INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPEAL RELATING TO THE JURISDICTION
OF THE ICAO COUNCIL

(INDIA r. PAKISTAN)

JUDGMENT OF 18 AUGUST 1972

1972

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

APPEL CONCERNANT LA COMPETENCE
DU CONSEIL DE L’OACI
(INDE c. PAKISTAN)

ARRET DU 18 AOUT 1972
Official citation:

Appeal Relating to the Jurisdiction of the ICAO Council, Judgment,
1.C.J. Reports 1972, p. 46

Mode officiel de citation:

Appel concernant la compétence du Conseil de l'O ACT, arrêt,
C.I.J. Recueil 1972, p. 46

Ne de vente: 308

18 AUGUST 1972
JUDGMENT

APPEAL RELATING TO THE JURISDICTION
OF THE ICAO COUNCIL

(INDIA v. PAKISTAN)

APPEL CONCERNANT LA COMPÉTENCE
DU CONSEIL DE L'OACI

(INDE c. PAKISTAN)

18 AOÛT 1972
ARRÊT
46

INTERNATIONAL COURT OF JUSTICE

1972
18 August

eNO. 34 YEAR 1972

18 August 1972

APPEAL RELATING TO THE JURISDICTION
OF THE ICAO COUNCIL

(INDIA v. PAKISTAN)

Appeal from decisions of the Council of the International Civil Aviation Organi-
zation assuming jurisdiction in respect of an “ Application" and a “Complaint”
made to it by Pakistan concerning the suspension by India, in alleged breach of
the 1944 Chicago International Civil Aviation Convention and International Air
Services Transit Agreement, of flights of Pakistan civil aircraft over Indian
territory—-Competence of the Court to entertain this appeal—Interpretation of
the jurisdictional clauses of these instruments—Jurisdiction of the Council to
entertain the dispute between India and Pakistan—Question of whether this dis-
pute involved a ‘‘disagreement ... relating to the interpretation or application”
of the Chicago Convention and Transit Agreement—Alleged irregularities in the
procedure of the Council— Relevance of this question to the task of the Court
in the present case.

JUDGMENT

Present: Vice-President AMMOUN, Acting President; President Sir Muhammad
ZAFRULLA KHAN; Judges Sir Gerald FitzmMaurice, PADILLA NERVO,
FORSTER, GROS, BENGZON, PETREN, LACHS, ONYEAMA, DILLARD,
IGNACIO-PINTO, DE CASTRO, Morozov, JIMENEZ DE ARECHAGA; Judge
ad hoc NAGENDRA SINGH; Registrar AQUARONE.
47 ICAO COUNCIL (JUDGMENT)

In the Appeal relating to the Jurisdiction of the Council of the International
Civil Aviation Organization,

between

the Republic of India,
represented by

H.E. Lt. General Yadavindra Singh, Ambassador of India to the Nether-
lands,

as Agent,

Dr. S. P. Jagota, Joint Secretary and Legal Adviser, Ministry of External
Affairs, Government of India,

as Deputy Agent and Counsel,

Mr. T. S. Ramamurti, Secretary of Embassy,

as Deputy Agent,

assisted by

Mr. N. A. Palkhivala, Senior Advocate, Supreme Court of India,
as Chief Counsel,

Mr. B. S. Gidwani, Deputy Director General of Civil Aviation, Govern-
ment of India,

Mr. Y. S. Chitale, Advocate, Supreme Court of India,

Mr. P. Chandrasekhara Rao, Legal Adviser, Permanent Mission of India
to the United Nations, New York,

as Counsel,

and by

Mr. I. R. Menon, Civil Aviation Department, Government of India,
as Expert,

and

Pakistan,
represented by
H.E. Mr. J. G. Kharas, Ambassador of Pakistan to the Netherlands,
as Agent,
Mr. S. T. Joshua, Secretary of Embassy,
as Deputy Agent,
assisted by
Mr. Yahya Bakhtiar, Attorney-General of Pakistan,
as Chief Counsel,
and by

Mr. Zahid Said, Deputy Legal Adviser, Ministry of Foreign Affairs, Govern-
ment of Pakistan,

Mr. K. M. H. Darabu, Assistant Director, Department of Civil Aviation,
Government of Pakistan,

as Counsel,
48 ICAO COUNCIL (JUDGMENT)

THE Court,
composed as above,
delivers the following Judgment:

|. By a letter of 30 August 1971, received in the Registry the same day,
the Ambassador of India to the Netherlands transmitted to the Registrar of
the Court an Application instituting an appeal from the decisions rendered
on 29 July 1971 by the Council of the International Civil Aviation Organization
(“ICAO”) on the Preliminary Objections raised by India in respect of an Ap-
plication and a Complaint brought before the Council by Pakistan on 3 March
1971. In order to found the jurisdiction of the Court, the Application relies
on Article 84 of the Convention on International Civil Aviation signed at
Chicago on 7 December 1944, Article II of the International Air Services
Transit Agreement opened for signature at Chicago on 7 December 1944,
and Articles 36 and 37 of the Statute of the Court.

2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
at once communicated to the Government of Pakistan. In accordance with
paragraph 3 of that Article, all other States entitled to appear before the Court
were notified.

3. In accordance with Article 13, paragraph 1, of the Rules of Court, the
Vice-President acted as President in the case. Pursuant to Article 31, para-
graph 2, of the Statute of the Court, the Government of India chose Dr. Na-
gendra Singh, Member of the Permanent Court of Arbitration, to sit as judge
ad hoc.

4. The time-limits for the filing of the written pleadings were fixed, or
extended at the request of the Government of India, by Orders of 16 Septem-
ber and 3 December 1971 and 19 January and 20 March 1972. The pleadings
having been filed within the time-limits prescribed, the case was ready for
hearing on 15 May 1972, the date on which the Rejoinder of the Government
of Pakistan was filed.

5. The Government of Pakistan having advanced the contention that ques-
tions concerning the construction of the Convention on International Civil
Aviation and the Internationa! Air Services Transit Agreement were in issue,
the States other than those concerned in the case which are parties to these
two instruments were notified in accordance with Article 63, paragraph 1, of
the Statute. ICAO was also notified and copies of the written proceedings were
communicated 10 it in accordance with Article 34, paragraph 3, of the Statute.
By letter of 15 May 1972, the Registrar informed the Secretary General of
ICAO, in accordance with Article 57, paragraph 5, of the Rules of Court,
that 6 June 1972 had been fixed as the time-limit within which the Organization
might submit its observations in writing. Within the time-limit fixed, the
Secretary General stated that ICAO did not intend to submit observations.

6. Pursuant to Article 44, paragraph 3, of the Rules of Court, the pleadings
and annexed documents were, with the agreement of the Parties, made acces-
sible to the public as from the date of the opening of the oral proceedings.

7. Hearings were held from 19 to 23 and on 27, 28 and 30 June and 3 July,
in the course of which the Court heard the oral argument and replies of H.E.
Lt. General Yadavindra Singh and Mr. Palkhivala on behalf of the Govern-
ment of India, and of H.E. Mr. Kharas and Mr. Yahya Bakhtiar on behalf
of the Government of Pakistan.
49

ICAO COUNCIL (JUDGMENT)

8. In the course of the written proceedings, the following submissions were
presented by the Parties:

On behalf of the Government of India,

in the Application:

“May it please the Court to adjudge and declare, after such proceedings

and hearing as the Court may see fit to direct, and whether the Respon-
dent is present of absent, that the aforesaid decision of the Council is
illegal, null and void, or erroneous, on the following grounds or any
others:

A. The Council has no jurisdiction to handle the matters presented by

the Respondent in its Application and Complaint, as the Convention
and the Transit Agreement have been terminated or suspended as
between the two States.

The Council has no jurisdiction to consider the Respondent's Com-
plaint since no action has been taken by the Applicant under the
Transit Agreement; in fact no action could possibly be taken by the
Applicant under the Transit Agreement since that Agreement has
been terminated or suspended as between the two States.

The question of Indian aircraft overfiying Pakistan and Pakistan air-
craft overflying India is governed by the Special Régime of 1966 and
not by the Convention or the Transit Agreement. Any dispute between
the two States can arise only under the Special Régime, and the Council
has no jurisdiction to handle any such dispute.”

in the Memorial:

“May it please the Court to adjudge and declare, after such proceedings

and hearings as the Court may see fit to direct, and whether the Respon-
dent is present or absent, that the aforesaid decision of the Council is
illegal, null and void, or erroneous, and may it further please the Court
to reverse and set aside the same, on the following grounds or any others:

A.

The Council has no jurisdiction to handle the matters presented by
the Respondent in its Application and Complaint, as the Convention
and the Transit Agreement have been terminated or suspended as
between the two States.

The Council has no jurisdiction to consider the Respondent’s Com-
plaint since no action has been taken by the Applicant under the
Transit Agreement; in fact no action could possibly be taken by the
Applicant under the Transit Agreement since that Agreement has
been terminated or suspended as between the two States.

The question of Indian aircraft overflying Pakistan and Pakistan air-
craft overfiying India is governed by the Special Agreement of 1966
and not by the Convention or the Transit Agreement. Any dispute
between the two States can arise only under that Bilateral Agreement,
and the Council has admittedly no jurisdiction to handle any such
dispute.

. The manner and method employed by the Council in reaching its

decision render the decision improper, unfair and prejudicial to India,
and bad in law.
50 ICAO COUNCIL (JUDGMENT)

May it also please the Court to order that the costs of these proceedings
be paid by the Respondent.”

On behalf of the Government of Pakistan,

in the Counter-Memorial:

“In view of the facts and stalements presented in the Counter-Memorial,
may it please the Court 10 reject the Appeal of the Government of India
and to confirm the decisions of the Council of the International Civil
Aviation Organization and to adjudge and declare:

A. That the question of Pakistan aircraft overflying India and Indian
aircraft overfiying Pakistan is governed by the Convention and the
Transit Agreement.

B. That the contention of the Government of India that the Council
has no jurisdiction to handle the matters presented by Pakistan in its
Application is misconceived.

C. That the Appeal preferred by the Government of India against the
decision of the Council in respect of Pakistan's Complaint is incom-
petent.

D. That if the answer to the submission in C. above is in the negative
then the contention of the Government of India that the Council
has no jurisdiction to consider the Complaint of Pakistan, is mis-
conceived.

E. That the matter and method employed by the Council in reaching
its decisions are proper, fair and valid.

F. That the decisions of the Council in rejecting the Preliminary Objec-
tions of the Government of India are correct in law.

May it please the Court to Order that the cost of these proceedings
be paid by the Appellant.”

9. The present case concerns an appeal by India against decisions of
the Council of the International Civil Aviation Organization (“ICAO”)
assuming jurisdiction in respect (a) of an “Application” by Pakistan
made (i) under Article 84 of the Chicago International Civil Aviation
Convention of 1944 (“the Chicago Convention” or “the Convention”)
and (ii) under Section 2 of Article II of the related International Air
Services Transit Agreement of 1944 (the “Transit Agreement”), and also
in accordance with Article 2 (Chapter on “Disagreements” of the Coun-
cil’s “Rules for the Settlement of Differences’); and (6) of a “Com-
plaint” made by Pakistan under Section 1 of Article IT of the Transit
Agreement, and in accordance with Article 21 (Chapter on ‘““Complaints")
of the Council’s Rules. Pakistan’s case before the Council was based on
alleged breaches by India of the Convention and Transit Agreement.
In making her appeal, India invokes as giving her a right to do so, and
as the foundation of the Court's jurisdiction to entertain it, the same

8
si ICAO COUNCIL (JUDGMENT)

Article 84 of the Convention, and also Section 2 of Article IT of the Tran-
sit Agreement. The above-mentioned provisions of these two instru-
ments will be found set out in paragraphs 17 and 19 below.

10. The substance of the dispute between the Parties, as placed before
the Council of ICAO (“the Council) by Pakistan on 3 March 1971,
relates to the suspension by India of overflights of Indian territory by
Pakistan civil aircraft, on and from 4 February 1971, arising out of a
“hijacking” incident involving the diversion of an Indian aircraft to
Pakistan. It should be mentioned here that hostilities interrupting over-
flights had broken out between the two countries in August 1965, ceasing
in the following month, and that after this cessation the Parties adopted
what is known as the Tashkent Declaration of 10 January 1966, by which,
and more especially by a consequential Exchange of Letters between them
dated 3/7 February 1966, it was agreed, inter alia, that there should be
“an immediate resumption of overflights across each other's territory
an the same basis as that prior to 1 August 1965...", i.e., prior to the
hostilities—(emphasis added). Pakistan has interpreted this undertaking
as meaning that overflights would be resumed on the basis of the Con-
vention and Transit Agreement (“the Treaties’): but India has main-
tained that these Treaties having (as she alleges) been suspended during
the hostilities, were never as such revived, and that overflights were to
be resumed on the basis of a ‘special régime™ according to which such
flights could take place in principle, but only after permission had been
granted by India.—whereas under the Treatics they could take place as
of right. without any necessity for prior permission. This special régime.
India contends, replaced the Treaties as between the Parties; but Pakistan
denies that any such régime ever came into existence, and also claims
that. not having been registered as an international agreement under
Article 102 of the United Nations Charter, it cannot now be invoked
by India. Consequently Pakistan maintains that, at least since January,
February 1966, the Treaties have never ceased to be applicable, and that,
in accordance with them (Article 5 of the Convention and Article I,
Section |, of the Transit Agreement), her civil aircraft have “the right...
to make flights into or in transit non-stop across [Indian] territory and
to make stops for non-traffic purposes without the necessity of ohtaining
prior permission" —{(Convention, Article 5—emphasis added).

11. It must however be stated at the outset, that with these various
matters, and with the substance of this dispute as placed before the
Council, and the facts and contentions of the Parties relative to it, the
Court has nothing whatever to do in the present proceedings, except
in so far as these elements may relate to the purely jurisdictional issue
which alone has been referred to it, namely the competence of the Coun-
cil to hear and determine the case submitted by Pakistan. Subject to this
necessary exception. the Court must avoid not only any expression of

9
52 ICAO COUNCIL (JUDGMENT)

opinion on these matters of substance, but any pronouncements which
might prejudge, or appear to prejudge, the eventual decision, whatever
it might be, of the Council on the ultimate merits of the case, if the Coun-
cil is held to be competent to entertain these—(see also the case of Inter-
pretation of Article 3, Paragraph 2, of the Treaty of Lausanne, Advisory
Opinion, 1925, P.C.1J., Series B, No. 12. p. 18).

12. For the sake of clarity it should be mentioned at this point that
when, in the present Judgment. reference is made to the “merits’’ of
the dispute or disagreement, what is meant is the merits of the case be-
fore the Council. When reference is intended to the substance of the
purely jurisdictional issue now before the Court, the context will make
this clear.

JURISDICTION OF THE COURT TO ENTERTAIN THE APPEAL

13. Before coming to the question of the Council's jurisdiction, the
Court must deal with certain objections to its own jurisdiction to enter-
tain India’s appeal which have been advanced by Pakistan. India, for
her part, contests the right of Pakistan to do this, because the objections
concerned were not put forward at an earlier stage of the proceedings
before the Court as “preliminary” objections under Article 62 of the
Court's Rules (1946 edition). It is certainly to be desired that objections
to the jurisdiction of the Court should be put forward as preliminary
objections for separate decision in advance of the proceedings on the
merits. The Court must however always be satisfied that it has juris-
diction, and must if necessary go into that matter proprio motu. The real
issue raised by the present case was whether, in the event of a party's
failure to put forward a jurisdictional objection as a preliminary one,
that party might not thereby be held to have acquiesced in the jurisdic-
tion of the Court. However, since the Court considers its jurisdiction
to be established irrespective of any consent of Pakistan's on that basis,
it will now proceed to consider Pakistan's objections.

14. The chief of these is that the relevant jurisdictional clauses of the
Treaties—namely Article 84 of the Convention and Section 2 of Article
IT of the Transit Agreement—only allow of an appeal to the Court from
a decision of the Council on the merits of the dispute referred to it, and
not from a decision concerning the Council's jurisdiction to entertain
the reference, whether such jurisdiction is affirmed or rejected by the
Council. Additionally or alternatively, Pakistan claims that since it is one
of India's principal contentions that the Treaties are not in force at all
(or at any rate in operation) between the Parties, (a) India cannot have
any ius standi to invoke their jurisdictional clauses for the purpose of
appealing to the Court, and (6) India must admit that the Court in any

10
53 ICAO COUNCIL (JUDGMENT)

event lacks jurisdiction under its own Statute because, in the case of dis-
putes referred to it under treaties or conventions, Article 36, paragraph 1,
of the Statute requires these to be “treaties and conventions in force”
(emphasis added),—and India denies that the treaties and conventions
here concerned are in force, in the sense that she alleges that they are
at least suspended as between Pakistan and herself, or their oper-
ation is.

15. Pakistan adduces yet other grounds in support of the view that
the Court should hold itself to be incompetent in the matter, such as
the effect of one of India’s reservations to her acceptance of the Court's
compulsory jurisdiction under Article 36, paragraph 2, of its Statute.
Also pleaded is the principle of the “compétence de la compétence” as
making the Council's jurisdictional decisions conclusive and unappeal-
able. But this prejudges the question, for if on other grounds it appears
that these decisions must be held appealable, this principle could not be
permitted to prevail without defeating a priori all possibility of appeal.
Again, having regard to the date of the Treaties (1944), a query was
raised concerning the position under Article 37 of the Court's Statute.
This matter was however disposed of by the Judgment of the Court in
the preliminary phase of the case concerning the Barcelona Traction,
Light and Power Company, Limited (New Application: 1962), 1.C.J. Re-
ports 1964, at pages 26-39. In any event, such matters would become
material only if it should appear that the Treaties and their jurisdictional
clauses did not suffice, and that the Court's jurisdiction must be sought
outside them, which, for reasons now to be stated, the Court does not
find to be the case.

16. It will be convenient to deal first with the contention that India
is precluded from affirming the competence of the Court because she
herself maintains (on the merits of the dispute) that the Treaties are not
in force between the Parties, which contention, if correct, would entail
that their jurisdictional clauses were inapplicable, and that the Treaties
themselves did not fulfil the conditions contemplated by Article 36, para-
graph 1, of the Court's Statute, in order that the Court should have juris-
diction in respect of disputes referred to it under those Treaties. The
Court however holds that this contention of Pakistan's is not well-founded
for the following reasons, some of which have been advanced in the In-
dian arguments on this part of the case:

(a) What India has affirmed is that the Treaties—which are multilateral
ones—are suspended (or that their operation is suspended) as
between herself and Pakistan. This is not the same thing as saying
that they are not in force in the definitive sense, or even that they
have wholly ceased to be in force as between the two Parties con-
cerned.

(6) Nor in any case could a merely unilateral suspension per se render
jurisdictional clauses inoperative, since one of their purposes might
be, precisely, to enable the validity of the suspension to be tested.
54

(c)

(d)

ICAO COUNCIL (JUDGMENT)

If a mere allegation, as yet unestablished, that a treaty was no
longer operative could be used to defeat its jurisdictional clauses,
all such clauses would become potentially a dead letter, even in
cases like the present, where one of the very questions at issue on
the merits, and as yet undecided, is whether or not the treaty is
operative—i.e., whether it has been validly terminated or suspended.
The result would be that means of defeating jurisdictional clauses
would never be wanting.

The argument based on preclusion could also be turned against
Pakistan,—-for since it is Pakistan not India which denies the juris-
diction of the Court, and affirms the force of the Treaties, it must
be questionable whether she can be heard to utilize for that purpose
an Indian denial of the force of the Treaties, put forward only as
a defence on the merits, which, ex Aypothesi, have not yet been
pronounced upon. The question of the Court's jurisdiction on the
other hand. is necessarily an antecedent and independent one—
an objective question of law—which cannot be governed by pre-
clusive considerations capable of being so expressed as to tell against
either Party—or both Parties.

It is significant that Pakistan also advances the complementary
argument that India’s appeal to the Court on the basis of the juris-
dictional clauses of the Treaties necessarily involves an implied
admission that those Treaties really are in force,—thus seeking to
place India on the horns of a seemingly inescapable dilemma ;—
for according to this doctrine a party, by the mere fact of invoking
the jurisdictional clause of a treaty, could be hzld to have made an
admission adverse to itself as regards the very matter in respect of
which it had invoked that clause. The Court considers this to be
an unacceptable position. Parties must be free to invoke jurisdic-
tional clauses, where otherwise applicable, without being made to
run the risk of destroying their case on the merits by means of that
process itself.—for their case could never either be established or
negatived by means of a judicial decision unless a clause conferring
jurisdiction on a court to decide the matter could be invoked on
its own independent, and purely jurisdictional, foundations.

17. Greater weight is to be attached to Pakistan's contention that in
the case of these Treaties, the jurisdictional clauses themselves do not
allow of India’s appeal in the present case because, on their correct
interpretation, they only provide for an appeal to the Court against a
final decision of the Council on the merits of any dispute referred to it,
and not against decisions of an interim or preliminary nature such as
are here involved. These clauses read as follows:
55 ICAO COUNCIL (JUDGMENT)

Article 84 of the Convention

Settlement of Disputes

“If any disagreement between two or more contracting States
relating to the interpretation or application of this Convention and
its Annexes cannot be settled by negotiation, it shall, on the appli-
cation of any State concerned in the disagreement, be decided by
the Council. No member of the Council shall vote in the consider-
ation by the Council of any dispute to which it is a party. Any con-
tracting State may, subject to Article 85, appeal from the decision
of the Council to an ad hoc arbitral tribunal agreed upon with the
other parties to the dispute or to the Permanent Court of Inter-
national Justice. Any such appeal shall be notified to the Council
within sixty days of receipt of notification of the decision of the
Council.”

Section 2 of Article ! of the Transit Agreement

“If any disagreement between two or more contracting States
relating to the interpretation or application of this Agreement can-
not be settled by negotiation. the provisions of Chapter XVIII of
the above-mentioned Convention—[nota: this Chapter contains
Article 84 above quoted]—shall be applicable in the same manner
as provided therein with reference to any disagreement relating to
the interpretation or application of the above-mentioned Conven-
tion.”

On the wording of these provisions the case in favour of Pakistan's
interpretation of them is as follows. The disagreement on interpretation
or application which is to be decided by the Council under Article 84
is a disagreement on a substantive issue of merits, and it is this which
is to “be decided by the Council”. Consequently, the words giving a
right of ‘appeal from the decision of the Council” (“‘the” decision, not
‘ta’ decision) must be confined to such a decision. Also, the disagreement
that is referable to the Council under Article 84, and hence ultimately
appealable, has to be one that could not “‘be settled by negotiation”.
Such a disagreement would normally be confined to the substantive
merits of the issue involved, since disagreements about jurisdiction are
(so the argument runs) not usually in the negotiable category. This
consideration reinforces the view that only those decisions of the Council
that consist of final decisions on the merits are appealable under Article
84. It is also pointed out that the Council's “Rules for the Settlement
of Differences” (in Articles 5 and 15) provide for different procedures
for dealing with the two types of decision, and that in the case of juris-
dictional decisions, the rules do not include any obligation to give reasons
for the decision, as should normally be the case for an appealable decision.

18. This view would certainly have to be regarded as correct in respect
of any procedural or otherwise genuinely interlocutory decisions of the

13
56 ICAU COUNCIL (JUDGMENT)

Council, such as decisions about the manner in which a case was to be
presented to it: as to the time-limits within which written pleadings were
to be deposited: or as to the production or admissibility of documents
or other evidence, etc. The Court however thinks that a decision of the
Council relative to its jurisdiction to entertain a dispute does not come
within the same category as the matters just mentioned, even though,
like them, it necessarily has a preliminary character;—for although,
in the purely temporal sense, a preliminary question is involved, that
question is, in its essence, a substantial question crucially affecting the
position of the parties relative to the case, notwithstanding that it does
not decide the ultimate merits. In consequence, the Court considers that
for the purposes of the jurisdictional clauses of the Treaties, final decisions
of the Council as to its competence should not be distinguished from
final decisions on the merits. In support of this view the following further
points may be noted:

(a) Although a jurisdictional decision does not determine the ‘ultimate
merits” of the case. it is a decision of a substantive character, in-
asmuch as it may decide the whole affair by bringing it to an end,
if the finding is against the assumption of jurisdiction. A decision
which can have that effect is of scarcely less importance than a
decision on the merits, which it either rules out entirely or, alter-
natively, permits by endorsing the existence of the jurisdictional
basis which must form the indispensable foundation of any decision
on the merits. A jurisdictional decision is therefore unquestionably
a constituent part of the case, viewed as a whole, and should, in
principle, be regarded as being on a par with decisions on the merits
as regards any right of appeal that may be given.

{b) Nor should it be overlooked that for the party raising a jurisdic-
tional objection, its significance will also lie in the possibility it
may offer of avoiding, not only a decision, but even a hearing, on
the merits,—a factor which is of prime importance in many cases.
An essential point of legal principle is involved here. namely that
a party should not have to give an account of itself on issues of
merits before a tribunal which lacks jurisdiction in the matter, or
whose jurisdiction has not yet been established.

fc) At the same time, many cases before the Court have shown that
although a decision on jurisdiction can never directly decide any
question of merits, the issues involved may be by no means divorced
from the merits. A jurisdictional decision may often have to touch
upon the latter or at least involve some consideration of them. This
illustrates the importance of the jurisdictional stage of a case, and
the influence it may have on the eventual decision on the merits, if
these are reached—a factor well known to parties in litigation.

(d) Not only do issues of jurisdiction involve questions of law, but these
questions may well be as important and complicated as any that
57 ICAO COUNCIL (JUDGMENT)

arise on the merits.—sometimes more so. They may, in the context
of such an entity as LCAO, create precedents affecting the position
and interests of a large number of States, in a way which no ordi-
nary procedural, interlocutory or other preliminary issue could do.
It would indeed be hard to accept the view that even the most routine
decisions of the Council on points of the interpretation or appli-
cation of the Treaties should be automatically appealable, while
decisions on jurisdiction, which must ex Aypothesi involve important
general considerations of principle, should not be, despite the drastic
effects which, as already noticed (supra, sub-paragraph (a)), they are
capable of having.

{e) A concluding consideration is that supposing an appeal were made
to the Court from the final decision of the Council on the merits
of a dispute:—it would hardly be possible for the Court either to
affirm or reject that decision, if it found that the Council had all
along lacked jurisdiction to go into the case. This shows that ques-
tions relating to the Council's jurisdiction cannot in the last resort
be excluded from the Court's purview: it is merely a question of
what is the stage at which the Court's supervision in this respect
is to be exercised. Clearly, not only do obvious reasons of convenience
call for such exercise as early as possible—in the present case, here
and now—but also substantial considerations of principle do so,—
for it would be contrary to accepted standards of the good adminis-
tration of justice to allow an international organ to examine and
discuss the merits of a dispute when its competence to do so was
not only undetermined but actively challenged. Yet this is precisely
what the Court would be allowing if it now held itself not to have
jurisdiction to deal with the matter because it could only hear ap-
peals from final decisions of the Council on the merits.

19. The foregoing paragraphs deal with the question of the Court's
jurisdiction to entertain India’s appeal as it arises generally on the rele-
vant jurisdictional clauses. A special jurisdictional issue exists however,
not on Pakistan's “Application” to the Council, but on her “Complaint”
(see paragraph 9, supra) ostensibly made under and by virtue of Section
1 of Article II of the Transit Agreement, which reads as follows:

“A contracting State which deems that action by another con-
tracting State under this Agreement is causing injustice or hardship
to it, may request the Council to examine the situation. The Council
shall thereupon inquire into the matter, and shall call the States
concerned into consultation. Should such consultation fail to resolve

15
58 ICAO COUNCIL (JUDGMENT)

the difficulty, the Council may make appropriate findings and re-
commendations to the contracting States concerned. If thereafter a
contracting State concerned shall in the opinion of the Council un-
reasonably fail to take suitable corrective action, the Council may
recommend to the Assembly of the above-mentioned Organization
that such contracting State be suspended from its rights and privi-
leges under this Agreement until such action has been taken. The
Assembly by a two-thirds vote may so suspend such contracting
State for such period of time as it may deem proper or until the
Council shall find that corrective action has been taken by such
State.”

The special objection advanced by Pakistan to the existence of any right
of appeal to the Court relative to Council action under this provision
extends not merely to appeals about questions concerning the Council's
competence in the matter of ‘complaints’ which the Council may be
requested to examine, but also to appeals regarding the eventual results
of the Council’s action under this same provision (i.e., its findings, re-
commendations, etc.),—in short, appeals relating to the ‘‘ultimate merits”
of the ‘“‘complaint”’ as dealt with by the Council. The gravamen of Paki-
stan’s objection is in effect that the right of reference to the Council and
thence by way of appeal to the Court, given by Section 2 of Article II,
applies, in the context, only to a “‘disagreement . . . relating to the inter-
pretation or application” of Section | itself, and not to the substance of
the “complaint” the Council is requested to examine by reason of that
Section, or to the outcome of what the Council does about it. In other
words, provided the Council applies Section | correctly, following the
prescribed courses and taking the prescribed steps, the result is non-
appealable, and so, a fortiori, would be any decision of the Council to
assume jurisdiction in respect of a ‘‘complaint” made by virtue of this
Section.

20. The Court has no doubt that the situation contemplated by Sec-
tion | of Article II of the Transit Agreement is quite a different one from
that of Article 84 of the Convention (and hence of Section 2 of Article
Il of the Transit Agreement),—so that whatever may be the exact legi-
timate range of a ‘‘complaint’* made under Section I, its primary purpose
must be to permit redress against legally permissible action that never-
theless causes injustice or hardship. In other words, the basic situation
contemplated by Section I is where a party to the Agreement, although
acting within its legal rights under the Treaties, has nevertheless caused
injustice or hardship to another party—a case not of illegal action—not
of alleged breaches of the Treaties—but of action lawful, yet prejudicial.
In such a case it is to be expected that no right of appeal to the Court
would lie,—for the findings and recommendations to be made by the
Council under this Section would not be about legal rights or obliga-

16
59 ICAO COUNCIL (JUDGMENT)

tions: they would turn on considerations of equity and expediency such
as would not constitute suitable material for appeal to a court of law.

21. This is not to say that a “complaint” can never deal with matters
that would primarily form the subject of an “application”, or allege
illegalities as having caused the injustice or hardship complained of. But
if it does so, then to that extent it necessarily assumes the character of
an “application”. In short, it follows from the very nature of the dis-
tinction described in the preceding paragraph, that in so far as a “com-
plaint” exceeds the bounds of the type of allegation contemplated by
Section |, and relates not to lawful action causing hardship or injustice,
but to illegal action involving breaches of the Treaties, it becomes as-
similable to the case of an “application” for the purposes of its appeala-
bility to the Court. Unless this were so, the following paradox would
arise. If for the reasons urged on behalf of Pakistan, its “Complaint”
were non-appealable, but the “* Application‘ (which alleges a ‘“‘disagree-
ment” under both Convention and Transit Agreement, involving charges
of breaches of these Treaties) were appealable, then, the Council having
assumed jurisdiction in respect of both “Application” and “Complaint”,
it would result that if the Court should allow the appeal on the ‘‘Appli-
cation” (i.e., find that the Council has no jurisdiction to entertain it),
nevertheless the non-appealable “Complaint” could and would still
go on before the Council, although the issues it involved were almost
identical. Therefore, although precluded by the Court's decision from
pronouncing on the question of the alleged breaches of the Treaties in
respect of the “Application”, the Council would be able to make these
very same pronouncements under the head of the ‘Complaint’, thus
defeating the whole purpose of the Court’s decision which should have
had the effect of preventing the Council pronouncing at all on the ques-
tion of the alleged breaches. Naturally the Council would in any case
be in no way prevented from dealing with those aspects of the matter
that related to injustice and hardship.

22. While drawing attention to the above considerations, the Court
does not wish to make any final pronouncement on the theory of the
matter because it recognizes that this is an area in which it may be difficult
to draw hard and fast distinctions or say definitely on which side of the
line a given case may fall. In the present one, however, the Court enter-
tains no doubts at all. Pakistan's “Application” and *“Complaint‘ are
set out in Annexes A and B of the Indian Memorial before the Court,
and even a brief glance at them shows not only that the “Complaint”
makes exactly the same charges of breaches of the Treaties as the ‘“ Appli-
cation”, but that it does so in almost identical language. The same ap-
plies to the redress requested, except that the “Application” asks for
damages and the “Complaint” does not. In all other respects the various
remaining heads of redress are the same in both cases.

23. It is evident therefore that this particular “Complaint” does not—

17
60 ICAO COUNCIL (JUDGMENT)

or for the most part does not—relate to the kind of situation for which
Section | of Article Il was primarily intended, namely where the injustice
and hardship complained of does not result from action by the other
party concerned of a definitively illegal character, but where the Treaties
are applied lawfully but prejudicially. In the present case it is abundantly
clear, from the whole tenor of the ‘‘Complaint”, that although it does
duly allege injustice and hardship (but so also does the ‘ Application”),
this injustice and hardship was such as resulted from action said to be
illegal because in breach of the Treaties.

24. Having regard to these considerations, the Court must hold the
Council's decision assuming jurisdiction in respect of Pakistan’s “Com-
plaint” to be appealable in so far as it covers the same ground as the
“Application”.

* *

25. To sum up on the question of the Court's jurisdiction to entertain
India’s appeal, the conclusion in respect both of Pakistan's ‘ Application”
and of her ‘Complaint’ to the Council must be that, for the reasons
given above, the various objections made to the competence of the Court
cannot be sustained, whether they are based on the alleged inapplicabi-
lity of the Treaties as such, or of their jurisdictional clauses. Since there-
fore the Court is invested with jurisdiction under those clauses and, in
consequence (see paragraphs 14-16 above), under Article 36, paragraph
1, and under Article 37, of its Statute, it becomes irrelevant to consider
the objections to other possible bases of jurisdiction.

* *

26. Before leaving this part of the case, and since this is the first time
any matter has come to it on appeal, the Court thinks it useful to make
a few observations of a general character on the subject. The case is pre-
sented to the Court in the guise of an ordinary dispute between States
(and such a dispute underlies it). Yet in the proceedings before the Court.
it is the act of a third entity—the Council of }CAQ—which one of the
Parties is impugning and the other defending. In that aspect of the mat-
ter, the appeal to the Court contemplated by the Chicago Convention and
the Transit Agreement must be regarded as an clement of the general
régime established in respect of ICAO. In thus providing for judicial re-
course by way of appeal to the Court against decisions of the Council
concerning interpretation and application—a type of recourse already
figuring in earlier conventions in the sphere of communications—the
Chicago Treaties gave member States, and through them the Council,
the possibility of ensuring a certain measure of supervision by the Court
over those decisions. To this extent, these Treaties enlist the support of
the Court for the good functioning of the Organization, and therefore
the first reassurance for the Council lies in the knowledge that means
exist for determining whether a decision as to its own competence is in

18
61 ICAO COUNCIL (JUDGMEN1)

conformity or not with the provisions of the treatics governing its action.
If nothing in the text requires a different conclusion, an appeal against
a decision of the Council as to its own Jurisdiction must therefore be
receivable since, from the standpoint of the supervision by the Court
of the validity of the Council’s acts, there is no ground for distinguishing
between supervision as to jurisdiction, and supervision as to merits.

JURISDICTION OF THE COUNCIL OF ICAO TO ENTERTAIN
THE MERITS OF THE CASE

27. The Court now turns to the substantive issue of the correctness of
the decisions of the Council dated 29 July 1971. The question is whether
the Council is competent to go into and give a final decision on the merits
of the dispute in respect of which, at the instance of Pakistan, and subject
to the present appeal, it has assumed jurisdiction. The answer to this
question clearly depends on whether Pakistan’s case, considered in the
light of India's objections to it, discloses the existence of a dispute of
such a character as to amount to a “disagreement... relating to the
interpretation or application” of the Chicago Convention or of the re-
lated Transit Agreement (sce paragraph 17, supra). If so, then prima facie
the Council is competent. Nor could the Council be deprived of juris-
diction merely because considerations that are claimed to lie outside the
Treaties may be involved if, irrespective of this, issues concerning the
interpretation or application of these instruments are nevertheless in
question. The fact that a defence on the merits is cast in a particular
form, cannot affect the competence of the tribunal or other organ con-
cerned,—otherwise parties would be in a position themselves to control
that competence, which would be inadmissible. As has already been seen
in the case of the competence of the Court, so with that of the Council,
its competence must depend on the character of the dispute submitted to
it and on the issues thus raised—not on those defences on the merits,
or other considerations, which would become relevant only after the
jurisdictional issues had been settled. It is desirable to stress these points
because of the way. perfectly legitimate though it was, in which the
Appeal has been presented to the Court.

28. Before proceeding further, it will be convenient to re-state Pakis-
tan’s claim in its simplest form, and without going into any details or
side issues. It is to the effect that India, by suspending—or rather, strictly,
refusing to allow overflight of her territory by Pakistan civil aircraft—
was in breach of the Treaties, which Pakistan claims have never ceased
to be applicable, and both of which conferred overflight rights, and cer-
tain landing rights, on Pakistan,—and that this suspension, or rather
prohibition, did not take place, or was no longer taking place, in the
particular circumstances—viz. ‘war’ or declared “state of national emer-

19
62 ICAO COUNCIL (JUDGMENT)

gency’—in which, according to Article 89 of the Convention (cited
infra, paragraph 40), it could alone (so Pakistan contends) be justified.
Consequently the legal issue that has to be determined by the Court
really amounts to this, namely whether the dispute, tn the form in which
the Parties placed it before the Council, and have presented it to the
Court in their final submissions (supra. paragraph 8), 1s one that can be
resolved without any interpretation or application of the relevant Trea-
tics at all. If it cannot, then the Council must be competent.

29. In effect. India has sought to maintain that the dispute could be
resolved without any reference to the Treaties, and hence that, this being
so, it is a dispute with which the Council can have no concern, and
which lies entirely outside its competence. The claim that the Treatics
are irrelevant to the present situation regarding Pakistan overflights is
based on and involves the following main contentions:—

(1) The Treaties are not in force. or they are suspended, because

(a) they were or became terminated or suspended as between the
Parties upon the outbreak of hostilities in 1965 and have never
been revived, but were replaced by a “special régime” in respect
of which the Council could have no jurisdiction, and according
to which Pakistan aircraft could only overfly India with prior
permission (see as to this, paragraph 10. supra);

(b} India in any case became entitled under general international
law to terminate or suspend the Treaties as from January 1971,
by reason of a material breach of them, for which Pakistan was
responsible, arising out of the hijacking incident that then
occurred.

(2) The issue involved by the case presented to the Council by Pakistan
is one of the termination or suspension of the Treaties, not of their
interpretation or application which alone the Council is competent
to deal with under the relevant jurisdictional clauses. This contention
postulates that the notion of interpretation or application does not
comprise that of termination or suspension.

30. The first of these main contentions, under both its heads, clearly
belongs to the merits of the dispute into which the Court cannot go: but
certain preliminary points are relevant to the jurisdictional aspects of the
case and to a correct appreciation of the Indian position in that respect.

(a) As regards the contention that the Treaties were terminated or sus-
pended, such notices or communications as there were on the part
of India appear to have related to overflights rather than to the
Treaties as such; although. admittedly, overflight rights constitute
a major item of the Treaties, and a termination or suspension may
well relate to part only of a treaty. Thus the Indian Note of 4 Feb-
ruary 1971. following upon the hijacking incident, was in terms

20
63

ICAO COUNCIL (JUDGMENT)

confined to suspending overflights. As regards the earlier period,
from 1965 onwards, the statement made in the Indian Memorial be-
fore the Court, paragraph 12, was to the effect that the “Convention
and the Transit Agreement as between the two States were . . . sus-
pended wholly or in any event in relation to overflights and landings
for non-traffic purposes’ (emphasis added).

(b) India does not appear at the time of the hijacking incident to have

(c)

21

indicated which particular provisions of the Treaties—more especi-
ally of the Chicago Convention—were alleged to have been breached
by Pakistan. She was not of course in any way obliged to do so at
that stage, but the point is a material one on the jurisdictional
issue for reasons to be stated later (see infra, paragraph 38). What
was alleged in a Note of 3 February 1971, preceding the above-
mentioned Note of 4 February, was a “violation of all norms of
international behaviour and of International Law". In the same way,
in the letters of 4 and 10 February addressed on behalf of the Govern-
ment of India to the President of the Council of ICAO concerning
the hijacking incident, Pakistan's action was stated to be not in ac-
cordance with ‘international law and usage and custom”; and again,
a “deliberate act...in violation of international law, usage and
custom” (letter of 4 February); and similarly (letter of 10 February),
to be “in clear violation of international law’. But with regard to
the Treaties, all that was stated (letter of 4 February) was that Pa-
kistan's action was “‘contrary to the principles of the Chicago Con-
vention and other international Conventions’. The only specific
provisions mentioned were certain articles of the Tokyo and Hague
Conventions about unlawful acts on board aircraft. and not pro-
visions of the Chicago Convention or Transit Agreement. Later, in
the Indian Preliminary Objections of 28 May 1971, made before the
Council, the charge was of conduct which ‘‘amounted to the very
negation of all the claims and objectives, the scheme and provisions
of the Convention...and... Transit Agreement”. Similarly, in the
proceedings before the Court, the charge of ‘material breach of
treaty” was not particularized much more fully than in the language
used in paragraph 27 of the Indian Memorial, where the hijacking
incident was characterized as amounting to “‘a flagrant violation of
international obligations relating to the assurance of safety of air
travel, enjoined by the Convention and the Transit Agreement and
also by...” (here several other conventions and instruments were
specified).

As mentioned, the justification given by India for the suspension of
the Treaties in February 1971 (if in fact anything other than a quasi-
permanent prohibition of overflights was involved) was not said to
lie in the provisions of the Treaties themselves, but in a principle
of general international law, or of international treaty law, allowing
of suspension or termination on this ground—and the 1969 Vienna
64 ICAO COUNCIL (JUDGMENT)

Convention on the Law of Treaties was in particular invoked. In
consequence, so it was said, the Chicago Convention and Transit
Agreement were irrelevant and had no bearing on the matter, be-
cause the Indian action had been taken wholly outside them, on the
basis of general international law.

31. In considering further the Indian contentions described in para-
graph 29, supra, a convenient point of departure will be the question
mentioned in sub-paragraph (c) of paragraph 30 because, in the pro-
ceedings before the Court, this question assumed almost more promi-
nence in the Indian arguments than any other. Furthermore, it involves
a point of principle of great general importance for the jurisdictional
aspects of this—or of any—case. This contention ts to the effect that
since India, in suspending overflights in February 1971, was not invoking
any right that might be afforded by the Treaties, but was acting outside
them on the basis of a general principle of international law, “therefore”
the Council, whose jurisdiction was derived from the Treaties, and which
was entitled to deal only with matters arising under them, must be in-
competent. Exactly the same attitude has been evinced in regard to the
contention that the Treaties were suspended in 1965 and never revived,
or were replaced by a special régime. The Court considers however, that
for precisely the same order of reason as has already been noticed in the
case of its own jurisdiction in the present case, a mere unilateral affir-
mation of these contentions—contested by the other party--cannot be
utilized so as to negative the Council's jurisdiction. The point is not that
these contentions are necessarily wrong but that their validity has not
yet been determined. Since therefore the Parties are in disagreement as
to whether the Treaties ever were (validly) suspended or replaced by some-
thing else; as to whether they are in force between the Parties or not:
and as to whether India’s action in relation to Pakistan overflights was
such as not to involve the Treaties, but to be justifiable aliter et aliunde:
—these very questions are in issue before the Council, and no conclusions
as to jurisdiction can be drawn from them, at least at this stage. so as
to exclude ipso facto and a priori the competence of the Council.

32. To put the matter in another way, these contentions are essentially
in the nature of replies to the charge that India is in breach of the Treaties:
the Treaties were at the material times suspended or not operative, or
replaced.—hence they cannot have been infringed. India has not of course
claimed that. in consequence, such a matter can never be tested by any
form of judicial recourse. This cotttention. if it were put forward, would
be equivalent to saying that questions that prima facie may involve a
given treaty, and if so would be within the scope ofits jurisdictional clause.
could be removed therefrom at a stroke by a unilateral declaration that
the treaty was no longer operative. The acceptance of such a proposition
would be tantamount to opening the way to a wholesale nullification of
the practical value of jurisdictional clauses by allowing a party first to

22
65 ICAO COUNCIL (JUDGMENT)

purport to terminate, or suspend the operation of a treaty, and then to
declare that the treaty being now terminated or suspended, its jurisdic-
tional clauses were in consequence void, and could not be invoked for
the purpose of contesting the validity of the termination or suspension,

-whereas of course it may be precisely one of the objects of such a clause
to enable that matter to be adjudicated upon. Such a result, destructive
of the whole object of adjudicability, would be unacceptable.

*

33. The Court now proceeds to the last main category of Indian con-
tention which, though more nearly relevant to the purely jurisdictional
issue than those so far discussed, is nonetheless, like them, closely bound
up with the merits. This contention is to the effect that Article 84 of the
Chicago Convention, and hence by reference Section 2 of Article 11 of
the Transit Agreement, only allows the Council to entertain disagree-
ments relating to the “interpretation or application” of these instru-
ments,—whereas (according to India) what is involved in this case is
not any question of the interpretation or application of the Treaties, but
of their termination or suspension, —and since (so India contends) the
notion of interpretation or application does not extend to that of termi-
nation or suspension, the Council’s competence is automatically ex-
cluded. Alternatively expressed, the Indian contention is that, since the
Treaties have been terminated or suspended, it follows ex Aypothesi that
no question of their interpretation or application can arise, such as alone
the Council would be competent to consider: non-existent treaties can-
not be interpreted or applied.

34. It is evident that this contention, although getting much nearer
to the real issue of what the Council can properly take cognizance of
under the jurisdictional clauses of the Treaties, having regard to their
actual wording, involves the same underlying assumption that the Treaties
have in fact been (validly) terminated or suspended, and also that a
unilateral act or allegation of India’s in that sense suffices. In consequence
three strands to this Indian contention can be seen to be interwoven:
(i) the Treaties are terminated or suspended, so they cannot be interpreted
or applied at all; (ii) the question whether they have been (validly) ter-
minated or suspended, is not one of interpretation or application; (iii)
in any event the answer to that question depends on considerations lying
outside the Treaties altogether. On each of these grounds India contends
that the issues involved are not within the Council's terms of reference
which are limited to interpreting and applying the Treaties. Once more
it is evident that, with respect to all three strands of this Indian conten-
tion, with the possible exception of certain aspects of the second one,
the argument involves and depends upon questions of merits. In relation
to it, the Parties debated at considerable length whether the notion of
the interpretation and application of a treaty can, at least in some circum-
stances, embrace that of a termination or suspension of it; and also as

23
66 ICAO CUUNCIL (JUDGMENT)

to whether any inherent limitations on the powers of the Council to deal
with certain types of legal questions must be presumed. But until it has
been determined by the proper means that what is involved is indeed
an issue solely of termination or suspension of the Treaties, and further
that no question of their interpretation or application arises or can arise
(and this is the only real issue involved here), the problem of whether
the one notion is comprised by the other can, for present purposes. be
regarded as hypothetical.

35. Thus far, only the negative aspects of the case have been exam-
ined; that is, the reasons why the various contentions so far considered
do not have any real bearing on the question of the competence of the
Council. It is now time to turn to the positive aspects, from which it
will appear not only that Pakistan's claim discloses the existence of a
“disagreement... relating to the interpretation or application” of the
Treaties, but also that India’s defences equally involve questions of their
interpretation or application.

36. The nature of Pakistan's “Application” and ‘’Complaint” to the
Council, the full texts of which are set out in Annexes A and B of the
Indian Memorial in the proceedings before the Court, has already been
indicated in general terms in the discussion (supra, paragraph 22) about
the Court’s jurisdiction to entertain the appeal on Pakistan's ‘Com-
plaint”. Specific provisions of the Treaties—in particular Article 5 of
the Convention and Section | of Article 1 of the Transit Agreement—were
cited by Pakistan as having been infringed by India’s denial of over-
flight rights. The existence of a “disagreement” relating to the application
of the Treaties was affirmed. There can therefore be no doubt about the
character of the case presented by Pakistan to the Council. It was es-
sentially a charge of breaches of the Treaties—and in order to determine
these, the Council would inevitably be obliged to interpret and apply
the Treaties, and thus to deal with matters unquestionably within its
jurisdiction. (As will be seen later—infra, paragraphs 38-43—the under-
lying issue of the continued applicability of the Treaties themselves, is
one that would equally require an examination of certain provisions of
them both.)

37. India also, in the terms indicated in paragraph 30 (6). supra, has
made charges of a material breach of the Convention by Pakistan, as
justifying India in purporting to put an end to it, or suspend its operation
and that of the Transit Agreement. Thus the case is one of mutual charges
and counter-charges of breach of treaty which cannot, by reason of the
very fact that they are what they are, fail to involve questions of the inter-
pretation and application of the treaty instruments in respect of which
the breaches are alleged. It is however possible to be more specific than

24
67 ICAO COUNCIL (JUDGMENT)

this, for not only do Pakistan’s claims cite particular articles of the
Treaties, but both India’s counter-charges and her defences to those of
Pakistan, can be seen to involve various treaty provisions. These will
now be considered in turn.

38. In the first place, India’s allegation of a material breach of the
Treaties by Pakistan, as justifying India in treating them as terminated
or suspended, is inherently and by its very nature, one that must involve
the examination of the Treaties in order to see whether, according to
the definition of a material breach of treaty contained in Article 60 of
the 1969 Vienna Convention on the Law of Treaties, there has been (para-
graph 3 (6)) a violation by Pakistan of “a provision essential to the ac-
complishment of the object or purpose of the Treaty”. The fact that, as
has been seen in paragraph 30 (4), supra, India has in very comprehen-
sive language alleged a material breach of the Treaties, can only increase
the need for considering what particular provisions are involved by this
allegation. Even if the allegation, because of its generality, is to be re-
garded as one of conduct on the part of Pakistan amounting to a com-
plete “repudiation of the treaty’ (see paragraph 3 (a) of Article 60 of
the Vienna Convention), it would still be necessary to examine the Trea-
ties in order to see whether, in relation to their provisions as a whole,
and in particular those relating to the “‘safety of air travel” which India
herself invoked (end of paragraph 30 (6), supra), Pakistan’s conduct
must be held to constitute such a repudiation.

39. Next, as regards the Indian claim that the Treaties had been re-
placed by a special régime, it seems clear that certain provisions of the
Chicago Convention must be involved whenever two or more parties to
it purport to replace the Convention, or some part of it, by other ar-
rangements made between themselves. These provisions read as follows:

Article 82 (first sentence)
Abrogation of Inconsistent Arrangements

“The Contracting States accept this Convention as abrogating all
obligations and understandings between them which are inconsistent
with its terms, and undertake not to enter into any such obligations
and understandings.”

Article 83
Registration of New Agreements

“Subject to the provisions of the preceding Article, any contracting
State may make arrangements not inconsistent with the provisions
of this Convention. Any such arrangement shall be forthwith re-
gistered with the Council, which shall make it public as soon as
possible.”

There is no need for comment here, except to say that any special régime
instituted between the Parties, and more especially any disagreement
(such as there certainly is) concerning its existence and effect, would im-

25
68 ICAO COUNCIL (JUDGMENT)

mediately raise issues calling for the interpretation and application by
the Council of the above-quoted provisions.

40. Finally, as regards the contention which formed the sub-stratum
of the whole Indian position, namely that the Treaties were or became
terminated or suspended between the Parties,—Pakistan, in the course
of the proceedings before the Court, contended that these matters by
no means lay outside the ambit of the Treaties but were, on the contrary,
regulated, at least implicitly, by two provisions of the Convention, Ar-
ticles 89 and 95. which read as follows:

Article 89
War and Emergency Conditions

“In case of war, the provisions of this Convention 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.”

Article 95
Denunciation of Convention

“(a) Any contracting State may give notice of denunciation of
this Convention three years after its coming into effect by notifica-
tion addressed to the Government of the United States of America,
which shall at once inform each of the contracting States.

(6b) Denunciation shail take effect one year from the date of the
receipt of the notification and shall operate only as regards the State
effecting the denunciation.”

(A provision having broadly the same effect as Article 95 of the Con-
vention appears in the Transit Agreement as Article III; and Article [
of this Agreement (Sections | and 2) covers the same sort of ground as
Article 89 of the Convention so far as concerns rights of overflight and
of landing for non-traffic purposes. These Articles need not be quoted
here.)

41. In connection with the provisions cited in the preceding paragraph,
Pakistan pleaded the rule (approved by the Court in the North Sea Con-
tinental Shelf cases——1.C.J.Reports 1969, Judgment, paragraph 28), ac-
cording to which, when an agreement or other instrument itself provides
for the way in which a given thing is to be done, it must be done in that
way or not at all. On this basis Pakistan contended that not only was
there no provision for the suspension of the Convention as such, but
that this possibility was impliedly excluded by Articles 89 and 95. All that
was afforded (by Article 89) was a right in certain specified circumstances
to disregard the Convention, and temporarily to stop granting the rights
it provided for. As soon as these circumstances ceased to exist (as, in
the instant case, Pakistan contended that they had), this licence to dis-
regard came to an end, and the obligation to resume the full operation

26
oY ICAO COUNCIL (JUDGMENT)

of the rights provided for by the Convention automatically revived.
Such was Pakistan's contention.

42. In the proceedings before the Court, India gave a different inter-
pretation of this provision. This was, broadly, that Article 89 was a mere
enabling. or in a certain sense saving, clause, the object of which was to
make it clear that the Convention left intact. and was not intended to
affect, the rights which in certain circumstances the parties might derive
from sources outside the Convention, under general international law
or otherwise. The Article was (so India said) an example of. or equivalent
to, a type of clause often found in treaties, to the effect that the provisions
of the treaty were without prejudice to the rights ah extra of the parties
in certain respects: it had no direct bearing on the present case.

43. The Court must obviously refrain from pronouncing on the
validity or otherwise of the opposing views of the Parties as to the object
and correct interpretation of Articles 89 and 95. since this touches
directly upon the merits of the case. But this opposition cannot but be
indicative of a direct conflict of views as to the meaning of the Articles,
or in other words of a “disagreement... relating to the interpretation
or application of [the] Convention” :—and 1f there is even one provision
—and especially a provision of the importance of Article 89—as to which
this is so. then the Council is invested with jurisdiction, were it but the
only such provision to be found, which is clearly not the case. However,
the Court having thus decided that the Council is competent, is not
called upon to define further the exact extent of that competence, beyond
what has already been indicated.

*
* *

44. There is one more matter which the Court has to consider. It was
strenuously argued on behalf of India, though denied by Pakistan, that
irrespective of the correctness in law or otherwise of the Council's
decision assuming jurisdiction in the case, from which India is now
appealing, it was vitiated by various procedural irregularities. and should
accordingly, on that ground alone, be declared null and void. The
argument was that, but for these alleged irregularities, the result before
the Council would or might have been different. Consequently, it was
said, if the Court endorsed the Indian view as to the existence of these
procedural irregularities. it should refrain from now pronouncing on the
question of the Council's jurisdiction, declare the latter's decision null
and void, and send the case back to it for re-decision on the basis of a
correct procedure.

45. The Court however does not deem it necessary or even appro-
priate to go into this matter. particularly as the alleged irregularities do
not prejudice in any fundamental way the requirements of a just proce-
dure. The Court's task in the present proceedings is to give a ruling as to

27
70 ICAO COUNCIL (JUDGMENT)

whether the Council has jurisdiction in the case. This is an objective
question of law, the answer to which cannot depend on what occurred
before the Council. Since the Court holds that the Council did and does
have jurisdiction, then, if there were in fact procedural irregularities, the
position would be that the Council would have reached the right con-
clusion in the wrong way. Nevertheless it would have reached the right
conclusion. If, on the other hand, the Court had held that there was and
is no jurisdiction, then, even in the absence of any irregularities, the Coun-
cil's decision to assume it would have stood reversed.

46. For these reasons,
THE Court,

by thirteen votes to three,

(1) rejects the Government of Pakistan's objections on the question of
its competence, and finds that it has jurisdiction to entertain India’s
appeal:

by fourteen votes to two,

(2) holds the Council of the International Civil Aviation Organization
to be competent to entertain the Application and Complaint laid
before it by the Government of Pakistan on 3 March 1971; and in
consequence, rejects the appeal made to the Court by the Govern-
ment of India against the decision of the Council assuming juris-
diction in those respects.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this eighteenth day of August, one
thousand nine hundred and seventy-two, in three copies, one of which
will be placed in the archives of the Court and the others transmitted
to the Government of India and to the Government of Pakistan, respec-
tively.

(Signed) F. AMMOUN,
Vice-President.

(Signed) S. AQUARONE,
Registrar.

28
71 ICAO COUNCIL (DECL. ZAFRULLA KHAN)

President Sir Muhammad ZAFRULLA KHAN makes the following decla-
ration:

} much regret | am unable to agree that Article 84 of the Convention
read with Articles 5 (4), 15 and 18 of the Rules for the Settlement of
Differences provides a right of appeal against a decision of the Council of
ICAO rejecting a preliminary objection to its competence-to handle an
application or complaint. It seems to me that the considerations that
have impelled the Court to arrive at the opposite conclusion do not
carry the matter any further than the desirability of a provision to that
effect. However strong that desirability may be it cannot serve as a sub-
stitute for the lack of such a provision in the Convention read with the
relevant rules. The entire scheme of the Rules excludes the possibility of
an appeal against a decision of the Council rejecting a preliminary objec-
tion against its competence. The remedy for the correction of this situa-
tion, if a correction should be desired, would be by way of amendment of
the Convention and the Rules, and not by reading into them a meaning
which they are not capable of bearing.

Nor am | able to agree that Section | of Article II of the Transit
Agreement contemplates only cases of injustice or hardship occasioned
by action which is lawful but is prejudicial, and that to the extent to
which a complaint under that Scction alleges unlawful action as the cause
of the injustice or hardship complained of, it becomes assimilable to the
case of an application for the purposes of appealability to the Court.

In view, however, of the finding of the Court that the Council of
ICAO has jurisdiction to entertain the Application and Complaint laid
before it by the Government of Pakistan on 3 March 1971, a finding with
which ! am in entire agreement, my dissent on the question of the admissi-
bility of India’s appeal assumes a purely academic aspect.

A large part of the submission of India’s counsel to the Court was
devoted to the exposition of irregularities of procedure alleged to have
been committed by the Council of ICAO in dealing with India’s Prelim-
inary Objection to its assumption of jurisdiction in respect of Pakistan’s
Application and Complaint. The purpose of this exposition was to
persuade the Court to hold that the proceedings before the Council were
vitiated by these alleged irregularities and that the decision of the Council
on India’s Preliminary Objection was thus rendered void and of no effect
and should consequently be set aside.

These alleged irregularities fall broadly into two categories; those
relating to the “‘manner and method” of arriving at the decision appealed
against, and those resulting from failure to comply with the requirements
laid down in Article 15 of the Rules for the Settlement of Differences.

As regards the first category, India’s objections and suggestions were
thoroughly debated in the Council (Memorial of India, Annex E, (e),
Discussion, paras. 50-84) and the rulings of the President were upheld by

29
72 ICAO COUNCIL (DECL. ZAFRULLA KHAN)

the Council. Nothing urged by India’s counsel in his submissions to the
Court in this context has served to raise any doubt in my mind concerning
the correctness and propriety of the President's rulings and of the pro-
cedure followed by the Council.

As regards the second category, the brief answer to India’s objections
is that Article 15 of the Rules for the Settlement of Differences has no
relevance to a decision on a preliminary objection. The subject of Pre-
liminary Objection and Action Thereon is dealt with in Article 5 of the
Rules. This Article is comprised in Chapter H1 of the Rules, which deals
with Action upon Receipt of Applications. The Article is self-contained
and comprehensive. The procedure for dealing with a preliminary ob-
jection is prescribed in paragraph (4) of Article 5 which runs as follows:
“Ifa preliminary objection has been filed, the Council, after hearing the
parties, shall decide the question as a preliminary issue before any further
steps are taken under these Rules.” This is exactly what the Council did.

Article 15 of the Rules is contained in Chapter IV which prescribes
the procedure to be followed in respect of ‘Proceedings"”, which start
after a preliminary objection has been disposed of and which relate to the
merits of the case. Article 15 which is headed ‘‘Decision™ obviously has
reference to a decision on the merits, and does not relate back to a
decision on a preliminary objection disposing of the question as a pre-
liminary issue before the commencement of proceedings on the merits.

The record of the discussion before the Council does not show that
India urged compliance by the Council with the requirements of Article
15. Even before the Court some of the alleged irregularities were men-
tioned for the first time in the oral submissions of counsel and the list
was expanded in reply. Be that as it may, it is clear that Article 15 of the
Rules has no application to a decision on a preliminary objection. The
Council rightly proceeded on that assumption and not a single member
gave expression to a difference of view.

Judge LACHS makes the following declaration:

Feeling as 1 do that there are certain observations which should be
made on some aspects of the Judgment, I avail myself of the right
conferred by Article 57 of the Statute of the Court and append hereunder
the following declaration.

1
While I fully agree with the findings of the Court concerning its com-

petence to entertain the appeal. I wish to comment further on the inter-
pretation of Article 84 of the Chicago Convention on Internationa! Civil

30
73 ICAO COUNCIL (DECL. LACHS)

Aviation and Section 2 of Article II of the International Air Services
Transit Agreement.

In examining the sense and import of “the decision”, as used in Article
84, its strict verbal meaning should constitute a point of departure but
cannot be conclusive, for there is no qualifying word to relieve us of the
task of interpretation. It is true that the use of the definite article and the
singular (“the decision’’) relates that term directly to the action to be
taken by the Council under the first sentence of the Article. This would
seem to point to the conclusion that “the decision” contemplated must
be one whereby the Council disposes of ‘any disagreement between two
or more contracting States relating to the interpretation or application”
of the Convention and its Annexes which ‘‘cannot be settled by nego-
tiation”.

However, it is not only by decisions on substance that the Council
can dispose of disagreements. Hence it is not only from such decisions
that appeal may be made—and I do not, in this connection, find it pos-
sible to maintain that the Rules for the Setttement of Differences can
be so construed as to restrict appealability to any greater extent than
the Convention itself. Moreover, had the drafters definitely wished to
exclude appeals on issues other than those of substance, they could easily
have done so by suitably qualifying the term “decision”: there are
well-known precedents for such drafting.

This is, of course, not so say that appeal is allowable “from every
order, or any order of the Council”, which, as counsel for Pakistan sug-
gested, would “‘defeat the very purpose of the Convention” (hearing of
27 June 1972). The matter has to be viewed in the light of the repercus-
sions which the decision in question could have on the positions of the
Parties in regard to the case. In the present instance we are concerned
with a decision on a jurisdictional issue, and so a line has to be drawn
and the question answered as to the side of the line on which ‘‘decisions
on jurisdiction” lie. The answer is of course implicit in the crucial im-
portance which such decisions invariably have (as stressed in para. 18
of the Judgment). This is borne out by the entire history of international
adjudication, where these issues are much more vital than in the muni-
cipal context.

There is, however, a more general aspect to these issues. Great caution
and restraint have been exercised by this Court and its predecessor when
ascertaining their own jurisdiction. As Judge Lauterpacht pointed out:
“Nothing should be done which creates the impression that the Court,
in an excess of zeal, has assumed jurisdiction where none has been
conferred upon it.” (The Development of International Law by the Inter-
national Court, 1958, p. 91.)

This restraint has had its raison d'être in the clear tendency not to im-
pose more onerous obligations on States than those they have expressly

31
74 ICAO COUNCIL (DECL. LACHS)

assumed. However, in regard to appeals from other fora, this very
criterion imposes limits on the Court's caution in assuming jurisdiction.

Indeed, the same reasons which underlie the necessity of interpreting
jurisdictional clauses strictly impel one to adopt an interpretation of
provisions for appeal that would lend maximum effect to the safeguards
inherent in such provisions. For, as between the “lower forum” and
“the court of appeal’, there exists as it were a see-saw of jurisdictional
powers. Hence to apply a restrictive interpretation of rights of appeal—and
thus of the powers of the “court of appeal”"—would obviously entail an
extensive interpretation of the jurisdictional powers of the ‘court of
first instance”. This would in fact imply more onerous obligations on
the States concerned: something which (as indicated above) international
tribunals have continuously endeavoured to avoid. To restrict the rights
of States to seek relief from what they deem to be wrongful decisions
would to some extent. at least, defeat the very object of the institution of
appeals. If that is so in general, it applies in particular to issues of juris-
diction, which. as indicated earlier, are in the international field com-
parable in importance to issues of substance. Thus this aspect confirms
the justification for the exercise of what the Judgment describes (para.
26) as ‘‘a certain measure of supervision by the Court” (cf. resolution of
25 September 1957 by the Institut de droit international, Annuaire 1957,
pp. 476 ff.).

Il

While I agree that the [CAO Council is competent to entertain the
Application and Complaint submitted to it, | wish to comment on
some procedural issues which have been raised in regard to the decision
from which an appeal has been made. India advanced a series of sub-
missions on the subject (Memorial of India. paras. 93-99 and 106 D).
Pakistan for its part, denied them (Counter-Memorial, para. 59).

Article 54 (c) of the Convention on International Civil Aviation
provides that: “The Council shall ... determine its organization and
rules of procedure.” Within the powers thus vested in it, the Council
approved, on 9 April 1957, the “Rules for the Settlement of Differences”’.
These were intended to “govern the settlement of ... disagreements
between Contracting States which may be referred to the Council”,
and “the consideration of any complaint regarding an action taken by
a State party to the Transit Agreement” (Art. 1 (1) and (2)).

In the light of these provisions the contracting States have the right
to expect that the Council will faithfully follow these rules, performing
as it does, in such situations, quasi-judicial functions, for they are an

32
75 ICAO COUNCIL (DECL. LACIIS)

integral part of its jurisdiction. Such rules constitute one of the guar-
antees of the proper decision-making of any collective body of this
character and they set a framework for its regular functioning: as such,
they are enacted to be complied with.

The records of the meeting of the Council on 29 July 1971 do indicate
that some provisions of the Rules for the Settlement of Differences were
departed from. In general, of course, not all departures from established
rules affect the validity of decisions, but there are some which may
prejudice the rights and interests of the parties. It is therefore reason-
able, if one of the parties concerned should submit before this Court
that procedural irregularities occurred, that these submissions should
attract the Court's attention. Thus the objections raised by India are
well taken.

I therefore regret that the Court has not gone into the matter and has
limited itself to giving “a ruling as to whether the Council has juris-
diction in the case” (Judgment, para. 45). To pronounce upon any formal
deficiencies the Court may find in the decision-making of the Council,
or to draw that body’s attention to them, would surely come within that
“supervision by the Court over those decisions” referred to in a pas-
sage of the Judgment (para. 26) which I mentioned earlier and to which
I fully subscribe.

Moreover, it is to be taken into account that the Council, in view
of its limited experience on matters of procedure, and being composed
of experts in other fields than law, is no doubt in need of guidance, and
it is surely this Court which may give it. Such guidance would be of
great importance for the further conduct of this case and future cases,
and in the interest of the confidence of States entrusting it with the
resolution of disagreements arising in the field of civil aviation.

Judges PETRÉN, ONYEAMA, DILLARD, DE CASTRO and JIMENEZ DE
ARECHAGA append separate opinions to the Judgment of the Court.

Judge Morozov and Judge ad hoc NAGENDRA SINGH append dis-
senting opinions to the Judgment of the Court.

(Initialled) F. A.
(Initialled) S. A.

33


28

DÉCLARATION DE M. SHAHABUDDEEN
[Traduction]

L’ordonnance rendue ce jour par la Cour devrait contribuer à mainte-
nir des relations amicales entre deux pays frères et voisins. J’ai voté pour
les alinéas 1, 2, 4 et 5 du dispositif. Si j’avais pensé que le troisième alinéa
du dispositif reposait sur une base juridique solide, j'aurais également
voté en sa faveur. Mais je ne pense pas qu’une telle base existe.

Toute mesure conservatoire devrait être formulée de façon à être direc-
tement applicable, en ce sens qu’elle devrait contenir tous les éléments
juridiques nécessaires à son interprétation et à son application. Pour ce
qui est de la mesure conservatoire qui prescrit une limitation du mouve-
ment des forces armées, il est essentiel qu’elle contienne la mention d’un
repère matériel clair, telle l’indication de positions ou de lignes, qui per-
mette de vérifier aisément si les troupes ont bien respecté cette limitation.
Pour les raisons évoquées au paragraphe 38 de l'ordonnance de la Cour,
les éléments du dossier ne permettaient pas à la Cour de préciser un tel
repère. La Chambre chargée de connaître de l’affaire du Différend fron-
talier a été confrontée à un problème du même ordre, mais une solution
de rechange s’offrait à elle (mesures conservatoires, C.I.J. Recueil 1986,
p. 10-11, par. 27, et p. 12, par. 32, al. 1, point D). En Pespéce, aucune
solution de rechange n’est possible.

En conséquence, la mesure conservatoire qui prescrit une limitation du
mouvement des forces armées ne servira pas le but qu’elle se propose
d’atteindre: éviter tout différend dans la zone en question. Au contraire,
elle pourrait être une nouvelle source de conflit puisqu’en l’occurrence les
Parties pourraient être en désaccord sur la position ou les positions
qu’elles occupaient respectivement avant le 3 février 1996.

Dans ces conditions, il m’a semblé que la mesure conservatoire indi-
quée à l’alinéa 2 du dispositif, en faveur duquel j’ai voté, représentait le
maximum de ce que la Cour pouvait utilement indiquer, puisqu'elle
demandait aux Parties de se conformer aux termes de l’accord, auquel
sont parvenus leurs ministres des affaires étrangères le 17 février 1996,
aux fins de l’arrét de toutes les hostilités dans la presqu'île de Bakassi.
Pour l'essentiel, le respect de cette mesure devrait avoir l’effet pratique
qui aurait pu découler de Vindication d’une mesure conservatoire suffi-
samment bien conçue, limitant le mouvement des forces armées des
Parties.

(Signé) Mohamed SHAHABUDDEEN

19