DOCUMENTS SUBMITTED TO THECOURT
AFTERTHECLOSUREOFTHE
WRITTENPROCEEDINGS DOCUMENT FILEDBY INDIA
DOCUMENTS FILED BY THE AGENT FOR THE GOVERNMENT
OF INDlA
Group A
Relevant 'documents pertainiug to a few examples out of the numerous cases
where permission was soughtfrom India between February 1966and January
1971 for overfiights of Pakistan aircraft across Indian temtory oscheduled
services.
(Videparas. 18 and 25 (3) (cl of the Rejoinder.)
A. 1. Letter dated 2 February 1967 from' Pakistan International Airlines
Corporation (PZA) to the Director Generalof Civil Aviation (DGCAI, Zndia
(Atten. Shri L. K. Dey)
Sub.: Boeing/Trident/L-1049 lntenving Summer
Schedule Effective 1st April, 1967.
We are enclosing 30 copies of Boeing, Trident and L-1049 Lnterwing sum-
mer schedule effective 1st April, 1967.
It may be mentioned here that PK100/101 by L-1049 is complete cargo
version.
Effective 1st April to 19th April, 1967, pK7301731 of Wednesdays is
cancelled.
You are requested to please give us necessary permission.
(signedj M. A. Rom,
Central Control Manager.
A. 2.Letter dared16 May 1967from PZA to the DGCA, India
(Atteu. Shri L. K. Dey)
Sub.: Interwing schedule during block overhaul of AP-AMJ
effective 11th July, till 31st August, 1967.
We'are enclosing 30 copies of Interwing schedule during block overhaul
of AP-AMJ effective Ilth July, 67 till 31st August, 1967.
Effective1stSeptember, 67, we will resume our 1st April, 1967schedule.
You are requested to please give us the necessary permission.
(Signedl M. A. ROUF,
Central Control Manager.
. .,,720 . . ]CAO COUNCIL '
A. 3. Letrer dafed 10 August 1967from PIA to the DGCA, India
(Atten. Mr. S. K. Godbole)
Sub.:'~L4's ~oeing Interwing ~int.er Schedule
Effective 1stNovember '67till 31st Mar. '68.
We thank you for your letter No. 5/110/67-IR dated 1st lune, 1967,
giving us permission for our Interwing winter schedule forwarded vide Our
letter No. CCM/85/001/W/67/760 dated 3rd May, 1967.However we have
made slight change in our schedule which is as follows:-
"pK7221723 will operate on.Mondays/Tuesdays/Wednesdays/Fridays/
Satuidays instead of Mondays/Tuesdays/Saturdays.
,. days/Fridays will operatell bYthTrident instead of Boeing. Rest of the
' scheaule remains unchanged."
We are again enclosing 30copies.of the said schedule with amendrnents.
This supersedes Our schedule forwarded before vide Our above referred
letter.
Please give us your necessary permission.
(Signedl M. A. ROUF,
Central Control Manager.
A. 4: Letter dated 22 Augusf1968from PIA ro the DGCA, India
(Atten. Shri. L. K. Dey)
, 8
Sub.: PIA. Boeing Interwing Winter Schedule
effective 1stNovember, 1968.
We are enclosing M copies of Boeing Interwing winter schedule effective
1stNovember, 1968.
You are requested to please give us your necessary permission, as soon as
possible.
(Signed) S. A. Aeio,
. .. Actg. Central Control Manager.
. .
... A..5. Letter dated 27Seprember 1968from PIA Io the.DGCA, India
. .
, (Atten. Shri. L. K. ~ey)
. .. : .
.. .,..'P& Boeing lnterwing int t e l'edule
..:.:. ' ,. ,. .,5tfective 1st November, 1968.
Reference my letter No. CCM/85/001/W/68/1335dated 22nd August, 1968
regarding the schedule noted above.
We have made the following minor amendments in the Boeing Intenving
winter schedule effective 1st November, 1968:-
(i) PK-735 Monday/Tuesday/Wednesday/Saturday Dep Dacca 2130 LT
Arr Karachi 0005 LT. DOCUMENTS PILED BY INDIA 7zi
(ii) Effective 1st~anuary till 13th ~ebruary, 69 PK-7361735of.Tuesdays/
Wednesdays will nnt operate.
We are enclosing 50 copies of the above'mentioned schedule with amend-
ments for your ready reference.
You are requested.to please give us the necessary permiisinn, as soon as
possible.
(Signed) M. A. .ROUF, . ' .
.. Central Control Manager,
A. 6. Letter dated28 September 1968from PIA fo the DGCA, Zndia
(Atteii. Shri. L. K. Dey)
Sub.: Trident Interwing Winter Schedule
effective 1st Nnvember, 1968.
Our Trident Interwing winter schedule effective 1st Nnvember, 1968, is
as fo1lows:-
PK-734 Daily Dep Lahore 1040 LT
Arr Dacca 1400 LT.
PK-733 Daily Dep Dacca 1450LT
Arr Lahore 1640 LT.
You are requested to please give us thenecessary permission',as soon as
possible.
(Signedl M. A. ROUF,
Central Control Manager.
A. 7. Leffer dated 17 Ocfober 1968from PZAfo the DGCA, India
(Atten. Shri L. K. Dey)
Sub.: PIA Boeing Interwing Winter Schedule
effective 1st November, 1968.
Rcfcrcnce your letter No. S/l lOl6R-LKdaied 16th September, 1968. giving
us permission regarding our above mentioned winter schedule.
We had made minor amendments in the Boeinp,lntrrwina winter schedule
and 50 copies of the sûme wcrc foru,arded to yoÜ vide our'jettcr No. CCM/
85/001/W/6811422dated 27th September, 1968.for your necessary permission.
You are requested to please give us the nesessary permission accnrding to
my letter referred to above.
(Signed) M. A. ROUF,
Central Control Manager. A. 8. Letter dafed8 March 1969from PIA fo the DGCA, India
(Atten. ShriL. K. Dey)
Suh.: PIA Interwing Summer Schedule eff. 1-4-69
PIA Interwing Freighter Schedule eff. 17-4-69
We are enclosing 50 copies of our Interwing summer schedule effective
1st April, 1969and Interwing freighter service effective 17th April, 1969.
You are requested to please give us the necessary permission as early as
possible.
(Signed) M. A. ROUF.
Central Control Manager.
A. 9.Letter dated 6 June 1969from PZA 20 the DGCA, India
Ait.: ShriL. D. Dey
P.I.A. Interwing Summer Schedule effective
1st July, 1969
We are enclosing herewith 50 copies of our Interwing Summer Schedule
effective 1st July, 1969.
You are therefore requested to please give us the necessary permission as
early as possible.
(Signed) M. A. ROUF,
Central Control Manager. DOCUMENTS FlLED BY INDIA
Group B
Relevant documents pertaining to a few examples out of the numerous cases
where permission was granted by Pakistan between February 1966 and
January 1971 for overflights of Indian aircraft across Pakistan territoon
scheduledservices
(Vide paras. 18 and 25 (3)(c)of the Rejoinder.)
B. 1. Communication dated24 October 1967 from the DGCA, Pakistan to
DGCA, India
Aitn. Mr. V. V. Joshi PlsnningSupdt. of Air lndia. Kcfcrcnce lcttcrs 19-8
A,9295 dated 111967 and IY-hA 10363 daied 9 10 67 received froni Ar
India Bombay. Permission ascorrled to Air India io oprratc to thcir scheduled
scrvice overflying I'akiiiiin tcrritory on the prescribed ATS rouiings ac-
cording to dct:iils meniioned iiithcir letters rcfcrrcd to above ~ith etfect
from29thOct. l967.Any change in ihc schcdule due to bad ucathcr or tech-
nical reasons while ov&flying~akistan territory may please be carried out
with prior coordination with the FIC concerned.
B. 2. Communication dated20 March 1968 from the DGCA, Pakistan to the
DGCA, India
Ref. MIS Air India letter No. 19-8 A12487 dated February 28th 1968.
Permission accorded to Air India to operate their scheduled services over-
flying Pakistan territory on the prescribed routings according to detail
mentioned in their letter referred to above with effect from 1st April 1968.
Any change in the schedule due to had weather or technical reasons while
overflying Pakistan territory may please be carried out with prior coordina-
tion with FIC concerned.
B. 3. Communication dated II .4pri1968 from the DGCA, Pakistan to the
DGCA, India
IAC permitted to operate their following scheduled passenger service
overlïvinn East Pakistan effective 15/4/68 to followine revised details. IC-
223,224 \\il1 bc operaiing \'isci,uni in;icad of F27 drp Calcutta 1405 arr
13agdogra 1535 dcp 1605 arr Cnlcutia 1735. IC-2491250 dep Calcutta O605
arr Gauhati 0735 den 1205arr (:;ilcuti;i 1335. IC-225 226 de^Calcutta 1445
arr Agartala 1555 dep 0655 arr Gauhati 0840 dep'~ezpu; 1440 arr Cal-
cutta 1640. IC-2571259 Mondays Wednesdays and Fridays dep Calcutta
0840 arr Agartala 1000 dep 1435 arr Calcutta 1605. VPDCZI inform al1
concemed.
B. 4. Communicationdared 9 November 1968 from the DGCA, Pakistan to
the DGCA, India .
IAC permitted to operate their following scheduled passenger services
overlïying East Pakistan eff 11/11 to .following revised details. Viscount
services. IC203/204 Calcutta/Gauhati daily service dep Calcutta 1225 arrGauhati 1455 dep 1525 arr Calcutta 1655.IC205/206 twice weekly Mon and
Thu dep Calcutta 1315 arr/dep Gauhati 144511515am Calcutta 1645. Same
service al1 days of week except Mon and Thu dep Calcutta 0600 arr/dep
Gauhati 0730/0800 arr Calcutta 0930. IC213/214 Calcutta/Gauhati/Mohan-
bari daily service dep Calcutta 0905 arr Gauhati 1035 return flight dep
Gauhati 1445 arr Calcutta 1615. IC2491250CalcuttalGauhati/Tez~urlJorhat
daily service dcp Calcutta 0610 arr Gauhati 0735 return flight dei Gauhati
1145arr C~lcutta 1315. F27 services. 1C253254Ca1ciittn/Agarta13/Crluhati/
Silchar on Tue Thur Siit and Sun dep Calcutt3 0725 arr Agartala 0835 dep
0900arr Gauhati O95Odep1015iirr Silchar II IOreturn flight dcpSilchar 1135
arr Gauhüti 1230 dep 1255 arr Agdrtalii 1345 dep 1410 arr Calcutta 1520.
IC243,244 Cülcuttu Agartala daily dep Calcutta 0615 arr Agarlala 0725 dep
0750 arr Ci~liutta 0900. ICZ25/226 Ca1cultalAgartala on Tue Fri and Sat
dep Cülcutta 1335arr Ag~rtala 1445dep 1510arr C~lcutta 1620onThur and
Sun dep Calcutta 1600arr Agartala 1710dep 1730arr Calcutta 1840. 1C2591
260 CûI/Agartala/Silchar daily service dep Cal 1340 nrr Agartala 1450 dep
1515arr Silchar 1605dep 1630arr Agartala 1720dcp 1745arr Calcutta 1855.
IC2I 1/21? Cal/Gauhati/Tcz~ur/Dima~ur/Jorhÿt/Lilla bnar11/Mohanbari
days of week ixcept ~ed dep cal 0730 arr Ga;hati 0915 return flight dep
Gauhati 1615 arr Calcutta on Wed dep Calcutta 0730 arr Gauhati 0915
return flight dep Gauhati 1550arr Calcutta 1735.Dakota service. IC2551256
Cal/Agartala/Silchar/Imphaldaily service dep Cal 0620 arr Agartala 0750
return Right dep Agartala 1450 arr Calcutta 1620 1C2571258CaljAgartalaj
Khowai/Kamalpur/Kails dhilrservice dep Cal 0830 arr Agartala 1000
return flight dep Agartala 1435 arr Calcutta 1605. IC277/278 Calcutta/
Coochhehar/Hashimara on Wed Fri and Sun following the routing Cal/
IshurdiIGauhati to cross Pakistan territory. IAC reauested to intimate
scheduied timings of this new service direct to FIC ~acca under intimation
to us. AI1local timings. VPDCZI to inform al1concerned.
B. 5. Communication dated12 March 1969from the DGCA, Pakistan to the
DGCA, India
Permission accorded to AI to operate their sch overflying Pak territory
on the prescribed ATS routings according to details mentioned in their sig
referred to ahove with effect from 1/4/69. Anv change in the schedule due
to bad weaiher or technical reasons while overllying ~ak territory may please
be carried out with prior coordination with the FIC concerned.
B. 6. Cornmunicariondated 24 September 1969 from the DGCA, Pakistan
to the DGCA, India
AirIndia permitted to operate their scheduled semices overflying Pakistan
territory on the prescribed ATS routings in accordance with the winter
schedule effective 26/10/69 mentioned in their signal referred to above. All
concerned iuformed. Any changes in the routings may he intimated direct
to FIC at Karachi Lahore and Dacca.
B. 7.Communicationdared30 October 1969from the DGCA, Pakistan ta the
DGCA, India
, .
IAC permitted to operate their scheduled overiïying services 1~253/254
with F27 aircraft and IC267/268 with DC3 aircraft effective 1/11/69~to DOCUMENTS FILED BY INDIA '125
following details IC253/Tuesdays/Thursdays/Saturdays d/pSunccays
0725 arr/dep Agartala 0835/0900 arr/dep Gauhati 0950/1050 arr/dep Silchar
1110/1135 arr/dep Gauhati 1230/1255 arr/dep Agartala 1345/arrVecc
1520. IC267/268 daily instofMondays/Wednesdays/Friday sn the same
timings local.
B. 8. Communicationdated 12 March 1970from the DGCA, Pakistan to the
DGCA, Zndia
AirIndia ~ermitted to oDeratetheir schedule services overflyingWestPakistan
territory in prescribed ATS routings in sccordance uith the dsails mcntioned
in VARRAIOO signal referred to abovc. VADBAIOO requested Io please
furnish their schedule ovcrflyiiig East PakisPDR v8. Group C
Relevant documents pcrtainingto a feu, examples of cases where Pakirtün
sought lndia's permission for inaking non-iraflic landings in Lndia in respect
of iis non-srheduledOirhts bctween Februarv 1966and Januarv 1971
(Yidepara. 18 of the ~ejoinder.)
C. 1. Communication dated 30 June 1967 from the DGCA, Pakistan to the
DGCA. lndia
Deptt of Locust Warning and Plant Quarantine Govt of Pakistan request
permission to operate ferry flight of their Beavor trainer aircDaccafrom
to Lahore in the second week of July 1967 on following route. Dacca-Cal-
cutta-Lucknow-Palam-Lahore. N/S Calcutta-Dehli. Refuelling Calcutta
Lucknow Palam. Exact date of flight name of crew registration marks of
aircraft will be intimated on receipt of your no objection.
C. 2. Communication dated 18 March 1968 from Pakisran International Air-
lines, Karachi, to the DGCA, India
PIA operating positioning flts from OPKC to VPDC and VPDC to
OPKC on 27 and 28 March 68 respectively. Particulars of the flts are as
follows. 27th March 68 OPKC to VPDC a/c F27 APATU Capt Raonaq
plus 3 itinerary as follows positioning flt dep OPKC 2702002 am VIPA
270500 dep 270545 arr VPDC 09302 tech landing at VIPA. 28th Mar 68
VPDC to OPKC acft F27 APAUS Capt Raonaq plus 3 dep VPDC 280200-2
arr VECC 2803002 dep 0345 arr VIPA 280725 dep08102 arr OPKC 2811LSZ
tech landings at VECC and VIPA. Req permission and no objection.
C. 3. Communication dated 27 April1968 from Pakistan International Airlines.
Karachi, 10the DGCA, India.
PIA operating positioning flt from OPKC VPDC hy F 27 aircraft on 03rd
May 1968. Particulars of flt as follows aircraft F 27 AP-AUS Capt Roanaq
ulus 3 itinerarv deu POKC 02002 an VLDD 05152 dep VIDD 06002 arr
~PDC 09502 Ïequest necessary permission.
C. 4. Communication dated 18 March 1969 from Pakistan International Air-
lines, Karachi, to the DGCA, India
PIAC operating positioning flights OPKC/VPDC and VPDCIOPKC on 2lst
and 22nd Mar 69 resnectivelv accordine to followina details oositionine
flt a/c F 27 APALW ~3pt shahab plus ikee dcp OPKC 2lOZOO;ver VIDP
OS00dep VtDP 0545 arr VPDC 09302 positioning flt alc F-27 APAAO Clipt
Shahab ~lus three de0 VI'DC 220400 an. VECC OS00der>VECC 0545 arr
VIDP 09252 dep VIDP 1010 arr OPKC 1315 Z. ~equest no objection and
necessary permission. DOCUMENTS FILED BY INDIA 727
C. 5. Communicationdated 17 AprilI969 from Pakistan InfernationalAirlines,
Karachi, to the DGCA, India
PIAC operating a positioning on 19/4/69 flight from OPLA to VPDC.
Particulars of flt as follows aircraft F-27 APAUV Capt N Chaughtai plus
three itinerarv 19/4/69 de^ OPLA 0200 arr VIDP 0320 deo 0400 arr VPDC
0750. On 201469 PiiC obtng positioning flighfiiVPDC io UI'LA. Aircrafl
APALW Cap1 N Chughtai rpt Cap1 N Chughtai plus three. Irincrary
r-----onine flicht 2014169dc~ VPBC O200arr VECC 0255 der>0340 ar VIDP
0715dep 0800'arrOPLA 09f5. Kequest no objection and neceisary permission
to operate the flights.
C. 6. Communication dated 3 ivovember 1969from the DGCA, Pakistan to
the DGCA, India
Govt of Pakistan Department of Plant Protection Beaver aircrafl AP. AVH
Capt S M Shahjehan Talukdar and Flt Engnr S A Shaikii undenaking feny
iiieht from Lahorc to Dacca deoartinr Lahore 617 Nov early morninp. and
to-landtat Delhi (Palam) for refuelliig. A/c toflystraight-from ~eÏhi to
Dacca followingsDelhi Dacca pdr. SM Shahjehan Talukdar passport Num-
ber AC 006184 SA Sheikh NPPN AC460386. Request confirm no objection
urgently. Short notice regretted. ~. ,. CroupD ' '
. ,
Relevant document pertaining to an example where permission was granted
by Pakistan to an Indian aircraft for making non-traffic landings in Pakistan
. .: temtory on non-scheduledservice .
.. . ' '-(Vide para. 18 of the Rejoinder.)
. .. . . . .
D. 1. Communication dared 28 Ocfober 1968 from the DGCA,Pakisfan, to
fhe DGCA, India, permifting Indian Airlines Corporafion fo operute a flighf
[rom De .lhi f.Kabu1with a landingut Lahore fo ranon-trafic,purposes inboth
. directions
Permission.granted to IAC to ooerate flt VIPA-OPLA-OAKB on 28/10 and
retuin vins'me routcO" 29, 10 3; pcr following details. Aircraft Visc VTDOD
Cïpi Singh ETD VIPA 06302 c:a,ctd OI'LA OR00/0.3302 ela OAKB llOOZ
carrying engineers'spares; Landing Lahore .technical'bothways renting in
Pakistan will be Lahore Rahimyarkhan Fort Endaman and vice versa. IAC
to intimate retum flight details inadvance to OPLAZI. OPLAZI to inform
al1concerned. DOCUMENTS FlLFD BY INDIA
GroupE
AIPs need not incorporate prohibitions of flights applicable to aircraft
registered in particular countries-extracts from relevant documents
(Vide para. 13(iv) of the Rejoinder;)
E. 1. Exirnct from Jeppesen Airway Manilal, Entry Requiremerits Section,
, -pp. ME-11-12 (Special Norices issued by Pakistan)
1. PASSPORT:, .
Required.
2. VISA:
Required, except U.N. Passport holders and citizens of the following
countries: Norway, Netherlands, Denmark, Greece, Turkey, Tunisia,
Sweden, Austria, Federal Repuhlic of Germany, Belgium, Japan and the
Commonwealth Countries. ~.
3. HEALTH:
Certificates of vaccination against smallpox and cholera are required.
Certificate. of vaccination against yellow fever is required for persons
arriving from infected areas in Africa and America.
The piÏoi-in-command of iinaircraft shsll suhmit a hcalih report to the
aerodronie iiuthoriiics 2 hours before landing. All aircrafr infccted or
su~~c~tcd IO be infccicd uith vcllow fcvcr should land at Karüchi onlv.
~ -~
S 1.00 (US.) cqunls spproxiiiiately 4.76 Kupcc.
.: .IRCRAI-'T ENTRY KtQUlKE.\IENTS:
a) ~cheduled Air Services -.
.. Scheduled operations are governed by interstate air agreements or
soecial authorizations.
b) Non-~chcdulcd Air Serviccs
AI1non-ssheddled llighij uishing ricntcr Pakistan terriiory shdll ohiain
clearance froni OPKCYA4T ar Icüsr 96 hours bcforc inrendcd flich-.
The notification shall inclode the following information:
:, , - name of operator;. .,'
- type of aircraft, registration marks and callsign;
,: purpose.of flight, name of charterer, ifany;
: ,-.number of passengers and their nationality, description and amount
., of;cargq with names of consigner and consignee;
.,- details.of route'of flightlitinerary with ETAIETD.
Prior permjssion required for flights with traffic stops. ~b~lications
shall be submitted 72 hours in advance to the.Director General of Civil
. Aviation, 19NapierBarracks, Karachi.Telegraphicaddress: CIVILAIR
KARACHI. AFTN: OPKCYO.. .
i, . :Applic=tiom will he considered only if the foilowing conditions have
-, heen;observed: The .remuiieration, hire or reward ,for the carriage of
charter traffic originating in-or, destined for Pakistan shall be not less
. ..-an the rates, remunerationcor hire ordinarily charged by.m airline
performing regular air services on,the route concerned. If there is no
such regular air service, it should no1 be less than the rates ordinarily
charged by an airline performing regular services for or over a com- oarable route or distance. Furthermore. charter flizhts bv foreien
Operators and originating in Pakistiin will be permitted, provided tbe
applicdnt produces sstisfactory cvidcnce in the form of a "No Objection
Certificate" from the national operator tu the efiect thar the national
operdtor is not in a position to provide the service rendered by the
chartcrcr. No rreight or passengers shall be taken on in Pakistan unless
the charter or hire of the whole or oart of the snace on such aircraft
is considered to have been arranged ihrough the &ency of the national
operator. No advertisement in respect of such flights soliciting booking
01traffickine or ouroortine to no6fv availabilitvof soace in an aircraft
shall be made in animannir whatsoever, eitheAy the person or airline
owning or operating the aircraft, or by any other person.
The applications or notificationshall include the following information:
- name of owner or Company;
- registration marks;
- callsign of aircraft;
- origin, destination and route of flight;
- details of passengers or freight, if carried;
- estimated lime of arriva1 in and departure from Pakistan;
- radio equipment carried;
- name of charterer and consignee of freight, if applicable.
c) State Aircraft Flights
Application for permission to operate military and diplomatic aircraft
shall be submitted to the Ministry of Extemal Afiairs. Telegraphic
address: FOREIGN KARACHI.
6. AIRPORTS OF ENTRY:
No aircraftother than aircraft engaged in a scheduled air transport service,
shall make flights into or transit across the territoryof Pakistanexcein
accordance with the followingconditions:
Every such aircraft shall immediately upon entry into Pakistan be flown
and landed
- if the entry is from the West, at Karachi airport;
- if the entry is from the East, at Chittagong airport;
- if the aircraft is flying from India to West Pakistan, at Lahore airport
- if the aircraft is flying from india to Afghanistan and vice versa, at
Karachi airport or Lahore airport;
- if the entry is from Ceylon in10 West Pakistan, at Karachi airport.
In the case of short-range aircraftcoming from the West, a landing at
Jiwani for purposes of refuelling is permitted, provided that the aircraft
will not proceed thence to a point outside Pakistan temtory, without
clearing customs and other formalities at Karachi airport.
7. SPECIAL NOTICES:
a) All aircraft entering Karachi and Lahore FIR shall contact the ap-
propriate FIC at least 15 minutes prior to entry.
b) No Rhodesian or Israel registered aircraft is permitted to fly in10 or
over Pakistan. No flight of international airlines operating to or from
Rhodesia or Israel is permitted within Pakistan airsoace.
C) Aircraft operating from Indian territory are not permitted tn ovefiy
West Pakistan unless a landing is made at a Pakistan airport. DOCUMENTS FlLED BY INDlA
E. 2. Extracr from Jeppesen Airway Manual, Entry Requirements Section,
p. ME-9 (Special Notices issrredby Iraq)
1. PASSPORT:
Required.
2. VISA:
Required. No national of Israel will be allowed to enter Iraq and passen-
gers holding passports containing an endorsement for Israel, either valid
or expired will not be permitted ta enter Iraq.
3. HEALTH:
Vaccination certificates are not required except for persans coming from
an area infected by plague, cholera, yellow fever, smallpox, typhus, or
relapsing fever.
4. RATE OF EXCHANGE:
5 1.00 (U.S.) equals approximately 0.36 Dinar.
5. AIRCRAFT ENTRY REQUIREMENTS:
a) Scheduled Air Services
Scheduled air services are govcrned by intersrate air dgreenicnts or
xpecial authorizdtiun froni tlic Dirc<turdtc ücncral of Civil Aviation.
Baghdad-West Airport. Tclegr.ph~i ~JJrcss: ClVlLAlK BACiHUAD.
AFTN: ORBWYA.
b) Non-Scheduled Air Services
Non-Scheduled and private flights over or into Iraqi temtory are
subject to prior permission. Applications shall be suhmitted 72 hours
inadvance ta the Directorate General of Civil Aviation, or through
diplomatic channels. Application for military flights shall be suhmitted
7 days in advance through diplomatic channels. The following in-
formation shall be given with each application:
- name of ooerator:
- type of airiraft and registration marks;
- date and time of arriva1 at, and departure from Iraq;
- dace or olaces of emharkation or disembarkation, as the case mav
be of passengers andior freight;
purpose of fiight and number of passengers and/or nature and
amount of freight;
name. address and business of charterer. if anv.
6. AIRPORTS OF ENTRY:
Aircraft shall first land atclfinally depart from an international airport.
7. SPECIAL NOTICE:
a) Aircraft registered in USA are not permitted to ovedy or land in Iraqi
territory.
b) All non-scheduled aircraft flying over Iraqi territory shall land at an
Iraqi airport.
c) Use of al1 Iraqi airports except Baghdad Int'l and Basrah (Ma'aquil)
is prohibited ta al1foreign aircraft.E. 3. Extract from Jeppesen Aiway Manual, Enrry Requiremenls Section.
pp. MID-3-4 (Special Notices issued by Egypl Arab Republic)
1. PASSPORT:
Required.
2. VISA:
Required, except for passengers in direct transit.
3. HEALTH: , .
Certificates of vaccination against smallpox, cholera and yellow fever are
required for persons arriving from respective epidemic areas.
4. .RATE OF EXCHANGE:
S 1.00(U.S.) equals approxiniatcly Egypt f 0.35.
5. AIRCRAFT ENTKY KtQUIKEhlENTS:
a) Scheduled Air Services
Scheduled operations are governed hy interstate air agreements or
special authorizations.
b) Non-Scheduled Air Services
Prior permission, 5 days in advance, is required for ovcAights and
technical landings. The application shall be sbumitted,to the Director
General of Civil Aviation.
Landings for traffic purposes require prior permission, and an applica-
tion shall he submitted to the aeronautical authority within the fol-
lowina lime limits:
At le&[ 5 dnys in advnnce for the following categorics of fiights:
Flights for the purpose of niceting hunianitariïn orcmeracncy .eeds~
Taxi-class oassenzer flizhts of-occasional char~ ~e~ on reaues.l .
provided thai the ~ircrnf;docs not have a seating cüpacity for more
than six passengers and providcd that the destination is choscn hy
the hirers and no part of the capaciiy of the aircraft is rcsold ta the
r-----.
Flights on which the entire space is hired hy a single persan (in-
dividual.. firm. coroorationl for the carriaee of-his ~t~~~-o~ ~ ~ ~
chandise, proiidedihat no part of such space is resold ta the puhliç.
At leasr 30 dnys in ndvancc for rhc following catcgorics of iïights:
Fliahts on which the entirc .;Dacei, hircd on behalf of mcmbers of
affiiity groups provided that:
- every passenger to he carried shall he a member of a single
oraanized arouo which oursues a orincioal obiective other than
trYiacl.andihrili havc hein a rnern&r of ihat Forihc pcriod
of six months preccding the flight, or shall be spousc or dependent
child of a oerson so aualified or a oarent of~such oerson living -
in the samc houschold with that perion;
- the group $ha11have a permanent charmer.
- the memhershi~ of the crouD shall not cxcced tuentv thousand
persons, and -.
- advertisements and communications, whether oral or written,
for the purposes of inviting or inducing persons ta engage in the
journey shall be communicated only to members of the group,
and only by members or officials of the group.
Flights for the transportation of stridents, provided that: DOCUMENTS FlLeD BY lNDlA 733
- such flights are sponsored by recognized.institutions or students
associations; ) .., <:. , , j
- such flights shall be reserved for. students matriculated at a
recoanized universih. or other eauivalent establishment of hiaher
education, only registered full-;me students' who have notyet
graduated shall be eligihle. Students taking evening courses or
courses lasting a few months.shall not be eligible: . '
- Members of teaching staff shall be authorized ,to participate in
such flights when they are leading 'studentsgroups on .such
flights and are enrolled in the same establishment, provided that
the number of such leaders is not larger than is necessary for each
group; . . ...
The spouse or dependent child of a person so qualified or a parent
of such person living in the same household with that . are
also permitted to participate in slich flights: ': .-.
Flights for the sole transportalion of merchandise.
Applications for permission or notification should be submitted by
operators or their agents by letter or reply-paid telegram for at least
address: TAY ARAN CAIRO and shall include the following in- Telegraphic
formation:
- name and address of operator;
- type of aircraft and registration marks;
- date and estimated time of arriva1 at, and departiire from Egypt
A.R. territory;
- place of embarkation or disembarkation abroad of passengers and/or
freight;
- purpose of flight indicating name, address and business of charterer,
the number of passengers, and/or nature and amount of freight.
In order to perform non-scheduled commercial flights to Egypt A.R.
territory, the aircraft operator or the travel agent shall have heen
previouslyinscribed and accredited before by the Civil Aviation Depart-
ment. Furthermore, the point of origin or the destination of the traffic
must lie within the territory of the country in which the aircraft is
registered. Nevertheless, consideration will be given to requests for
flights not fulfilling this coridition in cases where the nationalair carriers
are unable to provide the service required.
operators or their agents to the aeronautical authorities by the following
dates:
- 1st Seotember for fliahts hetween 1st November and 31st March:
- 15th january for nights bcrtreen 1stApril and 3Ist October.
Theapplication for incliisive tour air services sha11include the follo\iing
information:
- nanic and address al'the operütor;
- numc and address of th^chirtercr or trïvel agent by Hhom the tour
is organized;
- route, including al1 places to be served and ultimate destination of
tour;
- frequency of flights and period over which they are to take place;
- type and capacity of aircraft;
- provisional timetahle;
- number of passengers; - minimum inclusive price each passenger is charged for.
Consideration will only be given to application suhmitted from the
country of origin or destination of the inclusive tour traffic.
charges mus1ionlorm to the 3ppropriate LATAresolution. The criteria
followed hy the aeronautical authoriiy in considering the applicalion
is that the inclusive tour price charged to each oassenner should not be
less than the lowest applicable fare for the type or iervice provided,
available to the public on the same route.
6. AIRPORTS OF ENTRY:
Aircraft shall first land atand finally depart from a customs airport.
7. SPECIAL NOTICES:
a) Aircraft destined for or departing from Israel are not allowed to fly
over or into Egypt A.R. aiipace.~
b) Aircraft registered in South Africa or Portugal are prohibited t6 0y
over or into Egypt A.R. airspace. DOCUMENTS FBYINDIA 735
E. 4. Title Page of Aeronautical InformationPublication, India
AERONAUTICAL INFORMATION
PUBLICATION INDIA
SECOND EDITION
(1965)
CONSULT NOTAMSAND AERONAUTICAL
INFORMATION CIRCULARSFOR LATEST INFORMATION
AERONAUTICAL INFORMATIONSERVICE
DEPARTMENT OFCIVIL AVIATION
lNDIA
= E. 5. Page GEN 1-2 of Aeronaufical InformafIon Publication, India
'Published Aeronaufical Information
1. AIP India.-The AIP, issued in one volume, is the basic aeronautical
information document published for international usage. It contains informa-
tion of a lasting character essential to air navigation over îhe territory of
India, that is,the FIRs of Bombay, Calcutta, Delhi and Madras. It is available
in English onlv and is maintained UD-to-date hv an amendment service
consis~ng ofrgprinicd pages and, in case of mino;aniendnients, manus~ript
corrections. Amendnients. togeiher wiih checkli,ts, are nurmally issued daled
first of January/April/July/October.
Aeradio.-The Aeradio, India,'is published in one volume. It is the basic
aeronautical communication information document for domestic usage. It
contains information essential to air navigation over the territory of kdia.
It may thus also includethe aeronautical communication information already
published in AIP, India.
Nofams Class II (Ca//ed Notices to Airmen upfo 14-7-19621.-The notams.
are published as and when necessary to disseminate information of direct
operational significance.
From 15-7-1962 each NOTAM has been assigned a serial number, per-
taining to the calender year. A check list of NOTAMS currently in force is
normally issued every 6 months.
Aeronaufical Informafion Circulars
These circulars contain information of general technical interest and in-
formation relating to administrative matters which is inappropriate to AIP
or NOTAM. They also contain information about aerodromes not available
for international usage but the information about which never-the-less, is
primarily important for domestic aircraft operation. Notams and Aeronau-
tical Information Circulars are furnished free of charge to al1users.
Distribution of Nofams by Telecommirnicafions
NOTAMS given class 1 distribution (by telecommunication service) are
originated hy international NOTAM offices, Bonibiy, Calcutta, Delhi &
Madras. and are distributed in two series i.e. VVO series and International
Clüss 1 Noiûm series.-VVO Nordms arc fur domîstic distribuiion cotering
al1 ihc four FIRs. Separate seriiil numbcrs arc maintained for International
Class l distribution of NOTAVS ai the respective NOTA41 officesstarting
with No. I at 0000 GMT on I January çvery yedr. A shcck Iisrof NOTAMS
currently in force is issucd cvery monih to 311 NOTAhl olfices as agrecd to
from time to time.
. ~ ..
2. Summaryof National Regulatio~ . ., . .. .,
The legislation and rules governing Civil Aviation in India have been
.compiled in the Indian Aircraft Manual which is revised from time to time.
The national regulations in force are:-
(i) The Aircraft Act, 1934(XXII of 1934)
(ii) The Indian Aircraft Rules. 1937
(iiij The lndian Aircraft Kules; 1920(Pan IX)
(iv) The lndian Aircrafi (Public Heülth) Kules, 1954
(VI The lndian Cürriaae bv Air Act, 1934(XX of 1934)
(;i) Important statutory notifications affecting Aviation in India.
NOTE:All the above are available in one volume entitled the Indian Aircraft
Manual priced at Rs. 4.55 (inland? and 10s. 8d. or 81.64 (foreign):
International Standards and recommended vractices, evolved by Inter-
national Civil Aviation Organisation persuant to-article 37 of the Con\,ention
on International Civil Aviation (Chicago 1944)and adopted for world wide
aoolication and recommended for inclusion in the National regulations of
thécountries, are brought in10 force from time to lime by issuing special
directions not inconsistent with the Aircraft Act, 1934,or the lndian Aircraft
Rules, 1937. These special directionsrelate to the operation, use, possession,
maintenance and navigation of Aircraft Rying in or nver India or of aircraft
registered in India. These special directions are promulgated through Notams
Class II (Notices to Airmen) and101 Aeronautical Information Publication,
Aeronautical Information Circulars & Notices to Aircraft Owners & Main-
tenance Engineers. GroupF
Iniernatlonnl Civil A\,iation Organisation, Working Papcr on "Voting in thc
Council on disagreemcnts and cornplaints brought undcr thc Rules of Seitle-
ment of Differences" '
(Vide para. 78 of the Rejoinder.)
F. 1. International Civil Aviation Organisation, Council-Sevenry-fuurth
Session, document C-WP 5465 dated 21/10/71
Subject No. 27: Conventionon International Civil Aviation
(Chicago Convention)
Voting in the Connril on Disagreements and Complainrs
Brought under the Rulesfor the Sertlement of Diferences
(Presented by the Secretary-General)
References: 1. S. G. Memorandum SG 609171. 10 Auaust 1971
2. Chicago Convention. Doi. 730h 4 -
3. Iniernatit~nl Air Services Trans.1 Agrwmcnt
4. Drafi C-Min. LXXll 20 (ClosedJ Part Il
Introducrion
1. Following the issue of the Secretary General's Memorandum of the
above-mentioned subject to Council Representatives, No. SG 609/71 dated
10 August 1971. a Council Representative reauesied the President of the
~ounca that the subject of that ~emorandum be included in the Work
Programme of the Council. The present paper provides an analysis of the
question of the maior.ty r.quired under the Chicago Convention for a
decision of the Cuuncil in cyses oi disigrcemcnts ana complninrs brought
under the Riiles for thc Scttlcnieni of L>iiTcrcnce\.Thc opinion of the Legal
bureau in the matter is stated in paragraph 5, while paragraph 6 recalls the
ruling given by the President in two cases recently.
Majority required for derisions of rhe Council
2. (a) The Council is a body of which the number of members is fixed:
Article 50 of the Chicago Convention States: "It shall be composed
of twenty-seven Contracting States elected by the Assembly".
Ib) Article 52 provides that: "Decisions by the Council shall require
approval by a majority of its mernbers".
(cl Consequently, at present the requisite number of members is
fourteen.
(dl It is to be specifically noted that the requirement of Article 52 is
that adecision of the Council as a bodv is deoendent on the nurnber
of its members, and not, for example, as in the case of the Assembly,
on the number of "the votes cast" (Article 48, paragraph (c), of
the Chicago Convention). DOCUMENTS FILE0 BY INDIA 739
Caseswheresomemembersdo not vote
3. The numher of votes cast on a given occasion would be less than the
number of members of the Couiicil (namely, 27) in the following cases:
A.-Where the Convention stütes that a member shall not vote:
(i) Under Article 53 which provides: "No member of the Council
shall vote in the consideration by the Council of a dispute to which
itis a vartv".
Note: Article 84 of the Convention contains an identical provision.
(ii) Under Article 66 (b): "Memhers of the . ..Council who have not
accepted the International Air ServicesTransit Agreement ... or
the International Air Transport Agreement .. .shall not have the
right ta vote on any questions referred to the ... Council under
the provisions of the relevant Agreement".
(iii) Under Article 62 of the Convention: "The Assembly may suspend
the voting power .. .in the Council of any Contracting State that
fails to discharge within a reasonableperiod itsfinancial obligations
to the Organization".
B.-Where it is impracticable for a memherJo vote because its Representa-
tive is not present, or unable to be present, for any reason, at the time
of the votin- in the Council.
C.-Where a member voluntarily decides not to vote: for example, a
Representative may declare that his State is not varticipating in the
vote; or he, without any such declaration, simily ahStains in the
voting.
Effecr of no! voting
4. The provisions of Articles 53, 84, 66 and 62 mentioned above contain
no reference, expressly or by implication, ta Article 52. Consequently, they
do not produce any effect on the requirement specified in Article 52 that:
"Decisians hy the Council shall require approval by a majority of its mem-
bers". Therefore that Article is not subordinated ta, and operates indepen-
dently of, the other four Articles mentioned.
Conclusion
5. In the opinion of the Legal Bureau-
A.-Nothing in Ariiclcs 53,$4, 66 or 62 of the Coni,ention ainends.ihe
figure of twenty-sevenu hich i, the memhership ofthe Council spesified
in Article 50 ln,. In othcr \\,i)rds. a nicniber of the Council dors no1
cease to be a member of that body solely hecause its voting power is
taken away for someparticular occasion by a provision of the Conven-
tion. (A State which is not entitled to vote at a particular session of
the Assembly by reason of the application of Article 62 or Article 88
does not cease to be a Contracting State.)
B.-Nothing in the four Articles mentioned affects the majority required
by Article 52,such majority heing related to the number of members of
the Council and not ta the members voting.
C.-The foregoing conclusions would only be fortified by the following
provision of Article II, Section 2, of the International Air Services
Transit Agreement 1which depends on the Chicago Convention:
' Doc. 7500. "Section 2
If anv disaareement between two or more contractina States relatinpi
to the <nterprëtation or application of this Agreement cinnot be setticd
hy negotiation. the pro\,isions of Chapter XVlll of the übo\,e-meniioned
Con\,ention shall be applicable in the samemonneros proiitle,d rhi.rcin
sifh re/crencr ro ony dis<ipre~me»i relating io the interpreiation or
application o/ihr obui,e-menriotzedCunvenriun." 1
Ruling of the President
6. The onlyprecedent relating to voting in the Council on (1) disagreements
and (2) complaints, brought under the Rules for the Settlement of Differences,
is that the President of the Council, in the meeting of the Council held on
7 April 1971, gave the ruling that in the two cases before the Council, Case
No. 1 and Case No. 2, Pakistan versus India, "the statutory majority
requirement in Article 52 for any decision takeo" would be necessary.
Replying to two questions he confirmed that the statutory majority would be
required in Case No. 2 also (besides Case No. l), and explained that the Rules
could not be amended to permit decisions to be taken on Case No. 2 by a
majority of the Member parties to the Transit Agreement because "themajo-
rity was govemed by the Chicago Convention, not by the Rules for the
Settlement of Differences": seeDraft C-Min. LXXII/ZO (Closed), Part II-
Discussion, paragraphs 6, 7, 8 and 9. There were no further questions raised
relating to procedure.
Action
7. This paper is presented for information.
Italia suppliedfor thispaper. DOCUMENTS FlLED BYINDIA
Group G
Air defenceclearance regulations of India
(Videpara. 18and Annexure I of the Rejoinder.)
G.1. NOTAM No. 2211968of 26 November 1968 issuedby the Government
of Indio, AeronouticolInformotion Service
(10-4-66-ARI)
ESTABLISHMENT OF AIR DEFENCE IDENTIFICATION ZONES
AND PROCEDURES FOR AIR DEFENCE CLEARANCE
Air Defence Identification Zones (ADIZs) as indicated hereunder and
shown in the attached map have been established.
(a) A.D.I.Z. Rombay
A circular airspace of 150 NM with Bombay as centre excluding airspace
of A.D.I.Z. West protruding into this area.
(b) A.D.I.Z. West
The entire airspace over the area bounded by coordinates 2940 N 7318E,
2930N 7538E, 2520N 7400E, Ahmedabad, Surat (2110N 7250E), 2057N
6947E, 2115N 6807E and 2336N 6807E and thence along the international
border with West Pakistan up to 2940N 7318E.
(c) A.D.I.Z. North
The entire Indian airspace north of line formed by joining the coordinates
2940N 7318E, 2930N 7538E, 2930N 8000E and 2930N 8020E.
(d) A.D.I.Z. Delhi
The entire lndian airspace bounded by joining the coordinates 2930N
7538E, 2930N 8000E, 2614N 8000E, Gwalior, 2520N 7400E, and 2930N
7538E.
(e) A.D.I.Z. Central lndia
The entire airspace over the area bounded byjoining thecoordinates 2930N
8000E, 2930N 8020E then along the Indo-Nepal boundary on the north upto
2639N 8600E, 2315N 8600E, Allahabad, 2614N 80WE and 2930N 8000E.
(f) A.D.I.Z. Calcutta
The entire airspace over the area bounded by coordinates 2639N 8600E
along theIndo-Nepal border uptoa point 2623N 8735Ejoined by the shortest
line through Kishanganj (2605N 8755E) to a point 2555N 8806E and then
along the International boundary with East Pakistan upto a point 2040N
8915E, 2040N 8600E, 2315N 86M)E,and up to 2639N 8600E.
(g)A.D.I.Z. East
The entire Indian airspace northeast of the shortest line through Kishan-
ganj (2605N 8755E) joining the borders of Nepal at 2623N 8735E and East742 ICA0 COUNCIL
Pakistan at 2555N 8806E including Sikkim, Bhutan, Assam, NEFA, Naga-
land, Manipur and Tripura.
2. Requirement for Air Defence Clearance
No Bight of aircraft, civil/military, Indian or foreign orginating within the
ADIZs defined under para. 1 above and those penetrating into these ADIZs
are permitted without Air Defence Clearance. The procedures for issue of
Air Defence Clearance is outlined in the succeeding paragraphs. Aircraft
flying without an Air Defence Clearance or failing to comply with any
restriction or deviating from flight plan wilbe liable ta identification and
interception procedures promulgdted in Notam No. 6 of 1966.
3. Procedure for issue of Air Defence Clearance (ADC)
3.1. General:
Except the local flights conducted within the immediate vicinity of an
aerodrome, aircraft when operating to, through or within the ADIZs shall
obtain Air Defence Clearance before take off,through the ATC concerned.
3.2. ADCshall be valid for the entire route irrespective of intermediate
halts for flights onginating in one ADIZS/FIR and transiting through other
ADIZIFIR.
3.3. ADC shall be obtained before departure and in the event of departure
being delayed for more than 30 minutes ai the aerodrome of departure orat
intermediate halts, a fresh ADC shall be obtained. In the case of communica-
tion difficulty or delay in receipt of ADC, or non-existence of communication
at the place of departure, the aircraft equippedwith radio may be allowed
to take off with instructions to obtain ADC immediately after airhorne from
the FICs concerned.
3.4. Flyingclubaircraft intending to operate beyond the immediate vicinity
of an aerodrome where no ATC unit is functioning, may obtain ADC from
the nearest IAF ATC Unit. The IAF ATC Unit will advise the FIC concerned
regarding the movement of the Flying Club aircraft.
3.5. The Flying Club aircraft proceeding on cross country flights may
obtain Air Defence Clearance for the return flight also if so desired provided
that a fresh ADC will have to be obtained in the event of delay of more
than thirty minutes in excess of the estimated departure time filed for the
return flight.
G. C. ARYA,
Director General of Civil Aviation. DOCUMENTS FlLED BY PAKlSTAN
DOCUMENTS FILED BY THE AGENT
FOR THE GOVERNMENT OF PAKlSTAN
1. Letter dated 17 September1965 from the SecreraryGeneral,ICAO, to the
DGCA, Pakistan
No. E 118-651192
1 have the honour to inform YOU that a letter dated 9 September 1965.
of which ï copy is attached. ua; receited from the ~overn~cnt of India.
Thc cablc refcrred to in the fir't paragraph was notified to you in m) cum-
inunication E 1 8-62/23? of20 Dc~enibrr 1962.The srïtcmcnts made in the
letter with reference to the Convention on International Civil Aviation
presumably relate to the provisions of Article 89 thereof; as regards the
International Air Services Transit Agreement, there is no provision corres-
ponding to Article 89 of the Chicago Convention.
The President of the Council, acting under the delegation of authority con-
ferred on him when the Council is not in session, decided to transmit copy
of the letter from India to al1C!ontracting States. The Government of India
has been requested that, upon termination of the Emergency, notice of that
fact be sent to the Council.
(Signedl B. T. TWIGT. '
Copyof a letrer,dared9September1965,received/rom the Governmentof India
To: The President of the Council of ICAO
1have the honour to refer to Government of India's cable of November 28,
1962. and the letter No. 21-A17-62 dated November 29. 1962. whereby
intimation was given that the président of the Republic of 1"dia has declared
by proclamation under the Indiiin Constitution that a grave emergency exists
whereby the security of lndia is threatened and that, under these circum-
stances, the Government of India may not find it possible to comply witb
any or al1provisions of the Conventions on International Civil Aviation and
the International Air Services Transit A-reement.
2. Dcspiie this notificatton.;iiyou arc aware, the Govcrnmcnt uf lndia
have consistently sdhered IO their obligation under the Convcntion on Intcr-
national Civil Aviation and the Iniernationïl Air Services Transit Agreement.
3. However, the recent aggression on India by the Armed Forces of
Pakistan places on the Government of India, heavy burdens with regard to
their own security and the safety of aircraft flying through the country's air
space. Therefore, the present danger, coupled with the continued threat of
external aggression on Indian territory by the People's Republic of China,
aaain entails the ~ossibilitv that the Government of India may not be able
rocomplr with any or al16rovis.ons of the Convcntion on lnter"ational Civil
Aviatiùn and the International Air Services Transit Agrcenient.
4. 11niIl bethecontinuedendeavour of the Govcrnmcnt of India toadhere.
as far as possible, to the provisions of the Convention on Internationalivil744 . ICA0 COUNCIL
Aviation and the International Air Services Transit Agreement but to the
extent they are unable to do so, il will be directly as a result of the emergency
referred Io ahove created by the continued threat of aggression by the
People's Republic of China and now extended and heightened by the Pakis-
tani aggression. . .
(Signed) V. SHANKAR,
. . Secretary to the Government of India.
2. Letter dafed 9 December 1971from the SecrPtarJ> Ceneral, ICAO, to the
DCCA, Pakistan
Subject: Article 89 of the Chicago Convention
1 have the honour to send herewith copies of Iwo cables from Pakistan
dated 3 and 6December 1971and a cable dated 4 December 1971from India.
These cables were placed before the Council with the comment by the
Secretary General that the references to the Convention related, presumably.
to Article 89 of the Convention on International Civil Aviation, and that
there was no corresponding provision in the International Air Services
Transit Agreement.
The Council decided to transmit copies of the said cables to contracting
States. The Government of Pakistan and India have been requested that,
upon termination of the emergency, notice of that fact be sent to the Council.
(Signed) Assad KOTAITE.
Attachment
. ..
Copy of Cable dated 3 December 1971 received from Pakistan
ln vien, of the existing cmergcncy and aggression by India on Pakistan unablc
to comply n,ith the provisions of the Convention.
. ,. ,
: Copy of Cable dated 4 December1971 receivedfrom India
in rom ~a.hga.1,'~ecretary; Government of India, Ministry of Tourism and
Civil Aviation,',New Delhi. Pakistan having launched a full scale war against
India on thiid December 1971 the President of the Repuhlic of lndia has
declared hy proclamat/on under Clause (1) of Article 352 of the Constitution
oh 1ndia;that a:grave,emeigency exists wherehy the security of India is threa-
t'enedhy external aggression. Under these circumstances Government of India
may noifind it possible to c'omplywith any or al1provisions of the Conven-
tion on ~ntern..iio~al .Cihl Aviation and International Air Service Transit
A...e. eit. z. ,, .,. . .
: i . ...9 . . : ... . . AVMlN . DOCUMENTS FlLED BY PAKISTAN 745
Copy of cable dated 6 December 1971receivedfrom Pakistan
As a result of aggression into I'akistan territory by India the President has
declared by proclamation that a grave emergency exists whereby the security
of Pakistan is threatened. Pakistan airports are already under attack by
Indian aircraft. Under these circumstances the Government of Pakistan may
not find it possible to comply with any or al1provisions of the Convention
on International Civil Aviation and International Air Services Transit
Agreement.
MINDEF Aviation Division Rawalpindi.
3 (a). Letter dated 12 Septemlier 1964 from the Manager, Air India Inler-
national, Io the DGCA, Pakistan
.:
Air-India Winter Timetable 1964
The Winter Timetable of Air-India Flights AL. 801 and 802 with Comet
equipment will be as under:
FlighrAI. 801-
(1st Flt. 26.10.1964) ... .,, ,
Bombay dep. 1730 Mon. LT
Karachi arr. 1845 ,.
den. 1930
Flight AI. 802- .. .
(1st Flt. 26.10.1964)
, .
Kuwait dep. 0645 Mon. LT
Bahrain arr. 0840 ,, ,.
dep. 0925 ,,. ,
Karachi arr. 1245
dep. 1330
Bombay arr. 1535 2, , .
We shall be grateful if you will kindly acknowledge receipt ofthis letter.
(Signed) R. D. KHORY.
. ..
3 (b). Letter dated 27 April 1965f~om the Manager, Air-India Internalional,
to th,?DGCA, Pakistan
Air-lndia Summer Schedule . ..
Kindly refer to your letter No. 2-7164iAT.l dated ~pri1,26,'1965.
We regret to inform you that we have discontinued our operations through
Karachi, effective 1st April 1965, until further notice.
We have. however. submitted notification of Air-India'sewices overflying
Pakistan tektory and bave received acknowledgement of the same vide Io&
letter No. 7-2165lAT.l dated 15th March,'1965. !,
(Signed) R.D. KHORY. 3 (c). Lerter dafed 4 Seprember 1965from the Manager, Air-India
International, fo fhe DGCA, Pakisfan
Flight AI.512 of12.9.1962and
FlightAI. 505of 5.10.1965
We have your standing permission for our Flights A512 and AI. 505,
amongst others, to overfly Pakistan territory.
We would like to inform you, however, of a slight change in schedule of
theabove flights. The revised schedule will be as under:
Flight AI. 512 ofI2rSeptember 1965
dep. Moscow 2120 GMT 12.9.65
arr. New Delhi 0330 13.9.65
Flight AI. 505 of5fh October 1965
dep. New Delhi 2225 GMT 4.10.65
arr. Moscow 0500 5.10.65
;(Signed) R. D. KHORY.
3 (dl. Indian Airlines Corporarion Schedule of Passenger Services fo and
Overjlying Pakisfon Effect1 Apri1965
Viscount Schedules
IC-131 IC-132
2.4.5.
0740 D Bombay
0935
A Karachi
IC-203 IC-201 IC-202 IC-204
Daily Daily Daily Daily.
1210 0600 D Calcutta A 0930 1540
1335 0725 A Gauhati
D 0805 1415
IC-213 IC-214
Dailv Daily
D Calcutta A 1830
A Gauhati
D 1705
D . Gauhati
1435 A Ghabua
IC-221
Daily Daily
0730
D Calcutta ' A 1035
0845 A Ba-dog-a D 0925
IC-441 IC-442
3.7. , 3.7.
1430 D Delhi (Palam) A 2050
1650 A Karachi D 1730
IC-451 IC-452
6 6
0945 D Delhi (Palam) A 1725
1210 ' A Kabul D 1300 DOCUMENTS FlLED BY PAKlSTAN
FriendshipSchedules
Daily Daily
0610 D ~alcutta A 1230
0805 A Tezpur D 1035
0830 D Tezpur A
0905 A .lorhat D
IC-259
Daily Daily
1310 D Calcutta A 1825
1420 A Agartala D 1715
1445 D Agartala A
1535 A Silchar D
IC-271
Daily Daily
1530 D Calcutta A 1750
1650 A Dacca D 1730
IC-431
2.4.6.
D Delhi (Palam) A
A Lahore D
Dakota Schedules
D Calcutta A
A Gauhati D
D Gauhati A
A Tezpur D
D Tezpur A
A Jorhat D
D .lorhat A
A Lilabari D
D Lilahari A
A Ghabua D
D Calcutta A
A Agartala D
D Agartala A
A Gauhati D 1520
IC-256 IC-244
Daily Daily Daily Daily
0630 0720 D Calcutta A 1525 0950
0800 0850 A Agartala D 1355 0820
D Agartala A 1325
A Silchar D
D Silchar A
A lmphal D 1.3. 1.3.
0620 D Calcutta A 1335
0750 A Aeartala D 1205
0810 D ~gartala A 1145
0830 A Khowai D 1125
0845 D Khowai A 1110
0910 A Kamalpur D 1045
0925 D Kamalpur A 1030
0945 A Kailashahar D 1010
(All timings are in Local Time)
(Signedl O. P. LUMBA,
Asstt. TrafficManager (Sales),
for Chief Traffic Manager.
3 (el. Letter dated 29 January 1965 from the DGCA, India, to the DGCA,
Pakistan
No. 5/10/65-IR
Subject: Pakistan International Airlines-
Operation of air services to India.
1 have the honour to refer to your W/T Signal No. 316165-AT1 TOO
2008532 and to state that there is no objection to the introduction of PIA
Schedules effective 1st April, 1965 as proposed. Authoconcerned are
heing advised.
(Signedl P. S. WARRIER,
Deputy Director, Regulations and Information,
forDirector General of Civil Aviation.
4. Arbitration Aword of 18 December 1967 between Dalmia Cement, Ltd.,
New Delhi (India) and The National Bank of Pakistan, Karachi (Pakistan)
International Chamheof Commerce, Paris
Case No. 1-12
AWARD
Made on December 18, 1967 in the
arbitration
hetween
Dalmio Cement Limited, New Delhi (India)
and
TheNational Bank ofPakistan, Karachi (Pakistan)
hy
Professor Pierre p al ivProfessor of Law in Geneva University and in
the Graduate Institute of International Studies, Dean of the Law School,
Memher of the GenevaBar, Associate of the Institute of International Law, DOCUMENTS FlLED BY PAKISTAN 749
Arbitrator
Whereasthe parties have signed on September 30,1964, a "bank guarantee"
containing a clause 1X stating that
"All disputes arising in connection with this guarantee shall be finaUy
settled under the Rules of Conciliation and Arbitration of the Inter-
national Chamber of Commerce by a sole arbitrator appointed in
accordance with the Rules",
Whereas by letter dated July 4, 1966,Dalmia Cement Limited, theclaim-
ant, applied to the Court of Arbitration of the International Chamber of
Commerce (hereinafter called ICC) and requested that an arbitrator he
appointed,
Whereas the National Bank of Pakistan, the Defendant, declined the
jurisdiction of the Court of Arbitration of the ICC,
Whereas the Court of Arbitration of the ICC, pursuant to the provisions
of Article 13 of its Rules, appointed the undersigned as sole arbitrator, on
March 14, 1967, to decide on his own jurisdiction and, if need be, on the
merits of the dispute,
Whereas both parties, on September 25, 1967, met in Geneva with the
Arbitrator and signed the Ternis of Reference drafted hy him and approved
bv the Court of Arbitration of the ICC.
-~hereas the National Bank of ~akistan, in signing the Terms of Reference
and throughout the proceedings, has maintained ils position that the arbitra-
tion clause automaticallv came to an end the moment a state of war came
into existence between ~akistan and India,
Whereas Dalmia Cement Lirnited has rejected this contention and denied
that a state of war came into existence or Continues up to date between the
two countries,
Whereas, under the Terms of Reference signed by both parties on Sep-
tember 25, 1967, the "issues ta be decided" is described as follows:
"The Arbitrator appointed isrequired to hear and determinethe above
disoute in accordance with the Rules of ~ ~ ~lia~i~n an~ ~ ~ ~ration
of ihe ICC and to makc an award covcring in the first place the follouing
issue: 10 dccidc wheihcr the arbitration ~rocccdinrz institutcd bs the
Claimant came within the comoetence of-the ~rbitration Court of the
ICC and whether or not the Àrbitrator has jurisdiction ta adjudicate
upon the dispute, in conformity with Art. 13(3)of the Rules of Concilia-
tion and ~rbitration of the ICC."
The undersigned Arbitrator now renders the following Award:
1. The National Bank of Pakistan, the Defendant, has raised as a prelimi-
nary objection the ~lea of lack of jurisdiction of the Arbitrator and has
disouted the comoe&n7~ ~f the arbitration oroc-~ 7~~~~~it as--.~~ therefore
the position of a clairnant in thesc procccdings, ivhile DaIrnia, the Clnimant
on the mcriis, assunies ihai of a defendant on the question of jurisdiction.
This was agreed upon by both parties at the preliminary meethg held, on
September 25, 1967, at Geneva (Minutes, p. 2, No. 3: Position of Parties).
2. It appears convenient, therefore, ta discuss the arguments of the
National Bank of Pakistan, the.Defendant, first, as a general rule, following
roughly the order in which they were presented in their preliminary written
statements or in the oral argument and summed up in the written memoran-
dum submitted afterwards, this discussion being made in the light of theanswers and points made hy the Claimant and in the light of relevant legal
principles.
3. On the last day of the Geneva hearings, i.e., on Septemher 30, 1967, it
was decided by the Arhitrator, and agreed upon by bath parties, that each
.artv.could. if it so desired. send to the Reeistrar within 10 davs from
Scptcmbcr 30th. 4 memorandum sumining up rhcir oral argument and
containint: the rrfercnccs ro thc niithorities cited by thcm. The parties availcd
themselves of thisopportunity. The following anal& takes these memoranda
into consideration, to the extent that they remain within the agreed limits and
do not make new points which the other party had no opportunity to discuss,
and to the extent also that they do not deal with the merits of the dispute.
4. It should he stressed, lastly, that nothing in the following discussion
purports ta express, or can be considered as expressing, any opinion what-
soever on the merits of the case.
The present Award is limited to one issue only, as stated in the Terms of
Reference attached ta it (Annex I), that of jurisdicrion. The reasons why the
undersigned Arbitratorhas bath the right and the dutv to adiudicate on the
issue5 07 his own jurisdlciion, under Gtirlc 13of the.~ule\ of Conciliation
and Arbitrarit~n of the Iiitcrnational Chanibrr of Commcrcc, ha\,c bcen stated
in detail in the Arbitraior's "Order" of Sc~reniber 28. 1967(altachcd hercu,ith
as Annex li) and need not he repeated.
Did a State of War Come into Existence on September 6, 1965,
between India and Pakistan?
5. It is stronaly maintained hv the Defendant that the "hostile acts" and
"armed attack" of the Indian forces, on September 6, 1965, without any
declaration of war, undouhtedly created a "state of war" in al1meanings of
the term. This is denied bv the Claimant.
In its "written argumekts", (pp. 3 ff.)the Defendant mentions several
arguments in support of its conclusion, among which: (A) "The hostile acts
of India in theform of an invasion".
6. The events which took place during 17 days in Septemher 1965 in the
border region hetween West Pakistan and India are too wellknown ta warrant
a recital. For DresentDurDoses,there is also a sufficient measure of agreement
hetu,ecn thc parties as-10 actually took place alihough cunflict~ngvicas
and intcrprct;irions arc Iield, as is the rulc u,ith regard Io miliiary operaiions
anywhere.
7. Whether a "State of War" resulted from these events and from the
~ ~ - -- ~ ---
armed conflict which took place cannot he decided at this stage, hefore a
global evaluation of the other arguments invoked. since it is not dis~uted
that not al1 armed conflicts consthte "war", and that hostile acts against
another country do not necessarily amount to "war" in the legal sense. This
is made ahundantly clear by the authorities relied upon by the Defendant,
notably by the writings of McNair (TheLegal Effects of War, hy McNair and
Watts, 4th ed., 1966, Chapter 1 and passim): "Forces may be used by one
State against another withont any state of war arising" (McNair, p. 3). This
is shown also hy events like the Suez "incident" of 1956, when France,
Britain and Israel were engaged in hostilities against Egypt.
8. The Defendant relies next upon @. 3) (B) "Declaration of War by the
President ofpakistan on the 6th September 1965". on the Pakistan Radio-
an officia1copy of the broadcast is attached to these arguments-marked
"A". DOCUMENTS FILED BY PAKISTAN 751
Much reliance was indeed placed in the Defendant's oral argument on the
hroadcast delivered hy President Ayuh Khan on the 6th September 1965.
In the officialcopy of this broadcast (issued by the Press Information Depart-
ment, Government of Pakistan) areto be found, inter alia,-with a criticism
of Indian "aggression" and attack, which was made "without a forma1
declaration of war"-the words "Weare a%wor" and a statement to the effect
that Pakistan is invoking its right of self-defence under the UN Charter.
9. Whether or not the facts or claims referred to in the broadcast are
sufficient evidence that a "state of war" came into existence, a distinct
question remains: can the President's statement be considered as a "declara-
tion of war", as contended by the Defendant in its written argument and,
although somewhat less clearly, during the oral argument?
The answer, in my opinion, must be in the negative. In the words of a
leading authority much relied upon by both parties(Oppenheim-Lauterpacht,
InternationalLaw, Vol. II, 7th ed.,5 94, p. 293), a declaration of war is:
"a communication by one State to another that the condition of peace
between them has come to an end and a condition of war has taken
place".
It is obvious that the President's speech of September 6,1965, addressed
to his "dear countrymen" in no way was, or purported to be, a "communica-
tion" to India. The officialtext produced by the President, moreover,contains,
neither in its title nor elsewhere. the terms "declaration of war".
10. In September 1965,therefore, there was no "declaration of war" either
on thepart of Pakistan or on the part of India. No conclusion, however, can
be der&ed from this fact, since it is commonly recognised in International
Law, as rightly pointed out by the Defendant (written argument, p. I), that
a declaration is not necessary Cora state of war to exist (McNair, p. 7: Op-
penheim-Lauterpacht, p. 290 ff.).
11. The Defendant also relies (cf. points C to E) on various texts and
measures in Pakistan, the Proclamation of Emergency on September 6, 1965,
the Defence of Pakistan Ordinance andthe Defence of Pakistan Rules, of the
same date and other "Emergency Laws" (cf. the volume of 229 pages pro-
duced by the Defendant as Annex I),M. Law 168/1.000, (as modified up to
the 9th December 1965), and on "three notifications by the Government of
Pakistan as to contraband of war" of September9th and 1Ith, and November
15th, 1965 (written arguments, pp. 3-4).
12. Subiect to the comments to be made later on the significance of the
term, u\ed hy ihc Presideni A"uh Khan in ihe ~roclaniatio~ of Fmergency.
which is a maiier of di\pute berwcen the parties, itneeds only be ~ibserved
here that these texts cannot, taken in themselves, prove the existence of a
state of war, although they may possibly serve to corrohorate other evidence
of "war". The existence of a state of emergency does not establish the
existence of a state of war. as is evident from the text of Article 30 of the
Con>titution of Pakiitan (1962) which enunierates the vürious cause, of an
cmcrgcncy and the condir~on. in \\,hich the Pres~denimay i.;<ue a Proclanla-
tion of Emergency.
13. With regard to "contraband of war", the Defendant relies upon three
proclamations (wliicli have been suhmitted as Annexes J,K. L, to the written
arguments), issued by the Ministrv of Commerce and signed. resvectively, hv
a Depuiy Secreiary îna a Joint ~c&eiary Io the ~inistr;. tach proclam~tion
hegins as folli~ws:"Whereas a siatc of iiar exisis between Pakisian, on the
one hand, and India on the other". On the other side. it was araued by the learned Counsel for the Claimant
thatsuch admini\trttive rrg~l~lions origin3ting froni a ministry could hxrdly
carr,' the samc u,cighi as a Proclaniation by the Heid of the State. It might be
addéd that the words iust cited are contained in a mere recital and not in the
operative part of the-proclamations, and do not thus purport to have any
oarticular legal force. The fact remains, however, that these words have heen
"sed and thev mav be considered at least as evidence of the ooinion held at
the time by the officia isvolved in the Ministry of ~ommerce,'and, perhaps,
whén put together with other evidence, as a relevant factor in the solution
of the present problem.
14. Analogous observations may be made in respect of other facts men-
tioned by the National Bank of Pakistan, like the contraband lists issued by
India, the seizure of ships and the appointment, by both sides, of Custodians
of enemy property. Such facts, at least taken independently, cannot be
considered as sufficient and conclusive evidence of a state of war, but they
should be kept in inind for consideration :n the future stage of "global
evaluation" of the situation prevailing in September 1965.
15. Turning now ta the points made by the Claimant, Dalmia Cement
Limited, in order to substantiate its contention that no state of war came
into existence, 1 must consider again the wording used by the President of
Pakistan in the Proclamation of Emergency No. 119/1/65-Min., dated the
6th September, 1965.
~ ~ ~ ~rticle 30 (1~,.fa1' of the Constitutio~-of Pakistan on the le~-slative
powers of the President in an emergency, the President has the choice, in
order to exolain or justify the issuance of'a oroclamation of emergency, to
say that he 1ssatisfied thaï a grave emergency-exists- . ~
"(a) in which Pakistan, or any part of ~akistan, i~ (or is in imminent
danger of being) threatened by war or external aggression; ..."
On September 6, 1965, therefore, the President could statethat Pakistan
was "threotened by war"-which, in any case, is not the same as stating that
Pakistan was "at war". Lnstead, President Ayub Khan chose the second, and
more cautious, formula and stated that Pakistan was "in imminent danger of
beiitg threatened by war".
This choice cannot have been made inadvertently on such a serious
occasion, sa the Claimant's argument runs, and it is highly significant.
16. Invited by the Arbitrator ta comment on this argument, the learned
Counsel for the National Bank of Pakistan. while statine that he did not
know for what reason the President elected t'ouse one rather than the other
formula, expressed the opinion that such choice of language was uninten-
tional and devoid of anv oarticular meaninp. ln the written text submitted
after the hearing, however, the Defendant attempted ta give an explanation
as follows:
"The emergency was proclaimed the moment the President received
information that Pakistan was going to be attacked, that the lndian
forces were marching towards it. The proclamation came when the
attack was already on. The proclamation said 'A state of emergency
has been declared' whichshows that already before the proclamation of
war (sic) there was a state of emergency" (p. 3).
17. As previously pointed out (supra, No. 3), it would not be proper to
take into account new points or arguments which the other party has no
opportunity to discuss. Moreover, the explanation just quoted is hardly clear DOCUMENTS FILE0 BY PAKlSTAN 753
or convincing, repeating as itdoes a confusion between the President's
broadcast and a "proclamation of war" (cf., supra, No. 9). However that
mav.he. .o evidence whatever has been nroduced or offered to show that the
"proclamation of emergency" was in f&t issued before the Indian attack.
18. While, on the one hand, the wording used by the President of Pakistan
in the Proclamation of Emergency tends clearly to indicate that there was,
in the opinion of the Government, no state of war, the language used in the
President's broadcast and in the regulations about contraband obviously
nives indications to the contrarv. as well as the hooklet nroduced bv the
~epïrtment of filinsand ~ublica;~ons f7'heIndo-Pakisrati w&, IJ~lu~h-bock).
19. It h3s bcen contendcd ihai 3 Govcrnment's statemcnts are "conclusi\,e"
with renard to the vroblem whether a state of war exists or not. Thev.mav .ell
be conc>usivein ~nglish municipal Law for the English Courts, as aiithoriiies
dunicd by XlcNûir and by the Defendrnt seeni 10 indicate, but this does not
mean that thev should. or can. be taken as conclusive bv an Arbitrator in an
international arbitration und& the ICC Rules. lndeed they cannot be so
considered, but they are facts which should not be neglected, of course, while
assessing the situation as a whole between the parties.
20. The position is aptly described by McNair (op. cif.p. 8).
"SR seriousa motter au the existenceof a state of war is not liglirly
ro be implied. Furrhermore,where leadingpolitical figures of a corrnfry
engagedin hosfiiiriesrefër to their cor,ntrybeing'nt war' carrfionmlst be
exercisedbefore concludingtherefrom that a store of war exists in any
legal sense,sincesrrchrejorencemay prove tobe more of emorional and
polirical significoncefhonlegal."
Even nreater caution must. a fortiori,be exercised with regard to facts or
statçmenir reported, accuratels or not, in newspapers, siich 3; the itatements
reported in the many press extracts reproduced from the Pakisiani press in the
files suhmitted hy the Defendant after the hearing.
21. Another argument put forward by the Defendant during the oral
proceedings was that the cease-firedid not end the state of war but was the
best proof that such stateexisted. On a question by the Arbitrator, the learned
Counsel for the National Bank of Pakistan replied that they could not quote
authorities to support that contention but they did rely on this "logical
arg-ment".
No long refutation is needed to demonstrate that a cease-fire may be
regarded as a proof that there previously was "fire", i.e., fighting between the
parties, but certainly not as a proof that such fighting was "war".
22. The armed conflict which look place during 17days of September 1965
should nor be considered in isolationbut seen in the general context of India-
Pakistan relations. which had been strained ever since the Kashmir dispute.
In the year 1965, iitthe beginning uf August. a revoli took place in ihç p.rrr
of Kashmir occupied hy India. iheorigin of whiih u~~sassribed by the Indians
Io Pakistani "auerillas". ivhcreas. nccording 10 a P~kistan version, ihe rci,oll
was initiated by "freedom fighters" amongthe local population. Eventually
both Indian and Pakistani troops seem to have crossed the cease-fire line.
Then the conflict, until then confined to Kashmir, spread to new areas
when Indian trooos attacked and crossed the border in the Lahore reeion. -.
on Septemher 6, i965.
23. The facts need not be recalled in detail, and it is enough to state that,
while the first Resolutions of the UN Securitv Council were not heeded. bv
the parties and the efforts of the UN ~ecretaj-~eneral U Thant to stopthé754 ICA0 COUNCIL
conflict proved unsuccessful. a third Resolution of the Security Council.
orderini ü ccase-lire as of Scptcnibcr 2?, ai 7 a.in. was finülly~rcspccted:
Meûn\rhile the Soviet Union had i,Rcrcd itigood oilices nhich, acccpicd on
Sc~tcniber 21 hv Pakisinn and on Seotçriiber 22 bv India. Icd evcntusllv to
the Tashkent mëeting on January 4, i966.
24. ln his report of September 17 to the Security Council UN Secretary-
General U Thant described the military situation; he stated that the cease-fire
line in Kashmir had been violated by both parties and that the fighting had
spread ta the border region between India and West Pakistan, a situation
which, in his opinion, was equivalent ta a state of war.
This statement tao is capable of different interpretations: it may appear
ta strengthen the Defendant's case on the one hand while, on the other, it
may he thought that, had there been a state of war stricto sensu, the UN
Secretary-General would have said sa. Again, caution must he exercised when
assessing the legal significance of statements made by leading political figures
(cf. McNair, p. 8).
25. This leads me ta the question whether the fact that both parties are
members of the UN0 has any relevance. In reply to this question put to the
parties by the Arbitrator in the course of the oral proceedings, a negative
reply was given by the Defendant whereas the Claimant gave an affirmative
answer.
It has been contended hy some authors that, in view of the provisions
of the UN Charter (e.g., Arts. 2 (3), 2 (4), 28, 33). a state of war cannot
exist between members of the United Nations. But this view is not generally
held and it must be admitted, with McNair (p. 17) that
"these obligations are not so tightly drawn that States may never resort
to armed force otherwise than in violation of their obligations under
these articles".
26. However this does not, and cannot mean that the UN membership of
bath lndia and Pakistan is irrelevant and devoid of significance-a conclusion
which is hardlv to be reconciled moreover. with the fact that bath Parties
did obcy the u~ase-iireorder of the ~ecuriry~oiincil. on Septeiiiber 22. 1965.
and with the fact th31the I'rejidcnt of Pakistan. in his bruadcast of Scptembcr
6. exnresslv invoked Pakistan's rizhts under the Charter.
27.'~hc~ohli~ariunsof both 1nd;a and Pükirtan under the Charter -a tex1
nhich purports tiiprohibit or a1 least rcgulatr the use of force---arc bound
to have some effect and some relevance uPon the auestion whether a "state
of war" came into existence on ~eptembei6, 1965. This minimum effect may
be descrihed as follows: in case of doubt as ta the answer ta he given to that
question, the answer should be negative rather than affirmative, for the
existence of a state of war can certainly not be presumed between members
of the UNO. On the contrary, it must be presumed, in dubio, that each
Member State. if and when it is usinp. force. intends to use it in a manner
consisicnt ivithits obligations undcr thc~harter (especially undcr article 2(4)).
It should he notcd thar thc undertaking to "r<.froin/rum rhr rltrear ur tire
~. force". as -enerallv interoreted. "covers a considerablv wider range of -
actions than the phrase resorr ro wmaars used in the Covcnant and interpreted
in the practicc (I Flic League" (Goodrich-Hambro, The Charrer of rhr U.N.,
2nd ed.. 1949. o. 104). Since the authors of the Charter clearlizintcndcd to co
further'than mere~~prohibit a "resorf fo war" and prohibited the use Gr
mere threat) of (armed) force, it follows that, if the Members of the Organisa-
tion must be presumed not to intend to use force (except within the narrow DOCUMENTS FlLED BY PAKISTAN 755
limits allowed hy the Charter), they must afortiori he presumed not to intend
to resort ta war.
28. To the extent at least that the intentions of the parties may be relevant,
in the present case, in order to answer the question whether a state of war
came into existence in Septemher 1965, to that extent, then, it cannot he
disputed that their position as memhers of the UN is a factor to he taken
into consideration hy the Arhitrator.
1 shall now proceed ta coiisider further what are the governing legal
principles as to the existence of a "state of war", first under International
Law, then under a relevant municipal system of Law.
29. What is "war" in internarionalLaw?
There is of course no unanimity among legal writers as to the definition
of war and it has even heen contended hy some that "each separate use of
that term requires its own definition in the light of its particular purpose"
(cf., the authors quoted by McNair, p. 6). The matter is of some difficulty;
itmust he admittedthat the conceDt of war may well hear a different meaning
(c.g.. "a technical" ineüning and a coinrnoniense one) ior difereni purpal%&
(e.g., in Iniernationîl Lau and Mitnicipsl Law), and that the terni niay have
to he inter~reted in various wavs in different legal documents. accordinn.to
the context (cf. McNair, pp. 10;44-45 and passim).
Not surprisingly therefore, "it may well happen that the question whether
certain acts create or not a state of war cannot he answered with ahsolute
certainty" (Guggenheim, Traitéde Droit internationalpublic, II, p. 350).
30. There is enough general agreement, however, on the constituent ele-
ments of "war" ta justify certain conclusions in the present case, as will
presently he seen. According to one leading authority much relied upon by
the Defendaot, Oppenheim-Laiiterpacht (Vol. 2, 7th ed., p. 202).
"War is a contention between two or more States through their armed
forces, for the purpose of overpowering each other and imposing such
conditions of peace as the victor pleases".
Elahorating this definition, the learnedauthor points out (p. 208) that "The
last, and not the least important, characteristic of war it its purpose. It is a
contention hetween States, for the purpose of overpowering the other". (Cf.
also Westlake, InternationalLoiv, II, 1913,p. 1.) And he stresses the necessity
to distinguish from the "ohjects" or "ends" of war, which may be different
in each case, the '>purpose" wliich is always the same-"namely, the over-
powering and utter defeaf of the opponent" (P. 225).
31. Whether or not a subjective element, the animus belligerendi, is a
constituent element of the concept need not he decided here. In the words
of Sir Wilfrind Greene, M.R., in the famous Kwasaki Kisen case (Kawasaki
Kisen Kabushiki of Kobe v. Bantham S.S. Co. Lfd. (1939) 2 K.B. 544, 557
(C.A.)). "What animus belligerendi meant was again a matter of obscurity
and to define war hy relation to it came near to define war hy itself."
The fact is that, ta quote Scliwarzenherger (The Frontiers of International
Law, 1962, p. 249):
"States may contend through their armed forces but, as in the case
of the extensive battles in 1938and 1939 hetween Russian and Japanese
troops on the frontier hetween the Soviet Union and Manchukuo, may
be unwilling to consider such acts as a state of war."
32. The undeniahle and undenied fact is that not al1 armed conflicts
between States constitute wars. After 1945 as well as hefore "States are likely756 ICAO COUNCIL
to continue to resort to armed force ond to do so in circumstances which do
not resirlt in a stafe of war" (whether by taking advantage of those provisions
of the Charter which in certain situations permit, or may be argued to permit,
the use of armed force, or by committing a breach of their obligations under
the Kellogg-Briand Pact or the Charterw-McNair, p. 19).
33. There is a need. therefore. for distineuis-ina "wa-s" from "conflicts
net omountitag tu worr". One po~ible critcrion is ï subjective one, the animiis
bclligrrrndt, I.Ç., the intention (of al least one of the parties-provided, il
would seem. that this ivillto be ïtwar is "unnristokohly" and "tineqriivorully"
expressed; if. Schwarrenberger, p. 250, who stresses Ïhe connection betwéen
this notion and the question whether there is a "statns mixtus", distinct
from both war and oeace. It mav be noted in oassing that the Defendant
strongly contended ihat there was no intermediate state between war and
peace, whereas the Claimant took the opposite view. Schwarzenberger
effectivelvcriticises the "doctrine of an alternativecharacter of oeaceand war"
and shows how far the reality of State practice has gone from ihe old theory;
op. cil., pp. 242-248).
Another more obiective criterion is sugnested bv McNair (P. 19): "The
most noticeable distinction between a conflk not amounting tiwar and war
itself is that the former is essentially limited, while the latter is not".
34. The two approaches may perhaps be brought somewhat nearer to each
other through the use of definition quoted above and the idea of "purpose"
of war. Whatever the ends of war may be, and whatever the aims of land or
sea warfare. the "ouroose" of war remains "the overoowering and utter
defeat of the opPoneni" (Oppenheim-Lauterpacht, p. 225). In oiher words,
war always implies, from thispoint of view, hostilities of a "generol"character
in contradistinction to armed conflicts short of war.
35. Considered in the light of those principles, how are the events of
September 1965 to be characterised?
With regard to the "general" or "limited" character of the conflict, it is
clear that the fighting involved a substantial number of troops on hoth sides
(more than 21 Indian divisions and 7 Pakistani divisions, according to the
Pakistani booklet. submitted by the Defendant. entitled Indo-Pakistan War).
It invo~ve~ "extensive ~c~i~n~b; land and air forces and minor naval action"
(~c~air Appendix: "Note onindo-~akistan ~ostilities", p. 457) which took
place mainly in the Sialkot and Kasur region, near the border between India
and West ~akistan, 14 miles from ah ore In the circumstances, it is no1
surprising that the term "war" should have been used on a number of
occasions in the oress and in some political statements-a fact which, for
reîsons already mentioned. cannot be considercd as legally decirive.
36. On the other hand, it is intcresting to note thït the fighting was geo-
araohically Iiinitcd to a comv~ratively small portion of the frontiers between
the-two countries. ~oreover, although tanks and planes took part in the
fighting and the number of casualties was not negligible, the hostilities did
not assume an extreme or extraordinary character. According to foreign
observers. both countries seemed to hesitate auite understandablv. before
embarking on full-scale hostilities (for instance a correspondent of ihe Swiss
leading newsoaoer Neue Zurcher Zeitung, reported on September 16, 1965,
that aiertai" ~ ~ ~io~ seemed to be used in the fiehti- -and that tank saua-
drons were (~pposedin the Sialkot region. uithout engaging in deçisive action.
Independent observcrs had the impression that the commanding officers on
both sides maintained a somewhat cautious attitude (which can easily be
justified, among other factors, by the uncertain political situation, the absenceRcsolution on a cease-fire indicïtes that ildid intend to fulfil its obligations
and exercise ils right of Memher of the CNO. One is therefore tcmptcd to
drdw the conclusion that, if any "prcsuniption" may be based on rhc use of
force by the dttiicked Starc11 isa preiuinption rüthcr againrt than in favour of
the %\II Is wîgc "wdr", a prcruniption that self.defcnce uill be limited and
the use of forcc kept ivithin the gencriil limits of the C:harrer, pcnding action
by the Security Council (cf. also McNair, p. 16).
42. It must be admitted. however. that the situation is ambiruous with
regard to the "intention" or animus 'belligerendi of Pakistan. N~W, is this
ambiguity as ta the "subjective element" put together with the denial of
India that a state of war exists sufficient (quite apart from any consideration
of "objective elements" such as the limited character of the conflict) ta
warrant a conclusion in the negative (in the sense of McNair's argument,
pp 9-10).
Before coming to any conclusion, it is necessary ta take into account
other elements, if any, and to look more closely into the conduct of the
~arties and into the effects of the outbreak of the hostilities. Whether or not
~hescfdcrors arc rreïklcd as '.objcctivc" or rcflecting the intentions of the
parties. they ceriainly are ta bc givcn much neight in îny aitcrnpt at charac-
terizing the conflict of September 1965.
43. The first factor of importance is that of diplomatic relations.
"The outbreak of warat once causes the rupture(fdiplomatic intercourse
between the belligerents, if this has not already taken place"
writes Oppenheim-Lauterpacht (5 98, p. 301; cf. also Guggenheim, II,
p. 356). Consular activities, likewise, came to an end. This well-known fact is
confirmed by the Defendant (written arguments, p. 1)quoting MacGardie J.
in the case Naylor Benzon & Co. v. Krainische IndustrieGesellschaft (1918)
1 K.B. 331, 336:
"War effects a supreme intervention. It precludes all intercourse
between the parties. It results in extreme consequences".
44. On the other hand, in an "armed conflict not amounting to war'',
the totality of the relations between the parties "is not necessarily disrupted"
and diplomatic relations between them "may, or may not, be broken off"
(McNair, p. 19). Diplomatic relations were broken off, for instance, at the
lime of the Suez conflict, in 1956,between Egypt on the one hand and France
and the United Kingdom on the other, a conflict which does not seem to
have been considered as "war". They were maintained between China and
India during the fighting between them in 1962(cf. 67 Revuegénéralede droit
international oublic 1963. no. 136. 143).
45 ~uringtheconflict oC~cptcmhc; 1965,the dipiomdtic relationç betucen
India and Pakistan were ncvcr formally broken off-and the Defendant ncver
contended that they were, contenting jtself (on p. 4 of its written arguments)
with quoting one author, Webber, in flat contradiction ta most authorities
and ta ils own quotation (p. 1) of the Naylor, Benzoncase, to the effect that
severance of diplomatic relations is "not essential". Although the activities
of both diplomatic missions were restricted and the personnel reduced, no
rupture of diplomatic relations occurred-a significant fact, taken in itself
as well as seen in relation to the other "soecial features" of the conflict. es..
~ ~ ~ . -.
its limited character.
46. It should be noted, lastly, that, in Section V of the Tashkent Declara-
tion of January 10, 1966, the Prime Minister of India and the President of DOCUMEPITSFILED BV PAKISTAN 759
Pakistan agreed that the High Commissioners of both countries "will return
10 their posts and that the normal functioning of diplornatic missionsof both
countries will be restored". Such language clearly refers to a lifting of the
restrictions imposed, on both sides, on the activity of diplomatic missions
and confirms, a contrario, if need be, that diplomaticrelations had never been
broken off.
47. Little need be said on postal communications between the two coun-
tries, a subject which was discussed hy the parties in their written statements
and in their oral addresses. Although there was no agreement as to the
extent to which postal relations had continued after September 6, it was not
alleged by the Defendant (ex.. in its written statement of 27 Seotember. 1967.
p. 4) ihat postal sommu~ni~aiions iiere totally inierrupted or suppressed:
Thts Tactalone niay he held as significünt in the light ofthc authority quoted
by the Defendant itself (on D. I of itsiritten ar-uments) that war "orecludes
al1intercourse between theparties".
48. The second factor which remains to he examined is the continued
existence of treatiesbetween the two countries.
While the question of the effect of war on treaties "remains as yet un-
settled", according to Oppenheirn-Lauterpacht (11,§99,p. 303). it is generally
agreed that at least certaincateaories of bilateral treaties nreviouslv concluded
by the belligerents are ipsofa20 annulled through war; some wkiters main-
taining the traditional doctrine that the outbreak of war cancels al1 treaties
previously concluded between the oarties.
49. 111stherefore intcrîsting to note thai not one of the trcaiics concluded
by lndia and Pakisian before Sepiember 1965secms io haire bren considered,
on either side, as canceiled; at least no contention and no evidence to that
effect has been forthcoming from the Defendant. On the contrary, evidence
may be found to show that hoth countries have viewed their treaties as still
in force. On the Claimant's side, reference was made to the fact that India
continued to effect payments to Pakistan under the Indus River Treaty.
It is common knowledge also that the Treaty concluded on June 30, 1965,
in order to arbitrate the .question of the Rann of Kutch was finally im-
plemented by both parties (if not actually during the hostilities, of course,
but shortly after the Tashkent Declaration of January 10, 1966, i.e., on
February 15, 1966). McNair writes on this ooint (o. 458): "Both States
apparently regardrd theexisting Kutch ~rbitraiion ~grecmc"t bctuecn them
as continuing in force. taking action undcr itin conncction with the îppoint-
ment of arbitrators".
Moreover, this view finds confirmation in Article VI of the Tashkent
Declaration, whereby the Prime Minister of India and the President of
Pakistan agreed "to take measures to implement the existing agreements
between India and PakistanW-and not, for instance, to "revive" former
agreements cancelled by a "war".
50. While it is generally recognised that war entails, and must be analysed
as, a cornolete ruoture of international relations-of which treaties are the
most perfect legil expression-, the continued existence of treaties as well
as of diplomatic relations between the parties cannot be reconciled with a
"state of war". It proves or confirms, by the conduct of both parties, that
the hostilities of September 1965 were a "conflict not amounting to war".
51. This conclusion is not only in keeping with authority, and with the
obligations of the parties to the conflict under the UN Charter, it is also in
the obvious interest of both countries. It is appropriate here to quote McNair
again (pp. 15-16): "States have not always wanted to embark upon a full-scale state
of war, the circumstances and consequences of which would perhaps
he out of al1proportion to the particular end to he achieved, but have
instead frequently had recourse to a limited degree of force. This has
hecome accepted in international law as not necessarily giving rise to
a state of war and as compatible with the continuation of a state of
peace".
And the leamed author, after stating that "the existence of a state of war
depends upon the determination of the parties to the conflict and can arise
where only one of the parties to the conflict asserts the existence of astate of
war", writes elsewhere, in the same line of thought (p. 8):
"Such a view has not proved without advantages. It has enahled
conflicts, even if militarily extensive as between the partiestostayessen- '
tially limited rarher thon to entail the overall dislocation, both inter-
national and municipal, both military and civil which would accompany
the escalation of those conflicts into a state of War".
52. In the face of overwhelming and decisive evidence to support this
conclusion, there is no need ta discuss at length other elements, relied upon
by the Defendant in favour of its contention, and already referred to above,
at least in. .rt. such as seizure of enemv..rooe.tv.. .oclamation of state of
emergency, rules as to "contraband of war", etc. Some of these measures at
least, like the proclamation of emergency are quite compatible with a state
of hostilities not amountine to war.0thers mav have hien looselv termed,
or may reflect the uncertai& which existed at ihe time in the minds of the
drafters, or may even be of douhtful legal value. However that may he, none
of these elements is of such nature or imoortance as to countervail the
conclusions already arrived at.
53. For the reasons previously mentioned, 1 therefore find that the Indo-
Pakistan hostilities of Seotember 1965. althou~h admittedlv somewhat of a
horderline case presenting "special features", did,not consiitute or create a
state of war in the sense of International Law.
54. It remains to be seen whether the same or a different conclusion is
justified in the,field of municipal Law. This is particularly necessary in as
much as, as already said above, the term "war" may well bear different
meanings for various purposes and in different contexts.
By "municipal law" is meant in the present case the Common Law of
England, which, as stated hy both parties in thecourse of the oral proceedings,
is basicallv the law of both Pakistan and India. under their resnective Con-
siitutions.~until and unlesi othcriiise providcd by Ststutc ~aii and spccial
cnactnicnt. Huih p~rties have, sonsequently rclieil upon the Comiiion Law
and cited English authorities in support of their contentions.
55. The Defendant, in particular, summed up the legal position as seen
hy it in its w~itten arguments suhmitted after the hearing (p. 1). It stresses
the fact that no declaration of war is necessary: this cannot he disouted and
is estahlished by clear authority (e.g., per ~ord Stowell in the ~liza Ann,
1813/Dods. 244, 246). .
- The Defendant fuither stated:
"A study of the authorities leaves no douht that, the moment thereis
a hostile act by the authority of the State, rhere cornesinto existencea
state of war, the reason heing that such act is an implied declaratio. o.
war and is inconsistent with a state of peace". . . DOCUMEMS PlLED BY PAKISTAN 761
56. This statement cannot be accepted, however, as an accurate summW
of the Law and is in obvious contradiction to the observations made ahove
on the use of force hy a State short of war and to the statement made, and
the authorities cited, by McNair under the heading "Armed conflicts not
amounting to war" (pp. 45 ff.).
To Say that, for "war" to come into existence, there should be hostilities
under the authority of the State, does not entail that there is "war" every
time there are hostilities under the authority of the State. A "necessary
condirion" should not be confused with a "sufficient condition".
57. This evidence confusion appears to be related, in the Defendant's
argument, to the English judicial theory (on which more will presently be
said) of thealternativecharacter of peace and war. But the fact that, according
to a body of judicial decisions, no intermediate state between peace and
war is recognised, does nof mean that any hostile act, any armed conflict
excludes astate of peace: the point is clearly seen in the following quotation
of McNair (p. 45):
"... English Courts do not recognise any intermediate state hetween
peace and war. Therefore, in the evenr of rhere beingan armed conpicr
whichdoesnotgive rise ro a srareof war, a state of peace would still be
considered to subsist".
58. Although the Defendant concedes (p. 1) that "there may be fighting
which is not war", it repeatedly seems to argue that a hostile act of the State
is enough to create war. Referring to McNair and Halsbury, it writes for
instance (p. 2, written arguments):
"... There is an extract from an article hy McNair, reproduced in
Oppenheim's In~ernarionalI~aw, 1953,7thedition, p. 299,footnote, which
says war comesinro existenceby the hosrileact of a Store".
In fact, in the full text of the footnote referred to (p. 299, note 3), an
essential element is to be found, which should not he overlooked, that of
animusbelligerendi, it has already heen discussed at some length (sripra,No.
31) so that further comment is unnecessary. Suffice it to Say that it is mis-
leading to suhmit, without qualifications, that "a hostile act, because it has
the same force as declaration has the same effect on peace. It puts both
parties in a state of war".
59. The Defendant has underlined the fact that, in English Law,
"... It always helongs to the Government of the country to determine
in what relation any other country stands towards it;thatisapoint upon
which courts of justice caiinot decide (per Sir William Grant. in the
Pelican, 1809, McNair, p. 37)".
This doctrine of the conclus~ve~ ~~ ~f statement~ hv the -<ecutive in
relation to such matters as war and peace is of undisputed importance for
the English judge and also, it would seem, for the Indian or the Pakistani
judges.- ut it is not clear what relevance it may have for an arbitrator in an
international arbitration such asthe present one, even ifit should be governed.
in part or in toto, hy India or by Pakistani Law.
60. These points need not be discussed here, however, since 1 find that,
for the reasons outlined ahove, the Government of Pakistan did not choose
to regard the Indo-Pakistan hostilities of Septemher 1965 as "war" with the
"overall dislocation" and total disruption which such a state of affairs im-
plies. This conclusion, first reached on the hasis of International Law, isequally justified for analogous reasons, on the basis of English Law-which,
while apparently acknowledging, like International Law, "that war has a
technical meaning", "knows no technical definition of a state of war"
..c-~-r~~no~.~. and 361.
To quote again a leadkg case relied upon by the Defendant (p. 1: Naylor,
Benron & Co. v.KrainischeIndustrie Cesellscha/r [191811 K.B. 331,336, per
Ma~ ~ -~~ 1.1:"war effects a suoreme intervention. Ir orecludesallinrercourse
betueen the parties. lt results in exireme conscquenccs". This belne the case.
1have no alternative but to find rh~tal1intercourse ncvcr wa, prmluded eirher
between the countries concerned or between their citizens so that there could
not have been any "war" in the technical meaning of the term. This is
confirmed by the various facts and reasons referred 10 above.
Arrivine al this conclusion uoon the basis of municival law and with
reliance ueon the auihoritics quoted by the Defendûnt. 1find iiunnecessary
to examine u hether the marier should be ionsidered specificall) with respect
tu Indian Law, claimed hy Dalmia to be the proper ~aw of the contract and
of the arbitration clause, or with respect to the Law of Pakistan, or with
respect to the Law of England, being the Common Law applicable in both
the countries of the parties.
61. The Defendant has also stressed, bath in ils written statements and
in the oral argument, that English Law "recognises a state of peace and a
state of war, but . .. it knows nothing of an intermediate state which is
neither the one thing or the other-neither peace nor war" (Janson v. Drie-
fonrein ConsolidaredMines Lrd. [1902] A.C. 484, at p. 497, per Lord Mac-
n~ - ~n~, The Claimant has contended. on the other hand. that there was
a "third category", a "grey zone" of "armed conflict not amounting to war".
Owing to the importance seemingly attached hy the parties to this contro-
versy;it would have been appropriate to Say a few words upon the subject,
but forthe fact that no decision on it is necessary al al].
Since there is no "state of war", it is superfluous ta enquire here, in a
discussion limited to the subiect of the Arbitrator's iurisdiction, into the
consequences if any, of a stite of armed conflict n$ amounting to war.
It is unnecessary ta point out the relative confusion, prevailing in English
decisions. as to the line between veace and war (cf. McNair. . . 34 ff.), or
IOexplain thc prüciice of the ~ngii5h Courts. witl; S;hwar~enbcryer (op. cit.,
pp. 243-244) by iheir ide^of the desirable divicion of functions between the
iüdiciarv and the executive and by a legitimate concern for the certainty of
iheir mhnicipal law. The whole controiersy turns in fact on a question of
definirionsand, provided it is remembered that, as said above, "war" may
have various meanings for different purposes, there seems ta be no serious
disadvantage in accepting with the Defendant, the traditional view of the
English Courts that everything which is no1 "war" is "peace".
62. It follows that in the absence of a state of war. as far as the issue
under consideration is concerned, the arbitration clause, contained in the
"Bank Guarantee" is still binding on the parties and that the undersigned
Arbitrator has iurisdiction in the present case
This conclur~on, ïnd the reüson-ingwhich underlier ilare uiihoui prejudice
tu any conclusioii whirh iiiighr bc reached. in an examinaiion of the nierits.
on the daims or arguments put forward by the parties. for instance on the
legal staie of alTair;prevaili~g both in ~akistan and in India, on the conse-
quences of eniereency legislaiion, on impossibility of perforniance, on conse-
auences of "enemy status" and prohibition of intercourse wiih the enemy.
etc. Although such questions were discussed at some length by both parties DOCUMENTS FILED BY PAKISTAN 763
in the oresent oroceedinzs. thev were not. and could notbe, examined by
the ~rl;itrator.'~aithin~ in lhe iresent Awürd as 10 the inexistence of3 "staté
<ifwar", iherefore, can beconsidercd as in any wïy bindingon the Arbitrütor
with regard to such questions.
63. Assuming even-ex abundante cautela-that 1should have found that
astate of war hadcome into existence on September 6,1965, it is most likely
that 1 would have reached the conclusion that the Tashkent Declaration of
January 10, 1966, terminated the "war".
While no declaration is necessary to create a state of "war", no declaration
is necessary either to create a state of peace; it is well known that, "in a
number of cases wars have came to an end hy the belligerents drifïing into
astateofpeaceaftercessation of the hostilities" (McNair, p. 41; in the same
sense Ooo. .eim-Lauteroacht. . " 261. o. 598). Armistice agreements. as a
general rule, do no1 niean'the cnd of the Siaieof uar. althoughreceni practice,
hcrc too. scenis tu he changing the iraditional rules. Honever, that müy be,
it is clear that "an armistice anreement mav he caoable of intervretation as
showing that hoth parties intended not onlia cessahonof hostiliiies but also
the termination of the state of war hetween them" (McNair, p. 15).
64. If a war may be terminated by the fact that belligerents abstain from
further acts of war and "glide into peaceful relations", a fortiori it must be
considered as ended when the parties, by a formal treaty (registered, as the
Tashkent Declaration. with the Secretarv-Geneial of the United Nations)
cxprcsscd "tkpir film reso/i,e10 re.wurenormal and pei~crji~lrelutioni bct\%ecn
iheir sauntries". Even ïssuminç that ihcre hïd previously bccn a "unr" (a
solution which the lanriuïcc ool'the Ta5hkent Ileclaration sannot be inter:
preted as favouring), the ~eclaration, which purports to effect, inter alia;
the "normalisation" of diplomatic relations (Article V) must be seen as
restoring "peace", at least in the sense (accepted by the English judicial
practice relied upon by the Defendant) of the "absence of the state of wari'.
Although of a political, rather than legal, character, the statement made hy
Premier Kosygin, of the Soviet Union, shortly after the end of the Tashkent
Conference (a statement which did not provoke any denial or protest from
the parties), may, he recalled, where he said "The Tashkent Declaration
restores the peace, normalises diplomatic relations hetween Pakistan and
~ ~ia. ~. ." , ,
65. Assuming, then, that a "state of ivür" c'imc inti~existence on Septem-
ber 6. 1965,het\\,cen India and Pükistan, ivhish was terminated onJaniiary 10,
1966,by the Tashkcnt Deilaratii~n a furtherquestion uould have tu hesctiled,
i.e., uhether the Claimsnt was eniitled, on July 4. 1966, to file uSiih the
ICC a rcquest for ürbitration, that ir to s3y IO rely on the arbitratii)n clause.
ln the oral argument, the National Bank of P~kisiïn contcnded, in respect
of the nieriis of the dispute. that, when the hosrilities broke oui on Septcmber
6. 1965. there was as vet no "ri.hi"..no "maturc claini" which Dïlmia could
invokeagainst the ~ank, such an "alleged right" having come into existence
at the earliest on.-Decemher 19, 1965 (reference heing..made here to the
relations between MI. Maneckgi andior the Company Pakistan Progressive
Cement Industries Ltd., Dalmia Cement Ltd., and the,National Bank. O$
Pakistan, and to the text of the Bank Guarantee; see pp. 94-95 of the volume
submitted hy the Claimant, Annexure No. 12).
Whether this argument is well founded or not (a &nt which could on];
he decided after full consideration of the merits), it may perhaps he used
as an analogy here, with regard to the right tu go to arhitration under the
arhitration clause. 66. When, on September 6, 1965, the alleged "war" broke out there was
in existence a valid arhitration clause between the parties, accepting the ICC
Rules of Conciliation and Arbitration and the iurisdictinn of ~~e~ --r~~~. . .~~-~ --
Arbitration oftheICC. This fact cannot and indkd has not been disiuted;
On the relevantdate, therefore, each party had the right as against the
other n. .v. unilaterallv, to suhmit a case to an arbitration under the ICC
Rules, should a disputé arise. Such a right was as "complete" or "mature"
as it could conceivably be-no other act or fact being necessary to make it effec-
tive. noreven the advent of areal "disoute"(sinceit isobviouilv enoueh. under
the 'arbitration agr&mént, and the- ICC '~ules, that one ;ahy iaims or
believes that there is a dispute, to enable such party to set the arbitration
~rocedure in motion).
67. Still assuminpthat war did break out on September 6, 1965, it would
seem to follow according to the Defendant's own line of reasonins-that each
party had then a "mature claim" ta go to arbitration, and that such an
"accrued right" was no1 destroyed or cancelled by war, but at the most
suspended until "revived" by the termination of the state of war.
Accen.ine.-here. for the sake of areu-ent. the Enelish-distinct~on ~ ~ ~ ~ ~ ~ ~
sevcral kinds of contracis (such 3s "executed" and "cxccutory" contraiti-
English "tcrm of art" which have no "Continental" synonyms, cf. hlcNair,
pp. 118 fi .nd Drost, CoritrocrsandPcace Trearier,The Haguc 1948.pp. X rf.),
1 cannoi see a v.ilid reason (nor has any suçh reason bccn put forward by the
Defendant) uhy the arbiiration contract or clause ought to be sonsidered as
belone-ne -. the class of contracts which are automa6callv disso.ved.~-~th~~.~ ~
than merely suspended at the outbreak of war; and it is superfluous to stress
the independent character of the arbitration clause, and the fact that the
nature of the udertaking,to arbitrate does not change hecause it happens
to he included in a contract having a different object, such a contract of sale
or guarantee, rather than in a separate arbitration agreement.
68. To conclude, there is no doubt in rnv mind that. when the Claimant
filed with thc Court of Arbitration of the ICC a requcsi for arbiirütion, thcrc
was in existence between the parties a valid and binding a&rccmcnrto arbitrate
under the ICC Rules, even assuming that there had heen a state of war
between India and.Pakistan.It is unnecessary to examine, then, whether
submitting to arbitration does involve "intercourse" with an "enemy" and
whether the authorities ~uoted to sumort this contention are relevant onlv to
.'English" or localarhitr~tions buislfo Io internalionalarbitraiions underthe
ICC Rulcs. It would beequally superîiuous todiscuss thc question whether the
paxties did, or could contemplate, when accepting the arbitration clause, the
possibility that a "state of war" or of an armed conflict short of war could
or would arise between Pakistan and India.
FOR THESE REASONS,
' The undersibed Arbitrator
Finds that the arhitration proceedings instituted by the Claimant come
within the cornpetence of the Arbitration Court of the International Charnber
of Commerce and that the Arbitrator has iurisdictionto adiudicate unon the
dispute in conformity with Article 13 (3jof the Riiles o<~onciliation and
Arbitration of the ICC,
Reserves the rest of the procedure for further decision, pending the drafting DOCUMENTS FlLEDBY PAKISTAN 765
of further termsof referenceaccordingto thICC Rules and to the termsof
referenceof September 25, 1967.
Done at Geneva this 18thDecember, 1967.
ProfessorPierreA. LALIVE,
Arhitrator.
Documents submitted to the Court after the closure of the Written Proceedings