta complaint of injustice or hardship under Section 1of Article II of the
~ransit ~greement, in other words-
(a) the scheduled intcrnation3l air services of the complliinant State are nor
denicd the privileges of ilight across the territory of the respondent State
without landing and of landing therein for non-haffic purposes;

(b) however, the territorial State either-
(1) insists, under Section 2 of Article 1ofthe Agreement. on compliance
with what it alleges to be certain provisions of the Chicago Conven-
tion, or
(2) requires the complainant's airlines, under Section 3 of said Article 1
"to offer reasonable commercial service", the reasonableness of
which is questioned by the complainant State, or
(3) has designated, under Section 4 of Article 1, such a route to be
followed as is said to cause injustice or hardship to the airline, or

(4) under Section 5 of Article 1,has withheld or revoked a certificate or
nermit.
5.3 Each of the foregoing acts of the territorial State would constitute,
under Section 1 of Article 11of the Transit Agreement, an "action. .. under
this Ameement". However. it cannot be denied tbat a comvlaint in reswt of
any of the foregoing matt&s is cssentially a complaint 01 misapplication of
the Agreement and consequently is a case of"disagrecment . . relating Io the
interpretation or application" of the Agreement and would. in any event,
fall under Section 2 of ArticleII of the Transit Agreement. The case may also
raise a question of interpretation or application of that provision itself,
namely, Section I of that Article 11. It follows that, as specified in that

Section 2, the provisions of Chapter XVIII of the Chicago Convention shall
be applicable even in a case brought solely under Section 1 of Article II of
the Transit Agreement, e.g., a case described in paragraph 5.2 above. This
means that the second:sentence of Article 86 which is in that Chapter will
govem the case if an appeal is made against a decision of the Council. REPLY OP INOlA 451

MEMORANDUM OF 10 AUOUST 1971 SUBMI~D BY THE SECRETARY GENERAL OP
THE INTERNATIONAL CIVIL AVIATION OROANIZATION TO REPRESENTATIVES ON THE
COUNCIL ON THE SUBIECT OF VOTlNG IN THE COUNCIL ON DISAGREEMENTS AND
COMPLAINT BSROUGHT UNDER THE RULES EOR THE SETILEMENT OP DIFPERENCES

INTERNINTERNATIONAL AVIATION BUILDINGGANIZATTON
1080 UNNERSITY STREET
MONTREAL 101, P.Q. CANADA

SG 609171
LE 411.11 Conf.
LE 411.12 Conf.

10August 1971.

To: Representatives on the Council
From: Secretary General

Subject: Voting in the Council on disagreements and complaints brought
under the Rules for the Settlement of Differences.

1. During the Sixth Meeting of the Seventy-fourth Session of the Council,
held on 29 July 1971. it was reauested that a memorandum be circulated in
which it would be eilained whv. even if certain Council Members did not

have the right t&ote;n a matteibrought before the Council under the Rules
for the Settlement of Differences, it was still necessary to require that decisions
of the Council onsuch matters be taken bv a maioritv of its Members. As will
be seen from the following paragraphs,-a briéf hi& of the question of
voting in the case of the Rules for the Settlement of Differences provides the
necessary explanation.
2. The question of voting in circumstances where parties to a difference
did not have the right to vote arose during the preparation of provisional
Rules for the Settlement of Differences in 1953. At that time. it was noted
that,because of the provisions of Article 52 of the convention,themajority

required for a decision under the Rules would have to he a majority of al1
Council Members. The auestion also arose durine the oreoaration of the
present Kules for the ~ettiemcnt of Differences in 1955ay~ioup of Experts
nominated by the Chairman of the LegirlComrnittce in consultation with the
President of the Council. In its renort. thatoun oointed out. in the terms
set forth below, the difficulty tha; cokd arise in ;Garto voiing if certain
Council Members did not have the right to vote,thus:

"According to Article 52 of the Convention:

'Decisions by the Council sball require approval by a majority of its
members'. in the oninion of theGIOUD. thii Drovision reauires 11 votes
for a decision1.~owever, since, acc&diog io Articles i3 and 84, no

Obviously,the referenccof the Group of Expert10a requirementof IIvota
for a decision was madein relation io a Council which, at the lime contained 21
Members and had the Council then containcd 27 Members, the Group uould no
doubt have includedthe figureof"14" insicof "1 1".452 [CAO COUNCIL

member of the Council may vote in the consideration by the Council of
a dispute to which it is a Party, it may well happen that the Council finds

itself unable to give a decision. A possibilityaotie vote has also to be
taken into account in this connection."
(See C-WP/2271, 15/10/56, p. 6.)

This view of the Croup of Experts was not disputed by the Council when the
latter adopted the Rules for the Settlement of Differences in 1957.
3. Similarly, in cases involving the International Air Services Transit
Ameement. the maiority reauired by Article 52 of the Convention would
continue to apply e;en wheré,in accordance with Article 66 (b) of the Con-
vention, Council Members who did not have the right to vote because they
had not acce~ted the Transit Agreement (sic.)
4. In view-of the foregoing. the Council is merely being consistent with iis
aitirude in the past when, in relation Io thecases involving Pakistan and lndia.
it follows the statement made bythe President on 7Anril 1971to rheeffect that
at "ihis meetingand inany other-proceedings on thesecases, the Council would
be acting under Article 84 or 66 of the Convention. which implied observance
of the statutorv maioritv reauirement in Article 52 for anv decision taken".
-.
(C-Min. LXX~I/ZOi~losed). para. 6.)

(Signed) Assad KOTAITE,
Secretary General. REPLY Of INDIA 453

Annex E

EXTRACTS FROM VFRBATIM TRANSCRIPT OF THE TWENTlETH MEETiNO
ANI> TWELFTII MEETINÜ OF THE COUKCIL OP 1Ht INTERNATIONAL
CIVIL AVIATION OROANIZATION AT ITS SEVENTY-SECOND
AND SEVENTY-THIRD SESSIONS, RESPECTIVELY

COUNCIL-SEVENTY-SECOND SESSION

Verborim Transcripr of the Twentieth Meeting (Closed)
(Wednesday, 7 April 1971)

CASE NO. 1 (PAKISTAN VERSUS INDIAbSUSPENSION BY INDIA OF
FLIGHTS OF PAKISTANI AIRCRAFT OVER THE TERRITORY OF
INDIA: APPLICATION SUBMITI'ED BY THE GOVERNMENT OF
PAKISTAN UNDER ARTICLE 2 OF THE RULES FOR THE
SETTLEMENT OF DIFFERENCES

President: In the discussion of this afternoon, asell as in every future
discussion and proceeding, we are actingnder Article 84or Article66of the
Convention and in hoth cases the implication is that Articl52 of the Con-
vention has to be ohserved. Article52 says that Council decisions are hy
a majority of its members, which in our day-today language means that any
decisions will have to beaken by a statutory majority. 1am saying this after

having sought and ohtained proper legal advice and 1 should say that as
Chairman of this meeting 1 agree that this is the proper way to do it. You
will realise that this case we are starting on now is a serious case that even-
tually might go beyond the ambits of ICAO. It might go to another tribunal,
the International Court of Justice, so we must make surethat it willer he
possible to Say that the Council decided unconstitutionally.
Regarding voting, for Case No. 1, which is a "difference", Article53
provides that no Council memher can vote in the consideration by the
Council of a dispute to which it is aty. Therefnre India will not be able to
may come up this afternnon or on future
vote on any of the points that
occasions. All the other Council members can vote.
For Case No. 2 the situation is different. In accordance with Ar66c(b)
of the Chicago Convention, only those Council members who are parties
to the Transit Agreement have the right to vote. You have seen in the paper
that deals with Case No. 2 that eight Council members will not be able to
vote.However, Ishould point out immediately that in both cases thestatutory
majority means 14votes, regardless of how many members can vote. COUNCIGSEVENTY-THIRD SESSION

Verbatim Transcripi O/the TwelfrhMeeting (Closed)
(Saturday, 12 June 1971)

PAKISTAN VERSUS INDIA-SUSPENSION BY INDlA OF FLIGHTS OF
PAKISTANI AIRCRAFT OVER INDIAN TERRITORY

4. Dr. Scherer: Mr. President. hefore we enter into the item orooer. 1
want to ask a purely procedural 'question. Must the decisions takén by ihe
Council as to the date or the objection he taken in conformity with Article 52
of the Convention-in other words, by a majority of the Members of the
Council-or is just a simple majority sufficient? 1 do not find any exact
definition in Article 15 of theles for the Settlement of Diiïerences entitled
"Decision". There are several references in it to "majority vote", b1tdon't
know what "majority" means here.
5. The President: When we started this case in Montreal two months ago,
1think 1said that the legal opinion was that as it was a case that might even-
tually go to an authority outside ICAO-for instance, the International
Court of Justice-it was necessary throughout the ~roceedings to take
deci\ionr by the rnajoriiy requlred under rhe Convention Dr. Fit~Gerald
conlirms that rhat uas whar 1said.. .. REPLY OF INDIA

Annex F

mxr OF RULES 41 AND 46 OF THE RULES OF PROCEDURE FOR THE COUNCIL
OF THE INTERNATIONAL CIVIL AVIATION OROANIZATION

Rule 41

Any Member of the Council may introduce a motion or amendment

thereto, subject to theollowing rules:
1. With the exception of motions and amendments relative to nominations.
no motion or amendment shall be discussed unless it has been seconded.
2. No motion or amendment may be withdrawn by its author if an amend-
ment to it isnder discussion or has been adopted.

3. Ifa motion has been moved. no other motion than one for an amendment
to the original motion shali be considered until the original motion has
been disposed of. The President shall determine whether such additional
motion is so related to the motion alreadv before the Council as to
constitute aproper amendment thereto, or whether it is to be regarded as
an alternative motion, consideration of which shall he postponed as
stioulatedabove.
4. 1fan amendment to a motion has been moved. no other amendment than
an amendment to the original one shall be moved unril the originel amend-
ment has been disposed of. The Presidcnr shall determine mhether such
additional amendment is so relatedIO the original one as to constituie an

amendment thereto, or whcther itis to bc regarded as an alternative
amendment,consideration of which shall bepostponed asstipulated above.

Rule 46

With the exception of motions and amendments relative to nominations.
no motion or amendment shall bevoted on, unless it has been seconded.