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World Court Digest

III. The International Court of Justice
2. THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
2.5. Jurisdiction on the Basis of Treaties
2.5.3. Specific Treaties

¤ Aerial Incident of 10 August 1999
(Pakistan v. India)
Jurisdiction of the Court,
Judgment of 21 June 2000

[pp. ] 26. The Court would observe that the question whether the General Act of 1928 is to be regarded as a convention in force for the purposes of Article 37 of the Statute of the Court has already been raised, but not settled, in previous proceedings before the Court (see I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 348; I.C.J. Pleadings, Trial of Pakistani Prisoners of War (Pakistan v. India), p. 143; case concerning the Aegean Sea Continental Shelf (Greece v. Turkey), I.C.J. Reports 1978, Judgment of 19 December 1978, p. 17). In the present case, as recalled above, the Parties have made lengthy submissions on this question, as well as on the question whether British India was bound in 1947 by the General Act and, if so, whether India and Pakistan became parties to the Act on their accession to independence. Further, relying on its communication to the United Nations Secretary-General of 18 September 1974 and on the British India reservations of 1931, India denies that the General Act can afford a basis of jurisdiction enabling the Court to entertain a dispute between the two Parties. Clearly, if the Court were to uphold India's position on any one of these grounds, it would no longer be necessary for it to rule on the others.

As the Court pointed out in the case concerning Certain Norwegian Loans, when its jurisdiction is challenged on diverse grounds, "the Court is free to base its decision on the ground which in its judgment is more direct and conclusive" (I.C.J. Reports 1957, p. 25). Thus, in the Aegean Sea Continental Shelf case, the Court stated that:

"[a]lthough 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pronouncement of the Court as to the status of the 1928 Act, whether it were found to be a convention in force or to be no longer in force, may have implications in the relations between States other than [the Parties in the case]" (I.C.J. Reports 1978, pp. 16-17,

para. 39).

The Court went on to rule on the effect of a reservation by Greece to the General Act of 1928 without deciding the issue whether that convention was still in force. In the present case, the Court will proceed in similar fashion and begin by examining the communication addressed by India to the United Nations Secretary-General on 18 September 1974.

27. In that communication, the Minister of External Affairs of India declared the following:

"I have the honour to refer to the General Act of 26th September 1928 for the Pacific Settlement of International Disputes, which was accepted for British India by the then His Majesty's Secretary of State for India by a communication addressed to the Secretariat of the League of Nations dated 21st May 1931, and which was later revised on 15th February 1939.

The Government of India never regarded themselves as bound by the General Act of 1928 since her Independence in 1947, whether by succession or otherwise. Accordingly, India has never been and is not a party to the General Act of 1928 ever since her Independence. I write this to make our position absolutely clear on this point so that there is no doubt in any quarter."

28. 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 an 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. On 18 October 1974 the Legal Counsel of the United Nations, acting on instructions from the Secretary-General, informed the member States of the United Nations, together with Liechtenstein, San Marino and Switzerland, of India's "notification". It follows from the foregoing that India, in any event, would have ceased to be bound by the General Act of 1928 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. India cannot be regarded as party to the said Act at the date when the Application in the present case was filed by Pakistan. It follows that the Court has no jurisdiction to entertain the Application on the basis of the provisions of Article 17 of the General Act of 1928 and of Article 37 of the Statute.

[p. S.O. Oda] 12. It is important to note, however, that in the draft of the General Act judicial settlement (Chapter II) was treated differently from the cases of conciliation and arbitration, in that resort to the existing institution of the Permanent Court itself was not new. This indicates that, as far as resort to the Permanent Court is concerned, the text of the General Act added nothing new to the existing "optional clause" under the Court's Statute. Accession to the General Act under Formula A or B (covering judicial settlement) was not intended to replace acceptance of the "optional clause" or to create any obligation with respect to the Court's jurisdiction. The States parties to the Court's Statute remained free at all times to accept the "optional clause" under the Statute. As far as the compulsory reference of disputes to the Permanent Court is concerned, the General Act did not have any real effect and cannot be considered to impose a new obligation upon those States which acceded to it or to modify the Court's jurisdiction which the States had previously accepted. In other words, the General Act, in its part dealing with judicial settlement (Chapter II), was not intended to replace or be a substitute for Article 36, paragraphs 1 and 2, as a basis for the Court's jurisdiction.