164

DISSENTING OPINION OF JUDGE NAGENDRA SINGH

1. Ido hold and affirm that this Court has the jurisdiction to entertain
the appeal filed by India, challenging the competence of the ICAO
Council.

2. Iam further of the considered opinion that there could not be a
more legally justifiable case than the one now before the Court for being
remitted or reverted to the Council for examination of its own jurisdic-
tion, the reason being that the Council, required to act as a judicial organ
of ICAO in this particular case, has neither applied its mind nor come toa
proper legal conclusion on that aspect so far.

3. According to the accepted canons governing matters pertaining to
jurisdiction, if an adjudicatory body, whether a regular court of law or an
organ of the type of the ICAO Council, has a jurisdictional clause in its
charter, or the constituent instrument as the case may be, it may be said to
have the right to interpret the jurisdictional words such as, in this case,
“interpretation or application” which occur in Article 84 of the Chicago
Convention. In the Opinion concerning the Betsey it was held that the
commissioners: ‘‘must necessarily decide upon cases being within or with-
out their competency’. See also, Interpretation of the Greco-Turkish
Agreement of | December 1926, P.C.1.J., Series B, No. 16, at page 20
(1928) and the Nottebohm case, 1.C.J. Reports 1953.

4. In short, therefore, when discharging this obligation, the ICAO
Council would have to be governed by the following principles:

{a} The Council’s competence to decide the question of its own juris-
diction must be deemed to be circumscribed by the words ‘‘inter-
pretation or application”.

(b} It follows, therefore, that this jurisdiction being specific and limited
has to be interpreted carefully and strictly. The jurisprudence of the
Court definitely points to the effect that a jurisdictional clause “must
be strictly construed and can be applied only in the case expressly
provided for therein’ (Interpretation of Peace Treaties, 1.CJ.
Reports 1950, p. 227). Again the same view has been forcefully
expressed in the joint dissenting opinion of Judges Sir Percy Spender
and Sir Gerald Fitzmaurice (South West Africa cases), who held
that “The principle of interpretation directed to giving provisions
their maximum effect cannot legitimately be employed in order to
introduce what would amount to a revision of those provisions”
(.C.J. Reports 1962, p. 468). In this very connection, when the case
is referred back to the Council and it goes to the question of its own

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competence it would be well advised to observe one of the major
principles of law which may be regarded as fundamental to any
determination of the issues involved:

“The principle of consent [is an] ... essential condition for
founding international jurisdiction. Such consent may be given
generally, in advance, or ad hoc, and may in a proper case be
held to have been given. But that it was in fact given, and that
it covers the actual case before the Court, must be objectively
demonstrated, and cannot simply be presumed.” (/bid.,
p. 467.)

(c) The Council is a functional organ required to promote the objectives
enshrined in the Convention as well as to undertake settlement of
disputes arising out of its functions. The latter aspect, namely
the settlement of disputes, is admittedly a judicial function. In
the discharge of this specific function the ICAO Council has to act
as a judicial tribunal and must, therefore, necessarily discharge
its obligations in a judicial manner. I would further stress this
point: that even though the Council is an administrative organ,
because it is required under Article 84 to perform a judicial function,
it is indeed indispensable for any quasi-judicial or even adminis-
trative body when required to undertake a judicial task, as in this
case, not only to know to respect judicial procedures prescribed for
it but also to strive to conform to proper judicial standards.

(d) Moreover, the Council cannot enlarge the field of its own jurisdiction
by a wrong interpretation of the jurisdictional words as its exercise
is subject to correction by the International Court of Justice (vide the
jurisdictional clauses of the Convention (Art., 84) and Transit Agree-
ment (Art. 11)).

(e} When a challenge is made to the jurisdiction of the ICAO Council
it becomes the legal duty of the Council to satisfy itself about the
nature of the dispute, namely that the alleged dispute squarely
falls within the specific and limited jurisdiction which has been con-
ferred on it by States parties to the Convention, assess the evidence
and contentions of the parties in relation to its jurisdiction, and
arrive at a decision.

5. Again, the main ingredients of the case before the Court could be
broadly categorized as follows:

(a) decision of the ICAO Council rendered on 29 July 1971;
(6) record of proceedings in the Council;
(c) pleadings of Parties, both written and oral, before the Council.

The first formulates the basis against which the appeal has been filed,
making it the starting point for this Court’s decision.

The second point explains the manner in which the decision of the
ICAO Council has been reached.

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The third point explains the nature of the dispute involved and the
pleadings of the Parties on the question of competence of the ICAO
Council to handle such dispute.

6. Taking into consideration the aforesaid aspects, the broad approach
towards adjudication of this case which the Court could make would be
to proceed to:

(i) satisfy itself whether the decision of the ICAO Council was formally
valid or not, and

(ii) satisfy itself whether or not the ICAO Council has by that decision
settled the issue of jurisdiction.

7. To observe proper legal sequence, the Court must address itself
to the first question at the outset, because it can proceed to consider the
second question only if the decision was a valid one. Thus the validity
of the decision, taking into consideration the due observance of the Rules
of Procedure and also demonstrating that it was not only doing justice
but also observing the salutary principle of showing that justice was
being “‘shown to be”’ done, is a matter of basic importance in this case.
The relevance of this aspect is, indeed, obvious. It arises out of the fact
that the ICAO Council has been conferred jurisdiction to take a legally
correct decision on its own jurisdiction and unless such a decision has
been lawfully taken, the Council cannot proceed further and this Court
can hardly take a decision on behalf of the Council on matters of sub-
stance that have been raised before the lower court and have as yet to
be properly examined by it to come to a correct legal finding.

It would therefore be necessary to decide first the question of validity
of the Council’s decision and also to examine with it the infirmities from
which the decision suffers to ascertain whether they are vital to its validity,
or are curable. If the Council reached a decision in utter disregard of
all proper norms which go to the root of the functioning of international
organizations, apart from violating the mandatory requirements for
arriving at a judicial decision, it would be legitimate to draw the con-
clusion that the Council’s decision was void, and in that event, there
would be nothing left for the Court to pronounce upon, except to return
the case back to ICAO for examination of its own jurisdiction. This
aspect needs careful scrutiny, which is attempted below.

The Need for Examining First the Validity of
the ICAO Council’s Decision

8. Having regard to the principal contention of the appellant as well
as in the exercise of its judicial function, it is incumbent on the Court
to examine in the first instance the question of the validity or conformity
with the Chicago Convention and the Transit Agreement of the decision
of the ICAO Council, as embodied in the resolution of 29 July 1971.

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This principle has now been well established in the jurisprudence of the
Court. I may cite in this connection the following paragraph from the
Advisory Opinion of this Court in the Namibia case:

“The question of the validity or conformity with the Charter of
General Assembly resolution 2145 (XXI) or of related Security
Council resolutions does not form the subject of the request for
advisory opinion. However, in the exercise of its judicial function
and since objections have been advanced the Court, in the course
of its reasoning, will consider these objections before determining
any legal consequences arising from those resolutions.” (.C./. Re-
ports 1971, p. 16 at p. 45.)

Again, it is necessary to scrutinize carefully the Council's decision as
embodied in the resolution of 29 July 1971, not only because it is the
starting point and the basis of this appeal but also because of its special
feature of ‘‘bare-bone”’ content in-order to ascertain the exact quantum
of its determination of the case on the issue of jurisdiction itself. I
therefore propose to examine below both the content and the validity of
the ICAO Council's decision before examining the legal consequences
flowing from it.

I. THE CONTENT AND VALIDITY OF THE COUNCIL’S DECISION AND THE
LIMITS TO THE COURT'S VERDICT

9. It is the Council’s duty as a tribunal to first satisfy itself that a
dispute exists which falls within the limited and specific jurisdiction con-
ferred on it by the Convention. A dispute cannot be deemed to exist
merely by an assertion and a denial. If the formula of assertion and denial
were to invariably confer jurisdiction in all cases, it would be all too
easy a way to establish jurisdiction without going into any details of the
assertion and denial and ignoring the infinite variety of cases that may
arise with different facts and circumstances which may easily defeat the
application of that principle of ‘assertion and denial” in relation to
jurisdiction over disputes.

As the Permanent Court said in the Mavrommatis case: “A dispute is
a disagreement on a point of law or fact, a conflict of legal views or of
interest between two persons.” (P.C.L.J., Series A, No. 2, p. 11.)

A tribunal must, therefore, first look into the circumstances in which
the dispute arose and then determine the nature and character of the
dispute, namely, whether or not it falls within the limited and specific
Jurisdiction conferred on it. In this case, the dispute arose from the de-
cision of the Government of India to suspend overflights of its own and
Pakistan aircraft over each other’s territory on 4 February 1971, by way
of reaction to Pakistan’s conduct on the hijacking case. It was known to
the tribunal, and to all its members, that the overflights had been sus-

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pended. The fact of suspension was not disputed by Pakistan either. The
dispute relates to the validity, or otherwise, of India’s action in suspending
the Convention.

10. The first point for the Council to determine, therefore, was whether
the dispute related to suspension or to performance of the Treaty. If it
related to suspension, and the Treaty had been validly suspended, there
was no question of performance. If it related to performance, the Coun-
cil could look into the matter whether India was or was not in breach
of its obligations arising under the Convention. But the Convention must
exist and be operative between the two Parties, before the question of
breach would arise. If the dispute in fact relates to suspension, the ques-
tion for decision of the ICAO Council was whether this falls within the
specific and limited jurisdiction which is conferred on it by the Con-
vention. This jurisdiction is limited in terms of Article 84 of the Con-
vention to “any disagreement...relating to the interpretation or appli-
cation of this Convention’. The point for their determination would
therefore be whether the terms “interpretation” and “application” in-
cluded suspension and termination or applicability of the Convention
itself. The decision of the ICAO Council, rendered on 29 July 1971,
does not indicate anywhere the verdict of the Council on this point or,
for that matter, on any other aforesaid aspects. Nor are any reasons given
as to why or how the Council came to the conclusion that the nature
of the dispute revolves on performance and not on suspension or, alter-
natively, that a dispute on suspension itself comes within the scope of
“interpretation” or “application” of the Convention. If a valid decision
had been given on this point, with the reasons indicating why they had
come to this conclusion, the Court could and should have gone into the
matter on its merits in this appeal, and decided the issue of jurisdiction
one way or the other. When no decision has been given by the Council
on this crucial point on the very threshold, it is not possible for this
Court to assess the facts and arguments put forth by the Parties, because
this has to be determined by the ICAO Council itself in the first place. It
cannot be determined by this Court on behalf of the ICAO Council for
reasons which are not only obvious, but so potent that they go to the root
of the functions of the appellate court itself. These basic considerations
are given below:

(i) This Court is exercising its appellate jurisdiction in this case and it
cannot, therefore, act as a court of first instance without unlawful
usurpation of the function of the Council, which, in this case, is the
court of first instance.

(ii) If this Court, therefore, in its Judgment, were to even touch upon
the merits or substance of the issues raised, it would be prejudging
the issues which must exclusively be left to the Council to decide.

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(iit) The function of the appellate court in no circumstances could be to
give any lead or guidance by way of even throwing a hint, let alone
an obiter dictum, to the lower court on questions of merit and
substance, which must remain according to all tenets of law and
procedure, the prime concern of the court of first instance.

In the circumstances it is necessary to repeat that the [CAO Council,
performing a judicial function in this particular case, had to observe the
elementary rules of a judicial tribunal in stating its reasons for its
decision, to enable all concerned to know the exact extent to which it
had gone into the merits when it came to a finding that the Council had
jurisdiction in the case.

11. It is important, therefore, to determine first the stage and the state
of the position reached by the Council in this case prior to embarking
on the process of its adjudication in appeal. As stated earlier, on 29 July
1971 the Council adopted a resolution formulated in a negative manner,
with neither a word of law, nor a point of reasoning, nor a single argu-
ment scribed anywhere in the records of the Council to support it.
It certainly puzzled thosc who were then required to vote, but it still
continues to puzzle those who are now required to read the proceedings
leading to this resolution which are reproduced below for ready reference:

“86. Mr. Agésilas: Mr. President, so that it will be very clear,
as a roll-call vote is involved, in replying ‘Yes’ one endorses the
negative position taken by India. Is that it? Then, to oppose it you
must say ‘No’.

87. The President: Yes, those who agree that the Council has no
jurisdiction have to say ‘Yes’, those who consider that the Council
has jurisdiction have to say ‘No’...

88. Lt. Col. Izquierdo: As you put it, it was not very clear.

89. The President: Those who agree that the Council has no
jurisdiction say ‘Yes’. Those who think that the Council has juris-
diction say ‘No’. The Representative of the Congo.

90. Mr. Ollassa: Mr. President, | don’t wish to complicate matters
for you, but in French it is difficult. Those who think the Council
is not competent should say ‘Yes’ and those who think it is should
say ‘No’.

91. The President: 1 could make it longer. Those who agree with
the proposition that the Council has no jurisdiction to consider the
Application under the Transit Agreement—l think this is good in
the three languages—say ‘Yes’; those who consider that the Council
has jurisdiction say ‘No’ }.”

1 See Memorial of India, Annex E, fe), Discussion, paras. 86-91.

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The above is in short both the form and the content of the decision
of the Council.

The Extent to Which this Appellate Court Can Go Into
the Merits of the Substantive Issues Which Remain
the Prime Concern of the Council

12. As stated earlier, since the Council merely held that it had juris-
diction to entertain Pakistan’s Application and Complaint, this Court
is seised only of that decision, and therefore it must accept the elementary
principle that nothing in its Judgment should prejudge the merits,
which should be sent back to the Council for its examination without any
pronouncement by the Court, even by way of obiter dictum which would
constitute an encroachment on the Council's jurisdiction. There are in
this case special circumstances which make it imperative for the Court
to confine itself strictly to the subject-matter of the dispute before it,
namely the issue of the jurisdiction of the Council. This Court is in the
presence of an appeal from a preliminary decision of the ICAO Council.
It is vital therefore that this Court in appeal must be extremely careful
to avoid any pronouncement on the merits of the dispute, since tres-
passing upon them would not only constitute a pre-judgment, but also
an irregular indication by the organ of appeal to the body which must
pass in first instance on the merits of the disagreement. If the Court
were to give, even by way of any anticipation of its views on the slightest
aspect of this case regarding the merits, then it would defeat the whole
purpose and raison d'être of the two degrees of jurisdiction, one of whose
essential features is to leave the organ of first instance absolutely free to
give an unhampered decision.

13. The legitimate examination which this Court could therefore
undertake in its adjudicatory process would be to pronounce exclusively
on the question whether the disagreements which were presented to the
ICAO Council by Pakistan's Application did or did not relate to the
interpretation or application of the Chicago Convention and the Transit
Agreement. It needs to be pointed out that the Court appears to be
aware of this limitation, and has very rightly expressed it in the Judgment,
not only in paragraph 11, but at several other places when, in parentheses,
or otherwise, it has been held that a particular contention belongs to
the merits of the dispute into which the Court cannot go. In spite of
these observations, in its lengthy description of the pleadings of both
the Parties, the Court at times gives the impression to run outside the
limited field of jurisdictional issue, and to touch the merits, either by way
of indicating a fact, or by a phrase suggestive of reasoning, which
belongs to the Council. As the case goes back to the Council, it is neither
proper nor necessary for me to spell out any details in this connection.

14. The aforesaid has been mentioned for the important reason that
the Council on no account should read in the Judgment that the Court
is leaning to one or the other side in relation to the substantive issues,

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because that aspect stands contrary to the repeatedly expressed desire
of the Court itself.

II. THE COUNCIL’S DECISION

15. The second vital aspect in this case mentioned earlier, but which
has to be considered in extenso, relates to the performance of the judicial
function by the ICAO Council. It is true the Council is primarily an
administrative organ but it has to be repeated that when it is specifically
entrusted in certain matters With judicial functions by the Treaties, it
cannot be permitted to ignore correct procedures and norms prescribed
for a judicial body. The Council has its own Rules for the Settlement of
Differences (1957) which, it is noteworthy, have been largely based on
the Rules of the International Court of Justice.

16. It is necessary, therefore, for these administrative bodies, when
required to perform a judicial function, to maintain standards similar
to those prescribed for judicial tribunals. The performance of the Coun-
cil with a view to determining whether or not the mandatory require-
ments of a judicial decision have been followed in this case can best be
studied from the records of the proceedings of the ICAO Council, which
reveal the following facts:

(i) At the very outset it is clear from the resolution of the Council of
29 July 1971 that no decision was taken by the Council on issues of
jurisdiction. Only propositions were put to vote by the President of the
Council. Again, what is striking is that even these propositions were
negatively formulated and thus involved a clear unwarranted presump-
tion of jurisdiction for which there can be no legal basis.

It was obviously for Pakistan, as the applicant State before the Coun-
cil, to discharge the burden of establishing the jurisdiction of the Coun-
cil conclusively (see joint dissenting opinion of Judges Sir Percy Spender
and Sir Gerald Fitzmaurice in South West Africa cases, .IL.C.J. Reports
1962, p. 470). Notwithstanding this requirement which goes to the root
of jurisdiction of the ICAO Council, the Council formulated the propo-
sitions which were put to vote in a negative manner instead of formu-
lating them in a positive manner. The propositions therefore shifted the
burden of proof to the respondent State instead of requiring the appli-
cant State to prove conclusively the jurisdiction of the Council. The
President of the Council himself repeatedly stated that “the Council was
working on the basis that it had jurisdiction. India comes with the pre-
liminary objection: you have no jurisdiction. The Council has to decide
on this position of India. If the Council does not accept it, we continue
as we were.” (See Memorial of India, Annex E, fe), Discussion, para.
62.) The basis on which the President of the Council formulated the
questions is in direct contravention of the settled principles concerning

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burden of proof, and as such any decision reached by any judicial tribu-
nal on the basis of these propositions should be considered as invalid in
law.

On the whole, therefore, there can be no doubt that the Council did
not proceed according to its true role as a judicial, or even as a quasi-
judicial organ, which is definitely expected of it under the ICAO Con-
vention. As has been pointed out, the Council viewed the preliminary
objection like an appeal against the ruling of the chairman of a political
organ. Such appeals are put to vote and the chairman’s ruling stands
“unless over-ruled by majority” (see in this connection Rules 73 and 114
of the Rules of the General Assembly of the United Nations). It must,
therefore, be emphasized that the conclusion reached by the Council did
not conform with the procedures prescribed by Article 52 of the Con-
vention and Article 5, paragraph 4, of the Rules for the Settlement of
Differences.

Another serious objection is that it may be possible, even if there
was no absolute majority of members in favour of recognizing the exis-
tence of any jurisdiction, to assert jurisdiction on the basis of the rejec-
tion of the negative question. In fact the negative formulation is ab
initio defective in law irrespective of what the result may or may not have
been if the question was put positively.

(ii) Again, Article 52 of the Chicago Convention stipulates that ‘‘de-
cisions of the Council shall require approval by a majority of its mem-
bers’. On 29 July 1971, the Council consisted of 27 members and there-
fore any valid decision of the Council required a minimum of 14 votes.
That this is the correct legal position under the Chicago Convention
has been repeatedly stressed by the President of the Council (see Reply,
Annex E) and also by the Secretary General of the International Civil
Aviation Organization (ibid, Annex D). I would like to refer in this
connection to the following passage in the memorandum of 10 August
1971 submitted by the Secretary General of ICAO:

“Similarly, in cases involving the International Air Services Tran-
sit Agreement, the majority required by Article 52 of the Convention
would continue to apply even where, in accordance with Article
66 (6) of the Convention, Council Members who did not have the
right to vote because they had not accepted the Transit Agreement.”
(Reply, Annex D.)

The result of the voting on the proposition that the Council had no
jurisdiction as regards Pakistan’s Complaint was, one in favour and 13
against and 3 abstentions. Having regard to the majority of 14 required
for the adoption of a decision, I conclude that the Council did not reach
any decision in respect of India’s preliminary objection on Pakistan’s
Complaint.

Whatever may be the finding of the Court in respect of the nature and
character of the “irregularities of the Council’? which TI have held to be
illegalities, there is one aspect in the Court’s Judgment which merits

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to be pointed out with some emphasis. The Court in appeal has enter-
tained for consideration both the Application and Complaint made by
Pakistan before the Council. As far as the Complaint is concerned, there
can be no doubt that the decision of the Council was null and void. The
observation of the Court, therefore, in paragraph 45 of the Judgment,
that these “irregularities do not prejudice the requirement of a just
procedure”, would appear to be unfounded in relation to the decision
of the Council on the aforesaid Complaint of Pakistan. What is dis-
turbing is that the Court comes to that conclusion without undertaking
any examination of the irregularities as such. It needs to be reiterated
that, as indicated above, when the Council’s membership consisted of
27 members, and a majority decision required the minimum of 14 votes,
the Council could give no decision on the basis of 13 votes. In spite of
this lack of required majority a decision was declared to have been
adopted by the Council, in clear contradiction of Article 52 of the
Chicago Convention. Such a decision can only be held to be a nullity.

(iii) Moreover, an extraordinary feature is that no reasons whatsoever
were given by the Council for its decision, although required by Article
15 of the Rules for the Settlement of Differences. It may be mentioned
that Articles 5 and 15 are both applicable, which are similar to Articles
62 and 74 of the Rules of Court. It is surely not for this Court to search
for reasons for the decision of the Council of 29 July 1971, from the
explanations of votes or from the record of the deliberations. The pro-
visions of Article 15 (2) (v) are mandatory and require, inter alia, that
the decision of the Council should contain “the conclusions of the Council
together with its reasons for reaching them”. Notwithstanding this obli-
gatory requirement, which, I would hold, is indeed basic to any judicial
decision which has to be backed by reasons for its finding, the Council
came to a decision without giving any reasons at all. It may be that reasons
are not required in the form of a judgment when we are dealing with
a quasi-judicial organ like the ICAO Council, but some reasons must
be given somewhere, either in the resolution itself or in the statement
made by the President, but to leave a decision unbacked by any reasoning
whatsoever is not acceptable in law. Thus the Council not only violated
its own procedural rules, but also the fundamental principle in the dis-
charging of judicial function.

(iv) The Council also committed the following serious irregularities
which resulted in miscarriage of justice:

(a) Neither the applicant and the respondent States nor the members of
the Council were informed that the Council meetings beginning 27
July 1971 were convened to take a decision on India’s preliminary
objections. At the Vienna meeting of the Council on 12 June 1971,
the Council decided to meet in Montreal on 27 July 1971 “to hear
the parties on the preliminary objections filed by India”. Conse-
quently, when the Council met from 27 to 29 July 1971, several
representatives of the Council had no idea that decisions would be

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(b)

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ICAO COUNCIL (DISS. OP. NAGENDRA SINGH)

taken at that meeting. This is clear from the statement made by the
President of the Council at the meeting of 28 July 1971, which reads
as follows:

“It was simply agreed that the Council would meet on 27
July to hear the parties on the preliminary objection. We did
not say more than that. So perhaps some people thought that
we were going to take a decision and others did not.” (Memorial
of India, Annex E, (d), Discussion, para. 129.)

However, the Council meeting convened to hear the parties was
continued, and decisions were taken without calling a separate
meeting despite the objections raised by the Alternate Represen-
tative for India who said:

“T would submit to you, Mr. President, that any decision you
try to take today will be a vitiated decision if you do so without
proper record, without proper minutes, without proper notice,
when at the meeting in Vienna you decided that you would
merely hear the Parties in Montreal on 27 July” (ibid., para.
134, in fine).

This procedure adopted by the Council is in direct contravention of
Article 15, paragraph 4, of the Rules for the Settlement of Differ-
ences, which states that “the decisions of the Council shall be ren-
dered at a meeting of the Council called for that purpose which shall
be held as soon as practicable after the close of the proceedings”.
Any decision of the Council must invoke Article 15 whenever or
wherever such a decision is taken.

Some members of the Council wanted time to consult their adminis-
trations on points of law involved in the arguments advanced by the
applicant and the respondent States before participating in the de-
cision-making process. The President of the Council himself said
that “If Representatives cannot decide by themselves, I suppose they
will have to check with their own administrations”. (Memorial of
India, Annex E, fe), Discussion, para. 19.) Nevertheless, the mem-
bers of the Council were not given time after the oral hearings had
concluded in which new points were raised and they were therefore
unable to participate in the decision. The refusal of the Council to
give time seriously interfered with the functioning of the judicial
process which must precede any decision. It is an essential require-
ment for the functioning of any organ that time is granted to mem-
bers to either study the problem or seek instructions or obtain legal
advice and in this case members asked for seven to eight days time,
and this too was refused, which gives the impression that there was
an element of unreasonableness which hit the proceedings adversely.
The statements made by the representatives of the United Kingdom,
USSR and Czecholsovakia are reproduced below to indicate the
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{c)

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ICAO COUNCIL (DISS. OP. NAGENDRA SINGH)

damage done by this unfortunate ruling not to give time:

“I should like to record that [ abstained from voting as
being unable to participate at this time in a decision which
turns entirely on points of law. I would have been in the same
position on any proposal for a decision on a question of sub-
stance today. I am not, myself, sufficiently advised on the merits
of the legal arguments which have been presented...” (Air
Vice Marshal Russell (United Kingdom).)

“Permit me Mr. President, to make a statement on my vote.
I abstained solely because I was unable to consult my adminis-
tration during the debate which developed during the last few
meetings on matters of legal importance.” (Mr. Svoboda
(Czechoslovakia).)

“] abstained from voting on the first case because I was not
given time for consultation with the competent organs of my
Government. I request that this be recorded in the minutes.
Thank you very much.” (Mr. Borisov (USSR).)

Even the move for adjournment to give time to the members of the
Council to study and seek advice or instructions was turned down,
although supported by eight members, with none against, because it
was treated as a regular resolution of the Council requiring an
absolute majority, whereas in the United Nations and its specialized
agencies, request for time to study is normally granted, without
putting the matter to a regular vote unless there are strong excep-
tional circumstances. The statements made by the representatives
in the Council meeting, when making their demand for a short
adjournment, are indeed most revealing and deserve to be quoted
to indicate the seriousness of the entire matter arising out of the
handling of the case by the Council:

“I could not regard it as reasonable for me, myself, to
participate in a decision here and now on the merits of the
preliminary objection, which for me turns entirely on questions
of law. To that extent I shall therefore not be able to support
any positive action on the substance of the matter. For me
it is essential to obtain legal advice on the arguments which
have been presented before so participating.” (Air Vice Marshal
Russell (United Kingdom).)

“T should like to express almost the same view as the Re-
presentative of the United Kingdom has expressed ... During
these two days we have heard many things linked very closely
176

134

ICAO COUNCIL (DISS. OP. NAGENDRA SINGH)

to international law and I too would like to have the possibility
of consulting my Administration.” (Mr. Svoboda (Czecho-
slovakia).)

“Of course, Mr. President, 1 was not saying I would not
participate ... The essential point to me is that this is a legal
question ... the expression of a view on the substance of
the preliminary objection turns entirely on matters of law ...
it would be unreasonable—I think that is the right word—for
me here and now to express, on behalf of my country, a sub-
stantive view on matters of quite complex law.” (Air Vice Mar-
shal Russell (United Kingdom).)

“Like the Representative of Belgium, I think that as it is
evident that several of our colleagues need advice or instructions
before a decision is taken, we must, in fact, consider deferment.
I personally would be ready to participate in the taking a
decision immediately, but I must admit that what we have
heard during the last 48 hours needs some digesting. We are,
however, faced with a procedure in the Rules for the Settlement
of Differences that is precise and indicates that after hearing
the parties the Council must decide. The Convention, like the
Rules, specifies that it is the Council which must decide; it
does not say that the members of the Council must be lawyers.
I therefore believe that, as the Representative of Belgium said,
a deferment of eight days would help a certain number of our
colleagues to obtain advice or instructions and it would certainly
be desirable that the largest possible number of Council mem-
bers be in a position to participate in the taking of a decision.
I, for one, would have no objection to an interval of the order
I have indicated before we have another meeting at which we
can take a decision.” (Mr. Agésilas (France).)

“I had not intended to speak at this stage, but I would like
to say, first that if the Council’s decision is to have a deferment,
I shall vote for it ... Is deferment necessary to enable certain
Representatives on the Council to digest what they have heard
and then—and this is the essential—inform their respective
administrations? For me ‘inform administration’ means to
inform them fully. As has been said, yesterday and today we
have heard a whole series of very interesting things. We there-
fore need the minutes. The Summaries will be of no use what-
177 ICAO COUNCIL (DISS. OP. NAGENDRA SINGH)

ever, especially for people who have no knowledge of law.
That is why I say that it is absolutely meaningless to speak
of a deferment of 8 days. It does not give Representatives
on Council the possibility of informing their administrations.”
(Dr. Cucci (Italy).)

“E shall therefore not oppose any request for deferment of a
decision for 14 days unless the Summaries are available sooner.
If we could have the Summaries—and I realize that it is an
exorbitant request I am making of the Secretariat—next Mon-
day, we could, I think, decide the question on Monday, 9
August. We would be allowing a week after the distribution of
the Summaries.” (Mr. Pirson (Belgium).)

It would follow from the aforesaid proceedings of the Council that
an important number of members representing the United Kingdom,
Belgium, USSR, Italy, France, etc., felt that they had not got the op-
portunity to apply their minds to the oral hearings made by the Parties,
and they had been required to vote to take a decision without getting
proper legal aid to come to a finding.

If any conclusion is reached in any sphere of life, let alone judicial,
which indicates beyond doubt, as in this case, that those required to decide
were not geared to take a decision, and there was a clear expression of
inability to do so at that time, such a finding if forcibly made to reach
could only be void in law. Again, law cannot be indifferent to the impor-
tance which form must take in such a case irrespective of the result even if
it is held to be accidentally right because there must be some barest legal
minimum of a norm in respect of form which must be maintained.

The conclusion is therefore irresistible that the Council voted for a
resolution without having evaluated the basic problem before it, and in
the circumstances it must be necessary for this Court to judge what judicial
value or even administrative value can be attached to such a decision,
which was embodied in the resolution of 29 July 1971. It cannot be argued
that the Council had six months’ time to appreciate and understand the
issues, because the representatives wanted to inform their governments
of the latest position arising out of the oral hearings, which aspect is
very clearly brought out by the representative of Italy—(vide his statement
as quoted above). It is but reasonable and necessary for members to have
consultations on the fresh points resulting from the oral pleadings.

17. It may be further observed that several of the serious irregularities
mentioned above become illegalities when one applies the salutary
principle that if power is given to do a certain thing in a certain way,
it must be done in that way or not at all (North Sea Continental Shelf
cases, I.C.J. Reports 1969, Judgment, para. 28). This very principle was
cited with approval in a case decided much earlier by the Judicial Commit-

135
178 ICAO COUNCIL (DISS. OP. NAGENDRA SINGH)

tee of the Privy Council in Nazir Ahmed v. King Emperor (india), where
the point at issue related to non-observance of a procedure prescribed in
the Criminal Procedure Code of India. This is merely to illustrate that
even in respect of procedural matters, there can be illegalities committed
which could vitiate the entire decision. If the performance of the Council
is to be viewed in the light of a judicial organ, which it was when functio-
ning in relation to this dispute, one would inevitably come to the conclu-
sion that such a decision could not be allowed to stand being void in law.

18. The Court would thus have to send the case back to the ICAO
Council, asking them to address themselves to the issues involved in the
pleadings of the Parties, on facts and points of law, and to give a reasoned
decision as to its jurisdiction in the present case.

19. In view of the conclusions reached above, I do not express any
views on the merits of the issue of jurisdiction, such as:

(a) whether the dispute referred to the Council by Pakistan related to
performance of the Treaty or whether, as contended by India, it
related to suspension;

(6) whether there are inherent limitations on the jurisdiction of the
ICAO Council or whether it has plenary powers not only to interpret
and apply the Convention but also to rule on the general principles
of international law, like the International Court of Justice, which
has such powers by virtue of Article 36 of its Statute;

(c) whether on evidence and law the special régime of 1966-1971, as
pleaded by India, was established or not;

(d) whether, if it were held that the Convention was applicable on 3
February 1971, India could and did validly suspend the application
of the Convention vis-a-vis Pakistan because of its conduct on the
hijacking case, and

(e) whether Article 89 is at all relevant to the issue of jurisdiction in this
case.

These and other related questions are for the ICAO Council to decide
in the first place.

IH. CONCLUSION

1. As far as the decision of the Council in respect of the Complaint of
Pakistan is concerned, it must be held to be null and void because, as
stated earlier, it was reached without the mandatory requirement of a
majority vote, namely 13, whereas 14 votes were required out of a total
of 27 members of the Council. No decision could thus be reached in vio-
lation of Article 52 of the Chicago Convention.

2. As far as the decision of the Council in respect of the Application

136
179 ICAO COUNCIL (DISS. OP. NAGENDRA SINGH)

of Pakistan is concerned, it was in content a “‘bare-bone”’ nudity, giving
no reasons for its finding, and reached by a negative formulation, con-
travening its own rules of procedure, and in a manner which made it
abundantly clear that several members of the Council had not been al-
lowed to apply their minds to the problem posed before the Council,
as the time requested was not granted. As judicial standards must neces-
sarily be applied to even administrative organs performing judicial func-
tions, the conclusion would be warranted that, judged by those standards,
the decision of the Council on the Application was also void.

The observation of the Court, therefore, that ‘alleged irregularities do
not prejudice in any fundamental way the requirements of a just proce-
dure” made without going into the irregularities as such (see para. 45
of the Judgment), is both unwarranted and unfounded.

3. The Court, therefore, in appeal, should have referred the case back
to the Council to take a decision on the issue of jurisdiction in a proper
legal manner.

4. If the Court has declared in its Judgment that it has supervisory
powers in respect of merits and jurisdiction (para. 26) it could not but
also have supervisory powers in respect of procedural issues. It was, there-
fore, the duty of the Court when the aforesaid procedural violations were
brought to its notice, to at least draw the attention of the Council that
when the case is again examined by the Council for further adjudication,
it must follow its own procedures more carefully, demonstrating to all
concerned that justice was being shown to be done. I would therefore
consider this omission a lacuna in the Court’s Judgment and a reason
for my dissent.

5. Lastly, my dissent in conclusion would not be complete if I were
not to mention the fact that it was not necessary in its Judgment for
this Court to proceed at such great length into the arguments and plead-
ings of both Parties, and in the process, after solemnly affirming the
principle (para. 11 of Judgment) that it would not enter into the merits
of the substantive issues raised, since these were exclusively the concern
of the Council, appear or even give the impression to digress from this
salutary rule.

6. It is important to emphasize, therefore, that when the case goes
back to the Council for its consideration, it would be incumbent on the
Council to disregard all such observations of this Court which go to the
merits of the substantive issues raised, and not to take account of any
indications which point to that aspect of the case. The Council would then
be acting strictly in accordance with the spirit and letter of the Judgment
of the Court wherein this very avowed principle of the Court, not to
touch upon substantive issues, has been repeatedly emphasized.

(Signed) NAGENDRA SINGH.

137


216

DISSENTING OPINION OF JUDGE REZEK
[Translation]

Bases of provisional measures — Prima facie merit of the Applicant's
argument — Sovereign equality of States and assertion of jurisdiction by the
domestic forum solely on the basis of the principle of universal justice —
Danger in delay — Continuation of a situation which both prevents the full exer-
cise of the Congolese Minister's public office and impairs the sovereignty of the
applicant State — Provisional measure which, without causing major prejudice
to the other Party, would put an end to that situation until the Court makes
a final ruling.

1. Most contemporary systems of law take a fairly uniform view of
provisional measures, notably their bases and effects. Notwithstanding
the silence of the Statute and Rules of the International Court of Justice,
which only lay down procedural rules in this respect, the Court does
enjoy guidance in the matter, and not only that provided by its own
jurisprudence.

2. At this stage, it is not a question of the effects, but rather of the
bases. These are: the bonus fumus juris, the prima facie merit of the
Applicant’s argument in support of its claim; and the danger in delay,
the risks raised by waiting, the danger that, if the Applicant prevails in
the end, its claim ultimately will not be fittingly upheld, because the
Court will have failed to grant it in advance the benefit, even if only
partial, of the measures it is seeking.

3. The merit of the request submitted by the Democratic Republic of
the Congo is apparent here. This is the first time that a State has come
before the Court to tell it that a member of its Government is the subject
of an arrest warrant issued by judicial authorities of another State and
that the Government of that other State has provided support for the
arrest warrant by circulating it throughout the international community.

4. Quite apart from the issue of the status of the individual at whom
the warrant is directed and of the question of privileges enjoyed on the
international plane by certain State officials, this is also the first time the
Court finds itself confronted with the problem raised by an act of a local
court purportedly based solely on the principle of universal justice —
without regard to the situs of the offence or to the defence of essential
assets or values of the forum State or to the nationality of agent or vic-
tims — and without the accused being present on the territory of the
forum State. In my view, the argument that this amounts to a violation of
the fundamental rule of sovereign equality of States is valid prima facie.

5. As far as urgency is concerned, I believe that the situation described
in the request, i.e., the existence of the arrest warrant issued against a

38
ARREST WARRANT (DISS. OP. REZEK) 217

member of the Congolese Government and the assistance being provided
by the Belgian Government in executing the warrant, constitutes a con-
tinuing, permanent restriction on the full exercise of the public office of
the individual in question and causes harm, also continuing and perma-
nent, to the sovereignty of the applicant State.

6. What is the magnitude of the prejudice and therefore the degree of
urgency? This is not a matter of ascertaining whether the continuation in
force of the arrest warrant against the Congolese Minister causes irre-
versible prejudice — death aside, little is irreversible — but rather deter-
mining whether the indication of a provisional measure would also be
liable to cause prejudice no less serious than that sought to be remedied
on a provisional basis. Personally, I do not see any major drawback in
suspending the effects of the arrest warrant issued by an investigating
judge in Brussels, or rather the international dimension which the Belgian
Government has conferred on it, until such time as the Court makes a
final ruling on this legal issue, which is of undeniable importance and
topicality.

7. To that end, I, unlike the majority, would have upheld the request
for a provisional measure.

(Signed) Francisco REZEK.

39


          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

APPLICATION OF THE INTERIM ACCORD
       OF 13 SEPTEMBER 1995
 (THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
                 v. GREECE)

            ORDER OF 12 MARCH 2010

                 2010
          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRE| TS,
      AVIS CONSULTATIFS ET ORDONNANCES

APPLICATION DE L’ACCORD INTEu RIMAIRE
        DU 13 SEPTEMBRE 1995
   (EX-RE
        u PUBLIQUE YOUGOSLAVE DE MACE
                                    u DOINE
                    c. GRE
                         v CE)

          ORDONNANCE DU 12 MARS 2010

                          Official citation :
      Application of the Interim Accord of 13 September 1995
      (the former Yugoslav Republic of Macedonia v. Greece),
        Order of 12 March 2010, I.C.J. Reports 2010, p. 11

                      Mode officiel de citation :
      Application de l’accord intérimaire du 13 septembre 1995
        (ex-République yougoslave de Macédoine c. Grèce),
      ordonnance du 12 mars 2010, C.I.J. Recueil 2010, p. 11

                                           No de vente :
ISSN 0074-4441
ISBN 978-92-1-071088-6
                                           Sales number    976

                                   12 MARCH 2010

                                      ORDER

     APPLICATION OF THE INTERIM ACCORD
            OF 13 SEPTEMBER 1995
(THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
                v. GREECE)

    APPLICATION DE L’ACCORD INTEu RIMAIRE
            DU 13 SEPTEMBRE 1995
  (EX-RE
       u PUBLIQUE YOUGOSLAVE DE MACE
                                   u DOINE
                   c. GRE
                        v CE)

                                    12 MARS 2010

                                   ORDONNANCE

               11

                              INTERNATIONAL COURT OF JUSTICE

   2010                                        YEAR 2010
 12 March
General List
  No. 142                                     12 March 2010

                    APPLICATION OF THE INTERIM ACCORD
                           OF 13 SEPTEMBER 1995
                    (THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
                                    v. GREECE)

                                                 ORDER

               Present : President OWADA ; Vice-President TOMKA ; Judges KOROMA,
                         AL-KHASAWNEH, SIMMA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR,
                         BENNOUNA, SKOTNIKOV, CANÇADO TRINDADE, YUSUF, GREEN-
                         WOOD ; Registrar COUVREUR.

                   The International Court of Justice,
                  Composed as above,
                  After deliberation,
                  Having regard to Article 48 of the Statute of the Court and to Arti-
               cles 31, 44, 45, paragraph 2, 48 and 49 of the Rules of Court,
                  Having regard to the Application filed in the Registry of the Court on
               17 November 2008, whereby the former Yugoslav Republic of Macedo-
               nia instituted proceedings against the Hellenic Republic
                     “to protect its rights under the Interim Accord [of 13 Septem-
                     ber 1995] and to ensure that it is allowed to exercise its rights as an
                     independent State acting in accordance with international law,
                     including the right to pursue membership of relevant international
                     organizations [under Article 11, paragraph 1, of that Accord]”,

                   Having regard to the Order of 20 January 2009, by which the Court

               4

12         APPLICATION OF INTERIM ACCORD (ORDER 12 III 10)

fixed 20 July 2009 and 20 January 2010 as respective time-limits for the
filing of the Memorial of the former Yugoslav Republic of Macedonia
and the Counter-Memorial of the Hellenic Republic,
    Having regard to the Memorial and the Counter-Memorial duly filed
by the Parties within those time-limits ;
    Whereas, at a meeting held by the President of the Court with the rep-
resentatives of the Parties on 9 March 2010, H.E. Mr. Nikola Dimitrov,
Co-Agent of the former Yugoslav Republic of Macedonia, indicated that
his Government wished to be able to respond to the Counter-Memorial
of the Hellenic Republic, including the objections to jurisdiction and
admissibility contained therein, by means of a Reply, and to have avail-
able for that purpose a time-limit of approximately four and a half
months as from the filing of the Counter-Memorial ; and whereas
Ms Maria Telalian, Agent of the Hellenic Republic, stated that her Gov-
ernment had no objection to the granting of this request, in so far as the
Hellenic Republic could in turn submit a Rejoinder and had an identical
time-limit available for that purpose ;
    Taking account of the agreement of the Parties,
  Authorizes the submission of a Reply by the former Yugoslav Republic
of Macedonia and a Rejoinder by the Hellenic Republic ;
  Fixes the following time-limits for the filing of those pleadings :

  9 June 2010 for the Reply of the former Yugoslav Republic of Mace-
donia ;
  27 October 2010 for the Rejoinder of the Hellenic Republic ; and
  Reserves the subsequent procedure for further decision.

   Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twelfth day of March, two thousand
and ten, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the former Yugo-
slav Republic of Macedonia and the Government of the Hellenic Repub-
lic, respectively.

                                           (Signed) Hisashi OWADA,
                                                       President.
                                         (Signed) Philippe COUVREUR,
                                                       Registrar.

5

PRINTED IN THE NETHERLANDS

                       ISSN 0074-4441
                       ISBN 978-92-1-071088-6


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A CERTAINS
EMPRUNTS NORVEGIENS
(FRANCE c. NORVEGE)

ORDONNANCE DU 29 MAI 1956

1956

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE OF CERTAIN NORWEGIAN
LOANS
(FRANCE v. NORWAY)

ORDER OF MAY 29th, 1956
La présente ordonnance doit être citée comme suit :

« Affaire relative à certains emprunis norvégiens, —
Ordonnance du 29 mat 1956: C.I. J. Recueil 1956, p. 20.»

This Order should be cited as follows :

“Case of certain Norwegian Loans,
Order of May 29th, 1956: I.C.]. Reports 1956, p. 20.”

N° de vente: 150
Sales number

20

COUR INTERNATIONALE DE JUSTICE

1956 ———
Le 29 mai
Réle général

n° 29 ANNEE 1956

29 mai 1956

AFFAIRE RELATIVE A CERTAINS
EMPRUNTS NORVEGIENS

(FRANCE c. NORVEGE)

ORDONNANCE

La Cour internationale de Justice,
vu l’article 48 du Statut de la Cour,

vu les articles 37 et 62 du Réglement de la Cour,

Rend l'ordonnance suivante :

Vu Vordonnance rendue par la Cour le 24 avril 1956, fixant au
4 juin 1956 l’expiration du délai dans lequel le Gouvernement de la
République frangaise peut présenter un exposé écrit contenant ses
observations et conclusions sur les exceptions préliminaires soule-
vées par le Gouvernement du Royaume de Norvège en l'affaire
relative à certains emprunts norvégiens ;

Attendu que, par lettres du 24 avril 1956, le Greffier de la Cour,
en notifiant aux agents des Parties la décision prise le même jour
par la Cour, leur a fait savoir que l'intention de la Cour était
d'ouvrir les audiences en cette affaire le 25 juin 1956 ;

Attendu que, par lettre du 15 mai 1956, M. Lars Jorstad, agent
du Gouvernement. du Royaume de Norvège, a prié le Greffier de

4
21 CERTAINS EMPRUNTS NORVEGIENS (ORD. DU 29 V 56)

soumettre à la Cour le désir de son Gouvernement, motivé par des
circonstances imprévues, de remettre à l'automne les débats oraux
en l'espèce ;

La Cour,

Après s'être renseignée auprès des Parties et tenant compte de
leur situation respective,

Ayant, en conséquence de la demande présentée par le Gouverne-
ment du Royaume de Norvège, décidé de retarder l'ouverture des
audiences,

Reporte au 31 août 1956 la date d’expiration du délai pour le
dépôt par le Gouvernement de la République française de ses
observations et conclusions sur les exceptions préliminaires soule-
vées par le Gouvernement du Royaume de Norvège;

Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au
Palais de la Paix, à La Haye, le vingt-neuf mai mil neuf cent
cinquante-six, en trois exemplaires, dont l’un restera déposé aux
archives de la Cour et dont les autres seront transmis respective-
ment au Gouvernement de la République française et au Gouver-
nement du Royaume de Norvège.

Le Président,

(Signé) GREEN H. HACKWORTH.

Le Greffier,

(Signé) J. Lopez OLivAn.