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Aerial Incident of 10 August 1999 (Pakistan v. India), Judgment (Jurisdiction)

Published online by Cambridge University Press:  27 February 2017

Peter H. F. Bekker
Peter H. F. Bekker*
Affiliation:
White & Case LLP, New York
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Type
International Decisions
Information
American Journal of International Law , Volume 94 , Issue 4 , October 2000 , pp. 707 - 713
Copyright
Copyright © American Society of International Law 2000

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References

1 According to Pakistan, the aerial incident resulted in the death of all 16 personnel on board the aircraft, which was on a routine mission over Pakistani territory.

2 See Agreement on Prevention of Air Space Violations, Apr. 6, 1991, Pak.-India. Article 1 obligates both countries to ensure that violations of each other’s air space do not take place, and provides that if any violation occurs inadvertently, the incident is to be investigated promptly, with the other side to be informed of the results without delay.

3 General Act for Pacific Settlement of International Disputes, Sept 26, 1928, 93 LNTS 343 [hereinafter General Act].

4 By its order of November 19, 1999, the Court decided that the initial phase of the proceedings would address solely the question of jurisdiction. Hearings were held on April 3–6, 2000. Decisions of the ICJ are available online at <http://www.icj-cij.org>.

5 See Aerial Incident of 10 August 1999 (Pak. v. India), Judgment, Jurisdiction (June 21, 2000), para. 56 [hereinafter Aerial Incident Judgment]. Judge Al-Khasawneh (Jordan) and Judge ad hoc Pirzada (appointed by Pakistan) voted against the judgment, and appended dissenting opinions.

6 See Rosenne, Shabtai, 2 The Law and Practice of the International Court, 1920–1996, at 677–91 (1997)Google Scholar.

7 In support of its view that the General Act was organically and ideologically independent of the League of Nations, Pakistan cited thejoint dissenting opinion of Judges Dillard, Jiménez de Arechaga, Onyeama, and Waldock that was appended to a 1974 decision of the Court. See Nuclear Tests (Aus. v. Fr.), Judgment, 1974 ICJ Rep. 253, 312, 327–41 (Dec. 20) [hereinafter Nuclear Tests]. This dissenting opinion is discussed by Fathi Kemicha, counsel for Pakistan, in ICJ Doc. CR 2000/1, at 33–37 (Apr. 3). See Aerial Incident Judgment, supra note 5, para. 15.

8 Although the PCIJ was created by the League of Nations and operated under its auspices, the PCIJ’s Statute was not part of the League Covenant, and the Court was not a statutory organ of the League.

9 See GA Res. 268A (III) (Apr. 28, 1949), at 10. For the text of the Revised General Act, see 71 UNTS 101. Article 17 is among the provisions that were amended by the new, 1949 act. See Aerial Incident Judgment, supra note 5, para. 14.

10 Vienna Convention on Succession of States in Respect of Treaties, opened for signature Aug. 23, 1978, UN Doc. A/CONF 80/31, 17 ILM 1488 (1978).

11 Aerial Incident Judgment, supra note 5, paras. 17, 23. India’s communication was issued while different ICJ proceedings instituted against it by Pakistan were pending. See infra note 48.

12 See Aerial Incident Judgment, supra note 5, para. 18. In this connection, the parties also disagreed on the interpretation of a schedule to the Indian Independence (International Arrangements) Order issued by India’s governor-general on August 14, 1947, which was stated to have the effect of an agreement between the two countries concerning treaty succession. According to Pakistan’s interpretation, it had succeeded to the rights and obligations under all international agreements to which British India was a party. In India’s view, however, Pakistan could not have succeeded, under the 1947 order and agreement, to British India’s rights and obligations by virtue of British India’s membership of the League of Nations; Pakistan needed to submit a new, independent application for membership in the United Nations. In support of its view, India referred to a judgment issued by the Supreme Court of Pakistan on June 6, 1961, which found, in considering Pakistan’s status in relation to the 1927 Convention for the Execution of Foreign Arbital Awards, that Pakistan did not automatically become a member of the United Nations or succeed to the rights and obligations of British India deriving from its membership in the League of Nations or the United Nations. Pakistan claimed that this judgment could not be relied upon, because Pakistan had not had an opportunity in the case to express its views to the Supreme Court. See id., paras. 18–20; Yangtze (London) Ltd. v. Barlas Bros. (Karachi), Sup. Ct., Civ. Appeal No. 139, Judgment of June 6, 1961 (Pak.); see also Materials on Succession of States, UN Doc. ST/LEG/SER.B/14, at 133–41 (1967).

13 See Aerial Incident Judgment, supra note 5, paras. 22–23.

14 The Court justified its approach by pointing out that it “is free to base its decision on the ground which in its judgment is more direct and conclusive.” Id., para. 26 (citing Certain Norwegian Loans (Fr. v. Nor.) Judgment, 1957 ICJ Rep. 9, 25 (July 6) [hereinafter Certain Norwegian Loans]; Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ Rep. 3, 16–17 (Dec. 19) [hereinafter Aegean Sea Continental Shelf]).

15 Consequendy, Article 17 of the General Act, read in conjunction with Article 37 of the ICJ Statute, did not form a basis of jurisdiction in this case. See id., paras. 27–28.

16 Aerial Incident Judgment, supra note 5, para. 29.

17 See id., para. 30. Pakistan relied on a similar argument in an attempt to dismiss India’s reliance on British India’s reservations attached to its May 21, 1931, instrument of accession to the General Act. See id., paras. 24—25.

18 See id., para. 31.

19 See id.

20 See id., para. 36 (citing Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, Judgment, 1984 ICJ Rep. 392, 418 (Nov. 26)).

21 See id., paras. 37–38 (citing Fisheries Jurisdiction (Spain v. Can.), Jurisdiction, Judgment, para. 44 (Dec. 4, 1998) [hereinafter Fisheries Jurisdiction], obtainable from <http://www.icj-cij.org>); see also Kwiatkowska, Barbara, Case Report: Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, 93 AJIL 502 (1999)CrossRefGoogle Scholar.

22 See Aerial Incident Judgment, supra note 5, para. 40.

23 See id., para. 42 (citing Anglo-American Oil Co. (U.K. v. Iran), Preliminary Objection Judgment, 1952 ICJ Rep. 93, 105 (July 22); Certain Norwegian Loans, supra note 14, at 27; Fisheries Jurisdiction, supra note 21, para. 49.)

24 See id., para. 44.

25 See id., para. 45.

26 For a discussion of this type of reservation, see Stanimir A., Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice 112–19 (1995)Google Scholar; Rosenne, supra note 6, at 803–04.

27 See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, Judgment, 1984 ICJ Rep. 392, 424 (Nov. 26) (in considering claims alleging violation of principles of customary and general international law, the Court cannot dismiss the claims simply because such principles also have been enshrined in the texts of multilateral conventions relied upon by the applicant; therefore, if the claim before the Court is not confined to violation of the multilateral conventional provisions invoked, its adjudication is not barred by the multilateral-treaty reservation).

28 See Aerial Incident Judgment, supra note 5, paras. 32–33.

29 See id., para. 46. Since the case concerned an incident between the armed forces of the two countries, it is unclear why India did not, in addition, invoke the reservation contained in its Optional Clause declaration excluding “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by inter national bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved.”

30 Pakistan did not pursue this argument during the hearings.

31 See Aerial Incident Judgment, supra note 5, paras. 47–50. For a discussion of Article 36(1), see Rosenne, supra note 6, at 692–95.

92 Aerial Incident Judgment, supra note 5, para. 51 (quoting Fisheries Jurisdiction, supra note 21, paras. 55–56).

33 See id., para. 52 (citing Free Zones of Upper Savoy and the District of Gex, Order, 1929 PCIJ (ser. A) No. 22, at 13 (Aug. 19); Frontier Dispute (Burk. Fas./Mali),Judgment, 1986 ICJ Rep. 554, 577 (Dec. 22); Passage Through the Great Belt (Fin. v. Den.), Order, 1991 ICJ Rep. 12, 20 (July 29)).

34 See id., paras. 53–55 (citing Fisheries Jurisdiction, supra note 21, para. 56; invoking the Simla Accord of July 2, 1972, and the Lahore Declaration of February 21, 1999).

35 Interestingly, the authoritative language of the judgment, signed by a French president and a French-speaking registrar, is English and not French.

36 Aegean Sea Continental Shelf, supra note 14.

37 The Court’s refusal to entertain Portugal’s application in East Timor (Port. v. Ausd.) in 1995, although technically a dismissal, was based on a finding at the merits stage that the Court could not, in the absence of Indonesia as a necessary third party, exercise the jurisdiction conferred upon it to adjudicate the dispute referred by Portugal. See East Timor (Port. v. Austl.), 1995 ICJ REP. 90 (June 30); Peter H. F., Bekker, Case Report: East Timor (Port. v. Austl.), 90 AJIL 94 (1996)Google Scholar.

38 Fisheries Jurisdiction, supra note 21.

39 See ICJ Communiqué 98/14 (Apr. 6, 1998). The fact that only four days were devoted to hearing the parties’ arguments on jurisdiction is further evidence of this trend.

40 See Nuclear Tests, supra note 7; Aegean Sea Continental Shelf, supra note 14.

41 See Aegean Sea Continental Shelf, supra note 14, para. 39. If this approach were to be followed consistently, however, the Court could never say anything useful in a case involving a multilateral treaty, out of fear that its statements might reach beyond the rights and obligations of the parties to the case.

42 In the light of the increasing significance of domestic court decisions in international responsibility cases, it also would have been interesting to see how the Court might have treated the judgment of the Supreme Court of Pakistan, on which both parties relied. See supra note 12.

43 Inasmuch as two 1998 decisions dealt extensively with Article 36(2), the absence of significant new developments regarding that provision was perhaps to be expected. See Land and Maritime Boundary Between Cameroon and Nigeria (Cam. v. Nig.), Preliminary Objections, Judgment, 1998 ICJ Rep. 275 (June 11); Peter H. F., Bekker, Case Report: Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), 92 AJIL 751 (1998)Google Scholar; Fisheries Jurisdiction, supra note 21. The Optional Clause declarations of Barbados, Canada, Gambia, Kenya, Malta, Mauritius, and the United Kingdom all include versions of the Commonwealth reservation. No state in the Court’s history had previously challenged the validity of the Commonwealth reservation.

44 See supra note 27.

45 See Counter-Memorial (Jurisdiction) of Canada at 32–35, Fisheries Jurisdiction, supra note 21.

46 Fisheries Jurisdiction, supra note 21, para. 47. The Court’s subsequent statement in paragraph 59 of that judgment, however, appears to make a finding that a reservation is an integral part of a declaration dependent upon the specific circumstances of a case (“It follows that this reservation is not only an integral part of the current declaration but also an essential component of it, and hence of the acceptance by Canada of the Court’s compulsory jurisdiction.” (emphasis added)).

47 1972 ICJ Rep. 46 (Aug. 18) (dismissing India’s appeal of an International Civil Aviation Organization Council decision, the Council being found to be competent to deal with India’s application and complaint).

48 1978 ICJ Rep. 347 (Dec. 15) (order removing the case from the General List upon discontinuance of the proceedings).