92

SEPARATE OPINION OF JUDGE DILLARD?

] am in fundamental agreement with the conclusions reached by the
Court and the reasons supporting them. In this separate opinion I wish,
first, merely to make certain general observations in further support of
the Court's Judgment and second, to indicate that the decision confirm-
ing the jurisdiction of the ICAO Council can also call on general prin-
ciples of law recognized in many jurisdictions. While in no sense neces-
sary to the Court's Judgment ? which, of course, stands on its own foot-
ing, an allusion to these principles may be of possible interest especially
as the thrust of India’s main contention has implications reaching beyond
this particular case.

I. JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE

1. Preliminary Nature of Proceedings at Council Level

The contention, raised by Pakistan for the first time in the oral hear-
ings, that no appeal lies to this Court owing to the preltminary and pro-
cedural nature of the jurisdictional issue, does not appear to me to be
persuasive.

Certainly the implications flowing from it are sufficiently unattractive
as to be avoided unless compelled by some reading of the relevant docu-
ments or some theory of the judicial process commanding unquestioned
application. As | understand it, had the Council decided that it had no
jurisdiction, then Pakistan’s right of appeal, presumably granted in
Article 84 of the Convention (which speaks of “any” disagreement),
would have been forever foreclosed. On the other hand. the decision
sustaining jurisdiction would compel India to be put to its proof on the
merits with the right of appeal postponed until after a full exposure of
the merits—the very contingency which it is the main purpose of a plea to
the jurisdiction to avoid.

Although the formal scheme of the Rules for the Settlement of Dif-
ferences might lend a certain aura of validity to this kind of result, I do
not think it compelled.

It assumes that a substantive jurisdictional issue, i.c.. one directed
either to the person or the subject-matter in controversy, falls in the same

! Passages in the oral proceedings indicated by the symbol C.R. 72/... may be
located through the Table of Concordance printed at the end of /.C.J/. Pleadings,
Appeal relating to the Jurisdiction of the ICAO Council.

2 Hereafter referred to as the Judgment.

50
93 ICAO COUNCIL (SEP. OP. DILLARD)

category as minor procedural requirements designed to regulate the
expeditious and orderly process of adjudication. The former engages
the fundamental rights of the parties and is usually non-waivable; the
latter do not

In essence, a substantive jurisdictional issue (I say ‘‘substantive’’ only
because the “‘jurisdiction” is sometimes loosely used) has a double focus.
This is clearly revealed in the jurisprudence of federal states where juris-
dictional issues are so frequently litigated and syphoned off for appeal
before considering the merits !. Not only is the issue deemed fundamen-
tal to the rights of the individual litigant whose plea is not merely that
the court or other tribunal has no power to hear the merits but also that
it has no power to put the individual to the trouble, expense, potential
vexation and other features which attend the need for defending on the
merits. The issue is also fundamental at the level of competing power
controversy between contending governmental entities (i.e., central, local
or regional governments). While the latter factor may not be operative
in the present case, it yet points up the importance of a jurisdictional
issue directed either to power over the person or subject-matter.

On principle therefore it seems to me clear that the allegedly clean cut,
but questionable, distinction between procedural and substantive issues
does not for purposes of grounding an appeal embrace a plea to the
jurisdiction.

The Rules for the Settlement of Differences, like other rules, are subject
to varying interpretations. I see no compelling reason for so interpreting
Rules 5 and 15 as to make them mutually exclusive. Furthermore the
Council itself appeared to construe them together and at no time con-
sidered the issue non-appealable.

While I do not think Article 86 of the Convention was intended to
create a right of appeal if none existed independent of Article 86, T yet
see nothing in this Article which negatives the conclusion above.

Although the contention concerning the lack of relationship between
the subject-matter of negotiations and the appeal under Article 84 raises
somewhat different issues, it too seems to me insufficiently compelling
to justify a denial of the appeal for reasons similar to those advanced
above. It may be true that prior negotiations were not specifically di-
rected to the jurisdictional issue itself,—an issue hardly susceptible to
such negotiations 2. A literal reading of Article 84 may then be invoked
to show that any appeal on such an issue is premature. But such a read-
ing presupposes that the drafters contemplated a consequence which

' See, for instance, Bell v. Hood 327 US 678, 682 (1945).
2 It is almost self evident that, had the prior negotiations attempted to embrace
this issue, they would have proved abortive. (See C.R. 72/8, pp. 12-13.)

Si
94 ICAO COUNCIL (SEP. OP. DILLARD)

seems out of line with the fundamental purposes inherent in the right to
invoke an early and definitive decision on an issue of such importance.

The absence of any direct evidence on this point and the remoteness
of any connection it may bear on the object and purpose of the Con-
vention and Transit Agreement have impelled me to agree with the reason-
ing of the Judgment.

The conclusions stated above are rested on broad principles touching
the nature and thrust of a jurisdictional issue. They are fortified, in the
present instance, by considering the violence done to Article 62 (1) of
the Rules of this Court if the opposite view were held; but I also agree
with the Judgment that the decision should not be grounded on this Rule.

2. The Application of Pakistan

It does not seem to me necessary to dwell extensively on this issue.
Article 36 (2) of the Statute is not involved.

The jurisdiction to entertain the appeal with respect to the Appli-
cation rests on the express terms of Article 84 of the Convention and
Article IT, Section 2, of the Transit Agreement when both are read in
conjunction with Articles 36 (1) and 37 of the Statute.

The latter Article provides for such jurisdiction “Whenever a treaty
or convention in force provides for reference of a matter to ... the Per-
manent Court of International Justice, the matter shall, as between the
parties to the present Statute, be referred to the International Court
of Justice”. (Emphasis added.)

Pakistan asserted that the Applicant’s recourse to this jurisdictional
power “is a clear admission of the fact that the Convention and Transit
Agreement were in force between the parties at the time the cause of
action arose and continued to be so” (Rejoinder, para. 37).

This amounts to saying that India cannot ‘‘blow hot and cold”, i.e.,
that she cannot rely on the continued existence of the Convention and
Transit Agreement for purposes of perfecting an appeal while denying
it for purposes of attacking the jurisdiction of the Council of ICAO.

This apparently inconsistent position may, by implication, be pushed
still further. Thus it may be urged that the International Court of Justice’s
assumption of jurisdiction would constitute, in and of itself, a denial
of the main thrust of India’s contention.

But this argument attempts to prove too much and the contradiction
is more apparent than real. This follows because the criteria for opposing
the jurisdiction of the Council of the ICAO and those for perfecting
an appeal are quite distinct. The former have to do with the basic power
to entertain the application in the first place; the latter have to do with
the judicial protection afforded the party against an allegedly erroneous
decision. If the latter were co-extensive with the former, then the latter
could be rendered completely useless.

52
95 ICAO COUNCIL (SEP. OP. DILLARD)

A simple, if extreme, hypothetical instance will serve to illustrate the
point. Suppose India’s contention were that she had not ratified or
adopted the Convention and therefore it was not, as between the Parties,
a “treaty or convention in force”, if the decision of the ICAO Council
were adverse how could she avail herself of her appellate power without
invoking Article 37 of the Statute?

Nor does the matter end there. There is a familiar logical weakness
in attempting to charge the maker of a statement with a contradiction
when the terms he uses must necessarily invite a seeming contradiction
unless regard is paid to the different types of statements made. The
matter is complicated and need not be pursued in the body of this opinion’.

In any event it seems evident that India’s position is justified and that
the jurisdiction of this Court to entertain the appeal on the Application
is clear.

3. The Complaint of Pakistan

Jf it is established that this Court has jurisdiction over the Application
and if it is also established that the Council of the ICAO has jurisdiction
to entertain the Application, less practical significance attaches to the
issue of the appealability of the Complaint, and this is especially true
in this case in light of their almost identical wording and reach.

Nevertheless, the issue was before the Court and a resolution of it
may have value for the future.

The theoretical problems posed were, in my opinion, difficult and
it may well be that the Council will wish to give further study to them.
Ï propose, therefore, in the interest of exposure, to first advance an
argument against the appealability of the Complaint and then a brief
counter-argument in support of the position adopted in the Judgment.

(a) The Argument against the Appeal
This argument rests on a consideration of (a) the different objects

! Pakistan’s assertion may be linked with numerous supposedly contradictory
statements, analyzed by philosophers and logicians, of which the oldest is that of
the Epimenides containing the famous assertion by a Cretan “that all Cretans are
liars”. It is obvious that such a statement appears superficially to be inherently
contradictory since if it is true, it contradicts itself and likewise if it is false. (Com-
pare similar generalized statements such as ‘‘all generalizations are false” or that
of the skeptic who proclaims ‘the knows nothing”.) The classic and perhaps still
the clearest analysis designed to show that such assertions are not necessarily con-
tradictory is that of Whitehead and Russell in the Principia Mathematica (2nd ed.
1950), pp. 37-39 and 47-65, which announced, for the first time, the famous ‘‘theory
of logical types”. See also, Eaton, General Logic (1931), pp. 452-462 and Copi,
Symbolic Logic (1959), pp. 162-164.

There is no logical inconsistency or contradiction in India’s reliance on the Con-
vention for purposes of appeal while still contending it is not ‘in force” for pur-
poses of denying the Council’s jurisdiction.

53
96 ICAO COUNCIL (SEP. OP. DILLARD)

of a complaint in contrast to an application and (6) the structure of
the Rules dealing with each }.

The Rules, of course, make a sharp distinction between applications
filed under Article 84 of the Convention and Article I1, Section 2. of
the Transit Agreement on the one hand, and complaints under Article
Il, Section 1, on the other hand. This is true despite the fact that certain
rules are common to both (e.g., Arts. 3 (1) (a) and (c), 4 and 5 of Chap.
Ill of Part I and the General Provisions of Part IH).

The significant differences are:

(1) The Council is obligated to decide on any disagreements under an
application; no such obligation obtains with respect to a complaint;

(2) the decisions of the Council with respect to an application are binding;
no such binding quality attaches to the “findings and recommen-
dations” under a complaint (Arts. 24 and 25 of the Rules) which
envisage a consultative process;

(3) “complaints” do not deal with the interpretation or application of
the treaties but with actions by a State, which may be legally privi-
leged, yet are alleged “to cause injustice or hardships” to the com-
plaining State;

(4) the decisions of the Council with respect to an application are subject
to appeal pursuant to Article 84 of the Convention (Art. 18 of Rules).
No similar right of appeal “‘appears” to apply to complaints under
Section 1. (To be noted later is the possibility of an appeal by trans-
ferring the complaint into a type of “disagreement’’.)

Cast against this background, how may India justify an appeal! from
a decision of the Council, if its decisions under Section | are not subject
to appeal?

From what has been said above, it seems evident that the ultimate
findings and recommendations of the Council under the Complaint would
not be subject to appeal and especially so since these findings and recom-
mendations are not necessarily based on a legal issue resulting from an
adjudication.

It would seem to follow logically that if there is no appeal from the
ultimate findings and recommendations this very lack of appellate power
would extend to any “preliminary” issue antecedent to those findings.
(To be questioned later.)

India attempted to convert a presumably non-appealable decision
under Article II, Section 1, of the Transit Agreement into an appealable
one under Section 2 (Reply, paras. 39-41) by asserting there was a “‘dis-

1 “Application” and ‘‘complaint” are capitalized only when reference is made
to them with respect to the particular application and complaint in this case.

54
97 ICAO COUNCIL (SEP. OP, DILLARD)

agreement” over whether there was or was not “action” under the
Transit Agreement within the meaning of Section 1. This “disagreement”
in turn, so she asserted, attracted the applicability of Section 2 which
permits an appeal under Article 84 of the Convention. Support for this
ingenious approach was found in the Working Paper of the Secretary
General of the ICAO in Document C-WP/5433. (Reply, Annex C.)

The difficulty with this argument is two-fold.

First, the grounds India asserted to be controlling at the Council
level were all grounded on the assumption that Section | alone was
involved. India’s attack on the jurisdiction of the Council raised no
issue of a disagreement—a point which, while not necessarily incom-
patible with her major argument that there could be no “action under”
a non-existent treaty, would yet have caused her difficulty.

Second, and more important, the Council's decision was definitely
rested on the assumption that it was dealing with a Complaint under Sec-
tion I (see in particular Memorial of India, Annex E, fe), Discussion,
paras. 135-139). Indeed the explanation of the vote of the United States
delegate in favour of India was expressly based on the ground that the
action had been improperly brought under Section | and that it should
have been brought under Section 2 (ibid.). However this was a minority
vote. There is no doubt that the decision was taken under Section 1.

An additional argument can be advanced, keyed to the concept that
the appellate jurisdiction of the Court is a limited one, and that it is
incompatible with that concept for the Court to review on appeal an
issue neither argued before the lower tribunal nor decided by it !.

If the analysis above is correct, the entire argument concerning the
Complaint, including the voting on Section 1, may be dismissed as beyond
the competence of the International Court of Justice.

(b) The Argument Sustaining the Appeal

There can be little doubt that, viewed in the abstract, the theoretical
arguments above are not without weight. When, however, more detailed
consideration is given to the particular character of the Application and

1 As stated by one commentator:

“Whether new issues—that is questions of law or fact not argued before the
ICAO Council—may be considered by the appellate tribunal is more doubtful.
Unless all the parties involved consent thereto, these issues would seem to be
ultra vires the jurisdiction of the appellate tribunal. This is not because of any
formalistic notion of estoppel, but because the consent to the jurisdiction of
the appellate tribunal is limited to the review of those issues that were submitted
to the ICAO Council for adjudication.” (Buergenthal, Law Making in the In-
ternational Civil Aviation Organization (1969), pp. 145-146.)

55
98 ICAO COUNCIL (SEP. OP. DILLARD)

Complaint in this case, including their striking similarity, the arguments
are weakened. The Judgment has, in my view, adequately provided the
justification for assimilating, for purposes of appeal, the Complaint to
the Application and it would be an exercise in needless repetition to
rehearse the reasons, with which I agree, sustaining its position.

I am moved, however, to make the following additional observations.

The argument that because the ultimate findings and recommenda-
tions of the Council, in considering a complaint are non-appealable,
therefore a preliminary jurisdictional challenge is likewise non-appeal-
able is, in my view, subject to doubt. They fall into different categories.

It may be true that the former may turn on considerations of equity
and expediency which do not readily furnish suitable material for appeal
to a court of law (a proposition which may need some qualification),
but surely a jurisdictional issue, which turns on basic questions of in-
stitutional power, furnishes the very paradigm of a legal issue.

Nor does it logically follow that because the former are not “legally”
binding, the latter is non-appealable. The institution of a complaint
sets in motion a whole series of chatn reactions. It is a two-stage process
in which the respondent State is put to his proof with potential sanctions
of a severe character. The very purpose of a challenge to jurisdiction is
to arrest this process, with its potentially vexatious requirements and
implications, in limine. Its purpose is to deny that the Council can subject
the challenging party to any enquiry whatever concerning alleged ‘‘in-
justice or hardship” especially when an adverse finding or recommen-
dation may well generate the sanction of suspension from rights and
privileges under the Agreement, provided (at the second stage of the
process) that the Council considers that the allegedly offending State
has “unreasonably” failed to take suitable corrective action.

It is hardly necessary to add that the legally oriented observations
above carry no implication whatever that the Council would assume
an unwarranted jurisdictional power or that to allow an appeal on this
issue would in any way impede the non-appealable character of its ulti-
mate findings and recommendations. Assuming it has power, its highly
desirable flexible procedures are in no way impaired. At the policy level
it may also be suggested that considerations of the kind noted above
are more likely to stimulate than retard the number of States willing to
adhere to the Transit Agreement.

4. The Voting Issue

The issue of possible irregularity in the manner and method of voting
becomes irrelevant if, as indicated earlier, the Complaint is not appeal-

56
99 ICAO COUNCIL (SEP. OP. DILLARD)

able. It is also irrelevant in so far as the Application is concerned since,
under any view, a statutory majority favoured the appeal.

Is it relevant on the assumption that the Complaint, viewed in iso-
lation from the Application, is appealable?

It is possible to assert that the manner in which the Council behaves
is not central to the issue of whether it can behave at all, i.e., the juris-
dictional issue. I take this to be the thrust of a question put to counsel
(C.R. 72/7, p. 40). Thus, if the jurisdictional issue is in favour of India’s
contention, i.e., that, objectively viewed, there is no jurisdiction, then
clearly the issue becomes irrelevant and likewise if the issue favours,
on an objective assessment, the position of Pakistan.

The force of this argument may be somewhat dented by the counter-
assertion which India was quick to make that the decision by the Council
was itself on the jurisdictional issue (C.R. 72/8, p. 10).

Fundamentally, however, the voting problem does not go to the
jurisdictional issue itself since this issue is clearly focussed on the reach
of the Council’s competence to deal with the subject-matter of the dis-
agreement.

Considerations of a different kind also fortify the view that the Court
should not treat the voting issue as critically significant.

As to the ‘‘manner”’ of putting the vote, there is little validity in India’s
claim that it was framed in the wrong way !. While the Council’s being
“seised” of the case is not to be confused with its jurisdictional power to
handle it, nevertheless it is clear that, as with any other body endowed with
adjudicating authority, it may legitimately assume (in the absence of a
claim that is patently frivolous or groundless) that, in the first instance,
it is possessed of jurisdiction pending a challenge to its power. In keeping
with general principles of adjudication it was incumbent on India to prove
the contrary.

Turning to the problem of the ‘‘statutory majority” the proposal
put to vote was stated by the President of the Council to be whether
“those who think that the Council of ICAO has no jurisdiction to consider
Pakistan’s Complaint to so indicate by saying ‘yes’ and those who
disagree with that to say ‘no’...".

The result of the voting was 1 yes, 13 no, 3 abstentions (Memorial of
India, Annex E, fe), Discussion, para. 136). The President therefore ruled
that the Council had jurisdiction. In light of this result, it would appear
that even if there were error, it was harmless error, since, in my view, the
manner of putting the voting in this particular case was permissible and
only one vote was negative.

1 See infra under IH, 1.

57
100 ICAO COUNCIL (SEP. OP. DILLARD)

That there was some confusion on the meaning of a majority was
revealed in the subsequent discussion and was relied on by Pakistan to
show that the whole issue of a statutory majority has by no means been
resolved (Rejoinder, para. 78; Counter-Memorial. para. 59).

The point made by India was that, had the issue been put in such a man-
ner that a statutory majority were needed to establish jurisdiction, then
only 13 States so voted and the decision would not be sufficiently sup-
ported !.

Pakistan’s point was that the majority needed was not that of the
total membership of the Council but only the majority of those on the
Council who are also parties to the Transit Agreement and thus entitled
to vote or who are not otherwise disqualified as a party in interest.

Article 52 of the Convention specifies that decisions of the Council
shall require ‘‘approval by a majority of its members”. It does not,
however, specify how the majority is to be determined. Article 66 (5)
specifically strips a member of the Council who is not a member of the
Transit Agreement from voting on any question under the provisions of
the Agreement. And parties in interest are also excluded (1957 Rules,
Arts. 15 and 26 (3)).

It had been assumed by the Secretary General of the ICAO that despite
the provisions of Article 66 (b), a statutory majority of 14 was needed
for all decisions of the Council. That this interpretation may be subject
to doubt was indicated by Pakistan and may well await renewed study by
the Council, especially since the requirement might, under readily
conceivable circumstances, paralyse the decision-making powers of the
Council. It may be noted, in passing, that the general Rules of Procedure
for the Council (as opposed to the Rules for the Settlement of Differences)
are not so restricted and speak of the majority of votes cast (Rules 42, 49)’.

It is, of course, not impossible to contemplate a situation of gross abuse
of procedural requirements leading to a miscarriage of justice. In such a
situation the validity of the decision adopted by a subordinate adjudi-
cating body may be legitimately challenged on appeal. As previously
noted, a challenge of this kind is quite distinct from one directed to the
issue of jurisdiction.

It seems to me abundantly clear that no such abuse was evident in

1 The Council is composed of 27 States but the number qualified to vote on the
Complaint was limited to 18 owing to the fact that India was a party in interest
and 8 other States represented on the Council were not parties to the Transit Agree-
ment. Only 17 votes were cast because the representative of one State was absent.

2 One commentator favours the view that a dispute should be decided by a simple
majority of those Council members who are qualified to vote in deciding the par-
ticular case (Buergenthal, op. cit., supra, p. 191).

58
10t ICAO COUNCIL (SEP. OP. DILLARD)

the present case either with respect to the “voting” issue or other alleged
procedural irregularities.

The observations above are merely supplied in further support of the
conclusions of the Court in paragraphs 44 and 45.

If. JURISDICTION OF THE ICAO COUNCIL

I, Preliminary

The following broad principles seem to me applicable to the present
controversy:

(1} As a general rule any organ endowed with jurisdictional power
has the right in the first place to determine the extent of its jurisdiction.
This clearly applies in the absence of a clause contraire and it is particu-
larly applicable to a pre-established international institution. As stated in
the Nottebohm case (Prel. Obj.), C.J. Reports 1953, page 111 at page 119
(emphasis added):

“This principle which is accepted by general international law in the
matter of arbitration, assumes particular force when the international
tribunal is no longer an arbitral tribunal constituted by virtue of a
special agreement between the parties for the purpose of adjudicating
on a particular dispute, but is an institution which has been pre-
established by an international instrument ...”

Statements from numerous cases can be marshalled in support of the
general principle, noted above. See, e.g., Interpretation of the Greco-
Turkish Agreement of 1 December 1926, P.C.1.J., Series B, No. 16, at
page 20 (1928) !.

(2) Assuming that the principles announced in Section 3 of the Vienna
Convention give expression to general principles of international law
antedating the Convention, it is clear that Article 60 (1) must be read in
conjunction with Article 65 (4). In keeping with the broad principle
announced above, this Article provides:

! Were it necessary to have recourse to general canons of construction, I would
wish to associate myself with the concluding statement on this point by Judge
Read in the Anglo-Iranian Oil Co. case U.C.J. Reports 1952, at pp. 143, 144) in
which he emphasized that within certain limits both the Permanent Court of Inter-
national Justice and the International Court of Justice have ‘‘given liberal inter-
pretations to jurisdictional clauses, designed to give full effect to the intentions of
the parties concerned”. (Emphasis added.)

And, also, with the view expressed by Lauterpacht that the Court ‘‘has applied
boldly the view that effect must be given to the ostensible purposes of the juris-
dictional clause” (The Development of International Law by the International Court
of Justice, 1958, p. 341).

59
102 ICAO COUNCIL (SEP. OP. DILLARD)

“Nothing in the foregoing paragraphs shall affect the right or
obligation of the parties under any provisions in force binding the
parties with regard to the settlement of disputes.”

Furthermore it should be noted that under Article 60 (2) (4), an alleged
material breach of a multilateral treaty by one of the parties does not give
a party “‘specially affected” the privilege of terminating the treaty but
only provides grounds for “suspending” the operation of the treaty in
whole or in part in the relations between itself and the defaulting State”
(emphasis added). The concept of “‘suspension” which is clearly keyed to
a temporary condition, pre-supposes the continued existence of the treaty.

Even if certain operations governing air rights were deemed suspended
it would not logically follow that such suspended operations embraced
the compromissory clause of the treaty which falls conceptually and func-
tionally in a separate category and may thus become operative since the
treaty remains in force.

2. Formulation of the Question

Tn its Application of 3 March 1971 before the Council of the ICAO
Pakistan invoked the power of the Council to decide and declare, inter
alia, that the decision of the Government of India suspending the over-
flights of Pakistan aircraft over the territory of India “is illegal and void
and in violation of India’s international obligations under the Convention
and Transit Agreement”.

It also requested that the Council decide and declare that the decision
of the Government of India suspending flights of Pakistan aircraft over
the Indian territory is causing injustice, hardship, loss and injury to
Pakistan.

Thus it sought a directive that the Government of India should
restore the “two freedoms” and adequately compensate Pakistan for the
losses and injury suffered by it as a result of ‘the arbitrary, unilateral and
illegal decision of the Government of India in breach of its international
obligations”.

As previously noted, the Complaint filed the same day was similar
in terms except for the omission of the paragraph secking compensation
(Memorial of India, Annex A, item 3, {f}). (7), and Annex B, item 3, (/)).
For purposes of this analysis the two may be treated together.

The Council has no general power to adjudicate disagreements among
contracting States. Its powers are strictly derivative and thus depend
on the terms of the Convention and Transit Agreement.

Article 84 of the Convention and Article II, Section 2, of the Transit
Agreement (by reference to Article 84) confer the power to decide “...
any disagreement between two or more contracting States relating to
the interpretation or application” of the Convention and its Annexes.

60
103 ICAO COUNCIL (SEP. OP. DILLARD)

In its Application instituting proceedings before this Court, India’s
submissions were:

(1) that the Council has no jurisdiction to handle the Application and
Complaint of Pakistan as the Convention and Transit Agreement
“have been terminated or suspended between the two States”’;

(2) that the Council has no jurisdiction over the Complaint since no
action has been taken ‘tunder” the Transit Agreement . .. since that
Agreement has been terminated or suspended as between the two
States;

(3) that the question of overflights is governed by a special régime of
1966 and not by the Convention or the Transit Agreement.

From the above it appeared that the principal issue before the Court
could be stated as follows:

“Did Pakistan’ s Application (and Complaint), considered in light of
India’s objections, reveal any disagreement between the two Parties relating
to the interpretation or application of the Convention and its Annexes?”

3. India’s Principal Contention

In denying that the Council had jurisdiction India’s principal con-
tention (presented with great thoroughness, force and ingenuity) was that
any disagreement relating to the termination or suspension of a treaty
lies completely dehors the treaty. (Dehors-the-treaty theory.) Inasmuch
as it lies dehors the treaty it cannot relate to any disagreement over the
interpretation or application of the treaty. Supplementing the dehors-
the-treaty theory was a logically distinct yet related theory viz., the “‘non-
existing” treaty theory. This was revealed in the repeated assertion that
“to interpret or apply” presupposes the continued existence of some-
thing to interpret or apply—an assertion which reverberated throughout
the Memorial, Reply and oral argument!.

India recognized, of course, that international law does not sanction
the arbitrary termination or suspension of either a bilateral or multi-
lateral treaty. The privilege is not absolute but qualified by various re-
quirements of which the most significant is that the breach justifying the
termination or suspension must be material.

But all this is quite irrelevant, so she asserted, when the issue centres
on the power of the ICAO Council to handle the disagreement. Since
the source of this power is the Convention it cannot embrace matters
lying beyond it.

1 Application, paras. 1, 27 (a); Memorial, paras. 55, 68, 70, 72, 85; Reply,
para. 8; C.R. 72/6, p. 13.

61
104 {CAO COUNCIL (SEP. OP. DILLARD)

Her chain of reasoning appeared to be:

(1) All questions of termination or suspension lie dehors the treaty;
(2) the jurisdiction of the ICAO Council lies within the treaty; therefore

(3) the Council of the ICAO has no jurisdiction to handle the disagree-
ment.

Had her premise been soundly grounded, the conclusion would follow
that, in so far as the jurisdiction of the ICAO Council is concerned, any
contracting State may, vis-a-vis any other contracting State, arbitrarily
suspend the treaty and do so by her mere ipse dixit. This conclusion
India cheerfully conceded (C.R. 72/8, p. 14) !.

In my view the argument contains the hidden assumption that all
questions of termination or suspension lie ‘‘dehors” the treaty irrespec-
tive of any terms of the treaty.

Because this assumption is questionable, India’s premise was too
sweeping and, in the context of the present case, it therefore begged the
central question.

In fairness it should be said that she attempted to avoid question-
begging and circularity by indulging another assumption. This was exposed
by a question put to her bya Member of the Court. Her further assumption
was that ‘inherent limitations” on the Council's jurisdiction inhibit it
from considering questions of “substantive” international law under
which the suspension was effected. Under this assumption any challenge
to her right to suspend the treaties could be aired only by a court com-
petent to handle such matters.

Putting aside the validity of the asserted distinction between substan-
tive and non-substantive international law (to be alluded to later) India
nevertheless reaffirmed her basic premise.

This was especially revealed in the following passage in response to
another question put by the same Member of the Court. The question
dealt with the potential application or relevance of Article 89 of the
Convention. After discussing this critically significant Article, counsel
stated:

“...if apart from Article 89, the Council has no jurisdiction to deal
with the question of substantive international law, how could the
absence of jurisdiction be cured by invoking Article 89? The crucial
point against the Council exercising jurisdiction would still remain,

‘ To avoid any misunderstanding it Should be pointed out that India at no time
contended that she could arbitrarily suspend treaties. Her contention was that such
an issue could only be determined by a court competent to enter into the matter and
that the ICAO Council was not competent to do so. See Judgment, paras. 32 and 34,

62
105 ICAO COUNCIL (SEP. OP. DILLARD)

namely that the operation of the treaties has been suspended, and
therefore neither Article 89 nor any other article call for application
or interpretation." (Emphasis added.)

This recourse to the “non-existing treaty’ theory is made even more
explicit in the next passage where he stated:

“The crux of the matter is that the treaties must be in operation
before any question of interpretation or application can arise...
the operation of a treaty has been suspended or terminated, the
jurisdiction of the Council cannot be invoked on the ground that
there has been a breach of the treaty.” (C.R. 72/6, p. 13.) Emphasis
added.)

It can be suggested that India, by her combined theories, was in effect
challenging the applicability of the entire Convention as opposed to the
mere application of any particular article in it. But this point need not
be pressed since ultimately the Council must, as a matter of the merits,
decide whether the disagreement relates to the interpretation or appli-
cation of one or more articles of the Convention. This point is mentioned
infra, under 5.

4. Subsidiary Arguments

India’s attempt to fortify her case through a number of subsidiary
arguments needs only passing reference.

(1) In discussing the inherent limitations on the Council’s jurisdiction,
she drew the inference that the nations of the world could not have in-
tended to endow it with the power to determine issues of a sophisticated
legal nature especially when the dispute may be highly charged with
political implications and inspired by military considerations.

It is true, of course, that the Council is endowed with a mix of mediat-
ing, conciliating and adjudicating functions. In so far as the last is
brought into play, its composition may seem ill-suited to its function as
numerous commentators have suggested }.

Grant this and the argument is yet incomplete. This is so because it
ignores the safeguard provided by the right of appeal to either an arbitral
tribunal or this Court, bodies presumably capable of handling sophisti-
cated legal issues.

It also ignores the fundamental distinction between the power of the
international community to establish an organ with adjudicative powers
and the policy considerations prompting it to do so. There is no question
but that this power was exercised with the consent of all contracting
States.

' See, for example, Goedhuis, ‘Questions of Public International Air Law”,
81 Recueil des cours, pp. 203 ff., at pp. 222-224.

63
106 ICAO COUNCIL (SEP. OP. DILLARD)

Finally, it is significant to note that the powers of the Council are part
of a functioning “system” or régime in which some supervisory authority
over its adjudicating powers is integral to the operation of the entire
system. This point, alluded to in the Judgment (para. 26) is, in my view,
important.

It is important not because third-party judgment is always preferable
to more flexible procedures of settlement but because it provides a method
for ultimately settling legally relevant issues and can, by so doing (es-
pecially when the process is located within a functioning system), facili-
tate rather than impede the processes of negotiation, mediation and
conciliation.

(2) It is, of course, axiomatic that questions of international law inhere
in the interpretation or application of treaties. The attempt by India to
segregate those legal issues which might fall within the proper province
of the [CAO Council and those beyond its reach, while ingeniously ar-
gued, was not persuasive in light of the unsupported and novel distinc-
tion between substantive and non-substantive international law. The
matter needs no elaboration.

(3) India’s attempt narrowly to restrict the concept of “application”,
while also ingentous, was also unpersuasive. The distinction she drew was
between the ‘operation’ (of the treaty) and the “application” of its
provisions to ‘an existing state of affairs’. By way of illustration she
invoked the kinds of applications which she claimed might legitimately
arise under Articles 5, 9 and 11 of the Convention. (C.R. 72/1, pp. 18-24;
72/5, p. 53.)

Her invocation of Article 9, in particular, deserves a digressive com-
ment. It is difficult to discern how the legal issues arising from the appli-
cation of this Article, involving as they do, considerations of “reasons of
military necessity and public safety’’, are not, under [ndia’s view, so highly
charged with political and military factors as to make them beyond the
reach of the Council. Yet India herself invoked the jurisdiction of the
Council in its dispute with Pakistan in 1952 and relied specifically on
Article 9 (as well as Articles 5 and 6)!.

The articles of the Convention are, of course, not “applied” in a va-
cuum. They must relate to a dispute involving, to some extent, an existing
state of affairs. If that ‘state of affairs” is generated by a suspension of
the treaty, it is difficult to see how the distinction between “application”
and “operation” is helpful or why the former is automatically excluded.

Judicial pronouncements do not give to the term “application” a

' The controversy was ultimately settled by negotiations. For an interesting ana-
lysis, see 7953 United States and Canadian Aviation Reports, pp. 110-133.

64
107 ICAO COUNCIL (SEP. OP, DILLARD)

restricted meaning as statements in the Mavrommatis case, P.CLJ.,
Series A, No. 5, page 48, and the Peace Treaties case, I.C.J. Reports 1950,
page 74, attest. } refrain from extending this opinion with quotations.

5. Specification of Relevant Articles

It seemed to me desirable to go through the laboured exercise above
because the major contention of India was rested rather more on logical
than empirical grounds. If its basic assumption had been correct then
(as in the domestic arena when a contract is deemed void) the compro-
missory clause (Art. 84) could have no effect. It seems clear, however,
that her assumption was not sufficiently supported.

It remains to determine, therefore, whether the disagreement between
India and Pakistan relates to the ‘interpretation or application” of any
article of the Convention and Transit Agreement.

On this positive point it will be observed that the Judgment carefully
avoids trespassing on matters which are the proper province of the Coun-
cil to determine. Whether India was or was not justified in suspending
the treaties obviously goes to the merits and is irrelevant to the juris-
dictional issue. It suffices therefore to point to a number of articles of
the Convention and Transit Agreement the interpretation and application
of which appears to be involved in the disagreement between the Parties.
T have little to add to the analysis in the Judgment which has called attention
to the disputes over the interpretation and application of Articles 5, 82,
83, 89 and 95. The specification of these Articles does not necessarily
imply that others might not also be relevant, i.e., Articles 25 and 37.
Furthermore, if regard is had to the Preamble of the Chicago Convention
and Article 44, it is arguable that their interpretation and application
are also implicated especially in light of Article 31 (1) and (2) of the
Vienna Convention. But all this falls within the province of the ICAO
Council to decide !.

Since in my view Article 89 was particularly relevant, and since I have

1 The “‘jurisprudential” point might be mentioned, even at the risk of appearing
over-academic, that multilateral treaties establishing functioning institutions fre-
quently contain articles that represent ideals and aspirations which, being hortatory,
are not considered to be legally binding except by those who seek to apply them
to the other fellow. On the other hand there are other articles which are generally
recognized as imposing definite legal obligations. The point at which the former
merge into the latter constitutes ane of the most delicate and difficult problems of
law and especially so in the international arena where generally accepted objective
criteria for determining the meaning of language in light of aroused expectations
are more difficult to ascertain and apply than in domestic jurisdictions. Nevertheless
the problem of determining, within the context of a specific controversy, which
articles are and which are not, legally binding cannot be altogether avoided with-
out indulging the twin assumptions that law is a ‘brooding omnipresence in the
sky” (an extreme natural law tenet) or that the language of law is at once self
revealing and self contained, a proposition which ail modern scholars concerned
with linguistic analysis and communication theory reject. Happily, considerations
of this kind are not required in the present controversy since it is unnecessary to
invoke the vaguer norms of the Convention and Transit Agreement in order to de-

65
108 ICAO COUNCIL (SEP. OP. DILLARD)

alluded to it earlier, I shall attempt to characterize the nature of the
disagreement over that Article.

Article 89

India’s consistently maintained position, to repeat, was that in sus-
pending the Convention and Transit Agreement vis-a-vis Pakistan she
was acting in accordance with privileges accorded her under international
law. Whether she was right or wrong in doing so is an issue going to the
merits which, she asserted, can only be determined by a court of compe-
tent jurisdiction. It has nothing to do with the jurisdiction of the ICAO
Council.

Article 89 of the Convention specifically provides:

“In case of war, the provisions of this Covenant shall not affect
the freedom of action of any of the contracting States affected,
whether as belligerents or as neutrals. The same principle shall
apply in the case of any contracting State which declares a state
of national emergency and notifies the fact to the Council.”

India’s suspension was occasioned by the hostilities in 1965. She
claimed the suspension was never lifted.

Pakistan contended that as a party to the Convention India was obli-
gated to observe its requirements. Article 89 specifically provides for the
very contingency which occasioned the suspension and is thus binding,
so she contends, on India. She fortified this by alluding to India’s own
conduct in sending a notification to the Council of the ICAO. She asserted
that India was, in fact, operating under Article 89 and that her subsequent
actions were consistent with this view. From all this it followed that the
Convention and Transit Agreement were not suspended even if the oper-
ation of certain rights accorded Pakistan under Article 5 and Article
I, Section 1, of the Transit Agreement were temporarily suspended.
Furthermore, so asserted Pakistan, India revoked the emergency.

At the legal level Pakistan insisted that Article 89 confers freedom of
action regarding the rights and obligations of contracting States regarding
emergencies, including notification and the lifting of the emergency. It
gives States all the needed protection afforded by international law and
has, in effect, supplemented international law by the consent manifested
in adopting the Convention.

India’s reply was, in effect, three-pronged. At the factual level she
disputed both the facts and inferences drawn from them by Pakistan.
At the legal level she contended that Article 89 is completely irrelevant

monstrate that the jurisdiction of the ICAO Council is keyed to very specific pro-
visions involving legal obligations of one kind or another, which it may be the duty
of the Council to consider.

66
109 ICAO COUNCIL (SEP. OP. DILLARD)

to the jurisdictional issue and leaves untouched the correctness of her
basic rights under international law. This follows, she asserted, because
Article 89 is merely declaratory of international law. Its purpose was
merely to assure States that their rights of suspension remained unaffected
by the Convention. Therefore it neither confers new rights nor disturbs
those already existing. She analogized the thrust of the Article to Ar-
ticle 73 of the Vienna Convention which, she asserted, has a similarly
innocuous, if cautionary, function.

India’s third contention was that the controversy over Article 89 was
irrelevant or better, perhaps, that it was rendered moot by virtue of the
suspension in February 1971 at which time there was neither a war nor
a national emergency.

It is true that Pakistan’s Application before the ICAO Council was
precipitated by the hijacking incident and the compensation sought in
its prayer for relief appeared to be limited to losses consequent upon
that incident. On the other hand, her letter to the President of the ICAO
Council invoked Article 89, and it was relied upon in the Counter-Me-
morial (para. 29). Counsel, of course, vigorously argued its applicability,
as witness C.R. 72/4, at pages 19-22; 72/6, at pages 10-11 and 42-50;
72/7, at pages 8-10; 72/8, at page 48 and 72/9 at page 22.

A more fundamental! answer to India’s third point lies however, else-
where. Clearly if the suspension in February 1971 is found to be illegal
as Pakistan contended then it can hardly render moot the controversy
over the application of Article 89. Equally clearly, this is for the Council
to determine as one of the issues on the merits.

From the above it becomes apparent that we have in these contrasting
views a disagreement relating to the interpretation and application of the
Convention and Transit Agreement sufficient to bring the disagreement
within the reach of Article 84 and thus to justify the assumption of juris-
diction by the Council. Once this is determined the Court has exhausted
its appellate function at this stage of the proceedings.

THT. THE MUNICIPAL LAW ANALOGY
1. Relevance

In what follows I do not mean to suggest that the Judgment need be
fortified by reference to Article 38 (c) and (d) of the Statute. The case
for sustaining the jurisdiction of the ICAO Council is, in my view, suf-
ficiently compelling that further support from “general principles of
law” in domestic fora or ‘‘judicial decision” of the highest authority in
those jurisdictions, may appear superfluous.

67
110 ICAO COUNCIL (SEP. OP. DILLARD)

At the risk of appearing over academic, I append this analysis because:

(1) It may shed additional light on the theoretical aspects of the case.

(2) Both Pakistan and India have alluded to Heyman v. Darwins Ltd.
(Memorial df India, paras. 83, 84; Counter-Memorial, para. 52;
Reply, paras. 70, 71 ; Rejoinder, paras. 70-72; and C.R. 72/3, pp. 23-25).

(3) I agree with the view of Judge Moore, expressed in the Mavrommatis
Palestine Concessions case (P.C.LJ., Series A, No. 2 (1924), pp. 57-
59), and that of many commentators that recourse to general prin-
ciples can enlighten issues before the Court and enrich its jurispru-
dence.

(4) Finally, in this instance, in particular, the analogy to domestic fora
is not (as is frequently the case) either irrelevant or misleading.

While this is true generally of contracts which have a provision that
disputes “‘relating to the interpretation and application of the contract”
should be first submitted to arbitration, it seems particularly true in the
field of labour controversy where contending power blocs (management
and unions), each jealous of its own prerogatives, are reluctant to concede
more power to the arbitral tribunal than the terms of the collective bar-
gaining agreement warrant. The analogy here is all the more suggestive
since in this area, as in the international area, the purpose of the agree-
ment is to establish a “system” designed to absorb conflict through proce-
dural techniques in the interest of industrial peace. The purpose of
establishing the ICAO was, in the large, to establish a system or régime
of civil air peace. Chapter XVIII of the Convention was designed to
facilitate the functioning of the entire system.

It is customary to dismiss the domestic analogy on two connected
grounds:

(1) The over-riding need in the international field for strict proof of
consent to submit to the jurisdiction of any tribunal; and

(2) the absence of a total system of compulsory third-party settlement
in the event of a breakdown in the arbitral process.

In the context of the present controversy, neither of these grounds ts
persuasive. The cases in the domestic arena also stress the fact that the
consent of the parties is at the root of their obligation to submit a par-
ticular dispute to arbitration.

The second ground does not apply in this instance because under
India’s theory of the case, it is irrelevant to the jurisdictional issue whether
the parties were or were not bound to submit the controversy to this

68
III ICAO COUNCIL (SEP. OP. DILLARD)

Court or any other. In other words, the existence vel non of compulsory
jurisdiction outside the Council had no bearing on the meaning and
scope of the compromissory clause. This is precisely the assumption
which is indulged in the municipal sphere. The issue centres on exactly
the same problem, i.e., the impact of a repudiation of the contract by
one party on the meaning and scope of a compromissory clause framed
in terms of interpretation or application of the contract.

It should be added that the question whether the repudiation was
justified by an alleged prior breach (the usual assertion) or for any other
reason, goes to the merits; hence the issue is whether the arbitral tribunal
has the power to enter into the merits—a narrow, jurisdictional issue
precisely as in the India/Pakistan case.

Furthermore, it is now firmly established, at least in common law
jurisdictions, that the jurisdictional issue remains to be decided whether
the repudiating party (as in the Heyman case) invokes the dispute settle-
ment clause or, as is more usual, the aggrieved party does so.

2. Some Distinctions

A critical distinction exists when the contract is shown to be void
ab initio as opposed to a showing that is it voidable !.

In the former instance it is clear that if the entire contract fails, all
subordinate clauses collapse including the arbitration clause. This is
comparable to India’s reliance on a kind of “non-existing” treaty con-
tention. But this presupposes a showing that the party opposing arbi-
tration never consented to the contract in the first place or that this con-
sent was vitiated by fraud in the factum or other factors destroying the
entire contract. Clearly this is not the situation in the India/Pakistan
case, although India’s reliance on a “non-existing” treaty approach
would seem to require it. India freely consented to the Convention and
Transit Agreement.

When the repudiating party resists the jurisdiction of the arbitral tri-
bunal on the ground that he has legitimately repudiated the contract be-
cause of prior material breach, then the contract is not rendered void but
only voidable. This is comparable to the situation in international law.
All the authorities agree that the treaty is not ipso facto rendered void
and especially so in a multilateral convention, even if the repudiation is

1 This distinction is so well established as hardly to need a recitation to authority.
However an interesting discussion is contained in the opinion of Judge Frank in
Kulukindis Shipping Co. S.A. v. Amtorg Trading Corp. (C.A. 2, 1942) 126 F. 2d 978.

69
112 ICAO COUNCIL (SEP. OP. DILLARD)

related to only one other party!. The issue then arises as to the operation
and scope of the compromissory clause. To what extent does this depend
on the actual wording of the clause?

In the first place it is clear than when the contract is void, the wording
of the clause is irrelevant. When it is voidable, it becomes significant
chiefly when the broad language of the clause is qualified by more specific
exclusions, as for instance, in collective bargaining agreements when
“management prerogative’ clauses qualify the obligation to submit to
arbitration. The issue can then arise as to whether the arbitral tribunal’s
jurisdiction extends to the determination of the scope of the exclusion.
See, U.S. Steel Workers of America v. Warrior and Gulf Navigation Co.
363 US 574 (1960) (holding that it did) *. |

The big point is that the wording of a clause confined to “interpretation
or application” of the contract or similar language, is customary in the
municipal as in the international field. It will be recalled that Article 84
also speaks of “any” disagreement without any exclusionary provision
either with respect to a class of disagreements or a particular disagree-
ment.

Counsel for India sought to distinguish the Heyman case because of
certain dicta indulged by Lord Simon calling attention to the breadth of
the compromissory clause. But a reading of that case will show that it did
not turn at all on this point, and indeed this is true of practically all the
cases in which a general clause is not coupled with expressly stated ex-
clusions.

3. The Cases

Heyman and Another v. Darwins Ltd., 1942, A.C. 356, 1 All Eng. Rep.
337 (H.L.) is, perhaps, the most frequently cited and quoted case on the
subject in the common-law world. It may be well, therefore, to quote two
passages from the opinions of the Law Lords. (References are to All Eng-
land Law Reports.)

Lord MacMillan, after making the distinction between void and void-
able contracts, continued:

“., an admittedly binding contract containing a general arbitration
clause may stipulate that in certain events the contract shall come
to an end. If a question arises whether the contract has for any such

! For an interesting analysis see, Sinha, Unilateral Denunciation of Treaty Be-
cause of Prior Violations of Obligations by Other Party, 1966, especially at pp.
35-58. So far as I can ascertain the literature of international law is sparse in the
analysis of the relationship between repudiation and a compromissory clause in the
repudiated treaty.

2 It is true but not relevant to the present analysis to observe that national poli-
cies in many States favour the arbitral process in contrast to the attitude prevalent
in the nineteenth century.

70
113 ICAO COUNCIL (SEP. OP. DILLARD)

reason come to an end, I can see no reason why the arbitrator should
not decide that question.” (P. 346.)

Viscount Simon sounds the same note in expressly approving a state-
ment by Viscount Finlay in a previous case:

“The proposition that the mere allegation by one party of repu-
diation of the contract by the other deprives the latter of the right
to take advantage of an arbitration clause is unreasonable in itself,
and there is no authority to support it.” (P. 341.)

Sometimes the argument is advanced as India did in the present case
that it is unreasonable to suppose that critical issues of material breach
should be left to a tribunal not exclusively composed of lawyers. In a
leading and much-cited case in the United States dealing with a labour
controversy in which management claimed that the union’s violation of a
“‘no-strike” clause was such a material breach as to terminate the contract,
including the arbitration clause, the court stated:

“If the union did strike in violation of the contract, the company is
entitled to its damages; by staying this action, pending arbitration,
we have no intention of depriving it of those damages. We simply
remit the company to the forum it agreed to use for processing its
strike damage claim. That forum, it is true, may be very different
from a courtroom, but we are not persuaded that the remedy there
will be inadequate.”

This case, incidentally, followed the reasoning in the Heyman case and
cited it. While the compromissory clause was broader than Article 84,
it was still keyed to ‘“‘disputes or grievances... involving questions of
interpretation or application of any clauses or matter covered by this
contract...” (Drake Bakeries Incorporated v. Local 50, American Bakery
and Confectionary Workers International, AFL-CIO, et al. 370 US 254,
266 (1962)).

The Heyman case is only one of many others in numerous jurisdictions
which concur in the conclusions above.

Attention is invited, in particular, to the following: Woolf v. Collis
Removal Service (1947) 2 All Eng. Rep. 260; The Tradesman (1961) All
Eng. Rep. 661; Mackinder v. Feldia A.C. (1966) 3 All Eng. Rep. 847;
Prima Paint Corp. v. Flood & Conklin Mfg. Co. 388 US 395 (1967).

For a comprehensive analysis and citations to cases not only in the
United States, but in England, Canada, South Africa, Australia and

71
114 ICAO COUNCIL (SEP. OP. DILLARD)

Ireland, see Breach or Repudiation of Contract as Affecting Right to En-
force Arbitration Clause Therein 32 A.L.R. 3d 377-419 !.

A leading United States case, Swift Chaplin Products v. Love 219 Cal.
App. 2d 110, 32 Cal. Rep. 758, 5 A.L. 12. 1001, which cited many
Supreme Court cases, is particularly instructive. In that case the compro-
missory clause was similar to that in Article 84. The contract had been so
modified as to generate a dispute. On this basis the lower court had held
(as India contended in the present case) that “no right to enforce arbi-
tration now exists, there being no contract then or now existing between

the parties” (p. 1004).

In reversing this holding, the appellate court, after stating that the
function of the court is a very limited one when the parties have agreed
to submit disputes to arbitration, continued:

“It is confined to ascertaining whether the party seeking arbi-
tration is making a claim which on its face is governed by the con-
tract. Whether the moving party is right or wrong is a question of
contract interpretation for the arbitrator. In these circumstances the
moving party should not be deprived of the arbitrator's judgment,
when it was his judgment and all that it connotes that was bargained
for.” (Emphasis added.)

*
* *

When India ratified the Convention. she freely consented to the right
of all other parties to invoke Chapter XVIII of the Convention. She can-
not unilaterally derogate from that right without demonstrating that her
consent was void ab inifio or that the disagreement was of such a charac-
ter as to fall entirely outside the category of disagreements embraced
in Article 84. She did not address herself to the former and her attempt
to justify the latter was, of course, disputed by Pakistan.

IV. CONCLUSION

For all the reasons above, supplementing and reinforcing the Judg-
ment, it seems clear that the Court had jurisdiction to entertain the

1 T regret that the references above are confined to common law jurisdictions.
The analysis of comparable problems in other Jegal systems was beyond my reach
especially as 1 do not conceive that they can be adequately understood abstracted
from the total legal environment in which they are located. 1 would assume, however,
that the principles announced above are so fundamental as not to be parochially
oriented. For a discussion of French law, see Robert, Arbitrage civil et commercial
(Dalloz, 1967).

72
115 ICAO COUNCIL (SEP. OP. DILLARD)

Appeal by India and that the Council of the ICAO was invested under
the Convention and Transit Agreement with the competence to entertain
Pakistan’s Application and Complaint.

(Signed) Hardy C. DILLARD.

73