rediff.com: ICJ rejected Pak's plea on four counts

Not a single plea of Pakistan in the Atlantique downing case found favour with the International Court of Justice (ICJ) which rejected the case after accepting India's arguments that the court had no jurisdiction to hear the case.

Pakistan's contention was that since both, India and itself, had gained independence from Britain, which is party to the General Act of 1928, they were bound by this Act which provided for resolution of differences through the ICJ.

India argued that Act was no longer in force and that, even if it were, it could not be effectively invoked as a basis for the court's jurisdiction.

India contended that it had, in a letter dated September 18, 1974, to the United Nations Secretary General, declared that it "had never been a party to the General Act of 1928 as an independent state".

The ICJ, in its ruling said, "India would have ceased to be bound by the General Act of 1928 at the latest on August 16, 1979, the date on which a denunciation of the General Act under Article 45 thereof would have taken effect. India could not be regarded as party to the said Act at the date when the application in the present case was filed by Pakistan."

The court rejected Pakistan's objection to India's contention that being member of the Commonwealth it had right to add reservation clause while submitting to the jurisdiction of the international court.

"The court thus cannot accept Pakistan's argument that a reservation such as India's Commonwealth reservation may be regarded as 'extra-statutory', because it contravened Article 36, of the Statute," the ICJ said.

"Nor does the court accept Pakistan's argument that India's reservation was a discriminatory act constituting an abuse of right because the only purpose of this reservation was to prevent Pakistan from bringing an action against India before the Court," the ruling given by a 14-2 majority said.

The ICJ noted that the reservation refers generally to states which were or had been members of the Commonwealth and added 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."

The court also found no merit in the Pakistani plea that as Commonwealth has lost its relevance, India's reservation to accept the jurisdiction of the court on this count has become obsolete.

The ICJ said, "While the historical reasons for the initial appearance of the Commonwealth reservation in the declarations of certain states under the optional clause might have changed or disappeared, such considerations could not, however, prevail over the intention of a declarant state, as expressed in its actual text of its declaration."

The court said it was bound by the declarations by India since 1947 reserving four grounds under which it would not be subject to ICJ's jurisdiction.

Since Pakistan is "a member of the Commonwealth Nations", the ICJ said that "it finds it had no jurisdiction to entertain Pakistan's application under Article 36 of the statute. Hence, the court considers it unnecessary to examine India's objection based on the reservation concerning multilateral treaties..."

Referring to the Simla Accord, the ICJ said the 1972 agreement represented an obligation entered into by the two states to respect the principles and purpose of the United Nations Charter in mutual relations.

"It does not as such entail any obligation on India and Pakistan to submit their disputes to the court," it said.

However, the international court said, "Its lack of jurisdiction does not relieve the states of their obligation to settle their disputes by peaceful means. The choice of those means admittedly rests with the parties under the UN Charter."

The court reminded the parties to settle the dispute arising from the downing of the surveillance plane Atlantique in the Rann of Kutch on August 10 last year peacefully.

The judges who voted that ICJ did not have jurisdiction were President Guillaume, Vice-President Shi, Judges Oda, Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Buergenthal and Indian ad hoc judge Justice B P Jeevan Reddy.


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