NOTES AND COMMENTS

THE ATLANTIQUE CASE BETWEEN PAKISTAN AND INDIA

BEFORE THE ICJ

I Introduction

THE INTERNATIONAL Court of Justice (ICJ) handed down its

judgement on jurisdiction on 21 June 2000 in the case concerning the
aerial incident of 10 August 1999 (Pakistan v. India) (hereinafter to be
referred to as the Atlantique case) ruling that it had no jurisdiction to
entertain the dispute. While the judgement effectively forecloses any
further attempts on the part of Pakistan to arraign India before the
'International Bar' of the ICJ by raking up fresh issues contributing
further to the downhill slide of the bilateral relations, it reflects a judicial
response of the court to prevent endeavours to exploit the facility of its
international forum by countries mainly for political purposes. This essay
proposes to examine the Atlantique case as it progressed through the ICJ,
and comment on the court's ruling.

II Institution of proceedings before ICJ

The case came up before the ICJ on 21 September 1999 with the filing
by Pakistan of an application instituting proceedings against India, raising
a dispute relating to the destruction, on 10 August 1999, of a Pakistani
aircraft. The Pakistani application alleged that on 10 August 1999, "an
unarmed Atlantique aircraft of the Pakistan navy ... on a routine training
mission with sixteen personnel on board" was shot down with air to air
missiles by Indian air force planes, without warning, while it was flying
over Pakistan air space, killing all sixteen personnel on board the aircraft.
It further alleged that soon after the shooting down of the aircraft, Indian
helicopters "sneaked into Pakistan's territory to pick up a few items from
the debris...in order to produce 'evidence* for [India's] initial claim that
the Atlantique had been shot down over Indian air space." The Application
contended that these acts on part of India constituted breaches of
obligations under article 2(4) of the UN Charter, the bilateral agreement
of 6 April 1991 on prevention of air space violations, and international
customary law principles relating to non-use offeree and inviolability of
state sovereignty. Pakistan, therefore, requested the court to adjudge and
declare that "the acts of India constituted breaches of these obligations
for which India bears exclusive legal responsibility" and that "India is

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under an obligation to make reparations to...Pakistan for the loss of the

aircraft and as compensation to the heirs of those killed". As for the
jurisdiction of the court to entertain the case, Pakistan invoked in its
application article 36, paragraphs l 1 and 2, 2 of the ICJ statute and the
declarations made by the two parties recognising the compulsory
jurisdiction of the court under article 36, paragraph 2, of the statute.
In response, India sent a letter to the court dated 2 November 1999,
indicating its preliminary objections to the assumption of jurisdiction by
the court on the basis of Pakistan's application. The letter drew the
attention of the court to the facts that:
1. Pakistan's application did not refer to any treaty or convention
in force between the two countries conferring jurisdiction upon
the court under article 36(1) of its statute;
2. It failed to take into consideration the reservations made by
India to the court's jurisdiction in its Declaration of 15 September
1974 pursuant to article 36(2) of the statute, in particular the
reservation relating to disputes with a Commonwealth country;
and
3. India's Declaration also contained a reservation concerning any
disputes arising from the interpretation or application of a
multilateral treaty, which would effectively debar the court
from considering issues relating to the UN Charter.
Upon consultation with the parties, the court decided to confine the
proceedings to issues of jurisdiction before entering upon the merits, and
asked the parties to limit their first pleadings (i.e. Pakistan's Memorial
and India's Counter-Memorial) accordingly to jurisdictional issues.
Despite the above directive of the court, Pakistan's Memorial reiterated
its version of the Atlantique incident of 10 August 1999 and averred that

1. Article 36(1) of the ICJ statute states as follows: "the jurisdiction of the Court
comprises all cases which the parties refer to it and all matters specifically provided
for in the Charter of the United Nations or in treaties and conventions in force."
2. Article 36 (2) of the statute provides : "The states parties to the present Statute
may at any time declare that they recognise as compulsory ipso facto and without
special agreement, in relation to any other state accepting the same obligation, the
jurisdiction of the Court in ail legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of
an international obligation;
d. the nature or extent of the reparation to be made for the breach of an
international obligation.
Article 36 (3) - which is a related provision - states: "The declarations referred to
above may be made unconditionally or on condition of reciprocity on the part of
several or certain states, or for a certain time."

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Pakistan did not take any retaliatory action against India, but instead it
took up the matter with the UN Secretary-General, who expressed his
inability to send a mission to the region because India did not see any
need for any kind of third party investigations into the incident. It also
referred to the 30 August 1999 demarche of Pakistan to India demanding
that the latter should pay the former an amount of US $ 60.2 million as
compensation for the loss of the Pakistani aircraft and for the loss of lives
of the personnel on board. The Memorial further alleged that India did not
officially respond to the Pakistani demarche, but "publicly rejected" the
claim, "closing the door to any possible negotiations, even under the
Simla Accord," nor did it launch any investigation into the incident,
contrary to its obligations under the 1991 Agreement on Prevention of
Airspace Violations.
In its Counter-Memorial, India squarely denied the Pakistani version
of facts of the Atlantique incident and asserted that "Pakistan is entirely
responsible for its own acts." India's written pleading "reserve[d] its right
to counter specifically all allegations made by Pakistan." Pursuant to the
court's directive, it confined itself to issues of jurisdiction. During its
opening arguments in response to the opening arguments made by the
counsel for Pakistan, India's counsel clarified that the incident took place
not in Pakistani territory, but "in western India in the Kutch region in the
state of Gujarat" and reasserted that "Pakistan is solely responsible for
the incident and must bear the consequences of its own acts." 3
The oral proceedings were held for four days from 3 to 6 April 2000.
Pakistan opened the first round of oral arguments, India replying them,
and then Pakistan following with its second round, with India making its
response thereto and holding the advantage of having the last word.
Surprisingly, there were no questions from the Bench put to the parties
for further clarification - which is unusual in the practice of the ICJ. Was
this indicative of the near-unanimous verdict in favour of India, which
eventually materialised? One wonders, in retrospect, if it was not so.

Ill Jurisdictional issues

Pakistan's Application instituting the proceedings against India did

not, in fact, specifically refer to the possible bases of jurisdiction of the
court to entertain the case. It, however, cited - albeit in a broad manner
- three bases of jurisdiction for the court, namely:
1. Article 17 of the General Act for Pacific Settlement of
International Disputes of 1928;

3. See, e.g., the oral statement before the court by India's chief counsel, Mr. Soli
Sorabjee, CR 2000/2, at p. 11,

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2. The declarations made by both the parties under article 36 (2)

of the statute unilaterally accepting the court's jurisdiction and
defining the scope of their respective acceptances; and
3. Article 36 (1) of the statute.

Jurisdiction under article 17 of the General Act of 1928

The General Act is a multilateral treaty concluded under the auspices

of the League of Nations in 1928. Article 17 of the General Act provides
for the jurisdiction of the Permanent Court of International Justice (PCIJ,
the ICJ's predecessor) over "all disputes with regard to which the parties
are in conflict as to their respective rights, ... subject to any reservations
which may be made under article 39 ...unless the parties agree ... to have
resort to an arbitral tribunal."
Pakistan argued that the jurisdiction of the PCIJ under this treaty
passed on to the ICJ, by virtue of article 37 of its statute. According to
it, British India had acceded to the General Act of 1928 in 1931 and both
India and Pakistan at independence succeeded to British India as parties
to it.
India contended in reply that the General Act of 1928 was no longer
in force, and that even if it were, it could not be invoked as a basis for the
Court's jurisdiction. Many of its provisions were closely intertwined with
the organs of the League of Nations. Since the demise of the League oi
Nations, the treaty had lost its efficacy. The UN General Assembly found
it so in 1949, when it adopted a Revised General Act. Parties to the old
Act, which had not become parties to the new Act, could not invoke the
old Act today.
India further argued that the 1928 General Act was not capable oJ
being succeeded to, and had not been succeeded to, by both independent
countries, India and Pakistan. It was a political treaty, and at any rate
neither party had made any formal notification of succession (as providec
for under customary international law as reflected in articles 17 and 22 o
the 1978 Vienna Convention on Succession States in respect of Treaties)
Nor did Pakistan notify its succession to the 1928 Act any time after it;
independence. At any rate, Pakistan could not become a successor state
in respect of a League of Nations treaty, as it was not 'the continuator o
British India'. It was not even eligible to be a party to the 1928 Ac
because, by virtue of article 43 of the Act, only member states of th<
League of Nations could accede, and a non-member had to be specifically
invited by the League Council to become a party to it. As for India, Indi;
further contended, its communication to the UN Secretary-General of II
September 1974 made its position very clear that it never regarded itsel
bound by the 1928 General Act since its independence, whether b;
succession or otherwise.

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In response to all these Indian arguments, Pakistan argued that the

General Act of 1928 had survived the demise of the League of Nations;
that it was so recognised by the UN General Assembly itself in 1949; that
Pakistan became a party to the 1928 Act, by virtue of territorial continuity
of the British India; that it was not a case of succession, but devolution
in accordance with article 4 of the Schedule to the Indian Independence
(International Arrangements) Order issued by the Governor-General of
India in 1947; that in order to dispel any doubts in this regard, Pakistan
had communicated to the UN Secretary-General on 30 May 1974 that it
continued to be bound by the accession of British India of the General Act
of 1928 (minus of course the reservations made by the latter).
On its part, India contested the validity of all these arguments. It
contended that Pakistan could not have claimed to be a party to the 1928
General Act by virtue of continuity through article 4 of the 1947 Governor-
General's Order; that the treaty related to the membership of an
international organisation (the League of Nations) within the meaning of
article 2 of the Order which did not devolve upon Pakistan; and that with
regard to League of Nations treaties, the Supreme Court of Pakistan itself
had ruled that under the provisions of the Governor-General's Order of
1947 Pakistan could not have automatically become a party to the League
of Nations treaties. 4 India also pointed out that in 1947 a list of 627
treaties that were in force in respect of the territory of British India had
been drawn by the representatives of both countries, and that the 1928
General Act did not figure on this mutually agreed list. Pakistan countered
this argument stating that the 1947 list of treaties did not prove either way
on the continuity of the 1928 General Act vis-a-vis the two parties, as
there were significant omissions in the list; also, that the list was never
meant to be exhaustive.
Drawing the attention of the court to the commitment of both the
parties made in the Simla Agreement of 2 July 1972 "to settle their
differences by peaceful means through bilateral negotiations or by any
other peaceful means mutually agreed upon between them", Pakistan
argued that article 17 of the 1928 General Act constituted a 'peaceful
means' already 'mutually agreed upon between them.' To this, India
contended that the Simla Agreement never anticipated the 1928 Act as a
mutually agreed means of settlement of disputes; that it in fact provided
for any future agreement on any particular method of settlement; and that
therefore, Pakistan could not read into the Simla Agreement article 17 of
the 1928 General Act. The Simla Agreement was no more than an
arrangement between the two countries first to enter into negotiations in
case of any difference, and following such negotiations, to refer the

4. Yangtze(London) Ltd. v. Harlar Bros. (Karachi) Ltd.; see, International Law

Association, Effect of Independence on Treaties: A Handbook 100-108 (1965).

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2000] THE ATLANTIQUE CASE BETWEEN PAKISTAN AND INDIA 61

matter to any other method of settlement to the extent that there was any
further and specific agreement between the parties. At any rate, India
argued, its communication to the UN Secretary-General of 18 September
1974 was a clear manifestation of its will not to be bound by the General
Act of 1928 since its independence. Whereas in Pakistan's view, this
communication did not amount to a formal denunciation of the Act, as it
had not been made in accordance with the procedure provided for in
article 45 of the Act.
Finally, India also drew the court's attention to the reservations made
by British India when it acceded to the General Act of 1928 in 1931,
particularly the Commonwealth reservation and that relating to non-
members of the League of Nations^. It contended that even assuming that
Pakistan be deemed a party to the Act, these reservations would have
effectively barred the court from exercising its jurisdiction in this case
under the Act. On its part, Pakistan argued that these reservations were
inadmissible and invalid because they were not reservations permissible
under article 39 of the General Act.
The Court in its judgement observed that the question whether the
General Act of 1928 continued to be a treaty in force to enable the court
to exercise its jurisdiction thereunder, "has already been raised, but not
settled", in earlier cases before it.6 The court asserted that when its
jurisdiction was challenged on diverse grounds, it need not pronounce on
all the grounds argued before it, but "the court is free to base its decision
on the ground, which in its judgement is more direct and conclusive". 7
It recalled that in the Aegean Sea Continental Shelf case it had decided
not to rule on the issue of whether or not the General Act was in force,
but looked into the attitudes of the parties to the case in respect of the
Act.8 In its view, the crucial issue in the present case is India's position
in respect of the General Act. The court held that India's communication
to the UN Secretary-General of 18 September 1974 made it abundantly

5. "[T]he following disputes are excluded from the procedure described in the
General Act ...
(iii) Disputes between the Government of India and the Government of any other
Member of the League which is a Member of the British Commonwealth of Nations,
all of which disputes shall be settled in such a manner as the parties have agreed or
shall agree.
(v) Disputes with any Party to the General Act who is not a Member of the League
of Nations."
6. The court referred to ICJ Pleadings, Nuclear Tests, vol. II, at 348; ICJ
Pleadings, Trial of Pakistani Prisoners of War (Pakistan v. India), at 143; Aegean
Sea Continental Shelf (Greece v. Turkey), ICJ Reports 1978 at 17.
7. See, para 26 of the judgement. The court was quoting its earlier ruling in the
Certain Norwegian Loans case, ICJ Reports 1957 at 25.
8. ICJ Reports 1978, at 16-17.

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clear that the independent India never considered itself to be a party to the
General Act and hence it could not have formally denounced the Act. At
any rate, the 18 September 1974 communication could be "considered in
the circumstances of the present case as having served the same legal
ends as the notification of denunciation provided for in Article 45 of the
Act." And on that count, "India, in any event, would have ceased to be
bound by the General Act at the latest on 16 August 1979, the date on
which a denunciation of the General Act under article 45 thereof would
have taken effect." Thus "India cannot be regarded as a party to the said
Act" at the date on which the present case commenced, and consequently
the court lacked jurisdiction to entertain this case on the basis of article
17 of the General Act of 1928.9

Jurisdiction under article 36 (2) of ICJ statute

The second jurisdictional basis invoked by Pakistan to enable the

court to entertain the case was article 36, paragraph 2 of the statute. Both
the parties had accepted the court's jurisdiction by unilateral declarations
made under that provision of the statute. India objected to the court
assuming jurisdiction by virtue of these declarations, as it invoked two of
the reservations made by it in its declaration dated 18 September 1974,
whereby the court would not have jurisdiction over -

(2) Disputes with the government of any State which is or has

been a Member of the Commonwealth of Nations; ...
(7) Disputes concerning the interpretation or application of a
multilateral treaty unless all the parties to the treaty are also
parties to the case before the court or government of India specially
agree to jurisdiction.
In its Memorial Pakistan contended that the Commonwealth
reservation had no legal effect as it violated the principles of sovereign
equality, universality of rights and obligations of the members of the UN,
and good faith, and that it was in breach of various provisions of the UN
Charter and the ICJ statute. The reservation, according to Pakistan,
particularly violated article 36(3) of the statute, as it was "in excess of the
conditions permitted" therein. Yet, since it was "not so central as to
constitute 'an essential basis of the consent of India' to be bound by its
declaration under the optional clause", its invalidity would not affect the
rest of the declaration as it was severable from the rest. Also, India was
estopped from invoking this reservation in view of its undertakings under
the Simla Agreement. However, during oral arguments, Pakistan changed

9. Paragraph 28 of the judgement.

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its stand and now contended that its argument was not that India's
Commonwealth reservation was illegal, but that it was not opposable
(applicable) to Pakistan, since it was an "extra-statutory" reservation not
specifically provided for in article 36(3) of the statute. As an 'extra-
statutory' reservation, it would only apply vis-a-vis states that had accepted
it; and Pakistan had not accepted it. Further, Pakistan argued, the
reservation, in any event, would not apply in respect of Pakistan because
it was 'obsolete'. Tracing the origins of the Commonwealth reservation,
to the idea of the "inter se* doctrine, Pakistan pointed out that "the
original idea of the inter se doctrine has withered away, and the
Commonwealth members, including India, have come to regard each
other as ordinary states between whom normal rules of international law
apply and between whom litigation may take place upon an international
level, in the ordinary way." 10
In Pakistan's view, the Commonwealth reservation as worded in
India's declaration was specifically directed at Pakistan and that it was,
therefore, discriminatory, and amounted to an abuse of right by India.
India stoutly defended the validity and applicability of the
Commonwealth reservation. It pointed out that none of the commentators
on the jurisdiction of the court ever suggested that the reservation was
invalid. Article 36(3) specifically permitted a choice of partners (i.e.
states in respect of which a government was prepared to accept the court's
jurisdiction). The Commonwealth reservation was a reservation as to the
court's jurisdiction ratione personae, provided for in article 36(3) of the
statute. India also pointed to the illogic of the so-called theory of
opposability of 'extra-statutory' reservations, as such a theory would
permit any state (against which a reservation was invoked) to turn around
any time and claim that it had not 'accepted' reservation and hence the
reservation could not apply.
India also contested that argument that the optional clause declaration
minus the impugned reservation could be acted upon by the court to found
its jurisdiction. A reservation could not be severed from the declaration,
of which it was an integral part. India's, declaration must be taken as 'a
single instrument, as a unity'. 1 ] No estoppel would apply in respect of the
Commonwealth reservation vis-a-vis the Simla Agreement, argued India,
because the Simla Agreement did not contain a compromissory clause
conferring specific jurisdiction on any tribunal for settlement of disputes.
Countering the argument of obsolescence of the Commonwealth
reservation,, India pointed out that the reservation made in 1974 had been
apart of the practice of India: it had been made in earlier Indian declarations

10. Quoted in paragraph 30 of the judgement.

11. Quoted in paragraph 31 of the judgement.

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as well. It reflected the clear intention of the declarant state in respect of

the jurisdiction of the court.
As for the multilateral treaty reservation invoked by India, Pakistan
argued that it did not affect its legal position at all, as Pakistan's legal
claims were equally sustainable under international customary law.
The court, at the outset, reminded itself that its jurisdiction "only
exists within the limits within which it has been accepted" by parties.12
It also emphasised the facultative nature of optional clause declarations.13
Roundly rejecting Pakistan's contentions based on article 36(3) of the
statute, the court observed that "paragraph 3 of Article 36 of its Statute
has never been regarded as laying down in an exhaustive manner the
conditions under which declarations might be made".14 The court noted
that the Commonwealth reservation came to be in vogue since 1929, and
"such reservations are currently found in the declarations of eight of
those [Commonwealth] States".15 For these reasons, it rejected Pakistan's
arguments based on the theory of 'extra-statutory reservations'.
Nor was the court prepared to endorse Pakistan's argument that
India's Commonwealth reservation was discriminatory and amounted to
an abuse of right, as the onljr purpose of this reservation was to prevent
Pakistan from bringing an action against India before the court. It ruled:
It notes in the first place that the reservation refers generally to
States which are or have been members of the Commonwealth. It
would add, ..., that States are in any event free to limit the scope
ratione personae which they wish to give to their acceptance of
the compulsory jurisdiction of the Court.16
Responding to the obsolescence argument pointing to the
inapplicability of the Commonwealth reservation to Pakistan, the court
held:

12. Paragraph 36 of the judgement. The court quoted from its predecessor's ruling
in Phosphates in Morocco, PCIJ Series A/B, No. 74 (1938) at 23.
13. Id. The court cited its observations in the Nicaragua case (jurisdiction), ICJ
Reports 1984, at 418:
"[declarations of acceptance of the compulsory jurisdiction of the Court are
facultative, unilateral engagements, that States are absolutely free to make or not to
make. In making the declaration a State is equally free either to do so unconditionally
and without limit of time for its duration, or to qualify it with conditions or reservations."
14. Paragraph 37 of the judgement. The court cited in support the resolution
adopted by the League Assembly in 1928 on Optional Clause of article 36 of the
statute of the PCIJ, and the position adopted by the San Francisco Conference on
International Organisation, 1945, Doc. UNCIO, vol. XIII, at 559.
15. Paragraph 38 of the judgement.
16. Paragraph 40 of the judgement.

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While the historical reasons for the initial appearance of the

Commonwealth reservation in the declarations of certain States
under the optional clause may have changed or disappeared, such
considerations cannot, however, prevail over the intention of a
declarant State, as expressed in the actual text of its declaration.
India has repeatedly made clear that it wishes to limit in this
manner the scope ratione personae of its acceptance of the Court's
jurisdiction. Whatever may have been the reasons for this
limitation, the Court is bound to apply it. 17

The court also rejected Pakistan's argument that India was estopped
from invoking the Commonwealth reservation in view of its undertaking
under article 1, paragraph (ii) of the Simla Agreement. In its view, the
general obligation embodied in that provision "in no way modifies the
specific rules governing recourse to any such means, including judicial
settlement. Thus the Court cannot interpret that obligation as precluding
India from relying, in the present case, on the Commonwealth reservation
contained in its declaration." 18

In the result, the court found that it had no jurisdiction to entertain the
case under article 36(2) of the statute. It, therefore, found it unnecessary
to deal with India's objection based on multilateral treaties reservation. 19

Jurisdiction under article 36(1) of ICJ statute

The third principal ground on which Pakistan's Memorial sought to

found the court's jurisdiction was article 36(1) of the statute, whereby
"The jurisdiction of the court comprises ... all matters specifically provided
for in the Charter of the United Nations..." According to the Memorial,
article 36(1) of the statute must be read with article 1(1); article 2,
paragraphs 3 and 4; article 33; article 36(3) and article 92 of the UN
Charter; and this was reaffirmed by article 1 of the Simla Agreement by
its reference to the principles and purposes of the UN Charter. However,
Pakistan seemed to have abandoned this ground of jurisdiction, during
oral argument. 20

17. Paragraph 44 of the judgement.

18. Paragraph 45 of the judgement.
19. Paragraph 46 of the judgement.
20. Paragraph 47 of the judgement quotes the counsel for Pakistan as follows:
"Let me very briefly recall the two main grounds on which Pakistan restsjurisdiction:
(i) the optional clause; (ii) the General Act. I will not pursue the argument that the
Court has jurisdiction under Article 36, paragraph 1, as the case specially provided for
in the Charter."

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In abundant caution, however, the court examined the tenability of

this ground. It had no difficulty in stating categorically that "the United
Nations Charter contains no specific provision of itself conferring
compulsory jurisdiction on the court". 21 Nor did it find article 1 of the
Simla Agreement entailing "any obligation on India and Pakistan to
submit their disputes to the Court". 22 Thus the court held that it had no
jurisdiction to entertain the case on the basis of article 36(1) of the statute
either.
Thus in the result the court, by 14 votes to 2 (Judge al-Khasawneh
and Judge Ad Hoc Pirzada) held that it lacked jurisdiction to entertain the
Pakistani claim.

IV Obligation to settle dispute in good faith

Before parting with the proceeding, the court gave the parties some
gratuitous advice as well. First of all, it drew the attention of the parties
to the fact that "there is a fundamental distinction between the acceptance
by a state of the Court's jurisdiction and the compatibility of particular
acts with international law...whether or not States accept the jurisdiction
of the Court, they remain in all cases responsible for acts attributable to
them that violate the rights of other States". 23
The Court reminded them:

The Court's lack of jurisdiction does not relieve States of their

obligation to settle their disputes by peaceful means. The choice
of those means admittedly rests with the parties under Article 33
of the United Nations Charter. They are nonetheless under an
obligation to seek such a settlement, and to do so m good faith in
accordance with Article 2, paragraph 2, of the Charter. 24

The court emphasised that as regards India and Pakistan this obligation
had a special significance, as it had been underscored by the Simla
Agreement of 2 July 1972 as well as by the Lahore Declaration of 21
February 1999. "Accordingly, the Court reminds the Parties of their
obligation to settle their disputes by peaceful means, and in particular the
dispute arising out of the aerial incident of 10 August 1999, in conformity
with the obligations which they have undertaken." 25

21. Paragraph 48 of the judgement.

22. Paragraph 49 of the judgement.
23. Paragraph 51 of the judgement; the quotes are from its observations in the
Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the court, ICJ Reports 1998,
at 456.
24. Paragraph 53 of the judgement.
25. Paragraph 55 of the judgement.

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V Comments

The above portrayal of the proceedings and the court's rulings thereon,
permits one to make a few comments on both the proceedings as well as
the court's judgement.

Issues of substance

First, from the viewpoint of a practitioner of International law, this

was an easy case; indeed an open-and-shut case, particularly after the
Fisheries Jurisdiction (Spain v. Canada), 1998. 26 The court's ruling in
that case indicated the critical importance that the court would henceforth
place on the reservations to optional clause declarations. The court's
judgement of 21 June 2000 in the Aerial Incident of 10 August 1999
(Pakistan v. India) thus fell in line with its 1998 judgement.
Second, the only (what may be considered to be a major) contribution
of the court's judgement in the Aerial Incident of 10 August 1999 lies in
the limited field of validity of the Commonwealth reservation. The court
was not swayed by the fact that the Commonwealth countries, over time,
did not wait for the 'London Club' to evolve a judicial tribunal for
themselves, but entered into an enormous variety of disputes settlement
mechanisms inter se. Nor was it influenced by the almost unanimous
academic view that the Commonwealth reservation had long lost its
efficacy and practical meaning in the context of judicial settlement of
international disputes. 27 Its focus was confined to the freedom of a state
to make an optional clause declaration, including its freedom to make
reservations and conditions of its choice. The counsel for Pakistan therefore
had second thoughts on the issue of legality of the Commonwealth
reservation, which he had raised in the Memorial, and abandoned it
during oral argument in favour of an ingenious, but equally difficult-to-
sustain, argument of non-opposability of the reservation vis-a-vis Pakistan.
We now have a conclusive pronouncement on the tenability of the
Commonwealth reservation. One agrees with the court's ruling on this

26. ICJ Reports 1998.

27. For some of the writings of this genre see R.P. Anand, Compulsory Jurisdiction
of the International Court of Justice, at 239 (1961) (cited with approval by Pakistan's
Judge ad hoc Pirzada, in para 41 of his dissent, although he cites the wrong page),
Ronald McDonald, 'The New Canadian Declaration of Acceptance of the Compulsory
Jurisdiction of the ICJ", Canadian Yearbook of International Law at 31 (1970); J.G.
Merills, "The Optional Clause Revisited", British Yearbook of International Law, vol.
64 at 197-244 (1993) (both these writings were relied on by Pakistan's counsel, Sir
Elihu Lauterpacht, during oral arguments, see, ICJ Doc. CR 2000/1, 3 April 2000, at
36); R.Y. Jennings, "The Commonwealth and International Law", British Yearbook
of International Law, vol. 30 at 320-51 (1953).

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issue. Indeed, there are two aspects to be considered on the question of

validity-redundancy-obsolescence-inopposability arguments. One, the
academic discussion has never questioned the legality of the
Commonwealth reservation. Two, it has examined the maintainability of
the reservation at the policy level, that too in the exclusive context of the
compulsory jurisdiction of the International Court. The court in prosecution
of its judicial business, however, would not be interested in the issue of
desirability of a reservation from the policy point of view, if it was
satisfied that the state concerned exercised its right to stipulate a reservation
within the four corners of article 36(2) and (3) of its statute. Where a
state, such as India, has repeatedly made the Commonwealth reservation
in its four successive optional clause declarations, it would indeed be
impossible to apply the doctrine of obsolescence.
Third, beyond this, the court's ruling will not be remembered in the
realm of general international law, particularly because the court chose an
easy way out - to which it is entitled in performance of its judicial
function - without pronouncing upon what would have been two important
contributions to international jurisprudence. One related to the continuing
in force of the General Act of 1928, and the other the cluster of issues of
state succession in respect of the Act.
The court's refusal to examine the legal status of the 1928 General
28
Act , led at least one of its senior judges, Judge Shigeru Oda, to append
a separate opinion to the judgement, although he voted with the court in
its final finding that it had no jurisdiction to entertain the case. Judge Oda
traced the origins of the General Act of 1928, examined state attitudes to
the Act since its revision in 1949, and came to the conclusion that "the
Court has no jurisdiction to entertain the Application of Pakistan on the
basis of the provisions of Article 17 of the General Act". But he came to
this conclusion:

for different reasons: namely, not because, as the Court maintains,

India is presently not a party to the General Act of 1928 as
revised in 1949, but because the Act itself cannot be considered
a document that would confer compulsory jurisdiction upon the
Court independently from or in addition to the 'optional clause'

28. To be fair to the court, it justified its decision not to pronounce upon the status
of the General Act of 1928 in the Aegean Sea Continental Shelf Case thus:
"Although under Article 59 of the Statute 'the decision of the Court has no binding
force except between the parties and in respect of that particular case,' it is evident
that any pronouncement of the Court as to the status of the 1928 Act, whether it were
found to be a convention in force or to be no longer in force, may have implications
in the relations between States other than [the Parties in the case]" (ICJ Reports 1978,
at 16-17).

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2000] THE ATLANTIQUE CASE BETWEEN PAKISTAN AND INDIA 69

under Article 36, paragraph 2, of the Statute of either the

Permanent Court or of the present Court. The Court's jurisdiction
is conferred only pursuant to Article 36, paragraph 1 or 2, of its
Statute.29
With great respect to the great judge, at the end of the day one is still
unclear about the status of the General Act of 1928. Is it a 'treaty or
convention in force' within the meaning of article 36(1) of the statute, or
does every accession to it represent an optional clause declaration for the
purposes of article 36(2)? One is left bewildered!
The court's refusal to deal with the complexities of the issues relating
to state succession in respect of the General Act of 1928, led it to peg on
India's 1974 communication to the UN Secretary-General as central to its
reasoning, and hold on that basis as follows:
Thus India considered that it had never been party to the General
Act of 1928 as an independent State; hence it could not have been
expected formally to denounce the Act. Even if, arguendo, the
General Act was binding on India, the communication of 18
September 1974 is to be considered in the circumstances of the
present case as having served the same legal ends as the notification
of denunciation provided for in Article 45 of the Act. ... It
follows from the foregoing that India, in any event (emphasis
added), would have ceased to be bound by the General Act of
1928 at the latest on 16 August 1979.30

This should raise quite a few international legal eyebrows. British

India became a party to the General Act in 1931. In 1947 India becomes
independent. In 1974 it communicates with the UN Secretary-General
that it never regarded itself to be a party to the 1928 Act since independence.
If the treaty has been in existence, how would other parties to it have
known that India had never considered itself a party to the treaty? They
come to know of it only in 1974. The crucial question would then be
whether the treaty applied to India in 1972, at the time when the Simla
Agreement was concluded. Very clearly, the court made a short work
(mark the phrase, 'in any event') of the crucial issues of state succession
in terms of the Indian Independence (International Arrangements) Order
1947, and the status and effect of the General Act of 1928 in respect of
independent India. Could not the court have ruled that the 1974
communication by India was declaratory of the legal position obtaining

29. Paragraph 17 of Judge Oda's separate opinion.

30. Paragraph 28 of the judgement.

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70 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 42 : 1

since India's independence? 31

Fourth, the court ends with a gratuitous piece of advice to both parties
on the importance of settling the dispute through peaceful means,
particularly in view of the special undertakings made by them in the
Simla Agreement and the Lahore Declaration. There is nothing unusual
about this advice as the court has given it in many other cases. As Judge
Abdul G. Koroma pointed out in his brief separate opinion, "guided by
the Charter [of the United Nations] and its jurisprudence, the Court has
judiciously reminded the Parties of the obligation to settle their disputes
by peaceful means". 32 However, as between the two ad hoc judges, this
provoked two different responses. Judge Ad Hoc Syed Sharifuddin Pirzada
of Pakistan strongly endorsed the court's advice and said: "I would like
to emphasise that the Parties are under an obligation to settle in good faith
their disputes, including the dispute regarding the state of Jammu and
Kashmir and in particular the dispute arising out of the aerial incident of
10 August 1999." 33 On the other hand, Judge Ad Hoc B.P. Jeevan Reddy
of India also agreed with the court's advice, but said: "In particular I wish
to emphasize the element of good faith which is required of any state
which wishes to settle its disputes with another State as required by
Article 33 read with paragraph 2 of Article 2 of the Charter of the United
Nations." Reciting the relevant provisions of the Simla Agreement of
1972 and those of the Lahore Declaration of 1999, he noted that the latter
quite significantly referred to the commitment of both the countries to
combat the menace of terrorism, and observed:

This addition is not without significance; indeed it refers to a new

phenomenon vitiating the relations between the two countries. It
is in this context that the 'good faith' referred to in paragraph 49
of the Judgement of this Court assumes singular significance.
The requirement of 'good faith' obliges the two countries to
create an atmosphere where the 'bilateral negotiations or any
other peaceful means mutually agreed upon' can be conducted
and carried on meaningfully and in good faith. 34

31. The dissenting Judge Awn S. Al-Khasawneh remarks:

"By confining itself to the effects of the Indian communication of 1974 and not
dealing with these interrelated issues, some of which have appeared before the Court
in previous cases, the Court may have achieved mathematical elegance but at the
expense of leaving those issues without clarification." (See paragraph 6 of his
dissent).
While one agrees with this statement, one vehemently disagrees with the judge's
further reasoning, which is totally biased in favour of the Pakistani position, with little
or no academic discussion.
32. The last sentence of his separate opinion appended to the court's judgement.
3}. Paragraph 99 of his dissenting opinion.
34. Separate opinion of Judge Ad Hoc B.P. Jeevan Reddy.

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2000] THE ATLANTIQUE CASE BETWEEN PAKISTAN AND INDIA 71

Issues of procedure

Finally, some comments on issues of procedure. First, one notes that

in cases instituted by application by one party, the court tends to overlook
the provisions of article 38(5) of its rules. This provision in the rules of
court states as follows:

When the applicant State proposes to found the jurisdiction of the

Court upon a consent thereto yet to be given or manifested by the
State against which such application is made, the application
shall be transmitted to that State. It shall not however be entered
in the General List, nor any action be taken in the proceedings,
unless and until the State against which such application is made
consents to the Court's jurisdiction for the purposes of the case.

This should be read along with paragraph 2 of the same article: "The
application shall specify as far as possible the legal grounds upon which
the jurisdiction of the Court is said to be based; it shall also specify the
precise nature of the claim, together with a succinct statement of the facts
and grounds on which the claim is based." What is not clear, however, is
the implication of the phrase 'as far as possible'. There could be two
hypothetical situations. In one case, the applicant decides not to refer to
any jurisdictional ground at all, as none exists, and leave the other party
to decide whether or not to appear before the court. If the other party
appears and accepts the court's jurisdiction for the purpose of the case,
the court draws its jurisdiction by virtue of forum prorogatum, on the
basis of the conduct of parties. This is the situation covered by article
38(5). In another case, the applicant decides deliberately not to reveal any
of its cards relating to the court's jurisdiction, but simply refers to article
36 (1) and (2) of the court's statute, as it is in any case obliged to reveal
the jurisdictional grounds only 'as far as possible'. Pakistan's application
of 21 September 1999 did precisely this. It was an act in breach of the
principle of good faith on the part of Pakistan not to have specifically
referred to the General Act of 1928 and other grounds of jurisdiction
invoked in its Memorial subsequently. On the other hand, the court itself
does not acquit itself well in this episode. Having tested the issues of
jurisdiction on the basis of the General Act of 1928 in the POWs case
earlier, taking notice of India's optional clause declaration of 1974 filed
with the court, and at any rate in view of India's letter in response to
Pakistan's application, the court could have terminated the proceedings
for lack of jurisdiction, instead of proceeding with them and writing a
judgement with an overwhelming 14 to 2 majority (effectively only one
substantive member of the court dissented).
It is precisely to foreclose totally such wanton misuse of the court's
procedure, that article 38(5) was incorporated in the Rules of Court in

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 72 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 42 :

1978. Schwarzenberger reminds us that, before this provision was drafte<

into the Rules,
It was possible to initiate contentious proceedings informally, it
was possible to pretend that the action had been taken in the
expectation that the other party would subsequently accept the
Court's jurisdiction. In the worst case, a unilateral Application of
this hue could serve other purposes. It would put the Applicant's
case on record, prevent a claim from getting stale, demonstrate
the superior law-abidingness of the Applicant and embarrass the
other side. It would also lead automatically to a wide and dignified
circulation of claim with the assistance of the Court's Registry
and at the United Nations expense.35

Undoubtedly, Pakistan's application and subsequent proceedings

achieved all that36 , now in spite of article 35(5). The court has singularly
failed in preventing its facility from being abused for frivolous proceedings.
This case should not have been*automatically inscribed in the court's
General List in the first place, given such manifest lack of jurisdiction on
the face of the record. Against this background, the decision by India not
to abstain from the court's proceedings (following the precedent in the
POWs case) was indeed laudable. It, more than anything else, underscores
India's respect for the court as the principal judicial organ of the
international community.
Finally, the Ministry of External Affairs (and particularly its Legal
and Treaties Division), Government of India must be commended for the
professional manner in which it handled the case from India's side.
Although it was not essential to have foreign experts to be associated with
case, the ministry did recruit the services of two such eminent experts,
probably in abundant caution. The Legal and Treaties Division did a good
job of continuously coordinating the work of the Indian and the foreign
experts ever since the filing of the application by Pakistan, and finalising

35. Georg Schwarzenberger, International Law, Vol. IV, International Judicial

Law at 471-72 (1989).
36. This was the clear import of the propagandist political statement made by
Pakistan's Attorney General and Law Minister Aziz A. Munshi, while opening the
oral arguments on behalf of Pakistan. (See, ICJ Doc. CR 2000/1 of 3 April 2000, at
13-16). Points covered were "India's reluctance to the impartial consideration of the
dispute" the dispute relating to the state of Jammu and Kashmir and India's failure to
implement the UN resolutions, that "India throttled the democratic process of self-
determination for nearly 52 years and occupied the territory of the State by force,
keeping 700,000 military and paramilitary personnel in the State to suppress the
people", the shooting down of the Atlantique by the Indian government "in order to
save themselves from public opinion on the eve of general elections in India", etc.

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2000] THE A TLANTIQUE CASE BETWEEN PAKISTAN AND INDIA 73

India's pleadings and statements on the basis of the inputs received. At

no moment was any complacency shown in the preparation and
presentation of the case. Even the oral arguments were the product of the
teamwork. The enthusiasm shown and the hard work put in by the staff
of the Indian embassy at the Hague call for special mention. To many of
them, it was another KargiL

V.S.Mani*

* Professor, International Legal Studies, Jawaharlal Nehru University, New Delh

and member of the Indian team before the International Court of Justice. The view
expressed in this article are the personal views of the author; they do not necessaril
reflect those of the Government of India, or of other members of the Indian team.

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