ICJ FINDS NO JURISDICTION OVER PAKISTAN-INDIA

UNCLAS SECTION 01 OF 02 THE HAGUE 001887

SIPDIS


DEPARTMENT FOR L/UNA - MATHIAS, L/NEA - BOREK, SA


E.O. 12958: N/A
TAGS: PREL IN PK ICJ
SUBJECT: ICJ FINDS NO JURISDICTION OVER PAKISTAN-INDIA
AIRCRAFT SHOOTDOWN CASE

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SUMMARY
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1. IN A JUDGMENT ISSUED ON JUNE 21, THE INTERNATIONAL COURT
OF JUSTICE (ICJ) DECIDED THAT THE COURT LACKED JURISDICTION
OVER A CLAIM BROUGHT BY PAKISTAN AGAINST INDIA ARISING OUT OF
THE ALLEGED DOWNING BY INDIAN FORCES OF A PAKISTANI AIRCRAFT
TRAVELING IN PAKISTANI AIRSPACE. BY A VOTE OF 14 TO 2, THE
ICJ DISMISSED PAKISTAN'S CLAIM. THE COURT NEVERTHELESS
EXHORTED THE PARTIES TO RESOLVE THEIR DISPUTE BY PEACEFUL
MEANS IN ACCORDANCE WITH INTERNATIONAL LAW.


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BACKGROUND
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2. ON JUNE 21, THE ICJ ISSUED ITS JUDGMENT ON THE
PRELIMINARY OBJECTIONS LODGED BY INDIA IN A CASE BROUGHT BY
PAKISTAN ON 21 SEPTEMBER 1999. IN ITS APPLICATION, PAKISTAN
ALLEGED THAT AN UNARMED PAKISTANI NAVY AIRCRAFT, THE
"ATLANTIQUE," WHILE ENGAGED IN A ROUTINE TRAINING MISSION IN
PAKISTANI AIR SPACE, WAS SHOT DOWN BY INDIAN AIR FORCE
PLANES. PAKISTAN ALSO ALLEGED THAT AFTER THE PLANE WAS SHOT
DOWN, INDIAN HELICOPTERS ENTERED PAKISTANI TERRITORY TO
COLLECT DEBRIS FROM THE WRECKAGE OF THE PLANE TO SUPPORT
INDIA'S POSITION THAT THE PLANE HAD BEEN SHOT DOWN OVER
INDIAN AIR SPACE. PAKISTAN ALLEGED THAT THE DOWNING OF THE
"ATLANTIQUE" VIOLATED THE U.N. CHARTER'S PROHIBITION ON THE
USE OF FORCE, A BILATERAL AGREEMENT ON THE PREVENTION OF AIR
SPACE VIOLATIONS, AS WELL AS CUSTOMARY INTERNATIONAL LAW
NORMS NOT TO USE FORCE AGAINST OTHER STATES AND NOT TO
VIOLATE THE SOVEREIGNTY OF OTHER STATES.



3. ON 2 NOVEMBER 1999, INDIA FILED PRELIMINARY OBJECTIONS TO
PAKISTAN'S APPLICATION, AND ARGUED IN PARTICULAR THAT THE ICJ
LACKED JURISDICTION OVER PAKISTAN'S CLAIM. AFTER MEMORIALS
WERE FILED ON THE JURISDICTIONAL ISSUE, THE COURT ON APRIL
3-6 HELD A HEARING.


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JURISDICTIONAL GROUNDS
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4. PAKISTAN SOUGHT TO BASE THE ICJ'S JURISDICTION ON THREE
SEPARATE GROUNDS: (1) THE DISPUTE RESOLUTION PROVISION OF
THE GENERAL ACT FOR PACIFIC SETTLEMENT OF INTERNATIONAL
DISPUTES, SIGNED AT GENEVA ON 26 SEPTEMBER 1928 ("THE 1928
GENERAL ACT"); (2) THE "OPTIONAL CLAUSE" DECLARATIONS OF
INDIA AND PAKISTAN UNDER ARTICLE 36(2) OF THE STATUTE OF THE
ICJ; AND (3 ARTICLE 36(1) OF THE STATUTE OF THE ICJ.


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THE 1928 GENERAL ACT
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5. ARTICLE 17 OF THE 1928 GENERAL ACT, TO WHICH BRITISH
INDIA ACCEDED IN 1931, PROVIDED FOR THE REFERRAL TO THE
PERMANENT COURT OF INTERNATIONAL JUSTICE, THE ICJ'S
PREDECESSOR, OF INTERNATIONAL DISPUTES BETWEEN PARTIES OT THE
ACT. THE PARTIES ADVANCED A VARIETY OF ARGUMENTS ABOUT
WHETHER THE 1928 GENERAL ACT REMAINS IN EFFECT, AND WHETHER
IT CONSTITUTES A TREATY UPON WHICH THE ICJ'S JURISDICTION MAY
BE BASED. THE ICJ DID NOT ADDRESS THESE GENERAL QUESTIONS,
BUT RATHER NOTED THAT INDIA, IN A 1974 COMMUNICATION TO THE
U.N. SECRETARY-GENERAL, ANNOUNCED THAT IT "NEVER REGARDED
(ITSELF) AS BOUND BY THE (GENERAL ACT) SINCE HER INDEPENDENCE
IN 1947, WHETHER BY SUCCESSION OR OTHERWISE. ACCORDINGLY,
INDIA NEVER HAS BEEN AND IS NOT A PARTY TO THE GENERAL ACT
EVER SINCE HER INDEPENDENCE."



6. THE ICJ RULED THAT EVEN IF INDIA COULD NOT CLAIM THAT IT
WAS NEVER SINCE INDEPENDENCE A PARTY TO THE 1928 GENERAL ACT,
THE 1974 COMMUNICATION EFFECTIVELY CONSTITUTED A DENUNCIATION
UNDER ARTICLE 45 OF THAT ACT. AS SUCH, THE LATEST INDIA
COULD BE DEEMED TO BE A PARTY TO THE GENERAL ACT WAS AUGUST
1979, THE DATE ON WHICH SUCH A DENUNCIATION WOULD TAKE
EFFECT. THE COURT ACCORDINGLY CONCLUDED THAT THE 1928
GENERAL ACT COULD NOT SERVE AS A BASIS FOR THE ICJ TO
EXERCISE JURISDICTION OVER PAKISTAN'S CLAIM AGAINST INDIA.


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ARTICLE 36(2) OPTIONAL CLAUSE DECLARATIONS
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7. PAKISTAN ALSO SOUGHT TO BASE THE COURT'S JURISDICTION
UNDER ARTICLE 36(2) OF THE ICJ STATUTE, THE SO-CALLED
"OPTIONAL CLAUSE," UNDER WHICH STATES MAY FILE DECLARATIONS
CONSENTING TO THE COURT'S JURISDICTION OVER DISPUTES WITH ANY
OTHER COUNTRIES THAT HAVE SIMILARLY FILED OPTIONAL CLAUSE
DECLARATIONS. INDIA OBJECTED, ON THE GROUNDS THAT IT MADE
ITS OPTIONAL CLAUSE DECLARATION SUBJECT TO A NUMBER OF
RESERVATIONS PRECLUDING JURISDICTION IN CERTAIN CASES,
INCLUDING DISPUTES CONCERNING MULTILATERAL TREATIES (UNLESS
ALL PARTIES TO THE TREATY ARE ALSO PARTY TO THE ICJ CASE) AS
WELL AS DISPUTES WITH COUNTRIES WHICH ARE OR HAVE BEEN
MEMBERS OF THE "COMMONWEALTH OF NATIONS."



8. THE ICJ DID NOT RULE ON THE MULTILATERAL TREATY
RESERVATION, BUT HELD THAT PAKISTAN'S CLAIM WAS BARRED BY
INDIA'S "COMMONWEALTH NATIONS" RESERVATION. THE COURT
REJECTED PAKISTAN'S CLAIM THAT PAKISTAN'S NONACCEPTANCE OF
THE RESERVATION MADE IT "INOPPOSABLE" TO PAKISTAN. IT ALSO
REJECTED PAKISTAN'S SUGGESTION THAT THE "COMMONWEALTH
NATIONS" RESERVATION WAS OBSOLETE BECAUSE MEMBERS OF THE
COMMONWEALTH WERE NO LONGER UNITED BY A COMMON ALLEGIANCE TO
THE CROWN. THE COURT REAFFIRMED THE RIGHT OF STATES TO
CONDITION THEIR CONSENT TO THE ICJ'S JURISDICTION, AND
CONCLUDED THAT ALTHOUGH THE HISTORICAL REASONS FOR INDIA'S
"COMMONWEALTH NATIONS" RESERVATION MAY HAVE CHANGED, THIS DID
NOT PREVAIL OVER THE INTENTION OF THE DECLARANT STATE AS
EXPRESSED IN THE RESERVATION ITSELF.


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ARTICLE 36(1) OF THE ICJ STATUTE
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9. PAKISTAN ALSO ARGUED THAT THE ICJ HAD JURISDICTION OVER
THE CASE UNDER ARTICLE 36(1) OF THE ICJ STATUTE, WHICH
PROVIDES THAT THE JURISDICTION OF THE ICJ COMPRISES, AMONG
OTHER THINGS, "ALL MATTERS SPECIALLY PROVIDED FOR IN THE
CHARTER OF THE UNITED NATIONS." THE COURT REJECTED
PAKISTAN'S CLAIM THAT ARTICLES 1(1),2(3),2(4),33, 36(3),
AND 92 OF THE U.N. CHARTER CONSTITUTED SPECIFIC PROVISIONS
CONFERRING COMPULSORY JURISDICTION ON THE ICJ.


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OBLIGATION TO SETTLE DISPUTES BY PEACEFUL MEANS
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10. ALTHOUGH THE ICJ FOUND THAT IT HAD NO JURISDICTION OVER
THE APPLICATION BROUGHT BY PAKISTAN AGAINST INDIA, IT NOTED
THAT THE COURT'S LACK OF JURISDICTION DOES NOT RELIEVE THE
PARTIES OF EITHER THEIR OBLIGATIONS TO COMPLY WITH
INTERNATIONAL LAW OR THEIR LEGAL OBLIGATION TO SETTLE THEIR
DISPUTE BY PEACEFUL MEANS.




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DISMISSAL BY 14 VOTES TO 2
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11. THE COURT CONCLUDED BY A VOTE OF 14 TO 2 THAT IT HAD NO
JURISDICTION OVER PAKISTAN'S APPLICATION AGAINST INDIA. ONLY
JUDGE AL-KHASAWNEH, THE RECENTLY-ELECTED JORDANIAN JUDGE, AND
JUDGE PIRZADA, THE AD HOC JUDGE APPOINTED FOR PURPOSES OF
THIS CASE BY PAKISTAN, VOTED AGAINST THE DISMISSAL.


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COMMENT
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12. BECAUSE THE COURT'S DECISION IN THE PAKISTAN-INDIA CASES
TURNS ON THE SPECIFIC LANGUAGE OF PARTICULAR DECLARATIONS
LODGED BY INDIA, IT IS UNLIKELY TO HAVE BROAD LEGAL
CONSEQUENCES BEARING ON OTHER DISPUTES. THE COURT DID RESIST
THE TEMPTATION, HOWEVER, TO TAKE AN EXPANSIVE VIEW OF ITS OWN
JURISDICTION THAT WOULD UNDERMINE THE ABILITY OF STATES
CAREFULLY TO LIMIT THEIR WILLINGNESS TO CONSENT TO THE
COURT'S JURISDICTION.



13. THE TEXT OF THE ICJ'S JUDGMENT AND THE OPINIONS OF
JUDGES WHO WROTE SEPARATELY OR DISSENTED, AS WELL AS A PRESS
RELEASE AND LONGER SUMMARY OF THE JUDGMENT, MAY BE FOUND AT
THE ICJ'S WEBSITE: WWW.ICJ-CIJ.ORG.
SCHNEIDER