India & Pak. before the ICJ

By B. P. Jeevan Reddy

A FEW days after the Kargil war, a Pakistani air force plane, an Atlantique, was shot down by Indian forces on the border in the Kutch region. Pakistan claimed that it was shot down while flying within its own territory. India said it was shot down when it intruded into Indian airspace. Pakistan made a claim of $60.2 million against India for wrongfully shooting down the plane and for the loss of the lives of 15 naval trainees said to be on the plane. When India denied its liability, Pakistan filed an application before the International Court of Justice (ICJ) at the Hague. India raised a preliminary objection as to the jurisdiction of the ICJ to entertain the dispute on the ground that while filing a declaration under Article 36 of the Statute of the ICJ on September 13, 1974, it had specifically made a reservation whereunder any dispute with any other country which was, or had been, a member of the Commonwealth shall not be within the jurisdiction of the ICJ. Both the parties agreed that this objection shall be heard as a preliminary issue.

According to paragraph 3 of Article 31 of the Statute of the ICJ, ``if the Court includes upon the Bench no Judge of the nationality of the parties, each of these parties may proceed to choose a Judge as provided in paragraph 2 of this Article''. Under this Article, Pakistan nominated Mr. Sharifuddin Perzadah and India nominated me. Pakistan's case was that (a) the reservation made by India (while filing its declaration of acceptance of compulsory jurisdiction of the ICJ under paragraph two of Article 36 of the Statute) was void being outside the ``conditions'' permitted by paragraph 3 of Article 36. Para 3 permits a country accepting the compulsory jurisdiction of the ICJ to attach ``conditions'' of only two types, namely, reciprocity and duration. Since the reservation made by India (commonly referred to as the `Commonwealth Reservation') did not fall within any of those conditions, Pakistan submitted, it was void. Pakistan also submitted that the said reservation, being directed exclusively against it, was discriminatory, abusive and arbitrary; (b) in 1928, the League of Nations had brought about a treaty known as the General Act (Pacific Settlement of Disputes). The Act provided for conciliation, arbitration and judicial determination of disputes arising between member- nations by the then Permanent Court of International Justice (PCIJ). In 1931, British-India had filed a declaration acceding to the General Act but with a reservation that any dispute between members of the Commonwealth shall not be within the purview of the PCIJ. Pakistan submitted that since it and India were successor-states to British-India, they were bound by the said declaration, which though made in favour of the PCIJ endures to the benefit of the ICJ by virtue of Article 37 of the Statute of the ICJ. At the same, it submitted that the Commonwealth Reservation contained in the 1931 declaration had become obsolete and outdated. It submitted that the said reservation was made in the light of the then prevailing opinion that disputes between the Commonwealth nations should be resolved within the Commonwealth, by creating an appropriate dispute resolution mechanism. No such mechanism was created and hence the reservation fails; (c) even apart from the reservation filed by India under Article 36 of the Statute in 1974 and the declaration filed by British-India in 1931, the ICJ had jurisdiction to decide the disputes arising between the member-countries by virtue of the several Articles in the U.N. Charter read with the Shimla Agreement and also under the customary international law.

India disputed the validity of all these. With respect to (a), India pointed out with reference a catena of decisions of PCIJ/ICJ that the power of a country filing a declaration of acceptance of compulsory jurisdiction under Article 36 of the Statute to append reservations was not restricted or governed by paragraph 3 of Article 36. It pointed out that the jurisdiction of the ICJ depended upon the consent of the states and that while expressing their consent (by filing declarations under Article 36), it was open to the country to attach such reservations as it thought appropriate. In particular, India relied upon a recent decision of the ICJ in the case of Spain versus Canada rendered in 1998. With reference to (b), India disputed Pakistan's assertion that it was a successor to British-India or that on that ground it became a part to General Act of 1928. It also disputed the proposition that the Commonwealth Reservation had become obsolete and outdated. In particular, India relied upon its denunciation of the General Act made by it on September 13, 1974. With respect to (c), India denied that the ICJ had the jurisdiction to entertain Pakistan's application either under the U.N. Charter or under the customary international law.

After the conclusion of the arguments, all the Judges decided that they shall meet and deliberate upon the matter for two days, April 17 and 18, 2000. According to the practice of the ICJ, the judgment is read by the President and not by the members of the drafting committee. Separate opinions and dissenting opinions are not even read or pronounced in Court. Of course, these are also made available immediately along with the Court judgment on the same day. They are also put on the internet.

The final judgment was pronounced on June 21, 2000. The Court held (a) that the right to append reservations outside the purview of paragraph 3 of Article 36 was well-accepted and well- established and therefore the Commonwealth Reservation contained in India's declaration made on September 13, 1974, was not invalid. The said reservation cannot also be categorised as discriminatory or abusive; (b) in view of the fact that India has denounced the General Act of 1928 in its communication dated September 13, 1974, as contemplated by Article 45 of the General Act, India was no longer bound by the General Act. In this view of the matter, the Court did not express any opinion on the other submissions raised by Pakistan under this head; (c) the Court held that neither the U.N. Charter nor the Shimla Agreement nor the customary international law can be said to confer jurisdiction upon the Court to entertain Pakistan's Application. Accordingly, the Court concluded that the ICJ had no jurisdiction to entertain the application filed by Pakistan.

The Court then said that the fact that the ICJ had no jurisdiction to entertain or adjudicate upon the said dispute did not mean that the parties were not under an obligation to settle their dispute peacefully as required by the U.N. Charter (Article 33 read with Article 2). The Court also referred to the Shimla Agreement whereunder both the countries had undertaken to resolve all their disputes by holding bilateral discussions or by such other peaceful methods as may be agreed upon by them. The Court also referred to the Lahore Declaration affirming the Shimla Agreement. The Court accordingly reminded both the parties of the obligation undertaken by them to settle their disputes, and in particular the dispute in question, by peaceful means.

In my separate opinion, I referred to a recital in the Lahore Declaration whereunder both parties had reiterated their determination to fight the menace of terrorism by all means and observed that the said recital was not without a purpose. Both the countries, I observed, should create an atmosphere in which meaningful negotiations can take place for resolution of outstanding disputes between them. The element of `good faith' referred to in Article 2 of the U.N. Charter was also stressed by me.

(The writer is Chairman, Law Commission of India).

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