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(Pakistan v. India)
Preliminary Objections
Judgment of 21 June 2000
On 21 September 1999, Pakistan instituted proceedings against India in respect of a dispute relating to the destruction, on 10 August 1999, of a Pakistani aircraft. According to Pakistan, the jurisdiction of the Court was based on Article 36, paragraphs 1 and 2, of the Statute and the declarations whereby the two Parties had recognized the compulsory jurisdiction of the Court.
On 2 November 1999, India notified the Court that it wished to raise preliminary objections as to the jurisdiction of Court. In particular India claimed that Pakistan's application did not refer to any treaty or convention in force between the two States; that Pakistan's application failed to take into consideration the reservations to the Indian declaration made under Article 36 (2) of the Statute; and that in particular, Pakistan, being a Commonwealth country, was not entitled to invoke the jurisdiction of the Court given that said declaration excluded all disputes involving India from the jurisdiction of the Court in respect of any State which is or has been a Member of the Commonwealth of Nations.
Pakistan first relied in its Memorial on Article 17 of the General Act for Pacific Settlement of International Disputes, signed at Geneva on 26 September 1928 as a basis for the jurisdiction of the Court. In this regard, the Court observed that it may leave the question open whether the General Act had been in force for India after gaining independence since India, in a communication addressed by India to the United Nations Secretary-General on 18 September 1974, had declared that India considered that it had never been party to the General Act of 1928 as an independent State. Accordingly, the Court considered that even if, arguendo, the General Act had been binding on India, the communication of 18 September 1974 was to be considered in the circumstances of the present case as having served the same legal ends as a notification of denunciation provided for in Article 45 of the Act. It followed that India, in any event, 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.
As to the declarations made by the Parties under Article 36, paragraph 2, of the Statute as an alternative basis for the exercise of jurisdiction, the Court first addressed the reservation entered into by India under which it shall not have jurisdiction as to disputes arising between members of the Commonwealth of Nations. The Court first observed that Article 36 of its Statute has never been regarded as laying down in an exhaustive manner the conditions under which declarations might be made. The Court thus considered India's Commonwealth reservation to be a valid one. Hence and given that Pakistan is a member of the Commonwealth of Nations, the Court found that it had no jurisdiction to entertain the Application under Article 36, paragraph 2, of the Statute. Accordingly, the Court considered it unnecessary to examine India's objection based on the reservation concerning multilateral treaties.
As to Article 36, paragraph 1, of the Statute, the Court observed that the United Nations Charter contained no specific provision of itself conferring compulsory jurisdiction on the Court and in particular, no such conferral may be found in Article 1, paragraph 1, Article 2, paragraphs 3 and 4, Article 33, Article 36, paragraph 3, and Article 92 of the Charter, relied on by Pakistan. Besides, the Court also observed that paragraph (i) of Article 1 of the so-called Simla Accord entered into by the two parties only represented an obligation entered into by the two States to respect the principles and purposes of the Charter in their mutual relations, and that it did not as such entail any obligation on India and Pakistan to submit their disputes to the Court. Accordingly the Court found that it had no jurisdiction to entertain the Application on the basis of Article 36, paragraph 1, of the Statute.
Judges Oda and Koroma and Judge ad hoc B.P. Jeevan Reddy entered separate opinions, while Judge Al-Khasawneh and Judge ad hoc Pirzada dissented.
