INTERNATICOURTOF JUSIICE
PLWINGSORAL ARGUMENTS, DOCUMENTS
APPEALRELATINGTOTHE
JURISDICTION
OFTHE ICA0 COUNCIL
(INDvPAKISTAN)
COUR IN'îERNATi0NAL.BDE JUSiïCIi
&MOIRES, PLAIDOIRIESET DOCUMENTS
APPEL CONCERNANT LA
COMPETENCE
DU CONSEIL DE L'OACI
(INePAKISTAN) 25
MEMORIAL SUBMITTED BY THE
GOVERNMENTOFINDIA
CHAPTER I
STATEMENT OF THE CASE
On 30 August 1971, the Government of India (hereinafter sometimes re-
ferred ta as "the Applicant"submitted to the International Court of Justice
an Application on behalfof the Applicantpealing froni the decision rendered
on 29 Julv 1971 bv the Council of the International Civil Aviation Oreani-
ïation ("the ~ounc~il".) In ;iciordance with the reqiiiretnents of Article 67-read
u.ith paragraph 2 of Arti32eof the Kule~of Court. the Application containcd
a orecise statement of the erounds of obiection Io the decision coniolained
oc stated the precise nature-of the clairn and gave a succinct staterneni of the
facts andgrounds on which theclaim was based.In support of that Application,
and asreauired bv the Rules of Court hereinabovecited. the A~~licantsubmits
its ~emorial in accordance with the decision of the Acting piesident of the
Coun rendered on 3 December 1971and within the time-limit fixed therein.
2. The decision' of the Council against which this appeal has been sub-
mitted was rendered on 29 July 1971 on the Preliminary Objections dated
28 May 1971 raised by lndia in the Application of the Government of
Pakistan (hereinaftersometimes referred to as "the Respondent") dated
3 March 1971 filed under Article 2 of the Rules for the Settlement of Differ-
ences approved by the Coiincil on 9 April 1957 (''the Council's Rules")',
and in the Complaint of the Respondent dated 3 March 1971 filed under
Article 21 of the Council's Rules. '.
1SeeAnnex E, pp. 267-269infra.
2 SeeAnnex A, p. 63, inh.
3For text of the Council's Rules.seeAnnex J, p. 330,infi.
4SeeAnnex B,p. 92,infia. CHAPTER II
SUBJECT OF THE DISPUTE
3. in the Aoolication and the Comolaint Pakistan claimed that under the
Convention oi'1nternational Civil ~Aation, 1944' ("the Convention"), and
the International Air Services Transit Agreement, 19M2 ("the Transit Agree-
ment"). Pakistan aircraft had the richt io overfiv lndia and to make stoÜsin
lndia for non-traffic purposes. The ;ame suhstantial reliefs were claiméd in
both the Application and the Cornplaint. India's case was that the Convention
and the ~risit Ameement were Susoended. as between India and Pakistan.
wholly or in any Gent in relation to overflights and landings for non-traffic
purposes. India raised Preliminary Objections and submitled, inter olia, that
since the Council's iurisdiction was limited to disoutes relatin~ to "inter-
pretation" or "appli&tion9' of the two treaties, the ~ouncil had ngjurisdiction
since the disagreement between lndia and Pakistan related to suspension of
the treaties.
4. The Council, in its said decision rendered on 29 July 1971, rejected the
Applicant's Preliminary Objections. This appeal of the Applicant questions the
validitv of that decision both with reeard to its material conclusions as well
ai uiih rcgurd to the manner in uhich Chatdecision was reached by the Council.
S.The suhjcci of ihe dispute in this appeirl relates to thejurisdiciiun of ihe
Council to handle the matters oresented bv Pakistan's Aoolication and Com-
plaint, and raises the principal question whether a dispute relating to the
termination or suspension of a treaty can be regarded as a dispute relating to
its "interpretation" or "application", and whether suspension of a treaty can
be regarded as "action under" the treaty.
6. A certitîed copy of the Council's decision complained of was attached to
the Application of the Applicant. The other useful and relevant material having
a bearing on the Council's decision is incorporated in or attached to this
Memorial.
1 For text of the Conventionsec AnnexH, p. 299, infia.
2 For text of the TransitAgreement.secAnnex 1,p. 327,inh. CHAPTER 111
JURISDICTION OF THE COURT
7. The Applicant founds the jurisdiction of the Court on the following
provisions :
Article 84 of the Convention which runs as follows:
"CHAPTER XVlll
Disputes and Defaults
Article 84
Settlen~entof disputes
If any disagreement between two or more contracting Statesrelating to
theinteroretation or aoolication of thisconvention and itsAnnexes cannot
bcsettled by negotiati&, it shall.on thcapplicationofany Stateconccrned
in the disagreement. bcdccided by the Council. No memkr of the Counol
shall vote in the consideration bv the Council of any dispute to which it
is a Party. Any contracting tat te-ma syb,ject togicle-85, appeal from
the decision of the Council to an ad hoc arbitral tribunal agreed upon
with the other oarties to the disoute or to the Permanent Court of Inter-
national ~usti&. Any such apical shallbe notified Io the Council within
sixty days of receipt of notification of theision of the Council."
Article II of the Transit Agreement which runs as follows:
"Secrion 1
A contracting State which deems that action by another contracting
State under this Agreement is causing injustice or hardship to il.may
request theCouncil to examine the situation. The Council shall thereupon
inquire into the matter, and shall cal1 the States concerned into con-
sultation. Shouldsuch consultation fail to resolve thedifficulty, the Council
may make appropriate findings and recommendations to the contracting
States concerned. If thereafter a contracting State concerned shall in the
opinion of the Council unreasonably fail 10 take suitable corrective ac-
tion. the Council mav recommend to the Assembly of the above-men-
lionid Organization ihaÏ such contracting State he suspcnded from 11s
rights and privileges under this Agreement until such action has been
taken. ~he ~ssemblv, , a two-thirds vote mavso susoend suchcontractinn
State for such period of time as it may deem propei Oruntil the ~ounciï
shall find that corrective action has been taken by such State.
section 2
If any disagreement between twn or mnrecontracting States relating to
the interpretationor application of this Agreement cannot be settled by
negotiatinn, the provisions of Chapter XVIII of the above-mentioned
Convention shall be applicable in the same manner as provided therein
with reference to any disagreement relating to the interpretation or ap-
~licatinn of the above-mentioned Convention." Articles 36 and 37 of the Statute of the Interirational Court of Justice which
riin as follows:
"Article 36
1. The jurisdiction of the Court comprises al1caseswhiçh the parties
refcr to it and al1 matiers s~ecially orovided for in the Charter of the
. .
United Nations or in ireîtics and c~~ni~eniionisn force
2. Tl~sStdtespnriies to the preient St;~tuiem3y 31an). iimc dc~lare thai
iticy rerogn17ea\ compulsi>r> ;p.w /;,CI,;tiiJuilhoui .pccial ïprccmc'ni.
in rclation Io dny oihcr Stateacccpiing the sameoblig~tion, thejurisdiiiion
i>ItheC<iuri in aII lcgal di$puic$ concerniny.
(O) the interpretation ofa treaty;
(6) any question of international law;
(c) the existence of any Pactwhich, if established, would constitute a
breach of an international obligation;
(d) the nature or extent of the repardtioii to be niade for the breachof
an international obligation.
3. 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.
4. Such declarations shall be deposited with the Secretary-General of
the United Nations, who shall transmit copiesthereofto the parties to the
Statute and to the Reeistrar of the Court.
5. Declarations niade under Article 36 of the Statute of the Permanent
Court of International Justice and wliich are still in force shall be deerned,
as beiween the parties to the present Statute, Io be acceptancesof the
compulsory jurisdiction of the international Court of Justice for the
period \\,hich ihey still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court hasjurisdiction,
thc niatter shall be seitled by the decision of the Court.
Arliclr 37
Whenever a treaty or convention in force provides for reference of a
niatter to a tribunal to have been instituted by thc League of Nations,
or to the Permanent Court of International Justice. the rnatter shall,
as between the parties IO the present Statute. be referred Io the Interna-
tional Court of Jiisiice." CHAPTER 1V
HISTORY AND BACKGROUND OF THE DISPUTE
8. The An~licant is not dealine in this Aooeal with the merits of the Annli-
;at.on and ;lie C<>iiipl.iint nudcb) l3dkiita"'kfore the Couiicil. but is str~i!tl)
~anfining it,elfIO its Preliminary 0bje.-iions to the conipctencc and iiialntain-
abilit, of Pakist~n's A~oiic.iii~in and Comnlaiiit. the Iimitr of the C~uncils
jurisdiction and the reaions why the decis/on passed by the Counçil on the
question of ils jurisdiction should be regarded as erroneous.
A. Material Provisions of the Convention and the Transit Agreement
9. lndia and Pakistan are parties to the Convention. The right of a State's
aircraft, not engaged in scheduled international air services,to overfly or make
non-trafic stops in the territories of other States without the necessity of
obtaining prior permission, is conferred by Article 5 of the Convention in the
following words:
"Each contracting State agreesthat al1aircraft of the other contracting
States. being aircraft not engaged in scheduled international air services
shall have the right, subject to the observance of the terms of this Con-
vention, to make flights into or in transit non-stop across ifs territory and
to make stops for non-traffic purposes without the necesiity of obtaining
prior permission, and subject to the right of the State flown over to require
landing."
10. lndia and Pakistan are parties to the Transit Agreernent. Article I of the
Transit Agreement confers similar privileges, in respect of scheduled inter-
national air services, to overfly or make non-traffic stops in the territories of
other States, and its material portion runs as follows:
"Section I
Each conlracting State grants to the otherconlracting Statesthe follow-
ing freedoms of the air in respect of scheduled international air services:
(1) The privilege to fly ac;oss its territory withoutlanding;
(2) The privilege to land for non-traffic purposes.
Section 2
The exercise of the foregoing privileges shall be in accordance with the
provisions of the lnterini Agreement on International CivilAviation and,
when itcomes into force, with the provisions of the Convention on Inter-
national Civil Aviation, bofh drawn up ai Chicago on Decemkr 7, 1944."
B. The Air Services Agreementof 1948
II. India and Pakistan entered into the Air Services Agreement ' dated
23 June 1948. Itwas a bilateral treaty between the two countries, and il dealt
with the right lo overfly each other's territory and to make stops in each other's
territory fortrafic as well as non-trafic purposes.
' For the tex1of the Air ServicesAgreementof 1948,seeAnnex C, p. 110,infra. C. Military Hostilities and Suspensionof the Convention and the Transit
Agreement in 1965
12. Pakistan made an arrned attack against lndia on a large scale in August/
Se~leniber 1965.As a result of the militarv hostilities. the Air Services Agree-
mént of 1948 was suspended. The convention and the Transit ~greement as
between the two States were also suspended, wholly or in any event in relation
10 overfliehts and landines for non-trafic Durnoses.Conseuuentlv. no Pakistan
aircraft, whetherengagedor not engaged inscheduled inter"atioG1 air services,
was pcrmitted to overlîy lndia or make any stop for traffic or non-trafic
purposeswithin India. The Applicant issued a Notification ' dated 6 September
1965under the appropriate law of Lndia. whereby ifdirected that "no aircraft
registered in Pakistan, or belonging to or operated by the Government of
Pakistan or persons who are nationals of Pakistan, shall be flown over any
portion of India".
D. lrrelevant to Consider whether Susriensionwas Total or Partial
13. The;ùrrc;t po,iti(~niii1.1~as suhmitted in 5 subsequrnt Chaprer. is that
for the piirpuse ,if considering the question of the Coiincil', jurisdiction it is
~rrelekant ii>de:ide ivhethr.r.i<betueen Indiü and I'akistan. the Convention and
the Transit Agreement weie terminated, or wholly suspended, or partially
suspended, i.e., suspended in relation to oveflights and landings for non-
traffic purposes. The essenceof Pakistan's Application and Complaint is ils
alleged right under the two treaties to overRy lndian territory. The crucial
point is that in any view of the matter, the Convention and the Transit Agree-
inent. as between lndia and Pakistan, have remained suspended since 1965, al
least in relation to overflights and landings for non-traffic purposes. Even
assuming the two treaties were suspendedonly partially. as between lndia and
Pakisian.,i~,.. in relation to overfliehts or landines for non-traffic Durnoses.the
Council would still have no jurisdyction, for reGons explained &loi, to con-
sider tlie iiiatters uresented by Pakistan's Auplication and Complaint. There-
fore, in the following pages of this ~emori=l[references are made only to the
suspension of the two treaties, as betsveenIndia and Pakistan, without raising
the question whether the suspension was total or partiai.
E. No Revival of Convention or Transit Agreement at any Time after 1965
14. The Air Services Agreement of 1948, which was suspended in 1965 as
aforesdid. kas never been revived. Since 1965the airlines of Pakistan have never
operatedwithin India and the airlines of lndia have never operated within
Pakistan; the traffic between the two countriescontinues to be handled only by
third countrv airlines until this date.
15. ~ikewise, at no lime alter September 1965 was the Convention or the
Transit Agreement revived at ail, as between India and Pakistan. The Con-
vention and the Transit Agreement have continued 10 be under suspension, as
betwecn lndia and Pakistan, since 1965.
F. Cessation of Armed Hostilities
16. Ariiied hostilities ceasedon 22 September 1965.On 10January 1966the
Prinie Minister of lndia and the President of Pakistan signed the Tashkent
Declaration ?whereby they declared "their firm resolve IO restore normal and
SeeAnnex C, p. 120.infra.
2 SeeAnnex O, p. 352,infra.peaceful relations between their countries and 10 proinote understanding be-
tween their peoples"'. They also agreed "10 consider measures towards the
restoration of economic and trade relations, commuiiications, as well as
cultural exchangesbetween Lndia and Pakistan,and takemeasures toimplement
the existing agreements between Lndia and PakistanW2.They further agreed "ta
discuss the return of properties and assets taken over by either side in con-
nection with the conflict"'.
17. In response to the desire expressed by the President of Pakistan for the
early resumption of overflights of Pakistan and lndian aircraft over each
other's territory, Mrs. lndira Gandhi, the Prime Minister of India, wrote a
letter4 dated 3 Fehruary 1966 to the President of Pakistan. in which sbe ex-
pressed her willingness to agree "to an immediate resumption of overflights
across each other's territory on the same basis as that prior 10 1st August
1965". The President of Pakistan. by his reply dated 7 February 1966,agreed
to such resumption of overflights.
G. Special Agreement of 1966
18. The general understanding of the two Governments with regard 10 the
resumption of oveflights was as follows:
(1) The overflights of Indian and Pakistan aircraft across each other's
territory was ro be on the sanie "basis" as that prior Io t August 1965.
This "basis" related to the fixing of routes, procedures for operating
permission, etc.
(2) The resumption was limited ta overflights across each other's territory.
It did no1 include the right to land in each other's territory, for traffic
or non-traffic purposes.
(3) The resumption of overfights was agreed to on a bkisisof reciprocity.
(4) The resuinption of overflights was ta be on a provisional basis.
Signalsi were exchanged establishing the aforesaid understanding between
the two countries regardinp overflights.
19. In terms of theabove understandinp. in February 1966a new concession
to overfly each other's territorywasgranGd (a) on a provisional basis,(h) on
the basis of reciprocity, and (r) subject to the permission of thc Government
concerned. Under the statutory law of lndia the Applicant issued a Notifi-
cation dated 10 February 1966 amending the aforesaid earlier Notification
dated 6 September 1965, so lhat the amended Order of the Applicant now
reads as follows-
". . no aircraft registered in Pakistan. or belonging 10or opcralrd by the
Governnient of ~aiistan or personswho are nationals of Pakistan, shall be
flown over any portion of lndia except with the permission of the Central
Government and in accordance with the terms and conditions of such
permission".
The aforesaid agreement between the two countries relatiiig to the newly
conferred concession as regards overtlying each other's territory, is hereinafter
referred to as "the special Agreement of 1966". 20. The niaterial features of the Convention and the Transit Agreement are
the two cumulative rights-
(i) to overfly, nnd
(ii)to land for non-traffic purposes,
both wirhourthe necessitv of obtaininp-.orior oerinission of the Government of
the uther Siaie. Neither ;f thcse iuo rights uiis rebtored. as betueen India and
Pakistan. ai any timc after Septembcr 1965. Undcr the Special Agrremeni of
1966 overfl, ~ ~ Us oermittedonlv with the oermission of the Government of
lndia (or Pakistan, is the case may bej and in accordance with the terms and
conditions of such permission. The right 10 land for traffic or non-iraffic
purposes was not revived at al1in any form; and was not covered by the Special
Agreement of 1966. Pakistan had to seek India's specialad hoc permission in
case any Pakistan aircraft wanted to land in India for non-traffic purposes.
Thus. the Soecial Aereement of 1966 and the oractice of the Iwo countries
afier ihat d.;ir~u.creholi isonsisicnt with ih; Con\cnii<in and the Transit
Agreenient. and lea\e no doubt a.hïie\.cr thai ihoçe tuo tre3ties ahich had becn
suspended in 1965,were not revived as between lndia and Pakistan.
H. hormalcy no1Kcrtorcd-l'akislan's Popturc of Confrontalion
Rordering on Hostility to~ards lndia
21. The Applicant agreed to the resumption of overflights under the Special
Anreement of 1966in the hooe that the Tashkcnt Deciaration would bescruou-
loisly adhered to, assetsand properties seized during the armed conflict would
be restored, and normal relations would be established.
22. The hooe of normalization of relations between India and Pakistan and
.
the resioraiion of the stiitus quuunre the armed conflici. unfuriunaiely did no1
mÿterialize. Normalcy uds no1established and has nui ken est~blished iip Io
date. Desoite several eesturesofrood will and several unilateral actions on the
part of the Governmenr of ~ndia to establish normalcy, Pakistan did not
reciprocate. For example, lndia unilaterally lifted the embargo on trade on
27 May 1966, and invited Pakistan to do likewise. Till now, Pakistan has not
reciprocated. On 27 June 1966, lndia unilaterally decided to releaseal1cargoes
seized during the conllict except military contraband. lndia also proposed to
exchanre seized orooerties on 26 March 1966.reoeated the gesture on 25 April
and 28~ecembe; 1966,and on several occasi~n;thereafter.-~he only response
from Pakistan was to start auctioning the vast and valuable lndian properties
seized by them durinn the conflict and aoorooriate the ~roceeds to their
~ational~reasury,-al'l in violation of the iashként ~eclaraiion. lndia offered
to increase cultural exchanges, liberalize visa procedures, establish bilateral
machinery for settling mutual problems,-al1 without receiving any positive
response.
23. From 1966onwards Pakistan has continued its policy of confrontation
bordering on hostility against India, some instances of which are listed here-
under:
(1) Confiscation of alt properties of lndian citizens and of the Government of
lndia in Pakistan. These remain confiscated to this day.
(2) Confiscation of al1 lndian river boats on East Bengal rivers which are an
essential life line for the transport of the prodiice of Eastern lndia to the
port of Calculta.
(3) The continued ban on passage of lndian boats and steamers on rivers,
streams or waterways of East Bengal.
(4) Continued ban on trade and commerce with India.(5) Continued ban on civil air flights. railway and road communications be-
tween the two countries.
(6) Continued ban on entry into Pakistan of lndian newspapers, books, maga-
zines. etc.. printed or published in Lndia.
(7) ~ontinucd~s~irtsncc ~~ithdrnis.amniuniliun and triiin:ng, tu rcbclclcnienti
in areas of Eastern India.
(.. Continued attemoti Io fiimcnt. throurh -abotare a-d infiltration. di,tur-
bances in ~ammu.and ~ashmir.
(9) Intensive hate-propaganda against lndia on the Radio and in the Press,
which continues unabated to this day.
24. Pakistan's aforesaid attitude and policy, and the absence of normal re-
lations between lndia and Pakistan since 1966. were responsible for the non-
revival of the Convention and the Transit Agreement as between the two
countries and for th6 non-revival of the Air Services Agreement of 1948. No
air traffic between Lndia and Pakistan on their own airlines was ever resumed:
as aforesaid the air traffic between the two countries continues to be carried
only by international airlines of third countries.
1. Hijacking of lndian Plane and Withdrawal ofPermission to Pakistan
Aircraft to Overfly India
25. The Soecial Aereement of 1966 continued to be in ooeration. both in
law and in piactice. til4 February 1971.On that date. the ~iplicant withdrew
the permission to Pakistan aircraft Io overiiy India. as the Applicant had the
right 10do under the SpecialAgreement of 1966.This action ofthe Applicant
constituted the subject-matter of Pakistan's Application and Complaint before
the Council.
26. The Applicant hadthe fullest justification for withdrawing the permission
to Pakistan aircraft to overfly India. lt is not necessary or relevant in this
appeal to set out the factual and legal justification for the Applicant's aclion
on 4 February 1971: the Council itself had no jurisdiction to go into this
question of justification. However, it is thought desirable to set out some of the
salient facts of the case whicli constituted the background for the dispute
raised bv Pakistan before the Council.
27. ~hat led the Applicant to withdraw. on 4 February 1971, the perniission
to Pakistan aircraft to overfly lndia was the conduct of the Respondent in
relation to the hijacking of an lndian aircraft. The Respondent's conduct was
rnost reprehensible and amounted to the very negation of al1 the aims and
objectives, the scheme and provisions. of the Convention and the Transit
Agreement '.It amounted to a flagrant violation of international obligations
relating to the assurance of safety of air travel. enjoined by the Convention
and the Transit Agreement and also by the Convention on Onences and
Certain Other Acts Committed on Board Aircraft, 1963 ("the Tokyo Con-
vention"), the Convention for the Suppression of Unlawful Seizure of Aircraft,
1970' ("the Hague Convention"). and other solemn instruments and resolu-
rions adopted by the ICAO, the United Nations General Assembly and
Security Council. to which the RcSpondent subscribes'.
' 11is exprersly stated by Section 2 or Article 1 of the Transit Agreenlcnt that
exercise or the privilegesconferred by thal Agreement shall be in accordancewith
the provisions of the Convention.
2 For text,seeAnnex Q, p. 356.infra.
3 For text, seeAnnex R, p.363, infie.
4 For texts of somerelevantresolutions,seeAnnexesK and L, pp. 340346, infra.28. The facts regarding the hijacking incident are summarized below:
(a) An lndian Airlines Fokker Friendship aircraft on a scheduled flight
from Srinaear to Jammu with 28 oasseneers and 4 crew on board
was hijacke-d hy two persons amoig the iassengers and diverted at
gun point to Lahore in Pakistan shortlyafter noon on 30January 1971.
one of the two hijackers had a grenade in his hand and tbreatened
to use it if the plane was not diverted to Lahore, while the other
pointed his revolver at the pilot.
Ib) The Government of lndia reouested the Pakistan Government the
same afternoon at Islamabad and through their High Commissioner
in New Delhi, lor the immediate release of the passengen, crew,
cargo, baggage and mail as well as the aircraft. The ~akistan Govern-
ment informed the Acting High Commissioner of India in Isla-
mabad the same afternoon of its decision to allow the plane, crew
and oasseneers to Rv hack to India.
(c)The 'lndian-civil ~Giation authorities and the Government of lndia
informed the Government of Pakistan on the morning of 31 January
about a relief olane beine readv to take off for Lahore. toeether with
spare crew, 1; bring bac?<the-passengers, crew, cargo, b&gage and
mail as wellas the hijacked aircraft as soon as the Pakistan authorities
-ave the necessarv clearance. Permission was niven bv the Director-
General of Civil Aviation of Pakistan the samemorning for the relief
aircraft to leave, but this was rendered infructuous by further instruc-
tions from the Pakistan authorities ihat the relief plane should not
take off until further specificinstructions from the D.G.C.A., Pakistan.
Such permission was repeatedly deferred, in spite of numerous re-
mindersfrom the D.G.C.A.. India. The Ministers for Exfernal Affairs
and Civil Aviation of lndia'sent messages on I February 1971 to the
Minister of Home Affairs and the Minister-in-Charge of CivilAviation
res~ectivelv in Pakistan. reauestine the immediate return of the oas-
seigers and clearance fo'rthe relief;aircraft to bring back the hijaiked
aircraft along with the baggage, cargo and mail. The Pakistan High
Commission in lndia consistently refused to issue visas to the crew of
the relief aircraft and the spare crew.
(d) Pakistan took more than 48 hours to send the passengers and crew
by road to the lndian border at Hussainiwala at 15.00 hours (IST)
on 1 Fehruary 1971, though the distance from Lahore to Hussaini-
wala is only 36 miles. They were not allowed to bring their baggage.
The Government of lndia had earlier made arrangements for their
return to India on board a scheduled Ariana Afghan Airlines Service
from Kabul to Amritsar, which landed at Lahore Airport at 23.00
hours (IST) on 31 January 1971; but though a large nurnber of
passengers disembarked and 30 passengen were boarded on that
aircraft at Lahore, the authorities in Pakistan said that they could
not make arrangements to board the passengers and crew of the
hijacked Indian aircraft on this plane because of the alleged presence
of crowds at the airport.
(e) The Government of Pakistan not only failed to return the two pemns
who had hijacked the aircraft but announced that they had been
given asylum in Pakistan. This was done even without first disarming
them and taking them into custody for their criminal acts. On the
other hand, they were treated as heroes and were freely permitted to visit, by turns, the terminal building at Lahore Airport, to put long-
distance calls to their accomnlices and friends in Pakistan and meet
various people. besider be~n~'~rovidedwith food and othcr an,enit!es
which enabled them Io continue their w-~d11edoccupation uf the
aircraft for 3+ days. This was allowed to happen on the apron of
the internationalairport at Lahore, in full view of the authoritiei,
troops and police there, who look no action to make them vacate
the hijacked aircraft.
(1 )inally at about 20.30 hours (IST) on 2 Febmary 1971 these two
criminals were allowed to blow up the hijacked lndian aircraft and
even to nrevent the fire briaade from ~uttina out the fire until the
aircraft hadken totally destroyed. This tookplace in full view,of the
airport authorities, troops and police at the Lahore Airport, which is
a protected area, and ai a lime when Martial Law was (as it still is)
in force in Pakistan. The Lahore TV also televized the destruction of
the aircraft on a special programme and it was made to appear as
if the event was an occasion for celebration. The lime extended for
the televisionrogramme was clear proof ihat ihc Pdkisiïn auihor~ties
knew ihc plan5 of the hijdckers and connived ai the destruction of the
aircraft This further criminal dct of de\truvinr the air~rafi occurred
only a few hours after the Pakistan High ~onÜnissioner in Lndiahad
assured the Government of Lndia that his Government were com-
mitted to, and were taking al1necessary measures for, the safereturn
of the aircraft.
(g) The Government of lndia informed the Preîident of the International
Civil Aviation Oraanization Council on 4 Februarv 1971 about the
hijacking of the lidian Aircraft, and later about itsdestructiIt is
understood that the President of the ICA0 Council sent the following
message to Pakistan:
"Regarding unlawful seizure lndian Airlines aircraft confident Pa-
kistan acting in accordance with ICA0 Assembly Resolution A-17-5
has permitted or will permit aircraft occupants and cargo con-
tinue journey immediately. Would appreciate your information
r~-~rdin-~.resent situation. Am also verv concerned bv. .ssibilitv
proliferation hijackings in that part of the world unless ievere mea-
sures taken. Therefore trust Pakistanwill follow Assembly Decla-
ration A-17-1 and prosecute perpetrators so as to deter repetition
similar acts."
The Government of lndia are not aware ofthe response given by
Pakistan to this communication. In fact, Pakistan neither permit-
ted the aircraft, with passengers and cargo, to continue the journey
immediately, nor returned the hijackers to India, nor proiecuted
nor punished them in Pakistan.
(h) The Government of lndia had, as far back as I September 1970,
~~~~-~~~~~~e~Pakistan Hieh Commissioner in Lndia. that certain
subversive elements in ~akistan were conspiring to hijack Indian
aircraft and that there was definite information about a possible
attemox to hiiack an lndian aircraft to Pakistan. and had reauested
the Government of Pakistan to take adequate steps to prevent this.
There was no response from the Government of Pakistan except the
strange request from their High Commissioner to disclose the source
from which the Government of India had obtained this inforniation. In soite of their being forewarned. the Government of Pakistan do
not appear to have taken any steps; on the contrary, from the state-
ments made in Pakistan, it appears that the plan to hijack the lndian
aircraft was in fact hatched in Pakistan by persons whose protes-
- tations were officially supported by the Government of Pakistan.
29. The Applicant was greatly perturbed over the hijacking of their aircraft
in Pakistan and the unwillingness of the Respondent to come to theassistance
of the innocent pasiengers and crew, to restore the possession of the aircraft
to ils commander, Io allow the passengers and the crew ta continue their
journey promptly Io India, to investigate into the act of hijacking and Io take
the hijackers into custody, and to Savethe aircraft. cargo. mail and property
from king destroyed at the hands of the hijackers. The plane was blown up on
the evening of 2 February 1971. The Applicant addressed a note Io the Res-
pondent on 3 Februarv 1971'. The Aoolicant stronF.1~~rotested aeainst the
conduct of the esp ponde inntrelation to the hijaiking incident; claimed
damages for the destroyed aircraft, cargo, baggage and mail. and for the loss
resultinn from the detention of the aircÏaft in Pakistan. When no positive and
satisfacÏory response was made by the Reipondent, the ~~~licant decided
on 4 February 1971 "to suspend, with immediate effect, the overîiight of al1
Pakistani aircraft. civil or military, over the territory of lndia";and sent a
Note to this efiect to the Respondent. The Applicant forthwith suspended
the overflight of ils own aircraft over Pakistan territory in view of the present
and imminent danser tocivil aviation created bv theconduct of the Re~oondent.
30. Even assumTngit is held that the onv ven atniotne Transit ~greement
were in force in February 1971 as between lndia and Pakistan. the Applicant
submits that it had the rinht to susoend them unilaterallv. and it should be
regardedas ha~in~suspendedthcm iin'ilater~ll).on thcprinci'plesof ~ntcrnition~l
Iûir uhich are discu>scd in the nçxt Chaptcr. on nccounl of matcriol brelich
of the treaties bv the Resoondent. Reciorocitv is of the essenceof the Conven-
tion and the ~rÿnsii gréemen Tthe conduit of the Respondent made ilin,-
possible for lndian aircraft IO overfly Pakistan. Thar country had shown no
regard for the most elementary notions of safety in civil aviation, and had
made it impossible for the Applicant to enjoy ils rights under the Convention,
and ifs privileges under the Transit Agreement, over Pakistan territory.
Pakistan's theoretically ~ermittine lndian aircraft to overflv Pakistan was. in
the content of the facis staied above, a mockery of the principles underlying,
and the provisions einbodied in, the Convention and the Transit Agreement.
In the circunistances. the Apoiicant submits that it had comolete iustification
for suspending the ~onventiin and the Transit Agreement 4s-&-vis Pakistan.
The Applicant does not set out here the full facts concerning justification,
since, as stated above. the question of iustification for termination or suspen-
sion of the Convention or the Transit Agreement is not within the scope of the
Council's jurisdiction and does not srise as an issue in this appeal.
31. That actr of the nature committed bv the Respondent constitute a
threat to safety and security of international civil air lransport and amount to
material breach of obligations of a contracting State under the Convention as
well as under bilateral agreements,has ken brought out clearly by the Paper3
'The tex1 of tliis noas wellas of sorneof the other correspondenccexchanged
betweenthe Applicant and the Respondent isconiained in Aitachment "C" 10 the
Mernorial of the Respondent dated 3 March 1971filed before the Council. See
Annex A. p. 77, infra.
2 SeeAnnex A, p. 78, infra.
3 SeeAnnex M, p.347,infra.on "Legal Rationale for Suspension of Service under Bilateral Aviation Agree-
ments Pursuant to the United States Resolution before the ICA0 Council"
prepared by the Go\ernment of the United States in conneciion with the ICA0
Council Resolution of I Octokr 1970' The Uniied States I'aper expresses the
view that in such circumstances bilateral agreementscould be suspended by the
innocent party against the party in default.-what applies to bilateral agreements
would equally apply to multilateral agreements.
J. Conclusion
32. (i) From 1965 up ta date the Convention and the Transit Agreement
have remained suspended as between lndia and Pakistan: and the
Air Services Agreement of 1948has also remained suspended since
that date.
(ii) The only agreement in force between the Applicant and the Re-
spondent in 1971was the Special Agreement of 1966which related
merely to overliights with the permission of the Government
concerned.
(iii) The Special Agreement of 1966 was a provisional one and was on
the basis of reciprocity, and entitled either Stateto revoke its per-
mission at any lime.
(iv) On 4 February 1971 the Applicant withdrew the permission to
Pakistan aircraftto ovedy India. The said withdrawal of permission
was in exercise of the power expressly reserved ta the Applicant
under the Special Agreement of 1966and was fully justified by the
letter and spirit, the terms and provisions, of that Agreement.
(v) Even if the Convention and the Transit Agreement had been in force
in Fe- - ~ ~1971. the Aooli..nt had the rieht I- sus~end t.em
unilaterally on principles of international law which are discussed
in the next Cha~ter; and the suspension of the two treaties by the
Applicant would have been justified, having regard to the circum-
stances of the case since September 1965 and the conduct of the
Resmndent set out above.
1 See Annex K, p. 344,infia. CHAPTER V
INTERNATIONAL LAW RELATING TO TERMINATION
OR SUSPENSION OF MULTILATERAL TREATIES
33. IntcrnlitionliIaw recognlzcr various modes of tcrmination or suspension
oftreaiies. tlrolidly, the>cclin heclaisitied inio thrcc categories: (1) terrnination
or suspension in accordance with the provisions of the treaty in question, (2)
termination or suspension by agreement between the parties 10the treaty, and
(3) terrnination or suspension in accordance with the rules of general interna-
tional law. In the third category would be included caseslike terrnination or
suspension of a treaty upon the-outbreak of hostilities; unilateraltermination
or suspension of a treaty on account of material breach by the other party of
ils obligations under the treaty ~rovisions; terininaiion or suspension iustified
bv.sun.rvenine -~~os.ibilitv .f'n~7~~rmance. .fund~mental chanee -~circu~-
stances, or conflict with an existing or new peremptory normof international
law. The substantive law on the subiect lias. Io a larae extent, been codified in
Part V of the Vienna Convention on the Law of ~rLties, 1969.
34. When a question relating to the termination or suspension of a treaty
arises. the treatv itself rnay be luoked al first. But on the points that the treaty
does no1cover,.it will have 10 be supplcmcnted by the rules of general interna-
tional law. Thus, even if a treaty is silent on the question of ils temination or
suspension in certain circunistance?, thal would not make the treaty a perpefual
treaty. The treaty can be terminated or suspended iii accordance with the rules
of general international law.
35. The caseof lndia is that there was no revival of the Convention or the
Transit Agreement, at any tiine alter their suspension in September 1965 as
between lndia and Pakistan. First. such revival could no1 be automatic but
could only be by agreenient bctw~cn the two States, and there was no such
agreement betueen India and Pakistan. Sccondly, and in any view of the matter,
the doctrine of autoniatic revival niust be rulcd out where the two States
expressly enter into a spccial agrcciiient which is niaterially inconsistent with
the earlier treaties and which. therefore. negaiives aiiy questionof revivalof the
earlier treaties. The Special Agreement of 1966between lndia and Pakistan was
such an agreenient.
36. If for any reason the Court were to hold that the Convention and the
Transit Agreement were in force as betwccn the Applicant and the Respondent
on 4 February 1971, the Applicant siibniits that in that event the suspension
bv the A~olicant of the treaties and of overflinhts of Pakistan aircraft over
lridian ic;r'!ioly \ras I;r\rful and jiisiriiiihe Giniiplc that an inno~.cnipari)
hw ille righi lit\iispcnil iinlatcr~ll)a iiiuli~l:iicrsl trcdty un sccount of ils
material breach bv thc other na.tv .
37. As 18unilsirr21 Icrni.nii.on or ;~>pcn%.'on <,Idn1uliil;~icral ire3iy duc io
~ll~tcrialhre;~clt(1is n,>inc<c\;ar! i,,r tlw App11c;tittclcd1c\lcns~\cl! uith th,>
lcral i>riiiciplc tilcu of thc faa Ili31I~C \.~IIIJ.I\ i>f ihls prinrinle ha, becn
recognized by the International Court of Justice i'its~dvi&ry opinioii given
in the Nanribio caseon 21 June 1971.The Court held:
"The rules laid down by the Vienna Convention on the Law of Treaties
conccriiing termination of a treaty relationship on account of breach (adopted without a dissenting vote) may in many respects be considered as
a codification of existinn customarv law on the subiect. In the light of these
rules, only a material b;each of aireaty justifies tirmination, Euchbreach
king defined as:
'(O) a repudiation of the treaty not sanctioned by the present Convention;
o~~
(b) the violation of a provision essential to the accomplishment of the
object or purpose of the treaty' (Article 60, para. 3).
................................
The silence of a treaty as to the existence of such a right cannot be
interpreted as implying th; ehclusion ifii right ivhich lias ilsour rie out si de
of the treïty, in general intern~tional IIW. .ind is JepenJrnt on the occur-
rence of circumstances which are not normally envisagedwhen a treaty is
concluded '."
38. Further the Court observed that to contend that the revocation of the
Mandatecould onlv take lace with the concurrence of the Mandatory (which
in the present case-would irnply that the suspension of a multilateral trealy
could take place only with the concurrence of the other party concerned)-
". ..would not only run contrary Io the general principle of law governing
termination on auiount of breach, but also postulate an impossibility.
Forobvious reasons,the consent of theurongdoer to such a form of ter-
rnination cannot be requiredZ".
39. II might be added that Mr. Sharifuddin Pirzada,Counsel for Pakisian,
appearing in the Nonrihia case, also referred to Article 60 of the Vienn:~Con-
vention on the Law of Treaties, 1969,which, he said, "Io a large extent codifies
the customary law lx'.
40. Article 60 of the Vienna Convention on the Law of Treaties, 1969.reads
as follows:
"Tenr~i,mrion or sssporsiotrof rhe operution
of o rrcory os n cotzseqliicncef its breoch
1. A material breach of a bilateral treaty by one of the partie: entitles
the other to invoke the breach as a ground for terminatiny the treaty
or suspending ils operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
(O) the other parties by unanimous agreement IO suspendthe operation
of the treaty in whole or in part or to terminate it either:
(i) in the relations betweenthemselvesand the defaulting State. or
(ii) as between al1the parties;
(h) a pîrty specially aiïected by the brcach Io invoke it as a groiind fur
suspending the operation of the treaty in whole or in part in the
relations between itself and the dePaulting Slate;
Lqol CO~JC~UP~C fCrS Srafr~ of rhe Conrint<e<Plrcsonce O/ Sourlr Afiico in
Nainibio (Sourlj Wesr A/rico) norwirh510ndin~Seei,ril.v Council Rcsolirlio» 276
(1970). Advlsory Opinion, I.C.J. Rrporrr 1971. p. 16al p. 47.
Ibid..p. 16 al p. 49.
3 I.C.J. Pleo<li!i, ep1 Coirsequcireefor Sloresof the Co#rriirrr<rlr.v~,.o,f Sorirh
Africa iir Nomihi0lSor<lliWesrAfrieal norwirhrro,rrlitpecrwilyCoiri,eilKr.%oltrr276
(i970). Vol. II,p.'l38. (cJ any party other than the defaulting State to invoke the hreach as a
ground for suspending the operation of the treaty in whole or in
Dar1with respect Io itself if the treatv is of such a character that a
inaierial bre3ch of ils provisions by 'ne pariy radically changes the
position ofevcry psriy with respect tu the furthcr perforniance ofit,
obligations under the treaty
3. A material breach of a treaty, for the purposes of this article, consists in:
(a)a repudiation of the treaty not sanctioned by the present Conven-
tion; or
(b) the violation of a provision essential to the accomplishment of the
abject or purpose of the treaty.
4. The foregoingparagraphs are without prejudice to any provision in the
treatv aoolicable in the event of a breach.
5. ~aragrabhs 1 to 3 do not apply to provisions relating to the protection
of the human person contained in treatier of a humanitarian character,
in particular Io provisions prohihiting any form of reprisais against
persons protected by such treaties."
41. A State's right to terminale or suspend a treaty unilaterally in an ap-
propriate case is adequately supported by doctrine, State practice, judicial
decisions and arbitral awards, recommendations of learned societies and of
other competent institutions dealing with the study and dissemination of inter-
national law. The position in this regard has been summed up adequately by
Lord McNair ' as follows:
"(a) that, in general terms, such a right existswhen the stipulation broken
issuch that the hreach of it can properly be described as a funda-
mental breach of the treaty;
(b) that the exercise of this right isoptional at the discretion of the party
wronged;
(cl that itmus1beexercised within a reaçonable lime alter the breach;. .."
42. A comprehensive study of the subject was attempted by an Indian
scholar, Mr. B. P. Sinha, which has been published by Martinus Nijhoff, The
Hague, in 1966.The study was completed early in 1961and, therefore, reviews
the literature on the subject up to the end of 1963.The title of the study is
Ut~ilareralDeni<nciarioirof Trearv Berartse of Priar Violations of Obli~at-oirs
hy Orlrer Parr). After reviewing the relevant principles of international law,
14 cases decided by international and national forums, relevant literature and
State practice of over 150years, the author reached the following~conclusion:
"11 is well established in international law that a violation of a treaty,
irrespective of itseffects, does no1 ipso facto operate 10 amul the obliga-
tions either of the innocent party or of the defaulting party. It merely
endows an innocent uartv with certain alternatives or rights of actions. An
innocent party may ;hoose to op1 to regard a violated creaty as subsisting
and thus condone or ignore breaches of obligations by other party or
parties. It mar decide to do no more than to lodee a di~lomatic orotest
uith the guili). pariy. II msy seek the remed) of sp&ific p&forman;e or it
may dcinïnd repïrations in udcquate forni for daniages caused by \iola-
riotralLow, Vol.w14, pp. 468-478.61.p. 571.See also Whiteman, Digest of tnferna- MEMORIAL OF INDIA 41
tions, or both. It may simultaneously make a diplonlatic protest and seek
the remedies of specific performance and indemnity. It may choose to
resort to unilateral suspension of a part or whole of its obligations under a
violated treaty. Or, under certain valid conditions, it may resort to unila-
teral denunciation. ...
Tbere being no protest note during the last one hundred and fifty years
swcifically challenging or questioning the validity of the doctrine of unila-
teral denunciations. there beine n- eene-al international agreement for-
bidding it, there be'inga substantial agreement among the jirists and the
-udg-s regarding the equity and binding force of this doctrine, there being
a eeneral~rinciole of law essentiallv analoeous to this doctrine. there heinn
th; general practice of States, encompass%g Africa, Asia, ~uro~e and thé
Americas, including States of major importance in international relations,
upholding or confirming this doctrine as a rule of international law, this
just and equitabledoctrine is a principle of international law and ought to
be so regarded.
It ismaintained that the rule of unilateral denunciation exists under the
following conditions:
(1) That an innocent party may denounce al1 of its obligations arising
under a treatv the orovisions of which form an indivisible whole on
the ground of prior'suhstantial breach or breaches;
(2) That an innocent party toa treaty containingdifferenttypesof obliga-
tions mav unilaterallvdenounce its obligations only under those provi-
sion: xriousl) xiTccirdby i,iolaiton or vii~lattpnsand tho\e rî~sondbls
related to the scriou$lyviolaied oncs. and no1 under those un;illecied;
.3. I'hai the ridhi of unilater;il \lenunci.iii,in niiiptbe cxcrciwd uithiri a
reasonable eriod of time ':'
43. Judee Sir Gerald Fitzmaurice raised this verv auesti.n .nd enquired
from the Counscl of the Lniied St:iicr Cio\crnmçni ln ihe Voiirrhro CAC ciicrl
xbove as to hiw. in hl\\ lei\,.ihe principle oi'~iiil;iter:ilierniin;iiisn ofconir.isis
or agreements would work in practice: He said:
". .. it is evident tbat if a party could put an end to a contract merely by
alleging fundamental breaches of it, and despite the denials of the other
party, whether on the facts or as regards the existence of the obligation,
there would always be an obvious and easy way out of contracts which one
of the parties found onerous or inconvenient '".
He enquired,
"What safeguards would you institute in order to prevent this, and how
would or should such safeauards amly in the international field. in the
relationsbetween~tatesor~b t~feiannd international organization~?~"
44. The Counsel for the United Statex filed his reply on 18 March 1971and,
itzreralia,stated as follows:
"The doctrine of material bredch as a basis of terminatin~ a çontract is
adoctrine of tiiunicip.il ;<rntra,.i Lu rrhich hxr men retlciicd in inierii;i-
tional treïty I~ii.Ohvtou<l) no1c\er) hre4ili nid iontr;ict noiiIJ jiiri:i? the
'B. P. Sinlia.UriilrzlerolD<,nrinciurioorf7i.cor).B<,coo.vcof Prim Vio1olion.s of
Oblirorions by Ollrui-Prwrj.1966. pp. 206, 214-215.
2 FirstQuestionof Judge SirGerald Fitzmauriceat the Hearingof 9 March 1971
(I.C.J. Pleadinps,Legol Consequenees for Stoles of the ConrinuedPresenceof South
Africo in Nomibio(South WestAfiica) norwirl>srand;nSgeeurityCorneil Resolution 276
(19701, Vol. II, p. 506). other party in terminating the contract but only a breach of such signi-
ficance as, in the words of Article 60 (3) of the Vienna Convention on the
Law of Treaties, would constitute a 'violation of a provision essential to
the accomplishment of the object or purpore of the treaty'. If the party
alleging breach were held by ari international tribunal no1 to have estab-
lished the material breach, the termination would not be legally justified
and a party which had terminiited the treaty on the basis of an alleged
~r~ ~ ~would b~ ~ ~bl~ ~ ~ an uniustified reoudiation of a contract. The
fiict that in the internaiional dt oppo-d Io a municipal legal system the
oihçr part' cdnnot Lx assurcd of bringing s ia\r in\olving material brcach
befi>rean intern3iiunal tribunal ckcept uherr: both parties have acccpted
the conipulsory jurlcdictinn nl' 3n international tribunal is a problem
rclating to the efficacyof international Iau, and institutions gencrally and
not especially to the~problem of the material breach doctrine ~.he best
safeguard against misuse of the doctrine of material breach would be
through the extension of the compulsory jurisdiction of the International
Court of Justice or other appropriate international tribunals over legal
disputes arising between States or between States and international orga-
nizarions, at least with respect to those disputes which relate to the inter-
pretstion, application and termination of international agreements '."
45. Jt would thus be clear that both parties have to accept the compulsory
jurisdiction of an international tribunal to handle a controversy or dispute about
the temination or suspension of a treaty; no forum can have automatic and
compulsory jurisdiction in such matters at the request of one party. The reply
of the United States indicates the present state of international law on the
point.
46. On the question of the likelv effect of the absence of a forum with com-
pulsory jurisdiciion on the efficaciof the principle of the unilateral termination
of a treaty for material breach, Mr. B. P. Sinha observes:
"The concept of sovereignty continues to frustrate the process of third-
oartv adiudication of disoutes relative to treatv intemretation and aoolica-
r ,
tion. ~lihou~h itis almost universally recognised [hat these dispuiésare
suitable for third-party ~djud~cation. the fact remains that under inter-
national law a oarÏv ro a treatv. in the absence of an aereement. has the
right 10 refuse ;cisibmit to thiid-party adjudication of>isputes ;esulting
froni di\,ergenc~csof opinion relative IO inten>ret<itionor application of
treaty noms. ~he admission of such a right is tantamountto therecognition
of go-it-alone or unilateralism not only in regard to the determination of
the occurrence and nature of a treaty vio!ation but also in respect of the
need and necessity lor reprisals. The advent of the World Court at The
Hague and the United Nations has not basically altered these realities.
Besides, parties to treaties have traditionally been reluctant to seek or
submit to third-.art. adi*~~~atorv . .cesses for the settlement of disoutes
pertaining to treaty application. The most usual methid for the settl&ent
of such disputa has been diplomatie negotiations. Although there are
several instances of the exercik of the riaht of unilateral denunciation. in
no instance did a denouncing party seek or receive a prior authorisation or
approval from an international judicial authority.
1 Reply given by United States Reprsentative on 18 March 1971to Question
put at theHearing of 9 March 1971 (I.C.J. Pleodings,Legol Conrequencesfor Stoles
of the ConrinuedPrerenee of South Africa in Nomibia (South West Africa) nolwilh-
standing Security CouneilResolurion276 (1970), Vol. Ii,p. 623). The fear of the abuseof the right of unilateral denunciation appearsIo be
exaggerated '."
47. That the right of unilateraltermination or suspensionof an international
treaty exists independently of the provisions providing for withdrawal there-
from, was also recently asserted by the United States Secretary of State,
supported by the adviee rendered by his Legal Adviser. The reference was Io
Article IV of the Nuclear Test Ban Treaty 1963,which provides as follows:
"The Treaty shall be of unlimited duration. Each Party shall in exer-
cising ifs national sovereignty have the right to withdraw from the Treaty
ifif decides that extraordinary events, related to the subject-matter of this
Treaty, have jeopardized the supreme interests of ifs country. Itshall give
notice orsuch withdrawal Io al1other Parties to the Treaty three months in
advance."
48. During the course of the hearings on this Treaty, before the Conimittee
on Foreign Relations of the United States Senate, on 12 August 1963,and in
the course of the testimony of Secretary of State Rusk, Senator Huniphrey of
Minnesota asked the Secretary the following question:
"Mr. Secretary, if the Soviets were to abrogate the treaty and were Io
have an exolosion in one of the orohibited environments-let's say in the
atmosphere or under water and we know il-would we have Io wait 90
days before we caii respond with our answer either to test or Io leavethe
obligations of the trea~y?~'
Secretary Rusk replied:
"II is our view that we would not have to wait 90 days, because the
obligation of the Soviet Union no1to test in the prohibited environment.!s
central Io the vcry purposes and existence of this agreement, and 111s
clearlv established throueh orecedents of Anierican oractice and interna-
tionai law over many decades that where the essential consideration in a
treaty or agreement fails through violation on the other side that we our-
selvesare freed from those limitations.
Now, 1would be very glad to make available to the committee a legal
brief on this point, becausewhere the gut of the treaty collapses we are not
limited jus1 by the withdrawal clause '.. ."
49. The "legal brief" referred to by Secretary Rusk. sripro,was an Opinion
dated 12 August, 1963, of the Legal Adviser (Chayes) of the Department of
State, which was entitled "Right of the United States to withdraw froiii the
nuclear test ban treaty in the event of violation by aiiother party". After
quoting Article IV of the Treaty, sel Forth srrpm, the memorandum continued:
"The question has been raised whether the United Stateswould have 10
give 3 months' notice prior to withdrawing ifanother party eonducted
nuclear weaoon tests in the atmosohere. or committed some other act in
plain violation of the treaty. The answer is 'No'.
A breach of treaty obligations by one party is eonsidered in international
law to give other parties the right to terminate their obligations under the
treaty. Article IV is not intended as a restriction of that right. The three
'B. P. Sinha, Unilorernl Denunciorionof Tre01y B~CLII<S oC Prior Vio/<ilionsOf
Obligarionsby Orl~erPorry, 1966, pp. 209-210.
' Whiternan, Digesr of Infernoriono1Law, Val. 14, pp. 473-474. original parties recognised that events other than violations of the treaty
miaht jeopardize a country's 'supreme interests'and require that country
to resume testing in the prohibited environments. Article IV permits
withdrawal, upon 3 months' notice, in this case. If another party violated
the treaty, the United States could treat the violation as an'exlraordi-
nary event' within the meaning of Article IV, or it could withdraw from
the treaty immediately.
1.THEGENERAR LULE
In international law, violation of a treaty by one party makes the treaty
voidable at the option of the other parties. 1. Lauterpacht,Oppenheim's
1,ifernafionalinw 947 (8th ed. 1955); see also Resralemenr, Foreign
Relations, sec. 162 (proposed official draft 1962). Whether therehasbeen
a violation, and whether it is serious enough to justify termination is for
each party, acting in good faith, to decide. The right to void the treaty
mus1 be exercised within a reasonable lime after the violation has become
known, 1. Lauterpacht, 948.
The right of unilateral abrogation for cause has apparently never been
adjudicated in an international court. [It has, however, ken alluded to in
at least two cases before the Permanent Court of International Justice,
Diversion of Warer Fron~the River Meuse. P.C.I.J., Ser. AIS, No. 70,
SO(1937); Case ConcerninffheFacroryor Chorrciw,P.C.I.J., Srr. A, No. 9,
31 (1927).] 11has however been confirmed by publicists generally, and by
'Jnited States, British, and Soviet authorities, among othe'."
50. Thç opinion given by the United States Legal Adviser, cited immediately
above, fui:y endones the view expressed before the Council by the Chief
Counsel of India. Mr. Palkhivala, in making a distinction between the right
of denunciation under Article 95ofthe Convention and the right10 terminale or
suspend unilaterally a treaty for material breach by the other party, pursuant
to the rule of general international la2.He stressed the point that Article 95
did not foreclose the remedy open to an innocent party 10 suspend the treaty
against the defaulting State. The requirement of notice of one year under
Article 95 would create an absurd situation and the innocent party will have to
wait and sufïer the obligation vis-à-vis the State in default during the period of
notice, whether or not in the meanwhile the Council was able to remedy the
situation.
51. To sum up. no authority and no State practice supports the proposition
of Pakistan that a question &lating to the ierminationor suspension of an
international treatyisa question relating to its interpretdtion or application. On
theother hand. there isa shar~andclear distinction in lawand practice between
auestions re-ardine- intemr&ation and aooli..tion on the one hand and
questions regarding termination and suspension. The legal concepts of termi-
nation and suspension are clear-cut and distinct andcannot possibly beconfused
with the concepts of interpretation and application
' Whitman. Digcri oflnrern<ifionLlaw. Val. 14.pp. 474-475.
* Council Seventy-fourth Session, Minutes of the Fourth Meeting, Doc. 8956-
CIIWI,C-Min. LXXIVl4, pp. 124-126 S eeAnnex E,pp. 222-223 in,fra. CHAPTER VI
PROCEEDINGS BEFORE THE COUNCIL AND
LIMITS OF THE COUNCIL'S JURISDICTION
52. On 3 March 1971the Respondent submittedasaforewid the Applicat:on
and the Complaint to the Council. In the Application the Respondent alleged
that the refusal of the ApplicanIOlet Pakistan aircraft overfly lndia aniounted
10 a disagreement betueen the Applicant and the Re%pondentrelat~ngto the
"applicaiion" of the Convention and the Transit Agreenient; and in the Com-
plaint the Respondent alleged that the Applicant's conduct aniounted to
"action under the Transit Agreement".
53. The Secretary General of the International Civil Aviation Organization,
vide his letter No.LE 611dated 8 April 1971and his letter No. LE 612dated
8 April 1971, invited the Applicant to present its Counter-Memorials Io the
Respondent's Application and Complaint.
54. Since the Aooiicant was advised that the Council had no iurisdiction to
handlc the maiter; bresented by the Respondent', Applicÿtion and Coiiiplatnt.
the Applicant filed on 28 May 1971a single set of Preliminag. Objrctions to
the jurisdiction of the Council. under Article 5 of the Council's Kules, to both
the Application and the Complaint.
55. The Council's jurisdiction is limitedIO disagreenlent relating Io the
intemretation or a~~lication of the Convention or the Transit Anreement. and
does~notextend toiny dispute or disagreement relating Io the iérmination or
suspension of the Convention or the Transit Agreement by one State vis-A-\,is
anoiher State. This is clear from Article 84 of the Con\eiitioiiSection 2 of
Article II of the Transit Agreement, and paragraph (1) of Article I of the
Council's Rules.
56. Article 84 of the Convention runs as follows:
"Ifany dimgreeme-ntbetween two or more contracting States rhtiirg
ro the inrerpreration or aoolicarion of this Convention and its Annexes
cannot be settled ~. ~~-"~~ ~i~n. it shall. on the aoolication of anv State
concerned inthe disagreement, bé decided by the ~buncil. No member of
the Council shall vote in the consideration by the Council of any dispute
to which it is a Party. Any contracting State may, subject Io Article 85,
appeal from the decision of the Council to an ad hoc arbitral tribunal
agreed upon with the other parties to the dispute or to the Permanent
Court of International Justice. Anv such aooeal shall be notified to the
Council within sixty days of receiG of notification of the decision of the
Council." (Italics added.)
57. Section 2 of Article 11of the Transit Agreement runs as follows:
"If any disagreementbetween Iwo or morécontracting Statesrelaring Io
the interoreration or a~o/ication of this Aereement cannot be settled bv
negotiatLon; the prov;;ions of Chapter >TVI oIIthe above-mention&
Convention shall be applicable in the same manner as provided therein
with reference to any disa agreem renaing to the interpretation or
application of the above-mentioned Convention." (Italics added.) overflying lndia was governed by a Special Réginie and not by the Con-
vention or the Transit Agreement; and
(rl) the Council had no jurisdiction to handle any dispute under a Special
Régimeor a Bilateral Agreement.
63. The Respondent's reply Io the Applicant's Preliminary Objections,-
botb the written reply aswell as the reply at the oral hearing on the Preliniinary
Obiections before the Council-was thatanv-.s~ute betweentwo Statesrelatina
to ihe termination or suspension of the Convention or the Transit ~greemenï
should be regarded as a disagreement relatinn to the interpretation or appli-
cation of th; Convention or the Transit ~ereement andwas conseouentlv
within thejurisdiction of the Council. As reg& theComplaint, the esp pondent
further submitted that terniination or suspension of the Transit Agreement
amounted to action under that Agreement.
64. The Council heard both the Applicant and the Respondent on 27 and
28July 1971.Alter theconclusion of the hearingof thecase, at a meeting ofthe
Council on 29 July 1971.the President of the Councilexpressed his intention or
putting to vote the following propositions basedon the Applicant's Preliminary
Objections:
"Case 1 (Applicariort of Pnkisron under Arrirle 84 of the Convenrio~rand
Arricle II, Secrior2,of Ilre Intcrriarional Air Services Trarrsir Agrt8eir~ertf)
(i) The Council has no jurisdiction to consider the disagreernent in
Pakistan's Application in so far as concerns the Convention on
International Civil Aviation.
(ii) The Council has no jiirisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the International Air
Services Transit Agreement.
(iii) The Council has no jurisdiction to consider the disagreement in
Pekistan's Application in so far asconcernsthe bilateral agreement
between lndia and Pakistan.
Case 2 (Cot~tplninl of Pakisiati rrnder Arlicle II, Seciios 1,O/ rhe ltrrer-
norional Air Services Trnnsir Agreeniei~r)
(iv) The Council has no jurisdiction to consider the Complaint of
Pakistan '."
65. The lndian Delegation immediately pointed out that the formulation of
the questions in the manner indicated above was improper, prejudicial to lndia
and contrary to the Coiincil's Rulerz. The propositions before the Council
should have been formulated in a positive way, viz., that the Council had
jurisdiction to deal with the Respondent's Application and Complaint. Despite
this valid objection by the Indian Delegation, the President of the Council look
votes on the propositions as he had formulated themearlier, though he did not
put to vote the third proposition under Case I in view of the Respondent's
statenient3 made alter the hearing and at the time of voting, that it did not seek
relief from the Couiicil under the Bilateral Agreement. While the majority of
the memben of the Council voted against propositions (i) and (ii), only 13out
Council-Seventy-fourth Session, Minutes of the Sixth Meeting, Dm. 8956-
C/100I, C-Min. LXXIV/6, p. 176. See Annex E, p. 267, infra.
2 Council, op. cil.pp. 177,192. 194, 1952 , 04.See Amex E, pp. 267, 279-280,
281,282. 288-289, infia.
3 Council, op. cir., pp177,200.SeeAnnex E, pp. 268, 285, infia.of 27members voted against proposition (iv).The Minutes of the Sixth Meeting
of the Council maintained that the Council's decision asthe result of the votes
was the rejection of the propositions (i), (ii) and (iv) and hence the affirmation
of the Council's compctence to consider the Respondent's Application and
Complaint'.
' Council-Seventy-lourth Session, Minutesof the Sixth Meeting, Doc. 8956-Cl
1001, C-Min. LXXIVl6, p. 178. Secalso Annex E, p.269, inIro.Rules which deal with complaints regarding an action taken by a State under
the Transit Agreement, and not regarding temination or suspension of the
Transit Agreement which would be de hors that Agreement.
72. Disagreement betweenStatespertaining to the Conveniion or the Transit
Agreement may arise in one of four ways:
First, it may be a disagreement as Io interpretation of the Convention or the
Transit Agreement;
Second, it may be a disagreement as to application of theconvention or the
Transit Agreement;
Third, it may be disagreement arising from action taken under the Transit
Agreement ;
Fourth, il may be a disagreement pertaining to termination or suspensionof the
Convention or the Transit Agreement by one Slale as against another.
73. For the sake of brevity, these may be called casesof (i)interpretation,
(ii) application, (iii) action and (iv) termination or suspension. These four cases
~o-er ihe normal eamut of disaereements between contractinc States. Under
- -
the terms of the Cun\entiim. onl) the firit ii\.o i)pe$ of disagrccincni ;.in bc
considcrcd by the Counsil. As far a.. ihc Transit Aqreement 1s ci>nccrned, the
iir4 three t)pes of Ji~~greçiticntcm be considcrcd by the council Ihc Council
irnul ionipeicni 1s consider the fourth i,pc of Jis~grreincnt \i.hicli is concernr.rl
with termination or suspension of the Convention or the Transit Agreement.
74. 'Chequection may arise whether the State which purports to exercisethe
right Io terminale or suspend the ireaty has done so on good grounds and in
aood faith. The imoortant ooint is that this auestion can only bedetermined bv
Ïhc forum whlch has ihc IO Jecldc the'dispuic~ pcrlait,ing Io tcrniin.itio;i
or sdlpcnriun i~ftreatics. The Council i,non the propcr furuiii 10JcciJe ihït
auestion. The cornoetence of the Council extends only to the interpretation or
application of the~convention and the Transit ~~reement and action taken
under the Transit Agreement.
75. The termination or suspension of an international treaty represents the
exerciw by a State of ils right under international law and that right is [lehors
the treaty, as was held by this Honourable Court in the Advisory Opinion of
21 June 1971(Legal Consequences for Srares qf rheConriirue<lPrrsetice of Sortth
Africn in Nninibia (South Wesr Afr.caJ . ,iurwifhslri»dinzSccr~rirv Coroicil
RÉsolr,lion276 (1970)). The legal concept of terminatiocor suspension of a
tre.ity is wholly distinct and different froni the concept of interpretation or
application of ihe treaty; and the Council's jurisdiction does no1 etnbrare the
former but is strictly limited to the latter.
76. That the concepts of "interpretation" and "application" of a treaty are
different from the concept of ils terniination or suspension, and that a State
could unilaterally terminate or suspenda treaty as a result of a niaterial breach
by the other partyks well illustrated in the question put by Sir Gerald Fitz-
mauricc 10 the representative of the United States in connection with thc oral
proceedings in the Nnniibia case and the reply given 10 il by the latter. This
question and the reply, as well as the la\\. on the subject, have already been
dcalt with in Chapter V.
77. The clear and deliberate choice of the words "interpretation" and
L'a~~lication'' as denoting only two types of dispute which fall within the
Council's jurisdiction, niay be noted. The words should not be stretched to
COver"termination" or "suspension", for suchaconstruction would runcounter
to the well-settled principles of interpretation laid down by the Permanent Court of International Justice in the casewncerning the Polish Postal Sert-ice
in Danzig' and by the International Court of Justice in its OpinionZon Cam-
petence of the General Assembly for the Admission of a State IO the Unire-</
Narians.
78. The composition of the Council and ils powers and functions are, again,
in keeoinz with the limited iurisdiction which has been conferred uoon it bv
Article 8Lfthe Con\cniion, Ariiclc II of the Trïnbit Agrccnieni, and Article i
of the Council's Rulc<. to hcÿr intcrnaiionil di%putc\ The sobereign poAcr of a
Stateto susoend.or to abrogate or otherwise terminate aiinternational treatv-
not selduni;n~~olving\astl) Compliçatc~qucstioninifsct and international l:ia-
arc uutsidc ihe scopc of the Cuiin~.il'sj~rlsdistion under thr aforewiJ Ariicles.
79. To sum uo. the scheme of the aforesaid Articles is simule and clear. So
long as ihe Convention tir the l'ran,itAgrccmcnt continue, 10 hç in oper;iiion
as bctuccn tau Siiiicj. an) di~ayrcciiient 4s IO the n~n~rrrctiunof 11sAri.clcs or
the application of the Articles ta the existing state of facts, can be referred to the
Council; and likewise, ony action taken under the Transit Agreement can be
referred to the Council. But ifa State has terminated or suspendedthe Conven-
tionor the Transit Agreement vis-à-vis another State, there cannot possibly be
any question of interpretation or application of the treaty, or of action under
the treaty, and the Council is not the forum for deciding such disputes. These
disputes are usually in the realm of political confrontation between Iwo States,
often involvingmilitary hostilitiee not amounting to war, and these matters of
political confrontation or military hostilities are outside the ambit of the
Council's comoetence. The auestion of ovefivinz raised bv Pakistan. is directlv
connected with military hosiilities in the pasi and continbes to be inextricab&
lied up with the posture of political confrontation bordering on hostility
adooted bv Pakistan
80. ~he;c mîy be no forulii u.hlch i*entruiied with ihc jurisdiciion Io deal
with the question ofternii~iïtion or suswnrion of3 trraty in the ahsenceof an
expressagreement between the uarties. The contractinp. States have not agreed
to-ans forum undcr the ~on\c"tii>n or the 'lr;insii ~~rrcnicni icigo into ihe
meriisof quesiions rclaiing Io ierm~naiioii or su.pension uf the uid trcaties. Thc
f:irt ihst iherc is no internai.<-inal tribunal hcfure uhich the parts coiitcsiine
the termination or suspension could bring a caseis, to recall the iords of MC
Stevenson, "the problem relating to the efficacy of international law and in-
stitutions generally and not especially to the problem of the material breach
doc~rine~ which iustifies unilatera.~~~~~ ~ ~~ ~ ~~ susnension of a treatv.
81. It is also iignificant that the very First sessionif the ICA0 ~siembly
exoressly drew attention to the fact that the iurisdiction of the Council under
~nicle 84 of the Convention is limited to décisionson disagreement relating
10 the interpretation or application of the Convention. Attention may be
drawn in this connection to resolution AI-23, adopted at the First session hy
the ICA0 Assembly in 1947.The resolution reads as follows:
"AI-23: A~rthorization IO the Council IOuct as an Arbitral Body
Wl~ereasthe Lnterim Agreement on International Civil Aviation pro-
vides. under Article III, Section 6 (8). that one of the functions of the
Council sliall be:
'When expressly requcstcd by al1 the parties conccrned, act as an
arbitral body on any diwerencesarising among Member States relating
'P.C.I.J..Srr.B.No.II.p.39.
I.C.J. Reports 1950, ti.4 al p. 8.52 ICA0 COUNCIL
to international civil aviation matters which may be submitted 10 it.
The Council may render an advisory report or, if the partics concemed
so expressly decide, they may obligate themselves in advance Io accept
the decision of the Council. The procedure to govern the arbitral
proceedings shall be determined in agreement between the Council and
al1the interested parties.'
Wherea., the Convention on International Civil Abiation contains no
such provision and the coinpetence of the Council of the Organimtion in
thc iettlement ofdisoutes. a\ acsorded to itby Artick 84 of the Convention.
is limited to decisions on disagreements rejating to the interpretation or
application of the Convention and its Annexes;
Now rherefore the Firsl Assenlblyresolves:
(1) That pending further discussion and ultimate decision by the Organiza-
tion as to the methods of dealing with international disputes in the
field of civil aviation, the Councilbe authorized Io act as an arbitral
body on any differences arisina amona Contracfina States relatina to
intemational civil aviation matters sihmitted to 11, when expreisly
requested to do so hy al1parties tosuch differences; and
(2) That the Council. on such occasions. be authorized 10 render an ad-
visory report, or a decision binding upon the parties, if the parties
expressly decide to obligate themselves in advancetoaccept the decision
of the Council as bindina: and
(3) That the prosedure to g&ern the drbitral proccdures shall Lx deter-
inined in dgreenient betucen the Council and al1the interc,ted part.eî".
82. The importance of this resolution is that the Assembly recognized that
the original concept of submitting al1 differences to the Council had been
abandoned and that the competence of the Council was limited to disagree-
ments relating to interpretation or application. Thus, the ICA0 itself has
recognized (rom the very inception the severe limits on ils Council's juris-
diction.
83. The Counsel for Pakistan in the course of his oral oleadinns before the
Council cited the case of Heynian v. Darwinsl in suppori of th~proposition
that an arbitration clause survives the rescision of a contract. Viscount Simon.
Lord Chancellor, ruled on this point as follows:
"The answer to the question whether a dispute falls within an arbitra-
tion clause in a contract must depend on (O) what is the dispute, and (6)
what disputes the arbitration clause covers. To take (6) first the language
of the arbitration clausez in this agreement is as broad as can well be
imagined. It embraces any dispute between the parties 'in respect of'
the agreement or in respect of any provision in the agreement or in res-
pect of anything arising out of it. If the parties are at one on the point
that they did enter into a binding agreement in terms which are not in
dispute, and the difference that has arisen between them is as to their
respective rights under the admitted agreement in the events that have
'[19421 All England Reports 337.
The arbitration clause reads as follows:
"If any dispute shall arise between theparties hereto in respectof this agree-
ment or any of the provisionsherein contained or anything arising hereoutthe
rame shall be referred for arbitratioin accordance with the ~rovisionsof the
Arbitration Act, 1889, or any then subsistingstatutory modificationthereof:'
Ibid.,al p. 339. happened-e.g., as to whether the agreement has bcen broken byeither of
them: or as to the damaee resultine from such breach: or as to whether
the bieach by one ofthe; goes to the root of the contract and entitles the
other party to claim to be discharaed from further performance: or as to
whether events suoewenine -inc~ ~ ~ aereement wk made have broueht -
the contract to an éndso that neither paAyisrequired to performfurther-
in al1such cases it seems to me that the difference is within suchan ar-
bitration clause as thi'."
M. This case has bcen followed in a lar~e number of American decisions 2.
It really supports India's case inasmuch as; shows how broad the jurisdiction
clause should be in order to cover disputes regarding matters other than ap-
plication or interpretation.
85: In the circumstances aforesaid, it is irrelevant to decide on the facts (i)
whether the case is one of termination or of suspension, and (ii) whether the
termination or suscension look olace in Se~ternber 1965or in Febmarv 1971.
However, the corréctview of the matter acCordingto the Applicant is chat the
Convention and the Transit Agreement were suspended as between the Appli-
cant andthe Respondant by both the States in ~ë~tember 1965,and they have
never been revived as between the two countries; and the Applicant and the
Respondent have accepted and acted on the basis of this position since Sep-
tember 1965: and that if the material oarts of the Iwo treaties are ai al1to be
regarded as king in operation between the two countries at the beginning of
1971, they were suspended by the Applicant on 4 February 1971since there
were material breaches of the two treaties bv the Resoondent. which sneciallv
affected the Applicant. A dispute relating io such sispension could not fail
within the jurisdiction of the Council.
2. PAKISTAN'C SOMPLAINT 1s INCOMPETEN BECAUSE INDIAHASTAKEN NO
ACTIONWHATEVE R NOER THETRANSIT AGREEMENT
86. Pakistan filed its Complaint under Article 21 of the Council's Rules for
the Settlement of Differences. The Council's jurisdiction to deal with a
Complaint is limited to cases where action istaken byastate under the Transit
Agreement. This is clear from Article 11 (1) of the Transit Agreement and
Article 1 (2)of the Council's Rules3.
87. Two cumulative conditions have to be satisfied before the Council can
exercise its jurisdiction in respect of a Complaint which causes injustice or
hardship:
(i) the Transit Agreement mus1 be in operation between two States, one of
which takes action which causes injustice or hardship to the other; and
(ii) the action must be under the Transit Agreement.
Unless both the conditions are satisfied, the Complaint would be incompetent
and not maintainable and the Council would have no jurisdiction to deal
with it.
88. In the present case, neither of the aforesaid two conditions is satisfied.
The Transit Agreement has been suspended as between lndia and Pakistan
since 1965; and, further, in any view of the matter, no action whatever has
' 119421Al1 England Reports 337, at pp.339-340.
Anteriean Jurispritdenc2nd. ed., Vol5, 5 19.pp.534-535.
Thetex1of theTransitAgreementisin Annex 1,p. 327,infraand oftheCouncil's
Rulesin AnnexJ, p. 330,in/ro.ken taken by India under the Transit Agreement. Action under the Transit
Agreement is the very antithesis, the direct converse, of suspension of the
Transit Agreement which is what has happened in the present case.
89. Secondly, il is submitted that even if the Transit Agreement had ken
in force between the two countries after 1965. Pakistan's Comolaint would
siill k ouiside the amhii of hriiclc II (1) ufthc ~ransit ~~reemen.1and Ariiclc
1 (2) of the Council's Rules, iince the action complained of anioiints IOsus-
oension of the Transit Aereement and is not under the Aereement.
90. Thirdly, without Gejudice to the above, it isfurther submitted that in
any case, even assuming India had committed a breach of the Transit Agree-
ment, such a breach caAot be the subject-matter of a Complaint under Article
II (1) of the Transit Agreement. A Complaint under that Article can only
relate to the action of a State discharging ils obligations under the Transit
Agreement but in such a way as to cause injustice or hardship 10another State,
e.g., by prescribing conditions for overflying or landing which are unduly
onerous.
91. The Council should have held that the Comolaint was incomoetent
and not maintainable andthat the ~ouncil had no jurisdiction to deal &th il,
since suspension of the Transit Agreement by the Applicant, whether in 1965
or in 1971,was de hors the treaty and represented the exercise of a right under
a well-settled rule of international law, and could not possibly be regarded as
action under the Transit Agreement.
92. The auestion of lndian aircraft ovefivine Pakistan and Pakistan air-
craft ovefiylng India is governed, not by the fonvention or the Transit Agree-
ment. but by the Special Agreement of 1966.This Special Régimewas accepted
bv both the ~oo. .ant and the Resoondent from Februarv 1966 onwards as
sonstiiutinp a Bildterîl Agreement fier the \u<pcnsion (as betwecn the Iwo
Siatesl or the Convention and the Transit Agreeniçnt in Sepiemkr 1965 At the
time of votine bv the Council members. the Resoondent acceoted the oosition
that the ~ou>cG had no jurisdiction t& handleany dispute'under i~pecial
Régime or a Bilateral Agreement. But the Council overlooked that where
such a Soecial Réeime exists. as it does in the oresent case. no auestion of
interpreiÿtion or a~plirationof the Con\entiun or the Transit rieme m caent
possibly arirc. The Council should have held that the dispute raiscd by Pakistan
amounted onlv to an allee-tion that the wrmission to Pakistan aircraft Io
ovcrfly Indian tcrriiory wîs \rrongly or impruperly withdrawn by India under
thc Spec~alAyreenient of 1966.and thdt such J.dispute uas out\idc the juris-
diction of the Council,
B. The Council'sDecision 1s Vitiateù hy the Mamer and Method Employed
in Reaching the Decision
93. Apart fromthe fact that the decision of the Council amounts to erroneous
assum~tion of iurisdiction ta deal with Pakistan's Aoolication and Com~laint
where'no such>urisdiction exists, India submits thai ihe manner and méthod
employed by the Council in reaching its decision rendered the decision im-
proper, unfair and prejudicial to lndiaand badin law, for the following reasons:
(1) The decision of the Council was vitiated by the fact that the questions
were framed in the wrong manner. The propositions put tovote were framed
in a negative manner, namely, "The Council has no jurisdiction .. .",
. instead of being framed in a positive way, namely, "The Council has
jurisdiction.. .".
(2) The decision of the Council as regards the Complaint is directly contrary
to Article 52 of the Convention whiçh Drovides that "decisions -, t~~~-
Council shall require approval by a majority ofits rnembers". The Council's
decision that 11 had jurisdiction to consider the Respondent's Coiiiolaint
was hot suooorted bva maioritv of the Members ofthe Council. As re.zardc
--- -
the ~ouncil's decision on ihe Cornplaint, the Applicant submits that there
was gross miscarriage of justice as a result of the question haviiig becn
wronalv framed. If the auestion had ken riehtlv franied and if the nro-
posit&n that the ~ouncii had jurisdiction consider the ~espond&ps
Complaint had been put to vote, the decision of the Council would have
beenin favour of the~~~licant on the same Dattern of votina.
(3) The decision of the Council was further vitiated by another fa;. The Coun-
cil was acting as a judicial body and each of its niernbers had to discharge
his duty as % judge. Although some of the members asked for lime ;O
consider the issues of far-reaching importance which had becn raised by
the Applicant and asked for verbatilil notesof the oral hearing, their request
was turned down, with the result that some of the judges were unable to
participate in the deliberations and in the final decision of the Council.
94. In the circumstances set out above, the decision of the Council cannot
stand and must be regarded as having no validity or cffect. The facts which
have a bearing on the points indicated above are set out below.
95. For the first time in the history of the International Civil Aviation
Orzanization. the Council was calléd uoon to decide the auestion of its own
jurTsdiction. For the purposes of ~rticie 84 of the ~onvekion, the Council
transfonns itself into a tribunal and functions like a court from whose decision
an aoveal lies to the International Court of Justice. The imoortance of the
quesiions involved in the proceedings wos inipressed upon the~ouncil.
96. Reasonable time was not given to the menibers of the Council for a full
and adequate consideration of the arguments put forward by both sidesatthe
oral hearing held on 27 and 28 July 1971.Verbatim records were not made
available to the members of the Council for their deliberations before the
propositions were put 10 the vote. A suggestion to put the entire argument
presented by India in a written memorandum was made by Mr. Palkhivala,
Chief Counsel for India, on 28 July 1971in the following words:
"Frankly, the idea was not to inflict upon the Council any further piece
of written work; the idea was merely to assist the Counci). . ..
.................................
... my desire here is not to gain time. 1am not interested in that al all. 1am
onlr interested in seeine that a iust. fair decision is reached after full
consideration. For thaburpose i suggested a memorandum. The alter-
native, if you don't want a memorandum, is to have the verbatiin notes
made available to every member before a decision is reached . .'"
Some members wanted to consult their Governments on the technical and
legal validity of the arguments put forth during the oral hearing. To cite some
exantples:
Air Vice Marshal Russell, the representative of the United Kingdom, stated:
--
'Council-Seventy-fourth Session, Minutes of the Fifth Meeting. Doc. 8956-
C/1001,C-Min. LXXIVIS, p. 162.Sec Annex E, p.255, infio. "On this question of going now to a decision, Mr. President, we have
heard lenethv discussions and exoositions. althoueh thev mav be brief in
legal teks, and not being a lawier, 1cohd not;egari it a; reasonable
for me, my~.lf, Io participate in a decision here and now on the merits of
the Preliminary Objection, which for me turns entirely on questions of
law. To that extent 1shall therefore not be able Io support any positive
action on thc substance of the matter. For me il is essential to obtain
legal advice on the arguments which have ken presented before so parti-
cipating ...
. ..1could not participate in a substantive decision at this time, unfortu-
nately being without legal training myselfand not having had the opportu-
nity to seek legal advice.. .'"
The representative of Czechoslovakia, Mr. Svoboda, said:
"1 should Iike Io expres, almosi the same view 3s the Kcpresentat~veof
the United Kingdom ha%crpressed. brcauie I too am no1a lawyer. During
these Iwo days-we have heard many things linked very closely to inter-
national law and I tao would like Io have the possibility of consulting my
Administration'.''
The representative of the Soviet Union, Mr. Borisov, said:
". ..11is quite clear that king present for the first time at a Council
meeting on this question 1met with some nuanceson which 1,like Repre-
sentatives of some other countries, have Io consult with my competent
organs. 1request tirne for such consultation after receiving the complete
records from the Secretariat. 1believe that a week or ten days would be
necessary for this. Failing this, 1shall not be able Io make a decision on
this question. ..'"
The representative of Uganda said in the Council on 28 July 1971 asfollows:
".. . 1 myself would k prepared ta take a decision now and it would
then be understood that my decision would k limited to my knowledge
of the Convention. the Transit Agreement and the Rulesforthesettlement
of Differences. The Nnmibin case and al1 the other cases that have been
cited and the Vienna Convention are the thines which out us off. These
are the things about which we need to consult-lawyers whose business is
much wider than Our business here.. .. If the function of this Council is
to deal with al1asoectsof international law. if Our decisions must take due
account of al1 thé international decisions hhich have been made, of ai
the cases which have been cited here, then we have got to have time to
examine these things and gel proper advice, but if we are expected to deal
only with the matters dealt with in the Chicago Convention, in the Transit
Agreement and in the Rules for the Settlement of Differences, we can
take a decision ioday. Things which put us ofi are matters which are not
defined here. For instance, it was king argued thar a convention could
be suspended by one State in respect of another State or terminated by
one State in respect of another State. This is the sort of thing about wbich
1 am in doubt. I myselfdidn't know this could be done and I was prepared
1 Council,op. eir.p. 166.See Annex E, pp. 257.258-259.infia.
Council,op.cil., p. 166.Seealso AnnexE.p.258, infro.
Council-Seventy-fourth Session,Minutes of the Sixth M.eeting,Doc. 8956-C/
Iûûl, C-Min. LXXIV(6, p. 181.SeeAnnex E, p. 271, infi. to deal with the matter recognizing that 1am ignorant of anything outside
the Convention. ..'"
98. Noneofthe sueeestions mentioned above to enable members to consult
their governments \r3;acccpted. The <:ouncil proceeded to \.ote on ihcproposi-
tions without uaiiing for the vcrhaiim records of the full arguments, or even n
summarv thereof. This made the oral hearine an idle ceremony and indicated
that thémembers of the Council had not inTactapplied theirminds to the im-
portant issueraised before them. The decisions reached in these circumstances
¬ be reearded as decisions reached in accordance with law.
99. It mayalso bepointed out that some of the members of the Council who
voted at the time of the final decision were not present throughout the oral
hearing, i.e., from the beginning to the end. It is a well-known principle of
law that in al1 jurisdictions, judges must sit throughout the proceedings.
Judge M. Eugene Dreyfus said as follows:
"It has always appeared necessary in al1jurisdictions-il is a principle
of general application with which they may in no circumstances dispense-
that within the limit of the legal or regulation quorum, judges who are
called upon to give a final decision shall have sat in the case from the
beginning of the oral proceedings down to the pronouncement of that
decision 2."
C. There 1sno Presumption as to Jurisdietion
100. The Council's jurisdiction to entertain Pakistan's Application or
Complaint cannot be presumed. As has ken well pointed out by Judges Sir
Percy Spender and Sir Gerald Fitmaurice:
".. . a duty lies upon the Court, before it may assumejurisdictioii, to be
conclusively satisfied-satisfied beyond a reasonable douht-that juris-
diction does exist '".
101. Jurisdiction ofan international forum, whetherestablished by a bilateral
treaty or a multilateral treaty, is based on the consent of the contracting States
and it has been held reoeatedly that this consent has to bestrictly intemreted.
Thus, Sir Gerald ~itzmauricé while dwelling on the question of consent in
relation to the jurisdictional obligation of States, stated as follows:
"Just becauseconsent is the basis~~.d the sole basisof it. t.e i-risdiction
simply does not exist outside the scopeof the consent given. Consequently,
jurisdiction ought at the very least not to be assumed in casesin which
there is room Gr anv seriousdoubt as to whether consent was eiven. and
- -~~ ~ ~- ~ ~
whetherit covers thédispute. This is putting it lesshigh than it &in beput:
strictly, jurisdictionought only to be assumed if it is suite clear that the
oartieshave a-reed t~-its exércise i~.~~.~tion to the disoute before the
Tribunal.. .. lt is only too easy in this matter for international tribunals
to pay lip-service to the princi~le of consent and to profess only Io assume
junsdiction by the consent, express or implied, of the parties, while adopt-
ing an interpretation of what is involved by consent, and more particulariy
'Council-Seventy-fourth Session, Minutes of the Fifth Meeting. Doc. 8956-
C/IM)I, C-Min. LXXIV/S. pp. 171-172.SeeAnnex E. pp. 262-263, infra.
Seehis dissenting opinion in the case of Free Zones of Upper Savoy and the
District of Gex, Judgment,1932, P.C.I.J., Ser. AlB. No. 46, p. 202.
' SeeSouth West Africa, Preliminory Objections,Judg»ieni, I.C.J. Reporl.~1962,
p. 319at p. 473. of what matters are covered bv a oarticular consent. such that. in oractice.
a jurisdiction is assunied goin; wéll beyond what wzisintended t;be con:
ferred-or which was no1intended to be conferred at all. To sum up-what
is required, if injustice is not to be done to the one party or theother, is
neither restricted nor liberal interpretations of jurisdictional clauses, but
strict proofof consent1."
102. Sir Gerald added the following with regard to consent by inference:
"If inference is oiled on inference. and reference on reference. then the
conncction betweénthe point of dépanure and the point of emergence,
though it may technically exist, may be inadequate to support the inference
of true consent. Particularlv is this the case where a consent aiven. ori-
marily and ostensibly in relation to a given class of case,is heldby such a
process of reference to be applicable ta other classes of disputes which
were certainlv not in the irnmediate contemolation of the State concerned
whcn itgavé its arbitral undertaking. .. ~he type of consent necessary
to found international iurisdiction is, or should be, a positive one. It may
arise by inference, but must, assa inferred, beseenIo besomething positive
and definite, not open to reasonable doubt or question 2."
103. Judge Moore in his dissenting opinion in the Mavroinmaris Polesii~lr
Coizcessions case, stated the following with regard ta jurisdiction of interna-
tional tribunals:
"Ewr rnindful of the Tact that their judgments, if renderedinexcessof
power, may be treated as null, international tribunals have universally
regarded the question of jurisdiction as fundamental. It would be super-
fluous to cite from the records of international tribunals particular decisions
ta ihis enect. An internationaltribunal with gcneral jurisdiction, compul-
sory or non-compulsory. over independent States does not as yet exisl.
The international judicial tribunals so far crcated have been tribunals of
liinitcd powers. Therefore no presuinption in favour of their jurisdiction
inay be indulged. Their jurisdiction mus< alwdys affirmalively appear or1
the face of the record '."
D. Xo Acquiescenceby India inthe Council's Jurisdiction
104. By informing the President of the Council about the hijacking incident
and the conduct of Pakistan relatinc thereto early in February 1971'. the
Applic:int apprised him of the situation developing inthis part of Ïhe world and
the circunlstances in which the Applicant was forced Io take measures of self-
vrotection. This wasdone becausethe International Civil AviationOr~anization
1.:thc yrin<ip.il iiiieriisi.on:orpanizlitlori ~oncerned \rith the s3fety of civil
ii\iation. 'The Appli;~~nt Jid no( apply 1,)the Counr.1 for scitling îny diragrec.
nient or dispute about the sus~ension of the treaties in auestion. because no
such disagréement had arisen; nor was the Council competent to entertain
such an application or cornplaint. There was. therefore, no submission to the
'"The Law and Procedure of the International Court of Justice, 1951-4:
Questions of Jurisdiction. Compctençe and Pracediirc", Bririrh Year Book of
lnlernorionolLaw, Vol. XXXIV, 1958,p. 88.
' Ibid..pp. 89-90.
' Mnvroi»,troris Polesiinc Conees.rio,tr,JudgnieniNo. 2, 1924, P.C.I.J., Ser. A,
No. 2, p. 60.
SeeAnnex G, p. 295, infra.CounWl's jurisdiction in the matter, as was erroneously alleged by Pakistan
in the oral proceedings before the Council.
105. The Applicant did not subrnit at any stage to the Council's jurisdiction
in the present case. The very purpose of raising the PrelirninaryObjections wos
10 assert at the outset that the Application and the Cornplaint of the Respon-
dent were incornpetent and ihat the Council had no jurisdiction to deal yith
thern. ICA0 COUNCIL
CHAPTER VI11
STATEMENT OF CLAIM
106. Wherefore,niay it please the Courr to adjudgeand declare,after such
proceedingsand hearings as the Court may see fit to direct, and whether the
Respondent is present or absent, that the aforesaid decision of the Council
is illegal, nuIl and void, or erroneouand may it furrher pleasethe Court ro
reverseandset osidethesame, on the following grounds or any others:
A. The Council has no jurisdiction 10 handle the matters presented by the
Respondent in its Application and Complaint, as the Convention and the
Transit Agreement have been terminated or suspended as between the Iwo
States.
B. The Council has no jurisdiction to consider the Respondent's Complaint
since no action has been taken by the Applicant under the Transit Agree-
ment; in fact no action could possibly be taken by the Applicant under
the Transit Agreement since that Agreement has been terminated or sus-
pended as between the two States.
C. The question of Iiidian aircraft overîlying Pakistan and Pakistan aircraft
overîlying India is governed by the Special Agreement of 1966and no1 by
the Convention or the Transit Agreement. Any dispute between the two
States can arise only under that Bilateral Agreement, and the Council has
admittedly no jurisdiction to handle any such dispute.
D. The manner and method employed by the Council in reaching ils decision
render the decision improper, unfair and prejudicial to India, and bad in
law.
107.May it alsopleasetheCourrroorder that the costs of these proceedings
be paid by the Respondent.
108. The Applicant reserves the right to request the Court to declare and
adjudge with respect 10 such furlher and other matters as the Applicant
may deem appropriate to present to the Court.
(Signed) Lt. General His Highness YADAVINDRSA INGH,
Maharaja of Patiala,
Ambassador of lndia al The Hague,
Agent of the Government of India.
The Hague,
22 December 1971. BOOKS AND ARTiCLES
A. BOOKS
1. McNair, The Luwof Treaties,1961.
2. B.P.Sinha. UnilateralDenunciarionof TreatvBecauseof Prior Violationsof
Obligationsy Other Party,1966.
3. MarjorieM. Whiteman, Digest of InternationalLaVolume14, 1970.
4. AmericanJurisprudence ,nded., Volume 5.
B.ARTICLES
Gerald Fitzmaurice,"The Law and Procedureof the InternationalCourt
of Justice,19514: Questionsof Jurisdiction,CompetenceandProcedure".
inBritish YearBookof InternarionalLuVolume XXXIV, 1958. TABLE OF CASES ClTED
A. INTERNATIONAL COURT OF JUSTICE
1. Co~npetenceof the Genernl Asse~nbly /or the Admissio/r of a State IO the
United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 4.
2. South West Africo. Prelintinary Objections, Judgment, I.C.J. Reports 1962,
n 719
F. ----
3. Legal Consequencesfor States of the Continued Presenceof South Afiica
in Namibia (South West Africo) notwithstanding Security Council Resoltirion
276 (1970), Advisory Opinion, I.C.J. Reports 1971.p. 16.
B. PERMANENT COURT OF INTERNATIONAL JUSTICE
1. Mavrommaris Palestine Concessions,Judgment No. 2, 1924, P.C.I.J., Series
A, No. 2.
2. Polish Postal Service in Dottzig, Advisory Opinion, 1925, P.C.I.J., Series B,
NO. II.
3. Factory at Chorzdw, Jurisdiction. Judgment No. 8, 1927,P.C.I.J., Series A,
No. 9.
4. Free Zones of Upper Sovoy and the District of Gex, Judgment, 1932,P.C.I.J.,
Series AIB, No. 46, p. 96.
5. Diversion of Water /rom the Meuse, Judgment, 1937, P.C.I.J. Series AIE,
No. 70, p. 4.
C. OTHER
Heyman andanother v. Darn-ins, Ltd. 119421All EnglandReports 337. MEMORIALOF INDIA
ANNEXES TO THE MEMORIALSUBMlTTED
BY THE GOVERNMENTOF INDIA
Annex A
FlLED UNDER ARTICLE2 OF THE RULES FORTHESEITLEMEN OF DIFFERENCES
APPROVED BY THE COUNCILOF THE INTERNATJONAL CIVILAVIATION
Government of Pakistan Applicant
versur
Government of India Respondent
Corrrenrs
Item Pages
1. Credentials....................... 64
2. Application....................... 65
3. Mernorial ....................... 66
4. Attachment A ..................... 70
5. Attachment B ..................... 72
6. Attachment C ..................... 77
7. Attachment D ..................... 88 No. AV-(A)11(10)/70
Government of Pakistan
Ministry of Defence
the 3rd March, 1971.
From: Air Vice Marshal A. Qadir,
Joint Secretary to the
Government of Pakistan.
Ministry of Defence (Aviation Division),
Islamabad (Pakistan).
To: The President of the Council of
the International Civil Aviation Organization,
International Aviation Building,
1080 University Street.
Montreal (Canada).
Subjecr: Suspensionby Governmenfof India of thef7ightsof Pakistan aircraff
over the territory of India
Sir,
1 am directed by the President of Pakistan to notify that His Excellency.
MI. M. S. Shaikh, High Commissioner for Pakistan, in Canada, Ottawa,
Ontario,Canada, is the Chief Agent of Pakistan in the above matter.
This is also ta notify that Mr. Syed Sharifuddin Pirzada, S.Pk., Attorney
General for Pakistan is the Chief Counsel in the matter.
Accept, Sir, the assurances of OUI highest consideration.
(Signed) A. QADIR,
Air Vice Marshal,
Joint Secretary to the Governmeot of Pakistan. MEMORLALOf lNOlA
No. AV-(A)11(10)/71
Government of Pakistan
Ministry of Defence
the 3rd March 1971.
From: Air vice Marshal A. Qadir,
Joint Secretary to the
Government of Pakistan.
Ministry of Defence (~viation Division),
fslamabad (Pakistan).
To: The President of the Council of the
International Civil Aviation Organization.
International Aviation Buildini
1080 University Street,
Montreal (Canada).
Subject: Suspensionby Governrnentof India oftheflights of Pakistan aircrafl
over the ferritory of India
Sir,
I am directed by the President of Pakistan to make this application on
behalf of the Government of Pakistan to the Council of the International
Civil Aviation Organization in accordance with the Rules of Procedure
approved by the Council on 9th April, 1957.The Memorial as required under
Article 2 of the Rules, is attached.
2. The illegal and onjust action by the Government of India of suspending
Pakistan aircraft flights over its territory from the 4th February, 1971, in
breach of its international obligations, has caused and is causing great
injustice, hardship, loss and injury to Pakistan which requires immediate
attention and action of the Council.
3. In view of the disagreement between the two contracting States of Pa-
kistan and lndia relating to the application of the Convention on Internatio-
nal Civil Aviation, 1944, the International Air Services Transit Agreement,
1944andthe Bilateral Air Services Agreement 1948hetween the two countries
which could not be settled by negotiation, it is requested that the application
may be taken up urgently and the matter be decided by the Council andreliefs
may be granted as stated in the attached Memorial.
4. The Applicant requests for early action, oral hearing and the oppor-
tunity to place relevant material including case law before the Council at an
early date.
Accept, Sir, the assurances of Our highest consideration.
(Signed) A. QADIR,
Air Vice Marshal,
Joint Secretary to the Government of Pakistan.
Vura, This Applicafion drid ~hcAlémorialare king filed utthout prcjudicc
to LhcComplainl iindcr Articlé2I of the Rules of Procedurcof9ih April. 1957,
which is also being filed separately in compliance therewith. MEMORIAL
OF
THE GOVERNMENT OF PAKISTAN
UNDER ARTICLE 2 OF THE
RULES OF PROCEDURE APPROVED
BY THE COUNCIL ON 9TH APRIL, 1957
(a) Government of Pakistan Applicant
Government of lndia Respondent
(b) His Excellency M. S. Shaikh, Agent of the Applicant
High Commissioner for
Pakistan in Canada
Names of the Coiinsel:
1. Syed Sharifuddin Pirzada, S.Pk., Chief Counsel
Attorney General of Pakistan.
2. Mr. Harunur Rashid, Counsel
Deputy Legal Adviser,
Ministry of Foreign AÎfairs,
Government of Pakistan.
3. Mr. Zahid Said, Counsel
Deputy Legai Adviser,
Ministry of Foreign Aflairs,
Governm-nt of Pakistan.
4. Khawaja M. H. Darabu, Counsel
Legal Adviser.
Departinent of Civil Aviation,
Government of Pakistan.
5. Mr. Mumtaz A. Khan, Counsel
Legal Adviser,
Pakistan International
Airlines Corporation.
Address:
c/o The Pakistan High Commission,
Ottawa, Ontario, Canada.
(c) Srorement of relevflfacts:
(1) In a note dated 4th February 1971 handed over to the Government of
Pekistan, the Government of lndia conveyed its decision "to suspend, with
immediate effect. the overflight of al1Pakistani aircraft, civil or military, over
the territory of India".
(2) In a Notedated 5thFebruary, 1971,theGovernment of Pakistan protes-
ted fo the Government of lndia that its decision ta suspend flights of Pakistan
aircraft overndia was arbitrary and unilateral and a serious breach of multi-lateral and bilatereral agreements. Immediately after receipt thereof, following
cable was sent Io ICAO:
"ICAO Montreal
8-4/71/~~.ll. Attention Binaghi. India banned PIA scheduled services
between East and West Pakistan overflying lndian territory. This action
causing injustice and hardship Io Pakistan. Request intervene in accor-
dance with Article two of the Transit Agreement. Regards.
Civilair Karachi."
(3) Pakistan comprises of Iwo wings which are situated more than 1,000
miles aoart with Indian Territorv in between. Air services betweeii the two
wings are thus a vital link betweén the Iwo wings of Pakistan. As a result of
the decision of the Government of lndia Io sus~end overflights of Pakistan
aircraft over its territorv. Pakistan International-~irlines.thénational airline
of Pakistan has been c'ompelled to re-route its flights beiween the Iwo wings
of Pakistnn and otlier international scheduled flights by circumventina the
lndian territory. This has more than doubled the lÏight time between thétwo
wings, considerably increased the flight time of other international Hights and
reduced frequency of flights on al1 sectors. These factors have resillted in
considerable increase in the cos1 of operation of services of Pakistan Inter-
national Airlines, loss of business and other losses Io the airline, inconve-
nience to passengers,immense loss and injury to Pakistan and have adversely
affected the economic situation of the country. Supporting data related 10
these facts are given under item (d).
. . The Government of Pakistan conveved to the Government of lndia
ihat the tliglits oi Paki,tsn 1ntern.iiional Airlines which <<innecicd tuo wingp
of P2Listdn c2rry. 3parr franl plsirngr'rs. esscntill >~pplirs td Eïsr l'nkisian.
The susoension of theseflie-ts has also adverselv afïccted the reliefo~erations
in East Pükistan currently going on in view of the recent devastations caiised
by the cyclone and tidal bore. In the same note the Government of India was
called uoon Io rescind ils decision Io susoend overflights of Pakistan aircraft.
(5) ~he Government of India soiight fo link the recent hijacking incident in
which two nationals of the State of Jaminii and Kashmir hijacked an Indian
aircraft from lndian occupied Kashmir to Lahore in ~ikistan, ivith the
arbitrary suspension of Rights of Pakistan aircraft over Indian territory. It is
stated that the State of Jammu and Kashmir is a disputed terriiory in respect
whereof varioos resolotions have been oassed bv the United Nations Com-
mission for India and IJakistan and the'~ecurit;~ouncil and an Agreement
was entered into between India and Pakistan. The facts of this incident have
duly been coinmunicated by the Governnient of Pakistan Io the Secretary
General of the Intzrnational Civil Aviation Org~niration by a letter, dated
19th February, 1971 (copy attaclied-"Attachment A"). It is submitted that
referencc bv lndia to the hiiackine incident is irrelevant and lias no relation
-
wliatsoever wiih the suspension of ilights of Pakistan aircraft over lndian
territory.Siich flights are governed by multilateral and bilateral agreements
and thcre is no legal basis or justificationwhatsoever for tlieir suspciision.
(6) The decision of the Govrrnment of lndia to suspend the out!-flights of
Pakistan aircraft over its territorycontravenes the provisions of thc Conven-
tion on International Civil Aviation. 1944, the International Air Services
Transir Agreement, 1944and the Bilaieral Air Services Agreenient. 1948and
thus India is in breach of its obligations thereuiider.
(7) In spite of thc arbitrary, unilateral and illcçal decision of the Govern-
ment of Indiii to suspend overflights of Pakistan aircraft, the Government ofPakistan has not banned Indian aircraft which are free to overîiy Pakistan
territory.
(8) A disagreement has arisen between the Covernment of Pakistan and
the Government of India relating 10 the application of the provisions of the
Convention on International Civil Aviation, 1944, the International Air
Services Transit Agreement, 1944 and the Bilateral Air Services Transit
Agreement, 1948.
(9) On 18th February, 1971, an Aide Memoire was presented on behalf of
Pakistan to the Secretary General of International Civil Aviation Organi-
zation. By a letter dated 20th February, 1971, Pakistan approached the Inter-
national Civil Aviation Organization Council for necessary action (copies
attached-Attachment B).
(d) Copies of Notes exchanged between the two Governments are annexed
hereto (Attachmeot C), statement of data referred to in para. 3 of item
(c) is attaçhed (Attachmenl D).
(e) Sraremenrof Law:
(1) Pakistan and India are parties to the Convention on International
Civil Aviation, 1944, the International Air Services Transit Agreement, 1944
and the Bilateral Air Services Agreement, 1948.
(2) BYvirtue of Article 5of the Convention on International Civil Aviation.
1944, each Contracting State agreed that al1aircraft of the other contracting
States no1engaged in scheduled international air services shall have the right
to make flights into or in transit non-stop across its territorv and to make
stops for noil-iraflic purpojes without the neccssiiy of obiaiAirtg prior per-
mission subjecr to the right of thst Siate to require Iandinp. Hy denying ihis
righi to I'skisi~n aircraft engaged in oiher [han scheduled inicrnational air
services Io overily irr territory or make a iechnicdl stop, India ha5 unilater-
ally and arbiiraril) viollitcd the provisions of the Convention without any
valid reason and isin breach of its obliaations thereuiider.
(3) Under Article 1 of the 1nterna;onal Air Services Transit Agreement,
lndia has granted to Pakistan the following freedoms of the air in respect of
scheduled international air services:
(1) the privilege io fly across iis tcrriiory wiihout landing;
(2) the privilege to land for non-traffic purposcs.
Pakistan has been eniosinr these frccdoms of ihe air till3rd Frbruary 1971,
when al1 of a sudden indiarby a Note dated 4th February. 1971. informed
Paki5tan of itidecision 10 suspend wiih immediaiç efict ihe overtliphts of al1
Pakistan aircrdft ovcr the territory of India and thereby denvina ihese frîc-
doms to Pakistan. In suspending ihe overîiights of ~akistan airciaft over its
territory India has thus committed a serious breach of ils obligations under
the Agreement and created a situation which has caused great hardship,
iniustice. iniu.v ~-d l--s to Pakistan.
\4) 6; vitue of the Bilaieral~~ir Services Agreement with India of 1948.
Pakistan International Airlines. the designaied airline oi Pnkisran, h3s ihe
right, lnreruliu. to iraniit across the terriiory ol India without landing on its
schcduled international air services. The decision of the Governmeni of lndia
to siop such overiliahts i)f P~kistan's designatcd airline contrdvenes the
orovisions of the ~ereement and is in breach of its oblieations thereunder.
' (5) The decision of the Government of India to suspend the over-flights of
Pakistan aircraft over its territory isuer se discriminatory in that aircraft of
other States continue to make flights ;ver lndian territory. (6) It is further submitted that the Government of India has violated the
principle ofpacra sunt servanda in respect of ifs treaty obligations and has not
acted in good faith.
(7) It is also suhmitted that the intention of the Government of India was
to prevent easy and direct communication between the two wings of Pakistan
by suspending Rights of Pakistan aircraft by direct route over Indian territory.
(8) The decision of the Government of lndia is arbitrary, unilateral and
illegal and is in violation of the Conventions and Agreements aforesaid and is
contrary and repugnant to International Law.
(f) Reliefs Desired
The Government of Pakistan seeks among others, the following reliefs by
action of the ICA0 Council:
(1) To decide and declare that the decision of the Government of India
suspending the overflights of Pakistan aircraft over the territory of India, is
illegal and in violation of India's international obligations under the Conven-
tion and Agreements aforesaid.
(2) To find and declare that Pakistan has the following freedoms of the
air in respect of scheduled international air services:
(a) the privilege ta flyits aircraft across the lndian territorywithoutlanding;
(b) the privilege to land its aircraft in Indian territory for non-trafic pur-
poses.
(3) To find and declare that Pakistan aircraft have the right, subject to
observance of the terms of the Convention on International Civil Aviation.
1944ta make t>ighisinto or in transit non-stop acrors lndian territory and to
make stops for non-trafic purpores in that territory u,ilhout the neccssity of
obtainina prior oermission. and suhiect to the right of lndia to require landina
of non-scheduled flights. - -
(4) To find and declare that Pakistan aircraft are entitled to operate flights
between the two wings of Pakistan'and beynnd by direct route over its
territory.
(5) To direct the Government of India to immediately rescind their illegal
decisionaforesaid and not to impede in any manner the overîiights of Pakis-
tan aircraft over the territoryof India.
(6) To decide and declare that the decision of the Government of India of
suspending flights of Pakistan aircraft over the Indian territory is causing
injustice,hardship, loss and injury to Pakistan.
(7) To direct that the Government of lndia should adequately compensate
and indemnify Pakistan for the losses and iniurv suiïered by it as a result of
the arhitrsry,~unilateral and illegal decision;r;he ~overnmcnt of India in
hrcach of ils intcrn~rionol obligalions. The amount of losses suffered so f2r
are indicatcd in atiachment tu this Memorial (Attachment D).
(8) The Council may assess and award costs to Pakistan and direct Govern-
ment of India to bear it and pay the same to Pakistan.
(g) Efforts were made by Pakistan to negotiate with India but were not
successful. MEMORIAL OF INIIIA 71
9. Throughout this period one or both the hijackers remained on board
the aircraft. Attem~ts by the Pakistan authorities to persuade them to release
the plane made n6 headway as they refused ta negotiate directly with the
Government Authorities. Consequently, the hijackers were allowed to con-
tact some non-officiais in the hope that they could persuade the hijackers to
agree to release the aircraft. At no lime, both the hijackers came out of the
plane at the same lime. One of them invariably remained on board. Any
attempt to disarm or arrest one would have surely blown up the aircraft as
the two had threatened to do.
10. It may be emphasized that at 20 lime bath the hijackers came off the
aircraft at the same time.
JI. Throughout 30th and 31st January, 1971.negotiations continued with
the hijackers in an effort to get the plane released.
12. On February 1, 1971,the Director General, Civil Aviation, India, was
advised by telephone that the law and order situation at Lahore Airport was
still unsatisfactory but was likely to improve by afternoon. Accordingly, the
Director General was reauested to keeo the relief aircraft in readiness to flv
to Lahore at short notice:However, by hidday the situation worsened and in
the interest ofsafety, it was thoiight inadvisable to ask the lndian Aircraft to
leave for Lahore. Meanwhile, because of the tension prevailing in the area
around Lahore Airport the Pakistan authorities arranged ta send the passen-
gers and the crew ta India by road under proper escort at 13.00 hours on
Februarv 1. 1971.
13. ~ebruary 2, 1971. the Governrnent of India announced that the
demand for the release of 27 political prisoners in lndian Occupied Kashmir
made earlier bv the hiiackers as a ore-condition for the surrenderof the olane.
was not acceptable toindia. At 2000 hours on Febriiary 2, 1971,the hijhckers
blew up the aircraft. The hijackers received injuries in the process, and were
taken to a hosoital
14. ~hough'pakistan is not a signatory to the Tokyo Convention of 1963
and to the Convention for the suppression of Unlawful Seizure of Aircraft
of December 16, 1970signed at Hague, it condemns hijacking and is a party
to the UN Resolution 2645 (XXV) of 25 November, 1970,on aerial hijacking
and to the Resolutions adopted by the 17th Session (Extraordinary) of the
ICA0 Asseinbly at Montreal in June, 1970. In pursuance of the aforesaid
Resolutions, the Pakistan authorities not only arranged to return the passen-
gers and the crew to India within 48 hours. but also tried al1possible means to
get the plane released from the hijackers for its return to 1ndia.
15. The Government of Pakistan had deplored the act of blowing up of
the aircraft.
Accept, Sir, the assurance of Our highest consideration
(Signed) SALAHUDDIN,
Director General of Civil Aviation. Office of the High Commissioner
for Pakistan,
499 Wilbrod Street,
Ottawa 2 -Canada.
On the 4th of February, 1971, the Government of lndia unilaterally and
arbitrarily banned al1 Pakistani civilian flights over her territory thus dislo-
cating vital links between East and West Pakistan. Government of India's
action is illegal and a clear violation of international conventions and India's
bilateral agreement with Pakistan.
2. Under the International Air Services Transit Agreement of 1944, each
contractina State arants to other contractinn States "two freedoms" of air in
re5pect o~schrduÏed internaiional wrvice;: (1) Io fly across iis ierritory
wiihout landing; (2) IO land for non-iraflic purposcs. The Chicago Conven-
rion on International Civil Aiiation to which both India and Pakistan are
parties. perniiis operation of inicrnaiional schcduled air services aber the
territory of a contracting Staie in accordance nith special agreements.
3. India and Pakistan siencd a s~ecial bilateral Air Aareement in 1948.
(revived in 1966) accordin; to whiih the operation of P~A'Sscheduled air
services serving vital communication between the two wings of Pakistan,
were permitted to over-flv India and Indian ola'es were allowed to over-flv
Pakisian's territory on a ;eciprocal basis.
4. Although India has unilaterally banned Pakistan's over-flights, Pakistan
has not imoosed anv restrictions on India's flinhts over Pakistan's territorv.
Even after-India's hateral and illegal action, Indian planes continue io
fly over Pakistan on the following routes, although reciprocity is an important
condition of Indo-Pakistan Air Agreements:
(1) Calcutta-Agartala
(2) Calcutta-Bagdogra
(3) New Delhi-Moscow
(4) New Delhi-Kabul
(5) Amritsar-Kabul
(6) New Delhi-Tehran
(7) New Delhi-Kuwait (From Feb. 6)
5. India claims that ban on Pakistan's over-flights is a consequence of the
blowing up of lndian Airlines' Fokker Friendship plane by two Kashmiri
Young men who hijacked the plane to Pakistan on January 30. Actually,
India's illegal ban on Pakistan's over-flights and the hijacking are two distinct
issues. Instead of using normal diplomatic procedures, lndia has resorted to
the illegal use of pressureand threats against Pakistan. lndia has warned that
the ban on Pakistan's flights over Indian territory will not be lifted unless
Pakistan occepts the indiin demand for compen5ation for the Indiîn plme
lndian leaders, including the Prime Ministcr, have threïtened 10 take "furiher
steps" against Pakistanand warned of a "conflict."
6. violent demonstrations and attacks have been organized against Pa- kistan's High Commission at New Delhi. In total disregard of well-established
diplomatic practice, demonstrators broke into the Pakistan Chancery build-
ing, setfire to the guard bouse and a room of the staff inside the Pakistan
Chancery. Some members of the staff were also injured and an official car of
theHieh Commission was burnt.
7. &kirtan had made ilclear that she had nothing Io do with the hijacking
incident. u.hich is a desvcratc act of tuaoKashmin youna men arcd 20 and 21
who claimed to be memhers of the Kashmir ~iberation and have
apparently resorted to this desperate act to highlight the present situation of
brutal reoression in Indian-held Kashmir.
8. ~aGstan does not view hijacking with favour. When the plane Ianded ai
Lahore on January 30, Pakistan promptly deprecatcd hijacking of the lndian
plane and oflcred full CO-operationand a11facilitiesand tofulfil her obligations
under international conventions. The hijackers u,ere persuaded to alloii the
crew membcrs and passengcrs to ledve the plane and prompt action uas
laken to offer them food and shelter. They u,ere -iven full ~rotcction and uere
safely repatriated to India within 48 hours.
9. Pakistan authorities made al1possible efforts to persuade the hijackers
Io leave the plane so that it could be returned to India but they continued
to insist on acceptance of their demands which included the demand for the
release of 36 political workers by India. Pakistan authotities could not even
use force to eject the hiiackers from the plane because thev had threatened to
blow up the plane in such a case. ~oreover, there was sirong public feeling
at Lahore which was controllcd with great difficulty through lathicharge and
tear gas. Use of force aaainst the hiiackers would not have saved the nlane.
but iïcould havecreated a serious law and order situation in the country.
10. The hijackers blew up the plane when the Government of India rejec-
ted their demand to release the oolitical workers. The Government ofPakistan
immediately deplored the bloiing up of the Indian plane which was done in
complete disregard of pleas and persuasion by Pakistani authorities.
11. Pakistan does not condone this act bv the hiiackers and is in no wav
responsible cither for the hilacking of the pl& from-~a<hmir. uhirh is under
India's9nilitiiry occupation, or of the blouing up of the plane by desperilte
Kashmiri Young men. India's charge of Pakistan's complicity in the hijacking
of the plane or its ~ubsequent blowing up is. therefore, completely baseless.
12. India's violent over-reaction is obviously premcditatcd and politicnlly
motivated. Almost simultaneouslv with the demand for comwnsation India
unilaterally banned over-flights of Pakistan's aircraft over'its territory in
violation of its bilateral and international commitrnents. India made no
effort to seek a settlement of this issue throuah established di~lomatic chan-
nels and procedures and tried to pressurize Pakistan to submit to her unilat-
eral and unreasonable demands for compensation which was drafted with a
view to out the blame of hiiackinn and destruction of the olane on Pakistan.
Apart from India's cha~gesa~ainst Pakistan being baseless; no self-respecting
sovereign country could be expected to submit to illegal demands under
duress.
13. India has deliberately over-reacted in accordance with her policy of
confrontation with Pakistan; specially at this lime, the Indian Government is
taking a hard line aaainst Pakistan. with an eve on the imoendin~ general
electiins. Mrs. lndiri~andhi, in an ;lection spe;ch a1~dsutta on ~ebruary 6.
threatened Io take "furthcr stcps" against Pakistan on her return to New
Delhi. Shc made a similar nrovocative staternent in Maharilshtra on February
10. The tough anti-~akistao stand is also designed to cover up al1therecent re~ressive measures in the occu~ied state of Jammu and Kashmir where thev
have banned the Kashmir leb bis Fronet, externed Kashmiri leaders, in-
cluding Sheikh Abdullah and Mirza Afzal Baig and arrested several hundred
political workers. Subsequently, they expelled Mr. Zafar Iqbal Rathor,
Pakistan High Commission's First Secretary from New Delhi, on the fake
charges of organizing an underground movement called "Al Fatah." Mr.
Rathor, who was accused or organizing "Al Fatah" had been in lndia barely
three months, while according to India's own declaration, this organization
had started working more than two years aEo.
14. On9th FebrÜary the ~overnment of Ïndia delivereda note to Pakistan,
the tone of which is extraordinarilyprovocative and belligerent. lndia has not
acce~ted Pakistan's invitation to settle mutual issues in a s~irit of under-
it:tnd#n!:. tIir.)ugcitahlirhed Jiplornîtic procedures. lndia hsi rcitcrJteJ
hcr iinrclisonable stand tocontinuç the han <ini~vcr-Rightsand hss thrcatened
to take further retaliatory stem unless her demands were met. India has
objected to our refcrencé to the disputed territory of Kashmir and asked
Pakistan to vacate Arad Kashmir and threatened consequences. This natu-
rally increases Pakistan's apprehensions of lndia taking provocative military
, action across the ceasefire line.
15. Expulsion of Pakistan's First Secretary on false charges. arhitrary ban
on Pakistan's civilian over-flights, demand of compensation under duress,
attack on Pakistan's High Commission in New Delhi, threats to take "further
steps" against Pakistan are a series of illcgal acts ivhich are part of India's
DOI~CY of hostilitv and confrontation towards Pakistan. The lan neincident.
for which the ~ivernment of Pakistan has no responsibility whatsoever, has
been used as an cxcuse to heightcn tensions on the eve of India's general
elections.
16. India's illegal and unilateral actionin banning Pakistan's over-flights
is causing great financial losscs to Pakistan due to re-routing of flights via
Ceylon and India's useof threats and intimidation against Pakistan is height-
ening tensions in the sub-continent, and the responsibility for further deterio-
ration of the situation would entirely rest with India.
17. Pakistan continues to allow lndian over-flights. India must lift her
illcgal ban and honour her legal commitment under the International Air
Services Transit Agreement of 1944, Chicago International Civil Aviation
Convention of 1944 and the Indo-Pakistan Air Services Agreement of 1948,
as revived in 1966. Director General of Civil Aviation,
19, Napier Barracks,
Karachi.
No. 8-4/71/G-l l/
Dated the 20th Feb., 1971
To
The President of the ICAO Council,
International Civil Aviation Organization,
Montreal (Canada).
Subject: Violation by India of the ChicagoCotrventionon Internatioi~alCivil
~v;&ion and /ntern~tio,ra/ ~>r Serviceshisit Agreement of 1944, and rhe
Agreementbetweenthe Gov~rnmenrof Pakislun and the Governmentof India
relatitzgro Air Servicesof lune, 1948.
Sir,
1 have the honour to refer to Our cable dated 5th February, 1971 and to
forward the following for action by the ICAO Council.
2. Being parties to the International Air Services Transit Agreement,
both Pakistan andlndia have granted to each other the privilege, on the hasis
of reciprocity, to fly across each others territory witbout landing, scheduled
international air services (Article 1,Section 1).
3. Under Article 89 of the Chicago Convention this privilege can he
withdrawn only in case of war or on declaration of state of national emer-
gency to he notified by the Council of ICAO.
4. Aeain under a bilateral agreement concluded in 1948 between the two
countri&, Pakistan has a rightto operate the air services over-flying Indian
territory, connecting the two wings of Pakistan. The provisions of this
agreement were temporarily suspended in 1965 on account of the out-break
of hostilities between the two countrics. However, the over-flights were
resumed in February, 1966, on a rrciprocal basis, after exchange of signals
between the Directors General, Civil Aviation of India and Pakistan.
5. In a Note handed to the Ministry of Foreign Aiïairs, Government of
Pakistan, on February 4, 1971,the Government of India conveyed its decision
banninx .he over-flishts of Pakistan Airlines over Indian territorv. It blamed
the Cio\,crniiicni of P~ki,i:in for hijicking aiid complic.t! in the siib\<qui.ni
blowi~igi.p uf thc pl~ne b) thc hiilck~rr (relcv.int e\tr;i<ii of 111s1nJi.tii Soie
enclciscd). l'lieGovernnicnt of 1'3ki5in. un I.cbruar) 5, 1971, in rcply.g.i\e
the f~ctii.il p,i\iti,in icithe C;,ivcrnmciit oi India dnd catcgoricjlly denicd any
rr.pt,n.~hiliiy e.ihcr ior the hijsckinp of the plone or 11,i~bsequeili dv\ir~c-
rion (relc\lnt c\ir;icts cnclo<ed.il,\iinexiire II). In an<~therXute dateil ihc 9th
~ebr"ary, 1971, the Government of lndia so;ght to justify its ban on over-
flights of Pakistan Airlines repeating its earlier assertion that the Pakistan
authorities were responsible for the hijacking of the Indian aircraft and ils
stibsequent destruction (relevant extract enclosed at Annexure 111).In reply the
Government of Pakistan on February 13, 1971, refuted the Indian contention
that there was any reliition between the hijacking of the Indian plane by Iwo
Kashmiri youths from a territory that is under India's military occupation
and the ban on over-flights by Pakistani Airlines. In spite of lndian action the
Government of Pakistan has stood by its bilateral and international cornriiit-ments under the Chicago Convention on International Civil Aviation. the
International Air services Transit Agreement and the Bilateral Agrremenr of
1945with India. Pakistan hîs nor hanned flight of Indian aircriift ovcr Pakic-
tan territory.
6. As a result of India's arbitrary and unilateral action Pakistan Airlines
flights have been re-routed througb Colombo. It increased the flight time by
3 hours and the operational cost by Rs 1,000,000 per week. Further, because
ofthe extra time taken to fly the circuitous route between the two wings, the
Pakistan Airlines had to reduce its frequency on other routes, thereby sus-
taining further losses.
7. Pakistan had no responsibility in the hijacking of the Indian aircraft or
in its subsequent blowing up by the hijackers. The CO-relationsought to be
- - ~-~shed hv lndia between hiiackine of its aircraft and the han on flieht
of Pakistani aircraft over its te&itory is, to say the least, unwarranted and
unjustified. Ifa country which isa party to the ChicagoConvention is allowed
to flout its obligations unilaterally the very abject of the Convention would be
defeated.
8. The civil aviation autborities of Pakistan, therefore, urge the President
of ICA0 Council to proceed against India for the injustice and hardsbip
caused to Pakistan under Article 2 of the Transit Agreement.
Accept, Sir, the assurance of Ourhighest consideration.
(Signed) SALAHVDDIN,
Director General of Civil Aviation. Attachmenr C
Most Immediate High Commission of India,
Islamabad.
No. ISL/POL/D/10/71 February 3,1971
The High Commission of India in Pakistan presents its compliments to
the Ministry of Foreign Affairs of the Government of Pakistan and has the
honour to state as follows:
The encouragement and support given by the Government of Pakistan ta
the two persons who hiiacked the Indian Airlines Fokker Friendship aircraft
to aho oi on January 30, 1971 is in violation of al1 norms of inteinational
behaviour and of International Law. The attitude of the Pakistan authorities
in this entire matter has been extremely obiectionable from the time the
aircraft was hijacked to Lahore. No attempt &as made to condemn the inci-
dent and, in fact, by agreeing to grant political asylum tohese two criminals,
the Government of Pakistan have made clear their direct involvement in it.
The encouragement and support given to the two persans by the Govern-
ment of Pakistan directly led to the blowing up of the aircraft on the 2nd
February. The Pakistan authorities neither made any effort to restrain them
from blowing up the aircraft, nor did they, according to reports, make even
an attempt to Save the aircraft despite the fact that under the established
international law and nractice it was the resoonsibilitv of Pakistan to return
immediately the hijackéd aircraft with the baigage, caigo and mail.
The High Commission of India strongly protests against the action of the
Government of Pakistan in extendinz assistance and sunoort to. and even
encouraging, these two criminals and-for their failure ta protect the aircraft
and thecargo, baggage and mail.
The Government of India claim damages in respect of the destroyed air-
craft as well as for the cargo, baggage and mail and the loss resulting from the
detention of the aircraft in Pakistan.
The Government of India hold the Government of Pakistan whollv resoon-
sible for any consequences that may follow from this deplorable inc;dent'and
hope that the Government of Pakistan will refrain in future from assisting,
inciting or encouraging such incidents in the interest of peace and harmony
between the two countries.
The High Commission of lndia avails itself of this opportunity ta renew
ta the Ministry of Foreign Affairs of the Governrnent of Pakistan the
assurances of ils highest consideration.
The Ministry of Foreign Affairs,
Government or Pakistan,
Islamabad High Commission of India,
Islamabad.
No. ISL/POL/103/6/11 February 4, 1971.
The High Commission of India in Pakistan presents its compliments to the
Ministrv of Foreign Affairs, Government of Pakistan. and has the honour to
state a; follows:
The Government of India are deeply disturbed by the instigation, abctrneot
and encouraeement aiven on Pakistan territorv to unlawful and subversive
activities ln Indi~hi sas resultrd in the reccnt hilacking of an I.A.C. plane
which was. in spite of repedted reauests from the Government of India. not
onlv not returnéd to us but was deiiberatelv allowed to be hlown UD bv two
crirkinals~under the very nose of the West ~akistan authorities. ~he Govern-
ment of lndia have exercised restraint and tried throughout not to escalate the
incident. -
The Government of India have demanded compensation for the loss of the
aircraft, baggage, cargo and mail and the damage caused hy the detentionof
the hijacked plane in Lahore. The protest and the demand for compensation
was conveyed to the Pakistan Government yesterday. Until this matter is
satisfactorilv resolved. the Goverorneni of India have decided to susvend.
with immediate effect,the ovefiight of al1Pakistani aircraft, civii or miÏitary;
over the territory of India. This decision is not made to inconvenience the
veovle of India or Pakistan but is taken in the ho~e that the Government of
~akistan will settle this matter amicably and peacéfullywithout delay.
The High Commission avails itself of this opportunity to renew to the
Ministry of Foreign Affairs the assurances of its highest consideration.
The Ministry of Foreign Affairs,
Government of Pakistan,
Islamabad.Most Immediare High Commission of India,
Islamabad.
No. ISL(POL)/103/6/71 Fehruary 5, 1971.
The High Commission of India in Pakistan presents its compliments to the
Ministrv of Foreign Affairs, Government of Pakistan, and has the honour to
state as-follows: -
The two persons biohd. Hashim Qureshi and Mohd. Ashraf, who hijacked
an lndian Airlines aircrilft ta Lahore on the 30th January arc eu-lt, ~f serious
criminal olfences under lndian Law by their act for .rr,hichthe) are required to
stand thcir trial in India. It is requested thar they may bc returned imnicdiatcly
under escort to the Indian authorities at a place and lime to he mutually
agreed, the details of which may becommunicated at an early date.
The High Commission avails itself of this opportunity to renew ta the
Ministry of Foreign Affairs the assurances of its highest consideration.
The Ministry of Foreign Affairs,
Government of Pakistan,
Islamabad.
Aide Memoire
The Government of Pakistan cannot accept the demand of the Government
of India for the return of Messrs. Mohd. Hashim Qureshi and Mohd. Ashraf
to India as requested in the High Commission of India, Islamabad, Note No.
ISL(POL)/103/6/71 dated Fehruary 5,1971. The said Kashmiri young men are
not the nationals of India. Therefore the question of handing them over to
India simply does not arise. Ministry of Foreign Affairs,
Islamabad.
No. IN(II1)-14/1/71. February 5, 1971.
The Ministry of Foreign Affairs presents its compliments Io the High
Commission for India in Islamabad and has the honour ta acknowledge the
receiot of the Hish Commission's Note No. 1SL/POL/103/6/71 dated 4
~ebr;ar~ 1971, conveying the decision of the Indian ~ovefnmént Io suspend,
with immediate efïect. the overflight of al1Pakistani aircraft over its territory.
2. The Government of Pakistan cateeoricallv reiects the contention of the
Government of India that the ~akist& authoritiés are responsible for the
hiiackine and had deliberalely allowed the Indian Airlines Corporation plane
ta be bÏown up. The High commission is fully aware that the plané was
throughout in the possessionof hijackers and any attempt at dislodging them
bv force bv the Pakistan authorities could onlv have been counter-productive.
~he ~ove;nment of Pakistan took al1reason3hle measuresuiihin ils mcans Io
obtain the rcleaseof the plane. Ithas since oiiiciîlldeplorcd the blowing up
of the.plane.
3. The logic of the demand by the Government of Lndia for compensation
is not understood. The IAC aernplane was hijacked by two nationals of Kash-
mir, a territory which is under the military occupation of India. It is beyond
c~mprehension how the Government of India could consider the Govern-
ment of Pakistan, in any manner, responsible for the act of hijacking. The
Government of Pakistan subscribes ta international conventions which are
designed to discourage hijacking and fully stands by its commitments. It
cannot, however, have control over and be responsible for hijacking of planes
by persons outside its territorial jurisdiction.
4. The High Commission's Note regarding compensation for the IAC
aircraft was received late in the evening of 3 Fehruary 1971.The Government
of Pakistan regrets that within a short period of the delivery of thesaid Note,
the Government of lndia should unilaterally decide to suspend the over-
Rights of al1 Pakistani aircraft, including civilian aircraftover the Lndian
territory.These overtlights have been operating, on reciprocal basis, under
agreed arrangements between the two Governments. Their suspension in
this êrbitrary and unilateral manner cannot but be interpreted as a serious
breach of international and bilateral commitments.
5. The Government of Pakistan is surprised at the Government of India's
claim that the said measure was taken not ta inconvenience the people of
Pakistan. The Government of lndia is well aware that the commercial PIA
fltghti, Cxparifrim pa%eiigcr\ sarry essential supplies io Fait Pskistan and the
suspcnrion of 1hc.e Riahts cannot but sdr,er,ely affect the present relief opers-
tions in East Pakistaa
6. The hijacking incident is the direct result of repressi\e measures taken
by the Ciovçrnmeni of India in 0~c~pied Kashmir. The Go\crnment of P3-
kisian regrets thai instead of emplo)ing normal diplomatiç procedures for
rcsolvinç ii. the Go\.ernmeni of Indis h3s uwd thisinodeni IOheighien tension
bçtwecn the two counirics. In addtlion io ihç wrwns~on of overflighis of al1
Pakistani aircraft over Indian territory, the ~akistani diplomatic mission and
its personnel in New Delhi have beensubjected to unceasing demonstrations~ ~ ~he last few davs which culminated vesterdav in the burnina of - Hip-
Commission property and injuries to its personnel. The Gobernment of
India's attention has been invited to this in an aide mkmoirc which was handed
over to the lndian High Commissioner yesterday. as wellas in oral representa-
tions made to him.
7. The Government of Pakistan haî no wish io allow the situation to
deteriorate further, and while reserving its position to claim compensation
for the damage caused to the Pakistan High Commission in New Delhi,
reauest the Government of India to rescind its decision to ban the overfliahts
of'pakistan aircraft. and invites ilto have recourse to estabished diplornatic
procedurçs soas to allow the situÿtion to reiurn to normal. Thcre is no reason
6hy this problem, like other matters between Our two countries, cannot be
solved hy mutual discussion, in a spirit of understanding.
8. The Ministry avails itself of this opportunity to renew to the High
Commission of India in Pakistan the assurances of its highest consideration.
The High Commission of India in Pakistan,
Islamabad. Ministry of External Affairs,
New Delhi.
No. PBP/4kL/6/71.
The Ministry of External Affairs presents their compliments to the High
Commission for Pakistan in lndia and with reference to the Note Verbale
dated 5th February, 1971,handed over to the High Commissioner for lndia
by the Ministry of Foreign Affairs of the Government of Pakistan have the
honour to state as follows:
The Government of India categorically reject the disclaimer of the Govern-
ment of Pakistan of their resoonsibilitv for and involvement in the crime of
hijacking of the Indian ~irlines aircrakt to Lahore airport, on 30th January,
1971,and its blowing up on 2nd February, 1971.Instead of showing a willing-
ness to settlethe matter amicably and agreeing to pay compensation for the
loss and damage caused, the Government ofpakistan have sought to confuse
the issue by introducina wholly extraneous matters and have even gone to
the cxtent of qucstioning the sovereigniy and territorial integrity of India.
The Government of India regard this attitude of the Govcrnmeni of Pakistan
as totally unco-operative. neaative and obstructive. If the Government of
~akistanare n~~~-~lline -a setrle the ~at~ ~ ~ ~co~o~nsation and to return the
two hijackers to face their trial in India, the situation may deteriorate, and
Government of Pakistan will be wholly responsible for any consequences that
mav follow
The Government of lndia are fully convinced, on the basis of evidence,
that the premeditated criminal act of hiiackinc!and wanton destruction of the
lndian Airlines aircraft within the pritected area of Lahore International
Airport was the direct result of the Government of Pakistan having permitted
their territory to be used for instigating, abetting and encouraging unlawful
and subversive activities against India. The Government of India wish ta
remind the Government of Pakistan that on September 1, 1970,they had in-
formed the Government of Pakistan through their Hiah Commission in New
Delhi about the existence of a conspiracy in Pakistan Cohijack Indian aircraft
to that country. It was because of the active involvement of agencies of the
Government of Pakistan in such subversive activities that the Government of
lndia had recïntly to dcclare a member of the diplomatic pcrr~nnel of ihe
Pakistan High Comniirrion in India p~rr,,nu,,ong.ruta.
The resoonsihilitv of the Government of Pakisl~n for thc criminal hiiacking
and delibérate destruction of the lndian Airlines aircraft is borne oit, inr&
olio,by the following facts:
(i) The Government of Pakistan gave asylum to the two self-confessed
criminals even while they were threatening ta blow up the plane and
before thev had been disarmed and had surrendered themselves to the
Pakistan kthorities;
(ii) They have publicly expressed their solidarity with these criminals and
their associates:
(iii) They refused todisarm the hijackers and take them inIo custody;
(iv) They failed ta take adequate measures to protect the aircraft and ils
contents;
(v) They permitted the two criminals to move and act freely in the airport area and terminal building, including making long-distance telephone
calls to their accomplices in Pakistan and meeting political leaders
like Mr. 2. A. Bhutto, Mian Mahmood Ali Hasuri, etc., journalists and
pthers freely;
(vi) The criminals were ~rovided with food and other amenities for 3t davs. . .
thus Iacilit~ting their coniinucd unlarrful occupation of the plane;
(i II) The Lahore Stati<,n of 1'skist;in TV.- a <ioi,crnmcni organisali~in-was.
obviously with fore-knowledge. able to film and later televise the entire
sequenceof the blowingup of the aircraft;
(viii)The two criminals, even aner they had come out of the aircraft, were
allowed to prevent the local Fire Brigade from fighting the Rames
engulfing the aircraft;
(ix) Crowds were permitted to congregate in the protected area of an inter-
national airport when the authorities had al1the resources of a Martial
Law administration available to them;
(x) The two criniinals were allowed to destroy the aircraft in full view of
the trooos. oolice and other airoort oersonnel: and
(xi) The Go;e;"ment of Pakistan cieateé unnecesiary delays and difliculties
frustrating the attempts of the Government of India to be of assistance
in bringing back 10 India the passengers,crew and contents of the air-
craft besidesthe aircraft itself.
The conduct of the Government of Pakistan in relation to this act of air-
piracy compelled the Government of lndia to enforce certain meassures for
ensuring safety of aviation and the restoration of public confidence in air
transit. Accordinalv. thev were compeiled to re-route their own Services to
avuid o\erliying l;ikist.inand IO .uipcncl o\,cr-fllghtb ïcriiw Indian tcrri1i)r).
hy Pakistan ~iir..rxft. boih civil 2nd milctsry. The vtol~iion by ihc Governiiicnt
(if I'akistin of their intçrnation;tl ohliaaiions undcr the Toks<i Con\ention of
1963 on Certain Offences on Board Aircraft, the Solemn ~eclaration of the
Extraordinary Session of the Assembly of the lnternational Civil Aviation
Organization held at Montreal in June 1970. the United Nations General
Assembly Resolution No. 2645 (XXV), and the Hague Convention of De-
cenber 1970,and their failure even now to give compensation for the loss and
damase caused to lndia and to prosecute the two hiiackers and return theni
to lndia make il clear that the'Government of ~ak-istan are not willing to
ensure the saiety and seciiriiy of aviation and air transit over the sub-conti-
nent. It is therefore necessaryto continue these restrictions until the Govern-
ment of Pakistan accept their responsibility and make amends for what has
been done aiid give assurancesabout the future.
The Government of lndia arc aniazed at the accusation inade bv the
Ci,>\,crniiicnt tif I>akistan thst Indid'r xtion \r.ill interiere in the carri& of
csseni~al\~plilics for rel:ef work in Cüst Pcikijtan. The) trduld like to relnind
the Go\errinicnt oi I':ik<stin thxt the) hdJ g\en the entriurJinsrs fa;ilitics
of a blanket clearance, covcrinç unrestricted number of over-flighis, even at
night, by Pakisian Air Force aircraft across lndian territory, for ferrying
relief supplies to East Pakistan, for a period of over two months. Further, it
was the Government of Pakistan that created al1kinds of diff~ ~~ ~eî a~ ~ ~~- ..-
structions in the way of coinmencing and maintaining the deliveries of relief
supplies from lndia for the cyclone-affected people of East Pakistan. In anv
taie, if the Governnient of Pakistan wish 10 IIY any relief supplies to ~asf
Pakistan. they can still do so in Foreign aircraft. lnstead of accusing the
Governinent of India, the Government of Pakistaii should ponder whethecthrough their wilful interference in the internal affairs of India they are not
creating a situation of confrontation which is not in the interests of the people
of 1ndia or Pakistan.
The Government of India take serious objection Io the reference to the
internal affairs of lndia in the note under reference, and wish to remind the
Govemment of Pa~~stan of their obliaation to vacate their aaaression on
Indiin territory in the Indian Staie of ïammu and Kîshmir. If-& ~overn-
ment of Pakistan persists in its attitude of openly or clandestinely interfering
in India's internal apüirs, they will be wholly responsiblc for the consequcnces
of this policy.
The Government of lndia calenorically reiect the insinuation in the same
notcthat the Pïkistan ~igh ~ommksionin ~ndiaand ils personnel uere delibe-
rately subjccted to demonstrations, and draw the attention of the Government
of Pakistan to the extraordinary behaviour of the personnel of the mission
whose fusillade of brickbats and-bottles injured the ~oliceînd other personnel
engaged in the duiy of protecting the mission and ils personnel. The Govern-
ment of Pakistan should realise that these sDontaneous demonstrations were
only a natural expression of the indignationof al1 sections of Indian people
against the deliberate provocation of the Government of Pakistan. Govern-
ment of lndia wteporically deny th31 any member of the Pakistani misrion
was injured or evén touched by the demonstrators. The Government of
India had assured the Pakistani mission that al1possible measures had been
taken and would continue to be taken to safeguard their security and this
assurance has been fully implemented by theGovemment of India through the
very elaborate preventivemeasures they look.
The demands made by the Govemment of India are logical and simple:
first, the Government of India should be compensated for the loss of the
aircraft and its contents and other losses due to destmction of the aircraft,
and secondlv. the two criminals who hiiacked the aircraft should be surren-
dered to lndiin auihoritiesso that they can stand their trial.
The hlinistry of External Affairs avails themxlves of this opportunity Io
rencw to the Hiah Commission of Pakistan in lndia the assurances of their
highest considerafion.
February 9, 1971. Ministry of Foreign Affairs,
Islamabad.
February 13, 1971.
No, lN(~1)-14/1/7l
The Ministry of Foreign Affairs presents ils compliments Io thè High
Commission for India in Pakistan and with reference to the Note dated the
9th February, 1971, handed over to the High Commission for Pakistan in
New Delhi by the Ministry of External Affairs, Government of India, has the
honour Io state as follows:
2. The points raised in the Government of India's Note under reply
reaardina comoensation for the loss of aircraft and for the return of the
hi;acker;were dealt with in the Government of Pakistan's Note dated February
5 and the aide memoire given to the Indian High Commissioner in Islamabad
on Februarv 6.
The ~ovérnment of lndia, in ils Note under reference, has alleged rhat the
Government of Pakistan has demonstrated no willingness io settle the issue
amicablv. The alleeation is farfrom beinc!true. In this connection. the alten-
lion of ihe ~overnkent of India is invite: to paragrapb 7 of paki;tan3s Note
dated February 5, 1971.in which the Government of Pakistan called upon the
Government of India to settlethe issue throuah mutual discussion in a spirit
of understanding. The Government of ~akctan is constrained to note ihat
the Government of India has not res~onded positively to this constructive
proposal. Instead, it has persisted in iis policiof coercion and intimidation
by insisting that the ban on the flight ofpakistani aircraft over Indian territory
would continue until Pakistan has yielded to India's arbitrary demand for
comoensation. The Government of India has further threatened Pakistan
iviih consequences if ihis demand is no1 met.
3. The Government of Pakistan has repeatedly refuied the Indian charge
of Pakistan's responsibility for the hijacking and the subsequent destruction
of thc plane by the hijackcrs. Pdkistan subscribes to the different conventions
on hiiackina. It is in the s~irit thai immediately after the landing of the plane
at ah or ehe ~overnment of Pakistan assured the Govcrnment of lndia of
al1 possible efforts io gel the plane released from the hijackers for ils rcturn
to India. On its own the Government of Pakistan h3d invitcd a senior diplo-
mat of the Indian High Commission to visit Lahore to bc on thc spot. This
cuntrasts with the negative attitude of the Government of lndia in repeatedly
declining fasilities for over two monihs IO Pakisiani otficialstacontact their
nationals in the Pakistani enclaves in Cooçh tlihar where ncarly 300 Pakistani
hai,e los1their Iives and scores ha\e been abducted and injured al thç hands
of Indians. Further. in spite ofstrong public feeling aroused by India's rïceni
actions in Occupied Kaïhmir. the Government of I'akistan had arranged for
the safe return of the passengers and crew of the plane at the first available
o~portunity. Unfortunatcls. des~ite ils best efforts the Cio\,ernment of Pakis-
tan could no1prevent the s;bscquenr blowing up of the plane by the hi~ackers
which the Government prompily deplored
4 It is rearettahle that instcdd of dp~reciating Government of Pakistan's
CO-operatioi and humanitarian attit;de, the ~overnment of India. in its
Note under reference, has tried to confusethe issue by referring to a few s!de
issues like the hijackers moving out of the plane, establishingcontacts with
outsiders, etc. The Government of Pakistan has repeatedly made il clear thaton no occasion both the hijackers had left the plane at the same time. One
of them invariably remained in the plane and any move to disarm or arrest
the other would have resulted in the blowing up of the plane by the one on
board. The hijackers were indeed allowed to speak to a few people. This
was done because the hijackers refused to speak 10 any Government official
and it was onlv throuah these non-officiais that the Government of Pakistan
could try to pérsuadethe hijackers to surrender the plane. The Government
of India must also be aware of several instances in which hiiacked aircraft
have been blown up by Arab freedom fighters in different paris of the world
and the fact that none of the Governments were held responsible for hijacking
and destruction of the aircraft; nor was an issue made of compensation. It
is also~n~ ~ ~thin the knowledee of~-he ~~vernment of Pakis~ ~ ~hat su~ ~ ~ ~-~~
acts were at any lime condemned by Government of India.
5. The Government of Pakistan is surprised at the justification offered by
the Government of lndia in imposing a ban on the Righ.tsof Pakistani aircraft
over Indian territory. The Government of Pakistan fails to see any relation
between the hiiacking of the Indian plane. by nationals of Kashmir, from a
territory undeÏmilitary occupation of India, with the suspension of flights of
Pakistani aircraft over Indian territory which are governed by specific inter-
national and bilateral agreements. Further. the re-routing of lndian air ser-
vices as mentioned in théNote referred to.above, was done not for reasons
of safety but as a prelude to India's arbitrary decision to ban the Right of
Pakistani aircraft. The Government of India is well aware that its aircraft
have continued to fly over Pakistan territory. uithout any intervention. cven
after the imposition of the han by the lndian Go\crnmeni. Therel'ore, while
deploring India's unilateral action in viohiion of inrernationiil and bilateral
commitments, the Government of Pakisian reserves the r:ghi to claim com-
pcnsïtion frum the Government of India for the cxtrn expenses being incurrcd
bv the Pakistani Airlines as a result of the diversion of fliahts of th& aircraft
ober a much longer route due entirely to breach of conïractual obligations
by India. The Government of lndia are well aware that such a ban can be
imuosed onlv in the event of la) national emeraencv IbJ-war .. Ir. denun-
ciation of the convention. Since'none of these conditions exist, the arbitrary
action announced by India is entirely unjustified and a clear violation of sol-
emn international aheements
6. The ~overnment of Pakistan regrets that the Government of India has
again levelled the baseless charge against the Government of Pakistan for
. -
instigating subversive activities against India. The Government of Pakistan
has repeatedly made it clear that these charges are without any foundation.
In this connection the Government of Pakistan would like to remind the
Government of India that on September 1, 1970, when the Pakistan High
Commissioner in New Delhi was informed of a "conspiracy" to hijack an
Air India plane, the High Commissioner immediately asked the Indian
Government to indicate in what manner Pakistan could help and requested
for details of the so-called "conspiracy" to enable the Government of Pakis-
tan to take necessary measures. On the Government of India's refusal to dis-
close anv details. the Hieh Commissioner advised the Government of India to
-~ ~ ~ ~ ~ ~ . ~~ ~ ~ ~ ~
bring théfacts th the notice of the Interpol if il felt any hesitation in taking the
Government of Pakistan in10 confidence in this matter. It is, therefore, sur-
prising that the Government of India should hold I'akistan responsible for
the hijacking in January 1971,on the basis of a crypticoral communication in
September 1970.
7. Further, the Government of India, in its Note under reference, hasreminded Pakistan of its "obligation" to vacate "aggression on Indian terri-
tory in the Indian State of Jammu and Kashmir". The Gove~nment of Pakis-
tan is amazed at this preposterous suggestion because it is without any
foundation whatsoever. As the Government of India is well aware, Pakistan
is not in occupation of any part of Indian territory. In this connection the
G-.er- - ~ ~f Pakistan would like to reiterate that unlike India which. in
violation of its commitment under the UNC~PResolutions had progressively
strengthened its unlawful military hold over Occupied Kashmir, Pakistan
remains willing as it always has beewto honour itscommitments under the
said Resolutions. It is for the Government of India to ponder whether its
continued forcible occupatioo of Kashmir and refusal to seek an amicable
solution of the dispute iSnot leading to a condition of confrontation between
India and Pakistan which is against the interest of the people of the two
8. The tension generated by recent Indian actions has resulted in inflaming
of public passions. In fact, the mob frenzy let loose in India has already led
to unfortunate reoercussions resultina in a recunence of riots anainst the
Muslim minority of India in ~hmad~bad and Baroda. Pakistan genuinely
feels that it is entirely up ta the Government of India to stop the situation
from deteriorating further.
9. For its part the Government of Pakistan regrets the steady deterioration
in the situation and once again invites the Government of India to have
recourse to an amicable settlement of the issue through discussions without
resorting ta coercion and threats.
10. The Ministry of Foreign Affairs avails itself of this opportunity to
renew to the High Commission of India in Pakistan the assurances of its
highest consideration.
The High Commission
for India in Pakistan,
Islamabad. Alrachmenr D
SUMMARY OF TOTAL LOSS
Additional costdueto
Interwingoperationsvia Colombo U.S.S. 5,94,919
Loss of profitdue to cancellation
of servicestocope with operations
via Colombo
U.S.S. 35,909
Total loss U.S.S.6,30,828
LOSS OF PROFIT DUE TO CANCELLATIONOF SERVICES
TO COPE WlTH INTERWINC OPERATIONS VIACOLOMBO
(In U.S.S.)
No. of flighrs
cancelled Total
per week revenues Total cost Profi,
Khi-Lon-Khi 4 224,275 209,786 14,489
Dac-Khi-Dac 3 62,369 56,069 6,299
Dac-Lhe-Dac 3 60,479
--- 453,509 15,119
347,123 311,214 35909
--- PAKISTAN INTERNATIONAL AIRUNES
ADDITIONAL COST PER WEK ON INTERW'INO OPERATION VIA COLOMBO
(Amount in U.S.8)
Dac-Ir/-Dac Doc-Lhe-IslondBarkoc-Khi-Dar(corpo)
Slctor Dn~Khi-Doc Dac-Lhe-Dac
Ov<rflylnp lndln Colombo lndio Colombo Indi. Colombo India Colombo lndio Colombo
Hying lime round trip 6.36 11.55 5.26 14.68 6.17 15.30 6.50 16.05 ,636 11.55
COSIper Pight hou,
69 69 69 69 69 69 69 69 69
Flight crew remuneration 69 23 23 23 23 23 23 9 23
Crew food and allowances 9 23 580 580 580 472 472
Aircraft fuel and oil 472 472 580 580 604 157 157 157 157
Direct maintenance 157 157 157 157 157 157 244 244
Depreciation 244 244 244 244 244 244 244 244
lnsurance 68 68 68 68 68 68 68 68 68 68
Interest 86 86 86 86 86 86 86 86 86 86
Landing fea 55 31 57 44 50 45 99 63 55 31
Other flight expenxs 16 16 16 16 16 16 16 16 16 16
Sub total 1176 1166 1300 1287 1317 1288 1342 1306 1176 1166
Shop engineering and storeverheads 379 379 355 355 355 355 355 355 379 379
Parsenger service cos1 MI 201 214 214 214 214 214 214 4 4
Station cos1 698 698 654 654 654 654 654 654 698 698
Traffic handling - - - - - - - - -
Advenising and publicity 186 186 175 175 175 175 175 175 186 186
Sales overheads 242 242 228 228 228 228 228 228 242 242
Central administration 440 440 411 411 411 411 411 411 440 440
Training and pre-operating cos1 93 93 87 87 87 87 87 87 93 93
Cost of non-revenue flights 9 9 9 9 9 9 9 9 9 9
Sub total 2248 2248 2133 2133 2133 2133 2133 2133 2051 2051
Total operatingcos1 3424 3414 3433 3420 3450 3421 3475 3439 3227 3217
Cost per round trip 21777 39432 18058 50206 21286 52341 225-8 55196 205-4 37156
Excess cos1per round trip - 17655 - 32148 - 31055 32608 16632
Number of round trips 20 17 3 - I - 7 7 4 4
Excess cos1due Io overRyingColombo - 300153 - - - - - 228256 - 66528
594919 PAKISTAN INTERNATIONAL AIRLINES
SUMMARY SHOWINC ADDITIONAL COST PER WEEK ON INTEK-
WlNC OPEKATIONS VIA COLOMBO
(Amolr~~ri>~ U.S.$)
NO.,il Additi<mal
Iloirr* ro<,>,d,,iD1rco,<cri<.v Plighhorfrs Cosiprrflighbour Tala1 cor, cos,
uvcrflyina lndiu Cn1oi,~bo Incliu Culumbo Indio C«loi,tho India Colombo
Dac-Khi-Dac 17 108.12 196.35 3424 3414 370204 670339 300135
Dac-Lhe-lrland back 7 45.50 112.35 3475 3439 158113 368369 228256
Dac-Khi-Dac(cargo) 4 25.44
46.20 3227 3217 82095 148623 66528
179.06 354.90 610412 1205331
594919 COMPLAINT OF ME Ci<)VrRVME OhTPAKISTAS, DATU> 3 MARCH 1971,
FILED UNDER ARTICLE 21OF THE RULESFOR THE SETTLFMFNT OF DIFFLRESCES
APPROVED BY THE COUNCIL OF THE INTERNATIONAL CML AVIAïiON
ORGANIZATlON ON 9APRlL 1957
Government of Pakistan Complainant
Government of India Respondent
Conrenrs
Item Pages
1. Credentials ....................... 92
2. Complaint ....................... 93
3. Memorial ....................... 94
4. Attachment A. ..................... 97
5. Attachment B ...................... 97
6. Attachment C ...................... 97
7. Attachment D ..................... 97
No. AV-(AI1l(10~170
Government of ~akistan
Ministry of Defence
the 3rd March, 1971.
From: Air Vice Marshal A. Quadir,
Joint Secretarv to the
Governmeni ;f Pakistan,
Ministry of Defence (Aviation Division).
Islamabad (Pakistan).
To: The President of the Council of
the International Civil Aviation Organizaiion,
International Aviation Building.
1080 University Street.
Montreal (canada).
Subject: Suspensionby Governrnent of Indiaof rheflights
of Pakistan aircraft orethe territory of India
Sir,
1 am directed by the President of Pakistan to notify that His Excellency,
Mr. M. S. Shaikh, High Commissioner for Pakistan, in Canada, Ottawa,
Ontario, Canada, is the Chief Agent of Pakistan in the above matter.
This is also to notify that Mr. Syed Sharifuddin Pirzada, S.Pk., Attorney
General for Pakistan is the Chief Counsel in the matter.
Accept, Sir, the assurances of Our highest consideration.
(Signed) A. QADIR,
Air Vice Marshal,
Joint Secretary to the Government of Pakistan. No.AV-(A)] I(IO)/71
Government of Pakistan,
Ministry of Defence
the 3rd March, 1971.
From: Air Vice Marshal A. Qadir,
Joint Secretary to the
Government of Pakistan,
Ministry of Defence (Aviation Division),
Islamabad (Pakistan)
To: The President of the Council of the
International Civil Aviation Organization,
International Aviation Building,
1080 University Street,
Montreal (Canada).
Subject; Sldspension by Goh,ernmeno rf Jndiaof theflighrs
of Pakisran aircraft over rhe rerritoryof Itrdia
Sir.
1am directed by the President of Pakistan to submit a complaint and 10file
a reauest on behalf of the Government of Pakistan to the Council of the Inter-
national Civil Aviation Organization in accordance with the Kules of Proce-
dure approved by the Council on 9th April, 1957. The Memorial as required
under Article 21 of the Rules, is attached.
2. The illegal and unjust action by the Government of India of suspending
flights of Pakistan aircraft over ils territory from the 4th February, 1971, in
breach of ils international obliaations. has caused and iscausinrrreat iniustice.
hardship, lors anil injury 10 l>skistanwhich rcquires immedidtr attention ani
action of the Coiincil. 11is requchlcd th.it inviciv of the scriourners of the
situation. the Council may examine the situation immediately. inqu..e i.to
the matter, make appropriate findings and recommendations and grant
necessary reliefs to Pakistan as stated in the attached Memorial.
3. The Complainant requests for early action, oral hearing and the op-
portunity to place relevant material including case law before the Council at
an early date may be given.
Accept, Sir, the assurances of Our highest consideration.
Air Vice Marshal,
Joint Secretary to the Government of Pakistan.
Note: This Comolaint and the Memorial are beine filed without oreiudice
to the application inder Article 2 of the Rules of procedure of 9th A&< 1967
which is also being filed separately in compliance therewith. THE GOVERNMËN OTF PAKISTAN
UNDER ARTICLE 21 OF T-~ .-
RULES OFPROCEDURE APPKOVED
DY THE COUNCIL ON 9TH APRIL, 1957
(a) Government of Pakistan Cornplainant
Government of lndia Respondent
(b) His Excellency M. S. Shaikh, Agent of the Cornplainant
High Commissioner for
Pakistan in Canada.
Names of rheCoirnsel:
1. Syed Sharifuddin Pirzada, S.PI<.. Chief Counsel
Attorney General of Pakistan.
2. Mr. Harunur Rashid. Counsel
Uep~iy Lcgril Adiiscr,
hliniitry of Foreign Aflairs,
Gavrrnincnt of I'akisian.
3. Mr. Zahid Said, Counsel
Deputy Legal Adviser,
Ministry of Foreign Aiïairs.
Government of Pakistan.
4. Khawaja M. H. Darabu, Counsel
Legal Adviser,
Department of Civil Aviation,
Government of Pakistan.
5. Mr. Mumtaz A. Khan, Counsel
Legal Adviser,
Pakistan International
Airlines Corporation.
Address:
c/o The Pakistan High Commission,
Ottawa, Ontario, Canada.
(c) Sfafemenf ofrelevanr/acfs:
(1) In a note dated 4th February 1971 handed over to the Government of
Pakistan, the Government of lndia conveyed its decision "to suspend, with
immediate efect, the overflight of al1Pakistani aircraft, civil or military, over
the territory of India."
(2) In a note dated 5th Februarv. 1971. the Governrnent of Pakistan nro-
tesied Io the Government of lndia-ihat it; decision ta suspend flights oi~a-
kistan aircraft over lndia was arbitrary and unilateral and a serious breach of MEMORIAL OF INDIA 95
multilateral and bilateral agreements. Iinmediately after receipt thereof, fol-
lowing cable was sent to ICAO:
"ICA0 MONTREAL
8-41711AT. 11.Attention Binaahi. India banned PIA scheduledservices be-
tween'~ast and West ~akistan overflying Indian territory. This action
causing injustice and hardship to Pakistan. Request intervene in accor-
dance with Article two of the Transit Agreement. Regards.
-
Civilair Karachi."
(3) Pakistan comprises of two wings which are situated morethan 1,000
miles apart with lndian territory in between. Air services between the two
wings are thus a vital link between the two wings of Pakistan. As a result of
the decision of the Government of India to susoend overfliehts of-Pakistan
airirait uver its territor),Pdkistan International Airlines, tlic national airline
of Pakistan h~5heencumpcllcd io rc.rciute ils flights bctu.ccn the 1-0 \r.indsof
Pakistan and other international scheduled fiights by circumventin~ the
Indian territory. This has more than doubled the flight time between the
two winas, considerably increased the fliaht time of other international flights
and redÜced frequencyof flights on al1sëctors. These factors have resu~tedin
considerable increase in the cost of operation of services of Pakistan Inter-
national Airlines. loss of business and other losses to the airline. inconve-
nience tu passeniers, immense loss and injury to Pakistan and have'ad~ersel~
affected the economic situation of the country. Supporting data related to
these facts are aiven under item (dl.
(4) The Ciov~rnmcnt of ~akislan sonvcyed to the Governmcnt of India
th31 the flights of Pakisisn International Airlincs -,hich connecicd 1-0 $ring5
of Pakistan carrv. aoart from oasseneers.essential suoolies to East Pakistan.
The suspension of these ilights'has alpo adversely affectid the relief operations
in East Pakistan currently going on in view of the recent devastations caused
bv the cvclone and tidal bore. ln the same note the Government of India was
chd ueon to rcscind 11,decision to suspend <)verflight\ of Pakistan airiraft.
(5) The Govcrnmrnl of India si)ught Io link lhc rccent hijacking incident in
which two nationals of the State of Jammu and Kashmir hiiacked an Indian
aircnift from Indian occupicd Klirhmir 10 Lahore in Pakis13n. with the arbi-
rrary suspen<ion of flights of Pakistan aircraft o\,er Indian territoryIt isstnted
that thestate of Jammu and Kashmir is a disouted territorv in resoect
\rhereof vari,ius resoluiions hwe bcen passcdby the United ~ati<;nj ~omkis-
sion for India and I'dkistan and the Sccurity Council and in Agreement was
entered into between India and Pakistan. The facts of this incident have dulv
bcen rommunic~tcd by the Governinent of I'akibtan to ihc Secrctary <;encra1
of the International Civil Aiiation Organi7ation by d lcttcr,d:iteJ19th 1-ebru-
arv. 1971(coov attached-"~ttachmek A"). It is submitted that reference bv
lndia to the 'Gjacking incident is irrelevant and has no relation whatsoeve>
with the susqension of flights of Pakistan aircraft over Indian territory. Such
fliehts are coverned bv Lltilateral and bilateral aereemen~s~and there is no
- -
lcgiil bdsis or juiiific~tioivhitsi~cver for their suspcnsii>n.
(6) The decision of the Governmcnt of India to siispcnd the overrlighis of
Pakistan aircraft over its territorv contravenes the orovisions of the Conven-
tion on International Civil ~viation, 1944, the international Air Services
Transit Agreement, 1944 and the Bilateral Air Services Aareement, 1948 and
thus lndia~is in breach of ils oblieations thereiinder
(7) In spile of the arbitrary, unilateral and illegal decision of the Govern-
ment ofIndia to suspend overflights of Pakistan aircraft, the Government ofPakistan has no1 banned Indian aircraft which are free to overfly Pakistan
territory.
(8) On 18th February, 1971, an Aide Mémoirewas presented on behalf of
Pakistan to the Secretary General of International Civil Aviation Organiz-
ation. By a letter dated 20th February, 1971, Pakistan approached the Inter-
national Civil Aviation Organization Council for necessary action (copies
attached-Attachment B).
(dl Copies of Notes exchanged between the two Covernments are annexed
hereto (Attachment C). Statement of data referred Io in para. 3 of item
(c) is aitached (~ttachment D).
(el Srarementof Law:
(1) Pakistan and India are parties to the Convention on International Civil
Aviation, 1944, the International Air Services Transit Agreement, 1944 and
the Bilateral Air Services Aareemenf. 1948
(2) Byvirtue of Article 5of the convention on International Civil Aviation,
1944,each Contracting State agreed that al1aircraft of the other contracting
States not engaged in scheduled international air services shall have the right
to make flights into or in transit non-stop across its territory and Io make
stopsfor non-traffic purposes without the necessity of obtaining prior permis-
sion subiect to the riaht of that State to reauire landina. BYdenvina this riaht
to ~akisian aircraft Lngaged in other than Scheduled international air services
to overfly ifs territory or make a technical stop, Iiidia has unilaterally and
arbitrarilv violated the ~rovisions of the convention without anv validreason
and is in breach of its obligations thereunder.
(3) Under Article 1 of the International Air Services Transit Agreement,
India has granted to Pakistan the following freedoms of the air in respect of
scheduled international air services:
(1) the privilege to flyacross its territory without landing;
(2) the privilege to land for non-traffic purposes.
Pakistan has been enjoying these freedoms of theair till3rd February 1971,
when al1 of a sudden India, by a Note dated 4th February. 1971, informed
Pakistan of its decision to susoend with immediate effect the overfliahts of
al1 Pakistan aircraft over the'territory of India and thereby denying these
freedoms to Pakistan. In suspending the ovemights of Pakistan aircraft over
its territorv India has thus committed a serious breach of its obligations under
the ~~reehent and created a situation which has caused greathardship, in-
justice, injury and loss Io Pakistan.
(4) Bv virtue of the Bilateral Air Services Aereement with India of 1948.
pakktan International Airlines, the designatedairline of Pakistan, has thé
right, interalia. to transit across the territory of India without landing on ils
scheduled international air services. The decision of the Government of India
io stop such overflighrs of I'akisian's dcsignuted ïirline conrravene\ the
pravisions of the Agrsemcni und is in breach ofiis oblipations ihereundcr.
(5, The decision of the Governmenr of India to surncnd the overflirhts of
~ak,stan aircraft over its territory is per se discrimina.tory in that airciaft of
other Statescontinue to make flights over lndian territory.
(6) It is further submitted that the Government of lndia bas violated the
principle of pacrasirtlrervondoin respect of its treaty obligations and hasnot
acted in good faith.
(7) II isalsosubmitted that the intention ofthe Government of India was to nrevent easv and direct communication between the two wines of Pakistan bv
Euspendinhights of Pakistan aircraft by direct route over ~ndian territory. .
(8)The decision of the Government of India is arbitrary. unilateral and
il~-.ealand is in violation of the Conventions and ~e-eements aforesaid and is ~-
contrary and repugnant to International Law.
(f) Reliefs Desired
The Government of Pakistan seeks among others, the following reliefs by
action of the ICA0 Council:
(1) To decide and declare that the decision of the Government of India
suspending the ovemights of Pakistan aircraft over the territory of India, is
illegal and in violation of India's international obligations under the Con-
vention and agreements aforesaid.
(2) To find and declare that Pakistan has the following freedoms of the air
in respect of scheduled international air services:
(O) The privilege to flyitsaircraft across the Indian territory without landing.
(b) The privilege to land ils aircraft in Indian territory for non-traffic pur-
poses.
(3) To find and declare that Pakistan aircraft have the right subject to
observance of the terms of the Convention on International Civil Aviation,
1944to make fliahts into. or in transitnon-sto~ across Iodian territory and to
mîke stops for non-traific purposes in thît leiritory without the nec;ssiiy of
obtaining prior permission, and subject to the right of lndia IOrequire Iînding
of non-scheduled fli~hts
(4) To find and declare that Pakistan aircraft are entitled to operate flights
between the Iwo wings of Pakistan and beyond by direct route over ils terri-
tory.
(5) To direct the Government of lndia to immediately rescind their illegal
deiision aforesaid and not to impede in any manncr the overflights of Pa-
kistan aircraft over the territory of India.
(6) To decide and declare that the decision of the Governmcnt of lndia of
siispending flights of Paki5tan aircraft over the lndian terr~tory is cÿusing in-
jusiice. hardship. loss and injury to Pakistan
(7) The Council may assess and aw~rd cosls 10 Pakistan and direct Gov-
ernment of India Io bar IIand pdy the same to Pakisian.
(g)EîTorts were made by Pakistan to negotiate with India but were not
successful.
Nore: Attachments A, B, C and D to the foregoing Memorial are identical
to Attachments A to D to the Memorial from the Government of Pakistan
circulated under Secretary General's Memorandum SG 588171 LE 411.11
dated 19 March 1971. AM~X C
PRELIMINARYOBJECTIONSD ,ATED28 MAY 1971, BY THE GOVERNMEN TF INDIA
UNDERARTICLE5 OF THE RULES FOR THE SE'ITLEMEN OTFDIFFERENCES APPRDVED
BY THE COUNCIL OF THE INTERNATIONALCIVIL AVIATION ORGANIZATION ON
9 APRIL 1957
PRELIMINARY OBJECTIONS BY THE GOVERNMENT OF
INDIA UNDER ARTICLE 5 OF THE SAlD RULES
IN RE THEAPPLICATIONAND THE COMPLAINTBOTHDATED RD MARCH 1971,
SUBMITIED BY THE GOVERNMEXT OF PARISTANACAINST THE GOVERNMENT OF
INDIA 70 THE INTERNATIONALClVlL AVIATIONORCANIZATIONCOUNCLLU , NDER
ARTICLES2 AND 21 RESPECTIVELY OF THE RVLES FOR THE SETI'LEMENT OF
DIFFERENCES
Conreprs
Pages
introductory....................... 98- 99
Background. ...................... 99-102
Ground 1 ........................ 102-106
Ground II ........................ 106-109
Annexure I ....................... 110-116
Annexure 2 ....................... 117-1 19
Annexure 3 ....................... 120-123
1. Thc Secretary General of the International Civil Aviation Organization,
vide his letter No. LE 611dated 8th April 1971.has itivited the Government of
India to present its Counter-Memorial 10 an Application dated-3rd March
1971 submitted by the Government of Pakistan under Article 2 of the Rules
for the Settlement of Differences ("the Rules"). Furlher, the Secretary
General, vide his lettcr No. LE 612 dated 8th April 1971, hds invited the
Government of India to prcseni its Counter-Memorial to the Complaint dated
3rd March 1971 submitted hy the Government of Pakistan under Article 21
of the Rules.
2. The Government of lndia find on a ~erusal of Pakistan's Aonlication
. .
2nd Cdriipliini.:ind ihc >lcmori31, dn.1 iiiischmcnisth:,[ IJai.isr.tn'i Appli-
cltii>n JIIJ C<irnpl.iint .irc no1 cooipctcnt dncl no1 in;itnt;in4 rh:it ihc
Council has no i~irisdiction to haiidle the matters nresented bv Pakistan. The
Government of India, therefore, file these preliniinar~bjcctions under
Article 5 of the Riilcs to boiIheApplication and the Complaint. Since the
contentions and submissions raised and the facts stated in these Preliminarv
Oh~cLiioni ;Irc ~oiiiniain Io ba~tliilic r~ppl~c.iiio~iand C,>m:isinglc sel
<if tlic\c I'r;lixiiObjections is filcd io boih th~ ~pplicai;and~hcCoin-
plaiiit, in order to avoid repetition and duplication.
3. The Government of lndia woiild like to clarify that this is no1a Countcr-
Mcmorial and that they are not here dealing with the nierits of the Applica-
tion and the Comolaint niade bv Pakistan but are strictlv corifinine them- 1
4. In order to aooreciatc rhc ~reliininarv ~biectioiis to the niaintainabilitv
and cornpetence of ;he Applicationand the Complaint and to the jurisdiction
of the Council, it would be necessary at the outset to cive bv way of back-
ground a briefsketcliof ïacis, cvents-and circumstanccs~ The Govïrnment ofIndia will furnish evidence, material and additional facts, and elaborate the
submissions and contentions, when the Council takes up the Preliminary
Objections for hearing.
5. For years past, Pakistan has been pursuing and continuinga policy of
political confrontation bordering on hostility against India. This policy cul-
minated in August-Septcmber 1965 in an armed attack by Pakistan against
India on a large scale. On the outbreak of the conflict, the Air Services Agree-
ment of 1948 between the two countries was immediately suspcnded, and
there was a stoppagc of air transport services of Indian aircraft to and across
Pakistan and of Pakistan aircraft to and across India. The conilict was fol-
lowed by an Agreement between the two countries signed at Tashkcnt in the
Union of Soviet Socialist Republics in January 1966. As a result of this
Agreement, a special arrangement was worked out wherehy the Iwo coiintries
oermitted each other Io ooerate some overflving.ser.ices. Air services as thev
existed prior IO ihe ~ontlici \iere ho\\c\,cr not restored. ,in~.c l'ak:si.in reî.ised
al1 uthcr arpecis of nornializ.iiion of rclaiioni as cnvis;igcd iiiinc Ta\hkcnt
Azreement. UD to date Pakistan has continued its oolicv of confroiitation
bordering on 'hostility against India, some instances of \\,hich are listed
hereunder:-
(1) Confiscation of al1 properties of Indian citizens and of the Government
of India in Pakistan. These remain confiscated to this dav.
(2) Confiscation of al1 lndian river boats on East Bengal rivers which are an
essential lire line for the transport of the produce of Eastern India to the
port of Calcutla.
(3) The continucd ban on passage of Indian boats and steamers on rivers,
streams or wdterways of East Bengal.
(4) Continucd ban on tradc and commerce with India.
(5) Continued ban on civil air Aights, railway and road communicatioils be-
tween the two countries.
(6) Continued ban on entry into Pakistan of Indian newspapers, books,
magazines, etc.. printed or published in India.
(7) Continued assistance with arms, amrniinition and training, Io rebrl
elements in areas of Eastern India.
(8) Continiied attempts to foment. through sabotage and infiltration. distur-
bances in Jammu and Kashmir.
(9) Intensive hatc-propaganda against India on the Radio and in thc I'rcss,
which continues unsbated to this day.
6. The subject-matter of Pakistan's Application and Complaiiit rclates to
the suspension. since 4th February 1971, of overflights of hkiitiin aircraft
ovcr lndian territory. The conduct of Pakistan immediatcly prcicdinç that
date in relation to the hijacking of an lndian aircrafi was most reprchensible
and amounted to the very negation of al1the aims and objectives. tiic schcinc
and provisions, of the Convention on International Civil Aviation. 1944("the
Convention"). and of the International Air Serviccs Transit Agreeniciit. 1944
("the Transit Agreement").
7. The facts rcgarding the hijacking incident are sunimarized beloiv:
(a) An lndian Airlines Fokker Friendship aircraft on a scheduled Aight
from Srinagar Io Jammu with 28 passengers and 4 crcw on board was hijacked by Iwo persons among the passengers and diverted at gun point
to Lahore in Pakistan shortly after noon on 30th January 1971. One of
the two hijackers had a greiade in his hand and threatened to use it if
the plane was not diverted to Lahore, while the other pointed his revolver
at the pilot.
(b) The Government of India requested the Pakistan Government the same
afternoon at Islamabad and through their High Commissioner in New
Delhi, for the immediate release of the passengers, crew, cargo, baggage
and mail as well as the aircraft. The Pakistan Ciovernment informed the
Acting High Commissioner of India in Islamabad the same afternooti of
itsdecision to allow the plane, crew and passengers to fly back to India.
(cJ The Indian Civil Aviation authorities and the Government of lndia
informed the Government of Pakistan on the morning of 31st January
about a relief plane being ready ta take off for Lahore. together with
spare crew, to bring back the passengers, crew, cargo, baggage and mail
as well as the hijacked aircraft as soon as the Pakistan authorities gave
the necessary clearance. Permission was aiven by the Director-General
~f C~vil ~via~io- of Pakistan the same mir~in~ ~ ~ -he relief aircraft ~o ~-
leave, bu! ihis ~as rendered infructuo~is by lurthcr instructions from the
Pakistan authorities that the relief nlane should no1 t'tke ofTuntil lurthcr
specific insiruciions lrom the D.G:c.z\., I3akistdn. Such permirsion *as
rcpolcdly defcrrcd. in spiiç i)l numcrous reminder%lrim the V.G.C.A.,
India. The Xlinirters for Ehteriial Affjirs nnd C.vtl A\,i;iiion of India sent
messages on 1st 1-ehruary 1971 Io thc hlini>ter of Ilonic AiTairsand the
hlinister-in-Charge of Civil Aiiation respecti\ely in Pÿkistan. requcbting
the immediate reÏurn of the oassenaers and clearance for the relief ai;
craft ta bring baçk the hijacked aircraft along with the baggage, cargo
and mail. The Pakistan High Commission in India consistently refused
to issue visasta the crew of the relief aircraft and the spare crew.
(d) Pakistan took more than 48 hours ta send the passengers and crew by
road to the Indian border at Hussainiwala at 15.00 hours (IST) on the
1st February 1971, though the distance from Lahore to Hussainiwala is
only 36 miles. They were not allowed to bring their baggage. The Gov-
ernment of lndia had earlier made arrangements for their return Io
lndia on board a scheduled Ariana Afghan Airlines Service from Kabul
to Amritsar, which landed at Lahore Airport at 23.00 hours (IST) on
31st January, 1971; but though a large number of passengers disem-
barked and 30 passengers were boarded on that aircraft at Lahore, the
authorities in Pakistan said that they could not make arrangements to
board the passengers and crew of the hijacked Indian aircraft on this
olane because of the alleeed oresence of crowds at the airoort.
(e) ~he Government of ~ak.lstÿi not only failed to return ihe two persons
who had hiiacked the aircraft but announced that they had been aiven
asylum in ~akistan. This was doneeven without first disarming themand
taking them into custody for their criminal acts. On the other hand, they
were treated as heroes and were freely permitted to visit, by turns, the
terminal building at Lahore Airport, to put long distance calls to their
accomplices and friends in Pakistan and meet various people, besides
being provided with food and other amenities which enabled them to
continue their so-called occupation of the aircraft for 3 % days. This was
allowed ta happen on the apron of the international airport at Lahore,
in fullview of the authorities. troops and police there, who took no ac-
tion Io make them vacate the hijacked aircraft. If) Finallv at about 20.30 hours (IST) on 2nd Februarv 1971 these two
crimiials were allowed to blow"p the hijacked ~ndianaircraft and even
to orevent the fire brigade from puttina-out the fire until the aircraft had
beën totally destroyed.
This took place in full view of the airport authorities, troops and police
at the Lahore Airport, which is a protected area, and at a time when
Martial Law was (as it still is) in force in Pakistan. The Lahore TV also
televised the destruction of the aircraft on a special programme and it
was made to appear as if the event was an occasion for celebration. The
time extended for the television programme was clear proof that the
Pakistan authorities knew the plans of the hijackers and connived at
the destruction of the aircraft. This further criminal act of destr.yin- the
aircrdfr occurred only a feu houri sftcr the Pakistan lligh Commissiiiner
in India had assured the Govcrnnient of lndld th11 his Govcrnment
were committed to, and were taking al1necessarymeasures for, the safe
return of the aircraft.
(g) The Government of India informed the President ofthelnternational
Civil Aviation Organisation Council on 1st February 1971 abolit the
hijacking of the Indian Aircraft, and later about its destruction. It is
understood that the President of the ICA0 Council sent the following
messageto Pakistan:
"Regarding unlawful seizure Indian Airlines aircraft confident
Pakistan acting in accordance with ICA0 Assembly Resolution
A-17-5 has permitted or will permit aircraft occupants and cargo
continue journey immediately. Would appreciate your information
reeardine oresent situation. Am also verv concerned bv ~ossibilitv
priliferaÏion hijackings in that part offhe wirld unlesssev~&measurcs
taken. Therefore trust Pakistan will follow Assembly Declaration
A-17-1 and prosecute perpetrators so as to deter repetition similar
acts."
The Government of India are not awareof theresoonsegiven by Pakistan
to this coinmunication. In fact, Pakistan neithe;permcted the aircraft,
with passengers and cargo, to continue the journey immediately, nor
returned the hijackers to India, nor prosecuted nor punished them in
Paki~tan.
(hl The Government of India had, asfar back asSeptemher 1,1970, informed
the Pakistan High Commissioner in India. that certain subversive ele-
ments in ~akistai were conspiring to hijacklndian aircraft and that there
was definite information about a possible attempt to hijack an lndian
aircraft to Pakistan, and had requested the Government of Pakistan to
take adequate steps to prevent this. There was no response from the
Government of Pakistan except the strange request from their High
Commissioner to disclose the source from which the Government of
India had ohtained this information. In spite of their being forewarned,
the Government of Pakistan do not appear to have taken any steps; on
the contrary, from the statements made in Pakistan, it appears that the
plan to hijack the lndian aircraft was in fact hatched in Pakistan by
persons whose protestations were officially supported by the Govern-
ment of Pakistan.
8. The Government of lndia were greatly perturbed over the hijacking of
their aircraft in Pakistan and the unwillingness of the Government of Pakistanto come to the assistance of the innocent passengersand crew, to restore the
oss sessio onf the aircraft to its commander, to allow the passengers and the
irew to continue theirjourney promptly to India, to investigate injo the act of
hijacking and to take the hijackers into custody, and to Save the aircraft,
cargo. mail and propertv from beinr! destroyed at the hands of thehiiackers.
~he~lane was bl-own uion the evenyngof ~ebruary 2, 1971.The Government
of India addressed a note to the Government of Pakistan on February 3, 1971.
The text of this note aswell asof some of the other correspondence exchanged
between the two Governments is contained in "~ttachment C" to the Memo-
rial of the Government of Pakistan dated the 3rd March 1971. The Govern-
ment of India stronalv nrotested aaainst the conduct of the Government of
Pakistan in relationt8 the hijackhg incident, claimed damages for the
destroyed aircraft, the cargo, baggage and mail, and for the loss resulting
from the detention of the aircraft in Pakistan. When no positive and satis-
factory response was made by the Government of ~akistan, the Government
of India decided on Febriiary 4, 1971 to suspend, with immediate effect, the
overflieht of al1 Pakistan aircraft. civil or militarv. over the territorv of India.
until tic mattcr \i,iic satislacioriiy rcsolved. ~hé~ovcriiincnt of india alsi
Çorihu,ith suipendcd the o\crflight of 11sown aircrah over PakisI.in's territory
in view of the oresent and imminent daneer to civil aviation created bv the
-
conduct of ~akistan.
9. In any view of the matter, resumption of overfiights for Pakistan aircraft
over Indian territorv woiild now he inconceivable in view of the massacre
and genocide of unarmed civilians in East Bengal. Indeed, the Indian Parlia-
ment adopted a unanimous Resolution on the 31st March, 1971, expressing
s..oathv-.nd siioo. . for -he~oeoole .f East Beneal. -
10. In the :onte\t of the inateri;il faci, statcd hcrc.nabovc. the C<i\crnmcnt
of Ind:a ,~bmit ih.11Pdkisiiin's t\flrilic~tioiand Comfllaint .tre not competcnt
nor maintainable, and the ~ounci<has no jurisdiction to deal with the; or to
handle the matters presented by Pakistan. lndia raises these PRELIM~NARY
OBJECTIONS on the followinp amonpst other grounds. The contentions and
submissions which are set out below are without prejudice to one another:
There is no disagreement between India and Pakistan relating to the
interpretation or application ofthe Convention or the Transit Agree-
ment, and no action by lndia under the Transit Agreement
II. This ground is without prejudice to Ground II and proceeds on the
assumotion that the Conve~ ~o- and the ~rans~t Aereement were not suoer-
scdcd by a Spccial RL'ginieasregards ovcrtlighis bctueen India and I'akistdn.
The application of Pakislan undcr Artizlc 2 or ihc Kulrs procced$ on the
untciiablc baiis thai thcre is a dir;igrcemcni betwecn thc iwo coiiniries relating
io ihe application of ihe Coiiventioii and thr: Transit Agreement. Pakihian's
Applicdtion is incompetent and the Couniil has no jurisJistion 10 dcal ivith
il, becsusc no question arises of applying the Convention or the Transit
Agreement as bctucen India snd Pakistan and therc is no disagrcemeni be-
tween the two countries as to the appl..ation of either the Convention or the
Transit Agreement.
12. The complaint of Pakistan under Article 21 of the Rules proceeds on
the untenahle basis that India has taken an action under the Transit Agree-
ment. The complaint is incompetent and not maintainable, and the Council MEMORIAL OF INOIA 103
has no jurisdiction to deal with it, because India has taken no action whatever
under the Transit Agreement.
13. Article 84 of the Convention runs as follows:
"Serrlement of disputes
If any disagreement between two or more contracting States relating to
the interoretation or aoo. .ation of this Convention and its Annexes
cannot he settled by negotiation, it shall, on the application of any State
concerned in the disagreement, be decided by the Council. No member of
the Council shall vote in the consideration bv the Council of anv disoute
to which it is a Party. Any contracting tat té ay, subject to ~iticlé 85,
appeal from the decision of the Council to an ad hoc arbitral tribunal
aeieed unon with the other oarties to the disoute or to the Permanent
u ~ ~7~ ~ .~ ~ ~
Court of Internationdl Justice. An). siich appeAl shxll be notilied tu the
Council nithin sixts da)s of receipt of noiifi.xion oi the deiision of the
Council."
14. Sections 1 and 2 of Article II of the Transit Agreement run as follows:
"Section 1
A contracting State which deems that action hy another contracting
State under this Agreement is causing injustice or hardship to it, may
request the Council to examine the situation. The Council shall there-
uDon inauire into the matter. and shall cal1 the States concerned into
ci~nsultatisn. Slio~ld such consuliar~on Fm1 raircsolve rhc Jificiilr), the
Council nwy nicike appropri:iie findings 2nd rrconinicndation~ Io the
contracting States concerned. If thereafter a contracting State concerned
shall in the opinion of the Council unreasonahly fail to take suitable
corrective action, the Council may recommend to the Assembly of the
ahove-mentionedOrganization that such contracting State be suspended
from its rights and privileges under this Agreement until such action has
been taken. The Assembly hy a two-thirds vote may so suspend such
contracting State for such period of time as it may deem proper or until
the Council shall find that corrective action has been taken by such
State.
Section 2
If any disagreement between two or more contracting States relating
to the interpretation or application of this Agreement cannot be settled
by negotiation, the provisions of Chapter XVlII of the ahove-mentioned
Convention shall be applicable in the same manner as provided therein
with reference ta any disagreement relating ta the interpretation or ap-
plication of the above-mentioned Convention."
15. Clauses (1) and (2) of Article 1of the Rules run as follows:
"(1) The Rules of Parts 1 and III shall govern the settlement of the
following disagreements between Contracting States which may be re-
ferred ta the Council:
(a) Any disagreement between two or more Contracting, States
relating to the interpretation or application of the Convention on
International Civil Aviation (hereinafter called 'the Convention') and
its Annexes (Articles 84 to 88 of the Convention);
(b) Any disagreement between two or more Contracting States
relating to the interpretation or application of the International Air Services Transit Agreement and of the International Air Transport
Agreement (hcreinifter respectivcly ~.illcd 'Transit Agreement' and
'Tramport Agreement') (Article II. Section 2, of the Transit Agree-
ment, Article IV, Section 3.of the Transport Agreement).
(2) The Rules of Parts II and III shall govern the consideration of any
complaint regarding an action taken by a State party Io the Transit
Agreement and under that Agreement, which anotherState party Io the
same Agreement deems to cause injustice or hardship Io it (Article II,
Section 1). or regarding a similar action under the Transport Agreement
(Article IV, Section Z)."
16. Under Article 84 of the Convention and under Article 1 (1) of the
Rules..two of the conditions which are reauired to be fulfilled in order Io
make the Application competent and maintainable and in order that the
Council may have jurisdiction to deal with iland handle the matter presented
by the ~~~licant, are the following:
(a) There should be a dis.igreement between the tuo c(>ntrÿctingState~, and
(hl the di\agreement should relate to the intcrprctdtion or applic.it8on of the
Convention.
(The Transit Aaeement is dealt with subsequently.)
' 17. Both théaforesaid conditions postulate and presuppose the continued
existence and operation of the Convention as between Iwo States. If the Con-
vention has been terminated. by re~udiation, abrogation or otherwise, or has
becn iuspcndcd. as hetiieen tuo Staier, any Ji\pute rclatiiip to sush terniina-
lion i~rsuspension cdnnot posribly be referred tu the Council under the aforc-
said ~rticles of the Convention and the Rules, since in such a case no question
of "interpretation" or "application" of the' Convention cm possibly arise
(there being no Convention in operation as between the two States). Furthcr,
there cannot possibly be a disagreement on a point of interpretation or appli-
cation of a treaty which is no1 in operation as between two States. In other
words, so long as two contracting States accept the existence, operation and
efficacv of the Convention as between them. al. ooi.ts of disaare-ment as to
the interpretation or application of the Convention would be within the juris-
diction of the Council. But any question of termination or suspension of the
Convention as between Iwo States cannot be referred Io the Council under the
aforesaid Articles.
18. What is stated above regarding the Convention also representsaccu-
rately the position under theTransit Agreement whichconfers limited jurisdic-
tion on the Council in identical words. Section 2 of Article II of the Transit
Agreement and Article I (1) (b) of the Rules permit an application limited
only to cases of disagreement between two States relating to the "interpreta-
tion" or "application" of the Transit Agreement.
19. The aforesaid construction of Article 84 of the Convention, Article II
(2) of the Transit Agreement, and Article 1(1) of the Rules. harmonizes with
Article II (1) of the Transit Agreement and Article 1 (2) of the Rules which
deal with complaints regarding an action taken by a State under the Transit
Agreement, and not regarding termination or suspension of the Transit
Agreement which u.ould be de hors that Agreement.
20. The composition of the Council and ils powers and functions are,
arrain. in keeoinr with the limited iurisdiction which has been conferred upon
ii'by ~rticlc84 of the ~oni.entioi. Article II oi the Tninsit Agreement. and
Artislc I of the Rulcs. to hcar international di~putes. The sovercign pouer of a State to suspend, or to abrogate or otherwise terminate an international
treaty-not seldom involving vastly complicated questions of fact and inter-
national law-are outside the scope of the Council's jurisdiction under the
aforesaid Articles.
21. To sum up, the scheme of the aforesaid Articles is simple and clear.
So long as the Convention or the Transit Agreement continues to be in opera-
lion as between two States, any disagreement as to the consrrirction of ils
Articles or the applicarion of the Articles to the existing state of fdcts, can be
referred to the Council; and likewise, any action taken iinder the Transit
Agreement can be referred to the Council. But if a State has terminated or
suspended the Convention or the Transit Agreement vis-à-vis another State,
there cannot possibly be any question of interpretation or application of the
treaty, or of action under the treaty, and the Council is not the forum for
deciding such disputes. These disputes are usually in the realm of political
confrontation between two States. often involvinp. militarv hostilities no1
amounting to war, and these matters of politicalconfron~ation or military
hostilities are outside the ambit of the Council's competence. The question of
overflvine raised bv Pakistan. is directlv connected with militarv hostilities in
the pas1 and continues to be inextricabjy tied up with the posture of political
confrontation bordering on hostility adopted by Pakistan.
22. The Government of India submit that Pakistan by its conduct has repu-
diated the Convention vis-à-vis India, since ils conduct has militated against
the very objectives underlying, and the express provisions of, the Convention,
and has been completely and totally against the principle of safety in civil
aviation. It is expressly stated by Section 2 of Article 1of the Transit Agree-
ment that exercise of the privileges conferred by that Agreement shall be in
accordance with the orovisions of the Convention. Conseauentlv. Pakistan's
conduct also amounis to a repudiation of the Transit ~ireeient vis-à-vis
India. In the circumstances. India has accepted the position that the Conven-
tion andthe Transit Agreement stand repudiated, or in any event suspended,
by Pakistan vis-à-vis India.
23. Without prejudice to the above, and in the alternative, the Government
of India submit that they have terminated, or in any event suspended, the
Convention as regards overflying and the Transit Agreement vis-&-visPa-
kistan.
24. Reciorocitv is of the essence of the Convention and the Transit Agree-
ment. The conduct of Pakistan has made il impossible for Indian aircraft to
overfly Pakistan. That country has shown no regard for the most elementary
notions of safetv in civil aviation. and has made it imoossible for lndia to
enjoy its rights inder the convention, and its privileges undcr the Transit
Agreement, over Pakistan territory. Pakistan's theoretically permitting Indian
aiÏcraft tooverflv Pakistan is. in the context of the facts stated above. a
mockery of the irinciples underlying, and the provisions embodied in, the
Convention and the Transit Agreement. In the circumstances, the Govern-
ment of India submit that theyhad complete justification for terminating or
suspending the Convention as regards overflying and the Transit Agreement
vis-à-vis Pakistan. The Government of India do not set out here the full facts
concernine iustification. .~nce~~.s stated above. the ouestion of iustification
for terrninîhon or suspcn5ion of the ~oni,ention or ihe~ranrit &recnicnt 1s
not uithin the scope of the Council's jurisJiciion iinder the afores~id Arti~lc5.
25. In the circumstances --o~ ~ ~ ~ ~he Ciov~ ~me~t of lndia submit that
the Cainvention as regards o\erflying andihe Tran\it Agrecmcnt having bcen
tcrmin;iicd. or in <in).event suspcndcd. as bctaccn India and Pakistan,Pakistan's Application is outside the scope of Article 84 of the Convention,
Article II (2) of the Transit Agreement and Article I (1) of the Rules, and is
bevond the scope of the Council's iurisdiction under those Articles.
i6. ~ikewise., the Complaint made by Pakistan is outside the ambit of
Article II (1) of the Transit Agreement and Article I(2) of the Rules. The first-
mentionsd Article a.o.ies onlv where action by a Statc rtnder the Transit
,\grecincnt in ciising injiiiiiceor hsrdsh:p io 3notlicr State: and. similirly,
Arii~lc 1 (2) ofthc Utiles dciils riith ~~ornplainlsrcgarding "an iiction taLcn by
a State oarty Io a Transit Agreement and n~ider that Agreement". In the
present iase;there is no actionby lndia under the Transit Agreement. On the
contrary. the Transit Agreement is not in operation as between India and
Pakistan in the circumstances indicated above. Since there is no action by
India under the Transit Agreement and the Transit Agreement has been
terminated or suspended as between the two countries, the Council has no
jurisdiction Io deal with Pakistan's Complaint.
27. It is submitted that even if the Transit Agreement had been in force
between the Iwo countries, Pakistan's complaint would still be outside the
ambit of Article II(1) of the Transit Agreement and Article 1 (2)of the Rules,
since the action complained of is alleged Io amount Io suspension of the
Transit Agreement andis not under the Agreement.
The question of lndian aircraft overfying Pakistan and Pakistan air-
craft overfving lndia is coverned bv a Soecial Régimeand no1bv the
Conventio" O; the ~raisit ~~reeient
28. The Air Services Agreement of 1948between the Iwo countries covered
air transit across each other's territory and India's overflights inIo Pakistan's
air soace and Pakistan's overiliehts in10 India's air swace.-A conv of the said
~greemenl of 1948 is hcrçto liinc\r.d and nilirkcd "'1". Thui ÿi; trliii\,ancl
orerilying cach other's terriiory )\.AIgoverneil bs n Specinl Kcgimr bct\\ccn
Indiaand Pakistan in 1948 ~nd~ ~~~ ~ues Io be so eoverned unÏil todav. The
Convention and the~~ransit Agreement do not a&ly as between lndia and
Pakistan, as regards transit and overflying each other's territory. Conse-
quently, as regards transit and overflying, no question can arise of interpre-
talion or application of the Convention or the Transit Agreement as between
the Iwo countrics, nor of any disagreement between thcm on such a question;
nor can there be any question of any actionby lndia under the Transit Agree-
ment against Pakistan. Since there has been no action by India under the
Transit Agreemciit against Pakistan, the question of considering any hard-
ship or injustice to Pakistan within Article II (1) of the Transit Agreement
does not arise.
29. In view of the fact that the question of ovcrflying or transiting is gov-
erned by a Spccial Régime as between India and I'akistan, and no1 by the
Convention or the Transit Agreement, the Governnient of India submit that
the Application and the Complaint of Pakistün arc incompetent and not
maintainable, and the Council has no jurisdiction to entertain them or handle
the matters presented therein.
30. Assuniing lndia hascommitted any breach of the Speciîl Régime,or of
the bilateral Air Services Aa~ee~ ~ ~ ~ 1948 as alleeed bv Pakistan. such a
dispute cannot bc rcfirid to the Council under the Convention or under the
Transit Agreement or under the Rules. There is no provision whatever con- ferring any jurisdiction on the Council to hear or handle any disputes arising
out of hilateral agreements.
31. As a result of the armed conflict in August/September 1965 between
India and Pakistan, the Air Services Agreement of 1948'between the two
countries was suswnded. The said Agreement has since then continued to be
in suspension and has never heen revived. Since 1965 the airlines of Pakistan
have never operated within lndia and airlines of lndia have never operated
within Pakistan. The traffic between the Iwo countriescontinues to be handled
by third country airlines.
32. Armed h~istilitiesceîsed on Septcmber 22. 1965.On January 10, 1966.
the Tashkcnt Declaration was sianed bv India and Pakistan. The leaders of
thetwo countries declared "their-firm résolveto restore normal and peaceful
relations between their countries and to promote understanding and friendly
relations between their neonles". Under Article VI of the Tashkent Declara-
tion, "The Prime ~inisier if lndia and the President of Pakistan have agreed
toconsider measures towards the restoration of economic and trade relations,
communications, as well as cultural exchanges between India and Pakistan,
and take measures to implement the existing agreements hetween India and
Pakistan". Under Article VIII, inter alia"They further agreed to discuss the
return of the property and assets taken over by either side in connection with
the conflict".
33. In response to the desire expressed by the President of Pakistan for the
early resumption of overflights of Pakistan and Indian aircraft over each
other's territory, the Government of India agreed to the resumption of over-
fliahts in the ho~e that the Tashkent Declaration would be scruoulouslv
:i&ered icia\\ct; and properties seized during the iirmed confltct ivould bé
restored. and normal relations uould he csiablished. The gcncriil undersiand-
ina of the two Governments with regard to the resum~tion of overflights was
asfollows:
(1) The overflights of lndian and Pakistan aircraft across each other's terri-
tory was to be on the same basis as that prior to August l, 1965:This
basis related to the fixing of routes, procedures for operating permission,
etc.
(2) The resumption was limited to overflights across each other's territory.
It did n~-~~~~lude~the ri-ht t-~land in each other's territorv even for non-
traffic purposes.
(3) The resumption of overflights was agreed to on a basis of reciprocity
(4) The resumption of overflights was Io he on a provisional basis.
A copy of the exchange of signals estahlishing the aforesaid understanding be-
tween the two countries regarding overflights is contained in Annexure "2"
hereto.
34. On the basis of the aforesaid understanding, the overflights of Pakistan
and Indian aircraft across each other's territory was resumed with efîect
from Fehruary 10, 1966. The aforesaid understanding is hereafter referred to
as "the Special Agreement of 1966".
35. The hope of normalization of relations between lndia and Pakistan and
the restoration of the statusquo anre the armed conflict, unfortunately didnot
materialize. Normalcy was not established and has not heen established up
to dile Dc5p.t~se\cral gertures of gooduill and severdl unilaieral sciions on
ihc part of the Governnient of InJiii IIIestablish nurmîlcy. Pakistan hxs con-
tinued to keeo uo a oosture of confrontation borderina on hostility towards
India since ~.arch 1966. For exampie, India unilaterallilifted the embargo ontrade on May 27, 1966,andinvited Pakistan 10do likewise. Till now, Pakistan
has not reciprocated. On June 27, 1966, India unilaterally decided to release .
al1 cargoes seized during the conflict except military contraband. India also
proposed to exchange seized properties on March 26, 1966, repeated the
gesture on April 25 and December 28, 1966, and on several occasions
thereafter. The only response from Pakistan was to start auctioning the
vast and valuahle lndian oro~erties seized by them durinp, the conflict and
appropriate the proceeds 10 their National ~reasury,-al1 violation of the
Tashkent Declaration. lndia oiïered to increase cultural exchanges, liberalise
visa procedures, esiablish hilateral machinery for settline mutua- oroblems,-
a11uithout receibingan) positive response.
36. The continucd policy of confrontation bordering on hortility adopted
bv Pakistan .and the absence of normal relations betueen Indix and Pdkistan
since 1966, were the main reasons for the continuation of the Special Agree-
ment of 1966 between the Iwo countries and for the non-revival of the Air
Services Agreement of 1948.
37. In v-çw of the above, ilis clear that since the Air Services Agreement of
1948 continues to remain suspended, no question can arise of any disagree-
ment betweenthe two countries relatine to the aoolication of that ~nreement.
apart from the point that any such caniit be referred to the ~ouncii
under the aforesaid Articles and the Council would have no jurisdiction to
handle anv such matter
38. ~hé~pecial ,\grcement of 1966hasgoverncd the riglits and privileges of
India and Pakirtan regArjing air transit dnd overfl)ing from Pebruary 1966
till February 1971.That Special Agreenieni, u hich provisional and on the
bari, <if rc;iproc.t). coiilJ iiot continiic IIIvicu i,t I>akijtan', afores3id con-
duc1and the creütion b> Pakistan of condition> tihicli made it most uiisaie for
Indian aircraft to overfly Pakistan territory. The freedom of Indian and
Pakistanaircraft to overfiy eachother's territory under the Special Agreement
of 1966 was always subject to permission by the respective Governments and
was to be exercised in accordance with the terms and conditions of that Der-
mission. Copies of the Notifications issuedby thecovernment of India dated
Seplember 6, 1965, and February 10, 1966, under Section 6 (1) (6) of the
Aircraft Act, 1934, which make this point abundantly clear, are hereto an-
nexed and marked Annexure "3". This basic limitation was never removed,
and even the limitedright of overflights was never put on a regular basis. The
Soecial Aereement of 1966was in force uo Io Februarv 3. 1971. both in law as
well as inpractice, and the right of ~aki'stan aircraf<t/overfly Indian terri-
tory was subiect, at al1material times, to the permission of the Government of
1ndia. This oermission~wa~ ~it~~-awn on and from Fehruarv 4. 197~.~-nd , .
India had thérighi IO uithdrau s~ch perkjiiion under the Spccial ~grce'nienl
of 1966. Thc Government of India DrdDOSCtu TA). hcre nothinc more rcpdrd-
ing that Special Agreement, since ~akistan's ~pplication and?omplaint do
no1 deal with, and do not relate Io, that Special Agreement. Assuming there
was a breach of that Special Agreement, the Councilwould have no jurisdic-
tion to hea~ or ~and~e~~~~~-~ ~ ~ ~ ~7~ ~ ~
39. In al1 the circumstances aforesaid, the Government of lndia submit
that the Council will be pleased to dismiss with costs both the Application and
the Complaint of Pakistan on the ground that they are incompetent and not
maintainable, and that the Council has nojurisdiction to hear them or handle
the matters contained therein, because- MEMORIAL OF INDIA 109
(a, rhere is no disagreement betwecn India and Pakirtan relaiing to the inter-
preration or application of the Convention or the Transit Agreement:
(b) noaction hüs bcéntaken by Indi3 undrr theTransit Agreement;
(cl the question of lndian aircrîft overilying Pükisian and Paki<tan aireraft
overflying India is governed bya Special Répimcand nul by the Conven-
tion or the Transit Agreement; and
(d) the Council has no jurisdiction to handle any dispute under a Special
Régimeor a Bilateral Agreement. Annexure1
INDIA-PAKISTAN BILATERAL AIR SERVICES
AGREEMENT OF 1948
AGREEMENT
BETWEEN THE GOVERNMENT OF
INDIA AND THE GOVERNMENT
OF PAKISTAN
RELATING TO AIR SERVICES
(WithAnnex and Exchangeof Notes)
New Delhi, 23rd lune 1948
The Government of India and the Government of Pakistan hereinafter de-
scribed as the Contracting Parties,
Being parties to the Convention on International Civil Aviation and the
International Air Services Transit Agreement, hoth opened for signature at
Chicago onthe 7th day of Decemher 1944, and
Desinng to conclude an Agreement for the purpose of establishing and
operating air services between and beyond the territories of India and
Pakistan,
Agree as follows:
Article 1
(A) Each Contracting Party grants to the other Contracting Party the
right to operate the air services specified in the Annex to this Agreement
(hereinafter referred to as the "specified air services") and to carry traffic to,
fromand in transit over, its territory as provided in this Agreement.
(B) The airlines designated as provided in Article II hereof shall have the
right to use
(i) for traffic purposes, airports provided for public use at the points spe-
cified in the Annex to this Agreement and ancillary services provided for
public use on the air routes specified in the said Annex (hereinafter referred
to as the "specified air routes") and
(ii) for non-traffic purposes, al1airports and ancillary services provided for
public use on the specified air routes:
Provided that the places of first landing and final departure shall be Cus-
toms airport.
Article II
(A) Each of the specified air services may be inaugurated immediately or
at a later date at the option of the Contracting Party to whom the righh under
this Agreement are granted on condition that
(1)the Contracting Party to whom the rights have been granted shall have
designated an airline (hereinafter referred to as a "designated airline") forthe
specified air route. MEMORIAL OF INDIA 111
(2) the Contractinn Partv which arants the riaht shall have' aiven the an-
propriate operating permisiion to the airiine pursusni to parairaph (C) of
this Article which II shall do with the leasr possible delay.
(0) Substantial ou,nership and effective control of the designated airlines of
each Coniract~na Party >hall be vested in the Party or its oatiuoals.
(C) The designated airline may be required to satisfy the aeronautical
authorities of the Contracting Party granting the rights that it is qualified to
fulfil the conditions orescribed bv or under the laws and reaulations normallv
applied by those authorities to the operation of commerciaTair services.
(D) The operation of each of the specified air services shall be subject to
the Agreement of the Contracting Party concerned that the route is adequate
for the safe operation of air services.
Article III
A designated airline may, subject to the provisions of Article IV, carry
across, set down and pick up in the territory of one Contracting Party traffic
originating in or destined for the territory of the other Contracting Party or
of a third country on the specified air route.
Article IV
In order to achieve and maintain equilibrium between the capacity of the
specified air services and the requirements of the public for air transport on
the soecified air routes or sections thereof and in order to achieve and main-
tain broper relationship between the specified air servicesinterse and between
these air services and other air services operating on the specified air route or
sections thereof, the Contracting Parties agree as follows:-
(A) The airlines of each Contracting Party shall enjoy equal rights for the
operation of air services for the carriage of traffic between the territories of the
two Parties.
(0) To the extent that the airlines of one of the Contracting Parties are
temporarily unable to make use of the rights referred to in Paragraph (A), the
situation willbe mutually examined by the two Parties for the purpose of
aiding as soon as possible the airlines concerned increasingly to make their
proper contribution to the services contemplated.
(C) In the ODeration by the airlines of either Contracting Party of the spe-
cified air services the interests of the airlines of the other Party shall be taken
into consideration so as not to affect unduly the services which the latter
provide on al1or part of the same route.
(D) The air transport offered by the airlines of each Contracting Party on
differentsections of the specified air routes shall bear a close relationship to
the needs of the oublic for air transoort and to the traffic interests of the air-
Iines conccrned as provided in this Agreement.,
(EJ The services provided by a designated airline under this Agreement
shall retain astheir orimarv obiective the orovision (alona with the airlincs of
the other States concerned) oicapacity adequate to thetraffic demands be-
tween the country of which such airline is a national and the country of
ultimate destination of the traffic. and the riaht of the designated airlines of
either Party to embark and to diiembark in-the territory of the other Party
international traffic destined for or coming from third countries on specified
air routes shall beao~lied in accordance with the aeneral orincioles of orderly
development to which both Parties subscribe and shall be subject to the
general principle that capacity shall be related: (1) to the requirements of traffic between the country of origin of the air
service and destinations on the specified air route,
(2) to the air transport needs of the area through which the airline passes,
and
(3) to the adequacy of other air transport services established by airlines
of the States concerned between their respective territories.
Article V
When, for the purpose of economy of onward carriage of through traffic,
different aircraft are used on different sections of a specified air route, with
the point of change in the temtory of one of the Contracting Parties, such
change of aircraft shall not affectthe provisions of this Agreement relating to
the capacity of the air service and the carriage of traffic. In such casesthe
second aircraft shall he scheduled to provide a connecting service with the
first aircraft, and shall normally await its arrival.
Article VI
. . Rates shall be fixed at reasonable levels. due regard.heing vai- ~o al1
relevant factors. including costs of comp3rablc economic opcrations. reÿson-
able profit, differences of characteristics of service and the rates charged by
~the~ooerators. if anv. on the route.
(9) The rate; to bé'charged by any of the airlines designated under this
Agreement in respect of traftic between the territories of the two Parties shall
be aereed in the first instance between the designated airlines in consultation
with-other airlines operating on the route or any section thereof, and shall
have regard to relevant rates adopted by the International Air Transport
Association. Anv rates so aereed shall be subiect to the avoroval of the
aeronautical authorities or th; Contracting parries. In the evéni of disagree-
ment between the airlines, the Contracting Parties thcmçelvcs shall endcavour
to reach agreement and shall take al1 necessarv steos to aive effect to such
agrccmcnt~~hould the Contracting Parties fail io a&, the dispute shall be
dealt with in accordance with Article XI. Pending the settlement of the dispute
hv aereement or until it is de- -ed under ~rticg XI. the rates alreadv estah-
li;hG shall prevail.
(C) Pending the acceptance by both Parties ofany recommendations which
the International Civil Aviation Oreanization mav rnake with regard to the
regulation of rates for traffic other than that definid in paragraph(9) of this
Article, the rates to be charged hy an airline of one Contracting Party in
resoect of traffic between the-territorv of the other Contracting Party and a
thiid country shall be fixed~onthe haiis of the principles set ouïin pa;agraph
(A) of this Article and after taking into consideration the interests of the
airlines of the other Partv and shall not varv undulv in a discriminato~
manner from the rates established by the airlinésof the-other Party operating
air services on that part of the specified air routes concerned: Provided, how-
ever, that a designated airline shall not be required to charge rates higher than
those established hy any other airline operating on the specified air routes.
(D) If the International Civil Aviation Organization does not within a
reasonable time. estahlish a means of determining rates for traffic defined in
paragraph (C) ofthis Article in a manner acceptable ro both Parties. they shall
consult each other in accordance uith Article X of this Agreement with a view
to such modification of paragraph (C) of this Article 3s Iippears desirahlc. Article VI1
(A) The aeronautical authorities of both Contractine -arties sh~ ~ ~ ~ ~ ~-
information as promptly as possible concerning the authorizations extended
to their respective desianated airlines to render service to. throuah and from
the territory of the other Contracting Party. This will include copks ofcurrent
cenificates and authorizations for service on the specified air routes, together
with amendments, exemption orders and authorized service patterns.
(R) Each ~ontracting~arty shall cause its designated airlines to providc to
the neronautical authorities of theothcr Contracting Party, as long in advance
as practicable, copies of time tables. tariff schedules and al1 other relevant
information concerning the operation of the specified air services and of al1
modifications thereof.
CC)Each Contracting Party shall cause its designated airlines to provide
to the aeronautical authoritiis of the other on tract Party statislics re-
lat~ngto the trafic carried on their air service5 to. from or overthe tenitory of
the other Contracting Party showing the origin and destination of the traffic.
Article VI11
(A) Fuel, lubricating oils and spare parts introduced into or taken on
board aircraft in the territory of one Contracting Party by, oron behalf of, the
other Contracting Party or its designated airlines shall be accorded. with re-
spect to customs duty, inspection fees or other charges imposed by the former
Contracting Party, treatment not less favourahle than that granted to its
national airlines engaged in international public transport or to the airlines of
the most favoured nation.
(B) Supplies of fuel, lubricating oils, spare parts, regular equipment and
aircraft stores retained on board aircraft of the designated airlines of one
Contracting Party shall be exempt in the territory of the other Contracting
Party from customs duties. inspection fees or similar duties or charges, even
though such supplies be used by such aircraft on flights in that territory.
Goods so exempted may only be unloaded with the approval of the Customs
authorities of the other Contracting Party. These goods, which are to be re-
exported, shall be kept in bond, until re-exportation under Customs super-
vision.
Article 1X
Each Contracting Party reserves the right to itself to withhold, or revoke
or impose such appropriate conditions as it may deem necessary with respect
to, an operating permission in case of failure by a designated airline of the
other Party to comply with the laws and regulations of the former Party, or
in case, in the judgment of the former Party, there is a failure to fulfil the
conditions under ihich the rights are &!rantedin accordance u,ith this Agree-
ment. Such action rhall be taken only after consultation hetween the I'arties.
In the event of action bv one Party under this Article. the ri-hts of the other
Party under Article XI ;hall not be prejudiced.
Article X
(A) In a spirit of close collaboration. the aeronautical authorities of the
two Contracting Parties will consult regularly with a view to ensuring the
observance of the principles and the implementation of the provisions out-
lined in this Agreement.
(B) Either Contracting Party may at any time request consultation withthe other with a view to initiating any amendments of this Agreement which
rnay be desirable. Such consultation shall begin within a period of sixty days
from the date of the request. Any modification of this Agreement agreed to
as a result of such consultation shall come into effect when it has been con-
firmed by an exchange of diplomatic notes.
(C) When the procedure for consultation provided for in Paragraph (B) of
this Article has been initiated, either ContractingParty may at any time give
notice to the other of its desire to terminate this Agreement as provided in
Paragraph (E) of this Article. Such notice shall be s~multaneousl;communi-
cated to the International Civil Aviation Organization.
(0)Changes made by either Contracting Party in the suecified air routes.
excePt thoséwhich change (1) the final goint of dçpartüre within its own
territory and (2) the points served by the dcsignated airlines in the ierritory of
the other Contractinr! Party. shall no1 be considered as modilications of this
Agreement. Thc aerinaut'cal authortties of either Contracting Party mdy
thrreforc proceed unilaterally to make such changes. provided. hourever. that
notice of anv change shall begiven without delay to the aeronautical authori-
tics of the oiher ~ontraciing Party. 1fsuch latte-raeronauiical authoriiies find
thst. having regard to the principles set forth in ArticIV of ihis Agreement,
the interests of anv of their airlines are nreiudiced bv the carriage bv a desia-
nated airline ofthé 6rst Contracting ~àrty of trafic between ihe territory of
the second Contracting Party and the new point in the tcrritory of a third
country, the latter Party may request consultation in accordance with the
provisions of Paragraph (B) of this Article.
(E) This Agreement shall terminate one year after the date of receipt by
the other con tract in^ Partv of the notice to terminate. unless the notice is
withdraun by ~greement béforethe expiraiion ofthis period. In the absence
ofacknouledgmcnt ofreceipt by the other Contracting Party norice shall bc
deemed to have been receivëd fourteen days after the Ïeceipt of the notice by
the International Civil Aviation Organization.
Article XI
(A) If any dispute anses between the Contracting Parties relating to the
interpretation or application of the present Agreement, the Contracting
Parties shall in the 6rst place endeavour to settle it by negotiation between
themselves.
(B) If the Contracting Parties fail to reach a settlement by negotiation,
(i) they may agree to refer the dispute for decision to an arbitral tribunal
appointed by agreement between them or to some other person or body; or
(ii) if they do not so agree or if, having agreed ta refer the dispute ta an
arbitral tribunal. thev cannot reach aereement as to its cornvosition. either
Contraciing ~arty may submit ihc dispute for deci5ion tu any kibunal compe-
tcnt to decidc itwhich may hereafter be establishcd within the Internaiional
Civil Aviation Oreanization or. ifthere ii no such tribunal. to the Council of
the said OrganizaGon, or failin; that, ta the International court of Justice:
(C) The Contracting Parties undertake to comply with any decision given
under Paragraph (B) of this Article.
(D) If and so long as either Contracting Partv or a Designated airline of
either Contracting Party fails to comply with ;decision &en under Bara-
graph (B) of this Article, the other Contracting Party may limit, withhold or
revoke any rights which it has granted by virtue of the present Agreement and
its Annex. Article XII
This Agreement shall come into force on the first day of July 1948. The
Agreement and al1relative contracts shall be registered with the International
Civil Aviation Organization.
Article XII1
In the event of the conclusion of a multilateral convention or agreement
concerning air transport ta which both Contracting Parties adhere, this
Agreement shall be modified to conform with the provisions of such conven-
tion or agreement.
Article XIV
(A) For the purpose of this Agreement the terms "territory", "air service",
and "airline" shall have the meaning specified in the Convention on Inter-
national Civil Aviation.
(B) The term "aeronautical authorities" shall mean, in the case of India,
the Director General of Civil Aviation in India. and in the case of Pakistan,
the Director General of Civil Aviation, Pakistan, and in bath cases any person
or body authorized ta perform the functions presently exercised by the
abovementioned authorities.
(C) The Annex ta this Agreement shall be deemed tu he part of the Agree-
ment and al1 references Io the "Agreement" shall include references ta the
"Annex", except where otherwise expressly provided.
In witness whereof the undersigned, being duly authorized thereto by their
respective Governments, have signed the present Agreement.
Done this 23rd day of lune, 1948, in duplicate at Karachi in the English
language.
For the Government of India: (Signed) SRIPRAKASA,
High Commissioner for India in Pakistan.
For the Government of Pakistan: (Signed) A. R. NISHTAR,
Minister for Communications.
ANNEX
1. An airline designated by the Government of lndia shall be entitled Io
operate air services in both directions on each of the routes specified in this
paragraph and ta land for traffic purposes in the territories of Pakistan at
each of the points therein specified.
(1) Delhi and/or Jodhpur to Karachi.
(2) Delhi-Lahore.
(3) Bombay-Karachi.
(4) Ahmedabad and/or Bhuj-Karachi.
(5) Bhuj-Karachi.
(6) Calcutta-Dacca.
(7) Calcutta-Chittagong,
(8) Bombay or Delhi to Karachi and thence Io Muscat, points in the Per-
sian Gulf, points in Oman &Qatar Peninsulas, points in Iran, points in Iraq,points in the Middle East and points in Europe including the United King-
dom, and, if desired, beyond.
(9) Bombay or Delhi, Karachi, Masirah. points in the Hadramaut, Aden
and via intermediate points to Dar es Salaam and if desired beyond.
(10) Calcutta to Chittagong, points in Burma, Siam. Indo China and
Hongkong to China and if desired beyond.
2. An airline designated by the Government of Pakistan shall be entitled
to operate air services in both directionon each of the routes specifiedin this
paragraph and to land for traffic purposes in the temtories of India at each of
the points therein specified.
(1) Karchi-Bombay.
(fJ arac chi-~hmcdabad-~ombay.
(3) Karachi-Bombay-Colombo and if desired bcyond.
(41 Karachi-Delhi-Calcutta-Dacca and/or to Chittagong.
(5) Karachi-Calcutta-Rangoonand if desired beyoid. -
(6) Karachi-Delhi.
(7) Lahore-Delhi.
i8j Dacca-Calcutta.
(9) Chittagong-Calcutta.
3. Points on any of the specified routes may, at the option of an airline
designated by one Party be omitted on any or al1flight(s), provided.however
that sewice(s) Nos. 8,9 and 10 in paragraph 1 and service(s) Nos. 4 and 5 in
paragraph 2 above shall not except with the consent of the other Party be
operated otherwise than as through se~ice(s) terminating beyond the territory
of the other Party. W/T SIGNAL DA~D 4FEBRUARY 1966 ~OM
D.G.C.A. INDIA IO D.G.C.A. PAKISTAN
DD OPKCYA
Our Government has agreed to restoration of overûights of scheduled ser-
vices between India and Pakistan. We would suggest meeting soonest pos-
sible to determine details includina earliest date of resumotion and routes
over which overflying could be resumed. We would be grateful for immediate
reply regarding date and venue.
W/T SIONAL DATED 7FEBRUARY 1966 FROM
D.O.C.A.PAKISTAN TO D.G.C.A.INDIA
DD VIDDYA
070945 (OPKCYA)
3/66/ATT-1. We have received instructions from our Government that
Government of India has agreed on a reciprocal basis to the resumption of
overliights of each others territory by our respective airlines in accordance
with procedures existing before 1 August 1965. Accordingly we propose t0
resume overliight of Indian territory as per following schedule.
Sub para (A). PIA interwing schedule overflying India. Karachi/Daccal
Karachi services PK 720 dep Karachi Mon Fri 0630 an. Dacca IO50PK 722
dep Karachi daily except Mon Fri 0930 crr Dacca 1350PK 722A dep Karachi
Mon Fri 1700arr Dacca 2120 PK 702 dep Karachi Wed 0630 arr Dacca 1050
PK 708 dep Karachi Sat 0630 arr Dacca IO50 PK 721 dep Dacca Mon Fri
1910arr Karachi 2135 PK 723dep Dacca daily 2230arr Karachi 0055 PK 705
dep Dacca Thu O200 arr Karachi 0425 PK 711 dep Dacca Sun 0200 arr
Karachi 0425. Dacca/Lahore/Dacca services PK 725 dep Dacca Mon Fri 1200
arr Lahore 1330 PK 733 dep Dacca daily except Mon Fri 1500 arr Lahore
1630 PK 726 dep Lahore Mon Fri 1430 an.Dacca 1800 PK 734 dep Lahore
daily except Mon Fri 1730arr Dacca 2100. Aircraft Boeing 720B.
Sub para (6) PIA Dacca/Kathmandu/Dacca schedule overflying India. PK
531dep Dacca Mon Wed 0615 arr Kathmandu 0955 PK 532 dep Kathmandu
Mon Wed 1100 arr Dacca 1505. Aircraft DC3. Al1timings local. Sub Para
(C). 60th effective O001It 10th February 66.
Para 2. Suggest scheduled flights hetween Pakistan and India hy our airlines
commences first March. Our schedule will be filed shortly. For this purpose
PIA and IAC may get in touch for reopening their officesin India and Pakis-
tan respectively. Will appreciate your assistance in the matter. Para 3. Please
acknowledge and intimate overflight schedules of your airlines. Para 4. This
disposes of your signal No. YA 054 date 040940. w/r SIGNAL DATED 8 FEBRUARY 1966 FROM
D.G.C.A.INDIA ADORESSED 10 D.G.C.A.PAKISTAN
AND OTHERS
DD OPKCYA VIDDYH VIPAYD VlDDZl VIDDYA AHQ
VECCYD VECCZI VABBYH
VABBYD VABBZI VOMMYH VOMMYD VOMMZI
081505 VIDDYA.
YA 101.Part 3rd of three parts. IAC Dakota services Calcutta-
Agartala-Calcutta Iwo services per day on Tuesdays, Thursdays and Satur-
days.
Dep Calcutta 0710 arr Agartala 0840
Deo Aaartala 0905 arr Calcutta 1035
~ep ~alcutta 1120 arr Agartala 1250
Dep Agartala 1650arr Calcutta 1745
AIItimings in It.
PDRS for overflights of services FIR Karachi-Dacca-Karachi, Lahore-Dacca-
Lahore and Dacca-Kathmandu-Dacca will be the same as on first August
1965namely-
1. PDR-7 Karachi-Mandasaur-Jamshedpur-Calcutta.
2. PDR-1 Lahore-Bhatinda-Delhi then PDR-4 Lucknow-Gaya-Dhanbad
then direct to Dacca.
3. Kathmandu-Simra-Patna-Gaya-Dhanbad and then direct to Dacca.
Regarding resumption of scheduled flights between Pakistan and lndia it
raises questions not merely of inter-air lines importance such as restoration
of property,staffing, etc., which would require clearance. We are taking up
the matter with Government and will revert to you as soon as possible.
Kindly acknowledge.
W/T SIGNAL FROM D.G.C.A.PAKISTAN TO D.G.C.A.
INDIA ON 9FEBRUARY 1966
DD VIDDYA
091127 OPKCYA
DCEAIATS 27/65. Para one in accordance with agreement between Our
Governments ail-routes and procedures which existed prior to first August
were to be restored it is noted from your signal YA 010TOO0815052 that
PDRS 3, 4 and 5 for Karachi Dacca flightshave not been mentioned.
Secondly your signal indicales that on Kathmandu Dacca route Our aircraft
will be reauired tolvvia Calcutta. Previously the route was Dhanhad Dacca
dircct. ncccs;ary amendments are cfféctedto confirrn \iiih agrcenicnt.
Para IUO your schcdiiles hase been noted. All formcr routes over Pakistm
territors35 existed Drior to 11811965-,III bc available to IAC and All on a
provisional basis.~his will be subject to review in case you are unable to
restoreal1 former routes and procedure.
Para three to avoid confusion and ensure flight safety it's necessary that the
boundaries control of air space and transfer of control points for Karachi
Bombay FlRS in the West and Dacca Calcutta FlRS in the East should
remain in force as existed on 1st August. W/T SIONAL DATED 9TH FEBRUARY 1966FROM
D.G.C.A.INDIA T0 D.G.C.A.PAKISTAN
NR 009
DD OPKCYA
091403 VIDDYA
YA 117. Ref yr Sig TCû 091127. We have opened up PDR concerning yr
overflights. Other PDRSare under active consideration. It is confirmed that
route Dhanbad and Dacca is direct and not via Calcutta. Flights mentioned
in our Sig TOO081505 will commence operating from 10th February as
suggested in yr Sig Tûû 091127on provisional basis.
W/T SIGNAL DATED 19~~ FEBRUARY 1966 FROM
D.G.C.AINDIA TO D.G.C.A.PAKISTAN
NR 18
DD OPKCYA
191321 VIDDYA
YA 260. Reference yr 3/66/at I T00 120935and 120937.As we have informed
vou in Our s-enal YA 101Tûû 081505 resumotion of flts raises auestions not
merely of inter air line importance such as restoration of property, staffing,
etc. These matters will have to be resolved at inter Governmental level. We
reeret until then it will not (reoeat) not be oossible to resume services.In order
10-facilitate decision we repeat our propisal that DGCA's of India and Pa-
kistan should meet to resolve various uroblems arising out of resurnption.
At appropriate stage two airlines could ilso meet as sukested by you Grlier.
Regarding routes NOTAMS have been issued and you must have received
them Government of India,
Ministry of Civil Aviation.
Dated New Delhi-2; the 6thSeptember, 1965
15 Bhadra, 1887.
Notification
G.S.R. 1299 Whereas the Central Government is of opinion that in the
interests of the public safety and tranquillity, the issue of an order under
clause (b) of sub-section (1) of section 6 of the Aircraft Act, 1934 (22 of
1934), is expedient:
Now, therejore. in exercise of the powers conferred by clause [b) of sub-
section (1) of the said section 6. the Central Government hereby directs that
no aircraft registered in Pakistan, or helonging toor operated by the Govem-
ment of Pakistan or persons who are nationals of Pakistan, shall be flown
over any portion of India.
(Signed) V. SHANKAR,
Secretary to the Government of India.
Government of lndia
Ministry of Transport and Aviation
(Department of Aviation).
Dated New Delhi-2, the 10th February, 1966
21 Magha, 1887.
Notification
G.S.R. 239: Whereas the Central Government is of opinion that in the
interests of the public safety and tranquillity it is necessary so to do:
Now, thercfiore,in exercise of the powers conferred by clause (b) of sub-
section (1) of Section 6 of the Aircraft Act, 1934 (22 of 1934). the Central
Goveroment herebymakes the following amendment to the notification of the
Goveroment of India in the late Ministry of Civil Aviation No. GSR 1299
dated the 6th September, 1965, namely:
In the said notification, after the words "any portion of India", the fol-
lowing words shall be inserted, namely:
"except with the permission of the Central Government and in accor-
dance with the terms and conditions of such permission".
[F.No. 21-Af4-6q
(Signed) V. SHANKAR,
Secretary to the Government of India. (i) Letter of rransmittal forwarding the preliminary objections
N. Sahgal Secretary
Ministry of Tourism and Civil Aviation
Government of India
New Delhi.
No. Av. 13024/12/71-A(2) May 28. 1971.
The Secretary General.
~nternationaj Civil ~"iation Organization,
InternationalAviation Building,
1080, University Street,
Montreal 3, P.Q. Canada.
Sir,
1 have the honour to refer to your letters Nos. LE 611 and LE 612 both
dated 8th April. 1971 whereby the Government of India has been invited
to present itsCounter Memorials to an Application and a Complaint, both
dated 3rd March. 1971, submitted by the Government of Pakistan under
Articles 2 and 21 respectively of the Rules for the Settlementof Differences.
2. The Government of India. on a oerusal of Pakistan's Annlication and
Complaint and the Memorials and the Attachments thereto, find that Paki-
stan's Application and Complaint are not competent and not maintainable
and that the Council has no jurisdiction to handle the matters presented by
Pakistan. Accordingly, 1 have been directed by the Government of lndia 10
file herewith preliminary objections under Article 5 of the Rules for the
Settlement of Differences to both the Application and the Complaint. These
preliminary objections are set out in the enclosure to this letter.
3. Inasmuch as the contentions and submissions raised and the facts
stated in these oreliminarv obiections are c~m~on to both the ~Aoolication
andthe ~ompliint, a singfe $of preliminary objections to both théApplica-
tion and the Complaint, is filed in order to avoidrepetition and duplication.
However, an additional copy of this letter along with an additional copy of
the enclosure is also forwarded herewith in caseit is desired that there should
be a separate set of preliminary objections-one in respect of the Ap~~ication
and another inrespect of the ~omplaint.
4. Further, 1 have the honour to request that the Council may, in accor-
dance with Article 5 (4) of the Rules for the Settlement of Differences,
arrange a meeting so that the Counsel appointed by the Government of lndia
may have the opportunity of personally explaining and elaborating to the
Council the points which have been made in the preliminary objections, of
presenting arguments in support of Our submissions and also of leading
evidence and placing material on record which would have a direct bearing
on the validity and cogency of the preliminary objections. For this purpose.
1 may kindly be informed, as soon as possible, of the date of the meeting.
Accept, Sir. the assurancesof our highest consideration.
(Signed) N. SAHGAL,
Secretary to the Government of India.
Ends.-Preliminary Objections.(ii)Letrer of rransmitralnorifyingthenamesof rheAgent andrhe ChiefCounsel
N. Sahgal Secretary
Ministry of Tourism and Civil Aviation
Government of India
New Delhi.
No. Av.13024/12/71-A(I) May 28, 1971.
To
The Secretary General,
International Civil Aviation Organization,
International Aviation Building,
1080, University Street,
Montreal 3, P.Q. Canada.
Subject: h regard ro the Applicarionand theComplainrbath dated3rd March,
1971, subrnirredby rhe Governrnenrof Pakisran against the Governmentof
India Io the International Civil Aviation OrganizationCouncil,underArticles2
and 21 respecrivelyof rhe Rulesfor the Serrlemenrof Diferences.
Sir,
1 am directed by the Government of India to notify that His Excellency
Shri Ashok B. Bhadkamkar, High Comrnissioner for India in Canada, is the
Chief A&nt of India in the above matter.
1 am also directed to notify that Shri N. A. Palkhivala, Senior Advocate,
Supreme Court of India is the Chief Counsel for India in the matter and that
he will be assisted hy-
1. Shri B. S. Gidwani, Counsel
Deputy Director General
of Civil Aviation.
2. Dr. S. P. Jagota, Counsel
Director (Legal and Treaties Division),
Ministry of External Affairs.
3. Shri Yeshwant S. Chitale, Counsel
Advocate,
Suprerne Court of India.
4. Shri 1. R. Menon, Assistant
A.C.O., Civil Aviation Department. Counsel
Shri Narendra Singh, Joint Secretary, Ministry of External Affain, will
act as Adviser to the Counsel for India.
Accept, Sir, the assurances of our highest consideration.
(Signed) N. SAHGAL,
Secretary to the Government of India REPLY OF THE GOVERNMENT OP PAKISTAN, DATED 5 lULY 1971, TO THE
PRELIMNARY OBJEC~ONS RAISED BY THE GOVERNMENTOF INDIA
Pakistan Hieh Commission.
505, ~iybrod Street, '
Ottawa 2 -Canada.
NO. P/4/1/70. July 5, 1971.
Subject: Pakistan and India-Application underArticle 2 and Cornplaintunder
Article 21 of the Rulesfor the Settlement of Diferences
My dear Secretary General,
I have thc honour 10 refer Io your letter of 3rd June 1971,cnclosing thcrc-
with theiopies ofthe Icticr of the Go\crnrncnt ofIndia No.AV. 13024 12 71-h
(2) dated 28th hld) 1971,and the Prcliminary Objections filcd hy the Govcrn-
rncni sf India. 1am fsrwarding herewiih the rcply of the Covernnicnt of I'iikis-
tan ihereto. The duplicaie thcreoi is king filcd al Vienna by our Anibasador.
2. Further. 1 have the honour to inform vou that at the next meetine of the
Council tobé held on 27th July 1971 at Montreal the ~hief ~ounserof the
Governrnent of Pakistan will be available for oral argument for explaining and
elaborating to the Council the points involved, for Dresenting documents and
relevant material in support of Our submissions and, if necessary, for leading
evidence.
Please accept, Mr. Secretary General, the assurances of my highest con-
sideration.
(Signed) M. S. SHAIKH,
High Commissioner.
Mr. Assad Kotaite,
Secretarv Ceneral. Internationai
Civil ~~iation ~rganization,
1080, University Street,
Montreal 101, PQ.
Encls.: The Reply of the Govermentof Pakistan. REPLY OF THE GOVERNMENT OF PAKISTAN
TO THE PRELIMINARY OBJECTIONS RAISED BY
THE GOVERNMENT OF INDIA UNDER ARTlCLE 5
OF THE RULES FOR THE SETTLEMENT OF DIFFERENCES
IN RE THE APPLICATION AND THE COMPLAINT BOTH DATED .?RD MARCH 1971,
SUBMtiTED BY THE GOVERNMENT OF PAKISTAN AGAINST THE GOVERNMENT OF
INDIA TO THE INTERNATIONAL CIVIL AVIATION ORGANlZAlTON COUNCIL, UNDER
ARTICLES 2 AND 21 RESPECTIVELY OF THE RULES FOR THE SEITLEMENT OF
DIFFERENCES.
THE REPLY OF THE GOVERNMENT OF PAKISTAN TO THE PRELlMlNARY
OBJECTIONS FlLED BY INDIA.
The Reply of the Govemment of Pakistan to the preliminary objections
filed by India challenging the jurisdiction of the Council of the International
Civil Aviation Oreanization to consider the Ao..icationIComnlaint submitted
by Pakistan is sef out ad seriarinzas follows.
Para. 1. It is a statement of fact and needs no comments.
Para. 2. The statement that Pakistan's Application and Complaint are not
competent and not maintainable and that the Council has no jurisdiction is
misconceived, incorrect and without any legal basis at all.
Para. 3. rt is stated that in the guise of preliminary objections lndia has in
fact dealt with the merits of the dispute.
Para. 4. The tacts, events and circumstances given by lndia as background
information are totallv irrelevant and extraneous to the nresent disoute. Thev
are political in naiurcind pertain10 iniern~l anddo ni est ;iaiters Al ~akistan
which cannot be raiscd in thes proceedings. Further. itir statcd that ihe ma-
licious allezations made aeainst~~akistan bv wav of backnround information
arc u,holly-unlounded and unwarranted. li is s;bmitted ;ha1 India hns deli-
beraiely introduced these extrancous niaiiers which arc ouiside the pur\,iew 01
these proceedings to confuse the issues and to protract the proceedings.
BACKGROUND
Para. 5. The state~ ~t ma~e bv India is incorrec~~~-~.~--vant and has no
bearing on the issue undcr reference. ~owever, to set the record straight, it is
necessary to state the correct position. The 1965conflict was the direct result
of Indian army crossing the internalional frontiers of Pakistan following a
general uprising against military occupation by India of the State of Jammu
and Kashmir. The hostilities were followed by the signing of the Tashkent
Declaration bv Pakistan and India. Conseauentlv. ..e ~~--îliehts as existinz
before the lsiof August 1965 were ksuied in accordance w:h the terms of
the Bilateral Agreement of 1948, the Convention and the Transit Agreement.
However. because of India's refusal to imnlement the U.N. resolution relatina
to the exerciseby the peopl ef rhe Siaie il am m Ünud ~ashmir of their righï
of self-determination and her persistence to scitle outstandi.g di~putes on hcr
own ternis. no understandine--ould be arrived at on ~th~ ~ ~sues.
Para. 6.~he allegations made in thispara. are bascle,rand moiivated by the
dcsire to mislead ihc Council. Pakistan had no conneciion with and responsi-
bility for the hijücking of the LndranaircrafiIWO nationcalsof Kashmir lromthe airspace not of Pakistan but of a territory under military occupation of
India. The Government of Pakistan has since initiated prosecution against the
hiiackers and their accomplices. The conduct of Pakistan in relation to the
hiacking incident has been in conformity with the Tokyo Convention, 1963,
the Hague Convention 1970, the I.C.A.O. and the U.N. resolutions on the
subiect and the practice of States in aeneral.
Para. 7. The indian version of the hijacking incident isa gross misrepresen-
talion of facts. The correct position regarding this incident is as follows:
(a) On January 30, 1971, at 12.35 hours Indian Airlines F-27 (Reg. VT-
DMA) Service 1CC-422-Aen route from Srinagar to Jammu, contacted Lahore
Air Traffic Control Radio Telephone and informed that the aircraft was being
hijacked to Lahore and would be landing in 10 minutes time. lmmediately
on receipt of this information, fire and security services were alerted by the
Airport Manager.
(bj The Aircraft landed at Lahore airport at 12.45hours local time. lt was
parked away from other aircraft with security and fire services standing by.
(cj ~mmediately on landing, the hijackers were requested to allow the pas-
sengers and the crew to disembark. This was not agreed to by the hijackers at
first but after a lot of persuasion they agreed to letthe crew and the passengers
out at 14.32 hours local lime.
(d) The passengers and the crew were immediately taken to the passenger
lounge and subsequently transported to a hotel where arrangements for their
accommodation, etc., had been made.
le) The Director General, Civil Aviation of India wds informed of the safe
landing of the aircraft.
111 The Caotain of the Aircraft (Caot. G. H. Ubroi) was eiven clearance in
wriinig by thé Regiondl ~ontrolle; of Civil ~viation,' ~ah&e, thal he could
take off at anylime he wished. The receipt of this communication was acknow-
ledeed in writine bv the Caotain
6) The ~irecto; Genera'l of Civil Aviation, India, requerted perniission
for operiting a relief flight io Lahore to transport the crew and the passengers
of the hijacked aircrafi bdck to 1ndi.i.The permission uas immediiitcly grnntcd.
Hiiwever, before the proposed air~.riiftcould take off from Delhi, l3w&ndorder
situation had deieriornted due to a large crond having gathered ai the Lahore
airoort. The lndian Director General-of Civil ~viation was informed accor-
dikgly and advised that the relief fiight should not take off for Lahore until
furiher advice.
(hJ Throuahout this oeriod one or botb the hiiackers remained on board
the aircraft. Attempts b; the Pakistan authorities persuade them to release
the plane made no headway as they refused to negotiate directly with the Gov-
ernment authorities. ~on&auentlv. the hiiacke;~ were allowed Io contact
some non-officiais in thehaie tha; ;bey coild persuade the hijackers to agree
to release the aircraft. At no time hijackers came out of the plane at the same
time. One of them invariably remained on board. Any attempt to disarm or
arrest one would have surely blown up the aircraft as the two had threatened
to do.
(ij It may be emphasised that at no time bath the hijackers came off the
aircraft at the same time.
(jj Throughout 30th and 3151January, 1971, negotiations continued with
the hijackers in an effort to get the plane released.
(kj On February 1, 1971, the Director General, Civil Aviation, India,
was advised by telephone that the law and order situation at Lahore airport
was still unsdtisfactory but wds likely to improve by afteruoon. Accordingly,the Director General was reqiicstcd to keep the relief aircraft in readiness to
ilyto Lahore at short notice. However, by mid-day thesituaiion wonencd and
in the intcrcst of safery, it was thought inadvisable to ask the lndian aircraft
ta leave for Lahore. Meanwhile. because of the tension prevailing in the area
around Lahore airport the Pnkistan authoritter arranged ta wnd the püssengers
and the crew to India by road under proper escort ai 13.00hourson February 1,
1971.
(1, On February 2. 1971. ihc Government of lndia announced that the
demand for the release of 27 poliiical riso on e nslndian occuoied Kashmir
made earl~~- hv the hiiackers as a .~~-~.ndition for the surrende; of the olane.
$as not acceptable G~ndia. At 20.00 hours on ~ebruary 2,1971, the hijackers
hlew up the aircraft. The hiiackers received iniuries in the process and were
taken io hosnital.
(m) ~high Pakistan is not a signatory to the Tokyo Convention of 1963
and to the Convention for the Suooression of Unlawful Seizure of Aircraft
of December 16, 1970, signed al The Hague, it condemns hijacking and is
party to the U.N. Resolution 2645 (XXV) of 25 November, 1970, on aenal
hiiacking and to the Resolutions adooted by the 17th Session CExtraordinary),
of the [CAO Aqsemhlyal Montrcdl inJune 1970.Iii pursuance of the aforesaid
Ke~olutions. P3kisidn authorities no1 only arranged to return the passengers
and the crew to India within 48 hours. but also tried al1oossible means to ge-
ihe plane rcleased [rom the hijackersfor ils rerurn ro india.
(II)The Govcrnnieni of Pakistan had deplorcd the act of the blouing up of
the aircr~fi. The President of Pakistan consiituted a Commission of lnquiry Io
inquire into ihe hiiücking of thc lndian aircraft, headed bya Senior HighCourt
judge. The Commission examined a nuniber of witnesses including the Iwo
hiiackers. The Commission came to the conclusion that the hiiacking could
no1 have been put into execution al al1without the active compiicity, encour-
agement and assistance of the Indian Intelligence Service personnel and other
Governmental authorities in the lndian held Kashmir. This was done with
the obi-ct~-f seekine an excuse for d-~--~~.ne-air communication between the
Eastern and the ~istern Lin& of Pakistan, to create tension between the
various renions and political parties in Pakistan and to weaken Pakistan finan-
cially and-to create-a situation under which india could inierfere actively in
the interna1 alïairs of Pakistan.
The conclusions of the Commission of Inquiry into the hijacking incident are
annexed hereto (Annexure "A").
Para. 8.The allegaiions made by India are gross misrepresentation of facts
and are motivated to confuse the issue. It is stated that immediately after the
hijacking incident Pakistan took al1 measures to persuade the hijackers to
allow the nasseneers and crew to disembark and to restore the aircraft to ils
lawful ~oimander. ln this connection the Captain of the aircraft was given
in writing by the Airport authorities that he could take off al any time. The
facts renardine the hiiackine incident as described in Paranraoh 7 above are
reiterat&d. ~akistan ehphat~cally states that it took al1 possible measures to
restore the possession of the aircraft to ifs lawful Commander, provided al1
the assistance oossible under the circumstances ta the oassengers and the crew
and ti,rctrie\.éthe cargo. baggage and niail as wcll ib'ihe aiÏcraft builcould
nnt tx pubsihle îs any atiempt to use force against the hijackers while ihey
were in the aircraft would have los1 al1 the hope in preserving the aircraft.
The allegation that the conduct of Pakistan created an imminent danger 10
civil aviation is baseless and is emphatically denied.
Para. 9. The Government of Pakistan takes serious objection to the state-ments made in this paragraph. The allegation is totally incorrect. It also per-
tains to ~ m~ ~er which is ~ ~llv~an internal &air ~ ~ ~o~ Pakistan. It i- cl~ ~~ ~ ~ ~ ~
. ~ ~
that India has introduced this eitrdneous issue Io justify the conrinuance of
its illcgal action uf banning Pakisian n~rcraftoverilying ils tcrritory. The stand
of India thît ii is now inionceivable for it IO fulfilil\ internaiional o~l~-drions
in respect of overflights is not only a clear defiance of international legi order
but is a conlümation of its persistence in interfering in Pakistan's internal
affairs. The resolution of the indian Parliament to which a reference~~as been ~ ~ ~~ ~ ~ ~ ~
made is itself reflective of the attitude.
Para. IO. The statemenl is misconceived and has no legal basisat all. The
so-called material facts are totally irrelevant to the dispute in issue. Pakistan
maintains that the Council has jurisdiction to deal with the Application and
Cornolaint Dresented bv Pakistan. It is suhmitted that the Grounds 1 and 11.
on which lndia has raised preliminary objectiiins are misconceived. ill-founded
and untenable and the follon,ing contentions and submi,sions, aniong5t uihers.
are set out without prejudice to the stand of Pakistan.
GROUND 1
Para. II. The contention that there is no di\dgreement betucen Pakistîn and
lndia relating ti> the interprerdtiun or applicdtiun of the Con\ention or the
ïran\it ,\rreenient and tliat no action ha\ beentakrn bv India under the Transi1
Agreement is denied on the basisof the following suhmissionsamongst others:
(al There exists a disagreement between India and Pakistan relating to the
interpretation.or application of the Convention and the Transit Agreement
and that India has taken action under the Transit Aereement whi-h is causine. -
injustice and hardship IO Pdkistnn.
(hl A disagrcenient is a dispute on a poini of law or fdct. coiiflict of legal
views or of interests between Iwo narties. Pakistan maintains that Lndia has
viulated its obligations under the ~'nvention and the Transit Agreement in sus-
pending Pdkistanaircrafi uverflightsacrosriis ierriiory and Pakistsn hassought
a~orooriate remedies includin~ restoration of overiïiahts and comoensation.
~hére'has thus ariscn a situatTon in which IWO partiis cclarly hold oppusite
views concerning the question of perfurmance or non-performance of certain
treaty obligations, andas Io the remedies sought by one Party, and as such,
there exists a disagreement between the two States concerning the application
and101interpretation of the Convention and the Transit Agreement.
(cJ It is well settled that a auestion relatine. to the breach of a treatv and
remidies arising out of such breach, including compensation, is a quéstion
relating to its application. Since Pakistan's application to the Council is based
on a breach ofihe Convention and the Transit Agreement, and a request has
ken made for an appropriate remedy, including compensation, the Council
has therefore jurisdiction in the matter.
(dl The mere denial bv lndia of the existence of a disaareernent does not
prové ifs non-existence. The fact that the claim of one partiis opposed by the
other is sufficient to make ifa disagreement between the two parties relating
to the interoretation or aoolication of the Convention and the Transit Aaree-
ment.
Para. 12. The statement made by lndia that it has taken no action whatever
under the Transit Agreement is misconceived and incorrect. Pakistan's com-
plaint is maintainable under Section 1 of Article II of the Transit Agreement
sincethe expression usedtherein "action by another contracting State" includesan omission on the part of a contracting State to carry out its obligations
under the Transit Agreement. It would be an absurd interpretation to hold
that an action which cauzes hardship but is not a complete denial of rights
under the Transit Agreement may bethe subject of complaint but not an action
wbich amounts to a clear denial of rights under the Transit Agreement. An
interpretation which results in absurdity is not pemissible in law. Therefore,
~~~..ta~ement of l~ ~~ is mis~once-~ed and has no le~al b-s~~-whatsoever.
-" ~ ~ ~
Purar. 13 ro 15. The statements are verbatim reproduction.of some of the
nrovisions of the Convention and the Transit Agreement and the Kules for the
..tt~~.~nt of Dif-er~~ ~s. ~ ~ ~
Porn. 16. The statement needs n6 commenis.
Paru. 17. The statement is hypotheticil and general in nature 3nd therefore
does no1 need any comments. Pakistan maintains that no question has arisen
between India and Pakistan regarding the termination or suspension of the
Convention or the Transit hreement. Since. the Convention and the Transit
Agreement can only be termiiated or suspended in accordance with the express
provisions provided therein for this purpose, Indis cannot unilaterally purporl
to denounce the Convention and the ~ransit Agreement except in those tems.
Para. 18. The statement made in this paragraph is misconceived and has no
basis in law. It is stated that Article II of the Transit Agreement read with
Article 1(1) (6) of the Rules. oermits an Aoolication incaseof anvdisa~reement
. -
betuesn tuo States reltting'to intcrprekiion or application of the Transit
Agreement. The Iilngusge used in Article 84 of the Conventlon and Article II,
Section 2 of the Transit Agreement is very comprehensive and covers disagree-
ment of "any" nature relating to interpretation or application of the aforesaid
Treaty.
Para. 19. The statement is ill-founded. incorrect and untenable. Assuming
thtt a question exists regarding the termination or suspension ofthe~unventioa
ÿs bettieen India and Pakistan, the Council still has jurisdiction since a dis-
agreement rexarding the continuance in force of a Treaty is adisagreement
regarding the-application of that Treaty. Further, it alcoinvolves aquestion
of its interpretation.
Para. 20. The statement is incorrect and a misre~resentation of both facts
and law. The abroea~ -n. termi.ation or susoensionof an.~nt~ ~ ~i-nal treatv
can take place only in accordance with recognized principles of interniltional
Iaw, i.e., in conforinity ivtth theprovisionsol the treaty.Therefore. theConien-
tion and theTransit Agreement îdn only beabrogated, terminated or suspended
in acsorJance with the express provisions provided therein for this purpose.
Article YS of the Convention and Article III of the Transit Azreement ~rovide
the procedure for dcnunciation which is one year's notice. ~h;s king the case.
India csnnot ubrogate, or terminale or suspend the Con\ention and the Transit
Agreement vis-à-vis Pakistan or any other contracting State through a proce-
dure other than that prescribed in the multilateral ~reaties. It is submitted that
if the Indian contention is accepted, if would undermine the very hasis for
which the Convention and the Transit Agreement were concluded and any
contracting State could defeat the procedure for settlement of disputes arising
out of these treaties hy purporting to repudiate ifs obligations unilaterally
vis-&vis other States.
In addition. . ~ ~ ~ ~ ~ hiiackine incident. Indi, ha~ ~ ~~ ~-~d to act in re-
lation to Pakistan on the &ii orthe Convention and the Transit Agreement.
India is, therefore. stopped from taking the plea that the Convention and the
Transit Agreement do not continue to be in force. In particular, both lndia
and Pakistan have accepted to undertake hilateral negotiations in pursuance of the Council's resolution of 8th Avril. 1971.This was reiterated in the Coun-
cil's recommendation of 12th lune; 1fil.
Para. 21. The statement is misconceived and incorrect. lndia has introduced
extraneous matters in order to confuse the issue. The statements made in paras.
17-18ahove are reite~ ~ ~.~
Para. 22.~~he statement is a gross misrepresentation of fact and untenahle
in law. Itis stated that Pakistan has not reoudiated the Convention or Transit
Agreement vis-à-vis India as alleged hy India. The allegation that Pakistan's
conduct amounts to repudiation of the Treaties is incorrect. India's allegations
that Pakistan's conduct has militated aeainst the obiective of the Convention
are incorrect. Pîkistan has ~lwa)s adhered IO and ackd in accordance with the
objrctivesof the Con\,ention. lthîs nlso taken and continues IO take al1possible
measures to ensure safetv of civil aviation in its air soace. This is suhstantiated
.
by the fact that scheduied ajr services of 23 international airlinesand other
internationalnon-xheduled flightsoperatetoand acrossthe territory of Pakistan
with com~lete safetv of ooerafion on al1the air routes over its territorv.
~akistan has notbanned lndian aircraft from overiïying Pakistan te~ritory
or make technical landings. These privileges and rights are available to india
by virtue of the Convention, the~ransit ~greement and the bilateral Agreement
of 1948. If India is not willing to avail itself of these facilities that does not
make the said privileges and rights theoretical.
Para. 23. The statement is erroneous in law and untenahle. It is stated that
the Convention and the Transit Agreement are in operation as between lndia
and Pakistan. The termination of the Convention and the Transit Agreement
can onlv take vlace in accordance with the recomised orincioles of international
Iaw, i.e, in conforiiiity wiih the provistons of thesc muliilater<ilireùties. There-
fore. rhesubi~iission ihai India hîs ierniinaied or in any event. suspendcd the
Convention and the Transit Agreement vis-à-vis Pakistan is incorrect and has
no legal hasis. The statement made in para. 20 ahove is reiterated.
Para. 24. The statement isa misrepresentation of fact and lawand therefore
untenahle. Pakistan aircraft overRvinnIndian territorvand Indian aircraft over-
flying Pakistan territory is not amatter of reciprocity but of rights flowing
from and based on the Convention and the Transit Agreement. The allegation
against Pakistan that it has no regard for safety in civil aviation is motivated
baseless and factually incorrect.Scheduled Rightsof nearly 23airlines and other
international non-scheduled flights operate into and across the territory of
Pakistan with comolete safetv of o~eration on al1the air routes over ils territorv.
The lndian conteniion ihat iiis im~ossiblefor Indian aircrafr rooverRy ~akistan
ir ohvio~sly an exsuse Io deny the right of I'iikistan aircriift 10 overny Indian
territorv. It is not correct to state th& the Convention and the Transit hree-
ment vis.à-vis Pakistansinnd terminaicd or suspcnded. Further. itis suhm>ted
that a disagreement regarding continuansein force of a Treaiy isa disagrce-
ment regarding the application of the treaty. Indeed, it also involves a question
of ils interpretation. 'ïherefore, the Council has jurisdiction to handle this
dispute.
Paras. 25 and26. In view of the foregoing, Pakistan suhmits that the Con-
vention and the Transit Agreement are in force between the two States and
India is under an obligation to carry out their provisions in good faith. By
denying the right to Pakistan aircraft to overiïy Indian territory, lndia is in
breach of its international ohlieations arisine out of the Convention and the
Triinvt Agreemçni. 11is subniiied thît pak;stanss Application 1siviihin the
xope of Article 84 of the Conveniion. Article II (2) of the Transit Agreement
and Article I (1) of the Rulcs, and within the jurisdiciion of ihe Council underthose Articles. Likewise, Pakistan's Complaint is within the scope of Article II
(1)of the Transit Agreement and Article 1 (2) of the Rules for the Settlement
of Differences, and the Council has jurisdiction to deal with Pakistan's
"Application" and "Complaint".
Para. 27. The statement made in this paragraph is misconceived and has no
legal basis. The position explained in paragraph 13 above is reiterated.
Para. 28. The statement that the auestio. of~ ~dian aircrafl oveinvine
Pakistan, and~~akistan aircraft overtïying India is governed by a "spéciaï
kgime" and not by the Convention or the Transit Agreement is erroneous in
-~~ a~~-~~ct~ --..in~-~..~t~ ~
Both India and Pakistan are parties to the Convention and the Transit Agree-
ment. Under Article 1 of the Transit Agreement, India has granted Pakistan
the following freedoms in respect of scheduled international Gr services:
(i) The pnvileges to fly across its territory without landing;
(ii) The privileges ta land for non-trac purposes.
By virtue of the Convention, each contracting State agreed in the case of non-
scheduled fliahts that there was aright to make flights into or in transit non-stop
across eachother's territory, and to make stops for non-traffic purpoks
without the necessity of obtaioing prior permission, subject to the right to
require landing. It is, therefore, submitted that the States which are parties
to the Transit Agreement enjoy the first two freedoms of the air without the
necessity of concluding any Bilateral Agreement and further, if they are parties
to the Convention, they enjoy the right to overlly each other's territory in
respect of non-scheduled flights without the existence of any Bilateral Agree-
ment.
The purpose of Bilateral Air Services Agreement is essentially to regulate
commercial air traffic between States, which matter is not governed by the
Transit Agreement or the Convention. The Air Services Agreement between
lndia and Pakistan of 1948 relates primarily to establishing commercial air
services betweeii India and Pakistan aithoughit also realtirmsihe Iwo freedoms
granted under the Transit Agreenient. Therefore. itis submirted thst evcn after
the conclusion of the 1948BilateralAgreement. the Convention and theTransit
Agreement continue to govem the rights of the parties.
Para. 29. The statement is misconceived and has no basis in law. In view
of the forea-ina-it is submitted that the auestion of overtï~ina or landina for
non-trdffic purpose as betwcen India and ~akistan isgoverncd-by the ~ocven-
tiun and the Transit Agreement and therefore the Application and the Com-
plaint presented by Pakistan are compctent and maintainahle and the Council
has jurisdiction to entenain or handle the watters prcscnted therein.
Puru. 30. The statemcnt is erri~neous in laa and untenîble. The Con\cntion
envisages that contractine, States will enter into Bilateral Agreement in further-
ance of the obiectives of the Convention. Moreover~~the convention lavsdown
in Article 82 yslear obligation that the Rilatîral ~g;eenients shïll be c(;nsistent
u,ith the pro\,isions of the Convention. Theref<ire. the jurisdiction conferrcd
on the Council undcr Article XI of the Bilateral Agreement of 1948 10 scttle
disputes arising between the two parties i~ not inconsistent with the provisions
of the Convcntion and therefore. the Council haï jurisdiciion 10 settlc the
present dispute under the Bilateral Agreement of 1948.
Para. 31. Thestatement isincorrect and ill-founded. The BilateralAgreementof 1948 is in operation between India and Pakistan. After the armed conflict
of 1965, steps were taken for the resumption of overflights in 1966 between
the Iwo countries in terms of Article VI of the Tashkent Declaration which
called upon both the parties to take measures ta implement "al1 existing
agreements". Accordingly on 6th February 1966, the Prime Ministerof India
wrote ta the President of Pakistan that "we would be agreeable ta an imme-
diate resumption of overflights across each other's territory on the same hasis
as that prior to 1st of August 1965. Instructions are being issued ta our civil
and military authorities accordingly". In pusuance thereof the Director-Gen-
eral, Civil Aviation, India issued the signals in February 1966. Il is thus clear
that Indian Govemment agreed ta resume overflights on the same basis as
that orior to 1st Auaust 1965.Le.. on the basis of the 1948Bilateral -areement.
the Eonvcntion andthe Transit grc ce ment.
Althciugh the Bilateral Agreement of 1948re-affirms the 1u.ofreedoms granted
bv the Transit Aereement in resoect of overflvine each other's territorv and
kaking technical randingr, that a~recmcnt IScohc&rent and no1 incompitible
with the Transit Agreement in this rcspect. The Bilateral Agreement of 1948
did not intend to ahrogate or sus~endthe o~eration of the Convention and
the Transit Agreement Üs is manikt from 11;preamble. The Coniention and
the Transit Agreement are in operation heiibeen the Iwo States. The Uilateriil
Ameement of 1948 also re-a&ms the two freedoms eranted bv the Transit
~greement and does not supenede the Convention or-~ransit Agreement in
any u,ay. It is submitted ihat ihc Ci~uncil hasjurisdiction and is competent to
deal with the disoute under the Convention or the Transit Ameement.
In any event, india is estopped by its conduct from assercng that the 1948
Bilateral Agreement, or for that matter the so-called special agreement of 1966
in anv wa~ SuDersedesthe obliaations under the Convention and the Transit
~greémen; and crcates a "spe~ial régime" as betrr,ecn lndia and Pak~stan.
Aiter the com~nginto force of 1948Agreement, lndia coniinued to ;<clvis-&vis
Pidustan un the b~sisof the Convention and ihe Transit Agreement. Sitiiilarly,
even îfter the 6th of Februïry, 1966, Indra continucd ta act vis-2-vis I'ikistan
on the bnsis of the Conveniion and the Trsnsit Agreement.
Pakistan will at the hearina of the nrelimina.v o-jection oroduce al1relevant
materials relating to ~ndia'sconduci acceptingthe continied operation of the
Convention and the Transit Agreement and the non-existence of any "special
réaime"
-
Para. 32. The statement needs no comments.
Para. 33. The allegations of India about "Special Agreement" and the gen-
eral understanding of the two Governments in 1966with regard ta the resump-
lion of overflights are incorrect and based on misconception of facts. The
signals exchanged between the two countries on this subject clearly establish
that the overflights were resumed as before and in implementation of the
Agreement of 1948 and the Convention and the Transit Agreement. Thus it
did not constitute any Special Agreement or general understanding or pro-
visional hasis as alleged by India. This is further borne out hy the fact that
in spite of the disputes mentioned hy India in this paragraph remaining un-
resolved, aircraft of India and Pakistzn çontinued to overfly each other's
territory till 4th February 1966.
Para. 34. The statement is misconceived and haseless. If is stated that no
separaie agreement u,3sconcluded hctween India and Piikistan .n 19h6whish
could bcdcscribed as ii Special Agreement creating a special régimereplacing
the Bilateral Aereement of 1948.As statcd earlier. the Prinie Minister of India
in her messageto the President of Pakistan on ~ebruar~ 6th, 1966, indicatedtheir willingnessto resume overflights immediately across each other's territory
on the same basis as that prior to 1st August 1965. Therefore, the Indian
contention regarding the so-called special régimeis no1 correct. Further il is
clear that Indian Prime Minister did not attach any pre-condition 10 the
resumption of overflights. The statements made in paras. 31 and 33ahove are
reiterated.
Para. 35. The statement is incorrect and the factors introduced therein are
extrancous to the issue involved and, therefore, outside the purview of the
proceedings before the Council. Without prejudice to the above, il is stated
for record that in suite of the best efforts of Pakistan. relations between the
two countries have "01 improved becau,c of Indin's refusal to rcsol\,c the basic
cause of tension betaeen ihc tno countries, namely, the Kuhmir dispute and
ils insistence 10 dictate its own terms in relation 10other issues. On the other
hdnd P~k~rtdnha alivay, ken milling iu seille peaccfully al1 outstanding
dispuie, wiih Indiï through the accepied internation31 procedure of ncgotiation,
mediation and arbitwtion. Il has also urouosed the establishment of a self-
executing machinery for the resolutioi of al1 outstanding disputes but the
Government of lndia rejected il. Thus the Government of India for its own
reason has shown no intention 10 normalize relations with Pakistan.
Para. 36. The statement is misconceived and a mis-renresentation of facts
~ - ~ ~ ~ ~ ~ ~ ~~~~~. r~ ~-~-~~~~~-
and law. The existence of thesosalledspecial agreement isemphatically deniid.
Il is a fiction of imagination. As earlier stated. after the 1965armed confiict.
overîiights between Ïwo countries were resumed in terms of Article VI of thé
Tashkent Declaration which called upon the parties to implement al1existing
agreements. The statement made in paragraph 31 is reiterated.
Para. 37. The statement is misconceived and has no hasis in law. The Bi-
lateral Agreement of 1948is in operation between India and Pakistan and the
Council has jurisdiction 10handle the dispute uresented by Pakistan in accord-
ance with Article XI of the Agreement. The sktements made in paragraphs 30
and 31 above are reiterated.
Para. 38. The statement is denied. Pakistan emphatically maintains that the
riehts of Pakistan aircraft to overîiv Indian territorv flows not from the so-
c&ed "special agreement of 1966" But from the convention and the Transit
Agreement which continue to Lxin force as between Pakistan and India. The
conduct of India vis-A-v~ ~~ ~stan after the 1965armed coniïict indicates that
the Convention and the Transit Agreement continue to Lxin force as between
lndia and Pakistan. These Treaties have not been in any way abrogated,
teminated or suspended or superseded by any subsequent agreement between
the two parties.
Since the right of Pakistan aircraft to overîiy Indian territory and to make
technical landines in its territorv flows from the Convention and the Transit
Agrecmcnt. th& rights3re sont~nuou, unles the trîdties are denounced in the
manncr prescribed in the Treatie,. Pakistan emphatii.illy denies that India cnn
refuse the rights amruine 10 Pakistan from the aforesaid Treaties and bv the
Bilateral ~Geement of 7948. The resumption of overîiights in 1966 ii not
incompatible with the Convention and the Transit Agreement and does no1
suoersede these Treaties
Further, if it is assumed that the 1948Bilateral Air Services Agreement be-
tween India and Pakistan or the resumption of overîiights in 1966are in any
manner inconsistent with the Convention. the latter. nevertheless ~revails over
the Bilateral Agreemeni of the so-called'"special aireement" ofi966. It is a
wellestahlished principle of international law that when two States are parties
10successivetreaties relating to the same subject-matter that treaty shall prevail which was intended by the parties to do so. Article 83 of the Convention,
to which both India and Pakistan are parties, provides that contracting States
inay make arrangements through Bilateral Agreements not inconsistent with
the provisions of the Convention. Article 82 of the Convention goes further
and lays down an obligation on the contracting States not to undertake any
obligations and understandings which are inconsistent with the Convention.
It is therefore clear that India and Pakistan, being parties to the Convention
have clearly expressed the intention that the Convention shall prevail over
any subsequent Bilateral Agreement or understanding between them, in the
event of any incompatibility or consistency. Consequently the Council has
jurisdiction to deal with the matter.
Furthemore, neither Bilateral Agreement of 1948between India and Pakis-
tan, nor the so-called "special agreement" of 1966are applicable in respect of
non-rheduled flights. Rights and obligations of the parties in respect of non-
scheduled flights are Rovemed by Article 5 of the Convention which is the
sole provision applicable to such Rights. India's decision to suspend ihc ovcr-
flighis of al1Pakisian üircraft is a ban applying also Io riun-scheduledflightsof
Pakisian aircraft. Since lndia is in breach of its obligations under Art. 5 of
the Convention which continues to be in force as betweenPakistan and India,
the appropriate remedy lies with the Council and as such the Council has
jurisdiction to hear the dispute.
Paro. 39. TheGovemment of Pakistanemphatically maintain that the Coun-
cil has jurisdiction to deal with the Application and the Cornplaint of Pakistan,
among others on the grounds aforesaid, it is stated that the preliminary ob-
jections filed by lndia are incompetent, not maintainabte, malafideandshould
be dismissed wiih costs because-
(a) there is a disagreement between Pakistan and India relating to the inter-
pretation or application of the Convention or the Transit Agreement;
(6) lndia has taken action under the Transit Agreement which is causing
injustice and hardship for Pakistan;
(cl the auestion of Pakistan's aircraft ove-fl-ine Indian territorvand rn-kine
technical landingç therein on iis scheduled international air rrvicés isgoverned
by the Transit Agrecnient as ncll as the Rilateral Agrccmenr of 1948,Iikewise
the auestion of Pakistan aircraft on non-scheduled Aiehts overRvine Indian
terrirory and making tcchnicill landings thercin is goverGd bythe ~on~ention;
Id) the Council ha. jurisdiction to entertain and dccide any dispute regard-
ing the interpretation and101 application of the Convention and~the ~Ïansit
Agreement and to make appropriate findings and recommendation undcr the
Transit Agreement. CONCLUSIONS OF COMMISSION OF INQUIRY INTO THE
HIJACKING INCIDENT.
The President of Pakistan had constituted a Commission of Inquiry ta in-
quire into the hijacking of the Indian civil aircraftta Pakistan which landed
in Lahore on 30th January, 1971.
The Commission headed by Mr. Justice Noor-ul-Arfin, a Senior Judge of
the High Court of Sind and Baluchistan, examined a number of witnesses,
includin- Mohammad Ashraf Ouresh. an~ Mohammad Hashim Oureshi. the
Iwo hijackers. The Coinmission also had before iithe statements of the various
leaders of Indiî and the reports thsi had appcared in the Press. insluding the
leticr of Shaikh Moharnmad Abdullah ta Mr. Ja\a Prakash Narîvan nublished
in the Indian Express, New Delhi of February -15,1971and théstaiement of
MI. G. M. Sadiq, Chief Minister of indian-held Kashmir Government (here-
inafter called IHK Govemment), as reported in the Hindustun Timesof 3rd
Fehruary 1971 (copies enclosed). The Commission unanimously came to the
following conclusions:
(a) The circumstances of the hijacking of the lndian aircraft, are, firslly,
to justify reuressive measures in the face of wides~read resentrnent and feeling
of frust;aiion amongst the pcoplc of LHK. arising out of policier pursued in
the ierriiory by ihc Government of lndia and the Lf<Krégime,and, wcondly, ta
create a situation whereby ~olicies of the two wings of Pakistan could be smlt
out differently by the majonty leaders of two whgs, thereby frustrating any
possibility of understanding between them.
(b) (i) The persons directly responsible for the hijacking are:
Mohammad Hashim Oureshi. who is known aaent of Indian Intel-
ligenceServices, and who-heldp&iof ~ub-lnrpector inthe Indian Border
Sccuriiy Force and who \,irited Pakistan in 1969as such agent, and was
aeain out across the Cease-Fire Line in Aoril. 1970.bv the Intellieence
~⁣s of India, apparently to play the r81eof anaient provo&eur,
and his accomplice, Mohammad Ashraf Qureshi.
(ii) The indian Intelligence Services, the Iodian Border Security Force and
other Governmental Authorities in the Indian-held Kashmir without
whose active complicity, encouragement and assistance the plan for
hijacking could no1 have heen put into execution al al]. It is probable
that Mohammad Hashim Qureshi was even trained within India to
hijack the aircraft, prohahly during his posting al the Srinagar Airport.
Maabool But1 and his NLF do not aobear 10 have made any simi-
ficant or maierial coitribution to hijacking except to fall in Gith-the
suggestion made to this eiï..ct by Mohammad Hashim Qureshi, and
then, when hijacking occurred, to claim credit therefore.
(c) The motives behind the hijacking of the aircraft are these:
(i) The desire of the Indian political leaders to bring about a state of con-
frontation between India and Pakistan and ta accentuate the tension
between these two countries.
(ii) To take political advantage, for purpose of the mid-term general elec- tions in India, of the anti-Pakistan sentiment prevailing in India, which
purpose was given effect ta by the various steps taken by the Govt. of
India, such as the attack on Pakistani enclave in West Bengaland extern-
ment from India of MI. Zafar Iqbal Rathore, Fint Secretary of the
Pakistan High Commission in India.
(iii) To createjustification for the repressive measures pursued by the Indian
authorities in IHK temtory, the arrest of political workers, the extern-
ment of Shaikh Abdullah and Mirza Afzal Baig from iHK, the impo-
sition of ban on the Plebiscite Front and ta othenvise bring discredit to
the opposition parties in IHK territory, particularly to the movement
led hy Shaikh Abdullah and Mirza Afzal Baig and to the Plebiscite
Front which organization was declared an unlawful association on 12th
Januaw. 1971.
(iv) To disGpt communications between East Pakistan and West Pakistan,
and to dislocate the movement of people and supplies between these
- ~
two wings.
(v) To create tension between the various regions and political parties in
Pakistan, and
(vi) To weaken Pakistan financially to permit India to interfere actively in
the interna1 affairs of Pakistan.
(d) Under the terms of reference thecommission has to report that Pakistan
was in no way responsible for, or in any way connected with, the hijacking
incident. As soon as the hiiacked aircraft landed at the Lahore Airport. the
Governmental authorities in Pakistan took every possible step to protecl the
inembers of the crew, the passengers and the aircraft. The passengers and the
memhers of the crew were hmediatelv removed from the aircraft to the airport
lounge, where they were given lunca by the Pakistan International ~irlines.
They were then boarded and lodged in Hotel Ambassador, Lahore, until their
den&ture on 1st Februaw. 19...for India throueh lan- route. The Govern-
mental authorities in Pakistan extended every CO-operation, assistance and
facility to the lndian High Commission in Pakistan to remain in contact with
the nasseneers and the members of the crew. Mr. Kanoor. the Attachéof the
lndi-an ~igh Commission, was even pennitted to livewith the passengers and
the members of the crew in Hotel Ambassador. Further, the authorities in
Pakistan took every possible step to protect the Indian aircraft. Immediate
possession of the aircraft could not be taken for the following reasons:
(i) The hijackers were reported ta be armed with a revolver and hand-
grenade, which was discovered to be dummy weapons only after the
destruction of the aircraft.
(ii) The news of the landing of the hijacked aircraft at the Lahore Airport
spread quickly in the city of Lahore and very soon huge crowds col-
lected at the Airpon and continued to be there until the aircraft was
set to fire by the hijackers. A serious law and order situation developed
which necessitated resort Io "Lathi Charge" and tear-gassing.
(iii) Notwithstanding this serious situation, the Governmental authorities
took stem on the 2nd of Februarv. 1971. to isolate the hijacken, so
that conditions could be created which wiuld permit takinipossession
of the aircraft. But as soon as the hijacken realised that the aircraft
mav be released to India. thev destÏoved it hv setting fire thereto.
~"hammdd Ilashim ~urc;hi, the hijackL.r.intendcd from the
very beginning to destroy the aircraft at al1costs, as he himsclf admit-
icd inquestion before the Commission. The Covernmcntal authorities in Pakistan cannot, therefore, be fixed with any responsibility for this in-
cident.
The two hijackers are in detention and will be dealt with in accordance with
the law.
EXTRACT FROM SHAIKH ABDULLAH'S LETTER TO MR. JAYA PRAKASH NARAYAN,
PUBLISHED IN THE INDIAN EXPRESS (NEW DELHI) OF 15.2.1971.
The recent unfortunate events in the sub-continent have further exacerhated
the alre~dy strained relations beiueçn the two ncighbours. The storg, however,
does not end with the hijacking and blowing up of the plane. The important
ouestion is on whom to fixtheres~onsibilitv. The revel&ons. made since the
incident, by the responsible quarters, have raised grave donbts in my mind
and perhaps in the rninds of many others, as to the veracity of the stories put
out in reeard to the aeeocies resoonsible for this act. Nevertheless. it has be-
corne ab&dantly cleaFthat the ihief hijacker was an ernployee of the Border
Security Force. He had crossed over to Pakistan and reportedly got training
in hiiacki-e th~~.. after re-cros-ine to this side of the ce&fire line. he was re-
ernpioyed by the Security Force, and stationed on duty at the aiGort, osten-
sibly to keep watch on possible hijacking, as reported hy the Press. The hijacker
had told his ernolovers the nossibilitv of skviackina. which information was
comrnunicated i;>ihc ~ashiir ~ove~rnent~by theagency under uhosc em-
ploy the hijacker uas. The Kashmir Police wanted IO interrogaie the person.
but accordinz to the Chief Minister. Mr. Siidm. the a-.ncv rcfused IOidenrify
him or sumender him to Kashmir Police for interrogation. Finally, the mai
with one of his accomplices, boards the plane with the full knowledge of the
Border Security Force, and carries out his mission. forcing the plane to land
at Lahore. His fint act there was to contact the person who is reported to
be the leader of the Kashmir Liberation Front, narned Mohd. Maqbool Butt,
now this Maqbool Butt was involved in some murder case in Kashmir and
was tried and sentenced to death. (This happened in 1967when 1was in Kodai-
kanal and Shri D. P. Dhar, currently lndiao Arnbassador in Moscow, was
incharge of Home ARairs inKashmir.) But before the execution of the sentence,
he mysteriously escaped from jail and crossed the border to Pakistan.
How he managed to escape the jail has uptil now remained a rnystery.
Regarding his enlisting the official assistance in the dramatic escape from the
jail,it is being said that he was deliberately allowed to escape and cross over
to Pakistan in order to use his services there for furtherance of the plans. The
information about the Dossible hiiackina of the lndian plane. had been with
the Kaçhrnir Governmint and C'entra1~gcncies since JUIY,1969.as reported.
But the plan. meaningfully, unfolds irselfonly after Ourcxtcmrnent and banning
of the Plebiscite Front.
THE HINDUSTAN TIMESDELHI
DATED 3-2-1971
HUACKER ON WHOSE PAY ROLL?
HindusranTimes Correspondent.
New Delhi, Feb. 2. The sharp differencesbetween the Kashmir Govemment
and the Centre over the intemal security arrangements in the State have corneout in the open with the Chief Minizter, MI. G. M. Sadiq's allegation that
hijacker Mohammad Hashim Qureshi had received protection from a Central
Agency.
Greatly embarrassed by reports from Srinagar that Qureshi was a suh-in-
soector in the Border Securitv Force authoritative sources here todav cate-
Zrically denied that he had any connection with the Border Security Force. ~ ~ ~ ~ ~
It was stated that Qureshi had not ken issued a BSF uniform and there was
no question of his having been placed on security duty at the airport to check
hijacking. MI. Sadiq, however, told newsmen in Jammu today that Qureshi
was the same person who had earlier reported on the possibility of hijacking
of aircraft to Pakistan.
Damoging remorks: Perhaps, the most damaging statement by Mr. Sadiq was
that the Kashmir Police had wanted to interrogate Qureshi but the Central
Agency (he did not identify if) had refused them permission. He wanted to
know how he came to be recruited to the Agency.
Authoritative sources here are keen to avoid a clash with the State Govern-
ment on this issue. While denvina Qureshi's links with BSF. thev refused to
identify hini. They said ihat ~ur&hi hlid gone tu Pakisian and had received
intensive training in hijiickingand oitier suhversi\c iicii\itiçs. Buth the hijackers
Oureshi and hloh3mm3d Ashraf \iere Indian National and residents of Kash-
mir.
It was also stated the hijacking had been organised by a Pakistan based
"Liberation Front" with the complicity of the Pakistan Government. The
Front was headed by one Maqbool Ahmad Butt, a Pakistani National, who
had infiltrated into lndia in 1966, comrnitted crimes like dacoity, house-
hreaking and murder and had been convicted and sentenced to death, but
escaned from orison in 1968.
~iter that ~utt had organised the Front with the objective of organising
armed strupgle within Kashmir. An emissary of the Front had come to India
in Julv lastand had oroloneed discussions~with the several senior Plehiscite
~rint.leaders and plans for-hijacking Indian aircrafts had heen finalised a1
these meetings, if was stated.
Armed srruggle:The London branch of the Front was headed by Mr. Tariq
Abdullah, son of Sheikh Abdullah. A courier had been sent hy the Front last
year to find out why hijocking of aircraft had not taken place. These sources,
however, refused to identify the courier who had met the Plehiscite Front
leaders. The Froiit had trained people in guerrilla warfare and was supplying
arms and ammunition to them.
According 10 the Kashmir Govemment, there islack of CO-ordination be-
tween the Central and State intelligence agencies with the result that many
people of doubtful loyalty are getting access to sources of information. Ob-
viously the Kashmir police had a dossier on the two hijackers. Within a few
hoursofthe hijackingofthe plane, it hadestablished the identity ofthehijackers
and raided their houses in Srinagar.
This was corrohorated by the hijacked passengers and crew of the aircraft
on their return vesterdav.
It is understood the union Government had ordered a thorough screening
of its intelligence machinery in Kashmir and discussions will soon be initiated
with the State Government ICAO COUNCIL
Annex E
MINUTESOF THE COUNCIL OF THE
INTERNATIONAL CIVIL AVIATION ORGANlZATlON
(a) COUNCIL-SEVENTY-FOURTH SESSION
Minutes of the Second Meeting'
(The Council Charnher, Tuesday, 27 July 1971, at 1000 hours)
CLOSEOMEETING
President of the Council: MI. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary General
Present:
Argentina Com. R. Temporini
Australia Dr. K. N. E. Bradfield
Belgiurn MI. A. X. Pirson
Brazil Col. C. Pavan
Canada Mr. J. E. Cole (Alt.)
Colombia Major R. Charry
Czechoslovak Socialist Republic Mr. 2. Svoboda
Federal Republic of Gerrnany MI. H. S. Marzusch (Ait.)
France MI. M. Agésilas
India MI. Y. R. Malhotra
Indonesia MI. Karno Barkah
Italy Dr. A. Cucci
Japan Mr. H. Yamaguchi
Mexico MI. S. Alvear Lopez (Alt.)
Nigeria MI. E. A. Olaniyan
Norway Mr. B. Grinde
Senegal Mr. Y. Diallo
Spain Lt. Col.1. Izquierdo
Tunisia MI. A. El Hicheri
Uganda MI. M. H. Mugizi (Alt.)
Union of Soviet Socialist Republics MI. A. F. Borisov
United Arah Republic MI. H. K. El Meleigy
United Kingdorn A/V/M J. B. Russell
United States MI. C. F. Butler
Also present:
Dr. 1.Machado (Alt.) Brazil
MI. E. G. Lee (Alt.) Canada
Mr. B. S. Gidwani (Alt.) India
MI. M. Garcia Benito (Alt.) Spain
MI. N. V. Lindemere (Alt.) U.K.
MI. F. K. Willis (Alt.) U.S.
MI. N. A. Palkhivala (Chief Counsel) India
Mr. Y. S. Chitale (Counsel) India
' Reproduced from ICAO Doc. 895€-c/lûûI,C-Min. LXXIV/2 (closed). Mr. 1. R. Menon (Assistant Counsel) India
Mr. S. S. Pirzada (Chief Counsel) Pakistan
Mr. K. M. H. Darabu (Assistant Counsel) Pakistan
Mr. A. A. Khan (Ohs.) Pakistan
Mr. H. Rashid (Obs.) Pakistan
Mr. Magsood Khan (Obs.) Pakistan
H.E. A. B. Bhadkamkar (Agent) India
H.E. M. S. Shaikh (Agent) Pakistan
Secretariar:
Dr. G. F. Fitzgerald Sr. Legal Officer
Mr. D. S. Bhatti Legal Officer
Miss M. Bridge CS0
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Sertlement of Disputes befween Contracting States
Pokisran versus India-Suspension by India of FIights ofPakistani
Aircraft over Indian Territory
1. As decided on 12 June, this was a meeting to hear the parties on the
preliminary objection filed by India on Pakistan's application to the Council
under Article 84 of the Convention and Article II, Section 2 of the Interna-
tional Air Services Transit Agreement ("Case No. 1") and ils complaint under
Article II, Section 1 of the Transit Agreement ("Case No. 2"). The spokes-
man for India was Mr. N. A. Palkhivala. the sookesman for Pakistan Mr.
S. S. Pinada, both acting in the capacity oichieicounsel for their rerpective
souniries. The uhole uf the meeting was taken up with the presentation by
Mr. Palkhivnla of the preliminary objection in Case NO. 1.
2. The prcliminary objection was, in essence, that Pakistan's application
u,aq nilt cornpeten1 and not maintainable and that the Council had no juris-
diction to handle the matters contained therein. Two main grounds for this
contention were submitted.
3. The first ground was that there was no disagreement between India and
Pakistan over the inter~retation and anolication of the Convention and the
Transit Agreement because these two instruments were inoperative between
the two countries. India regarded the Convention-and with it the Transit
Agreement. whose existent; was de~endent uoon it-as susoended or termi-
nied hetii,cen herrelf and ~~kistan'h~ the laner's conduct.'which. su Taras
India -,as conccrned. wür directly contrary IOthe Convention's basic purpose:
promotion of the safe and orderlv develooment of international civil aviation.
.iliernat!vely. the Convention and ~ransit Agreement could be considercd as
surpendcd or terminated betaeen the two countries hy India's action in
suipending the ilight of Pakijtsni aircrÿft over lndian territory. action lndis
wïs entitled tu tike under 1-0 rundamental principles of &neral interna-
tional Iaa. inoit rccently sunfirmerl by the Internlttional Court of Justice in its
Advisor) Opinion of?! June 1971on the L<ipuIConw~~iencesIurSlart~jofthr
ConlinuedPresence of South Afiica in ~arni&a (Sourh~esr ~3ica).
4. The first of these principles was that it was the sovereign right of a State
to terminate a treaty evcn if the treaty made no ~rovision for termination; a
State challenging the exercise of thai right mus-t be able to point to some
S'pecificprovision of the treaty denying it, and there was no such provision inthe Convention or the Transit Agreement. The second orinciole. embodied in
~rticlc 60 of the Vicnna ~on\,enÏion on the Law of l'reiiics. ;,a; thai a mate-
rial breash of a trelit). by one of the parties--in other ui~rds. rcp~diation of
the treatv not sanctioned bv the Vienna Convention or the violation of a
provision essential to the accomplishment of the object or purpose of the
treaty-was grounds for aStatespecially affected hy it to suspendtheoperation
of the treatyjn whole or in part in the relations between itself and the default-
ing State. There could be a dispute between the defaulting and the affected
State over whether the suspension was justified, but there was no provision
in the Convention or Transit Agreement giving the ICAO Counciljurisdiction
to deal with that kind of dispute. As noted by the ICAO Assembly at ils first
session (Resolution AI-23), the power of the Council to act as an arbitral
bodv was much more restricted under the Convention than it had been under
the lnterim Agreement, being limited to disagreements relating to the inter-
oretation or aoolication of the Convention and its Annexes. Moreover, the
composition of the Council did not make it an appropriate forum for dealing
with such complicated questions of fact and law as were involved in the
present case. In this connection Mr. Palkhivala read into the record para-
graphs 16 to 24 of the preliminary objection.
5. He then denied Pakistan's affirmation that Articles 54, 89 and 95 of the
Convention made the Council competent to deal with the application. He
ercued that the relevant orovisions of Article 54. (iland Ikl dealina with in-
fractions of the ~onveniion, were applicable oniy if theconvention was in
operation between the State alleged to have committed an infraction and the
State cornolainina about it. Article 89. which recoanizedthe freedom of action
of States in tinie;of u,ar or nations1 emîrgency, ;3\ irrelevlint ta the prewnt
casc. having nothing to du urith the right <iftermination for rnaterial brcach.
Article 95. dealinc with denunciation of the Convention. was also irrelevant;
India had no uihh 10 iviihdrüir. from rhe Convention. rc.prid8atingher ohliga-
tions and privilegc.s ~nder rhiit insirdment i,is-i-vis 41 Contrariing States; she
wanted onlv the susoension of its ooeration in relation to one State.
6. Mr. &lkhivdl; nexi deali wich thrçç of the poinir in Pakisinn's rcply to
the prelirninïrv objection. Ile claiined th31 the first-ihat "appliclition" in-
cluded termination and susoension-was a clear misuse of the languaae and a
reflection upon the cornPeience of the drafters of the convention- moreover,
the International Court of Justice, in the Nomibia case, had accepted the
argument of the United States counsel that there were three distinct types of
disagreements relating to international treaties: disagreements over inter-
pretation, disagreements over application, and disagreements over termina-
lion. He declared that the second point-that India had applied the Conven-
tion and Transit Agreement between itself and Pakistan since the cessation of
the 1965 hostilities-was incorrect: there had been no scheduled or non-
scheduled air services between India and Pakistan since 1965; the right ac-
corded by Article 5 of the Convention to make non-trafic stops had been
completely denied; and overflights had been only by specific permission,
which was directly contrary to Article 5; if Pakistan had a complaint, there-
fore. itshould have been made in 1965. The third point-that there was no
right Io terminate an agreement unless the agreement provided for it-was
contrary to the opinion of the International Court of Justice, which, inciden-
tally, was an appellate tribunal in disputes referred to the Council under
Article 84 of the Convention.
7. The.second ground for the preliminary objection was that since 1965
overfligbts of Indian and Pakistani aircraft had been covered by a specialother interventions by bot5 parties are necessary, 1hope they will be as brief
as possible. After tbat, ~ouncil members will have an opportunity to partici-
pate, not yet getting into the deliberations on the merits of the case itself or
on the areliminarv ohiection. but auttinn questions for information auraoses.
After the questions and replies, the couniil will have to decide if itbishes to
proceed to the deliberations on whether or no1 it is competent. So 1 will now
invite India to oresent the oreliminary obiection on Case 1.
5. Mr. ~alkhivala: Mr. ~resident and honourable members, 1shall first deal
with Case No. I filed by Pakistan against India. That Case represents an ap-
olication made under Article 84 or the Chicago Convention. the Convention
on International Civil Aviation of 1944, which for brevity's sake 1 shall cal1
"the Convention" in the course of my argument. The same application is also
made under Article II, Section 2, of the International Air Services Transit
Agreement of 1944, which 1 shall cal1 hereafter "the Transit Agreement".
The second case, which represents a complaint filed under Article II, Section
1 of the Transit Agreement, 1shall deal with separately after 1 have finished
with the first one.
6. Now, Sir, the preliminary objection is twofold and the fis1 one rests on
the proposition that any dispute arising out of termination or suspension of
an international treaty, of the Convention or of the Transit Agreement, can-
not be the suhject-matter of proceedings before this honourable body. It is
this proposition that 1shall try to make good, first in the light of the express,
and 1would say explicit, provisions of the Convention and the TransitAgree-
ment on this question and second hy reference to the latest ruling of the Inter-
national Court of Justice.
7. Mr. President, 1 think it would no1 be inappropriate to start with this:
disputes between nations pertaining to the Convention or the Transit Agree-
ment may arise in one of four ways. First, it may be a disoute asto internreta-
tion of the treaty: second, itmay bc 3 dispute as to appljcstion of the tkeaty;
third,it may be a dispute arising [rom action taken uiider the treaty; fourth, it
mav be a disoute oertaining to termination or susuension of the treaty bv one
taie as against inother. If1 may for the sake 0.fbrevity cal1themiaies of
interpretation, application, action and termination, these four cases perhaps
cover the normai iamut of international dis~utes and it is most imaortant Io
note that under the terms of the Conventiononly the firhttu,o typeïif dispute
can come before this honourable Council. As far as the Transit Agreement is
concerned. the first three types of disautes can come hefore the Council.
Therefore IWO disputes in thëcase of the Convention. three types of disputes
in the case of the Transit Agreement. but in neither cdse cïn the fourth type,
which is concerned with termination, come before this honourahle Council.
This is the criix of the case and1 would apprcciate the honourable members
bearing in miiid the clear distinction which the words of the English language
convey to anvone familiar with the lansuaae. 1am sure the distinction must be
equaliy wellbrought out in the transitions of these treaties, which are also
authoritative texts.
-8.If the honourahle members have a copy of the Convention, may 1 re-
quest them to be kind enough Io refer to ~rticle 84 to see what are thewords
of this Article, which is the only Article conferring jurisdiction on this Coun-
cil. The words of Article 84 are:
"If anv disameement hetween Iwo or more contractinc! Statès relating
to the iiterpre?ation or application of this Convention and its ~nnexei
cannot he settled by negotiation, it shall, on the application of any Statethat the power tO terminate an agreement is a distinct, separate power, un-
connected with the question of application or interpretation.
11. May 1 request the honourable members to consider how these words
apply in practice. There may he some words in the Convention which are
ambiguous, capable of two meanings, at least in the view of one State. That
State may tell another State "1 do not interpret the words this way. My inter-
pretation is'X', your interpretation is'Y'.", and if the parties do no1 agree as
to what is the right interpretation, this Council would decide what that inter-
pretation is. This is the meaning of "disagreement as to interpretation".
12. Now between India and Pakistan there is no such dispute at all. It is
India's case, and in fact it is Pakistan's case, that India has terminated this
agreement. It is true that in the final reply Pakistan says "No, it is a case of
interpretation or application, which is a rnatter of legal submission.", but it is
categorically India's case that by Pakistan's misconduct-1 am using the word
"misconduct" in the legal sense, and though the facts are not really relevant
for this preliminary suhmission, 1 shall deal with them very brieRy in a few
minutes after 1have finished the leaal submissioo-the Convention has heen
terminated by Pakistan qua 1ndiar Alternatively, if you were 10 hold that
Pakistan has not terminated the Convention qua India, India has terminated,
or in any event suspended, the Convention qiia Pakistan. Whether we have
done so rightly or wrongly is a dispute pertaining.to the termination of the
agreement; it is no1 a case of interpretation or application. If this is the real
disoute between India and Pakistan. there can he no question of interoreta-
tion. We are not interpreting any article of the ~onveniion at all. Theri is no
word of the Convention which is in dispute between India and Pakistan,
India's case heing that this Convention stands terminated as between India
and Pakistan.
13. If you 'vil1now look at the word "application", as 1 read the English
lanauaae it means the wav vou aoolv the orovisions of this vdrticular Con-
vention to an existing se<& facts.'~o long as this convention continues in
operation, there rnay arise between Iwo States a question about how a particu-
lar orovision should be aoo. .d to an existing s.t of facts. Now You cannot
po\\ibl) dpply ilie Con\,enrlon unlçs itis inoperniiiin. Appliioi;~in I~igic~lly
muli prcsuppose thai ihe Coiiveniion 1sin oper~tion. If ii1sin oper:iiion the
question is hou JO )ou ariplv itIO an eu jting sci of facis. II one St:iiecays
"1 apply it this way.", andaRother State says"l apply it another way.", that
would he a disagreement as to application. To give you one simple example,
under Article 5 aircraft of one State not engaged in scheduled international
air services have the right to fly ioto or non-stop across another State's ter-
ritory or to make stops for non-traffic purposes.
14. Now in relation Io an existing set of facts a dispute may arise over
whether a narticular countrv wants to make a non-traffic stop or not. whether
a particular country is ove;flying non-stop across the territory or is claiming
some higher right. Then there are various other provisions about search of
aircraft. airnori and similar char-es...revention of disease. etc. In relation 10
a particulaiset of facts this difficult question of fact or la& may arise: "Are
these provisions being correctly~apo~.ed by one State or wrongty applied by
one State?'These are disoutes as to aovlication of the Convention to an
existing set of facts and since the ~onv&iion has more than 90 articles, you
can well imagine a number of questions which could arise in applying it to an
existina set of facts. The word~"aoo1ication" therefore oresuoooses the exist-
ence, trie operation, the efficacyoEihe Convention as be.tweei;iwo States. But
if you do not have that and you have the question of termination-1 am no1 troubline the honourable members todav with whether termination bv India.
or termination by Pakistan as we say it &as, was rightful or wrongful-if theri
was an appropriate forum, we have no doubt that we wouldbe able to prove
to the hiltthai. assuminn the termination was bvlndia. it was rirhtful-but 1
am requesting thrni to iccept the suhmission, k,hich is well fo&ded in lau,.
that since the dispute pertiiins to terminlition.ilcannot po5sihly be treated as
a case of interoretation or aoolication.
15. In this Connection ma; 1request you, having seen that under Article 84
of the Convention only two types of disputes can possibly come to the hon-
ourable Council. disnutes as to internretation and disoutes as to aoolication.
to turn to the les ior the ~ettlement of Differences 'pproved by thé~ouncil
in April 1957. 1 shall refer to them hereafter as "the Rules". If you turn to
~rticle 1. vou will see how verv oreciselv even the Rules for the Settlement of
~iffereniis are restricted to 140.types of difierences-difierences as to inter-
pretation and differences as to application.
"Article 1
The rules of Parts 1andIII shall govern the settlement of the following
disaereements between Contractinn States which mar be referred to the
-
council.
(a) Any disagreement between Iwo or moreContracting States relating
to the interpretation or application of the Convention on International
Civil Aviation."
1shall stop here because the rest of the Rule deals with something else. Then
there is a sub-clause Ibl which savsthat these Rules anolv to onlv two tvnes of
disputes, disagreement as ta interpretation and disagreement as to applica-..
tion. The rest of the Rules will not come into operation unless this first con-
dition is satisfied. namelv that the disoute falls within the amhit of Article 1.
Clause I (a), of 'these &les.
16. 1 have finished showing that under the Convention only two types of
disnutes can no to the Council. Mav 1 now turn to the Transit Agreement to
show that thrie types of disputes can go to the Council: first a &pute as to
interpretation, second a dispute as to application and third a dispute arising
fromaction taken under the Transit ~ereement. You will note that so far as
the Convention isconcerned, unless thedisagreement relates to interpretation
or application it cannot come before the Council. but action taken under the
Traniit Agreement is separately dealt with as a matter that can go before the
Council. In thisconnection may 1request the honourable members to turn to
the Transit Agreement of December 1944, Article II, Section 2. If is couched
in words identical to those used in the Convention:
"If any disagreemcnt between tuo or more coniracting States rclating
to the interpretation or xpplication of this Agrcemçnt ciinnot be settlcd
by ncpotiatiùn, the provisions of Chapier XVlll of rhe aho!,c-mçritii)ned
Con\.cntion shall be applicable in the sîme nianner as provided therein
\rith reference to iiny di\iiyreement relating to the interprîtaiion or appli-
cation of the above-mentioned Convention."
The words are "interpretation or application".
17. Now the third type of dispute which can go to the Council is dealt with
in Section 1 of the same Article II:
"A contracting State which deems that action by another contracting
State under this Agreementn-mark the words "under this Agreement" -"is causing injustice or hardship to it may request the Council to
examine the situation. The Council shall thereupon inquire into the
matter and shall cal1the States concerned into consultation."
I need not read the rest.1 am referring to this provision now only with a view
to giving a comprehensive picture of the limits of the jurisdiction of this
honourable Council. 1 shall refer to it in more detail when 1 come to the
second case, the complaint of Pakistan. What 1 am emphasizing at the
moment is that Article II, Section I refers to a third type of disagreement or
dispute which can arise between States, pertaining ta action taken under the
Transit Agreement. Now the words "action taken under this Agreement"
harmonize with the interpretation I have already put on the words "applica-
tion or interpretation". These three categories of dispute al1 postulate the
continued operation of the Agreement. Thus you have questions of inter-
oretation. aoolication and action under the Aoeement.
18. You have seenthat the fourth type of diiputc pertaining tu termination
is nowhere made subject I~Iihis honour~ble Council's jurisdiction. Evcn in
theRulesuhichdcal with the Transit Agreenient, yoii will find that the Coiin-
cil's jurisdictiois restrictcd to case5of interpretation. application and acti~~n
under thc Agreement. Ofcuurse. the Rulçs could not possihly conl'er s jurir-
diction not conferred by the Convention or by the Transit Agreement. No
such jurisdiction is conferred in caseof termination by the Convention or the
Transit Agreement and 1 am only fortifying my argument by reference to the
Rules, which are within the framework of the Convention and the Transit
Agreement and in the latter case expressly limit the tribunal's jurisdiction to
these three types of disputes.
19. In order to prove that, may 1 request you fo turn to that part of the
Rules which deals with the Transit Agreement as distinct from the Conven-
tion. Itis Article 1,Clause 1 (6). which talks of two types of disputes: "any
disaareement between two or more contractina States relatina to the inter-
pretaiion or appliç~tion of the International ,\; Scr\,ices ~ra&it Agrdemcnt
nnd of the Internati~~nal Air Tr~nsport Agreenient (hcreinlifter respïctii,ely
cdlled 'Transit Acreement' and 'Transoort Acrcemeni'l." The third tvpe of
dispute under the Transit ~~reement'is des< with by the same ~rticle 1,
Clause 2: "The Rules of Parts II and IIIshall govern the consideration of any
complaint reaardinaW-now mark the words-"an action taken by a State
party to the Transit~~reement and under that Agreement". Two conditions
have to be fulfilled. First, action must be taken by a State party to the Transit
Agreement and, second, it must be action under the Agreement. This part of
Article 1 of the Rules is exhaustive of the jurisdiction of the Tribunal to deal
with casesarising under the Transit Agreement.
20. Now I come to this very imoortant question of international law.
which, fortunately for me, has been settled by the latest pronouncement of
the International Court of Justice. May 1first briefly explain to the honour-
able members in my own simple words what this principle is and then read
the judgment of the World Court on that issue. After 1 have made my sub-
missions the honourable members will see that what 1 am about to Say is
completely borne out by the judgment of the International Court of Justice.
Theprinciple of internationallaw is this-when two or more States enter into
a treaty the power to terminate it does not have to be conferred by the treaty
itself. The right to terminate a treaty is inherent in a sovereign State. You
may have an international forum before which the State wronged by the
wrongful termination of the treaty by another State can go, or you may have no such international forum, but the essential point is that this right to termi-
nate a treaty is a principle of international law, which is notto be regarded as
absent because the convention or treaty does not expressly confer the power
of termination. In other words, the power to terminate the treaty does not
have to be conferred by the treaty itself. It is dehors the treaty. It is outside
the treaty. Its source is customary international law-1 am using the words of
the International Court of Justice. If any State says there is no such power to
terminate the treaty, that State must he able to point to an express provision
in the treaty which says that the States parties to this treaty shall have no
power to terminate it at any time or shall have the power to terminate it only
in certain ways. In other words, the power exists dehors the treaty and it can
only be taken away by express words of the treaty and no other way. Now
there are no express words of the Convention or of the Transit Agreement
which ai al1 atïect prejudicially, at al1 take away or abridge, the sovereign
right of a State to terminate the treaty.
21. The second proposition laid down by the World Court is that if one
State which is a party ta an international treaty commits a material hreach of
the treaty, the other party is no! bound to sit idle, wring its hands and Say
"Will you kindly be good enough to observe your obligations." The other
State has the riaht to terminate the treatv itself on the eround that the wrone-
doing State cannot get away with the fruits of its wrong; if you have CO;-
mitted a breachofyour part ofthe treaty, 1 am entitled to terminate the treaty.
This is the international law.
22. Nowa very difficult, sometimes very complicated, question will arise:
Hasthe State which has purported to exercise the right to terminate the treaty
done so for good grounds or bad grounds? The important point is that
wheiher the r~ehi-of terminafine u the Treatv has been exercised on aood -
grounds tir ha4 grounds can only be determined hy the forum which hns the
right to &<ide the dispute pertaining to the terminaiion. Such a ior~ni irnoi
ihis hono~r~iblc Council. Therc may or may not be other ftirunis. and in iaci
ihis ~3s the riholc~ascofSouih Afriia. South Afr.c~ :irpiiid IiLe ihis: ne acrc
riven this mandate ovcr Naniibi3 bv the United Saiioni; ihi, niindate is.in
international treatv-the Wor~d -ourt ~ ~ ~ ~ ~that oosition-and under
. F ~ ~
this international treaty there is no rightto terminate themandate. The Inter-
national Court of Justice ruled that there was a riaht to terminate the mandate
and ihar it had in faci heen icrminaied on justifiÿhle groundi. bec;lusc South
Africa had commiiied 3 breach ofits obligations under the treïiy or mandate.
23. When you have thiisiiuaiion uhereihetrcïty iiself has no provision for
termination, Ïhe World Court says that the poweito terminate ;s outside the
treaty. Now may 1 ask you to consider whether there can be any flaw in this
logic: if this power to terminate an international treaty is outside the treaty,
is not ta be found in the treaty itself, it must follow that a question as ta ter-
mination cannot be a question as to application or interpretation of the
treaty, becauseapplication means that you are trying ta apply the terms of an
existin- treatv and internretation means that vou.are trvin. t- construe the
terms of the treaty. If a Siatc hns chosen to chercise a pouer a.hich IS ouiside
the treniy. il is inconipiclierisil~le to a l0gicÿl iiiirid that tts action cds case
of ao~licaiion or interoretation. The ~ounsel for the United States. who
strongly argued and argued in memorable words, if 1 may say so, put this
point clearly beyond doubt and the World Court accepted if. He argued that
there are three distinct types of cases, casesof interpretation, casesof applica-
tion and casesof termination. He made casesof termination a third category
and the World Court accepted that view. existing customary law on the subject." In other words. the World Court says
tbat even aoart from the Vienna Convention of 1969. everv State has an in-
herent righi. as a matter of cuqtomary international lau,. to terminale an
agreement ifanothcr Staie hai committed a breÿch of ii."ln the Iight of ihese
rules. onlv a material breach of a treatv iustifies termination. such breach
being defined as (a) a repudiation of the.tieaty not sanctioned by the present
Convention or (6) the violation of a provision essential to the accomplish-
ment of the object or purpose of the treaty."
26. What 1am emphasizing in this pronouncement'of the World Court is
that it is a rule of customary international law that one State can terminate a
treatv if another State has committed a breach. and this oower of termination
is no; to be round in the ireaiy itself: itis outiidc the tréaiy: ii is foundcd in
customiry international la-,. This is made clcar hy par~graph 95, i~fwhich the
material sentence is this: "The resolution in oueslion is Ïhekefore to be viewed
3s the cxersise of the right to terminate a reliiionshipin the caseofi deliber-
are and persistent violation of ohligatiuns which destroys the vers o~jeci~and
purposeof tbat relationship."
27. Now the General Assembly of the United Nations and the World
Court have the jurisdiction to deal with the question of termination of a
treatv. The United Nations can deal with that ouestion between two nations.
The ~orld Court can deal with il. This honourable Council does no1 have the
right under its charter to deal with the question of termination. This is the
imnortant ooint. The World Court went into the facts because ilwas within
ils jurisdiction.bu1 this Iargcr jurisdistiùn io dcal with questions of ierminî-
[ion. righily or u,rongly. is not conferred on ihis honourible Council. I shall
nu\\. read the ncxi paragraph which is equally impuri;int. piragriph 96 on
page 47. Here the LVorld Court ts deuling with the argument of South Africa
thai becausetherc is no pro\.i>ion in the niandaie for icrminaiing ihe mandate
the United Nations had no rieht to terminale il. These are verv oregnaiit
words and 1 submit that they apply directly to our case and have Gemeidous
significance for it. The words are these: "The silence of a treaty as to the
existence of such a rieht--the rieht to terminale the treatv-"cannot he
interpreted as implying the exclusion of a right which has its source outside
the treaty, in general international law. and is dependent on the occurrence of
circumstance~which are not normallv envisaeed-wh-n a treatv is concluded."
In orher u~irds, the rnerc id;[thal aii iinicriidtioii~l rrenty Ikc the Contention
or the l'r~n,:i Agrccnicnt is silent üs ro the riçhi of2 Siute IOterminite docs
not mean that thérc is no such right. Such a right is outside the treaty and is
founded on general international law.
28. Now it is the exercise of this right oiitside the treaty which is no1 to be
hrought before the Council. This honourable Council is concerned with the
interpretation of the treaty, action taken under the treaty, application of the
treaty to existing lacts. Anything outside the treaty is outside the jurisdiction
of this honourable Council. 1 think the position is fairly simple. Of course my
knowledge is limited, but I am not aware of any case where this particular
point has been over-ruled by the Council, namely that though a treaty has
been terminated, we still take upon ourselves jurisdiction to deal with il. On
the contrary, the very first meeting of the ICA0 Assemhly expressly drew
attention of the learncd members of the Council to the lacl that itsjurisdiction
is extremely limited. You can deal with any disputes-the word is "any"-but
they mus1 pertain to interpretation or application. As soon as you come 10
action outside the treaty, and termination according to the World Court is
outside the treaty, il would be outside the jurisdiction of the Council. 29. htcryI redd agdin the last sentence of pnragraph 98 on page 48. Perhdps
1hdrl bettcr red the uhole pnragraph becaiise otherwise you will not get the
conneciing Iink. "President Wilson's pruposed drlt"-lhis sas the original
draft-"did not include a soecific orovision for revocation. on the assumotion
that mandates were revocable. What was proposed was a special procedure
reserving 'to the peoole of any such territory or governrnental unit the right ta
appeal 6 the ~e&uë for rediess or correcfion of any breach of the mandate
by the mandatory State' ...That this special right of appeal was not inserted
in the Covenant cannot be inter~reted as excluding the aoplication of the
general principle of law accordingto which a power O? termiRa.tion on account
of breach, even if unexpressed, must be presumed to exist as inherent in any
mandate. as indeed in anv agreement." Althouah the oower to terminate a
contract is unexpressed, h must be presumed ;O exisi in every agreement.
Otherwise it would be impossible for sovereign States to enter into treaties-a
Stzte would be most reluctant. Why are sa many Statessignatories to treaties?
-because they know if the time came when, because of the misconduct of
another State, they had to terminate the treaty, they would be entitled to do
sa. If a Stüte was to be tied hand and foot and even for a-od reasons could
not terminate a treaty, no State would be willing ta enter into a treaty. It is
open to the Convention, orto the Transit Agreement, ta provide that a parti-
cular forumshall be apoointed to ao into the question whether termination of
the Convention or 'rransif ~greément is proper or improper, wrongful or
rightful, but there is no such provision. If there was such a provision we would
go to that forum.
30. 1have finished with thejudgment of the World Court. Now let me read
to you a very interesting answer given by the Counsel for the United States to
a question put by Sir Gerald Fitzmaurice, one of the judges who sat on the
bench when the Court delivered the judgment from which 1have quoted.
"Question: It has been maintainep-this is what the Judge putstothe
Coiinsel for the United States-"on hehalf of the United States that
fundamental breaches of a contract by one pÿrty entitle the other to put
an end Io it1 would like to know how, in your view, exactly this would
work in practice. For instance, it is evident that if a party could put an
end to a contract merelv bv alleeine fundamental hreaches of if. and
despite the denials ofthLoÏier pa;ty,-whethir, on the facts oras regards
the existence of the obligation. there would always be an obvious and
easv wav out of contracts which one of the oarties found onerous or in-
conveniént. What safeguards would you institute in order ta prevent
this, and how would or should such safeguards apply in the international
field, in the relations between States or between tat teasd international
organizations?"
'
It is a very relevant question, honourable members u,illsee. What the learned
Judge asked the United States Counsel is this: "Ifyou, Mr. Counsel, are right
in your submission that ifthe hreach iscommitted by one State the other State
can put an end ta the contract, look at the conseq;ences. The consequences
will be that any State which finds an agreement or treaty inconvenient or
burdensomecould say 'Well, you have committed a breach and 1 put an end
to if'."
31. Now that is the law. The United States said it is the law and that argu-
ment was accepted by the World Court. The United States Counsel himself
points out the remedy. He says that the remedy lies in making an express
provision in the treaty to the efiect that in the event of termination a particu- lar forum irill decide whether the termination u,asrighiful or u,rongful. If one
State should rry to take undue adbanrage of another and urongfully pui an
end to the treatv. this forum would decide that the termination was wronaful
and redress woil'd he given. The United States points out that theremedy to
provide a forum where you can go. a forum which will deal with questions of
termination as distinct from auestions of interoretation or a~ulication. This
is the answer which the ~nited States Counsel pave. Iwill read his exact ans-
wer. It is on page23 of the proceedings in this casebefore the World Court.
"The doctrine of material breach as a basis of terminatine. a contract
is a doctrine of municipal contr.ict la- uhich ha$ been reflecÏed in inier-
national treaty law."-under ordinary contrtits, if one party commits a
breach the other can treat the contract as terminated and the US
Counsel says that the same doctrine has been imported into inter-
national law-"Obviously not every breach of a contract would justify
the other party in terminating the contract but only a breach of such
significance as, in the words of Article 60 (3) of the Vienna Convention
on the Law of Treaties, would constitute a 'violation of a provision es-
sential to the accomvlishment of the obiect or vurvose of the treaty'."
Now niark the impo;tant wordi-1 am riading his exact uords-..lfthe
pariy alleging brelich Here hcld hy an international trihunal not Io have
esiahlishcd the mïteriïl breach, the termination uould not bc Icgally
justified and a party uhish had tcrminated the tretty on the bais of an
allegcd breash u,ould be Iiahle for unjuntified repudiaiion of ï coniract.
The Ptct that in the international as opposed to a municiptl legal system
the orher pariy ctnnoi be iissured of brinying a case involving niaterial
breach before an iniernational tribunal exsept irhere borh pariics have
acceoted the comvulsorv .. iurisdiction of an international tribunal is a
problem relating Io the efficacy of international law and institutions
generally and not specially to the problem of the material breach doc-
trine."
This is heautifully expressed and 1 would like to emphasize these words. 1
am reading them because this submission of the US Counsel was ac-
cepted in roto by the World Court. What the Counsel is pointing out is this:
if A and B are Iwo parties to a contract, a simple municipal contract relating
to sale of goods, and A says that B has committed a hreach of the contract,
he can treat the contract as terminated, nobody can challengethe validity of
his action. If he is dishonest and dishonestly terminates the contract by
wrongly alleging a breach by the other party, there is a civil court to which
B can go. In civil law there is in every country a municipal court. What the
United States Counsel points out is that that may not besoin international
law.
32. In international law there isnot always a forum before which you can
go. There may be no forum which can be enirusted with the jurisdiction to
deal with questions of termination because unless parties agree on a forum
there is no such forum. Here, for example, the parties have not agreed to any
forum under the Convention or under the Transit Agreement. The, parties
have not agreed to anv forum to decide oue.t~ ~s of termination. The United
Staies C'ou-nselpoint;~>ut thai in such ùi3se thcre may be no remedy, hut if
there is no remedy, this is, if1 mïy read hir trords again, "a problem rclaiing
to the cilicacy of international la\\,It.ibnor somerhing ivhich cïrli any doubt
on the valtdity of the doctrine of terminaiion for material bretch hy the oiher
part). In oiher words, a11that you are saying is ihat when under internationallaw there is no forum, it does not mean that the right to terminate does not
exist. "The best safeguarp-these are again verv significant words-"against
misuse of the doctriee of material breach would be-through the extension of
the compulsory jurisdiction of the International Court of Justice or other
aonrooriate international tribunals over Iegal disoutes arising between States
or'beiween States and international org8~izatio.n~. at leastwith respect to
those disputes"-now mark the words-"which relate to interpretation, ap-
plication and termination of international agreements." The Counsel,
whoever he was, was using his words with great care and he says that the
remedy lies in having an international tribunal which can deal with three
types of disputes-interpretation, application and termination. Two of these
types are reflected in our Convention; the third one is not. The Counsel points
out-and this is the argument the World Court accepted-that in this case
vou mav have no forum: it is a oitv. but unless there is a forum exoresslv
constituied to deal with termination; it is an international wrong which goes
without remedy or redress. 1am emphasizing al1this with a view to showing
the limits of this honourable Council's iurisdiction.
33. Bef(>reI cl<ie ihiichlipter. may I refer )ou IO Ke\<ilution AI-23. adopt-
cd JI the tirst session of ihr. ICA0 Assemhly in 1947 in ihir Cily of hlonirelil.
Yoi~ miIltind it in the volunre eniitlcd "Resolution\ and Kccoinmendations
of the Assembly-1st to 9th Sessions". May 1 read it to you because it ex-
pressly recognizes that there are very serious lirnits on the Council's jurisdic-
tion and it cannot deal with every dispute between States relating to the Con-
vention.
34. If I rnayjust give you the background, the Interim Agreement, arrived
at before the Convention and the Transit Agreement were reached. orovided
that any difference between States would Ge left to the arbitral& of the
Council-"arbitration", "any difference". The words "interpretation" and
"aoolication" did not aooear: anv difierences would go to the Council. But
when the? came to drait' the'~onvention and the Transit Agreement, they
expressly reduced the limits of the Council's jurisdiction and instead of "any
difference" they said "any disagreement relating to the interpretation or ap-
plication". This isvery interesting. It shows that thenations originally thought
that any differences would go to the Council, but afterwards changed their
minds and said "No. Let only a limited category of differences go ta the
Council."
35. If1 rnay read the whole resolution as it stands:
" Whereas the Interim Agreement on International Civil Aviation pro-
vides, under Article III, Section 6 (8), that one of the functions of the
Council shall be:
'When exoresslv reaiiested bv al1 the narties concerned. act as an
arbitral body on anydifierencés arising &nong Member tat tes'-mark
the words-'relating to international civil aviation which may he
submitted to if.'
(Then the Council is to render an advisory report or decide as an
arbitrator.)
"Whereos the Convention on International Civil Aviation contains no
such provision and the cornpetence of the Coucil of the Organization
in the settlement of disoutes. as accorded to it by Article 84 of the
Convention. is limited 10 decisions on disagreements relating to the
interpretation or application of the Convention and its Annexes; Now rhereforerhefirsr assemblvresolves.
(1) That pending further discussion and ultimate decision by the Organi-
zation as to the methods of dealing with international disputes in
the field of civil aviation, the ~ouncil be authorized to act as an
arbitral body ..."
36. The grîdt importance olthis rcsolution is this: the ,\sscnlbly rccognired
thal the original concept of giving 211 ditTcrcnccs IO the Council io deal with
had been ahandoned and that the cornpetence of the Council was limited to
disagreements relating to interpretatio" or application. So ICA0 itself has
recognized, from its very inception, the severe limits on its jurisdiction by
cornparison with the original idea, which ultimately was not accepted by the
nations1
37. Now one last thing on international law-and this may conclude the
first part of niy argument-is the Vienna Convention of 1969,from which 1
would like to read. The honourable members have noted the ruling of the
International Court of Justice that Article 60 of the Vienna Convention
merelv codifies an existina rule of international law. So it is nothinr! new. 11
is an éxistingrule of customary international law, which is merely codified by
the Vienna Convention. 1shall read only the relevant portion of Article 60,
Clause 2 (b) :
"A material hr-a~h of a multilateral treatv bv one of the parties entitles
a party specially affected by the breach to invoke, it as a ground for
suspendingtheoperation of the treaty in whole or in part in the relations
betkeen i&lf and the defaulting ta te."
Io other words, if there is a multilateral treaty-the Convention and the
Transit Agreement are, needless to add, multilateral treaties-and if one
nation does a wrong specially affecting another, the nation which is specially
affected can suspend or terminate the overation of the treaty in whole or in
part qua that onéState only. Thus 1coniinue to be a party t; the Convention
and the Transit Agreement. 1 will honour them qrtoal1other parties, but qua
the nation which has donc me a wrong, 1purport to suspend thern in whole or
in part, and 1 am entitled to do so. This is the clcar right given under the
Vienna Convention. but 1need not dwell at length on if because, as the Inter-
national Court of Justice pointed out,-and 1 am repeating it because it is
very important-Article 60 is only a codification of an existing rule of inter-
national law.
38. Now under that rule of international law, which existed prior to the
Vienna Convention, 1had the right to suspend the Convention and the Transit
Agreement, as against Pakistan, in whole or in part. This right was given to
me not bv the Convention. not by theTransit Agreement. but by international
Iaw, and.1 am asking you honourable gentlemen tu consider h& itis possible
for ü logical mind to put rorward the prop<iiition that ii a ca<eorapplicdtion,
of interpretation. If is something outside the agreement altogether. It is some-
thing outside the international treaty altogether. What is outside?-my right
to suspend or terminate. It is that right which 1have exercised.
39. This finishes my reading of the relevant provisions of the statute. 1will
cal1the treaty and the Rules the statute because we are a law-abiding nation
and to us they have the force of law. 1 thereîore refer to them as a statute. 1
have referrcd to the law or the statute to satisfy you as to how limited the
jurisdiction of the court is. In this connection, in our preliminary objections,
which oecessarily have to be brief and concise because we did not want to set MEMORIAL OF INDIA 155
deal with. 1 am savina this with the rrreatest resoect. because 1 do not hold
lawyers in very speCiaÏestecm, far from it; 1am ohy siating a fact. The World
Court will consist of lawyers and that is why it can deal uith the questions
"Was the termination rightful or u,rongful? Was ifor wds itnot in üccordance
with international law?'These are complicated questions of tact and law
uhich irained juries. irdined judges. may deal with. The honourable membcrs
of the Council. fortunatelv. as 1 was savina. not fallina in the cateaorv of
lawyers, are entrusted u,itl; other tasks. diplornatic tasks, which are Gsks of
trying to reconcilediiTerencesbetu,cen difirent Stdies, but not bearing on the
question of rightsexercised under international law. suspension, termination,
etc., which, as 1 said, present certain legal aspects that cannot be correctly
brought before this honourable forum.
45. That is what we deal with in oar.maoh-.0. "The comoosition of the
Council and ils powers and funciions arc, apain. in keeping With the limited
jurisdiction, which has hcen conferred upon itby Article 84 of the Conven-
tion. Article II of the Transit Agreement and Article I of the Rules, to hear
international disputes. The sovereign poaer of a Siate to suspend, ahrogatc
or othcnvise terminaie an international treaty-not seldom involving viistly
comolicated ouestions of fact and international law-are outside the scooe of
thc Council's,urisdiction ..:' To give you one instance, the ~ntcrndtional
Court of Jurtice nill hesr a dispute for bix months. A hedring on the merits
of this disnute betwecn lndia and Pakistan to decide which country really
was in the. wrong would go on for a large number of days, to put it very
mildly and to make an under-estimate of the time involved. This Council is
nota body that can take evidence. cal1witnesses. look at documents. find out
which are-fabricated documents, sit injudgmenton the hilarious report made
by the Commission in Pakistan which was asked to go into this question of
hiiackina. 1am usina my words verv carefully in callina it a hilarious report.
ltrays ihît lndia brought about thi; hijacking for its own secret purposes. It
is like the President ofa couniry being nssassinüted dnd his sucçessor xppdint-
ina a Commission which reuorts that the President brought about his own
assassination. India is charged witb this degree of lunaci, that it brought
about the hijacking and burning of its own plane-got the two hijackers into
the plane and supplied them with nothing more than dummy grenades and a
nistol with which thev were able to blo- -~~the whole olane. which was
&ounded by the poiice and the military forces of ~akisian! This amazing
fantasy 1will not deal with. 1was onlv uointing out that if such a dispute were
to go before the appropriate forum,-ii wouldmean an enormous consump-
tion of time. For days and weeks, if not months, the dispute would go on,
and ultimately the appropriate forum, if there is one, would decide who is
rieht and who is wrone. The Council is not to be troubled with these aues-
tions which refer to th; issue pf international law: has a State justifiabiy or
unjustifiably terminated or susoended the agreement? If it has done so justi-
fiably, al1right. Ifit has done so unjustifiahli, the appropriateforum will give
the appropriate orders. 1 am only pointing out that this Council is not the
appropriateforumfor such complicated questions of fact and law.
46. Then oaraaraoh 21 : "To sum un. the scheme of the aforesaid Articles
is simple arid cl~ar.'So long as the convention or the Transit Agreement
continues to be in operation as between two States, any disagreement as to
the construction of its Articles or the opplicorion of the Articles to the existing
state of facts can be referred to the Council; and, likewise, any ocrion taken
under the Transit Agreement can be referred to the Council. But if a State has
terminated or suspended the Convention or the Transit Agreement vis-à-visanother State. there cannot oossibly he anv auestion of interoretaiion or ao-
plication of the treaty, or ofactioniaken under the treaty, and the ~ouncil'is
not the forum for deciding such disputes. These disputes are usually in the
realm of oolitical confrontation hetween two States. often involvinp. -ilitarv
hostilities not amounting 10 u,ar, and these mîtrçrs of political confrontation
or military hostilities are outside the anibit of the Council's competencc. The
auestion of overflvinp.raised by Pakistan is directlv connected with militam
hostilities in the and continues to be inextricabiy tied up with the posture
of polilical confrontation bordering on ho5t,lity adopted by Pakistan."
47. 1 shîll not read further jus1 now. but 1 should just like to make one
simple submis~ion. Itis Pakist;in's somea.hate naïve case thdt the word "ap-
plication" would co!'cr terminiition or suspension. II ju~t happened that on
the olltne 1 %,asreadinp. Cul! No lu>, IIODDV bv André hlîurois. hi< auto-
biography, and there isa lovely passage wh& hésays that to children words
do not have precise meanings hecause the concepts of words are vague and
nebulous to a child. He says that some adults go through life with this simple
temperament of a child, to whom words do not convey clear-cut, definite
concepts. 1 would submit to the honourable members that the words "inter-
pretation" and "application" are clear-cut and precise and to equate "appli-
cation" with "termination" or "suspension" or to equate "interpretation"
with "termination" or "suspension" is a clear misuse of the language. These
terms "application", "interpretation", "suspension", "termination" express
well-known legal concepts. They are known to nations; they are known to
international law; they are known to municipal law; and it is a reflection
uoon the comoetence of those who drafted the Convention and the Transit
Agreement to:ay that they did not know the distinction between interpreta-
tion and application on the one hand and termination and suspension on the
other. The distinction is so clear-cut that no draftsman of an international
treaty could possibly have confused these distinct, separate, independent
concepts.
48. Sir. mav 1now read oa.amao-s 22. 23 and 24 and then stoo. "22. The
Govîrnmcnt of India submit that ~akistî" hy its çonduct has rekdiated the
Convention vis-A-\,isIndia, sincc 11sconduct has militated against the very
objectives underlying. and the express provisions of, the Convention, and has
been completely and totally against the principle of safety in civil aviation.
It is expressly stated hy Section 2 of Article-I of the Transit Agreement that
exercise of the orivileaes conferred hv that Aereement shall he in accordance
with the provisions ofthe ~onventioh. ~onsiuently. Pakistan's conduct also
amounts to a repudiation of the Transit Agreement vis-à-vis India. In the
circumstances, lndia has accepted the position that the Convention and the
Transit Agreement stand repudiated, or in any event suspended, hy Pakistan
vis-à-vis India."
49. "23. Without prejudice to the above, and in the alternative, the Govern-
ment of India submit that they have terminated, or in any event suspended,
the Convention as regards overîlying and the Transit Agreement vis-&-vis
Pakistan." You will see that under international law any nation has the right
of suspension in whole or in part. You need not suspend the whole agree-
ment. You may suspend part of it qua another nation and, when the treaty is
multilateral, you may suspend it qua one nation only.
50. "24. Reciorocitv is of the essence of the Convention and the Transit
Agreement. ~hicondbct of Pakistan has made impossible for Indian air-
craft to overfly Pakistan. That country has shown no regard for the mort
elementary notions of safety in civil aviation and has made it impossible forIndia 10 enioy its riahts under the Convention. and ils orivileaes under the
Transit ~~ieement, ;ver Pakistan territory." 1tis true that ~afistan has not
irnposed a ban on Indian aircraft overflying Pakistan but our right of over-
flinht is theoretical. The conditions are such that no aovernment with a sense
ofresponsibility to its people would choose to fly itsaircraft over Pakistan if
it is in the position of India today vis-à-vis Pakistan. In other words, if a
nation brings about a situation where a government with a sense of responsi-
bility to ils own people dare not overfly the territory of that other State, if is
no use for that other State to say that theoretically 1have given you the right
10overflv. There was a famous Ennlish Judae Darling. who. commentina on
the principle ihat the doors of the Courts ofiustice ar<:open to rich and poor
alikr. üdded thc words "So are the doors of the KIILHotel." II u,as thc most
exoensive hotel in London at that time. Theoreticallv even a ooor man has the
riiht IO enter the Ritz Hoiel in London. but is th1s.a righi he can in prüctice
exercise? There are many theoreiical possibilities-nothing prevents us rrom
aoina to the moon. but ~racticallv we iust cannot do il. So the theoretical
;ighÏis rneaningles; if in.practice,-as a iesult of a nation's conduct, 1 find it
impossible to ily my aircraft over that nation's territory. If that is the situation
1 am not bound to aive that nation the corres~ondin~ riaht to overtîy mv
territory, because reciprocity is of the very es'ence of théconvention and
the Transit Agreement.
51. If 1may continue with paraara~h 24, "Pakistan's theoreticallv permit-
ting Indian aircaft to overfly-~akistan is, in the content of the fait; stated
above, a mockery of the principles underlying and the provisions embodied
in the Convention and the Transit Agreement. In the circumstances, the
Government of India submit that they had complete justification for termi-
nating or suspending the Convention as regards overflying and the Transit
Agreement vis-à-vis Pakistan. The Government of India do not set out here
the full fîcrs concerning jusiihcïiion. sinrr, as stated aho\,e, the question or
justilicütion for termination or suspension of thc Convention or the Transit
Agreement is not within the scope of theCouncil's jurisdiction ..." We there-
fore have not gone in10the deiailed facts. but I shall refer to some later.
52. ThePreridenr: 1suggest ue now have a conéebreak.
Recess
53. The President: The Council is again in session and 1 give the floor to
Mr. Palkhivala if he wishes to continue.
54. Mr. Polkhivolo: May 1refer to three Articles of the Convention which
according to Pakistan's submission are supposed to lend support to their
contention that there is no oower to terminate the aereement and that this
Council is competent 10 deai with the type of applica~on Pakistan has filed.
These three Articles are 54, 89 and 95.
55. With respect to Article 54, the argument urged by Pakistan is that if
there is an infraction of the Convention, the aggrieved State has a right to
move the Council. This Article, entitled "Mandatory Functions of the Coun-
cil". says "The Council shallW-the relevant clauses are (il and (kl-"report
to contracting States any infraction of this Convention,& well asany failure
to carry out recommendations or determinations of the Council" and "report
to the Assembly any infraction of this Convention where a contracting State
has failed to take appropriate action within a reasonable time after notice of
the infraction."
56. Now the answer is very clear and ohvious but since the point has beenraised, even a very obviou~ansu,er must go on record, and 11is this. Article 54
deal, with cases whcre the Convention has not been tcminated, has not been
suspended; while it continues Io be in operation, adniittedly in operation. one
State commits an infraction; in such a case you invoke Article 54 and say
"There is an infraction and 1want the Council to deal with it". The mere fact
that an infraction isreferred to in Article 54 does not mean that it covers
cases of suspension and termination, because in law the very word "infrac-
tion" presupposes the continued efficacy of the agreement; if the whole
ameement. 01 the material vortions of it.~has been terminated or susvended.
the of infraction does not arisé; it is a question of termination oi
suspension. So the words used here do not go against me at all, because
clauses (j) and (k) of Article 54 deal only with cases where the agreement
continues to be in operation between two States.
57. Now Article 89. Pakistan says that under Article 89 you have a right to
sav that vou are not bound to observe the terms of this Convention onlv in
caie of war or national emergency. Article 89 (War and Emergency condi-
tions) reads: "ln case of war, the provisions of this Convention shall not affect
the freedom of action of anv of the contractine States affected. whether as
belligerents or as neutrals. 'Thesame principle ;hall apply in thécase of any
contractinp, State which declares a state of national emergency and notifies
the faa tothe Council." Again, this Article has no relevance whatever to the
point at issue on this pieliminary objection.
58. Article 89 says that in case of war or national emergency a nation is
aiven freedom of action and will not be tied down to observe the terms of the
convention. rvcn if itis not a belligercni but a neutral nation. This Article has
nothing to do with u hrtt the Iniernaiional Court of Justice salled the principle
of international law that in cases of breach of the treatv bv one Dartv. anotber
pdrty hîsthe right ta terminale or suspend il.This right ;O suspend or termi-
nale thc treaty in the evcnt of a brertch by anoiher Stale is not dealt with by
Article 39 31311.This Articlc is noi cxhausiive of the circum9tances in whiçh
the Convention can be terminated or suspended; it deals with only two. To
show what, speaking frankly, 1 may cal1the absurdity of the argument, sup-
pose this Article was not there. 1s it suggested that in time of war a country
would still allow aircraft of the other country to overfly, saying "This is my
international contract and 1 do not want ta he guilty of breaking if"? Surely
in case of war the rule of international law must apply and even if thcre were
no Article 89 you would still have the right to say "No more overflights. 1
cannot allow my enemy to overfly my territory." This is an elementary prin-
cinle. Not al1Stdtes were verv keen to become sienatories to this Convention.
which was the first of its typi, and certain provisrons had to be put in in orde;
ta assure them that their national interests. their national security, would be
safeeuarded. With a view to netti-n wid"r and wider suovort fo. .his Con-
vention. {hi$p3riicular Artirlc u,îr pur in, but by no proces of reasoningcan
it bc sïid IObe ehhausiive of ihc cases u here the Conveniion ciin he suspendcd
or terminated. It only deals with two. leavine the international law free and
open. No principle of international la& is suierseded by Article 89. Can you
read it as superseding what the World Court says is a rule of international
law, namely that if one State commits a breach, another State has a right to
suspend or terminate the treaty? What are the words in Article 89 which sus-
pend this rule of international law? There are none. Therefore, again, Article
89 does not deal with our case.
59. Il does, however, help me in this way. In Article 89 the word "war" is
not used in the technical sense of war as distinct from military hostilities. It "Article95 (Denunciarion of Convention)
(a) Any contracting State may give notice of denunciation of this
Convention three years after ils coming into effect by notification ad-
dressed to the Government of the United States of America, which shall
at once inform each of the contracting States.
(b) Denunciation shall take effect one year after the date of the receipt
of the notification and shall operate only as regards the State effecting
the denunciation."
Article 95 deals with the case where a State party to the Convention wants to
back out and says "1 do no1 want this Convention." In other words, so far as
that State is concerned. the whole Convention is al an end: il is at an end as
regards the relations between that State and al1 the other'States which are
~arties to the Convention. Now India does not want that. It has never been
india's desire to withdraw from this agreement. We want to honour it, and
every other State which is a party 10 the Convention will find that India re-
spects that agreement. So 1 cannot possibly denounce; this remedy is not
open 10 me, because, if 1denounce the Convention, 1 denounce it as regards
al1 the States which are parties to il. If 1 want to terminate or suspend the
contract qua only one State, 1cannot act under Article 95, because the denun-
ciation provision does no1 apply. Termination or suspension of an agreement
qua a single State can never be denunciation of the Convention. It is a com-
plete misuse of words to Say that it is.
62. As 1 said at the becinnina in this case we are really concerned with the
nuance of words. What do ~n&sh words mean-words &hich are hoary with
tradition, words which have come down through the centuries, words which
have acquired certain precise, clear connotations. If one is prepared to play
with words and treat them as matters of no consequence, or like Alice in
Wonderland say that words mean what 1say they mean hecause 1am master,
not the word, if that is the attitude, of course there is no need for further
argument. But if the attitude is that this is an international treaty and must be
read in a manner which international law understands, then denunciation
means that you want to get out of a treaty altogether. That is what Article95
deals with, and lndia has never had any desire whatever to denounce the
Convention. It wants to be a party to the Convention; itcontinues to he a
party; and it will honour its obligations under this Convention with respect to
every State but Pakistan, between whom and us, unfortunately, military
hostilities continue, political confrontation persists. 1 shall no1 apportion
blame here. That is not mv DurDose: 1 am onlv Staline facts.
63. Therefore, neither ~iticie54 (~nfraction), ~rti;le89 (War), nor Article
95 (Denunciation) is of any use in dealing with the questions that arise here.
64. Normallv 1would not have dealt with the facts of the case at all. be-
causc 1am dedling uiih the legal point, but on i~llsoii.ridcriiiion 1ain inclincd
to the viciv ihai if I look nhout IOor 15minutes of ihc honouriiblc memhers'
tlmr in stating some lxtj it would be hcl~ful. just io satisfyYOU uboui the
bona fides of my country's case, not with any other purpose.~lt is now with a
view to satisfying you by proving hy facts, etc., that our termination or sus-
pension of thecontract was justified-no1 that, but mereiy to show you that it
is an honest bona fide exercise of the right we have under international law to
terminale or suspend the contract.
65. With that objective only. may 1request you to turn to the preliminary
objections of India, paragraph 5. 1shall no1 state the facts orally1shall only
read what is here, so that you can decide for yourselves whether any self-respecting State. whether any government that was conscious of its duty to its
own citizens. could possibl) act any differently from the uïy India has acted.
66. "Paraeraoh 5. For vears nast. Pakistan has been nursuine and contin-
uing a policyol: political ConfrintaGon bordering on hostility &ainsi India.
This policy culminated in AugustISeptember 1965 in an armed attack by
pakisiao against India on a large scale. On the outbreak of the conflict, the
Air Services Agreement of 1948 between the two countries was immediately
suspended, and there was a stoppage of air transport services of lndian air-
craft to and across Pakistan and of Pakistan aircraft to and across India. The
conRict was followed by an Agreement between the two countries signed at
Tashkent in the Union of Soviet Socialist Republics in January 1966. As a
result of this Aereement. a soecial arraneement was worked out wherebv the
two countries permitted'each other to oierate some overRying services: Air
services as they existed prior to the conRict were, however, not restored, since
Pakistan refused al1 other aspects of normalization of relations as envisaged
in the Tashkent Agreement. Up to date Pakistan has continued its policiof
confrontation bordering on hostility against India, some instances of which
are listed hereunder:". Now this is what continues to be done by Pakistan,
".-, Confiscation of al1 orooerties of lndian citizens and of t-~ Cov~rn-~ ~ ~
ment of lndia~in Pakisyan. These remain confiscated to this day.
(.. Confiscation of al1Indian river boats on East Benaal rivers which are
an essential lifeline for the transport of the produce of Eastern India
to the port of Calcutta.
.3. The continued ban on oassage of l-dian boats and steamers on
rivers. sireams or waierwdys of East Bengiil.
(4) Ci~ntinued hùn on trde and Lomnierce ii:th India
(5) Cuntinued ban on civil air Rirhts. rdiludv and ruad communicîtlons
. . - .
between the two countries."
(There are no civil air flights, railway or road communications between the
two countries. and international airlines like Swissair or Pan-Am may fly
from Bombay to Karachi, but Indian airlines do not Ry that way nor do
Pakistan airlines. In other words, Pakistan airlines do not connect Pakistan
with India; Indian airlines do not connect India with Pakistan. This has been
the position since 1965.)
"(6) Continued ban on entry into t'akistan of Indian newspapers. books.
magazines, etc., printed or published in India. (Not a single Indian
newspaper can he imported into Pakistan.)
(7) Continued assistance with arms, ammunition and training to rebel
elements in aieas of Eastern India.
(8) Continued attempts to foment, through sabotage and infiltration,
disturbances in Jammu and Kashmir.
(9) Intensive hate-propaganda against India on the radio and in the
press, which continues unabated to this day."
67. "The subject-matter of Pakirian's Applicationv-1 am reading para-
graph6-"andComplaintrelatestothesuspension, since 4th February 1971.of
overflights over Indian territory. The conduct of Pakistan immediately pre-
ceding that date in relation to the hijacking of an Indian aircraft was most
reprehensible and amounted to the very negation of al1the aims and objec-
tives, the scheme and provisions, of the Convention and the Transit Agree-
ment."
68. If 1 may pause here for a minute just to consider what this Conventionis. This Convention is not an exercise in lexigraphy; it is not merely an
exercise in putting English words together, or French or Spanish words
together. It has a certain objective and that objective is set out in the Pream-
ble. Its objective is safe and orderly development of international civil avia-
tion-safe and orderly development of international civil aviation. 1 am not
apportioning any blame at the moment, because 1 am not justifying my
conduct at al1 iust now: that is not my ~urpose-1 am on the auestion of
law-but if beiween two countries safe and orderly development of inter-
national aviation is an impossibility, what do you do with the Conventionas
between those two countries? Do vou still aouly it as a formalitv or are you
frank and honest enough to Say that betwe&these Iwo countri& ilis impos-
sible to work the very b~sisof this Convention? What is the point of talking
of the safe and orderly development of international aviation when not a
single Indian aircraft can land in Pakistan or a single Pakistani aircraft can
land in India? Since 1965, as 1 told you, there has been no scheduled service
between lndia and Pakistan except by foreign airlines. which are apart, but
Indian and Pakistani airlines, scheduled or non-scheduled, do not connect the
two countries.
69. Now if safe and orderly development. which isthe prime objective, the
principal fundamental objective, of the Convention, cannot be achieved
between two States, what is left? The whole substratum of the Convention is
gone as between India and Pakistan, and this has been so since 1965. This
complaint is made in 1971, but if Pakistan had a case the complaint should
have been made in 1965, because since then we have not given the right to
overiïy India or to make non-traffic stops in India without our Government's
permission, which is the right guaranteed by the Convention. This right has
never been given to Pakistan, nor given by Pakistan to us, since 1965.So what
are we hearing after six years?
70. The other Axre-r~ ~t-the Transit Arireement-exoresslv . sa.s that
it is no1to have an existence independent of the convention: Ltis to continue.
and itisto be in operation, only in nccordance with the Convention. In oiher
words. the Convention is the very basis and foundation of the Transit Agree-
ment. If you do no1 observe the Convention you cannot possibly observe the
Transit Agreement, and for that mÿy 1request you to lurn Io Article 1.Section
2 of the Transit Aereement. ~efoÏe 1 read it. 1 do not have to remind the
honourable membeFs that both the convention and the Transit Agreement
deal with the right to overfly another nation's territory, and the right to make
non-trafic stons in anothe; nation's territorv. the onlv difference beine that
the convention dealswith non-scheduled aviation andihe Transit ~gr&ment
deals with scheduled international air services. Otherwise, the subject-matter.
so far as this point is concerned, is the same, namely overflying and non-
traffic stops.
71. Article 1,section 1 speaks of two freedoms of the air: (1) the privilege
to RYacross the territorv of another State without landina. which 1 will cal1
overflying.and(2) the pr;vilege to land for non.traftic purposes Thrse arc the
Iwo freedoms of the air given by Section I of Article 1. Now look al the im-
portant Section? of the saine Article. Section 2says "The exercise uf the fore-
going privilepes shall be in accordance u,ith the provisions of the lnierim
Agreement on International Civil Aviation and. whrn itcomes into force. the
~rovisions of the Con\,ention on Intcrnütional Ci\,il .4vilition. both drawn up
at Chicago on 7 December 1944." So these freedoms given by the ~ransh
Agreement are to be exercised in accordance with the Convention, and the
Convention, as 1have already pointed out, talks of the sale and orderly devel-opmeni of internatiunal civil aviation. This inu,hat Pakisian uould no1permit
and ihai is why ue treatitasa repudiation by Pakistan of the Convcntion and
the Transit Aereement and if ~akistan savs"1 have not renudiated them.': we
say "We proPose to terminate or suspend because yo& conduct has been
such that it 1simpossible to have the terms of the Convention and the Transit
Agreement in operation as between OUI two countries."
72. 1 would like to read again the second sentence of paragraph 6 of the
preliminary objections-"The conduct of Pakistan immediately preceding
that date" (4 February 1971) "in relation to the hijacking of an lndian air-
craft was most reprehensible and amounted to the very negation of al1 the
aims and objectives, the scheme and provisions, of the Convention and of the
Transit Aa-eement." 1 would like now to take a minute to exolain one imoor-
tant point. Ilnforiunatcly criminsls have made m;in.v nations familiar wiih
hijacking and thc malpriictices which arc commonly called hijacking. but \ery
fortunatelv for the decencies of international life. it seldom haooens that the
guvernmcni of a Statc ISeither an acsomplice bcfore the fact or'what is called
ln Iau an accomplice afier the fact, uhich means that either you actively assisi
the hiiackina. as one nation is reouted to have done-it mav or mav not be
true-or, a&in as it is called in law, you harbour and comfirt the ciiminals.
When a government choosestogo out ofits way to do things which amount to
virtuallv~makina heroes of hiiackers. it is about time that self-resoecting na-
tions~& toit ''~i'~ouhaveso ittlereiard for thedecencies of internaiionalavia-
tion, we propose to terminate or suspend the contract asbetween you and us."
73. May 1 request you now to turn to the incidents connected with the
hijacking in paragraph 7 and you can judge for yourselves. We have no evi-
dence to show whether the Pakistan Government was an accomplice before
the event. so 1shall make no statement. but ifanv of the honourable members
here has any doubt as to whether it wai at least an accomplicéafter the event,
that doubt should be removed by reading the report of the Commission ap-
oointed bv the Pakistan Ciovernment. ~ortunatelv that reoort is annexed to
~akistan'sreply Io Our preliminary objections. ~s.normal human beings with
some knowledge of human affairs, you have only to read the report to see
that anv government that was reallv obiective and did not want 10 identify
. .
itelfwiÏh;hc hijackerisould nevcr have pot such a document. The rrpori is ri
unaccepiïble-to usethv mildc5t ierm 1cJn thnk of-ihat 11makes )OJ aon-
der how any government could solemnlv oresent it to an international body.
But before 1 iome to that report let me;éad the summary of the facts about
the hijacking starting on page 5 of the preliminary objection, after making
this one further point. We donot suggestthat a Statecan terminate or suspend
the ~onvention~or Transit ~greemëit if there is a hijacking incident. but it
has the right Io do so if the government of another State identifies itself with
the hijackers or sympathizes with them. So it was not just the hijacking in-
cident but also the Pakistan Government's identification with the hijackers
that led 10India's action. Kindly look al the facts narrated in paragraph 7 of
the preliminary objection.
74. "(a) An Indian Airlines Fokker Friendship aircraft on a scheduled
flight from Srinagar to Jammu with 28 passengersand 4 crew on board
was hijacked by two persons among the passengersand diverted at gun
ooint to Lahore in Pakistan shortlv after noon on 30th Januarv 1971.
one of the two hijackers had a grenade in his hand and threatened to use
it if the plane was not diverted to Lahore, while the other oointed his
revolver at the pilot. fbl The Government of~Ind~ ~reouested the Pakistan Government the
Same afternoon at Islamabad, andthrough their High Commissioner in
New Delhi. for the immediate release of the passengers, crew, cargo,
baggage. miil as well as the aii~idrt. The ~akistan Govërnment informed
the Acting High Commis~ioner of India in Islamabad the same afternoon
of its decision to allow the plane, crew and passengers to fly back to
India.
(c) The Indian civil aviation authorities and the Government of India
informed the Government of Pakistan on the morning of 31st January
about a relief nlane heine readv to take off f~r L-hore. toeether witb
7~~~~ - - , -
spare crew, to bring back the passengers, crew, cargo, baggage and mail
as well as the hiiacked aircraft as soon as the Pakistan authorities gave
the necessary clearance. Permission was given by the Director General of
Civil Aviation of Pakistan the same morning for the relief aircraft to
leave, but this was rendered infructuous by further instructions from the
Pakistan authorities that the relief plane should not take off until further
specific instructions from the DGCA Pakistan. Such permission was
repeatedly deferred in spite of numerous reminders from the DGCA
India. The Ministers for External Affairs and Civil Aviation of India sent
messages on 1st February 1971 to the Minister of Home Affairs and the
Minister-in-Charge of Civil Aviation respectively in Pakistan, requesting
the immediate return of the oasseneers and clearance for the relief air-
craft to bring back the hijacked airiraft along with the baggage, cargo
and mail. The Pakistan HighCommission in India consistently refused to
issue visas to the crew of the relief aircraft and the spare crew."
Now this is important. Another plane, a foreign plane, was to leave Lahore
for India and there was room on board for the Indian passengers. Yet the
Pakistan Government would not permit them to be put on board that plane.
This is the next paragraph, (d).
"/dl Pakistan took more than 48 hours to send the oasseneers and
ciew by road to the Indtan border at Hussainiwala at I~OOho& (IST)
on the 1st February 1971, though the distance from Lahore to Hussaini-
wala is only 36 miks."
A military government is in Dower. a foreign aricraft is hiiacked, the Dassen-
gerr are the&. and the militu;y governmenluhich can deui u,ith the problcms
of the entire nation cannot arrange for these passengers to go 36 miles under
military escort! For 48 hours nothing ca- be done for these Dassengers. If 1
may continue:
"The Government of lndia had edrlier made arrangements for the return
of the passengers to India on board a scheduled Ariana Afghan Airlines
Service from Kabul to Amritsar. which laoded at Lahore at 23 hours on
3151January. but although û. large numher of passengers disemharked
rrom the planeand 30 passenpers uere hoarded on rhat uircrafr al Lahore.
the authorities in ~akistan said that they could not make arrangements to
board the passengers and crew of the hrjacked aircraft on 1hi;plane be-
came of the alleged presencc of crowds at the airport."
1find it impossible to believe that if a government really wanted to do it-a
military government with police and military forces at itscommand-it could
not do so simple a thing as put 20 or 30 lndian passengers aboard a plane.
Other passengers could get on board. "le) The Government of Pakistan not onlv failed to return the two
pérSonswho had hijacked the aircraft but announced that they had been
given asylum in Pakistan."-The Government of Pakistan announced
oubliclvthat the hiiackers were beinn niven asvlum in Pakistan.-"This
Las done even u,ithout firsi disarmingthem ani taking them into custody
for iheir criminal ncts. On the other hand. they were trrated as heroer and
were freelv oermitted to visit. bv turns. the terminal building at Lahore
Airport, Ïo'put long-distance calls to 'their accomplices and friends in
Pakistan and meet various people, besides being provided with food and
other amenities which enabled-them to continue~their so-called occuoa-
tion of the aircraft for 3-tdays. This wasallowed to happen on theapron of
the international airport at Lahore, in full view of the authorities, troops
and police there, who look no action to make them vacate the hijacked
aircraft."
75. Now iust consider the absurditv of Pakistan's exolanation of whv thev
did this. ~lcthe pas&gers have b&n'removed frok théaircraft. The aimait
belongs to India. The two hijackers are on the plane. The worst the hijackers
could do was to blow up the plane. That was al1they could do because the
passengers were safe and ultimately they did blow up the plane. What did
Pakistan achieve as an internationally resoonsible government by allowing
these hGackers Io come out of the piane one-after anothei? For 33
days these hijackers were given food and water and were looked after.
And Pakistan says "We did al1 this because we were worried as one of the
hijackersu~asa1waysonit:onewciuldcorne out and one would rernain; so one
hijacker might blow up the plane." This great concern of Pakistan for Indian
aircraft and lndian property-can you imagine that being the real motive
when millions and millions of dollars worth of orooertv has been confiscated
by Pakistan and not returned? Can you seriouily 'beliévethat Pakistan was
concerned with the safety of India's one little aircraft. which was ultimately
hlown up? What prevenied Pakistan from taking the Iwo hijackers into cus-
tody? The worst they could have done was to blow up the plane. Pakistan
could have asked lndia "Are you willing to have us arrest these people and let
your plane be blown up?Vould lndia have said "No"? Did we have any
sympathy with these criminals? Now for three and a half days, mind you,
these hijackers come out of the plane, first one, then the other. They corne Io
the terminal building. They make long distance calls, trunk calls also, to their
accomplices in Pakistan, and nothing happens to them at the hands of the
military and police forces a1 the airport.
"If) Finally, at about 2000 hours on 2nd February these Iwo crirninals
were allowed to blow up the hijacked lndian aircraft andeven to prevent
the fire brigadefrom putting out the Tire."
76. Look at the absurdity of the whole story put forward by Pakistan. The
Commission they appointed to report on this hijacking says that the two
hijackers had only a dummy pistol. not a real one, and a grenade which was
also a dumrny. If so, how could the hijackers blow up the plane? What did
they blow it up with if the pistol was a toy pistol and the grenade was a
dummv grenade? These are some of the absurdilies of the whole story. where-
as thesimple straightforward fact is that Pakistan wanted to make heroes of
these hijackers and a situation was created where lndia found the position
intolerable for any self-respecting country.
77. If 1 may read further in the same paragra~h-clause (f) .Thisw-theblowing up and burning of the aircraft-"look place in full view of the airpon
authorities, troops and police at the Lahore Airport, which is a protected
ares."-mind YOU. this is a nrotected area in Pakistan. under militaw occu-
pation-and ai a iime when'~artia1 Law was (as it still is) in force in Pakis-
tan." Now mark this-"The Lahore TV also televised the destruction of the
aircraft on a snecialorozramme and it was made ta aooear as if the event was
an occtsion for celebrat~on. The lime extended for the ielevision programme"
-the televison programme normdlly would hate ended but the timr wiis ex-
tended bv the aho or eelevision authorities-"was clear proof that the
Pakistan authorities knew the plans of the hijackers and connived al the de-
struction of theaircraft. This further criminal act of destroying the aircraft
occurred only a few hours afier the I'akistan liigh Cummissioner in India had
asured the Government of Iridiî that hi.; Covernment wcre committed 10,
and uerc taking al1necesstry nieawres fur. the safereturn of the air~.raR.
78. "(g) The Government of India informed the President of the Inter-
national Civil Aviation Oraanization Council on 1st Februaw 1971 of
the hijacking of the lndianaircraft and later about its destruckon. It is
understood that the President of the ICAO Council sent the following
messageto Pakistan:
'Regarding unlawful seizure India Airlines aircraft confident Pakistan
acting in accordance with ICAO Assembly Resolution A17-5 has per-
mitted or will permit aircraft occupants and cargo continue jpurney
immediately. Would appre.ciate your infornialion regarding present
situation. Am also very concerned by possibility proliferation hi-
jackingsin that part of the world unless severe measures taken. There-
fore trust Pakistan will follow Assembly decltration A17-1 and prose-
cute perpetrators so as to deter repetition similar acts.'
The Government of lndia ûre not auare of ihe responsegiven by Pakistan
io this communiciition. In ftct Pakistan neither permitted the aircraft
with passengers and cargo ta continue the journey immediately, nor
returned the hijackers to India, nor prosecuted noi punished them in
Pakistan."
Pakistan in the reply says that they are awaiting trial. They are very familiar
with trials and 1 will say no more about il.
79. "(hl The Government of India had. as far back as Seotember 1970,
informed the Pakistan High ~omrnissioner in lndia that certain sub-
versive elements in Pakistan were conspiring to hijack Indian aircraft and
that there was definite information about a oossible attemDt to hijack an
Indian aircriift to Piikistan and had rcquested the ~ove~nmentof l'a-
kistan IO take adequate stcps to preveni this. There was nu respoiise from
the Government of Pakistan exceot the stranae reauest from their Hiah
.Commissioner to disclose the source from which the Government of
India had obtained this information."
Imagine the attitude of a responsible government wanting Io honour ils
international commitments about safe and orderly aviation. That govern-
ment is aiven information bv another eoveroment: "We have information
thÿt one of our planes ir to be hijîcked. Pleasesecto IIthdt such a thing
does not happen, that ihe hijackers do not ger asylum in yuurcountry ..."
Whai is the re~lv of the Pakistiin Govcrnmcnt? "Please tell us the source from
wbich you goï ihis information." Ifthis is "safe and orderly development of MEMORIAL OF INDIA 167
aviation" we mav as well scran the Convention of 1944. There is no meanina
Io ii. It is meanÏto be a conv&rion among nations which intend to honour
and respect ils provisions. Il is not intended to bea formality betueen nations,
one of which is at libertv tn make a mockerv of it and then ask the other
nation to adhere to ils piovisions.
80. These are the facts. If anyone had any doubt as to whether the Pakistan
Government itself was really involved in the hijackina. either before or after
the event, it would he complelely rcmoved if you look-& Pakistan's reply and
31the conclusions of ihc Commission of lnquiry which Pakistan has annexed
to il. 1ask you honourahle gentlemen, as men of common senseand men of
knowledge of world affairs, to read this Commission's report and ask your-
selves whether you believe for a moment that an honest government, which
had nothing to do with the hijacking or the hijackers and had no sympathy
with them, could have possibly procured such a report from a Commission
appointed by it. Look at the report. As 1 started to say earlier, it makes
hilarious readina. You only have to read it to see what tvne of conclusions
were reached bfa respon\i~blegovernmeni commiision. 1; is Annexure A to
Pakistan's reply and 1propose IO read ihc whole ofit.
81. 7he Prrri<lrnr: 1do 1101mcdn Io interrupt you. but is the point ihai ).ou
are going Io mîke now rel~ted tu the preliminary objection?
82. .ilr.i'ulkhii<ila: Sir,ithat no hearing on the legality of the preliniinary
obiection. It has a hearina on the justification for the susoension or termina-
ilin of the Agrecmeni ani ihat ju;iificariun is not uiihin'the Councii's juris-
diciion. So if the lcnrned President righily reminds me that if the preliminary
ohiection is well founded in law-and 1 submit it is-then the auestion
whcther Our terminarion was righiful or ~ronglul is no1 for the ~0;ncil Io
consider. If that is the vieu then I do no1 havc IO relid ii 31a11bccause 1\rould
be unnecessarily wasting v-.r time. and the learned President. if 1 may say. is
quite logical inrcminding me thai on my oun argument ihis is no1 relëvant. I
concedc thai point againsr myself strliight away and 1uill not reîd il, hesausc
1 sce the implic;ition of uhai the lcarned l'resident ha5 4d. Withi~ui nsking
me nui io rcad II,YOU have rightly rcminded me thït iiis really no1 relevant.
My only i~hjectivc in asking ihe honourahlc membcrs io have ;i look al il ii'as
to satisfy you about the bona fides of my countrv's case.which is not really the
question before the Council because iou are kt concerned really with nur
hnna fidesand our justification as much as with our contentionthat if for any
reason. aood or had. we choose in terminate the agreement. the Council has
no jurisdiciion io deal nith ii. Wcll. Sir. l will iiut;ed the icport. hui I will
ask the honourûble niembcrs to havc a Ii~ukst ii Idier and will only niake one
or two comments without reading it.
83. Thesum and suhriancçof ihe report is this. Here iiIndia. tremendously
agiiatcd over ihis hijacking. \ery perturbcd. rhis is the lirsi lime in hisrury
thai an InJian ü~rcrsii hlis bceri Iiiiaikcd and our neunle. inside 2nd ~>ut,ide
of Parliament. are so aeitated that me bec the-~r~ ~ ~ ~ ~ ~the ~ ~~ ~ Council
10 intervcne, uc requez I>sk.,tan to send back our plane. pashengert, cargo,
etc., and thi, C<immission annoinicd by the I'akiitan Governmeni discovers
the real secret. The real sec~ ~ ~ ~t~atlndian -~~~~t aeents have somehow
manŒuvred this hijackingfor their own purposes! In other words, the Indian
Government was behind the hiiacking. It is like saying that the Jews were
hehind the hiiackine w-ich. accordineto - the newsoa. .;. w~. the handiwork
of tcrrorists, but ascording to somc Commi,>ion u,as tne hliiidi\rork of ihe
Jews themselvcs, who go1their own plane htiacked. hl) puint is ihat if such a
report isprocured hy a government,~it tells ;ou volurnefahout the bona fides168 ICA0 COUNCIL
of that aovernment. If there was not this Commission's report 1 could have
understood a government saying "We had nothing todo with the hijacking.",
but if such a Commission is appointed and such a report is made available to
an international body, 1can only Say,weighing my words carefully, that it is
an insult to that body to be asked to accept it. The report says that lndia itself
procured this hijacking by ils own agents. It says that this Mohammad
Hashim Oureshi. theone who blew UD the aircraft, really had no grenade and
no pi stol.‘^I have already mcntinnëd, if that was the cise, couldhe bleu,up
the aircraft'! How could ithappcn? Who supplied him with the grenade to
blow up the aircraft? Did the Pÿkistan Government supply the grenade, and
whït werc thc). doing for three and a half Jays while the aircrdft was sranding
on the apron of the airpori, u,hich is an nrea oiciipied by thr military? II is ïII
too absurd for words and in deference to what the learned President said. 1
-~~ll n~t read it.
84. 1am now concluding my exposition of the first ground, the first preli-
minary objection, but before Ldo so 1wouldjust like to mention three points
in Pakistan's reply to Our preliminary objection. The first is that the word
"application" includes termination or suspension. 1 will not say anything
more on that point because 1 have already cited to you the judgment of the
International Court of Justice and also the answer given by the United States
Counsel, which clearly shows that application is something quite different
from termination.
85. The second point which Pakistan makes is that lndia has applied the
Convention and Transit Agreement between itself and Pakistan since the
military hostilities of 1965. This is completely incorrect. Since April 1965
there has been no application of the Convention or the Transit Agreement
between lndia and Pakistan. 1 shall not Say anything more on this point just
now, because it is a separate preliminary point which 1 propose to deal with
as a second point. 1shall therefore leave it alone just now.
86. The third point made by Pakistan is that there is no power to terminate
an agreement except to the extent to which the agreement itself provides for
termination. In other words, if the Convention and the Transit Agreement do
not provide for suspension or termination, you have no power to terminale or
suspend them. This is clearly wrong. 11 is contrary to what the World Court
understands to be the international law. and therefore Pakistan's attemDt to
Say that thire is no power to terminate or suspend has already been negated
by the International Court of Justice. 1take it that the honourabfe members
of the Council will follow the ruline of the International Court of Justice.
u.hich. as )ou hiivc seen. is the autho;ity tv which an iippîdl from decisions of
the Counuil lie>. As the a~pcllare authoriiy, the superior authoriiy, its judg.
ment wouid have to be fOllowed and that judgment is categorical and clear:
you do not need a provision for termination or suspension in an agreement
before you can exercise the right to terminate or suspend.
87. 1have finished with the point that the Application of Pakistan is mis-
conceived because it deals with the question of termination or suspension
which is outside the Council's jurisdiction. 1shall now deal with the second
point-what we have called "Preliminary Objection No. 2, Special Régime".
88. ThePresident:1think we should take the two cases separately. We are
now dealing only with Case 1.
89. Mr. Palkhivala: Yes, 1 am not on the Complaint; 1 am only on the
Application and am now putting forward my second preliminary objection
to the Application. 1shall first explain the position briefly and then read the
relevant part of the pleadings. The point is briefly this. The Council has juris-diction in cases which are governed by the Convention and the Transit
Agreement; if two nations choose, as from a certain date and as a result of
events like war, military hostilities, to have a special régime,a special agree-
ment, between themselves regarding overflying, it is their business; if one of
them terminates or suspends such a special régime, this Council is not the
forum because the agreement isnot something with which this Council deals.
The Council does not deal with snecial rbeimes: it deals onlv with the Con-
vention and the Transit ~greemeit. It is Gy submission th2 the facts leave
no doubt that since 1965there has been a special régimeregardinp. overflying.
1 am referrine-.nlv to ovefivine and makine non-traffic Goos. iothine-else.
because as you have seeo fr&mUtheWorld Court's opinionand the Genk
Convention on the Law of Treaties of 1969, which only codifies existing law,
a country may suspend or terminate an international treaty in whole-or in
part regarding another State. So 1am confining myself to overflying, because
that is what Pakistan wants.
90. Now as between lndia and Pakistan overflvine has not been eoverned
by the Convention and Transit Agreement sin& the military hosslities of
1965. What happened was this. In August/September 1965, when military
hostilities broke~out between them. the Iwo countries. auit. .aturallv. ob-
viously. and inevitably, suspended overflying; neither country could make a
stop, whether for traffic or non-trafficpurposes, in the other country. That was
clear. Thanks to the efforts of Russia we were able to came ta an agreement at
Tashkent in January 1966. This agreement provided that the two countries
would try to restore normal relations between them. We did our best. We
went out of Our way to do one thing or another, but without any response
from Pakistan. 1shall refer to the facts presently.Itis not a bold statenient; I
will particularize it and show by facts and figures what we did. One of the
things on which normal relations had to be restored was international aviation.
So some letters were exchanged between the Prime Minister of India and the
President of Pakistan and we said "All right, let us came to some arrange-
ment." What was the arraneement?-it said that with the aermission of the
Indian Government, ~akistin might overîiy India. The woids are "with the
permission of the Indian Government". Now this is the very negatinn of the
Convention and the Transit Agreement. It isthe very converse of the Conven-
tion and the Transit Agreement, because they contemplate overflying without
the Government's special permission, whereas the special régime after the
war between lndia and Pakistan was that overflvinn could be onlv with the
express permision of the Governmcni. When o;r n%tification, u,hich 1%ha11
read presently, cxpressly says ihat oi,erRying shall be u,ith the permision of
the Government of India, how can anyone possibly still argue, as Pakistan
tries to do, that the Convention and the Transit Agreement were brought
back into operation after 1965? It is impossible to say that, because when 1
say "with my Government's permission", 1 Say in so many words that the
benefit of the Convention and the Transit Agreement is not available to you;
otherwise the question of my Government's permission does not arise.
91. Now Pakistan is fully awarethat from 1966,when the Tashkent Agree-
ment was reached, up to date, Pakistan has never overflown India without the
Government's permission. This permission we may give or withhold, because
permission has no.meaning unless the authority which is to give it has discre-
tion not to -ive it. We to~ ~ ~kistan "No Con-e~tion and no Tra~~it Aeree- -
incnt as betueen sou aiid me; overflying is ivith my Government's permis-
sion." Of course Pakistan returned the ci,mr>limentby sayina it was al~owith
their Government's permission, which 1a& not disputing, but since they arethe complainant and 1am the defendant, 1am concerned only with my action,
not with Pakistan's. What was mv action? It was clear and catenorical:
hereafter nverilying by Pakistan caRonly be utith the Govcrnment oïlndia's
perrntssion. If (hi$is $0-and I uill prow itby reference Io our own Govern-
ment's notification. which is unchalleneed-vou will immediatelv see that
~ ~ ~ ~ ~ ~ ~
there was no question of applying the ~Gnve&ion or the Transit Agreement
as between lndia and Pakistan after the military hostilities of 1965. If there
was a special rég!me,as undoubtedly there was, between India and Pakistan
regarding overflying after the military hostilities of 1965, it means the Con-
vention and the Transit Agreement arenot in operation as between these two
States as reeards overflvine. Now how can an aonlication be made to the
- ~ ~ -~ ~-~
~ouncil saying thal the ~oiernment of lndia har &w proposed to iithdraw
~ermisîion for o\'erflying?If l choose 10 withdraw permission ihat is my right
as~a ~ ~e~e~-~~~tate. andunder what document have I aereed that if under ihe
special régime 1 wiihdraw my permission for overtlying, 1 shall appoint the
Council of ICA0 as the body to whom the complaint can be made? No one
has ameed to such arbitrationor adiudication bv the Council. Therefore it is
my rGpectfuÏ sibmission that the hinourable mémbersof the ~iu&il cannot
be troubled with this question, which pertains ta a special régime between
India and Pakistan that is comolet.lv ou.side the Convention and the Transit
Agreement.
92. May 1refer you ta conclusive evidence of this. conclusive because the
documents are not in dispute. Would you kindly refer to India's preliminary
objections, Annexure No. 3. It reproduces Iwo notifications, one issued during
and the other after the war of 1965-throughout my argument 1 have
used the word "war" in olace of "militarv hostilities" becausel am not trvine
to be technically correct'here; wherever ihave used the word "war" yo~-~iii
take it as "military hostilities". because an international authority in Geneva,
hefore which 1 had the honour to aooear aeainst mv learned friend. the
Attorney General of Pakistan, has heldihat th~militar{hostilities of seSem-
ber 1965did not amount to a war in international law and 1accept that word-
ing as correct; it is a case of military hostilities, not amountirÏg to war, in
September 1965. May 1 read the two notifications before the honourable
members have a recess for lunch.
93. The first is the notification of the Government of India dated 6 Septem-
ber 1965.
"Wllereos the Central Government is of the opinion that in the in-
terests of the public safety and tranquillity, the issue of an order under
clause (6) of sub-section (1) of section 6 of the Aircraft Act, 1934(22 of
1934). is expedient:
Now, cliereJe/orei, exercise of the powers conferred by clause (6) of
sub-section il) of the said section 6. the Central Governme~~ ~ ~ ~ ~ ~ ~ehv
directs that Gaircraft registered in ~a'kistan,or belonging ta or operatA
by the Government of Pakistan or persons who are nationals of Pakistan.
shall be flown over any portion of lndia."
This is September 1965.Military hostilities are in progress. India says no over-
flying by any Pakistan aircraft. After peace was restored and the Tashkent
Declaration was signed, there was a second notification, dated 10 February
1966, which is on the next page of our preliminary objections. It continues in
operation even today and you will seehow it reads:
"Wlrereus the Central Government is of opinion that in the interests of the public safety and tranquillity, it is necessary so todo:
Now, rherefore, in exercise of the powers conferred by clause (b) of
sub-section 6 of the Aircraft Act. 1934 (22 of 1934). the Central Govern-
ment hereby makes the following amendment to tbe notification of the
Government of India in the late Ministry of Civil Aviation No. GSR
1299dated the 6th September 1965, name&:-
In the said notification, after the words 'any portion of India', the
following words shall be inserted, namely:-
'except with the permission of the Central Government and in accordance
with the terms and conditions of such permission'."
94. The cffect of this notitication of Fcbruiiry.1966 ir slenr and undoubted.
It is this. In Septrmber 1915lndia said to Pakistan "So overflying at all." In
February 1966-the Government of India said "Overflying only with the per-
mission of the Central Government of India." and this is the notification in
force today and means that Pakistan cannot overfly without India's wrmis-
sion. ~herëfore. a,~ ~~lv .s from Seotember 1965.~h-~~ ~efits of the ~onven- -~ ~
tion and the Transit Agreement have not been acailable to Pakistan, because
under both those treaties Pakistan has a right to overfly without our Govern-
ment's permission. But we told them in 1966"You may now overfly with our
permission, not without it." Thus the Convention and the Transit Agreement
were terminated or susoended as earl~ as 1966. All that has ha~wned in 1971
is thal the permission.has been withdrawn. but the obligation, the require-
ment. the necessity of obtnining permission, which meant that the Convention
and the Transit Agreement were no longer in operation between the two
countries, has existed since 1966. If India has terminated or suspended the
Convention and the Transit Agreement as regards Pakistan, it was done in
1966. not 1971. In 1971 we have withdrawn oermission. but the termination
or suspension of the international ircaty to8k place in 1966 when Pakistan
urasasked to obtain pcrmis\ion. This is a very important point which Pakistan
has completely overlooked.
95. You have the specialrégime of 196511966and this special régime is that
contrary to the Convention, contrary to the Transit Agreement, no Pakistan
aircraft shall overfly India without OUI special permission. Therefore the
special régime, whichPakistan accepted for overflying India, and we accepted
for overflying Pakistan, came in 196511966,If in 1971 we have withdrawn
permission, it has been withdrawn under the special rkgime and has nothing
todo with the Convention or the Transit Agreement. May 1stop here, Sir.
96. The Presidenr: We shall now bave the break and shall reconvene at
2.30. (b) COUNCIL-SEVENTY-FOURTH SESSION
Minutes of the Third Meeting1
(The Council Chamber, Tuesday, 27 July 1971, at 1430hours)
CLOSED MEETING
President of the Council: Mr. Walter Binaghi
Secretary: Dr. Assad Kotaite. Secretary General
Presenr:
, Argentins Mr. J. M. Gabrielli (Alt.)
Australia Dr. K. N. E. Bradfield
Belgiurn Mr. A. X. Pirson
Brazil Col. C. Pavan
Canada Mr. J. E. Cole (Ait.)
Colornbia Major R. Charry
Czechoslovak Socialist Republic Mr. Z. Svoboda
Federal Republic of Gerrnany Mr. H. S. Marzusch (Alt.)
France Mr. M. Agésilas
lndia Mr. Y. R. Malhotsa
lndonesia Mr. Karno Barkah
Italy Dr. A. Cucci
Japan MI. H. Yamaguchi
Mexico Mt. S. Alvear Lopez (Alt.)
Nigeria Mr. E. A. Olaniyan
Norway Mr. B. Grinde
Senegal Mr. Y. Diallo
Spain Lt. Col. J. Izquierdo.
Tunisia Mr. A. El Hicheri
Uganda Mr. M. H. Mugizi (Alt.)
Union of Soviet Socialist Republics Mr. A. F. Borisov
United Arab Republic MI. H. K. El Meleigy
United Kingdorn A/V/M J. B. Russell
United States Mr. C. F. Butler
Also presenr:
Dr. J. Machado (Alt.) Brazil
Mr. E. G. Lee (Alt.) Canada
Mr. P. R. Joubert (Adv.) Canada
Mr. B. S. Gidwani (Alt.) lndia
Mr. M. Garcia Benito IAlt.1 Soain
Mr. N. V. Lindemere (~1t.j U.K.
Mr. F. K. Willis (Alt.) U.S.
Mr. N. A. Palkhivala (Chief Counsel) India
Mr. Y. S. Chitale (~o"nsel) lndia
Mr. 1. R. Menon (Assistant Counsel) India
Reproduced from ICA0 Dac.8956-C/lOOl, Mr. S. S. Pirzada (Chief Counsel) Pakistan
MI. K. H; M. Darabu (Assistant Counsel) Pakistan
Mr. A. A. Khan (Obs.) Pakistan
Mr. H. Rashid (Obs.) Pakistan
Mr. Magsood Khan (Obs.) Pakistan
H.E. A. B. Bhadkamkar (Agent) India
H.E. M. S. Shaikh (Agent) Pakistan
Secretariat:
Dr. G. F. Fitzgerald Sr. Legal Officer
Mr. D. S. Bhatti Legal Officer
Miss M. Bridge CS0
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Sertlement of Disputes between Contracring States
Pakisran versus Indin-Suspension by India of Flights of Pakistani Aircrafr
over Indian Terrirory
1. TheChief Counsel for India, Mr. I'alkhivüla. cumpleted his presentation
of the preliminar. ob.ection filed by India. Conrinuing froni the point he had
reached in his explanation of the Second ground forthe objection, he read
into the record paragraphs 28 to 39 of the objection, emphasized the "package
deal" nature of the Tashkent Declaration, and stated that the question of
restoring pre-1965 rights in respect of civil aviation had never arisen. On the
suggestion of Pakistan itself, only overiïights had been resumed on a provi-
sional basis, subject to each Government's permission and on the basis of
recinrocitv. After the hiiackine incident. the Government of lndia had come
to the co~clusion that r&ipr~c%~in respect of safety of civil flights was not to
be expected from Pakistan and had therefore suspended flights of Pakistani
aircraft over Indian territorv. Pakistan's contention that ~ndiawas estoooed
from pleading the spccial r~#imeas a dcfen~.ebecause in the Iast tive )e=ri;he
had aiied on the bais that the Convention and Iransit Agreement applicd
between the two countries was verv curious indeed. as if these instruments
did apply, there would be no question of permission for overiïights.
2. The Chief Counsel for Pakistan, Mr. Pirzada, then began his presenta-
tion of Pakistan's answer to the oreliminarv.ohi.ction. dealina at this meeting
wiih the Indian contention that'this war a case of treaiy terminaiion. nat a
application or inierpreiation, and thcrefore the Council had no~uriiilicrion.
3. The first point he made was that the Convention was a very im.or.ant
multilateral treiity, otablishing a permanent international organi7ation and
pro\,iding permanent machinery to deal with disputes. ln the case Ct,rrnin
E~oencer of rhe United Narions~.the Iniernational Court of Jusrice. dealina
wifh thc same sort of trcaty-the Charter of the United Nariuns had rulei
that itr provisions should reccive a bruad and liberal interpretation, unlcss rhe
context of a oarticular provision reauired. or there was a ~rovision reauiring.
3 narrouler Or more restrictçd interpretation. lndia was giving n very narrow.
and restricted interpreiatiori tu Article 84 of the Convention. The opening
words "any disagreement" were just as important as the words "interpreta-
tion" and "application':, on wbich India had placed so much emphasis, and,
taken as a whole, the Article was all-embracing, wide enougb to cover a
dispute as to applicatiori or non-application or as to termination, as "inter-oretatioo" included the auestion of whether there was termination. It was. for
instance, miich u,ider than Article 36of theStatute of the InternationalCourt
of Justice, which gdve the latter jurisdiction over leaal disputes rclaling only
to the interpretation of a treaty. Mr. Pirzada also referred to the Mavrom-
maris case (P.C.I.J. 1924, Series A, No. 2) and the Inrerprerarionof Peace
Treariescase (I.C.J. Reports1950):
4. The second point made by Mr. Pirzada was that the International Court
of Justice had also stated that whether an international dispute existed was a
matter for objective determination; the mere denial of ils existence did no1
prove ils non-existence. Thus the mere denial by India that the Convention
and Transit Agreement were in operation between herself and Pakistan did
no1 mean that they were not in operation. Pakistanmaintainedthat they were
very much alive; consequently there was a disagreement relating to their in-
teroretation or ao~lication in~ ~ ~ ~r~s o- Article 84 of the Convention and
~riicle11,~ection'~ of the Transit Agreement and the Council hadjurisdic-
tion. The expression "application" was wide enough to include adjudication
-~ a disoute~or disaereement about termination. Ïn addition to theo~inions
and judgments of the lnterna~onal ~Ourt, he referred to the book Ün>larerG
Denunciarionof TrearybecairseofPrior Violarionsby OrherParry by B. Sinha.
In it the lndian author pointed-out that one party to a treaty might accuse
another of committing breachcs of obligations in order to release itself frorn
its own obligations. The other Party might retort by charaing the denouncina
party with mala fides. conseq;entiy, the situation might be foreseen of
dispute arising from a divergence of opinion hetweeo the parties relative to
inter~retation or ao~licationof treatv obliaations.
5. '11eniïintaineb'that the Indian cbntenÏion i>fthce\istenie of a so\ereign
right of termination outside the treilty was inapplicable in this case. beciluse
the Convention and Transit Agreement contained express provisions on
suspension and termination-Articles 89 and 95 in the Convention and
Article II1 in the Transit Agreement. He also rejected the lndian argument
that Article 95 made provision only for denunciation in respect of al1parties,
on the ground that it was a well-established principle of law that the whole
included the part. Therefore, if India wished 10 terminale or denounce the
Convention and Transit Agreement only in respect of Pakistan, she had to
have rccourse tu the proied;re pre\iribid ln ~riicles 95 and III. Slie h3d not
done so: she h3d accordingly failcd IO perform her obligations under the Con-
vention 3nd Transit Agreemcni: I'.ikistan had thc r~ght ti)cake action under
Article 89 of the convention and Article II of the ~ransit Agreemen1;and
the Council had jurisdiction in the case.
6. Turning to the argument that the right of termination was recognized in
Article 60 of the Vienna Convention, he pointed out that this right was
qualified. The breach must be a "material" one, the other party was entitled
only Io invoke it as a ground for terminating the operation of the treaty in
whole or in part, and Article 60 as a whole was subject 10 Article 45, which
provided that a State could not invoke the breach as a ground for termina-
tion or suspension of operation of a treaty if, after becoming aware of the
facts, (a) it had expressly agreed that the treaiy remained in force or in
operation or (b) it must, by reason of ils conduct, be considered as having
acquiesced in ils maintenance in force or in operation. In this connection il
was interesting to note that on the very day India had taken the unlawful
action of suspending Pakistani overflights, the Ministry of Tourism and Civil
Aviation had sent a message to the President of the Council deploring the
detention of the passengersand crew of the hijacked aircraft in Pakistan for Iwo days and the destruction of the aircraft as "contrary to the principles of
the Chicago Convention and other international conventions.. .". In a com-
mentary on Article 60 of the Vienna Convention. the International Law Com-
mission had said that the formula "invoke asa ground" was intended Io
underline that the right arising under the Article was not a right arbitrarily
Io oronounce a treaty terminated: if the other oarty contestedthe breach or
ils character as a "material" hreach, there wo"ld be a "difference" between
the parties in regard ta which the normal obligations of the parties, under the
United Nations Charter and under neoeral international law. Io seek ï solu-
tion of the question through pacifi; means would apply. The Commission
therefore contemplated that even in casescovered by Article 60there would
have to be recourse to the machiner" for settlement of disoutes when there
was an allegation and denial of material breach. If Article 60 was applicable
in the present case, which he disputed because of the express provisions for
termination in the Convention and Transit Aareement. if was subiect ta the
doctrines of material breach and disproportiinate rebisal and the Council
had jurisdiction ta deal with a disagr.ement between Iwo States in resoect
thereof.
7. Mr. Pirzïda also rcjectcd the argumcnt that if the contract endcd. the
arbitrütion clluse also ended and the arbitrator therefore did no1 have juris-
diction. citine the iudement of the House of Lords in the case ~evhn v.
~arwi!;in 1942-"Év& in the case of termination, repudiation or regcissio?,
the arbitration clause will be applicable and the arbitrator will have jurisdic:
lion Io determine whether the~termination or repudiation was justifiable or
not or whether the injured party may claim compensation." Thus whether
Article 60 of the Vienna Convention, the advisory opinion of the Interna-
tional Court of Justice, or the analogy of municipal law was applied, a con-
tract-in this case the Convention and Transit Agreement-ould no1 be ter-
minated by unilateral action.
8. As for theargument that theCouncil. because ofits comoosition. was not
:In appropriate hody to rettle intricate and dclicate questionh of lau,. the fïct
remïined that Article 84 cmpouered the Couniil IO consider ditagreements
between Contracting States that could not be settled hy direct negotiations
giving the right of appeal from its decision to an adhoc tribunal or the Inter-
iiational Court of Justice. Even under municipal law, parties could agree to
refer auestions of law as well as of fact to the arbitration of oersons who were
experts in their own line. Why, then, should not such questions be referred for
adjudication ta a body like the ICA0 Council?
9. In answer to théalleeations of India concernine Pakistan's conduct in
the hijackinp incident. Xlr. Pirmda read in10 the record the relevant parts of
I'ükistan's response IO the preliminary objection in support of his contention
that its behaviour had been correct and honourable.~e suspended his pre-
sentation ai this point, indicating that he would complete il at the next meet-
ing.
10. In reolv ta auestions bv the Reoresentatives of the United States and
Australia, heitated that no progress had been made in response to the Coun-
cil's invitation of 8 April to the two parties ta negotiate directly for the pur-
nose of settling the dis~ute or narrowine the issues. Pakistan had acceoted
ihat invitation>nd. in \:iew of the lndiankovernment's note of 31 May 1971
and the letter of the Director General of Civil Aviation for India of 3 June,
had underatood thiit lndia hïd ~cccptcd it tao. Thït had also been the under-
stxnding of the Council. Indta had nou adifised that this was not the case. In
a note date4 ?I July 1971. in ïnswer to une from Pakistan on 25 June expres-sing the hope that negotiations could start before the end of June, India's
Hiah Commissioiier in Pakistan had referred to the filing of the preliminary
obkion and bad said that there was therefore no auestion of holdine the
~ ~ ~~ - ~ ~ ~ ~
pr&oscd bilateral talks in accordance with the ~ouncii's resolution of 8 April.
Mr. Palkhivala explaincd that the Indian reply had been prompted by the
belief that the neaotiations should be held outside the framework of the
Council resolutiol-lndia having maintained al1 along that Indo-Pakistan
questions should be settled bilaterally without third Party interference-and
that the question of overûights could not be dissociated from the other
questions outstanding between the two countries; subject to these considera-
tions lndia was willing to have negotiations.
11. There was a brief discussion on the kind of minutes to be issued for
this series of meetings, ending with the understanding that there would be the
usual "expanded summary" plus a verbatim record in the English, French
and Spanish languages.
DISCUSSION
Subiect No. 26: Sertlementof DifferencesbetweenContracringStates
Pakisron versusIndia-Suspension by India of Flighrs O!
Pakisiani Aircrafi over Indian Territory
1. ThePresident: The Council is again in session andthe Chief Counsel for
India continues to have the floor.
2. Mr. Palkhivala: Thank you. If 1may, Sir, 1 shall continue with Ground
No. II, which is that there has been a special rbgime between India and
Pakistan regarding overflying since the military hostilities of 1965. In that
connection 1 had read a notification of 6 September 1965, which prohihited
al1overflying, and one of 10February 1966.which modified the first notifica-
tion to the extent that there could be overflying with the permission of the
Central Government. 1 oointed out that the fact that the oermission of the
Government of India was necessary was the very negation of the Convention
and the Transit Agreement because under those two treaties you do not need
the Government's ~ermission for overûvina. That is where 1 stoDDed
3. To coptioue ihe argument from that point. may I request the honourable
memben to turn to page 20 of the preliminary obj~cti~n. If 1explain the facts
in my,own words, 1 am likely to take more time than if 1 read the brief
narration given there. To save time. therefore, 1 shall read the part of the
preliminary objection dealing with Ground No. 11.
4. "The Air Services Ameement of 1948 between the two countries
covered air transit acrois each other's territory and India's overfltgbts
into Pakistan's airspace and Pakistan's overflights into Indld's airspace.
A CODY of the Agreement is hereto annexed and marked '1'. Thus air
trans/<and overfGing each other's territory was governed by a special
rcglme betnecn India and Pakistan in 1948and continues Io bc so gov-
erned up until today. The Convention and the Transit Agreement do not
apply as between India and Pakistan as regards transir and overflying
each other's territory. Consequently, as rcgdrdj transit and overflyiog,
no question can arise of interpretation or application of the Convention
or the Transit Agreement as between the two countries, nor of any disagreement between them on such a question; nor can there be any
question of any action by India under the Transit Agreement against
Pakistan. Since there has been no action bv India under the Transit
Agreemenf against Pakistan, the question oi considering any hardship
or injustice to Pakistan within Article II (1) of the Transit Agreement
does not arise."
"29. In view of the fact that the question of overiiying or transiting is
governed hy a special régimeas between India and Pakistan, and not by
the Convention or the Transit Arrreement. the Government of ~ndia
submit that the Application and the ~ompl'aint of Pakistan are incom-
petent and not maintainable, and the Council has no jurisdiction to
entertain them or handle the matters presented therein."
Now, Sir, cornes the important part of the facts.
"30. Assuming India had committed anv breach of the soecial r6eime
or of the ~ilaterai~ir ServicesAgreement if 1948,as allegedby ~akiGan,
such a dispute cannot be referred to the Council under the Convention
or under the Transit Agreement or under the Rules. There is no provision
whatever conferringany jurisdiction onthe Council to hear or handle any
disputes arising out of hilateral agreements."
"31. As a result of the arrned conflict in Au~ustiSentember 1965 be-
tween India and Pakistan, the Air Services ~&enieni of 1948 between
the two countries was suspended. The said Agreement has since then
continued to be in susuension and has never been revived." This is verv
important and ~akistan's denial of it is incorrect. "Since 1965theairlin&
of Pakistan have never operated within India and airlines of India have
never operated within Pakistan. The traffic between the two countries
continues to be handled by third country airlines."
"32. Armed hostilities ceased on September 22, 1965.On January 10.
1966 the Tashkent Declaration was signed by India and Pakistan. The
leaders of the two countries declared 'their firm resolve to restore normal
and peaceful relations between their countries and to promote under-
standmg and friendly relations between their peoples'. Under Article VI
of the Tashkent Declaration, 'The Prime Minister of India and the
President of Pakistan have agreed'-these are the exact words-'to
consider measures towards the restoration of economic and trade rela-
tions, communications as well as cultural exchanges between India and
Pakistan, and take measures to implement the existing agreements be-
tween India and Pakistan'. Under Article VIII, inter a/ia'They further
agreed to discuss the return of the property and assets taken over by
either side in connection with the conflict'."
5. If1 may pause here for a minute, after the armed conflict, after the hos-
tilities of Se~tember 1965. vou have the Tashkent Declaration. which is not
concerncd with aviation a'tall; it is an omnibus bilateral treat; under which
bath countries say "We shall restore normal communications and restore the
old treaties." Now either the two countries obey, observe and respect the
terms of the Tashkent Declaration or they do not. No one country can pick
out aviation and say "1 want this right ta be restored", because there is no
single, isolated right as regards aviation conferred by the Tashkent Declara-
tion. TheTashkent Declaration isa package deal, an omnibus, bilateral treaty.
You either take it or leave it; you take the whole or none of it; neither nation
can say "1 shall disregard some of the material provisions of the TashkentDeclaration, but 1expect to be given the right to overfly.", taking one isolated
item out of the numerous items which, as 1said, are parts of the package deal
represented by the Tashkent Declaration.
6. Now India's comdaint-1 am not makina the comolaint before the
Council because the ~ouncil is not the body to h&r it; but 1am only stüting a
historical fact-ha9 bcen that Pakistan has refuscd to respect and observe the
tcrms of the Tashkent Declaration. Therefore the question of rcstoring their
prc-1965 rlghts as regards aviation nevcr arose. In hct. as uill he 5cen from
the signais betu,een the tu,o countries aitachcdIO our prcliminary suhmission,
~akisian it~el~ ~aid "Let us resume ovefivine on a orovisional basis," It used
the word "provisional". We agreed to that. In our reply we said "Al1 right, on
a provisional basis let there berestoration." Thisrestoration, the honourable
memhers will recall, was only in respect of overflying, not non-traffic stops,
which are also covered by the Convention and the Transit Agreement. There-
fore one part of the Convention and the Transit Agreement was never re-
stored. en the part which was restored, namely ov~rflying, was not the ab-
solute right as conferred by the Convention and the Transit Agreement, but
was subject to each Government's permission. In other words, as 1was saying
before lunch, the Convention and the Transit Agreement were never restored
between the two countries. The bilateral treaty of 1948was never restored. On
a provisional basis, India and Pakistan, subject every time to each Govern-
ment's permission, said "All right. On a provisional basis and subject to each
Government's approval, let us have overflying." Tbat is al1 that happened
under the special régimeof 1966.
7. 1corne now to paragraph 33 of India's preliminary objection.
"33. In response to the desire expressed by the President of Pakistan
for the early resumption of overfliahts of Pakistan and Indian aircraft
over each other's ierritory, the Government of India agreed to the
resumption of overîiigbts in the hope that the Tashkent Declaration
would be scru~ulously adhered to. assets and ProDerty seized during the
armed conflici uouldbe restorcd,and normai rel.ations u,ould hc csiab-
lishcd." (This ncvcr happrned.) "The gcnertl understanding of the two
Governments with regard-to the resumotion of overflights w-s as fol-
lows:
(1) The overtlights of lndian and Pakistan aircraft across each other's
territory were to be on the same basis as prior to August 1, 1965.
This basis related to the fixing of routes, procedures for operating
permission, etc."
The honourable members will recall that before 1965Pakistan airlines used to
connect Pakistan with India and Indian airlines used to connect India with
Pakistan. You could Ayfrom Delhi to Karachi or Delhi to Lahore by Indian
airlines or Pakistan airlines prior to 1965, but not at any date after 1965.
Therefore the old aviation freedom was never restored between the two
countries. This is most important.
"(2) The resumption was limited to overflights across each other's terri-
tory. It did not include the right to land in each other's territory
even for non-trafic purposes.
(3) The resumption of overiïights was agreed to on a basis of reciprocity
(wbicb after the bijacking became impossible in practice, though
theoretically it continued to be possible forIndia to flyover Pakistan
territory). (4) The resumption of overflights was to be on a provisional basis.
[A CODY of the exchange of signals establishing the aforesaid under-
standing between the ïwo countries regarding 6verflights is contained
in Annexure '2'hereto.]"
8. Will you kindly turn to Annexure 2, second signal from Pakistan to
India. To Savetime, 1am only picking'out the essential words and leaving the
rest unread. "We have received instructions from our Government" that
is the ~akistan ~overnment-"that the Government pf India has agreed 6"~;
reciprocal basisW-mark the words "reciprocal basisW-"to the resumption
of overiiights of each other's territory."~~ow when two ~overnments say
"this is reciprocal." what they mean is reciprocal for al1purposes of aviation,
not in the theory of law, but for practical purposes as practical governments
wanting to fly across another country's territory. If our aircraft flying over
our own territory-we regard Kashmir as a part of India-can be hijacked to
Pakistan with the consequences you have already seen, what would be the
safetv of our aircraft if thev were to flv over Pakistan territorv? The oosition
woufd be much worse ani much lescsafe. In other words, ior al1 Practical
purposes the Government of India, after the hijacking, came to the conclusion
ihat reciprocity in the field of safety of aviation was not to be expected of
Pakistan vis-A-visIndia. Since for al1practical purposes reciprocity was not
available to India. and it would have been extremely dangerous to permit
Indian aircraft to overiiy Pakistan territory, India said "Well, on a reciprocal
basis in 1966 we had permifted resumpfion of overflying. If that reciprocal
basis is not available to India for practical purposes. we cannot allow over-
flying to Pakistan." This is the clear justification under international law for
India's attitude. 1 am not elaborating this point because, as 1 have already
said, the honourable members do not have to decide whether there was
justification ornot; they only have to decide whether this point is within their
jurisdiction at all.
9. Then, will you kindly turn to the fifth page of the Annexure, where there
is a signal from the DGCA Pakistan to DGCA India on thé9thFebruary 1966.
It isonpage 30.1 willomit thefirst 10or 12linesof thissignal and may 1request
you to turn to the last paragraph but one, on page 31, the last sentence but
one: "All former routes over Pakistan territory as existed prior to 1/8/1965
will be available to IAC and AI1 on a provisional basis." Mark the word
"provisional". The agreement was purely provisional: the swcial rbgime was
O" a purely provisiorÏal basis. his sis~akistan's own suggestion to lndia. Of
course, the schrduled airlines of India and Pakistan were thinking of resuming
their flights for traffic PurDoses. but that type of aviation freedom was never
resroredevcn on a pro"isiona1 ha+. Then india replies in the next signal. the
one dated 9th February 1966from DGCA India Io DGCA I'akistan. The Iast
sentence ofthis sipnxl runs thus: "Flirhts rnentioned in Our SIG TOO081505
will commence oierating from 10th February as suggested in your SIG TOO
091127 on provisional basis."
10. Then the next signal from India to Pakistan, the last one, reads: "Ref-
erencevour 31661AT 1 TM)120935a~ ~~ ~ ~ ~As we have informed vou in
our SIGNALYA 101TCû081505, resumption of flights raises questions not
merely of inter-airline importance such as restoration of property, staffing.
etc. These matters will have to be resolved at inter-aovernmental level. We
~ ~ -~ ~ ~ ~ -
regret until then itwill not, repcat not. be possible Io resume services. In order
to facilitate decision we rcpcat our proposal that DGCA's India and Pakistan
sbould meet to resolve vanous problems arising out of resumption. At appro-priate stagetwo airlines could also mcet as suggcctcd by you earlier. Regard-
ing routes NOTAMS have been issued and you mus1 have receiwd them." In
short, the net rcsult wds that the scheduled airlines never resumed ilighis be-
tween the twocountries, even on a provisional basis.
11. Now thir is the situation and what is the essence of these signals? 1
have been trying to emphasize that what emerges from these signals is the
following: first, that the special régime regarding aviation is purely provi-
sional; second, that it is on a basis of reciprocity, so that if one country does
not play the game the other country is no1 bound to give the facility; and
three, that when the resumption of overiiying is effected, the honourable
members have already seen the notification of 10February 1966which says it
is with the permission of the Central Government. Therefore, in short, the
Convention and the Transit Aareement are out: thev are not in ooeration at
al1between India and Pakistafi as from 1965/1966. -
12. If 1may read further, paragraph 34 of the preliminary objection says:
"On the basis of the aforesaid understanding, the overflights of Pa-
kistan and lndian aircraft acrosseach other's territory were resumed with
effect from February 10, 1966. The aforesaid understanding is hereafter
referred toas 'the SpecialAgreement of 1966'."
13. Now cames an important paragraph which shows why the hope of the
Tashkent Declaration being fulfilled was completely frustrated by Pakistan's
attitude to India:
"35. The hope of normalization of relations between India and Pa-
kistan and the restoration of the status quo anre the armed conflict un-
fortunately did not materialize. ~ormalcy was not established and has
not been established up Io date. Despite several gestures of goodwill and
several unilateral actions on the d art of the Government of lndia to
establish normalcy, Pakistan hai chniinued io keep up a posturc of con-
frontation bordering un hostiliiy tow~rds lndin since Marih 1966. For
chsmplc. India unilaierally I.fied the embargo on trade on May 27. 1966
and invited Pakisian to do Iikcwise Till noti. I'akisian hiis not recipro-
caiçd. On Junc 27, 1966Indi3 unilaierally decided to releasc aII cargoes
seized durina the conflict exceot militarv contraband. lndia also orooosed
to exchangeieized properties on ~arch 26, 1966and repeated the gésture
on April 25 and December 28, 1966 and on several occasions thereafter.
The onlv resoonse from Pakistan was to spart auctioninr! the vast and
valuable. lndjan properties seized by them during the conflict and ap-
propriate the proceeds to their National Treasury-al1 in violation of the
Tashkent Declaration."
The Tashkent Declaration talked of restoration of properties seized during
the armed conflict. India ooenlv.and .ffi~ ~ ~ ~ ~ ~: "We are ore~ared to. .
restore al1the properties." Pakistan's responsewas 10 seIl the lndian proper-
lies and take the proceeds into their own national exchequer. This was a clear
violation of the 'fashkent Declaration. ~ ~ cou~d lndiabe exoected. then. to
restore normal aviation freedoms?
"lndia oliered to increase cultural exchanges, liberalise visa procedures,
establish bilateral machinery for settling mutual ~robiems~all without
receivine anv oositive resoonse.
2 r ~-~~~ - -
36. The continued poiicy-if confrontation bordering on hostility
adopted by Pakistan and the absence of normal relations between lndia and Pakistan since 1966 were the main reasons for the continuation of
the SpecialAgreement of 1966between the twocountries and for the non-
revival of the Air Services Agreement of 1948.
37. In view of the above. it is clear that since the Air Services -eree-
ment of 1948continues to remain suspended, no question can anse of any
disagreement between the two countries relating to the application of
that Agreement, apart from the point that any such question cannot be
referred to the Council under the aforesaid Articles and the Council
would have no jurisdiction to handle any such matter."
14. In paragraph 38 we point out how this SpecialAgreement, namely no
overflying without the Government's permission, continues to operate even
today:
"The Special Ayrcement of 1966has governed the rights and privileges
of lndia and Pakistan rcgarding air transit and overflyingfrom February
1966 till Februarv 1971."-uhen the hiiackine incident resulted in the
lndian Governmént's withdrawing its permission-"That Special ~gree-
ment. which was orovisional and on the basis of reciprocity, could not
continue in view of Pakistan's aforesaid conduct and the-crcation hy
Pakistan of conditions which made il most unsafe for lndian aircraft to
overfly Pakirian's territory. The freedom of lndian and Pakistan aircraft
10 overliy each other's territory undrr the Speçial Agreement of 1966
was always subjeçt to permission by the respective Governments and was
to be exercised in accordance with the terms and conditions of that oer-
mission. Copies of the Notifications issued by the Government of 1ndia
dated September6.1965 and February 10, 1966.. . which make this point
abundantlv clear. are hereto annexed and marked Annexure '3'."-1
have already read those notifications just beforelunch and you have seen
that in so maoy words they say quite clearly "No overfiying without the
Government's permission'i-'i~his basic limitation was nevërremoved."
Therefore the complaint of Pakistan in 1971 is a complaint which refers to
what happened in 1965. For five years they never complained. It is now that
the complaint is made. 1 mean the application; 1 am uot using the word
"comolaint" in the technical sense of the Rules. If the aprilication has any
substance, irshould have been made in 1965 1966,hccauseirom that date on.
as you have seen. the Convention and the Transit Agreement have been <us-
pended between the two countries.
15. If 1 may read further in paragraph 38:
"This basic limitation was never removed, and even the limited right of
overfiights was never put on a regular basis. The Special Agreement of
1966 was in force up to February 3, 1971, in law as well as in practice,
and the right of Pakistan to overfly Indian territory was subject at al1
material times to the permission of the Government of India. This per-
mission was withdrawn from Februarv 4. 1971. and India had the riaht
to withdraw such permission under the speciaf~greement of 1966. The
Government of India propose to say here nothing more regarding that
Soecial Agreement. since Pakistan's Anolication and Cornolai-t do not
deal with,>nd do nbt relate to, that spe2al Agreement."
16. There is a summary in the form of four propositions in paragraph 39
of the preliminary objection:
"(O) there is no disagreement between India and Pakistan relating to the interoretation or aoolication of the Convention or the Transit Aeree-
meni (That is wh; this honourahle Councii has no jurisdiction. I
will not read (b) jus1 now because il pertains to the second case-the
Comolaint. but . . and (di are relevant.)
(CI thc &~stion of lndian airciaft overtlying I1akistan and IJakistun air-
cr.ifi overfl,ing lndia isgoverncd by a Special Kégimcand not by the
convention oÏthe ~ransit Agreement; and
(d) the Council has no jurisdiction to handle any dispute under a
Special Régime or a Bilateral Agreement."
17. Now, Sir, this in brief is the case of India regarding the question of
iurisdiction. In the course of my araument, which 1hooe has no1 been unduly
iong, 1have referred to the facilha; in the English language the words "inter-
pretation" and "application" are so clear, so precise and with such a clear-cul
leaal connotation that their meanina cannot oossibly be misunderstood. 1
did not refer to the French and ~pa~ish texts of the convention and Transit
Agreement, which 1amawareareequally authoritative; that is only because of
the limits of my own education. 1 am unfortunately ignorant of those two
languages, which a civilized man ought !O know, and it is my ignorance of
them which is responsible for my not referring to those words in the two other
lanauaaes. People who understand French and Soanish, however. tell me that
~he~~~~valents~oth fe English"intcrpret~tion" and "appIic<ition.' are so cledr,
so unïmbiguous, that the arguments mhich have hecn heard as regard\ the
Enalish tcxt would ïnolv uith eaual force 10 the French and Snanish ieats of
the-~onvcntion and ~kansit Agrecmcnt. 1 ask the honourablc mcmbcrs'
pardon for not heing able to s;iyanbthing more regardin& the uords in thme
two languages.
18. 1have corne to the end of my argument on the first case except for just
one fact which 1 wanted to mention and that b Pakistan's somewhat curious
contention that India is estopped from pleading the Special Régime because
lndia has throughout the last five years, from 1966to 1971,acted on the basis
that the Convention and the Transit Agreement apply as between the Iwo
countries. Now let us not confuse the issue bv referrina to anvthina other
than overtlying, because the whole ~~~licatioi of Paltktan is-about over-
Eying. The question of making non-trafic stops in India is out because we
have never allowed Pakistan to make these stoos. exceot oerhaos on some rare
occasions which 1am not aware of and which'have beei with.the special per-
mission of the Government. So far as'overflying is concerned, if we have said,
as we have cateao-icallv.. .at ilcan onlv be whh the oermission of the Gov-
ernmcnt and if the Conbenlion and Trdnsit Agreement in turn say that per-
mission of thc Covernment 1sno1 necessîry, I complctely rail 10 see huu any
human mind can reconcile the two and sav that when the lndian Covernment
says"Take my permision.", what itniedi\ i\that "1 gi\c)ou the rights iinder
the Convention and the Transit Agreement." Itis J coniradictiun in terms
and mv simole mind is not able to reconcile these two oositions. which to me
appea; clea;ly contradictory. A government saying "~ake my permission." is
a government which expressly says "1 do not recognize the Convention and
theTransit Agreement as between Our two countries.". because if these two
international treaties were recognized, the question of the Government's
permission can never arise. You have seen already what the lndian Govern-
ment catenoricallv said in 1966and that notification continues in force today:
that ~akistan shall no1 overtly India except with the lndian ~overnmeni's
permission. Therefore the case of Pakistan that lndia has accepted for the las1 five years the Convention and the Transit Agreement as regards overflying in
ils relations with Pakistan is the complete contrary, the very opposite, of the
truth.
19. 1 have, Mr. President, finished my argument on the first case. 1 was
wonderine if vou would like me to deal with the second case.
20. ~he-prkident No. We will deal with the two cases separately.
21. Mr. Palkhivala: Then al1that remains is 10 hand over, if 1may, to your
office. Mr. President.these ohotostat cooies of excer~ts from the iudement of
the ~nternational court of Justice and ihe question'and answer between the
International Court and the US Counsel, because 1 undersiand chat the
ICA0 Secretariat has not vet received cooies of this iudgment and the nro-
ceedings. Therefore, Sir, in order that thehonourable-mëmbers may be able
to read the relevant provisions of the judgment for themselves, we are havina
ohotostats made froh~the official renort-of the iudment and from a tv~d
iopy of the question put to the ünited States couiseiand the answer givenby
him. which, as 1have already indicated. has been endorsed and made a ruling
of the International Court of Justice. The phoiostüt copies should be read;
in half an hour and if you will permit mc 1 shall hand them o\,er laier.
22. If 1mas addone ihina. when the Tashkent Declaration wds signed. eur
Prime ~inistér wrote to the-~resident of Pakistan. 1 shall read the tex1of her
letter, written on 3 February 1966, merely to show that after the Tashkent
Declaration the only question which the two Governments considered was
overflying with each Government's permission; the question of stops in the
two countries for non-traffic purposes did no1 arise al all. This is what the
Prime Minister of India said: "Our Foreign Minister and Defence Minister.
on ihcir return from Tashkent. informedus of jour Jesirc for ihe early re-
sumpiion of overflighis of Pakistani and Indian planes across each oiher's
terrttory..."Therest is the hi\iorical part which 1have already read. Nol that
an).rhing turns on il,but it is one of the strange coinc!dences in the hisiory of
relations betu,een the iwo couniries that this letier is datcd the 3rd of Fehruary
1966anJ on the eve of the tifih anniversîry of il, Io bc precise the 2nd of
February 1971, Our aircraft was blown upon ~akistan territory.~hankyou, Sir.
1am sorry if 1 have taken a little longer than 1originally expected.
23. ThePresidenr: Thank you very much. 1now turn the floor over to the
Chief Counsel of Pakistan.
24. Mr. Pirzada: Mr. President and honourable members of the Council,
mv endeavour will be 10 submit hefore you that the objections filed by India
arc ii~isconcei\~ed.hlid in la\$,and inconipcieni, .iiid \\ilendclivoiir Io show
Io SOU thal this liiig~~tCaunc.1 ha8 jiirisdiction Io enicrtliin the Applicsilon
and the Compliiini liled by Pakistan. 1 will dclil siiih the v.trio.is coiitcntic~ns
u,hich have hecn rliiscd b) the Counscl for Indiii tciday in support of the said
ohjeciton, biii I niusi\iiythat thc Coiinsel for India did nul coniine hinisclfto
the legal points; here and there he touched on matters pcrtaining to the merits
of the dispute. He has also, on occasion, made certain allegations which with
regret, but witli restraint and rcspect, 1will have to revert to and repudiate on
the relevant and appropriate occasion.
25. The main foundaiion of the argument is that this is a case of termina-
lion of the agreement or treaty and is not a case of application or interpreta-
lion and thcrefore, according to the Counsel for India, this body has no
jurisdiction 10 go into il. Now 1will meet the various points raised here in my
own way and will try as far as possible to be concise and precise. 1will no1
take you to Alice in Wonderland or the Ritz Hotel according 10 the dictum of
Lord Justice Darling, as kas been suggested by myesteemed friend here, but 1will eo somewhat on the followine lines. First and foremost. as we are dealina
niih-a vcry imporiani and fundamenial convention, which guarantces ihefrec
dom of civil aviation, 1uill submit to you what are the canons of construction
or rules of interpretation applicable in such circumstances; then I will apply
those rules ta the various provisions and articles of the Convention and the
Transit Agreement and base my contention thereon.
26. Comine first ta the canon of construction ao~licabie ta the Convention
as well as toihe Transit Agreement, you will n&ce that it is a multilateral
treaty and that it provides an organization and a machinery of a permanent
character ta deal with disputes. Assoon as we have noted, among others, these
two points, then the following canon of construction, which has been laid
down by the International Court of Justice, is immediately attracted and be-
cames aoolicable. 1 am referring to the leadina case Certain Exoensesof the
United irions and 1 am relying on a passage from the pronouncement of
that august Court to show what the rule of interpretation or canon of con-
struction is in such cases. 1 will not trouble you with the original citation. 1
shall refer to certain passages given inInrernarionalLaw Throughthe Cases by
Green. third edition, pages 601 ta 603. It was laid down therein that the
cardinal rule of interoretation is that the words oueht to be read in their
ordinary and natural Sense.If so read, they make sens;; that is the end of the
matter. Then, proceeding further, il is mentioned and stated that "In the
inter~retation of a multiÏateral treatv which establishes a oermanent inter-
national organization ta accomplish certain stated purposes there are particu-
lar considerations ta which regard should be had. The Charter's principles
were of necessity expressed in broad and general terms. It attempts to provide
against the unknown ... Its text reveals that it was intended-subject to
amendments-to endure for al1time ...its provisions were intended to adjust
themselves to the ever-chaneinen-.tern of international existence. It establish-
ed international machinery 10 accomplish its stated purposes. Its particular
provisions should receive a broad and liberal interpretation unless the context
of anv. .rticular orovision reauires. or there is ~6~ ~ found elsewhere in the
Charter something IO compei. a narrouer and rcstrictcd interpretstion."
Therefure \$kat emcrgcs dnd uhat islad doun here ai iiuell-scttled principlc
is this: that the interpretationof a multiiateral treaty like the one with which
we are directly concerned here today mus1be large and liberal and not in any
narrow sense, or, as we say in Our domestic jurisdiction, especially in the
common law, not in a pedantic sense. The interpretation that has been can-
vassed before you al1 along, bath in the Objections and today, is a narrow
one, a very narrow one. Whether we go ta the English text or ta the French or
Soanish. the canon will bethe same: that we have to eive a larae and liberal
interpret3iion ta ihc provisions because there is regul;ir permanent machinery
availiible undcr the Coni,ention thai is equally eniitled to go into the malters
under the Transit Aereement. Havine laid down thir canon of construction.
1 will now take you-to the provisions of the convention. If I refer to somé
other provisions and tben came ta the relevant Article, the matter will become
clear.
27. Now the main Article on which we are placing reliance, and which, of
course, has been referred ta even by the Counsel forlndia, is Article 84of the
Convention. Let us read the words because 1 reeret t~-sav that althourh -
referençe uïs rnüJc io ihc expression "interpretütion or application of this
Convention", and though the Article was read. it was noi conridered in ils
full context and in roto.1 shall read again the relevant portion, especially the
6rst part ofit. It says: "If any disagreement between two or more contractingStates relating to the interpretation or application of this Convention and its
Annexes cannot be settled b. nea-tiation. it shall, on the application of anv
State concerned in the disagreement, be-decided by the &uncil." For thé
present the rest is not relevant. Now please take into consideration that the
openina words are eauallv important and they are: "If any disagreement be-
...
tween iwo or more contracting States relatingio the interp~etation or applica-
tion of this Convention". Therefore we have to consider the following ex-
pressions: "any.. .hen "disaare-ment". then "interpretation". and. lastlv.
"application of the Convcntion". tach one is important and I a~ll <ho\\ ).au
that the efict of the inclusion of al1thcçc ehprersii>ns irthis: ihat il isï con!-
orchenrite clüiise. In Pïcr muih \iiJcr than Article 36 of the Si~tutc <ifthe
Internïtional Court <ifJu\iicc. IiISail-embr~cing and csn so\cr 311dispuics.
28. Bït let us go h3ck noir to these exprcrjions. Articlç 36 ol the Stai.ite of
the Intcrnation~l Couri of Justice ialki of "interpret3tion oi a trczt).". but
herc uc have ni>[only interpretation. no1only applic~iion, but the expression
"rny d:sùgrecment betuecn tiiior more contraciing St~teï". In oiher \%<>rd\.
"anv" would certainlv cover al1 auestions. but the em~hasis is also on the
word "disagreement", relating, of course, to the interpretation or to lhe ap-
plication of the Convention. Now this word "disagreement", which is synon-
ymous with and in fact interchangeable with the word "dispute", has been
considered many a time by the Permanent Court of Justice and the Inter-
national Court of Justice. 1 will refer only to two cases to show how it has
heen interpreted.
29. First of all, let me refer to the case Inrerprerurion ofPeace Trearies. Now
this is a passage which deals with the elucidation of the expression "dispute"
or "disaereement". "Whether there exists an international dis~ute is a matter
for objective determination. The mere denial of the existence of a dispute
does not prove its non-existence. In the diplomatic correspondencesubmitted
to the Court. the United Kinedom. ictine in association with Australia.
Canada and New Zealand, andthe UnitedStates of Americz, charged BUI:
garia, Hungary and Romania with having violated in various ways the provi-
sions of the article dealing with human Ïights and fundamental freedoms in
the peace treaty, and called upon the three Governments to take remedial
measures to carry our their obligations under the treaty. The three Govern-
ments. on the other hand. denied the charees. There has thus arisen a situation
in which the two sides hhld clearly oppozte views concerning the question of
the performance or non-performance of certain treaty obligations. Confron-
ted with such a situation,~the Court must conclude that international disputes
have arisen." Then it is added: "Inasmuch as the disputes relate to the
question of performance or non-performance of obligations provided in the
Articles dealing with human rights and fundamental freedoms, they are
clearly disputes concerning the interpretation or execution of the peace
treaties." Now the emphasis here is on a situation in which two sides hold
clearly opposite views concerning the question of perforiiiance or non-perfor-
mance of certain treaty obligations. 1 will show in due course that even as-
suming that the contention advanced by India is correct, the situation is the
same as the one 1 have been speaking of and is covered by the dictum of the
International Court of Justice.
30. The second case is Movrommaris Pulestiize Concessions and in il the
expression "dispute" or "disagreement" was defined and interpreted by the
International Court in this way: "A dispute is a disagreement on a point of
law or fact, a conflict of legal views or of interests between two persons. The
present suit between Great Britain and Greece certainly possesses these186 ICAO COUNCIL
characteristics. The latter power is asserting ils own rights hy claimina from
141sBritannic Majesty's ~overnment an indemnity on the ground tha~onc of
ils sut>iectshas been Ircaled by the I'alestine or Rritish authorities in a manner
incompatible with certain international obligations which they are bound 10
observe.. .Therefore it is a dispute, hecause there is a conflict of legal views or
interests between two States."
31. There is a third case. but 1am deferring it for the oresent. because after
1have covered other grounds it will more oriess clarify-the whoie matter. So
when there is a conflict between two States and one is asserting one view and
the other is denying the same, it is a disagreement and, if il is a disagreement,
then the Council bas jurisdiction to go into, deterrnine and decide it. For
example, in this case, India is saying that the Convention and the Transit
Agreement had been unilaterally. thouah un-.stifiahly. ter. .ated by il and
or& they are terminated they arc no1in existence; if they are not in existence,
then ihis Council kas no jurisdiction to go into the action of India. We, on the
otherhand, maintain-1 will showthis on another independent mound-that
the Convention and the Transit Agreement are very much alive ;nd ilisa case
of application as uell as of interpretation of the Convention. Once we say it is
acaseof application. the mere denial bv India that it is a case of aoolication
willno1 bc~suffrcient.~lnTact.1willshowto you presently that a caseif denun-
ciation or termination of a convention or trediy is a case of ap-l~cation as well
as of interpretation of the treaty.
32. 1 am referring 10 an Indian author himself. 1 am relying on the book
entitled Unilateral Denunciarionof Treaty BecauseofPrior Violationsof Obli-
gations by Ofher Party, by B.P. Sinha. The page is 2 and the paragraph reads
like this: "11 is likely that a State may allege violations of obligations of a
treaty by other party or parties in order to justify its act or decision for uni-
lateral repudiation of ils obliaations under the treatv. Motivated bv oolicv
considerations. a parry ioa treity mdy accuse anotherbf committing hr;dchcs
of obligïiion, in order 10 release itself from its obligations, which tt may
consideras being onerous. An accused party-may retort by charging the com-
plaining or denouncing party with mala fides"-as we do in this case-"in
initiating charges of violations of treaty obligations. The complaining or
denouncing -.rtv's.charges of violations of obliaations bv other uartv or
parties may indeed be genuine and justificd and the denial of such charges by
an accused party or parties may bejus1 s 5moke-scrccn to hidc an illegai act.
Acomplainin~or denouncina vartv mav r.fuse.to accept the bona fides of the
accused partyÿnd vice ~ersa.~~onse~uentl~,a situatioi<niay be foreseen whcrr.
a disputc may <irisev-kindly note thete u,ords-"from a divergence of opin-
ion between the parties related to interoretation or ao~lication of treatv obli-
gations." 1 rcpeat the words "A situaiion may ari& from a divergence of
opinion between ihe parties related to interpretation or application of treïty
obligations.", and that is the situation which has arisen here. hlore than that.
even on the language of Axticle 84-and the same will be the position under
Article Iil of the Transit Agreement-1 have shown that if a disagreement of
this kind arises, then it will be deemed to be a disagreement relating 10 the
interpretation or application of the Convention and the Council certainly
will havejurisdiction 10 deterrnine the same.
33. 1 now come 10the main point. lt has heen suggesled that the question
of termination of a treaty is dehors the treaty, that in fact it is the sovereign
right of a State to denounce a treaty at any time it likes. Now reliance was
placed on the so-called "principle of customary international law", then on
Article 60 of the Vienna Convention and finally on certain observations maderecently by the International Court of Justice in the famous case wherein a
reference was made by the Security Council concernina Namibia. 1 will deal
with these sub-points-in a moment; but al1these questiins certainly would not
arise under the Convention and Transit Agreement, because the principle, or
alleaed orincinle. of customarr international law. Article 60 of the Vienna
~onveniion, ÿnd what was expressed as an advisory opinion by the Interna-
tional CourI of Justice in the case of Southwest Africa agilinrt South Africa
are al1concerned with cases where the convention or treaty is silent as to the
mode and manner of ils termination. whereas the convention and the Transit
Agreement have expresr provisions on termination. In fact. the Convention
and Transit Agreement were evolved after mature consideration and delibera-
tion. having regard Io vdrious cxigenciesdnd situations that niight arise If they
contain anyexpressprovisions on termination. the question of having rccoune
to imnlied nowers would no1arise. That would be the first and foremost oint.
34..NO; let us see what are the provisions contained in the convention and
in the Transit Agreement. They took in10 consideraiion certain events which
can take nlace and in tbose events certain riehts accrue to the contractina
parties. FOIexamplc, they look intoconsideraGon the ebent of war and madë
provision for denunciation. So they did contemplate and in fact provide for
termination, denunciation and repudiation in certain circumstances. Let us
look at the Convention first. Article 89reads: "In case of war, the provisions
of this Convention shall no1 affect the freedom of action of any of the con-
tracting States affectcd, whether as belliaerents or as neutrals. The same
principÏc shall apply in the case of any contracting ~tatc which declares a state
of national cmergrncy and notifies the fact to the Council." So in the Con-
vention we are not relyina on im~lied Dowers.For examole. even in municipal
iurisdictions and in ordinary contracts-because there was an attemptto
draw an analogy between a treaty and an ordinary contract under municipal
law-either there is an exoress orovision or if there is no nrovision you can
rcly on the duçtrine of implied power tn terminate thosc coniracts. ~cre ex-
press provision has been made and thercforc my first point uould be that the
Convention can be repudiated, denounced, or terminated in the manner pro-
vided and in the presence of express provisions recourse need not be had to
implied powers. As 1 havejust said, the drafters of the Convention contem-
plated war and in Article 89 took special care to clothe contracting States
with certain rights.
35. 1come now to Article 95.Il says: "(a) Any contracting State may give
notice of denunciation of this Convention three years after ils coming into
effect by notification addressed to the Government of the United States of
America, which shall at once inform each of the contracting States. (b)
Denunciation shall take effect one year from the date of the receipt of the
notification and shall operate only as regards the State effecting the denuncia-
tion." Dealing with this, the Counsel for India says that this is a right of de-
ounciation, no1 a right of termination, and secondly he urged that denuncia-
tion is denunciation in resoect of ail the States which are contracting parties
to this multilateral treaty,-the Convention, not in respect of only onestate.
It is a well-established principle of law that the whole includes the part. If
Article 95 contemnlates denunciation in respect of al1narties. it eaually con-
tcmplates denunciÿiinn in respect of one 0.f them. lt'niay be lndia agsinst
Pakistan or vice versa. and thereforeif India desired to terminate or denounce
the Convention jus1 in rewect of Pakistan. ithad tu do so in the manncr and
the mode provided herein: Unless it does so there is no legal or valid denun-
ciation or termination and Pakistan can justifiably come before this Council 39. 1will first refer to the two casesand then to the oaraaraoh in which the
Commission hîs elucidated this point. The two casesriferrid io are Dtver,ion
of ~atrr;/rom the Meuse and Tacna-Arica Arbirration. In the case Diversion
of Waters from the Meuse. Beleium contended that bv constructina certain
works conirary to the terris of Ïhe Treaty of 1863. Hoiland had forfeited the
right 10 invoke the treaty against if.Belgium did not claim to denounce the
trëatv. but it did assert a rieht. as a defënce to Holland's claim. to susoend
the operation of one of the provisions of the treaty on the basis of Holcnd's
alleged breach of that provision. Although it pleaded its claim rather as an
anolication of the orinciole inadimolemen?i non est adim~lendum. The Court.
hahng found that'~o1land had nit violated the ~reati, did not pronounce
upon the Belgian contention. In the other case,the only other casethat seems
th be of much sianificance. Tacna-Arica Arbirrorion. Peru contended that bv
preventing the Gerformanie of Article 3 of the ireaty of Ancon, which
provided for the holding of a plebiscite under certain conditions in the dis-
outed area. Chile had discharaed Pe-u from her obliaations - under that
Article. The Arbitrator. after examining the evidence. relected the Peruvian
contention, mying thdt "It is manifest that if abuses ofadniinistration could
have the effect of terminatina such an agreement. it would be necesaarv to
establish such serious conditions asthe co~sequenceof administrative wrongs
aswould operate to frustrate the purpose of the agreement and. in the opinion
of the Arbitrator, a situation of such gravity has not been shown." So the
question ofjustification and termination was considered relating 10,concern-
ing, and in the construction of the Treaty.
40. After referrina to these cases and other ~rovisions and ooinions of
jurists, the ~ommiss~onconcluded, in paragraph.6 on page 83, "~aragraph 1
provides that a'material' breach of a bilateral treaty by one party entitles the
other to invoke the breach as a ground for terminating the treaty or suspend-
ing ils operation in whole or in part. The formula 'invoke as a ground' is
intended to underline that the right arising under the Article is no1 a right
arbitraril. to .ronounce the treatv terminated".-lt is not a riaht arbitrarilv
to pronounce the treaty terminatëd.-"lf the other party contests the breach
or its character as a 'material' breach"-as we are doing here-"there will be
a differencew-please note this expression-"between the parties. with reaard
to uthich the normal obligations incumbent upon the-parties under-the
Charter and under generîl international law to seek î solution to the qiiestii~n
through pacific means will apply." Thcrefore. the Internationïl Law Com-
mission conteniplated that even in the cases covered by Article M). when
thercisanallegation ofmatrrial breachand adenial. recoursewill havcto behad
to the machinery provided by the treaty for the settlement of disputes, namely
adjudication O; negotiation-or uhateier pro\,ipion is incorpo;ated therein.
41. Now Article 60 and this princlple found recognition in the reccnt case
of Non~ihiaand in the opinion exoressedby the InternationalCourt [IFJustice,
which wds referred io this morning and klied upon by the learned Counsel
for India. 1 had the honour and privilege Io appear in the said case and to
support the resolution of the General Assembly revoking the Mandate of
South Africa over Namibia and 1will~~n a moment~e~ ~ain what the ooint in-
volvcd uas. In fact it has no heîring on the point under consideratton in the
case hefore this Council. The honourable members of the Council ivill reclill
that the Mandate over Namibia was given to South Africa by the League of
Nations. The League of Nations was replaced by the General Assembly of
the United Nations in 1946. The question arose that by various breaches of
the obligations which were cast on South Africa under that Mandate and by190 ICAO COUNCIL
its practiceof apartheid-the discrimination which the Government of South
Africa as mandatory was practising against the population-it had forfeited
its rieht to eovern that ~erritorv. This became the suhiect-matter of various
advisiry oGnions and decision; of the International Court of Justice right
from 1950to 1971, andinthe year 1950, as well as in 1962, the International
Court of Justice found that bv its conduct South Africa had committed
breaches of the material condiiions of the Mandate. Therefore the Mandate
stood terminated. This was eventually so determined by a resolution of the
General Assembly, and eventually the Security ~ouncii made a reference to
the International Court of Justice seeking its opinion asto the consequences
arising out of that resolution and the obligation of the various States Io
honour the resolutions passed by the General Assembly and reflected in
various other resolutions of the Security Council.
42. The contention of South Africa was that the Mandate was irrevocable
as there was no orovision for revocation in it at the time of the Leanue of
Nations. lt is thi; aspect which was dealt sith on pages 46 Io 47 and in-para-
graphs 91 ta 96. The International Court of Justice therefore was dealing with
a mandate which South Africa claimed was irrevocable. as in the Mandate
there was no provision for revocation, and hence the court applied the ana-
logy of Article 60 of the Vienna Convention. There was no express provision
and not onlv this. because. if vou ~roceed further and read ~ar.ma~b- 99 tu
106, it willbecohe clear thai thé following propositions emerge from the
advisory opinion of the International Court of Justice. First, they said that
the fact that there isnoexoress nrovisionin the Mandate does no1 mean that
trusteeship hy South ~fiica becomes ownership hy South Africa; the Man-
date willstill be terminable in case of material breach. They also dealt with the
contention of South Africa that there had not heen a unilateral and arhitrary
termination of the Mandate by the General Assembly. In fact they said that
the opinion was expressed by this very court on earlier occasions, wherein
on facts thev found that South Africa was guiltv of aoartheid and various
other acts O: omission and commission and breaih of obligations under the
Mandate. Thereforethere was ample justification for the General Assembly to
nass the resolution. and then in thenarticular iurisdiction which the Inter-
nniion~l Ciiurr of Justice ivdj erercising. ii e.iprerreJ tli:ixdvi,i>r) opinion.
Noihing has been sxid Inihis c;i,e and in ihis drlvisorv opinion !~liicliiiitliixter
against the suhmission which 1 have been canvassing before you, because 1
have pointed out two cases of the International Court of Justice wh'ichdeal
directly with situations arising in circumstances similar to those in which
lndia and Pakistan have came before vou todav in this case.
43. Then the anali>gyoi niunicipal liiu uas giien. In 1x1 this uas also rercr-
rcJ io by the Iriterndti~~nalC'oiiri. Nuw uhAt Iiappciis eten in ~nuniiipxl I~ii'?
There are agreements and contracts entered into by and between parties.
These sometimes make express provision for termination, rescission and re-
pudiation. On other occasions recourse kas to be had to implied powers of
re~udiation. rescission and termination. and in a number of cases there have
been clause's in the contracts for thereference to arbitration of disputes
relating to or arising under the contract. Cases have arisen wherein one party
has alleged that it has re~udiated the contract and therefore as the contract
has gonë, the arhitrationclause has also gone, because if the contract is alive
the part of it pertaining ta arbitration is alive and if the contract goes the
arbitration clause goes and the arbitra101 then does not have the jurisdiction
10 decide and adjudicate on the matter. That was the approach taken by some
of the courts before 1942, but in that year the point was well settled in the MEMORIAL OF INDIA 193
fails it is to be submitted to the Council. Then there is the provision: "Any
contractinn State mav. subiect to Article 85. aooeal from the decision of the
Council toan ad hooearbit;al tribunal agr&d ;bon with other parties to the
dispute or to the Permanent Court of International Justice." So the Conven-
tion itself contemolated that al1kinds of auestions mav arise-leeal. comoli-
cated, certainly-ihey will arise and in the first instance they are70 be dei&-
mined by the Council. Later on. certain rights of appeal have been given to
the Contractine States. Therefore not much reliance can be olaced on the
argument based on the conipoiition of this augu5t Councrl. ln'fact, it is our
experience even with municipal ~urisdictions that there are casesarising out
of important contracts in which important, intricate and complicated ques-
tions of law aswell as of fact are referred to domestic tribunals or arbitrators
chosen by the parties. Some of the arbitrators are not lawyers but men well
versed in their own line and thev are auite comoetent to decide. Thev mav
decide questions offact; they may decide quesii~insof law. So itic no ansu,er,
to say thît because the comooiition of the Counol is of ï riarticular kind.
intricate questionscannot bedealt with and decided hy the ~ouncil. 1 submit;
with respect, that the Council is entitled to decide al1 questions in cases of
disagreement asto the interpretation or application of the Convention.
52. MI. President, in the morning my learned friend, while dealing with
the legal aspects and developing his contentions on the points arising out of
India's rireliminarv obiections. referred to par-arap-. 5. 6 and 7 of his rire-
liminary objection;, which deal with various allegations as to the conduct of
Pakistan in the matter arising out of the hijacking of the plane. It is only for
the purpose of putting the record straight that 1 have to take your valuable
time and 1 seek your indulgence to read out our reply thereto, so that the
record must reflect the correct position, because Pakistan has done every-
thing which it was possible for it to do and has fulfilled al1ils obligations. Ifs
conduct throughout was correct; it was honourable. The paragraphs read
were, as far as 1 recollect, 5, 6 and7 and 1 will read OUI replies thereto, with
your permission:
"Para. 5. The statement made by India is incorrect, irrelevant and has
no bearing on the issue under reference. However, to set the record
straight, it is necessary ta state the correct position. The 1965 conflict
was the direct result of Indian armv crossina th. international frontiers
of Pakistan follouing a gcneral ~priiing agsinst miliiary occupation by
India of the State of J;iniiiiii and K~shmir." -and 1 repudiaie the state-
ment bv mv friend that Kashmir is a oart of India: it certainlv is no[.-
"The hbstiiities were followed by the &ing of the ~ashkent ~eclaration
by Pakistan and India. Consequently, the overflights as existing before
the 1stof Ausust 1965 were resumed in accordance with the terms of the
Bilateral ~greement of 1948,the Convention and the Transit Agreement.
However, because of India's refusal to implement the United Nations
resolution relatine- to th~ e~ercise bv the ~.ool. of the State of Jammu
and Kashmir of thcir ripht ti,self-determination and her pcrsiricnce lu
seitlç outsianding dispuic, on her uun icrmï, no understanding could be
arrived at on other issues.
Para. 6. The allegations made in this paragraph are baselessand moti-
vated by the desire to mislead the Council. Pakistan had no connection
with and resoonsibilitv for the hiiackine, of the Indian aircraft by two
natiiinnls of kaphmir (rom the airip~ce nui of Pakirtan but of a teiritory
under miliiary occupation of India. The Governmrni of P3kisi;in hassince initiated prosecution against the hijackers and their accomplices.
Thc conduct of Pakistan in relation io the hijacking incident hss bcen in
conformity with thc Tokyo Convention 1963, The Hague Convention
1970, the ICA0 and the UN resolutions on the subjeci and the practice
of States in general.
Para. 7. The Indian version of the hijacking incident is a gross mis-
representation of facts." We deny al1 the allegations you heard in the
morning. "The correct position regarding this incident is as follows:
(al On Januarv 30. 1971. at 12.35 hours. Indian Airlines F-27 (Rea.
VT-DMA)-S~~V~C1 ~k-422-A, en rou'te from Srinagar ta laimi,
contacted Lahore Air Traffic Control Radio Telephone and in-
formed that the aircraft was beine hiiacked to Lahore and would be
Ianding in 10 niinutes time. ~mm~diatelyon recçipi of this inform-
ation, fire andsecurity services uere alertcd by the Airport Manager.
(b, The aircraft landed al Lahore Airnort al 12.45 hauts local time. It
was parked away from other aircraft, with security and fire services
standing by.
(cJ ~mmedt~tely on landing, the hijackers were requested ta allow the
passengers and the crew to disembark. This was not agreed Io by the
hijackers at hrst but aftcr a lot of prrsussion they sgreed 10 let the
crew and the pdssengers out at 14.32hours local time.
(dj The pdssengers and the crew were intmediately taken to the passen-
ger lounge and subsequently transported to a hotel where arrange-
ments for their accommodation, etc., had been made.
le) The Director General, Civil Aviation of India was informed of the
safe landina of the aircraft.
1fI The ~üptain of the alrcraft (Capt. G. H. Uhroi) uas given clearance
in writing by the Keg~onal Controller of Civil Avisiion, Lahure.
that he could take off üt any time he iiished. The receipt of this
c<>mmunicatlonuas acknou,ledged in writing by the Captnin.
fgj The Dirîctor Cicnernl of Civil Avisiian, India, reque\ted permission
for opernting a relief flight to Lahore to trsnsport the crew and the
oassene-rs of the hii-cked~ ~~~~-~t back to Ïndia. The oermission
was immediately granted. However, before the proposed aircraft
could take off from Delhi. law and order situation had deteriorated"
-this is a very important point-"due to a large crowd having
gathered at the Lahore airport. The Director General of Civil Avia-
tion was informed accordingly and advised that the relief flight
shouldnot take offfor Lahore until further advice.
(hl Throughout this period one or both the hijdckers reinained on board
the aircraft Attcmpts by the Pakistan authorities to persuade them
ta release the plané made no headway as they refusid ta negotiate
directly with the Government authorities. Consequently, the hi-
jackers were a1lowed"-it was not the case that they were asked to
ëome ta the lounge and phone, as alleged this morni-ng-"to contact
some non-officiaisin the hope that they could persuade the hijackers
ta agree ta release the aircraft. At no time hijackers came out of the
plane at the same time. One of them invariably remained on board.
Any attempt to disarm or arrest one would have surely blown up
the aircraft as the two had threatened to do.
fi) It may be emphasized that at no time both the hijackers came offthe
aircraft at the same time. (j) Throughout 30th and 31st January, 1971, negotiations continued
with the hijackers in an effort to get the plane released.
(k) On February 1, 1971, the Director General Civil Aviation, India,
was advised by telephone that the law and order situation at Lahore
airport was still unsatisfactory but was likely to improve bv after-
noon. Accordingly, the irec cl Gorncral wa! rcquc5icd 10 kécpthe
relicfsircrafi in reÿdincss tu fly to Lahore nt short notice. Howevcr.
hy mid-dav thesituation worsened and inthe interest of safetvW-and
w-cdo mcan in ihc intercst of safety; the accuratiun is othiruise-
"it was thought inadvisable to ask the Indian airsrait t<ileavc for
Lïhurr." In faci ilwould have bccn cnddnrcred hecnuie thc crinids
wcre thcrr. "hlean- hile, because of the teniun prcv3iling in the arca
around Lahore nirport, the Pakistanaurhuritiesarranged tu scnd the
passengers and the crew to India hy road under proper escort at
13.00 hours on February 1, 1971." 1may pause here to say that we
have on record an expression of appreciation by the Indian High
Commissioner in Pakistan for the way in which we housed these
passengers and provided them with other facilities.
(1) On February 2, 1971, the Government of India announced that the
demand for the release of 27 political prisoners in Indian-occupied
Kashmir made earlier by the hijackers as a pre-condition for the
surrender of the plane was not acceptable to India. At 20.00 hours
on Februarv .nd. 1971. the hiiackers blew un the aircraft. The
hijackers receii,ed injurics in the proce,s and uerc taken to ho~pital.
(m) Thou~h Pakistan is no1a signatory tu the Tokyo Convcntlon of 1963
dnd to the Convcntiun for the Suppression of Cnianfui Scizure of
Aircraft of 1)cccmber 16, 1970, signed .tt The Ilaguc, itcondemn,
hijdcking and is Party 10the UN rcsolution 2645 (XXVJ of25 No-
tcrnhcr 1970 on acri31 hijacking and to the re~olution adoptcd by
ihc 17th Scsiion (txiraordinnr)) of thc I<:A0 A\rcmhl) ai Mun-
trcal in June 1970. In pursuancc of the aloresaid rcsoliitii)n\.
Pakistan authorities not only arranged to rkturn the passengers and
the crew to India within 48 hours, but also tried al1possible means
to get the plane released from the hijackers for its return to India.
In)The Government of Pakistan had deolored the act of hlowine un of
the aircraft. The President of ~akistai constituted a ~ommis~o" of
Inquiry to inquire into the hijacking of the Indian aircraft, headed
by a senior ~kh court judgel~he Commission examined a number
of witnesses, including the two hijackers. The Commission came to
the conclusion that the hijacking could not have been put into execu-
tion at al1 without the active como.icit.. encourag-ment and assis-
tance of the Indian Intelligence service personnel and other Govern-
mental authorities in the Indian-held Kashmir. This was done with
the object of seeking an excuse for disrupting air communications
between the Eastern and the Western wings of Pakistan, to create
tension hetween the various regions and political parties in Pakistan
and to weaken Pakistan financially and to create a situation under
which India could interfere actively in the interna1 afïairs of Pa-
kistan."
53. Then we have enclosed the conclusions reached by the Commission
presided over by asenior judge of the HighCourt. 1may alsomention that the
Commjssion examined the two hijackers and one of them hasmade a number196 ICAO COUNCIL
of statements. 1do not u.ish to prejudge or prcjudice his trial. bu1 u,ill only
submit, with respect. that there is ample cogent, clear and convincing evidence
available to show that he was an Indian Securitv azent. The commission
exdmined and took statements from a numbcr of ;th& witnesses, somenot
rnerely ordinîry individuals- one of them was the Prime Minister of Kashmir,
another a former l'rime Minisler of Kashmir. and Shaikh Mohammad Ab-
dullah, who is the accredited representative of the people of the State of
Jammu and Kashmir.
54. One of the insinuations or alleeations made by the learned Counsel
was that when Our High ~ommissioner~uas snundedabout the likely hijacking
he asked for the disclosurc of the source of inforniation. The fricts have nut
been correctlv stated. In the first dace. he asked for the source of the in-
formation bui simultaneously indicated that if the Indian authorities had any
hesitation about disclosing it, they could inform INTERPOL. 1 may refer
here to Attachment C to Our Application, a note by the Ministry of Foreign
Afîairs of the Government of Pakistan, dated 13 February 1971, and 1am
referring to paragraph 6. It reads: .
"The Government of Pakistan reerets that the Government of India
hasagain levelled the baselesschargeUagainstthe Government of Pakistan
for instigating subversive activities against India. The Government of
l'akistan-has Ïeoeatedlv made it clear that these charaes are without anv
foundation. In ;hi%conneciion, the Governmeiit of ~ûkistan would like
to remind thc Governnient of India thdt on September 1, 1970.whcn the
Pakistan High Commissioner in New Delhi uas informed of a 'conspi-
racy' Io hljack an Air lnd~aplme. the High Commissioner immediately
askçd the Indian Government to indicate in irhat mÿnner Pakistan could
hel~ and reauested for details of the so-called 'cons~iracy' to enable the
~overnmeni of Pakistan to take necessary measuÏes. on the Govern-
ment of India's refusal to disclose any details, the High Commissioner
advised the Government of India to brina the facts to the notice of the
INTERPOL ifit felt any hesitation in taking the Government of Pakistan
into confidence in this rnatter. It is, therefore, surprising that the Govern-
ment of India should hold Pakistan responsible for the hijacking in
January 1971,on the basis of a cryptic oral communication in Septernher
1970."
55. Mr. President, 1 will ask your indulgence to stop here and to continue
tomorrow, because1have some more grounds to cover and the fresh point 1
have to deal with relates to the second Objection raisedby the learned Coun-
sel.
56. The Presidenr: Thank you. Does any Council Member wish to make
any point at this stage?Otherwise we will adjourn and continue tomorrow at
10 o'clock. The Representative of the United States.
57. iMr. Burler:Thank you Mr. President. At the meeting in Vienna at
which the Council scheduled this meeting today I asked if we could have in-
formation on the status of negotiations. Do you have any information for the
Council on that matter?
58. ThePresidenr: You have already seen two letters circulated by the Sec-
retary General and it is al1 the information we have. The Representative of
France.
59. Mr. Aeésilas: Shall we have a det~~~~- record of this meeiinz?
60. The~residenr: Yes. There are two possibilities: either to hLve the usual
summary, which could be prepared rather rapidly or, if you wish, to have alsoa verbatim of this discussion. 1think it is important to decide this point either
toda. o~ ~omorrow. because it mav have a bearine on whether-or~ ~ ~~he~ ~ ~-
Council proceeds ikmediacly afteithe bearing to a decision on ils jurisdic-
tion. As we have a few minutes now. 1would like to hear what Representatives
prefer for this particular case. The Representative of the United Kingdom.
61. Air Vice Marshal Russell: Thank you, Mr. President, 1hope the two
possibilities you suaaested arenot necessarilv mutually exclusive. 1think time
Ln the one hnnd iid cumpletrness on the-oiher are important herc and 1
hope that a summdry. %,hichcould be quiie brief but containing the substance,
can be put in hand so that we can have it raoidlv. For the future-1 don't
think itnecessary to take a decision now-but 1should be very surprised if we
didn't on the whole feel that under these extraordinary circumstances the
work, effort and time which has twbe put into a complete verbatim transcript
were not going to prove entirely justified and indeed necessary.
62. The Presidenr: As you say, they are not mutually exclusive; one does
not exclude the other. Any other views?The Representative of Belgium.
63. Mr. Pirson: MI. President, 1share the view of the Representative of the
United Kingdom. 1 think we should have botb-as soon as possible a sum-
mary and later the verbatim. Thank you.
64. The President: The verbatim, of course, will take time because it will
have to be translated. 1see that many are nodding, so 1 take it that for this
point we are discussing now we shall have both: a brief summary plus the
verbatim in due time. The Representative of Indonesia.
65. Mr. Karno Barkah: Thank you, MI. President. 1 have the same idea
and 1 would like to add that we had not asked for verbatim fur the Vienna
meeting because 1 had understood that there was a request for it at the be-
ginning and had assumed that it would continue automatically. 1just wanted
to ask whether the verbatim for the Vienna meeting would be available.
66. ThePresidenr:No, we had not agreed that there was going to be a ver-
batim for al1 the proceedings. It is up to the Council each lime to decide.
There is, of course, a provision in the Rules for the Settlement of Diferences
saying that the Secretary General shall keep a full record of the proceedings
and this we have in Our files because it will have to be available for any
ouroose for which it mav be reauired in future. There is also Article 30. the
;econd part of which SB).Sthat .'A verbatini transrript shall be made of Lny
oral icriimony and an) or~l arguments and incorporÿtcd inio the record of
the proceedings." WCare keeping that. but dirtribution 10the Council, uhich
of coursc invol\,cs much morc uork. has been on the basij of a request :ind I
understand now th31 for the pr3ceedings today and tomorrow ue sha11have
thatrecord. The ~epresentative of ~ucralia.
67. Dr. Bradfield: Thank you, Mr. President. On the point raised by the
Representative of the United States. the information which the Secretary
General gave us in his letter of the 7th of July raised some hopes of negotiations
taking place and king successful. Could we know whether any negotiations
have in fact taken place up to this time?
68. The President: We have the two agents here; perhaps they could speak
on that.
69. Mr. Pirzada: MI. President, it will be recalled that at Vienna a resolu-
tion was adopted by this Council and one oart of it related to neaotiations
between the two tat te Th.at was on the 12th of June 1971.Our undërstanding
was-and this is borne out by the letters on record whicb 1shall refer to later
if it becomes necessary-that lndia had acceoted the invitation to hold negotia-
tions with Pakistan. ~herefore on the 25thof June 1971 the ~overnment ofPakistan addressed a communication 10 the Government of India. 1undentand
that a copy of this communication has been supplied Io the Secretariat. If not,
1 will see to it that a cop..is su~. .ed and circulated. 1will read the second
paragraph:
"2. The Government of Pakistan has noted the willingness of the
Government of India to undertake negotiations for settling the dispute in
accordance with the resolution of the Council of ICA0 dated April 8th
1971, which was further endorsed by the lndian Delegalion at arecent
meet-~~~~- the~ ~~~cil in Vienna~on ~ ~e 12th 1971.wherein the Coun-
cil recommended to the parties to enter into immediate negotiations.
Further, the Government of Pakistan notes that the Government of India
prefers to hold the discussions in New Delhi al a mutually convenient
date. The Government of Pakistan will be willing to empower ils High
Commissioner in India to commence these negotiations al a proximate
date, if possible before the end of June 1971."
Now. we wrote as early as the 25th of June and we wanted the commencement
of thwe negotiations, if pos5ihle. berore the end June 1971. 1regret tu inforni
this honourable Couiicil that the reply received from the Go\ernment of Indid
dated 21st Julv 1971-aco~v c..e into Ourhands only vester..v-is to the fol-
lowing effect-
"The High Commission for lndia in Pakistan presents ils compliments
to the Ministrv of Foreign Affairs. Government of Pakistdn. and with
reference to the ~inistry's note of June 25, 1971,on the question of the
Indo-Pakistan civil aviation dispute, has the honour 10 state as follows:
The Ministry's note is incoirect in stating thdt the Government of
India has agreed to bilateral talks on the question in accordance with the
resolution of the Council of ICAO dated April 8, 1971 and that the
lndian Delegation al the meeting of the Council in Vienna on June 12
had also subscribed to this position. The High Commission would like
to remind the Ministry that India had suggested bilateral talks long
before ICAO Council passed ils resolution of April 8 and that il had done
so in accordance with India's settled policy to settle al1 Indo-Pakistan
questions bilaterally. step by step, without third party interference.
Pakistan is no doubt aware that India has filed Preliminarv Obiect.ons -
against ICAO's jurisdiction to entertain the Pakistan application on the
question and. therefore. there would be no question of holding the
proposed bilateral talks in accordance with the resolution of the Council
of ICAO of April 8. This position, as well as India's concern about the
normalization of Indo-Pakistan relations, was made abundantly clear
by the Indian Delegation in the ICA0 Council meeting in Vienna on
June 12.This is clear from paragraphs 6 and 9of the minutes of the above
meeting, forwarded to the Government of lndia by the Secretary General
of ICAO Council with his letter No. LE611LE612of June 15.These para-
graphs are attached to this Note for ready reference."
Because of this attitude no progress has been made.
70. The Presidenr: Counsel for India?
71. Mi-. Palkltivola: In reply to what the learned Counsel for Pakistdn has
iust said. what lndia ~ointed out is merelv this: if we do not protest against
Pakistan saying that ihe negotiations are.in pursuance of thevery laudable
suggestion made by the Council of ICAO, the allegation is that we are
estopped from taking our preliminary points. So in order not to leave anyroom for such technical hair-splitting and such nice points of estoppel and
the rest,India made it clear that if we hold negotiations with Pakistan, which
we are o. .ared to do. do not savafterwards vou are estooo.. from takinr th-
prcliminary poinir bec.iuse you have donc 11in pursuance of the resolution of
rhc ICA0 Counc:l. Di)n't hring ICAO in hcrc, bccauic if u,c don7 prorc<t at
that sta-. vou will have left the .oint as v,u have ~ef~ it in vour written re~. .
and as thc Council hss raiscd the point today, Indm 1s csioppcd from srguing
this. Siimcrelv with a view not to cive more food to Püki<tan to rairc thti
point of estoppel-there is no substance in the point, as 1 shall point out
when 1 come to my reply tomorrow-but merely with a view to leaving no
doubt on this matter. we said: "These neaotiations arenot under theiurisdic-
tion of ICAO but outside that jurisdictio~." That is the first point. ~hë second
is this:India is making ilclear that you cannot talk of overflying in isolation,
unconnected with anvthinr else. ~hese are maior issues which are al1 inter-
connected. We can liie as !%ends, but it has to be on a wider area than merely
international aviation. These are the two points we make clear and subject to
them, we are willing to have negotiations.
72. ThePresident: The Representative of Pakistan.
73. Mr. Pirzada: MI. President, it is very difficult for us to clearly under-
stand the stand of India. In earlier communications issued after the resolution
this Council üdopted on à hpril 1971. India indicnied ils uillingncsr 10 hold
ncgdti<titons. 1sm rcfcrring now tothe leticr No. DG 148.datcd 3rdJ~ne 1971,
frdni rhc I>ircctor Gcneral of Ci\,iI A\,iation. India. to thc Secreiary Genrrîl
of this Council. It reads:
"1 have the honour to refer to your letter No. LE 611 May 19 and to
state the followinr.
The Giivernmcnt of India has sII along becn riillinp ta h:i\c b~lstcrsl
nîpotiations with the C;oi,ernmcnr of P;ikistsn for thc purpose of icttling
thc iiiuîi :iriiincciutof thc hiitiskinr of the Indian p13ne2nd rclsicd and
subsequent dev&lopmeots. In-fact, Che~overnment of lndia has been of
the view that bilateral negotiations with Pakistan are the only way of
solving these questions. It is unfortunate that the Government of Pa-
kistan chose to make an application and a complaint to the Council of
ICAO without attempting to resolve the issues by means of bilateral
negotiations. 1 might inform you that we have again recently reiterated to
the Government of Pakistan our willingness to enter into bilateral nego-
tiations on al1related matters."
Now this reiteration of willingness is with reference to Our lettcr wherein we
clearly referred to the resolution of this Council. This is the letter by the
Government of Pakistan dated 11 May 1971, and it reads:
"The Ministry of Foreign Affairs presents its compliments to the High
Commission for India in Pakistan and with reference to the resoliition of
the Council of the International Civil Aviation Organizntion dated
April 8th 1971 on Pakistan's application against India on the ban of Our
flights has the honour ta state as follows.
In resoonse to Part 1 of the said resolution. the Government of Pakis-
tan hereby expresses its readiness to enter intb imrnediate bilateral nego-
tiations with the Government of India for the purpose of settling the
disnute. The Government of Pakistan will be willinr to ooen the neaotia-
tions with the High Commissioner for India in ~àkistan if the latter is
authorized by the Government of India to do so. Alternatively, the Go-200 ICA0 COUNCIL
vernment of Pakistan is willing to empower its High Commissioner in
India to start the negotiations."
In reply, the Government of lndia in their letter dated 31st May 1971,which 1
circulated at Vienna, in the last paragraph state:
"lt is presumed from the Pakistan Ministry of Foreign Affairs Note
dated Ilth May 1971 that the Government of Pakistan would he willing
to undertake negotiations on the issues outlined in the above-mentioned
notc from the Government of India. The Government of India would
therefore be willing to undertake negotiations as suggested by the Gov-
ernment of Pakistan in New Delhi, the dates for which can be fixed
according to mutual convenience."
They referred to the fact that this was in reply to our letter of Ilth May 1971.
On the basis of this correspondence, 1 had made a statement at Vienna that
both the parties had agreed to hold negotiations in pursuance of the resolu-
tion adopted by the Council on 8 April 1971. Now India wants, if it wants at
all, to hold the so-called negotiations on its own terms. You have seen the
attitude of India; 1 need not comment on it any further.
74. The President: No more points on this? The Representative of the
United States.
75. Mr. Butler: Thank you, Mr. President, on another point. Today both
parties, 1 believe, have referred to a question and response in a recent case
before the International Court of Justice. 1helieve it would be very useful for
the Council to have the entire text of the question that was put to the US
Counsel and the response that was submitted and then made part of the
record. Would it be possible to have that for the Council Members? It has
been cited a number of times and 1 think the entire text should he made
available.
76. ThePresidenr:The Secretariat will see whether it can obtain that text
and circulate it. We will do our best toprovide the official text.
Well then, tomorrow we will continue with this case. 1would like to point
out the following: we will continue with the hearing on Case No. 1, after
which we will go to the hearing on Case No. 2. Theti the first thing the Coun-
cil will have to decide-and this will be part of the deliberations, so the agents
will leave the room but the States as such continue to be represented if they
wish-is whether it wishes to go to the decision right away, and if not, whe".
So that will be the sequence of events tomorrow. If the Council decides that it
wishes to vote tomorrow on whether this matter is within its jurisdiction then
that will be the next step that will take place tomorrow. We had listed a
Council meeting for Thursday morning to deal with another question-reso-
lution 3911-but it was understood in Vienna that that would he taken after
we hüd iomplcted the consideration of th6 particular hearing. So if by any
chance we do no1 finish tomorruu and 111s itill necersary to continue with
this qucst~on on Thursday morning, thar othcr subject will have to *ait until
~huriday afternoon or sðing Gkethat. The ~ebresentative of Senegal?
77. Mr. Diallo: Thank you, Mr. President. When you Say resolution 3911
you are speaking of the resolution concerning South Africa? When would the
later meetine be-next .e~r .. wh-~. exactlv?
78,~~he~;esident:1just explainedfhat if ive do not finish with this subject
tomorrow, we willcontinue with it Thursday morning and immediately after-
wards with resolution 3911.It will be the morning or ifternoon of Thursday. (c) COUNCIL-SEVENTY-FOURTH SESSION
Minutes of the Fourth Meeting'
(The Council Chamber, Wednesday, 28 July 1971, at 1000 hours)
CLGSEDMEETING
President of the Council: Mr. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary General
Present:
Argentina Com. R. Temporini
Australia Dr. K. N. E. Bradfield
Belgium Mr. A. X. Pirson
Brazil Col. C. Pavan
Canada Mr. J. E. Cole (Alt.)
Colombia Major R. Charry
Czechoslovak Socialist Republic Mr. Z. Svoboda
Federal Republic of Germany MI. H. S. Marzusch (Alt.)
France Mr. M. Agésilas
India Mr. Y. R. Malhotra
Indonesia Mr. Karno Barkah
Italy Dr. A. Cucci
Japan Mr. H. Yamaguchi
Mexico Mr. S.Alvear Lopez (Alt.)
Nigeria Mr. E. A. Olaniyan
Norway Mr. B. Grinde
Senegal Mr. Y. Diallo
Spain Lt. Col. J. lzquierdo
Tunisia Mr. A. El Hicheri
Uganda Mr. M. H. Mugizi (Alt.)
Union of Soviet Socialist Republics Mr. A. F. Borisov
United Arab Republic Mr. H. K. El Meliegy
United Kingdom A/V/M J. B. Russell
United States Mr. C. F. Butler
Alsopresenr:
Dr. J. Machado (Alt.) Brazil
Mr. L. S. Clark (Alt.) Canada
Mr. B. S. Gidwani (Alt.) India
MI. M. Garcia Benito (Alt.) Soain
Mr. N. V. Lindemere (À1t.j U.K.
MI. F. K. Willis (Alt.) U.S.
Mr. N. A. Palkhivala (C>- ~ ~ . ..~~~..~, India
Mr. Y. S. Chitale (Counsel) India
Mr. 1. R. Menon (Assistant Counsel) India
Mr. S. S. Pirzada (~hief C~ ~se~ ~ Pakistan
Mr. K. M. H. ~arabu (~ssistani~ounsel) Pakistan
MI. A. A. Khan (Obs.) Pakistan
'Reproduced from ICA0 Doc. 8956-CIl001,Mr. H. Rashid (Ohs.) Pakistan
Mr. Magsood Khan (Obs.) Pakistan
H.E. A. B. Bhadkamkar (Agent) India
H.E. M. S. Shaikh (Agent) Pakistan
Serreraria!:
Dr. G. F. Fitzgerald
Mr. D. S. Bhatti
Miss M. Bridge
SUBJECTS DISCUSSED AND ACTION TAKEN
Subject No. 26: Setfiement of Disputes between Contracting States
Pakisfan versus India-Suspension by India of FIights of Pakistani Aircraff
over Indian Terrifory
1. Continuing his reply to the presentation of India's preliminary objec-
tion. the Chief Counsel for Pakistan, Mr. Pirzada, maintained that theopinion
o- the Int----tiorial Court of Justice in the ~amibio case was distineuishable.
He also pointed out that the answer of the United States ~ounsel uion which
India had relied must be read in context. Having himself appeared in the
Nonribia case, he recalled that this answer had heen to a question put by
Judge Sir Gerald Fitzmaurice, who, in his own dissenting opinion, had
drawn a distinction between treating a contract as terminated and putting an
end to it and had pointed out that, strictly speaking, al1 the party alleging
breach by anothcr could do was declare that it no longer considered itseif
bound to continue performing its own part of the contract; it would not ne-
cessarily follow-and certainly not from the unilateral declaration of that
party-that the contract was, in the objective sense, at an end; if it did, there
would be al1 too easv a wav out of inconvenient contracts. Mr. Pirzada also
read a parsage from-the judgment of rhe American Judgc I)illiird, uho had
explained ihc answcr uf the Cnitcd States Counsel. Ilc added th~t ihc major-
ity of ilie judges of thc Internxtionai Court in the A'a»tih~caw h~d decidcrl
the issue of the rcvacntion of ihc South African Mandate on the ground that
ilie General As~emhly pusscsscd supcr\~ir<irypouer, and ci~uldterniinstr the
Mandate for hreaches of ohlieatiun hv South Africd. India nos~essed no
rupervisory potiers over 11a~iri3n:boihLounirie, h;td equdl siaius and thcre-
fore iidispute hetn.cen thcm about brcachcs and thc allegcd tern~inaiion of
the convention and Transit Agreement would have to be dealt with by the
Council.
2. Turning then to the second ground of the preliminary objection-that
since Fehruarv 1966 the relations between India and Pakistan on the matter of
overflights had been governed by a special régime, provisional in character
and making overflight subieet to the permission of the State concerned-he
noted that Ïndia's originaliontention had heen that air transit and overflying
had been governed by a special régime since 1948 (paragraph 28 of the
preliminary objection), notwithstanding the fact that in 1952 India had
a.~.aled to the Council. chareine -akistan with ads violatine Ar-icles 5. 6
aiid 9 uf the Convention nnrl rhc Tr.in\it Agreement, in particular with re-
fusing to permii Indian aircr~ii engngcd in coniinercial air service, Iilyover
West I'skistan. He callcd diteniion to Pski\ian's F~vourablcrcsponse, at ihat
lime. to the C'ouiicil'ssuggesiion that ihere should be tiildteral negoiiatiuns
and to the faci ihxt an amicable settlenicnt had been reached. He noted that the Chief Counsel for India had not oressed the original contention and had
confined his arguments ta the post-~eptember 196<period, perhaps because
the position was clear and beyond cavil or controversy. The relations between
lodia and Pakistan on'air transit and overflvine had. since 1948. been eovern-
ed by the Convention, the Transit ~greeméntand the hilateral agreement of
1948.
3. Maintainine that the leeal nosition before the 1965 hostilities and since
February 1966had heen thatthé Convention and Transit Agreement were in
ooeration between India and Pakistan, he denied that the Tashkent Declara-
tien was a "oackaee deal": stated that various oarts of it bad been imole-
menicd; redd'into ;he reL.orhparagraphs 35 and j6 of Pakistan's reply to'the
preliminary ohjrction in [hi$conneciion; and quotcd the letter of 6 February
1966 (rom ihc Prime Minister of India to the President of Pakistan. staring
that lndia iiould hc agreeahle io an immediaie resumption of overflighis "on
the same basis 3s thot prior ta 1st August 1965" and ihat instructionsucre
heing issued accordingly to the lndian civil and miliiary authoriiie,. Mr. I'ir-
zadü also referred ru the Indian Governmeni's note of 3 March 1971,in u,hich
ituras clcdrlv stated that "afrcr Indo-Pükisian conflict of Auaust Seotember
1965 they3'-the Government of India-"would have been wëll within their
right ta disallow the resumption of overflight so long as relations hetween Io-
dia and Pakistan had not heen fullv normalized. However. on a soecific re-
quest made hy the then ~residenc of Pakistan, the ~overnment of India
agreed, in February 1966, to forgo their right to demand prior settlement of
outstandina issues and consented to resume mutual overflights." Havina
donc ihis 2nd agrccd to the resumption oi overflights in accordance uiih thé
arrdngements in existence prior ta I August 1965. lndia could noi nou talk
of the so~allcd "wckare deïl". Ile added ihat the phrase "on a provihional
basis" in the signals exchanged between the ~irector General of civil Avia-
tion for Pakistan and the Director General of Civil Aviation for India on
9 February 1966, on which the Chief Counsel for India had relied so heavily,
ipplied, as a complete reading of the signals made unmistakably clear, ta
routes and schedules, not ta the restoration of overflights. Also, no special
permission had been required for the overflights; the schedule of flights had
simply been filed with the appropriate authorities.
4. In further support of his contention that the Convention and Transit
Ag-eement were still in ooeratio. .he oointed out that under Article 82 Con-
tracting States could not enter into arrangements inconsistent with the Con-
vention, as the sa-called special régime would have been; that there was no
"later treaty3'-to use the phraseolGgy of Article 30 of the Vienna Convention
on the Law of Treaties; and that the investigation into an accident to an
Indian aircraft in East Pakistan in 1969 had been conducted hy Pakistan in
accordance with the relevant orovisions of the Convention and its Annexes.
5. As for the alleged danger to Indian aircraft flying over Pakistan, twenty-
three international airlines were ooerating over Pakistan and notwithstaading
the "posture of political confrontation3'with which Pakistan was charged,
Indian airlines had flown safely over Pakistani territory for more than 20
years. One hijacking did not change the situation and was no excuse for
declarine. the Convention inonerative between India and Pakistan. There had
been maiy hijackings in othe;parts ofthe world without any such action.
6. Summing up, Mr. Pirzada stated that although Article 36 of the Statute
of theinternationa lourt of Justice eave the Court iurisdiction only over the
interpretation of a treaty, in cases brought before-it termination and sus-
pension had been considered part of interpretation; that the expression"any204 ICA0 COUNCIL
disagreement relating to the interpretation or application of this Convention
and it~~Annexes" in Article 84 of the Convention was verv wide. oermittine
unilateral termination on unjustified grounds to be invest/gaicd and ÿdjud;
caied by the Council; ihat thcre wereexpress provisions in the Convention on
termin~tion~and susoension. but even if there had not heen. the right of sus-
pennion or terminaiion undcr customary international law, recognized in
Article 60 of the Vicnna Convention, wds a qualifiedright: and that ifÿ con-
tracting State could unilaterally terminale them uith respect to any other
State, conventions would become merely pieces of paper, liable to be scrapped
at the whim of any State.
7. T-~--hi---~~~nsel for India. Mr. Palkhivala. then answered a number
of the points made by the Chief ~ounsel for ~akiStan. Commenting first on
the assertion that an international treaty must be given a liberal interpreta-
tion. he sueeested that there was a vast difference between aivinz a fiberal
. --- - --~~
interpretation and giving a misinterpretation. Concepts so fun>am~ntally dif-
ferent as interoretalion and application on the one hand and termination and
suspensi0.n on the other could not be reconciled by a liberal interpretation,
and no case had ben cited in which a court had held that interpretation or
application included termination. The question at issue here was whether the
Council had jurisdiction to deal with questions of termination or suspension,
not whether the iermination or suspension wasjustified or not, and it was im-
possible to equate the words "any disagreement relating to the interpretation
or application of this Convention and its Annexes" in Article 84 of the Chica-
go Convention with the description of the jurisdiction of the International
Court of Justice in Article 36of its Statute C'allcases which the parties refer to
it and al1matters specially provided for in the Charter of the llnited Nations
or in treaties and conventions in force. the interpretation of ritreaty. anv
question of international law. the existcnce of anv idcr which. if establiihed.
would c~n~ ~ ~te~ ~ ~each of an i~ ~~~ ~ ~ ~l oblieation. the nature or extent
of the reparation to be made for the breach of anTnternationa~ obligation").
If the Council should decide that its jurisdiction extended to cases of termina-
tion or suspension, that decision was not likely to go unchallenged when
there was provision in Article 84 for an appeal to the International Court of
Justice.
8. In reply to ihe argument that there werc express provisions in the Con-
vention and Transit Agreement overriding the right of iermination recogni~ed
in Article 60 of the Vienna Convention. he oointed out that there uas no
provision denling with termination by one ~iate in relation to anoiher for
material breach. The purpose of Article 89 wds preci5cly to avoid thenecessity
for termination in war or emergency conditions by recognizing the freedom of
action of a Contracting State in such conditions. Article 95 was concerned
with denunciation and he did not think it was capable of the construction
thatthe denunciation could be with resoect to one State. If il were. it would in
thc prescnt case. mcan that the right of ovemight would continue for a year
until the denunciation bccamc effective. which would be nonsensical. His own
construction made cornolete sense: the whole hasis of the Convention was
reciprocity; if there was'no reciprocity. or ifthcrc was a material breach, the
injurcd State had the righr, under customary international law, to consider
the treatv at an end as far asits relations with thewronedoer were concerned.
9. hé part of Article 60 of thc Vienna ~onventioncited by the reprksen-
tative of Pakistan (Clause 1)was inapplicable to the preseni case: itdealt with
bilateral treaties: the treaties involved in thiscase were multilateral and Clause
2 of Article 60 said that a material breach of a multilateral treaty by one of theparties entitled any Party specially affected by the breach to invoke it as a
;round for suspending the operation of the treaty in whole or in part in the
relations between itself and the defaulting State. Article 45 of the Vienna Con-
vention also had no bearing on this case: India had never ex~resslv aereed
that the Convention and ~ransit Agreement remained in force betwein 'india
and Pakistan-since the hostilities of 1965 overflight had been only with the
permission of the Indian Government and non-traffic stops had not been
permitted. which was directly contrary to Article 5 of the Convention and
Article 1 of the Transit Agreement. The communication to the President of
the Council of 4 Februarv 1971-the verv dav India hanned overfliehts bv
-. u ~,
Pakistani aircraft-could-not be considered acquiescence in the continued
operation of the Convention between Pakistan and India. simply because it
referred to the Convention: this reference merelv recoenized I-AO'- - ~ ~.on~ ~
sibiliiy in regard to vafer! ininiernaii<insl cii,~la\,iation; and the communica-
tion referred alsi)ti)the Tokyu Convention of 1963and 7he Hague Conven--
tion of 1970,to which neithe; India nor Pakistan was a party.
10. He found it impossible to reconcile the contention that it was safefor
Indian aircraft to flyover Pakistan with the alleged hel~lessness of the Gov-
crnmcni of ~akisian in ihc tdic of the cruwds ihai had gathcrcd at lahore
Airport 3ftcr the Idnding <ifthe hii.icked plane. It\\a.; no ansuçr ioslry that 23
foreign airlines were safely overflying Pakistan.
11. As for the soecial rée-.e. that referred to in naraer. .,28 o7 the~ ~ ~ ~~~~-
preliminary objectton \\as ihç hil;iter:il air ser\,ices agreement II~1948. In his
oral preieniatioii he had rrferrcd anis tu the Iigreement reashed in 1966. be-
causéit was unnecessary to go into the history of lndo-~akistan relations for a
decision on the question now before the Council. The letter from the Prime
Minister of India to the President of Pakistan was only a token of India's
goodwill and readiness to co-operate in the restoration oinorrna~ relations; it
did not mean the restoration, in practice and in law, of the operation of the
Coiivention and Transit Agreement between the two countries. India had
wantcd ihi5, bu1 Pdk~st~na&ld not ha~e it Thcaignals betueen the DCiCA's,
Far froni di\proving hls cdse. demonstrated ihdt the Conicntion and Trdnsit
Agreement had not come back into operation; if they had, the aircraft of one
country would not need permission to fly over the territory of the other and
they would also have the right to make non-traffic stops. The special régime
dated from 1966. India's oarticioation in the Convention and Transit Aeree-
ments from 1947'and 194; respectively; and under Article 30 (3) of the ~Gnna
Convention the later treaty prevailed over the earlier when there were in-
li. rinalis, he considered that the construction hc u,a, putting upon the
Convention uds one Inharmony ivith the Couniil's functions. one thal would
oermit it to continue its excellent work without becomine involved in issues
khich it was not called upon, and perhaps was not qualifie;, to decide, and to
remain above political squabhles.
DISCUSSION
. .
Subjeci No. 26: Setriemeni of Disputes between Confracring States
Pakistan versus India-Suspension by India of Flights of Pakistani Aircraft
over Indian Territory
1. The President: The Council is in session. This is the 4th Meeting. Yes-
terday 1had made an announcement regarding the composition of represen- tation and today Canada is represented hy another Alternate, Mr. Clark.
Before continuing with the question we had yesterday 1 would like Dr.
Fitzgerald to give an explanation regarding a certain paper which was dis-
tributed this morning and which you al1have in front of you.
2. Dr. Fitzgerald: Thank you, Mr. President. 1 believe that yesterday the
Indian representation had promised to make certain material available to
the Couticil. The Indian Agent has very kindly made available ta the Secre-
tariat in quantity extracts from certain publications and these have been cir-
culated to Council Reoresentatives this morning. You will note that vou have
the extr~its from the ¢ Advisor). pini ion-o the Internîtional court of
Justice on the South African case. in French and En~lish, because these were
obviously tîken from theofficial Court publicütiont. You havea photostat or
Xeroxcopy-l do not know u hish it1s-of Sir Gerald Fitzrnaurisc's questions
IO the United States Counsel during the proceedinas hefore the International
Court concerning the South fric ancasë, and the;, of course, you have the
' text of Article 36 of the Statute of the International Court of Justice. We are
grateful to the Agent of India for having made these papers available ta the
Council.
3. The Presidenf: Any questions on that point? Then we shall continue
with the discussion and 1 invite the Chief Counsel for Pakistan to continue
with his presentation.
4. Mr. Pirzada: Thank you, Mr. President. You will rememher that yes-
terday 1was making my submission in reply to the contention of the Counsel
for India that under general customary international law a State has a right
to terminate a treaty or suspend its operation in whole or in part. That was
the argument of the Indian Counsel and 1 was replying thereto. You will
recall that1 had ~laced before vou the laneua- -of Article 60 of the Vienna
Convention and ihad said thatthat right was not unqualified, that it was in
fact a limited right. The right was limited to invoking the breach as a ground
for terminatine or susoendine the treatv and onlv incase of material breach.
1 said materiaïbreach'is a se;ious matter. ~urthér, I had pointed out that as
this Article60 of the Vienna Convention is subject to the doctrine of material
breach, it is also subject to another doctrine, namely that there should be no
disproportionate reprisal. For example, if a tiy is sent you do not need a
cannon to kill it; where a file is needed, you do not use a harnmer.
5. Develooing his ooint. the learned Counsel for lndia referred to the oro-
nouncemen<of the ~nternational Court of Justice. Photostat copies of it have
now heen circulated. 1think he used the expression "iudgment of the Court"
inadvertentl. .because it is not a.iud-ment: ,t is an advi~~rv ooinion: and vou
are al1aware of the well-recognized distinction between &visor; opinion
and a judgment. Of course it is entitled to great respect and having had the
privilege of participating in it, 1fully concurwith the pronouncernent of that
august International Court. But we must understand the correct status of the
pronouncement.
6. 1shall first clarify what is attributed to the Counsel of the United States
of America. To a question put ta him by one of the Judges of that Court, he
gave a certain answer and that answer is being utilized or relied upon hy the
Counsel for India. Now. first of all. the learned Judee who out the auestion
u3s quitrclcar in his rnindas tciuhat hc u,astalking;bout. ~he learncd Judge
was Mr. Justice Fit~niîurice and it is frum the sarne opinion 1 urn quuting.
1 must uoint out that ~ustice Fitzmaurice had given a dissentina opinion
on the niain point involved in the South West ~fnca case, but on the distinc-
tion between "terminating" and "putting an end to" the treaty there was nocontroversy and the principle he enunciated was correct. This is what he had
in mind-1 am reading from page 266:
"Because the learned Judge throughout has used the expression 'in
treating the Treaty as terminated' ",-and now he points out why he has
been using this expression-"note the intentional use of the phrase 'in
treating il as terminated' and no1 'in putting an end to il'. There is an
important conceptual dilierence. Strictly speaking. al1 that one party
all-ein- fundamental breach bv the other can do is to declare that if no
longer considers itself bound to continue performing ifs own part of the
contract, wliichil will regard as terminated, but whether the contract has
in the obiective sensecome ta an end is another matter. and does not
necessariiy follow, certainly not from the unilateral declaration of that
party, or there will be an al1too easyway out of inconvenient contracts."
1think this was quite clear and it is in this coiitext that the question was asked
and the answer was given.
7.In his answer, which was given in abstract, no1 in a concrete case, the
American Counsel raid that occasions may arise when an aggrieved innocent
party may have no remedy, but that does not mean that in certain circum-
stances this right in a case of fundamental breach could not be exercisedby
another party. Here it is entirely different, becauseby and under the Conven-
tion Contracting States have agreed ta refer ta the Council for adjudication
a case relating to interpretation or application of the Convention. But 1will
resolve this douht also by referring to the opinion of the American Judge
himself. Of course he was not sitting in that capacity, but he clearly under-
stood the question and the answer, and 1 am referring now to a paragraph
from the opinion of Justice Dillard. 1 am reading from pages 167 to 168. 1
quote:
"1 shall conclude on another note. It is true, of course, that prior Io
the termination of the Mandate by the General Assembly there had
never been a judicial determination that this was legally permissible.
Furthermore. itis accurate to sav the General Assemblv in the exercise
of ils supervisory powers did not calmly and rationally analyse the extent
of those powers under the grant of authority accorded by the San Fran-
cisco formula-a ooint mLde bv~,r~~-~sor-~alzin his characteristicallv
thoughtful book on the Relevonceof Inrernarional ~djudicarion. TL
point is troublesome but is not conclusive. Law and what is legally per-
mitted may be determined by what a court decides, but they are no1
only what a court decides. Law 'goes on'every day without adjudication
of any kind. In answer to a question put by a Judge in the oral proceed-
ines. Counsel for the United States. in a written reolv declared 'The fact
th%in the international asopposedto a municipal iegal system the other
party cannot be assured of bringing a case involving material breach
before an international tribunal eXceDtwhere bath parties have accepted
the compulsory jurisdiction of an international tribunal'-it was a very
qualified answer that was given 'except where both parties have ac-
ce~ted the com~ulsorv iurisdiction of an international tribunal'-'is a
prbblem relating to efficacy of international law and institutions
generally and not especially to the problem of the material breach doc-
trine.' And now the learned Judge ;ives his own interpretation on this:
"11 is part of the weaknessof the international lcgal order that compulsory
jurisdiction to decide legal issues is no1 part of the system. To say this is not to say that decisions taken by States in conformity with their good
faitb understanding of what international law either requires or permits
are outside a legal frame of reference, even if another State abjects and
despite the absence of adjudication."
So they arenot outside a legal frame of reference if they are objected ta by the
other State.
8. The case before the International Court was a reference, wherein the
Mandateof South Africa over Namibia was terminated hy the General
Asscmhly. with the concurrence of the Securit) Council, for maicrial brcïchcs
of ohligiitions undcr the mandate. The Gcncral Asscmhly of the Cnited Na-
tions and the Securitv Council were suoervisorv bodies. That means thev had
supervisory jurisdiction over the mandatory and therefore in that suierior
jurisdiction they could determine the breaches. That is why that point was
considered in that light bv the maiority of the iudees and cannot be treated
asa precedeni. I am now refcrring io pdragraph 103. pige 49. of the Opinion
whi~.hhiisnlre3d) hetn ciriulated, herein ihis paiini has heen clearly hroiight
out. I quote:
"The Court is unahle to ao~reciate the view that the General Assem-
bly acted unilaterally as and judge in its own cause. In the 1966
Judgment in the South Wesr Africa cases referred to above, itwas found
that the function ta cal1for the due execution of the relevant ~rovisions
of the mandate instruments appertained to the League achg as an
entitythrough its appropriate organs. The right of the League, 'in pursuit
of its collective. institutional activ. .. to reauire the due oerformance of
ihc \Iandatcindi~ch~rpeof ihc"sscrcd trust"',u.asspecific:illrecogn17ed.
Habing regard to thir linding. the Ilnited Nations :is a successor io ihe
Leazue. actinz -hroueh -ts comoonent or- .s. must be seen above al1as
the ruperv:sors insiitution, coiiipetent to pronounce, in thït ~ipacity. on
the conduci of the mandatory ivith respect to ii,internatidnal oblleations.
and competent ta act accordingly." -
Therefore that case stands on a different footing altoaether. The onlv pr..o- .
sition fhat was recognized was Article 60 of fhe fienna Convention and
nowhere was it determined that if the Contracting States through, by and
under a convention have agreed ta refer their disagreements relating to the
interpretation or application of the treaty ta a Council like this august body,
then that cannot be done. 1 submit that if any submission is made to the
contrary it is misconceived.
9. 1 will leave this point now and go to the second pround. When 1com-
plete the second ground, 1 will summarize hriefly my submissions on both
points at the same time.
10. 1cime now io the second ground. Mr. Prcsident. The \econd pround.
as ue heard yesterday, uds thït .ifter the armed conflist in August Sepiemher
1965. a new régimecame into existence hetween India and Pakistan and, a
soecial réaimehavine c-~~ into~ ~is~ence. the relations between the two
countries regarding overflights were governed by that speical régime, which
was provisional in character and subject to the permission of the State con-
cerned. Before 1deal with this noint. let me first make a eeneral statement. It
was refreshing ta note that the learned Counsel ~esterday confined his con-
tention only to the post-Septemher 1965 period, because originally the case
put up by India was that right from the beginning, since 1948, there was a
special régime.Mr. President and members of the Council, may 1invite your MEMORIAL OF INDIA 209
attention to paragraphs 28 and 29 of the preliminary objections filed by
India. Paragraph 28:
"The Air Services Aereement of 1948 between the two countries cov-
ered air transit across each other's territory and India's overflights into
Pakistan's air space and Pakistan's overflights into India's air space. A
copy of the said Agreement of 1948 is hereto annexed and marked '1'.
Thus air transit and overflying each other's territory was governed hy a
Special Régime between lndia and Pakistan in 1948 and continues to be
sa governed up till today. The Convention and the Transit Agreement do
not apply as hetween India and Pakistan, as regards transit and over-
flying each other's territory."
Then this has heen spelled out further in 29:
"In view of the fact that the question of overflying or transiting is
governed by a Special Régime as hetween India and Pakistan, and not
by the Convention or the Transit Agreement, the Government of India
suhmit that the Application and the Complaint of Pakistan are incom-
petent and not maintainable, and the Council has no jurisdiction to
entertain them or handle the matters presented therein."
Then later on they refer to the alleged August/Septemher 1965arrangement.
11. Before 1 come to that 1 repeat that the statement yesterday was con-
fined to the post-September 1965 period, which means that up to that time
not only the hilateral agreement but the Convention and the Transit Agree-
ment were in operation and that is really and legally the correct position. In
fact no other position could be adopted hy lndia because lndia herself, as
early as 1952, in respect of a very small sector, when certain flights were
diverted around the Khyher Pass, approached this very Council. 1 am refer-
ring ta the dispute hetween lndia and Pakistan of 1952. In 1952India herself
accepted the jurisdiction of the Council and lodged a complaint with the
Council charging Pakistan with acts violating Articles 5, 6 and 9 of the
Convention and with violation of the Transit Agreement. These are the
words-in fact 1 have lifted the paragraph bodily from the Application then
drawn up by India and filed here with this very body. lndia alleged in parti-
cular that Pakistan refused to permit Indian aircraft engaged in commercial
air services to fl,~~ver West~~akistan. When the disnute came before the
Counctl Pakistan adopttd a \cry .xniiructi\c .iniCO-operïtibeapprorch and
respoiided \,erv fdvourdbly ti>the rugge\ti,>ni>Ithe Council fur holdins nego-
tiations, and in pursuance of the ~ouncil's recommendations an amicable
settlement was reached. See Minutes of the Council, 18th Session, Document
7361 Cj858, 1953, pages 15-26 and also Report of the Council for 1952,
Document 7367 A7-P/I, pages 74 to 76, 1953.
12. Now this was the position in 1952 when lndia knocked at the door
of this body and lodged a complaint charging violation of various articles of
the Convention and the Transit Aareement. So, as 1 was submitting earlier,
whatever may be the position aft& ~e~tember 1965, which 1 will come to
presently, it remains beyond cavil or controversy that till September 1965
admittedlv-and in view of vesterdav.s o.rformance of the learned Counsel
himself the position now is incontrovertible-the relations between India and
Pakistan with reference ta overflight were governed by and under the Con-
vention and Transit Aareement as well as bv the Bilateral Agreement of 1948.
The question is "~asthat position been changed or altered or modified or
superseded by any other arrangement to the contrary?' My respectful answer210 ICA0 COUNCIL
will be "No" and that 1 will show throuah various factors. which must be
placed before you in their proper perspective.
13. All conflicts are unfortunate and more unfortunate in the case of de-
veloping countries. but sometimes thev are inevitable. Whatever mav be the
position, they did take place, and theiast armed conflict between lndia and
Pakistan, a war, took place in August and September 1965. Then the hostil-
ities ended. They must end-there was the Security Council, there were
various other efforts-and thanks to the good offices of the Government of
the USSR and its esteemed leaders, the President of Pakistan and the Prime
Minister of lndia met at Tashkent and the result was the Tashkent Declara-
lion. Now Clause VI of that Declaration, which was signed hy the then Pre-
sident of Pakistan and the Prime Minister of India at Tashkent on 10
January 1966, reads:
"The President of Pakistan and the Prime Minister of lndia have
agreed to consider measures towards the restoration of economic and
trade relations, communications as well as cultural exchanges between
Pakistan and India and to take measures to implement the existing
agreements between Pakistan and India."
This certainly was contemplated-"to consider mensures towards the resto-
ration of economic and trade relations, communications as well as cultural
exchanges between Pakistan and lndia and to take measures to implement
the existing agreements between Pakistan and India." 1will come to what was
contemplated and what was to be done, but the fact remains that it was
clearly declared, agreed to and decided that the existing agreements-inclu-
ding the Convention, the Transit Agreement and the Bilateral Agreement of
1948-were to be implemented.
14. Now yesterdav a lot of allegations were hurled against us. 1 will
come to the question of the so-called "package dealW,,but a variety of alle-
gations and insinuations were made against us, and it was said that owing to
Our conduct this clause could not be imolemented. 1. with resoect. submit
thar is10 the contrary. WChate sniaercd'ihe various ~llcgarions'in ou reply
to the preliminary objection. Iwill no1 trouble you rrith al1the parngrdphs,
1 will 0nl~ refelaione "araaraoh. hlv Icarncd friend hdd read oïraxr~~hs 32
to 36 ofihe preliminaiy ob'jeciion. fwillnot trouble you with'ourreplies; 1
am sure the honourable members of the Council will peruse them at the
right lime. But 1 would like to invite your attention to Our replies to para-
graphs 35 and 36. They are short ones and 1seek your indulgence to read
them. 1quote:
"Paragraph 35: The statement is incorrect and the factors introduced
therein are extraneous to the issue involved and therefore outside the
purview of the proceedings before the Council. Without prejudice to
the above, it is stated for record that in spite of the best efforts of Pakis-
tan, relations between the two countries have not improved becauseof
India's refusal to resolve the basic cause of tension between the two
countries, namely the Kashmir dispute, and its insistence to dictate its
own terms in relation to other issues. On the other hand Pakistan has
aludys bcen willing io seitle peacefullg al1 ouistanding disp~ies uiih
India ihrough the ïcceprcd international proccdurc of ncgstiïtit)n, mc-
diütion and arhitritiionIr hïs also pruposed ihc c~tdhlishmcnr ilfa dl-
eKccuririg iitachincry for the resolurion (311~tuist.inding disputer. hul
theGwernmcnt of India rejected ii. Thus the Go\ernnieni of Indiï fo11.; ownreason hasshown no intention to normalize relations with Pakistan.
Porogroph 36: The statement is misconceived and a misrepresentation
of facts and law. The existence of the so-called special agreement is
emphatically denied. II is a figmentn-inadvertently we said "fictionw-
"of imasination. As earlier stated. after the 1965 armed conflict. over-
Hights bèi\reen thc tuo countries uere resumcd in terms of Article VI of
thelashkent Dcclaration. which cïllcd upon the pariiey to implemcnt al1
existing agreements. The statements made in paragraphs 30 and 31
above are reiterated."
15. Now that is the other side. 1 am precluded by the oath of my former
office and by the Official Secrets Act to disclose the details, but the then
Foreign Minister of India-now again the Foreign Minister-Swaran Singh
and 1as the Foreien Minister of Pakistan at the time. as well as manv other
dignitaries and leaders, went into this exercise, and iiis known to both the
parties and, in fact. to a number of the esteemed members of this Council.
Ineed not trouble you with the various events. They speak for themselves.
After the Tashkent Declaration whatever could be done was done. Major
portions of the Water Treaty were implemented. Then with respect to the
dispute over the Rann of Kutch we went to a duly constituted tribunal and
through the process of adjudication we resolved the dispute. Many other
things were done, but the alleaation made yesterday was that Clause VI of
the ~ashkent Declaration wasa "package deal", which must be accepted as
a whole; you could not rely on a part of it, single out aviation and say that
the agreements were revived.
16. Now, as 1 said, whatever could be done was done, and wherever things
could be normalized or achieved between the two States they were normal-
ized or achieved. Telecommunications were revived and eventually over-
flights were revived, and the reason has been acknowledged by India itself in
its communication of 3 March, a note handed to our High Commissioner in
New Delhi. Copies are heing circulated and 1invite your attention to para-
graph 4 of this note, received after the hijacking incident:
"The Government of InJin uwh IO remind Covernmcni of Paki5tan
that after Indi,-l'akisianconllict of August/September 1965 they would
have heen well within their right to disallow the resumption of over-
flight so long as relations between lndia and Pakistan had not been
fully normalized. However, on a specific request made by the then
President of Pakistanthe Government of India aareed. in February 1966,
Io forgo thcir right Io demand prior ~elilement 07 outstanding ~ssuesand
consenied IO resume mutual ovcrflights. Such overllights hy scheduled
services of civil airlines of one country across the territory of another
are, as Government of Pakistan are aware, a matter of privilege."
That principle is well known to you, but the fact to which 1invite your atten-
tion is that the Covernmenr of India has stated here that they agreed, on a
specific request made by the then President of Pakistan. in February 1966to
forao their riaht to demand orior settlement of outstandina issues and con-
senïed to resuie mutual ove;flights. Yesterday it was said that you could not
isolate aviation, but India herself has acknowledged that this could be done.
We immediately responded to this note and in paragraph 2 of Our letter
dated 22 March 1971 we have stated:
"The Government of Pakistan notes with regret that the Government
of India has so far not agreed to withdraw its unjustified ban on flights flichts have not been mentioned. Secondlv vour sienal indicates that on
~athmandu-~acca route Our aircraft willbé required to fly via Calcutta.
Previously the route was Dhanbad-Dacca direct. Suggest necessary
amendments are effected to confirm with agreement. Pira. two-~our
schedules have been noted. All former routes ovcr Pakistan territory
as existed prior Io 1/8/65 will be available to IAC and All on a provi-
sional basis. This will be subject to review in case you are iinable to
restore all former routes and procedures."
Thus we are, on the administrative side, merely conveying to them that as far
as we are concerned, they can have on a provisional besis whatever routes
they were operating before 1August 1965; if they waiit to review these routes,
we are preparcd to review, but we are merely implementing the decisions of
the two Governments.
22. So overfli-hts were not restored ona ~rovisional basis or under a
so-cdlled >pcciaI regime. Thcy ucre rtjtored on the hast; of xhat wax sppli-
'able to the tu0 countrics before I Augusi 1965. as acknoulcdgcd by the
Prime Minister of Iiidia in hcr 1ctter.Thercforethe u~lioleargumentofxipecidl
rcgime Falls to the grvund heîause the bdris i; knockcd out b! rc:idin!: the
full ter1 3f the corre\pondence and cable,, and especiall) the ~ii.thoriiit.vt
letter of the Prime Minister of India. The signais were merely instructions in
the process of implementation and, with reference to one particular item,
routes, no1al1of which had been mentioned, we were remindingthem that we,
for Our pdrt, wcrc willing to makeavailable al1the routes in existence prior to
1 August 1965, but they could review and reconsider and lei us know. It wds
merely an administrative arrangement; nothing hinges on il.
23. Then reliance was placed on the notification from the Gozefte of India,
dated 6 September 1965, when the war between lndia and Pakistan was in
progress, issuing a directive under the Aircraft Act, and the so-called amend-
ment toit of IOFebruarv 1966.Thesenotificationsare in Annexure 3 to India's
preliminary objection. Now these notifications are their own, issued under
their own domestic legislation. They certainly cannot aiïect Pakistan. because
so far as Pakisian is-concerned. the ag-eement arrived at between lndia and
Pakistan was to resume overîiighfson the basis eristing on 1stAugust 1965.It
wassuggested that the iiights were with special permission. There was no such
thing :s special permission; 1 contest and repu-diate any such suggestion. AI1
that was done in practice was that each country filed Right scheduleswith the
other's aeronautical authorities. Nothing else, nothing else was done.
24. Therefore mv submission is that whalever was the oosition between
India and Pakistan ifter 1948 became the position from ~ebiuary 1966 by the
well-considered decision of the Governments of the two countries and there
was no special arrangement of a provisional character and no question of
any special permission. Therefore the Convention, the Transit Agreement and
the Bilaterdl Agreement were al1 in operation. That the Convention was in
operation is borne out by many other factors. 1 need not trouble you with
them at this stage, because when we go into the rnerits of the case we shall
go into greater detail. There were, in respect even of non-scheduled Rights,
overRying and landing in Pakistan and in India by each other's aircraft,
pilgrimage or what are called Haj flights, the flights of their dignitaries, Our
dignitaries, etc. Thesewere, of course, overflights. but apart from them various
0th obligations under the Convention and Transit Agreement were being
performed by India and Pakistan. 1 will refer to thai in a moment.
25. One point Imust mention here is ihis. 1 have shown that in fact there was no such thing as a special arrangement, agreement or régime. In any
case the Convention is auite clear. and the combined eiïect of Articles 82
and 83 is that there cannbt be any'special arrangement or agreement incon-
sistent with ttie Convention. You are well aware of the provisions embodied
in these Iwo Articles, but 1 will refer to them just to make clear the point
which 1 am canvassing before you.
"Article 82
The contracting States accept this Con\,ention as abrugating al1obli-
gations and understanding5 betueen theni which arc incon,isient u,ith
it terms and undertake not to enter into any such obligations and under-
standings."
The rest is not material. Then we go to Article 83:
"Subject to the provisions of the preceding Article, any contracting
State may make arrangements not inconsistent with the provisions of
this Convention. Any such arrangement shall be forthwith registered
with the Council, which shall make it public as soon as possible."
So firstly there is an undertaking not to make or incur any obligations and
understïndings which arc inco~sistent with the ierms of the Convention.
Secondly. arrangements noi inconsistent with it may hemade, but ihese arc
to be forihwiih rcci.;tered with the Council. which shall make them ~ublic as
soon as possible.-~herefore there could not have been any special régime
inconsistent with the Convention, the Convention being in operation.
26. Even customary international law is to the same effect. My learned
friend yesterday made the statement that the Vienna Convention recognized
certain principles of customary international law. 1 invoke another Article
of the same Vienna Convention, Article 30-"Application of successive
treaties relating to the same subject-matter". Clause 3 of this Article reads:
"When al1the parties to the earlier treaty are parties also to the later
treaty, but the earlier treaty is not terminated or suspended in operation
under Article 59, the earlier treaty applies only Io the extent that its
provisions are compatible with those of the later treaty."
The first Iwo treaties, namely the Convention and the Transit Agreement,
were neither terminated nor suspended, and there was nothing in them in-
compatible with any later agreement. In fact there was no later arrangement
except to this extent: that we revive the arrangements in existence on 1st
August1965.
27. Now 1 come to one or two illustrations. When we go to the merits we
shall give a number of others. As Io conduct, 1 will jus1 $ive an isolated in-
cident to show. 1need not burden you with details at this time. In the year
1969-that means after September 1965-an Indian aircraft met with an ac-
cident in East Pakistan. In accordance with the provisions of the Chicago
Convention, Pakistan investigated the accident. Invoking Annex 13 to the
Chicago Convention, India nominated a representative on the inquiry and
requested Pakistan to grant the necessary facilities to him and his advisers.
Pakistan, carrying out its obligations under the Convention and Annex 13,
aiïorded full facilities, which were acknowledged by the Prime Minister of
India herself in a letter dated 29 September 1969to the President of Pakistan,
and 1quote: "Thank you for your message of sympathy on the loss of lives
as the result of the crash of the Indian aircraft. We are grateful to the Pakistan
authorities for the assistance rendered by them in this regard." In the courseof the investigation, the Pakistan lnspector examined the air traficcontrollers
on dutv at Calcutta Airoort in order 10 ascertain whether the orovisions of
ICAO ~ocument 4444 had been complied with. The ~overnment of India
confirrned during the investigation that this document was being followed by
them. This amply shows that the conduct of India in relation to Pakistan
during the investigation of the accident was on the basis that both countries
were parties to the Chicago Convention of 1944 and were governed by that
C-~vention. which was in ooeration.
28. Mr. ~reiident and mémbers of the Council, at regular intervals the
learned Counsel yesterday expressed the apprehension of the Indian authori-
lies for the safetiand security of lndian planes over the territory of paristan,
just because of the unfortunate happening at Lahore. 1 need not talk about
Lahore: you know what happened in Seplember 1965: you know what the
reaction of the people of aho o reuld bei and you also know what the Gov-
ernment of Pakistan did in spite of that. It did al1it could, but that is a differ-
ent matter. So far as safety and security of the fliahts is concerned, we are
likewise interested in thai and we ceitainly couid no1 endanger planes,
whether they are theirs or ours or belong 10 the airlines of other countries.
Twenty-three international airlines have been flvina .ve- the territorv of
~akistin and ncit one of [hein has eben remotcl) suggrtrd ai,).lhii1ti the
contrary. And why should I talk only of ihuse 23 international airlines! Why
should I nui talk of India itsslî? lndia kas sei out in iir obirctions 3 ca>e of
so-callcd "confrontation" bciueen India and Pakisran--who is responrible
is ;idiiiereni matter-and aboui ihc two major conilicts between India dnd
Pakistan. namelv those of 1948 and 1965. Notwithsiandinn ihai atnios~hcre
-
of tension, conflict and confrontation, lndian airlines have been operating and
flying over the territory of Pakistan for 23 years. One isolated incident of
hijacking has taken place. So many hijackings have taken place in the las1two
years. and you have seen what has happened. You have seen how various
other States have had to act in various circurnstances. You know much better
than 1 the case of Leila Khaled, or whether particular hijackers were given a
particular ransom, whether cars were placed al their disposal, or whether they
were taken hy special plane frorn one place to another. Many factors have 10
be taken in10 consideration. but that does not mean that anv State. merely
because of an incident of that kind, can say "From tomorroW on this con-
vention will not apply." If that is how international conventions are 10 be
applied, 1need not tell you what willhappen.
29. Mr. President and members of the Council, to sum up on bath the
points, Our case is this. Because her case is that the Convention and Transit
Anreement have been terminated and are not in ooeration. India says that
diiputes can be classified in four categories-(1) disputes in'which questions
of interpretation are involved, (2) disputes in which questions of application
are involved. (3) disoutes concerninn action taken under an agreement. and
(4) disputes Con'cerningthe termination or suspension of an agreement: She
contends that only cases of interpretation and application can be brought
before this Council under the Convention. that onlv cases of interoretalion.
application and action under the agreement can be tkought under the ~ransit
Agreement, and that under no circumstances can cases of termination or
susoension be brouaht here. Yesterday. 1 oointed out to vou bv various
pre&dents that even though Article 3cof ihe Statute of the lnternational
Court of Justice speaks only oflegal disputes concerning the interpretation of
a treaty-the word "application" does no1 appear-any question of inter-
national law, the existence of any fact which if established would constitute a breach of an international obligation, and the nature or extent of reparation
to be made for the breach of an international obligation, in cases brougbt
before it involvine treaties or conventions in which reference is made onlv
to disagreements ;lating to interpretation or application, the Court has held
that the body empowered to entertain a disagreement relating to interpre-
tation or application certainly will be entitled~to adjudicate adisagreement
concerning termination or suspension, because termination and suspension
are part of interpretation and application. You have to determine whether the
treîly or conventii~n can be tcrminatrd or suspended and ihen you have to
decide ~i,hether il has becn termin3ted or su%pcnded, as iine party alleges.
bciause the other pdrty ha, not fulfillcd its obligations. Therefore. whichevrr
way you look 31 it.the Convention has not Io be construed in a narrow
rense. 1Idid doun as a tirri principlc that it has IO bc construed in a large and
liberal sense and that the expression "anv disaareement relatine toihe inter-
prer;ition and application of this ~onve~tion"is very wide. embracing dis-
pute, even in rcspcct of îlleged termination or suspension, becîusr one pxty
or one State. unilaterallv. uniustifiablv and without material breach. can sav
that the other party's action-was sufficient to justify its conduct and that it
bas terminated the agreement. Such unilateral termination on unjustifiable
. grounds certainly can be investigated, inquired into and adjudicated by this
body.
30. 1have explained that there was an express provision in the Convention
about termination and suspension. If there is an express provision, recourse
cannot be had to implied powers either under Article 60 of the Vienna
Convention or otherwise. Even when the right of recourse to implied powers
can be exercised. it is hedaed bv various conditions. It is not an unaualified
right-the doctrine of material breach and the possibility of acquiescénce,by
reason of conduct, if the continued validity of the treaty were invoked. 1
nointed out that India herself. while alleeina termination. aooroached this
~ouncil with respect to the bijacking incidentand reminded us of Ourobliga-
tions under the Convention. 1 cited the opinion of the International Court
of Justice in the recent case of South West Africa and 1 said that nothina
in it militated against what I.bave been submitting and discussing before th;
august Council. On the last point 1have explained my position that there was
no special régime; we are governed by the arrangements, agreements and
conventions which were in existence and in operation between India and
Pakistan on 1 August 1965.
31. Before 1conclude. Mr. Presiden~ ~ ~ members of t~e~Council. if con-
ventions areto be construed so narrowly in the manner India has suggested,
whereby a Contractina State can unilaterally say "1 do not like a particular
State and will not allow its aircraft to touch or-flv over mv territorv." then
thesc conventions urillbecome merrly paper convention\, Iiablc to be scrapped
by one or more of the Contractina St-teh at their whini and caprice and uill
be torn to pieces.
32. Mr. President and members of the Council, 1have sufficiently detained
you. 1 am not asking a poor litigant to come ta the Ritz Hotel. I am only
requesting India to come to ICAO, whose doors are open to al1Contracting
States, al1parties to the Convention, seeking justice. Thank you, Mr. Presi-
dent.
33. The President: Thank you. We shall now have a recess of 15 minutes
and then the Counsel for India may answer, if he wishes todo so.218 ICAO COUNCIL
34. The President: 1now eive the floor to the Chief Counsel for India,
35. Mr. Polkhivala: Mr. Frcstdent and honourable members, in replying to
the learned Counsel for I1aki.;tan,1shall confine myrelf to ihe main h-ghway~of
the case and not go into any sidepaths or bylanes.
36. My learned friend, and 1 do cal1him friend, first referred to the car-
dinal rule of interpretation. He said that when you construe an international
treatv vou must eive it a liheral interoretation. Mv answer is: there is al1the
diffecencein the world hetween giving ;liberal interiretation andgiving a mi&
interpretation. If the Statute talks of horses you may include wild horses.
~rgentinian horses, horses of the Rockies, lrish horses, English horses and
Arab horses, but you caonot include cows, and if this homely simile can bring
home to the honourable memhers the distinction between a liberal interpre-
tation aob a misconstruction, 1 shall have.made good my point.
37. The whole question at issue before the honourable members is "Are
YOU to confuse interpretation and a~olication of a treaty. both of which
presupposeand postiilate thecontinuederistence of the treaty, with the situa-
tion uhere the rreaty ha9 either come to an end hy termination orcome to an
end for the lime berng by suspension'?"This is the real question and bcfore 1
oroceed further. mav 1reauesj the honourable members-to bear in mind the
Lharp and clear'dist~nçtion green tuo questions. The first question is"lias
this <:ouncil thejurisdiction10 dcal with cases <ifsuspension or termination?"
The second and independent question would be "Did Lndiahiivejustification,
did India have good rcasons, for suspcnding or tcrminaiing?" If on thc first
quesiion the honourïble Council cornes to the conclusion thai it hao no
&risdiction to eo into a auestion of susnension or termination at all. the
second question cannot ligicidly arise. TO argue the two questions simul-
taneously would be to confuse the real question before the Council with a
auestion which is not before the ~ouncii. 1 have alreadv made clear in mv
ipening address that 1 am not fighting shy of the meri&, but, as 1 see it, i
would be wasting your time if1went into the justification for the termination
or susnension of the treatv as between India and Pakistan. hecause the real
questiin is"Can you goin~~this~uestionof termiiiation orsuspen~ion at ail?'
38. 1emphasize this very much because my learned friend referred to threc
judgments.~~do not know if they were again, in his words, "advisory opin-
ions", but to my mind if the International Court of Justice expresses an
opinion, it lays down the law and 1 cal1it in that sense a judgment. It judges
what the international law is. My learned friend referred to three decisions
of the International Court of Justice, each of which is miles away from the
real issue hefore you. In none of the three cases was the International Court
of Justice called upon to consider whether a tribunal whose jurisdiction is
confined to the interpretation or application of a treaty can go into the ques-
tion of termination or suspension. For the rest of my argument, allow me,
to Savetime, to use only the word "termination". Wherever 1 use "termina-
tion", the honourable memhers will take it that 1 mean "termination or
suspension". 1 shall try to economize on words and will only use "termina-
tion" hereafter.
39. The real question is "Has my learned friend been able to cite a single
case where any court, either a civil court or the International Court of Justice,
has held that the words "interoretation or a~vlication" embrace the concent
of "termination"? This is the real questioi.-~o Say that the international
Court went into the question whether thetermination of a treaty on the facts of
a given case wasjustified or not is to provenothing, because the International
Court of Justice undoubtedly had the jurisdiction to go into that question.The fact that the International Court of Justice can no into the suestion onlv
mcans that its jurisdiction is much wider than thclu;isdiction ofthe ~uuncii.
The most surprising part of my learned fricnd's argument was with reference
to Ariiclc 36 of the Statute of the Internaiional Court of Justice. uhich.
according 10 him, gave a narrower jurisdiction to the Intcrnationïl Court-
and )et the Intern~tional Court went into various questioiis of termin~tion!
That is whv. in the comoilation which we orcwdred and suhmitted 13stniaht
for circulaiion among the honourable members, we included Article 36'of
the Statute of the Court, so that the honourable members can judge for
themselves whether the jurisdiction of this Council is at al1CO-extensivewith
the jurisdiction of the International Court of Justice.
40. Since 1 am on this point, may 1 request you immediately to turn to
Article 36 of the Statute of the International Court and see whether anvone
can possibly equatc the words "any disagreement as 10 intcrprctdtion or
application" with the words in uhich jurisdiction ibconferrcd upon the Inicr-
national Court of Justice.
41. Clause 1 of Article 36 reads:
"The jurisdiction of the Court comprises al1 cases which the parties
refer to it and al1 matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force."
First of al1 yon will notice that al1 cases which parties refer to it can be
decided by the International Court of Justice. There is no limitation by
reference to application or interpretation. It does not say "al1 cases of appli-
cation or interpretation": it savs "al1cases". Suooose the words of Article 84
of the convention had &en ;'any disagreemeni between States" and the
matter had ended there, there is no douht that termination or suspension
would have been included because you might savthat it was a case of disagree-
ment betueen 1\10 nations. one of \r,hichs&d -YOU have urongly tcrmindred,"
while the other >aid"1 have rightly ierminatcd." The point is ihat a dihigrce-
ment that can go to this Council is not anv disanreement; it is any disagree-
mcni rciltting 16 intcrprctation or app~icatihn. ~n~~ltringcontrïs~to ~rtidc ~4
ol'the Ciinsention \ihich confers jurisdiction on thi, Couilcil, the firsi c1au.e
of Article 36 of the Statute of the Intcrnationïl Court of Justi~.c places no
limitation whateve~ ~n ~ts ~~.~sdi~ ~~n.~ All cases whi~ ~ ~e oarties refer to the
International Court can he decided hy the International court, as well as al1
matters specially provided for in the Charter of the United Nations or in
treaties or conventions. In other words, if, in the Charter of the United
Nations, there are any matters enumerated which can go to the International
Court, they will go, and under Article 36 of its Statute the International
Court will havejurisdiction to deal with them.
42. Look now at Clause 2 of the same Article 36.
"The States parties to the present Statute may at any time declare that
they recognize as comoulsorv io.. facr. and without special agreement,
in relation to any othér State accepting the same obligation, the juris-
diction of the Court in al1legal disputes concerning: (a) the interpreta-
tion of a treaty".
Now the word "interpretation" comes in. So the interpretation of a treaty can
be referred hy Darties to the treatv to the World Court and the World Court
will give its ophion. Look at (b),-which is very interesting: "any question of
international law".
The question whether, on the facts of a given case, a particular State has aright to terminale a treaty as aaainst another State is a auestion of inter-
national law. It can go tothe lsernational Court of ~ustice. It isexpressly
provided that any question of international law can go and, as the honour-
able members have already seen. in the South West Africa case the auestion . ~ ~
u,asone of international lin-whether a mandate or international trejty can
be terminated if it does not provide for termination. The World Cojrt rjve
its oninion-it can be terminated without a ~rovision for termination &the
mandate. in the treaty itself. Now thib is a question of interniitional Ixu. II
can go io the International Court of Justice. Can ir come bcforc this honour-
able Council! P.it Article 84 uf the Convention nd Article 36of the Statiir of
the Intern3tiunal Couri of J~sticc in juxtxposition. Can anyime reading thrm.
inany Ianguzge in which thcy happen tu be ïvliilahle. possibly zav that the
two 1imii.i of iurisdiction are the same! Therefore il is comiiletely beride the
point to cite ihree cases of the lnternational Court of ~ustice in which the
Court went in10 the question of whether the termination of a treaty was
justified or not. 1 have never disputed that the International Court of Justice
can go into the question whether termination of a treaty was rightful or not.
The real question is "Can the Council go into il?"
43. Look at Article 36 (2) (c) of the Statute-"the existence of any fact
which, ifestablished, would constitute a breach of an international ohliga-
tion". Now the World Court could decide whether South Africa had com-
mitted a breach of an internationaloblination and whether that fact had been
established. This is ivhat the World ~ourt is entitled 10 go into. Take (dl-
"the nature or citent of the reparation IO be msdc for the breach of an inter-
nlitional oblicdtioii". Then come Io this intercstiria Clause 6 of the saine
Article 36 ofthe Statute of the lnternational court-of Justice. Clause 6 of
Article 36 says: "In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the Court." ln
'
other words, if 1Sayto the lnternational Court of Justice "You have no juris-
diction.", the decision of the Court that is hasjurisdiction is final.
44. 1 have the highest regard for this Council, but Iwould be failing in my
duty if 1 did no1 point out what is so obvious and so elementary: that the
greatest respect for the Council cannot possibly make anyoneargue logically
that yourjurisdiction is co-extensive with the jurisdiction of the lnternational
Court of Justice. If theCouncil were 10say tomorrow"1 havejurisdiction in a
matter of termination", can you possibly imagine that decision becoming
final when Article 84 says that an appeal from the decision of the Council
shall lie to the lnternational Court of Justice?
45. Therefore my respectfil submission is that, beyond the shadow of a
doubt, there can be no comparison between what the International Court of
Justice can decide and what the Council can decide. In fact your functions are
quite different. They are no1 inferior; they may be as important; 1 think they
are as significant. They may even be more momentous. In fact your powers
are such that thev have to be exercised much more freouentlv than the nowers
of the lnternati~nal Court, and without meaning to flatter-you, 1 thiAk you
are doing more continuous good for international relations than the World
Court. which meets once in six months and takes un one casea vear. whereas
you deal with innumerable matters in the course of'a year. But ;ourfields are
different. This is not to say that this is an inferior body; this is no1 10say that
your functions are less important; but it is to say that the field in whiih you
operate, very important and enormously significant as if is for good inter-
national relations, is completely difîerent from the field in which jurisdiction
is exercised by the lnternational Court of Justice. 46 1shïll not deal ivih the nctii;il casesciied hy ni) le~rned friend hei.iiise,
quiie frÿnkly. ihe) have no appl~c.~iioniihiitever. Ai 1 h3t.c slrcady I,>Id )ou.
"one of them dealt with the real question you have to decide today. namely
whether "interpretation and application" includes "termination", and no
case kas been cited Io siipport the startling proposition that ifdoes.
47. Mv learned friend referred Io a book bv Mr. B. P. Sinha. II. aeain. savs
somethik which has no relevance to the quistion of whether the Councii's
iurisdiction. which is limited to questions of auplication and interpretation.
;an be extended to the case of termination. lnfact. as far as we.with Our
limited knowledge, are aware, this point is being argued here for the first lime.
Perhaps this is also the first lime it has arisen here, and 1am not aware that
an ooinion contrarv Io ours has been ex~ressed in anv textbook or in anv
authoritative In any event, even ika MI. sinhaor a Mr. Smith does
choose to say something, the honourable members can still decide for them-
selves what the correct view is after hearing al1the arguments.
48. Then my learned friend repeated the argument which he had set out
in the reply to India's preliminary objections, namely that as you have an
exoress orovision on termination in the Convention. this orovision overrides.
superseies, the rule of international law laid do& b; the World couri
repardine, the power Io terminale a treaty. 1had dealt with this point, basing
mi submissions expressly on the articles of the convention-&hich submis-
sions have no1 been answered-but since my learned friend has repeated his
argument, may 1request you once again to look at the articles and seewhether
a single one of them deals with the question of termination of the treaty by
one State as against another for a breach of contract by that other State. If an
article dealt with this question of the limits upon the right of a State Io
terminate a treatv when another State commits a breach. 1 could understand
the argument that there was a provision, but you cannot refer to provisions
which have nothing Io do with this right of termination on the ground of
breach bv another sate. but have a bearine on comoletelv differentcoiiceuts.
totally different situati&s, that have noconnecti~n wkh this questio; of
breach by one State and resulting termination of the treaty by another State.
49. ~ook once again at Article 89-War and Emergency Conditions. In
fact it is very interesting why that provision was included, and ils effect is
exactly the contrary of what Pakistan would have you believe. This is a most
interestine ~rovision and after readine it aeain 1 would like vou to consider
-. -
theargumeni I :in1siibm.iiing for yoiir ac;epimiednd sceu hethcr thcre ir ;tny
fla\i in it31dl. If) OU Iouk ït ArI~cle 89 ciitlic Coiii,entioii )ou find rtic \iorJs
are these: "ln case of war. the orovisions of this Convention shall no1 affect
ihe frecdoni of aci.c>n<if:iii) ,of the coiiirdci;ng S~.~i..." \Vhxt 1.ihc rcsult
ofihi\ ,\riiclc #Y"-thït ifiliere i;tadr. )oii Ju iiot dri\e3 Sixte ICIicriiiinïte
or suspend the Convention. The Convention itself gives the State freedom of
action. In other words, this clause obviates the necessity of terminating or
suspending the Convention in lime of war, because the Convention. by its
own force. by ifs own vigoiir, by ifs own terms, confers the right to freedom of
action within the Convention.This hasnothing to do withtheright Io suspend,
the right to terminale. which is deltors the treaty, as the International Court
said. This Article merely tells States that the Convention itself eives them free-
dom of action. So if a tat tes questioned about not allowing ifs enemies to
overfly while war is going on, it can say that it does no1 have Io declare the
Convention terminated, because the Convention itself gives it complete
freedom of actioii.
50. 1 do not see how you can fail to accept this construction, which is Council. You will recall in this connection the resolution of the Assembly to
which 1 referred and to which there has been no re~lv-a resolution which
expressly says that originally the Council was invésied with much wider
powers, but its powers were limited when the Convention was finally agr~ed -
upon.
60. My learned friend referred to the fact that after the hijacking incident,
India approached the ICAO Council and therefore can be deerned to have
acquiesced in the continuance of the treaty. You have only to read the letter
he cited to be satisfied that it says nothing of the kind. You will kindly note
what are the functions of the Council. They are not merely fo deal with
disagreements under Article 84. In fact lndia never approached the Council
with an application under Article 84. She approached the Council as the
keeper of the conscience of the worldsofar assafetv in international aviationis
conierned. If 3 Siale \la\no1 3 party 10 the Convention. we could still come to
IC,\O and \ay "This is the d~i.~itrousconsequence of this pïrricular State's
attitude to hijacking; please see that appropriate steps are taken." In fact it
is most important to note that in this very letter, which is addressed to the
President of the Coucil, we refer to the Tokyo Convention of 1963 and the
HagueConvention of 1970regarding hijacking and neither lndia nor Pakistan
is a party to either of these Conventions. Now if my learned friend is right in
his argument that if 1 make application to ICAO it can only be on the basis
that the Convention is in operation between the Iwo of us, hy the same token
it must follow that if 1refer ta theTokyo Convention or the Hague Conven-
tion 1 want the Council to hold that bath lndia and Pakistan are parties to
those two Conventions. We are not. India and Pakistan never have been
parties to either the Tokyo Convention or the Hague Convention, and yet
bath Conventions are referred to in this letter. Why?-because under Article
54 (n) and Article 55 (e) of the Convention, the Council of ICAO bas power
to deal with various matters not connected with a breach of the Convention
by a party to if.
61. Article 54 (Mandatorv Functions of the Council) savs. . Clause In) . .
thxi the Counc~l\hall "consider ïny maiier relaring ta ihc Convention uhich
any Coniracting Stste refers io il".Nom ihe Convention dealj trith siifety in
international aviation. If a State tomorrow were to eive harbour and comfort
to a criminal who had hijacked an Indian plane. andif that State were not a
party to this Convention. we would still approach ICAOand say "You are the
monitor of good relations in internationil-aviation. Will you kindly use your
good offices and see that the right thing is done." In other words this has
nothing to do with the Convention heing in operation between India and
Pakistan. What it has to do with are the wider powers of the Council to see
toit that the standards of safety in international civil aviation are safeguarded,
and the Council would be entitled to say to a State which is not a party to the
Tokyo Convention "Why do not you do the right thing? This is the honour-
able, the moral, thing to do." The Council may address a letter ta a State. In
fact you will remember that both Pikistan and lndia are still parties to the
Convention, although it is not in operation between the two of them. Can the
President of the Council not tell a State which is a party to the Convention:
"You are a member of ICAO; yoti are a party to the Convention; may 1
request you to look at the moral side of it;you cannot treat a neighbouring
State in this mariner." 1Say that the Council has not only the power but the
right and the duty to say sa, even though the Convention may not be in
operation between the wrongdoing State and the State whose aircraft has
been hijacked. overfly Pakistan and nothing happens to them. May 1say that more than 23
airlines overflv India and nothine hanoens to them. If there is a oosture of
hostility betwéen two countries, 71 is'srelevant to say that each Of them is
friendly with 25 other countries. The auestion is not how many friends
~akistan has or how many friends 1ndia bas. If that were the question 1
could Say, as 1 have said already, that many airlines overfly India. We permit
everyone to overfly. Why should we object oiily to Pakistan? Are we out of
Our minds? There must be some reason for Our objection, because normally
we do not adopt this attitude to other States.
67. MYlearned friend referred to the iudement of theWorld Courtand toa
passage in the dissenting opinion of ~udge Sir Gerald Fitrrnaurice. The use
made of thejudgment by thetwo parties is rather curious. 1quote paragraphs,
whole oaragraohs, from the owrative Dart of the iudgment of the Court.
<thcirel'ic,i-de~;\rd.;no Icss a'pcrso~, than Sir Muhaniniad 7ïlrull.ih Khan,
rcprcn.11 i n Il 4the operati\e pirt of Ilijudglllent uhish I qui>Ie,
the psri iilicrc the inleriidtlon~l13,~ 1,Idid ~10\111\.!y Iearned irtend in reply
q1131<\(r;>nl lhc dswnting 0pini.in of Jud&c Sir Cierÿld I;it~m:iiiiice dnd 3
iooinotc id 1h:ii di>,cnt.iig opini<>n.Whxi he rcad ir the fi)aitnote io the dii-
senriiia opinion of onc Judgï So\i uhat i$ the Iau, I~id dci\rn hv rlir Iniïr-
national court? The laa. isrhe law laid down by the majority. YOU cannot
possibly say that a footnote to a minority opinion is the law laid down by
the World Court. Even in this footnote the Judge rnerely says "1 make a dis-
tinction between terminating a contract and putting an end to it." The words
are "Note the intentional use of the phrase 'treating it as terminated' and not
'outtina an end to it'. There is an irnoortant conceotual difference." But 1am
"ot onthe conceptual difference befween terminaiing and putting an end. 1
am on the simple, massive, clear-cut point laid down in themajorityjudgment
of the World Court, namely, that every State has a right to terminate an inter-
national treaty if there is a breach by another State and this right is in inter-
national law outside the treaty.
68. Then my learned friend referred to the judgment of Mr. Justice Dillard
on pages 167 and 168. Frankly 1am unable to see anything in that judgment
which has any bearing on what you have to consider. You will get these
.ara~-.ohs in the verbatim notes and 1think 1would be wastine vour t.m. if 1
rcad iheni ag~in. 'Tlicrc iin<irctitenie, no proposition, no priiiciple. 1x.ddoirn
in the\c pas<age\ oii pjge\ 107 .ii1,168 n hi~h iIiro\iian, liahi on ilie quc>tion
you have to conside;, nirnely, whether India has theright under international
law to terminate the treaty and if there is such a right, is termination anda
case of termination covered at al1 by the words "interpretation and applica-
tion".
69. My learned friend referred to paragraph IO3 on page 49. To do no
injustice to the argument of Pakistan, we ourselves, in thecompilation we have
produced, have deliberatelyincluded this paragraph, which my learned friend
referred to in his opening remarks yesterday. It does not say anything con-
trary to what 1have alreadysaid. 1will not read any of the other passages, but,
if 1 may, 1 will read it 10 show how the real point is not faced and grappled
with. You are referred to some paragraphs here andthere which do not deal
with thereal question before the Council today.
70. What is this paragraph 103 which my learned friend wanted Io read?
It is this:
"The Court 1sunable to appreciate the view that the General Assembly
acted unilaterally as party and judge in its own cause. In the 1966 Judgment in the South West Africa casesreferred to ahove, ilwas found
that the function 10cal1 for the due execution of the relevant provisions
of the mandate instruments a..rtained to the Leaaue actina as an
entity ihrough ifs npprupriîie organs. The right of thé ~caguc.-'in the
pursuit of ri collective, institutionactrvit), to rcquire the due perfor.
mance of the Mandate in discharge of the "sacred trust"' was specifi-
cally recognized. Having regard to this finding, the United Nations as a
successor to the League, acting through ils competent organs, mus1 be
seen above al1 as the supervisory institution,competent to pronounce,
in that capacity, on the conduct of the mandatory with respect to ils
international obligations, and competent to act accordingly."
All it says is that the United Nations has a right to say whether a nation which
is given the power of mandatory kas abused that power. 1 am unable to see
what bearing this paragraph has on this case, whereas you will recall that the
paragraph I cited had an immediate and significant bearing on what you
have to decide.
71. 1 have finished with my learned friend's argument on the first ground,
the first preliminary objection. May 1come to his argument on the second
ground, the special régime. At the heginning my learnedfriend said that in the
pleading 1 made 1 talked of the existence of a special régimeright from 1948.
Again, 1 am sorry that your time should be wasted on reading something
which is ohvious beyond the shadow of a doubt. but since the point is raised
1 have to answer it. khat wz said was that the agreement reached in 1966,
after the war, is the special régime by reference to which we say that today
the Conventionand the'ïransit Aareement are not in operation. Tt is true that
there are two cases made in the-preliminary objections. The first was that
even in 1948there was a special agreement between the two States-the bilat-
eral agreement. Therefore only the special one prevailed, no1 the general one
like the Convention or the Transit Agreement. The second case is that, in
any event, after 1966 there was a special régime, and where we have referred
to "Soecial Réaime" we have ex~re.~.v said that the words mean the asree-
ment ;eached in 1966.Youwill find that set oui in par~grdph 34of the prelim-
inary objections of India. If 1 niay rcad thüt paragraph: "On the hssis of the
aforesaid understandine--that is the understandin; reached in 1966-"the
overflighis of Pakisian and Indian aircraft acrosi each other's ierrirory nere
resumed wiih elfcci from Fcbrunry 10. 1966. The îforesaid understanding is
hereîfter referrcd Io as 'the Specixl Agrcenieni of IY66'." Then ne go on Io
sas, in p~ragraph 38. "Thc Spccial Agreement of 1966 hai governed the
righis and privileges of1ndi.i and I'akiitan-regardingair trans:i and oserflying
from February 1966until February 1971."
72. 1 do not went to waste your time going into things prior to 1966
because 1966is good enough for my purpose and if 1 were to take you into the
earlier ~eriod.1would be do i-^somethine-which woold be a work of surierer-
ogation, something unnecessary. If a shorter point is enough 10 dispose of
the rnatter,1 do not propose ta go into a larger issiie, a inore controversial
area, which really is not necessari for a decision in the case.Therefor1have
advisedly confined myself to the events of 1966 as the starting point of the
special régimebetweenthe two countries and say nothing one way or the other
as regards the period 1948-1966. This is to save your time and 1 do no1 see
what is the point of the criticism here.
73. Next my learned friend referred to the Tashkent Declarafion. Frankly,
ifanything, il shows the bona Rdesof India. We said "Plrase let usimplement the Tashkent Declaration in full." What did this Declaration Say?It said
"Let al1 the seized eoods be resto~~d: let normal trade be restored: let th,re~ ~ ~ ~ ~ ~
be conimiinications beiwecn the twocountr~es: lei train> run t'rum ilnecountry
to the oiher; lei aircr~fi ro from ilne coiintry icithe othcr-P;ikiitan's xirlines
andour own." This is the Tashkent ~eclaration. We said "We are willing."
and 1have given you examples and dates. In his reply, my learned friend said
Pakistan has been always willing, always ready, etc. As againsl his general
statement that Pakistan is always willing and always ready, 1 have given you
specificexamples with dates; that on such and such a date we said "We release
al1 the goods of Pakistan.". but Pakistan would not release our aoods. We
agreed ;O release al1the conliscated materials except military contraband but
Pakistan would not reciprocate. We said "Let us open the doors to trade
between the two countries: let us trade with each other." Pakistan said
"No". We said "Let us have cultural exchanges; let newspapers go from one
country to another." Pakistan said "No". These specific facts are not disputed,
but in re~l~ Pakistan savs "1 have beenacting extremelv reasonably. extremelv
irell. etc.". It is for thchonoiirable mcmherï 10 çon\ider nhetlie;they are th
be gu:Jcd by gener.11stiteinents of goodnill or intliienced hy particul.lr \pe-
cific examples of what each countrv has done-not that this is relevant be-
causeit, again, has a bearing on thej&ification for the termination. Therefore
1 am not asking you to go into it. 1 myself referred to it, but 1 thought 1said
more than once that 1 was doine so onlv to show Our bonafides. so that the
-
honourÿble membcrs niay not feel ihai India 1i.i. dùne .\imeihin~. ii,roiig and
is trying 10 take refiige hehind the plea oi prcliniindry jurisiliciii)nJ.ist Io
prove Our bonafides, 1 referred to these facts, after making it clear that they
really do not arise for a decision at the hands of the Council.
74. Now what Article VI of the Tashkent Declaration, which my learned
friend read. savs is this-and look at the carefullv drafted words-"The
Prime ~inisterof 1ndia and the President of ~akista~have agreed to consider
measures towards restoration of economic and trade relations." We have
ae-eed "to consider measures" for restoration of trade and normal communi-
cations. Of course we agreed and we suggested concrete measures which
Pakistan rejected. How can you say that from this it follows that the Conven-
tion and the Transit Agreement were restored between the twocountries? How
can it be?They could iave been restored if the two countries had fulfilled the
Tashkent Declaration, but they did not. Assume the blame is India's, assume
Pakistan is 100 ver cent. innocent. t.e fact remains that owine tomv-cussed-
ners let me put 11ihiit uay-ihe Tiishkeni Decl:ir:iiii>n w3<ncver iriiplenien-
tcd, hui hou can )ou from ihat caincliide thxt the Transit Agreenieni :ind the
Convention between the two countries, which existed prior to 1966, had been
restored? You do not arrive at the right conclusion hy apportioning hlame
between the two States or saying "This country is more to blame than the
other." You reach vour correct conclusion ~n~the auestion of iurisdiction bv
referencc to the 5iixiple point ih;ii u hocber is to bllnie, the Cict reniains ihat
for jome re:ison. gi~odair hiid. there hÿs bcen icrmin~iion uflhesc ruci trcaties
as between the two States
75. Then my learned friend referred to the Indian Note to Pakistan of the
4th of March 1971.Heread paragra~h 4: "The Government of India wish to
remind Government of Pakistanthat after IndolPakistan conflict of Aueustl
Septcriiber 1965ihey uoiil~i ha\e hcçriuell \rithin their righis 1.)disallo\\: ihe
resumption of o\erflicht sd long 3s relations beiu,eeii Indix and Ib;ikisian had
not been fully normaÏired. ~owever, on a specific request made by the then
President of Pakistan, the Government of India agreed, in February 1966, toforego their rinht to demand orior settlement of outstandinn issuesand consen-
ted 6resume~titual overfli&ts."Then my learned friend Lys that lndia says
that theTashkent Declaration was a package deal and mus1becarried out on the
basis that al1normal relations mustbe restored. This does not go against what
1am saying at all. On the contrary, it gives further support to my case. What
does India say? India says "Afier the Tashkent Declaration, which w,as a
package deal, we had to restore al1 normal relations. You did not do it and
so 1 was entitled to say that even overflying cannot be resumed. Yet. as a
gesture of goodwill towards you, 1 permitted overflying." Pakistan is much
more worried about overflying than we are. That is why it. not India. is the
Plaintiff and the Applicant. Lack of overflying hurt Pakistan; itdid not hurt
India. Although the Tashkent Declaration was a package deal. we said "Al1
ri~ht. as a gesi~rcofgooduill IO)ou. me \\IIIpcrmit )'oIO o\crn). cwn though
sou do no1 rcilorc nornral relations as )ou haie agrreJ 1,do undcr the lash.
kent Declaration." Does this orove mv bonafides or is it a point aaainst me?
76. The second document'my learned friend has referied to-the letter
dated 5 February 1966 from the Prime Minister of lndia to the President of
Pakistan-sass: "Our Foreign Minister and Defence Minister. on their return
from ~ashkcn1."-this -,as &er thc.lashkcnt Declaration hïrl bcen stgned on
ihc 10thoflanuary 1966-"informed usofyourdc~ireforihcre c\uniyiicin
of oierflichts of Paki\lani and Indisn nlaner aiross ach uiher's tcrr.iors. We
had thoight that this matter would' be settled at a meeting betweeh the
Ministers of both countries within a few days, along with other problems
connected with the restoration ofcommunications."-"along with other prob-
lems connected with the restoration of communications" hecause formerly
trains went from one country to the other, ships went, etc., but al1 that had
been stopped, so we said "Restore al1communications and have your over-
flying also"-"As it appears that such a meeting might take some time, we
would be agreeble to an immediate resumption of overflights across each
other's territory on thesame basis as thal prior to 1965."
77. Now you will recall that prior to 1965 Pakistani aircraft could land in
India and take on passengers-1 myself went as a passenger from Bombay to
Karachi on a Pakistani aircraft-and lndian aircraft could do the same in
Pakistan. We wanted the restoration and said we were keen on it, but Pakistan
for some reason that we say amounted to a fault on their part-they say there
was no fault-would not have it. What does it orove? How do vou conclude
.
from such a letter that normal relations, and thirefore the Transit Agreement
and the Convention. have been restored between thetwocountries?They have
not been, because the fact remains that even for non-traffic purposes Pakistani
aircraft cannot stop in India. whereas under the Convention and the Transit
Agreement they havea clear right to stop for non-traffic purposes. They could
not and did not stop after 1965.So what was the good of referring to aletter?
What is the real question before you? The real question before you is "Was
the Convention, was the Transit Agreeinent, brought into operation between
the two countries?'if it was not-and the oractice shows conclusivelv that it
was not-the overflying had to be with O& Government's That
is what our notification said and it is the law of India. Evenfor non-trafic pur-
poses-leave aside traffic purposes-Pakistan aircraft could not land in lndia.
78. Then what is the good of saying that the Convention and theTransit
Agreement have been restored? They cannot he restored by this letter. This
letter is only a token of India's goodwill-a gesture to show her willingness
10 co-operate with Pakistan in the restoration of normal relations. Can
anyone argue that an expression of a desire to restore normal relations be- tuccn two co~nrr~csmçans that in practice and in law the Convention and
thc Transit Agrccment have come hask into operation? This desire was ncvcr
fullilled: that is the real point. The hope cxprci\ed by the Prime Minisier of
India. uhich hcarseloqucnt tcstimon) to thc goodwill of India and it.gen~ine
desirc 10 restorc normal relations. uas ncver reali7cd. Thcreforc this letter
is no evidence whatever of the suhmission made hv Pakistan that the Con-
vention and the Transit Agreement came back into effect hetween the two
countries. You find Madame Indira Gandhi saying in the second paragraph
"1 very much hope that in hoth Our countries emphasis will he placed on the
positive aspects of the Tashkent Declaration, such as early normalization of
relations and the initiation of various processes of co-operation hetween our
two countries in mutuallv heneficial fields." Therefore. Mr. President and
honourdhle membcrs. dlihciugh ihis Icticr ha\ no bedring <inthe real issue you
have to decide, it ilucky for me thdt iiha$ heen produced here It is cvidcnce
of India's genuine desire, hona fide genuine desire, to restore normal relations,
which desire remains unfulfilled to this day.
79. Then my learned friend read the signals starting on page 27. 1 will
no1read them aeain. but 1am unable to seewbat oint he was trvine. to make
against my argument. What was my argument?-that the signalséxpressly say
that the aircraft are tofly over each other's territory on a provisional basis.
"Provisional" is the word used by Pakistan; "provisional"~is the word used
by India. The signals expressly say that overflights are on the basis of recipro-
city and they are followed hy the notification of the Indian Government
saying "With the permission of the Government of India you can overfly,
not otherwise". These signals, saying that overflights are provisional, are on
the hasis of reciprovity, and require the Government's permission, conclu-
sive. .orove that the Convention and the Transit Aeree-ent have no1 come
back into operation, because every one of these conditions is inconsistent
with the Convention and the Transit Agreement. If the Convention and the
Transit Agreement are in operation, overflights cannot he provisional. If they
are in operation you do not need an express provision for reciprocity. If they
are in operation you do not need the Government of India's permission for
overflvine and vou have a rieht to make non-traffic sto~s in India. which vou
cann;t di and-have no1 done since 1965. How can the signals thereforé he
read to mean that the Convention and the Transit Agreement were restored
as between the two countries?
80. My learned friend read Articles 82 and 83 of the Convention and said
that under Article 82 no two States which are signatories to the Convention
can have an agreement inconsistent with the Convention. 1completely agree.
1 accept his argument and say-this is my whole point-that if we have a
'special rbgime which is inconsistent with the Convention because under it
overflights require the Government of India's permission, are provisional and
on a basis of reciprocity, it is precisely because the Convention is no1 in
operation. If it was in operation we could never have such a special régime.
Articles 82 and 83 1 should have auoted. not mv learned friend. hecause thev
conclusi\cly cstlibli,h that no natibn can have ah agreement inconsistent with
the Convcniion, and if you dohaie such an agreement iian only be t.cc;liise
vou do not reeard the convention as in ooeÏation hetween vourself and the
other Party. ~herefore these Articles, far fiom supporting mi learned friend,
give great support and weight to the point 1have made-that the Convention
has no1heen~inoneration between the twocountries since 196511966,and that
in precisely why an agreement inconsistent with it could be entered into, as
was done in 1966. MEMORIAL OF INDIA 233
or politics between two countries. It has nothing todo with military hostilities
or their aftermath. After military hostilities, human memories being what
they are, unfortunately counlries which ought to be very friendly happen not
to be friendly. There may be a thawing of the ice some time later. Enemies
become friends, friends hecome enemies, but whatever the changes in the
international picture may be, this Council will not take up its brush and try
to paint a part of this picture; it leaves it severely alone. This Council is above
the arena of political and military conflict and 1want it to remain so. On my
construction, this Council will not soi1 its hands by siding with one State
against another, saying "You hijacked; you, Pakistan, gave harhour to two
hijackers; if you had given it to 12, lndia would have been right.", or tell
lndia "Well, this was suficient for you to terminate." No. This Council is
above al1that. What 1have called the filth and the squalor-"squalor" is the
right word-of military hostilities and their aftermath, the political con-
frontations, al1these are to be avoided by the Council, and on my respectful
construction of the Convention, the honourahle members will continue doing
their excellent work without being involved in issues which, with the greatest
respect, they arenot called upon ta decide, and, if 1may say so, again with the
greatest resDect, which they are oerhaosnot aualified tu decide in the sense
Ïhat ).OUhave tu takeevid&e a; the Wairld court doe,, consider questions of
international Iaw, etc. TO ask it tu dccirle such issue5 u,ould he putting an
undue hurdcn. an undue strmn. on theCouncil. This is >hat I won1ihc Coun-
cil to adopt ai the right constr"ction.
85. What is my learned friend's construction? His construction cornes to
this: two natidns quarrel; there may he a tremendous political confrontation;
there may be border incidents; there may be firing across the border; one
State tells the other"No overflying", and then this Council has to decide who
is right and who is wrong. How can it do it? All my learned friend says is
"Cive one year's notice." So while the firing goes on across the border the
weak nation, the submissive, quiet nation, must permit the wrongdoer to
keep on overflying because it has to give one year's notice of denunciation.
.After one year, ifs denunciation will come into effect. The Council in the
meantime will decide. What will it decide? How will it decide, on what basis
will itdecide, how will it be qualified to decide and under which Article will
it decide whether the termination of the agreement was wrongful or not?
86. 1 leave it to you, Mr. President and honourahle members, to consider
which of the two constructions aone.l. to vou as the one best calculated to
proniotcthc interests oiinternliti~nal civil avixritin. WiIIytiu he prumoting the
ohjecrives of the Conieniiun by gettiiig inIo this pi)lilicïl XCnd .ilid 1r)ing
to decide between two sides which are enemies or threaten to be enemies?
Or will you he above al1thal and Say "This is not a matter that is within my
jurisdiction. 1 have nothing to do with your dirty quarrels. 1 am above al1
that. My objective is only to see that international civil aviation is promoted.
If you two quarrel, it is your aîïair; sort it out as you like"? 1say that my
construction will give the greatest possible fillip and the greatest possible
incentive to the ~romotion of the cause which underlies the Convention and
the Tr.in,ii Agreement, and thrrefore, fdr from puttinp a narrow construction
<inrhcm, 1am tryinp IO put ilcun,truciion trhich uiII redound to the c.12d.tof
the Council and keep it the respected, non-partisan body, above politics and
military hostilities, that it has been so far. Thank you very much, Mr. Presi-
dent. . .
87. ThePresident: Weshall nowhave thelunch break and return at 2.30. (d) COUNCIL-SEVENTY-FOURTH SESSION
Minuresof theFgth Meeting '
(The Council Chamber, Wednesday, 28 July 1971,at 1500hours)
President of the Council: Mr. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary General
Presenr:
Argentina Com. R. Temporini
Australia Dr. K. N. E. Bradfield
Belgium Mr. A. X. Pirson
Brazil Col. C. Pavan
Canada Mr. J. E. Cole (Alt.)
Colombia Major R. Chany
Congo (People's Republic 00 Mr. F. X. Ollassa
Czechoslovak Socialist Republic Mr. 2.Svoboda
Federal Republic of Germany Mr. H. S. Mamisch (Alt.)
France Mr. M. Agesilas
india Mr. Y. R. Malhotra
Indonesia Mr. Kamo Barkah
Italy Dr. A. Cucci
Japan Mr. H. Yamaguchi
Mexico Mr. S. Alvear Lope2 (Alt.)
Nigeria Mr. E.A. Olaniyan
Nonvay Mr. B. Grinde
Senegal Mr. Y. Diallo
Spain Lf. Col. J. lzquierdo
Tunisia Mr. A. El Hicheri
Uganda Mr. M. H. Mugizi (Ait.)
Union of Soviet Socialist Republics Mr. A. F. Borisov
United Arab Republic Mr. H. K. El Meleigy
United Kingdom A/V/M J. B. Russell
United States Mr. C. F. Butler
Also presenr:
Dr. J. Machado (Alt.) Brazil
Mr. L. S. Clark (Alt.) Canada
Mr. B. S. Gidwani (Alt.) India
Mr. M. Garcia Benito (Alt.) Soain
Mr. N. V. Lindemere (Àlt.) U.K.
Mr. F. K. Willis (Alt.) U.S.
Mr. N. A. Palkhivala (Chief Counsel) India
Mr. Y. S. Chitale (~o"nsel) India
Mr. 1.R. Menon (Assistant Counsel) Jndia
Mr. S. S. Pirzada (Chief Counsel) Pakistan
Mr. K. M. H. Darabu (Assistant Counsel) Pakistan
' Reproduced frem ICA0 Doc. 8956 C/1001,C/min. LXXIV/S(Closed). Mr. A. A. Khan (Ohs.)
Pakistan
Mr. H. Rashid (Obs.) Pakistan
Mr. Magsood Khan (Ohs.) Pakistan
H.E. A. B. Bhadkamkar (Agent) India
H.E. M. S. Shaikh (Agent) Pakistan
Secretariaf:
Dr. G. F. Fitzgerald Sr. Legal Officer
MI. D. S. Bhatti Legal Officer
Miss M. Bridge CS0
SUBIEÇTS DISCUSSED AND ACTION TAKEN
Suhject No. 26: Settlement of Disputes hetween Contracting States
'Pakistan versusIndia-Suspension by India of FIights of Pakisfani
Aircraft over Indian Territory
1. The meeting opened with the reply of the Chief Counsel for Pakistan,
Mr. Pirzada, to the comments made hy the Chief Counsel for India at the
previous meeting. Denying the imputation that he was guilty of misinterpre-
tation in maintainine that "disaereements relatine to the internretation or ao-
pli~aiion of thii <'onvcni~i>n"included Ji~<igrccnirntsrelating to ierniination or
su5pcnsion, he cited ihc 1927judmcni of the Perniancni Court of Interntrional
Justice in the Chorzbw ~acrorvcase. the summine UV of Mr. Justice Lord
Wright in the Heymon v. ~arbin case consideredby'the Houseof Lords in
1942,and thejudment of the International Court of Justice in December 1962
on the revocation of the South African Mandate~ ~ ~ ~ ~th~West Africa. In
the first case the Court had held that differences relating to reparations which
might be due hy reason of failure to comply with a convention were differences
relating to a~olication. which was a wideand elastic term: in the second the
Chief Justicéhad declared that a dispute as to whether a breach of contract
by one party had operated to discharge the other or whether the contract had
been frustrated was a disoute arisinr -ut of the c~~tract: in the third the Court
haLiriilc,l thsi the Ji.pute came uithin the cxprchrion "di,p~tc relatin~ Io the
1nicrprclti.m or nppli~ttion of the pruvi\ii>nï ,>f the inanhie" in Arti~le 7
of the Mandate,
2. He answered the objection that his reference ta paragraph 1of Article 60
of the Vienna Convention on the Law of Treaties was irrelevant hy painting
out that under paragraph 2 there was the same limitation of the right of ter-
mination or suspension-the hreach must be a material-breach and it could be
invoked only as a ground for suspending the operation of the treaty. He expres-
sed surprise that the letter from the Prime Minister of India to the President
of Pakistan was not considered hy the Chief Counsel for India to support
Pakistan's case that there was no special régime governing overilights, that
they had heen restored on the same basis as before 1Auaust 1965.He uointed
Oui thai the pr<>viri,>no, f Ariiclc 95 ,,ftlie C'oni.cnti$>n\,\haie appllGItiiin in
the prcrenr ?die the Indilin Cound found ridic.iloiic. uerc rew.itcd in the
bilsieral agreeiiiciitof 19.38 het$iccn India and Pskistlin aiid iugecsied ihat
ublig~iion, cntrrcd iIit,iwiih eycs ,)peri iii.ist he htin~iiired. HL!eniph~bireù
thhi ituas ndt iinusual foi bi><liciIike the ('<iiin;iltohe zniru\tcd wiih jiidlcial
or quasi-judicial functions and that there were rules laying down procedures
for the discharge of these functions. He also assured the Council that Pakistancertainly had no intention of raising any political questions; its concern was
only with its legal rights. Finally, Mr. Pirzada stressed the importance of the
issue before the Council and the far-reachina conseauences of the decision to
be taken on Indis's challenge to its jurisdicfion. ~his was not just an Indo-
Pakistan afair. India's arbitrary, illegal and discriminatory action in baming
overfliahts was a threat to the safe and orderly deveio~ment of international
-
civil aviation.
3. Mr. Palkhivala rejoined that the 1962 judgment of the International
Court had no bearing on the question whether "interpretation or application"
covered termination. In this case the Court had been asked to consider four
South African objections to the complaint brought hy Ethiopia and Liberia:
that the Mandate had ceased to be a treaty or convention in force when the
League of Nations ceased to exist, that Ethiopia and Liberia had no right to
interfere, that a dispute could not be said to exist because Ethiopia and Liberia
had nothing to lose or gain by fighting the Mandate, and that the International
Court had no jurisdiction because this was not an issue that could be settled
by negotiation. All of these objections had ken rejected.
CoseNo. 2
4. As there were no questions from Council Representatives on Case 1,
the President invited the Chief Counsel for India to oresent the Preliminaw
Objection in Case No. 2-the complaint filed by ~iistan under Article IÏ,
Section 1 of the Transit Agreement. Mr. Palkhivala indicated that the grounds
of obiection in Case 1 ao~lied in Case 2 and ~ ~ ~ wa~ ~n a~ ~tional one: that
a cornplaint filed under '&ticle iI, Section I of the Transit Agreement had to
relate to action taken by another Contracting State under the Agreement, and
India had taken no such action: the comnlaint was therefore notmaintainable
and the Council h.~dno juri5dic;ion to haidle the maticr. If India, for enample,
had required Paki\tani airiraft ro fiy around the coa\tline instcad of allouSing
them to take the most direct route across ils territory, or if it had taken some
other action to make the exercise of the rights granted by the Transit Agree-
ment commercially unprofitable, it would have taken action under the Agree-
ment causing injustice or hardship. It was a contradiction in terms to say that
action which was the very antithesis of the Agreement-the banning of over-
flights and non-traffic stops-was "action under this Agreement".
5. Mr. Pirzada re~lied that accordina to Article II. Section 1 of the Transit
Agreement, a ~ontricting State which zeemed that action by another Contrac-
ting State under the Agreement was causing injustice or hardship to it might
reauest the Council to examine the situation. ~he use ~f~-~e verb "deem" in-
diiated ihat il tuasfor the cnmplainant to determine whether the action of the
olhrr State ws causing itinjustice or hardships, and Pakistan so deemcd. As
for the contention that action could not be taken under the Agreement because
it had been terminated, he had already shown that a case of alleged termination
was a case of application. Furthermore, "action" had to be interpreted as
includina.omission. and the failure of India to fulfil its obligati-ns under the
Transit Agreement u.iz an omission. Se<iions I and ? of Article II were not
muiually exclurive.snrl iState considering iiselfan injiired party h~dthe choice
of tiling a cdnipliiint unJer Scciioii I or institutingf~irmal action unJcr Articlc
84 of the Con\,entii>n.In deïl.ng with cornplaints thç Council had not in the
psst taken a technical iipproach, and in support of tliis argument hç ciicd the
1958case of the Ut~NrdAr06 Rr~uhlrc v.Jurdon (cf. '.Action of ilie Council".
35th Session, Doc. 7958-~/914,-p. 20). 6. Mr. Palkhivala submitted that the verb "deems" in Article II, Section 1
of the Transit Agreement applied to "injustice or hardship", not to "action".
Whether action had been taken under the Agreement bad to be formally es-
tablished-it was no1 for subjective detemination by the complainant. India's
whole case was that the Transit Agreement was not in operation between itself
and Pakistan and therefore there could be no action under it. The Chief Coun-
sel of Pakistan was construing Article II as giving the Council jurisdiction over
any dispute between two contracting parties; if that had been the intention,
the text would have said so instead of speaking of "action under this Agree-
ment" and "any disagreement relating to the interpretation or application of
this Agreement".
7. As there were no questions from members of the Council on Case 2,
the President invited discussion on the suggestion of the Chief Counsel for
India that India should be permitted to submit a written memorandum, selting
out the arguments he had advanced more concisely than had been possible in
an oral presentation, for the use of Council Representatives who wished Io
seek instructions before the Council took a decision in view of the importance
of the ooint at issue for the future of ICA0 and by reason of the fact that the
expression "disagreement relating to interpretation or application'' was used
in a number of treaties. The Chief Counsel for Pakistan objected, arguing that
the suggested action was unjustifiable because of the circumstances and the
continuing injury being suffered by Pakistan as long as overflights were sus-
pended, and several Representatives questioned whether it would be in con-
formitv with Article 5. oaraeraoh 4 of the Rules for the Settlement of Diffe-
rences; which said that "1f apr.himinary objection has been filed, the Council,
after hearing the parties, shall decide the question as a preliminary issue before
anv further stem are taken under these Rules." The Secretariat advised that
it $as not unuiual for a.judicial tribunal, after a long and difficult argument,
to request counsel Io suhmit a written brief, which would be simply a system-
aticpresentation ofarguments already adduced, or for a court to agree to a
request by counsel Io file such a document. The Chief Counsel for India did
not, however, press the suggestion.
8. The Chief Counsels and the Aeents for India and Pakistan then withdrew
-though the two countries continued to be represented by other members
of their delegations-while the Council considered the preliminary objection
in Case 1.
9. As reference had been mad~ hv th~,Ch~~- Coun~el for India to o~inions
expressçd by the Ilnitcd State\ Counsel hefore ihc Intcrnaiio~ial <'ouri 111ilic
A'ot~zthtmase. the Represcntative of the Cii~tsdStaiesekplained that the L'nited
States position was that Article 84ofthe Chicago convention, as well as Article
7 of the Mandate which was the subject of the Namibia case, covered questions
relating to any provisions of those instruments; it did not seem possible for
one party to a convention or treaty to negate procedures for the settlement of
disputes by stating that the convention or treaty was no longer in force and
thereby depriving of jurisdiction the tribunal named in it to settle disputes.
The Altemate Revresentative of india submitted that the United States vosition
was tantamount io saying that under Article 84 the Council hadjurcsdiction
over any dispute or difference relating to the Convention, and repeated India's
contention that the exvr.ss~ ~~~anv disaeree-ent relatina to -he intervretation
or applicati<inof this Convention" had a much n3rrouer meaning and did nor
insludc dis~grccmcnts rclating to irrniiiiation or suspension.
IO. Indications ai ihir noint bv thc Kenresentativcs of the CnitrJ KingJoni
and the Czechoslovak ~ocialist ~e~ublic that, not being lawyers, theymustobtain legal advice on the arguments that had ken presented kfore they
could nacticinate in any decision on the substance of the nreliminarv obiection
gaveAse to considerable discussion. The ~e~resentativei of c ranc fen,sia,
Seneaal, the People's Republic of theCongo,Italy, Belgium, Uganda, Spain and
~oloil;ia said that ther were readv to take a decision-the oral Dresentations
by the parties had been essentiallielaborations of positions taken in the pre-
liminary objection and the reply to it; though the argumentation had been
lenethv. the auestion (whether the Council was comnetent to consider Pakis-
tan's application and complaint) was hasically simplêand administrations had
had time to form an opinion on it since the preliminary objection was filed;
deferment was therefore unnecessarr. The Reoresentatives of France. the
People's Republic of the Congo and Ëelgium sa;d that they would not bé op-
posed to deferment for a week or ten days, but the Representatives of ltaly
and Uaanda exnressed the view that this would not k lona enouah for Renre-
sentïti:er kho'u,~shcd 11,c~>n<uIttheir administr~tions. hècaussior thiit ihey
uould nced the \erbÿiim record, uhich uoiild no1 he dv3i13hlefi~rat leas1 a
month. The hlternaie Ke~resentativc of Lndidniïint~ined thüi 3dc~isiontÿkcn
now would be vitiated, it would have teen taken before a proper record
was available and without proper notice, the Council having decided on 12
June to nieet on 27 July only "to hear the parties on the preliminary objection
filed by India".
11. As the normal hour of adjournment had arrived, the discussion was
suspended at this point, with the understanding that the Council wouldmeet
again at 1000 hours on the following day.
DISCUSSION
Subject No. 26: Settlenrent of Disputes between Contracting States
Pakistan versus India-Suspension by Irrdioof Fliphts of Pakistoni Aircrafi over
Indion Terrirory
1. The President:The Council is again in session and the Chief Counsel of
Pakistan would like the floor.
2. Mr. Pirzado: Mr. President and honourable members of the Council, 1
shall try to be as hrief as 1 can, because in his reply my learned friend was
somewhat wide of the mark. He repeated what hehad already said, to which 1
had replied, and his main argument in reply was that this isessentially a case of
termination of a treaty by lndia qua Pakistan and that this Council has no
jurisdiction to hear or determine any application in respect thereof.
We hrought Ourcase within the purview of Article 84 and 1willjust refer to
the language of it again. It is "If any disagreement between two or more
contracting States relating to the interpretation or application of this Conven-
tion and its Annexes cannot he settled by negotiation, it shall, on theapplication
of any State concerned in the disagreement, be decided by the Council". The
words are "any disagreement relating to the interpretation or application of
this Convention" and 1had submitted that the fust ~rinciole of internretation
isthït thr irxi >hoiild hcii>nïirued Iiberall>. hly learncd irtJiJdn.>;di%igrer
uith thdi propuhiilon, but he impuied to me romcthing in the naiLrc <ii111,-
interpretation, and again reaffir&ing what he thought was the judgment of the
International Court of Justice in the recent case of South West Africa, he stuck
to the word "judgment", even though 1 had pointed out that there isa vast ditlèrcncc betuccn ajud~nicnt and .in arl\is<~r)opinion. 'lhcre Are 1u.uscparatc
Artiilcs IIihc Stature of the Iiiiernaiion;ilCourt of Justice-Article 65 dcaling
with advisorv ouinions and Article 36 dealine with iudements. 1 have ereat
respect for the obinion expressedin the recent ÀdvisoÏy Opinion, but 1 submit
itis an opinion, not a Judgment. Though m- lea~nedfriend was soparticular,
or tr.in- to be so oarticular..v.sterdav about the meanine of the einressions
"interpretation" and "application", when it came to wz-defined and well-
known expressions like "judgment" and "advisory opinion", he stuck Io his
own way of usina exuressions and then imouted to me misinteroretation. In
fact, he insinuated th't what 1was doing was.tantamount to referrhg to a horse
as a cow. Now 1 do not wish to useany veterinary language before this august
body, but 1would submit respectfully that any imputationof misinterpretation
to me is highly unjustified.
3. He then tried to show that when 1read a footnote from thejudgment of
Justice Fitzmaurice, J was reading from the dissenting opinion. You will recall
that 1 sought your indulgence to refer to that footnote, which shows that we
were so careful and meticulous in making our submissions here that we went
even to a footnote.
4. 1 mentioned that the answer on which he places reliance, made by the
Counsel for the United States of America before the International Court of
Justice. was to a auestion ut bv Justice Fitzmaurice in eivine his own inter-
-
pretation of an expression:~hai is why 1 referred to il. knew that it was a
dissenting opinionand said so. Secondly. when 1went to the observations made
bv the learned American Judee -. 1 noinGd out that he had correctlv intemreted
the answer given by the American Counsel. Lastly, 1 relied on paragraph 103
on page49 of the Advisory Opinion to show that the International Court, while
considerina the auestion of imolied oower in connection with the revocation
of the an dat eo,k into consideration the fact that in that casethe Mandate
was being terminated by the General Assembly, which has sipervisory powers
and can therefore ao into the auestion of material breach and determine it.
Here are two tat tes eqofal stat"s. India doesnot hold any supervisory powers
over Pakistan permitting it to determine the question of material breach. That
question will be. and has to be. determined bvsome other forum or body. This
forum or bodyhas been dete-ned in thekonvention in Article 84;in the
Transit Agreement in ArticleIII, and also in the Bilateral Agreenient to which
1 will make reference.
5. Having clarified that there was no question or occasion for me to mis-
iiiterpret, 1shall now try to clarify what he tried to sayyesterday. Coming back
to Article 84, 1had respectfully submitted that the expression "disagreement
relating to interpretation or application'' clearly includes a case of alleged
termination by any State, because the moment one State says that another
State's conduct or misconduct. act of omission. or non-fulfilment of some
oblig3tiain undcr thc C<invenri<inainouni, to repudidiiain, thdl ithlis icccpleJ
ilic iepiidintion dn.1thdi IIihercfore coiisiders ihc Cùn\ciition tcrniinaicd, hut
the other State asserts that theconvention still audies. it is a disagreement
pcrtainiiig 1s ilie ÿpp11;stioii of the Con\,cntton. .Ihcniere deni31doe, ndt Lake
thc ia\c <ILIof ihe p.ir\;eii,~iAriicle 81. I ciicJ ihree dcciiuns )esterda), and
IIihc point \i~s not clcar tu my Iclirncrl friend iro~ii thnu. de;isii)n>. I !(III no1
trotiblç )ou wlrh rhciii agaiii. 'Io bring the point out more ~.le:<rlyI hd\e selcitcd
one c:ir in \i.hi;h the Ilingu.ige ,if the C'oni,eniina5 idcniicdl .inJ'an inicr-
prci:$iion us\ g1t.r.nhy the Pcrniancnt C'ouri OCInicrnationdl Justice. ln this
caseit was ajudgment. 1am referring to a case1had mentioned yesterday-the
Chorzow Facrory case. The judgment was Judgment No. 9, given in 1927bythe Permanent Court, and is reproduced in Judgment Series A, Advisory
Opinions Series B. as well as in Series C.
6. Now this was a dispute between the German and Polish Govemments and
itarose under Article 23 of the Geneva Convention. not under Article 36 of the
Statute of the International Court of Justice. Article 23 rea& like this: "Should
diffcrences of opinion rcspccting the construciion and application of Arttcles
b to 22 arise beiwecn the Gennan and the Polish Go\,emmenis. they shall be
submitted to the PermanentCoun of International Justice." Now thek~fliçles
were not wmplied wiih and the mse of the Polish Govemment was thdt they
were not in existence at ali. As there had been a hreach of ohlimtions, the
Gennan Government claimed reparation. When the matter came-before the
Permanent Court, the Polish Govemment demurred to the Court's jurisdiction
and in fact disouted il. arguing that. having regard Io thelanguage of the Article
1read out jus; now, the Couri wds'not cornpëtent Io cntertain Ïhe daim of the
German Governmcnt. Dealing with this. the Court obse~ed: "ln regard IO the
fint of these contenttons the iudgmrnt of the Court states that 111s a principle
of intemational law that the breach of un agreement invol\,es an obligaiionto
make reparattoninan adequateform. Rcpardtion therefore is the indispensable
cornolement of a failure to ao~lv a convention and there isno necessitv for this
to be stated in the convention itself. DitTerencesrelating 10 repardtion which
mdy be due by reasoo of lailure 10 apply u convention are consequently dif-
ferences relating to ils application." various other reasons were given and 1
need not trouble you with them. 1willcome to the las1part. "The classification
of disputes in Article 13 of the CovenantW-which 1 read out earlier-"and
Article 36 of the Court's Statute would lead to the same conclusion. It is true
that the Covenant and ihc Statute mention scpsrately disputes as io the inter-
pretaiion of a treaty . .."Then thc Court observes: "1fArticlc 23, plirdgrîph I
coven the disnutes mentioned in the first and third catenories hv the two
provisions ahobe mentioned, it would be difficult Io undeniand why-failing
an express provision to that effect-it should not cover the less important dis-
outes mentioned in the fourth cateenrv. From the above considerations the
<:ourt concludes that Article 23. par&raph I of the Convention contemplates
al1 diflcrences of opinion resulting from the intcrpretdtion and application of
the Articles referred to. inclwu of differences relatinn to reparation. 'A~piica-
tion' isa uide and elasric term." This is what I havébeen~submitting.l~have
ken subrnitting that this isa wideand elutic term and would includc questions
of icrrnination.Conseaucntly. ifthere has been a failurc Io fulfil obligations,
there can be a claim foi com$nsation, which we have made in the dica cation
we have filed.
7. 1 had also cited a case of 1942 from the House of Lords coming under
municipal jurisdiction and 1 will read out only a paragraph frnm Russell's
well-known book on arbitration. 1 am reading from Russell On Arbitrarian
page 47, on which this case is referred to. The case was Heyr~ianv.Darwin, 1942,
Appeal Cases, and this is the summing up in the words of Lord Wright: "A
dispute as to whether a breach of contract by one party has operated to dis-
charge the other. or whether a contract has been frustrated, is a disoute arising
out of the contract, whether the contrnct is purely execuiory or p~rtiycxecuted.
In the cours of an opinion $0 holding. Lord \Vriglit said '1sce no objection
to the submision of the question whether fhere ever was a contract at al1or
whether. if there was. it had been vo~d-d or ended. In ten-ral. however. the
subiriisrion is Iimitcd to questions arising upon or under or out of a contrüct.
which woulJ nrotio farie includequestions a,hether ilhas been çnded, and, ~fso,
whether damages are recoverable and if recoverable, what is the amount'." 1 MEMORIAL OF INDIA 241
think this is sufficient to show that such disputes do fall within the pumiew of
the clause which we have before us and which empowers this Council to enter-
tain such applications.
8. 1am deeply obliged to a distinguished Delegate for furnishing me with a
ohotostat coov of a iudment-arrain 1am savina a "iudment" becausethis was
a judgment-in the-case of ~ouïh Africa. sou61 2rica has figured before the
International Court of Jusliceon a number ofocca~ionsand ihis isthejudgmeni
handed doun in December 1962-Sna~h Wexr Afiicu, Prrli»rinoryObjertiuns,
Judgt~tenr,I.C.J. Reporrs1962, page 319. Itis s;iid hcrc, in respect of thai very
Mandate u,ehave ken discusstn~for the ksi 1~i.odays, thît Article 7. providcd
that: "The mandatom aarees thit if anv disnute whatever should arise between
the mandatory and aiojher Memher if théLeague of Nations relating to the
interpretation or application of the provisions of the Mandate, such dispute
if it 'annot he settledby negotiation, shall be submitted to the Permanent Court
of International Justice provided for hy Article 14 of the Covenant of the
League of Nations.'' Note the expression "dispute relating to the interpreta-
lion or application of the provisions of the Mandate". Now the Court, when
objection was raised hy South Africa, answered like this: "The question which
rules for the Court's consideration is whether the dispute is a dispute as en-
visaged in Article 7 of the Mandate and within the meaning of Article 36of the
Statute of thecourt. The respondent's contention runs counter to the natural
and ordinarv meanina of the orovisions of Article 7 of the Mandate, which
mentions an-vdispute~whatsoc~erarising bctween the mandatory and another
Memhcr of the hiigue of Nations relating to the interpretation or application
of the provisions of thc Manilate. The language uscd is brodd, slear and prcciw.
Ir gives ri\e to no ümhiguiiy and itperniits of no exception. Ilrefersio any dis-
pute whatcvcr, relating noi to any paiticular provision or provisioni but to the
provisions of the Mandate, obviously meaning al1 or any of the provisions,
whether thev relate to substantiveohlieat-~n~ ~~~the mandatom towards the in-
hahitantsohhe ierriiory ortouardÏheoiher mcnikn of thc ksgue, or 10 ils
obligïtton 10 submit t<isupervision by the League undcrArticle 6, or Io pro-
tection under Article 7 itself, for the-manifest %ope and purport of the pro-
visions of this Article indicate that the Members of the League were under-
stood to have a legal right or an interest in the observance, hy the mandatory,
of its ohliaations hoth towards the inhabitants of the mandated territorv and
towards the ieague of Nations andits Members." That was essentiallya dispute
regarding the revocation of the Mandate and it was held to come within the
comoass of the exoression "ancli..~~~n a~~~ ~t~mretation of the mandate". 1
will not trouble yiu further on this point.
9. Regardina Article 60 of the Vienna Convention about the implied power
to invoke material hreach as a ground for teminating a treaty, my learned
friend said that 1referred only to Clause 1 which dealt with hilateral treaties.
Forthe sake of hrevity 1 referred to Clause 1 because Clauses 1 and 2 use
identical expressions and whether a treaty is multilateral or hilateral, a ground
for revocation could only arise if there is material breach, not othenvise.
10. Then, referring to Article 45 Ghen 1 pointed out their conduct and
showed acauiescence. mv learned friend asked whether 1 suggested that they
were in such a frameof kind that on the one hand they werëbithdrawing the
ovedight rights and on the other hand approaching the ICA0 Council for
a~~ronriate reliefsanainst Pakistan under the Convention. It is not for me to
anjacr. All 1cm >a):is ihdt hoih ihings happcncd on the same day, and I an1
entiilcd io rely on ihem to shi~iiacquiïu.L!nie. 5lind )ou, ihey with grcït clic
say ihdi ivhciher the Convention spplicd or did not apply, jo Cariis hijaskingwasconcerned theycertainly could usethe good offices of the President and the
ICA0 Council. For other things, however, when it cames to taking any action
aeainst India. those ~ood offices cannot be used: then the doors of ICA0 are
tobeclosed. ~ell,co~sistcncy isa very difliculi propo,ition e\,enfor indi\,idulils,
to wy nothing oiStatcs, and 1 will not deal uith th!\ îny morc.
II. On the 13~t point. nsmcly the wcond uruund of ihc so-ullcd "j~ectdl
r6gimeN, 1 am surkised that mi learned friend is suggesting that this leÏter of
the Prime Minister of lndia of 6 February 1966, which is really the basis, the
crux, and the starting point of the revival of al1 the agreements, doesn't help
the case of Pakistan. If it doesn't, 1cannot Say anything further because 1
clearly pointed out that there has beenno special régimesince September 1965.
According to this letter of 6 February 196&and, 1 repeat, this is what was
agreed ta-"As it appears that such a meeting might take some tinie, we
would be agreeable to an immediate resumption of overîiights across each
other's territory on the samebasisasthat urior to 1stAuaust 1965.Instructions
are king isslied to our civiland niilitliry aiithoritiei according~y." Su ovcillightr
were rssiored on the samebuis aspriorio 1st,\ugu$t 1965.and I h:id chplsincd
the position very clearly in the mornina..1 reaffirm it and reiterate chat in al1
thusc ~ignalstherc 1siio question ofany pro\~iiiunïl3rran~ement on ïreciprocal
ba\ii; they relaied IO implcmentatiun of routes. This xai the decision and it
rcfcrrcd bîck io I August 1965: ihercfore the C'onveiition. thc B.lxtcral hgreç-
ment of 1948and thc Trünhit Agreement a11k-snie applicable again.
12. A kind of hardihip uas ple~ded. When I referred Io Article 95 and said
that under it a ~eriod of one vear is reauired for denunciation-because that is
the mode for tirniinlitioii-hé dskcd '.ivhli happenr iiithe iiic~iiiinie? Do \se
\!ait?" and, aniiciparing ihat m) ansiier aoiild he ..Yiiu ~ould cçrtaiiily comc
io the ('ouncil". he said thai ihc remed> wlii~h 8sa\dilahlc froni the Council is
not a substantial remedy. But you agree ta conventions with your eyes open;
this is the mode of terniination and sanctity hasto heattached to it; ilisa mat-
ter of honour. This sort of thing happens every day, even in the life of individ-
uals. He made fun of the language of the Convention and iny interpretation
of it,saying that "denunciation" in Article 95 meant denunciation with ref-
erence to al1other Contracting States. However, very similar wording is used
in Article X (E) of the Bilateral Agreement of 1948between India and Pakistan.
IIfIct, it is evenclearer: "This Agreement shall terminate"-the word "denun-
ciation" is not used-"one year after the date of receipt by the other Contract-
ing Party of the notice to terminale, unless the notice is withdrawn by agree-
ment before the expiration of this period." lt iia stipulation and States have
to honour and abide by stipulations which they have entered into consciously
and with their eyesopen.
13. Finally, he tried 10create an atmosphere of some political situation and
said it was not the function of the Council t'o aet involved in situations like
that.1 think the Convention took good care ofsuch situations; it even incor-
porated provisions relating to war. This Council is the hcad of an international
organization, a body of experts and guardian of the Convention. Rules have
been framed with an elaborate machinery for taking evidence, for hearing
declarations by witnesses and experts, for questions and arguments, and
eventually for decisions and orocedures for imulenientation. This is not un-
precedented. After all, such bgdies can beentrusted with the task of performing
judicial or quasi-judiciul functions, and they have to discharge their responsi-
bilities.
14. Mr. President and members of the Council, on behalf of Pakistan 1
assure you that we have no intention, at any stage, of raising any extraneouselement or political matter, and that is what 1 had said in Vienna. We are only
concerned with legal rights. Ifwe have any, please sayso. If we have none and
~f s~-h s~ ~ ~ conventions can he discarded at the whim and caorice of one
Siatc on an). ground uhairoe\,er, ).ou nia). wy so. 1iroiild end by sî)ing thai it
iinerdless iu cmpha~ifc thc importan~e tlfihe issuesinvolied in the prozwdings
hefi>re the Council. II i\nait increly an Indo-Pakisian ati'air. lndia has chal-.
Icngeùthe juri\dicii<in of the Council IO he:ir the Applicîtion 2nd the Com-
plaint prescntcd hy Piikibian. The C.>un;il i,\%el1awre of the circum,i3nccs
~ ~-~~~\hich I'~ki\isn had to irnnroaili tlie Couniil. The arbiirart,. illesal. and
discriminatory action hy ~ndiaof banning Pakistan's aircraft ove;fligh< ;cross
Indian territory is a ~ositive threat to the safe and orderly growth of inter-
naiional ci\,il aiidlion: Under Arii:ld 44 of the Cuni,ention the aim, and ob-
leciites <if th,.; Organizaiion arc tu cnrure ihe development of intern~iiunal air
tr.ln~oi>riaii~in alidt~ see ihitt ihc r~ghisof the Coniracting Siatci arc iully
respected. It is in this respect 1 submit, Mr. President and members of the
Council, that the Council is seizedof a very important issueandits decision will
have far-reaching consequences.
15. Before 1 conclude, 1 would only Say, in a lighthearted manner, that my
learned friend says 1 am complaining about a house which is no longer in
existence hecausehe burned it down. I Saythat he tried to burn it, but before
it could he burned down 1 approached the fire brigade and asked il Io quench
the fire. Thank you, Mr. President.
16. ThePresident:Thank you. The Chief Counsel of India.
17. Mr. Palkhivala: Mr. ~resident, in his last reply my learned friend re-
ferred to one point, the 1962Judgment of the international Court of Justice,
for the first tinie. That is why you will give me liberty to deal with it, because,
as my learned friend said, one distinguished Delegate had drawn his attention
to the Judgment and when 1 have gone, 1 would not like the members to think
that there is soinething in this Judgment against me which remains unanswered.
1 would therefore like to deal with this one Judgment onlv. 1 will no1deal with
-
any of the other points made by my learned frrend.
18. This Judgment, eiven hy the international Court of Justice in 1962, 1
have gone thriugh during the luncheon interval, hecause the distinguished
Delegate was kind enough to draw my attention to ifalso. There is nothing
in the Judgment, not a sentence anywhere, which has any bearing on the
question the learned membersof the Council haveto decideupon today,namely,
whether the words "interpretation and application" cover "termination". In
this case the International Court \vas asked Io consider four preliminary ob-
jections, none of which was the objection 1 have raised.
19. The first preliminary objection is on page 330 of the Reportsof Judg-
rtfetrrs,Advisory Opinions and Orders 1962-Judgment of 21 December 1962.
It is-if 1 may quote the exact words-"the Mandate for South West Africa
has never been, or at any rate is since the dissolution of the League of Nations
no longer, a 'treaty or convention in force'". In other words, what South Africa
ar-ued was not that thev had terminated the Mandate, but that the wording
01 ihe Mindate ii5uch ihai unie the I.eague ni S~iionh ~eaied Ir, cxisi, the
\land*ie ceascd io hc i irriy or ci)n\.eniion in force. M'hit ihc Ii~i~:rn:ttional
Court was a\kcd 10 con\ider was thcrefore [hi,: on ii proper sorsiru~tion of
the Mandate, does the Mandate come Io an end when the League of Nations
ceasesto exist and the United Nations takes over, or is the successorto the
League of Nations, namely, theUnited Nations, entitled to continue to be in
the place of the League of Nations? This was a matter of interpretation of the
Mandate-and the International Court ruled in favour of the view that on aproper construction the Mandate did not cease to be in force merely because
the League of Nations had ceased to exist. The international Court rightly
pointed out that it was a suprising Statement for South Aïrica to make that
the Mandate was not in force, when South Africa continued 10 exercise the
powen and rights of the mandatory. How could it keep on exercising rights
and powen under the Mandate if its case was that on a proper construction
the Mandate had corne to an end? So the question of interpretation was
directly put in issue and it was said that the Mandate was not a convention
in force. The World Court said "No." Whether "interpretation and applica-
tion" cover "termi~ ~ ~n" was not dealt with at ail.
20. The second preliminary objection made by South Africa was that the
two parties who had complained Io the International Court were Ethiopia and
Liberia and the Mandate had nothina Io do u,ith them. Who were thev Io
complain? South Africa had no mandate over them and if it oppressed-the
people of the mandated territory, this was no concern of theirs. That point was
negated by the International Court, which said that because Ethiopia and
Liberia happened to be Members of the League of Nations and subsequently
of the United Nations they had a right to raise this dispute.
21. The third point whicb was urged before the International Court is to be
found inthe last two lines on page 342 and at the topof page 343: The third
preliminq objection was that the dispute brought before the Court by
Ethiopiaand Liberia could not be said to ka dispute because they had nothing
to lose and nothing to gain by the South Xrican Mandate being modified,
altered, etc. What did Ethiopia and Liberia gain by fighting this battle? South
Africa therefore had no disoute with Ethionia and Liberia. This was the third
preliminary objection raisid and the ~okld Court rejected it, sdying that
"any dispute" meant any dispute raised hy a Member of the League of Nations,
this wds a dispute raised by the Member of the League of Nations. and the
Court would therefore deal with it. Thus what u,as argued was the meaning
of the word "dispute"-can a "dispute" bc raised by a Stiite that is not afected
by the action of the two oarties to the Mandate?
-22. The fourth and lait Preliminary Objection made by South Mica is on
page 344 and was that this was not a dispute which could be settled hy nego-
tiation, and unless the disoute was such that it wuld be settled by negotiation,
the internaiional Court had no jurisdiction. The International CourÏ rejected
that contention too and said "No, you cannot say that this is a dispute which
could no1 be settled hy negotiation; it could be settled by negotiation and
therefore the words "dispute if not settled hy negotiation" are wide enough
10 cover it.
23. The questions raised were thereforenot the questions which arise before
the Council today. They are a completely difirent ?*tof questions. which were
represcnied by the four preliminary objections Not one of them iouched the
question of what is the right meaning of the expression "interpretation or
anolication of the treatv". These words were not broueht to the International
.
court for considerat& and the Court didnot deal with the" at all. Therefore
to say that this Judament deals with the rneaning of the expression "interpre-
talion or aoolication" would b~ ~ ~~-et. ~.incorrect
24. ~inaiiy, ~rl Piesident, this brings to mind something 1 have ken wanting
to Say ever since the beginning of the argument. It is this: 1 dare say this is
a matter of such far-reachina imoortance because the words "interpretation or
application" are, as we allknow, used in a number of treaties: 1 can well
imagine that some, if not many, of the Delegates here might like to seek in-
structions from their reswctive Governments or Administrations on what their MEMORIAL OF INDIA 245
attitude should be to a auestion like this. This is understandable. natural and.
if1may say so, inevitable. In view of the tremendous significance and impor-
tance of the issuesinvolved, itis my humble submission to the lcamed President
and honourahle members that, as your verbatim notes will not be ready for
many days, if not some weeks, and as they arenot, to my mind, very satisfactory
because when a man speaks without notes he is often inclined to use more
words than he wouldina orecise. clear-cut statement of hiscase-1 know 1do-
we should bepermitted Coput in a written memorandum which would set out
the entire argument on this issue. This memorandum would contain nothing
new: it would contain onlv the areuments 1have oresented. but in an orderlv
and Concise fom, with ipetition-eliminated and' things in a more cohere;
and connected form than they would bein a verbatim transcript. The verbatim
transcriot in anv event would take several davs to oroduce. whereas we could
prcparc'thi\ mekorîndum and have itposted in about a fortnight 1 ~ugge~r
lhdt ifne are permitted icido that 11would perhapsendhle the differcnt Govern-
ments and Administrations and ~ele~atesthe&lves to come not to a quick
or hasty conclusion, but to a well-considered decision on a matter that is of
the greatest importance for the future of ICAO, not only on the important
question of the limits of this Council's iurisdiction. but on the verv far-reachine
question of what is the meaning of tie expression "interpretation or applica-
tion" which you find in many treaties. 1 do suhmit that the matter.is of such
tremendous importance that this request of mine may be granted.
25. 1 am most grateful to the President and to the honourahle members for
the very patient hearing they have ken kind enough'to give me.
26. ThePresidenc Thank you. The Counsel for Pakistan.
27. Mr. Pirzada: Mr. President, al1 1 can say is that 1 am really surprised
at the suggestion which bas been made hy the learned Counsel. This is a
inatter which has been sufficiently delayed because of the objections filed hy
lhdia, and with great respect 1 must say that this is a delaying device. We are
suffering injury every day. It is a very serious matter and already at Vienna
time was soueht and the matter was broueht here. Article 28 of the Rules for
the ~ettlemect of Differences says: "~he~ouncil shall determine the time-
limits to be applied, and other procedural questionsrelated to the proceedings.
Anv lime-limit fixed oursuant to these ~u~e~ ~ ~ ~ ~~ ~s~ ~ixed-a~ ~;O avoid anv
p,ir,iblc dclay\ and ii>enrue fair treatment of the pariy or pariies concerned."
The Cio\.srnment of Indiii, a \ery resourccful Cio\crnment and the Governnieiii
of a countrv much higser than Pakistan. had amole time to orenare their. .
preliminary -ohjections;%hich they prep&ed exhaustively, which were circu-
Iated and which were certainly considered by the members. The Council has
heard arguments for two davs~and now. at the close of them. this sug~estion
is being made. Certainly themembers will deliberate, consideiand ap$y their
minds, and 1am entirely in their hands, but 1must Say,with great respect, that
the suggestion of putting in a memorandum and taking another fortnight is
not justifiable in the circumstances and in view of the recurring injury Pakistan
is suffering. 1 repeat what 1 said in Vienna, justice delayed is justice denied.
28. The Presidenr:The Representative of India.
29. Mr. Palkhii'ala: The 20th of July is the date on which we received
Pakistan's reply and we had to be in Montreal on the 26th.
30. ThePresidenr:Thank you. Well, we are in the Hearing; we have heard
the two parties; and 1 think we have now reached the point at which Repre-
sentatives on Council may wish to put questions. 1will in due time alsoask the
Council whether there isany discussion on the suggestion of India that it he
permitted Io file what 1suppose would he a brief, limited to elucidating argu-ments that have already been put forward. For that, of course, 1would have
to have a proposal that we do so and perhaps establish a time-limit, etc., and
the Council will have to take a decision, if there is such a proposal. We are
still on Case No. 1 and 1 ask the Council Representatives if they have any
questions regarding it. Apparently not. Would the question of the brief just
raised by the Counsel for India, which 1 understand was not a proposal or il
would havecome from the Representative of India. ap~l..e.ual.y to CaseNo. 2?
31. Mi-. Palkhivala: You mëan, Sir, the written memorandum.
32. ThePresidenr:Yes, the question of India's submitting a written memo-
randum ap~lies also to CaseNo. 2?
33. .M~.~>a'alkh,~,l<Ycs;Sir,but Y9pcr ccnr. i+~ulJ r>ccoriiiiirjn.
34. 1!1<Pr,,~i</t,nr:Asiiiia\ ju\ici quc4ioi1, I iiduld prcfer io g<~io Cd\e
No. 2. App3reiitly the heÿraiig on ('ast No. 1 ha\ heen coiiipletcd anil ihtre
have ken no que,tion< hy an)' Rcpre~cniai~vc>A . fier the hearinl: on <.'a\eSo. ?
u,e willgo ta this q~ciiion of Ii~\iiig iini10 subniit sonieihing addiiiunal in
writina. 1 repeat ms. .estion: Does any Reoresentative wish to uut ans
qursti;ni coi;ccrning Case So. 1? F;o.Then go iu <:ire No. 2. ~ecdlsk
10 >ay, aiiyihing that would beappli;:tblc tiCa,c No 2 \rh..h Iia%~lrrddy been
sïid in conne~tiun iiiih Case Su. I sh~uld plc3ie he oiiiitted froiii the sise-
ments, by just making a reference to the fact that it is applicable, so that we
do not need to spend as much time on Case No. 2 as wehave spent on Case
No. I. Will the Counsel for India pleasestart.
35. Mr. Palkhivala: Mr. President and honourahle members of the Council,
Case No. 2 is the Complaint which has beenfiled by Pakistan against India,
and there our ~reliminary obiectionsarecommon to our preliminary obi.ctio.s
in the first case.To the extentto which they are common;~ adopt my arguments
and suhmissions in the first case,includingthe request for a written argument,
because my whole object in talking of a written argument was to enahle the
respective Governments and Administrations of the honourable Delegates to
consider the whole argument before they come to a final decision.
36. Now the new point, or the additional point which is peculiar to Case
No. 2 and not common with Case No. 1,is the only point which 1 shall
deal with now. All the other points are common and 1.have already said 1shall
adopt my own arguments and submissions in the first casefor the purposes of
the second case.
37. The additional point is this. If you would be kind enough to turn to the
Transit Agreement, you will find that Article U, Section 1, reads as follows:
"A contiacting Stote which deems that action by another contracting
State under this Agreementn-I am emphasizing the words "action under
this Agreement"-"is causing injustice or hardship to ilmay request the
Council to examine the situation. The Council shall thereuoon inauire
into the matter, and shall cal1 the States concerned into consultaiion.
Should such consultation fail to resolve the difficulty, the Council may
make a~~ropriate findings and recommendations to the contractina States
concerned. If thereafter-a contracting State shall in the opinionof the
Council unreasonably fail to take corrective action, the Council may re-
commend to the Assembls of the ahove-mentioned Organization that such
contracting State be suspendedfrom ils rights and irivileges under this
Agreement until such action has ken taken. The Assembly by a two-thirds
vote may so suspend such contracting State for such period of lime as il
may deemproper or until the Council shall find that corrective action has
been taken hy such State." Pakistan's complaint is based on, and has been lodged under, this Article II,
Section 1, and the key to the Article is that the subject-matter of the complaint
can be nothing else than action by another Contracting State under the Agree-
ment.
38. Now under the Transit kreement India has taken no action al all.
The whole case of Pakistan is that India should take action under the Agree-
ment and try to implement its terms fairly and reasonably, etc. 1have taken no
actionand that is the whole comolaint of~akistan. in fact 1i-nored this Anre--
ment as nor cxi,ring. no1 king in forcr bet\iecn InJid and I'iikistan. F\en if1
do this conipletel!. wrongly, 1tind itinipo>\ihle 15 undentand hcii<. itcun be
said ihat 1have takcn action "under thi, Agreement". Again 1will k told ihere
inurt be a Iihcrül interpretûrion, hut 1 find it extreiiicly dillicult ioreconcilc
iiiyrelf to the vieiv thai undcr the notion of a Iibçrïl iiiierpretation flagi musi
include electric lights, floors must include ceilings, and the rest. The words
"action taken under this Agreement" must surely have some meaning. What-
ever large connotation you may put on the word "action", however you
construe the word "under", it has to k action under the Agreement and the
whole complaint of Pakistan is that 1 am not taking any action under this
Agreement. Therefore the question of causing injustice or hardship does not
arise, because even if there is injustice or hardship, il is not caused by action
under the Agreement.
39. If you look at the Rules for the Settlement of Differences, Article 1,
Clause (2) says "The Rules of Parts II and III shall govern the consideration
of any cornplaint regarding an action taken by a State party to the Transit
Agreement and under that Agreement.. .".Two conditions have to be satis-
fied: first, there must beaction taken by a Stateparty to theTransit Agreement,
and, second, the action must be under that Agreement. Unless these twocumu-
lative conditions are satisfied, the question of filing a complaint under Article
21of these Rules does not arise. Under Article 21 of the Rules, read with Article
LI, Section 1 of the Transit Agreement, you have the right to filea cornplaint
only in the case of action under the Agreement.
40. Now what is this Transit Arreement and what would he action under
the ,\greeiiieni:' The Tran,it ~~reeiient says ihai Io the ichcJ~led :iirllnc\ of
dnother St;rte 1 niuii givr.the right ofoi.crfligli1 2n.i dlso the right of non-1r:itiic
stops. Now what would be action under the Agreement which müy cause in-
iustice or hardshio?.Tt~woul~ he~lik~~-~~s: if 1 were to tell Pakistan "Yes. vou . .
have !lie right IO overlly, hut \ihcn yoii overtly yuu ni~it niaLe stirc tlial you
fly along the co;irt of InJid, not ni:ike a heïlirie froiii onc p<~iiit ICI~nothcr on
the b:isis th:sr;i \tr.iighrliiitis iI,e shurtcst di<tan:e bet\ieen lac> tixcd pitint\.
Trd~cthe whole :oastline etcry timc you go frwn M'c,r IO rx.1 orliait 1.1\Veil."
l'hi9 ii oerniititn: oicrtlsinc. hi.1 it iii-ticin iaken undcr the Agreciiiriii uhich
causes iniustice or iniur; toPakistan. ~ ~ ~~ 1tell them "You are entitled to make
non.ir.iiti: .!.,pi ifyiu .Loine here. hur ?ou wi.1 hd\e t,>lake m!.<io\.ernnicni
çcrvani\ frer.~iicli~rre." or 1.iit~ch r<iiiieother ionditiùn,i\,hi~li iircunrc.ts~11-
able. Then 1 wouldhe ~ ~ takin- action under the Aereem-nt which causes in-
justice or hardship.
41. In other words, what is contemplated is positive action under the Agree-
ment, and if that action causes injustice or hardship to another State, a com-
plaint may be filed. Then, as you see froni Article 11,Section 1 of the Transit
Agreement, 1must take reasonable steps to see that the Council's suggestions
are irnplemented. Reasonable cornpliance is what is needed, and it is al1 in
the field of positive action which may cause injustice or hardship, as 1 said,
by my imposing onerous terms, difficult terms, that make life unnecessarily248 ICAO COUNCIL
difficult for anotherstate's scheduled airlines. Scheduledairlines have to operate
on a commercial basis, and 1 may make it commercially unprofitable for
them by attaching al1kinds of pinpricks. difficulties, to the right to overfiy or
the right to make non-traffic stops. If 1choose to take no action at al1and say
"I repudiate this Agreement; 1 terminate it, suspend it qiia you.", it is a con-
tradiction in terms to say that 1 have taken action under the Agreement. In
other words, action under the Agreement is the direct antithesis, the direct
converse, of total suspension or termination of the Agreement, becausewhen
vou totallv susoend or terminate it. vou take no action at all. That is what 1
Lave done-and i submit, with respe&;that it is impossible to reconcile the con-
cept of actionunder the Agreement with a casewhere the whole argument of the
oartv is. as India's is here.th1ttreat the Apreemcnt asnot in oneration a1all:
?roi 1965to date 1 have t'akenno action unGerthis Agreement ai all, no action
whatsoever. 1submit it is therefore impossible for the Council Io assumejuris-
diction in the second Caseand 1reauest it Io throw out the Comnlaint on the
grounds that there is no action under the Agreement. This is in addition Io
various other grounds that apply in the first Caseand apply equally here, which
L am not repeating. That is~all, Sir.
42. The Presidenr: The Counsel for Pakistan on Case No. 2.
43. Mr. Pirzada: Mr. President and members of the Council, first of all,
let us go back Io the lanaua!ze. becauseno word in anv article is su~erfluous
and &ming isto bc asiGned to each aiid ctery uurd ks fur as p<iss.~bleT.he
Ianguage is "A contrïcitng State which deeins that îciion by anoilier c<inirac-
ting State under this Agreement is causing injustice or hardship to it may
request the Council to examine the situation." Now fint and foremost 1 invite
your attention to the word "deems". Who deems?-the Contracting State, in
this case Pakistan. So it is aatter of the subjective satisfaction of Pakistan.
The words are not that "a measure concerning action taken by". No, it is
an enabling provision, enabling a Contracting State, when itdeems that action
bv another Contractine. State under this Agreement is causine, injustice or
hirdship to it, to request the Council to examine the situation:~his is what
Pakistan deemed and that is why it has approached the Council.
44. Second, we are again in the same circle. because it is being suggested
that because the Transit Agreement has been unilaterally denounced or ter-
minated by India, the action taken cannot be deemed to be action under the
Agreement. A little while ago, indealingwith Case No. 1, Ireferred to a num-
ber of cases, including one considered by the House of Lords having Io do
with questions arising under a contract. There il was held that a dispute over
whether the contract had been ended or terminated would be a case under the
contract and would be covered by the submission in the arbitration clauses.
Now applying the sanie principle here, 1submit, with respect, that a caseeven
of suggested termination, or purported termination, or supposed termination
will be covered.
45. The last point is that whichever way you interpret it, the word "action"
has to be taken as including omission. Itdoes no1 mean only positive action,
although we can even suggest that prohibiting the aircraft of Pakistan frorn
overîiying Indian territory is a positive act. Even an omission is covered by
"action" and the failure of Iiidia to fulfil its obligations under the Transit
Aa-eement would certainlv be an omission and would be covered bv the ex-
pression "action". In fact Our respectful submission in due course would be
that Sections 1 and 2 of ArticleU are no1 mutually exclusive. They are con-
current. 1 am nnt dealing with this point at this stage becauseit may arise a
little later1 am ooly indicaling. It has ken dealt with in a book Io which 1am now referring, Lawmakina in the Internntional Civil Aviation Orcanization
by Thomas ~uergenthal, 159: "A State which 'dcemr th41 3cti-(1nby dn-
other Cont~~cting Stüte under this (Transir or l'ranspi>rt) ,\grcement isauring
injustice or hardship to il may request the Council to examine the situation.'
That is to sav. il mav file a comnlaint. The facts iustifvine the suhmission of a
. . ~.~ ~~- ~ ~ ~
complaint could include questions relating IO the intrrpretation or application
of the Agreements."-They go bück to the wme Article II. -'.The Staiésin-
volved thus have a choice~between filing a complaint or instituting a formal
action under Chapter XVIiI of the Convention."
46. In fact 1have been looking inlo past precedents of this august Council.
A Diethora of thinzs have ha~wned and thev are under scrutinv and exami-
nailon. but there ,;une incideni and onc pr&edcnt tu which I \rould like io
invitc vour attention.I find thdt ihis üusust body hds not ken hy~eriechnicül.
and ver.-.izhtlv its a~nroach has not &en verv technical. It likes to do iustice
as far as it can. In 195'8,in equally serious cir~umstances, a situation arose be-
tween the United Arab Repuhlic and Jordan. Because of certain differences
arising between the two States the UnitedArab Republicprohibited Jordanian
planes from flying over or landing in the UAR. Jordan immediately retaliated
by issuing a decreeexcluding UAR carriers from its territory and shortly after-
wards requested the ICAO Council to intervene. The UAR followed suit;
certain procedural steps were taken; and even before it could be determined
whether it was a complaint or an application or what was the nature of the
nroceedinzs-because vou have amole nower under the various Articles of the
convention, and even in a court ofiaw'or before any tribunal, one proceeding
could be converted into another or could be deemed to be for other purposes
becausethe auestion is to aive relief as long as the iurisdiction is there-this
is what the ~ouncil did. 1am reading from-the book 1just referred to, page
163: "After discussing the matter again at some length the Council concluded
that it was still not clear what soecific action it was bei-. reauested to take"
-even in iuch rnatters ihçy haJ no ided whai aztion \VA\ siught hut the Coun-
cil neccsrarily rook intu conridersiion the situ3tioi>-"2nd m.tructcd the
Secretdry Generül IO ascertain irhether the mriies aished the Council in decide
the dispute under Chapter XVLIi of the'convention or under the arbitral
clause of their bilateral agreement. At the same time the Council invited
Jordan and the UAR to vermit air services between their countries to be
re~uiiied. and 3uihorizcd its Preident tu olfer his good oificcs or rhosc of the
Secrei3ry Gciteral tou,ïrdr tinjinr.üwtilcment of the dinérïnce. The Prcrideni
of the C'ouncil entercd into consultdl~on usitlthe tao DXIICI and shorily ihere-
after informed the Council that both had agreed (O permit the temporary
resumption of air services hetween their respectivecountries." (Action of the
Council-35th Session,ICAO Document 7958 -C/914, p. 20,1958). Thank you,
Mr. President.
47. The President: Thank you. The Counsel for India.
48. Mr. Polkhivala: Mr. President, my answer to my learned friend is
bnefly this. ArticleII,Section 1,provides that a Contracting State which deems
that action by another Contracting State under the Agreement is causing in-
justice or hardship may request the Council to examine the situation, but the
word "deems" doesnot mean in the subjective determination of thecomplaining
State.If no action is taken, that State rnay still deem that action has ken taken.
The word "deem" refers to the injustice or hardship aspect. ln other words,
action under the Agreement has to he established objectively as a positive
fact; there is no "deeming" there, no subjective decision there. The question
is not whether Pakistan deems, thinks, imagines that action has ken taken.The word "deems" does no1 go to the action part of it. That action has been
taken under the Agreement has to be obiectively established. After that has
becn donc corner th; subjective detcminïi~on of u hetlier such action iscausing
injuriice or hardship. Beforc ynu reîch ihe silige of deeniing cubjcaively that
India's action 1s çauiina iniustiie or hlirdshio, yo~ ha\c firrt to csiliblish that
India has taken action inder this ~greemeni.
49. If you look at the various articles, it is clear what is meant hy "action
under this Ameement". For examde, Article 1, Section 3, talks of granting
airlines the pÏivilege to stop for non-traffic purposes if they offer reasonable
commercial service. What is "reasonable commercial service"? Well, India
may Say "You must render these commercial services"; they may cause in-
justice or hardship to Pakistan; and, if so, Pakistan can complain. Section 4
of the same Article says that a State may designate the route to be followed
within its territory and impose just and reasonable charges for the use of its
airnorts and other facilitie~~ As 1was savine. india mav desianate- a route that
is unjust or causes hardship to Pakistan. Or it may impose charges that may
cause injustice or hardshio. But before Pakistan can complain, it has to be
objectively established th& the action deemed to cause injustice or hardship
has been taken. So the word "deem" does not meet the point at all, because
"deem" goes with "injustice or hardship"; it does not mean that in the imagi-
nation or in the view of Pakistan action is taken when in reality no action is
taken. What Article II, Section 1, says is that if objectively, in reality, action
has heen taken, it is for Pakistan to deem or consider whether it is causing
iniustice or not.
50. Secondly, Sir, the book referred to by my learned friend deals, on page
159,with a completely differeot question, which 1 shall illustrate in a moment
rather than are-e in the ahstract.-~hat the textbook savs is..and .izhtlv.-that..
there may he a case where, as the result of misinterpretation or misapplication
of the Agreement to the existing facts, you may cause injustice or hardship.
In such case you, the aggrieved parfy, have two courses open to you. You
may either file an application on the ground that the right interpretation, the
right application, has not been adopted or you niay make a complaint. If
there is misinterpretation or misapplication resulting in action which causes
hardship, you may file a complaint about the action under the Agreement or
you may file an application on the grounds of interpretation or application.
This is not the case we are dealing with here at all. We are dealing with a case
where there is no action whatsoever, no interpretation, no application, and
the whole case of India is that this Agreement is not in operation.
51. Therefore. Sir. L do submit that the point 1have made has not been met.
Seiihcr tliçiexthook ni>rthe ,ira1;irgurncnt nieétsthe relil quc\tii~n: \\ha[ daes
"aciion undcr ihi Agieen~ent" niean? If irrnîlinh"an? Jisptite kiu,cen the piir-
lie\". iiliy rsy ":i;iioii under ihi, Agrcciiicni"? Surcl) the tvords hï\e sonle
rneüning. As riiyleariied fricnd rclidsAri~clc11,Section 1,he isvirtulilly reiiriting
il ii>w) "an? Jispuie bei,ir.cn the pïriieh". Well,ii ihït iiivhüt the charierof
the Council was intended to be, nothing would have been easier than to Say
"anv,~.soute ~ ~ween ~ ~ na~l,~ ~ ~Whv talk of interoretaf.on and aoolicati. .
\\'h! i;tlk of üciion undcr tlic Agreenient? -sirnply wy "liny dibpuie ktiicen
ilte n:iriiecq.Ijiiithe liiiiii,>fihc Council's iuricdiction are very se\crc on the
corn-plain part. It can deal only with a &mplaint about action under the
Agreement, and C would be surprised if in the entire history Df the Council
a single case has arisen where, without any action under the Agreement, the
Council has still entered into the complaint. To Saythat the Council is liberal,
that it wants to do justice, is a tribute to the Council in which 1would likc tojoin, but it isa far cry from that to say that because the Council has ken liberal,
let it now entertain my complaint although there is no action taken by India
at all. As far as we are aware, this type of complaint is unprecedented in the
history of ICAO, and 1respectfully submit, Sir, that the Council would have
no jurisdiction at all.
52. The Presiden:: 1 will now put the same question regarding Case 2. Are
there any questions that Representatives would like to put to either of the
parties? Apparently not.Then we have a request from India that they be per-
mitted to file a brief, which would be lirnited to arguments that have been
oresented durinr! the Dresent hearinn. It is a reouest from a oartv and 1will
"ou invite discÜssionand evenruallfa vote on h. 1srherc rli&uss~~oonn that
question? The Representative of the United Kingdom.
53. AN Vice ,Ifurshol KUSIPI/: JustB qucsri<~nfor clar~ficat~on.This would
not obviate the previous understanding io make a verbatim record available?
54. ThePresiden:: No, the verbatim record will be made available; that was
clear. May 1 then put the question to the Council? The Representative of
Uganda.
55. Mr. Mugizi: Will this memorandum be submitted by each of the parties7
1 thought it was suggested that the parties be permitted to submit tbeir argu-
ments in writing without introducing any new ideas. 1s that the case?
56. ThePresiden:: So far 1have only had a request from India. If Piikistan
would make a similar request, 1 would consider it in the same way, but the
Representative of Pakistan has already indicated the difficultieshe would have
with that request. The Representative of Pakistan.
57. Mr. Pirzodo: .Mr. President, the full arguments have ken advanced
here. They bave been recorded and 1 am sure the Secretariat will make the
verbatim record available as soon as they can. Therefore the honourable
members will have access to the arguments. They already have the written
objections filed by Tndia and time is of the essence in these proceedings in
view of the urgency. 1 therefore bave already opposed this request.
58. The Presidenr:Thank you. The Representative of Tunisia.
59. Mr. El Hicheri: 1 should like some clarification on this request made
by the Delegate of India. Does it, as 1 understood, mean that we shall have
to wait until we have a short memorandum, explaining perhaps more concisely
and precisely the preliminary objection, before the Council takes a decision
on the validity of this objection? 1smy understanding correct7 1shall continue
after 1 have an answer.
60. The Presidenr: Ycs, undoubtedly that would be the case. The Council
would not go into the deliberations until it had received this additional brief.
If 1 was going to put a question it was going to be in two parts unless India
modifies the request to include a time-limit, because 1think there will be two
things to decide: first whether the Council agrees that there may be such a
written presentâtion and if it does-which would be determined by a vote-
what time would be given to lndia to make that presentation. The Represen-
tative of Tunisia.
61. Mr. El flicherc Mr. President, in your opinion is such a proccdure
normal? In other words, is it compatible with the Rules for the Settlement of
DitTerences? 1 have Article 5 of the Rules before me and it says this: .
"(1) If the respondent questions the jurisdiction of the Council to handle
the matter presented by the applicant, he shall file a prcliminary
objection setting out the basis of the objection.
(2) Such vrelirninary objection shall befiled in a special plcading at the latest before the expiry of the time-limit set for delivery of the coun-
ter-memorial."
Unless 1 am mistaken, this operation has been completed.
"(3) Upon a preliminary objection being filed, the proceedings on the
merits shall be suspended and, with respect to the time-limit fixed
under Article 3 (1)(c),lime shall cease tarun from the moment the
preliminary objection is filed until the objection is decided by the
Council.
(4) If a preliminary objection has ken filed, the Council, after hearing
the parties, shall decide the question as a preliminary issue before
any further steps are taken under these Rules."
Now if mv understanding is correct, theCouncil has heard the two ~arties.
This is an-oral procedure. 1 do not wish to embarrass you, but 1 wouid seek
your advice, Mr. President, because in that capacity you certainly have more
excerience in these matters than anvone else here. on whether the filina of
anottier hriefir pdri of such 3 procedure. hly oun Opini~iiis qu.ic ~lcrirlylhat
it ijnui, but I uould Iikc an aipinii~nfrom you. pcrli3p\ uith rhc a5iistdnic of
uLr Lerdl I3ureïu. uhich III~Y hemore imridrtial thxn 1.I may bc biawd in this
rega~d~but 1 mu& say 1 a& a little surGised at the request.
62. The President: 1 don't feel embarrassed. 1 am always ready to give an
opinion and ta be corrected. As 1understand it. although il is not foreseen in
the Mule, ih~t th!? hc donc, ii irnui furbitiden by the ~ules cithcr. and therc
is a gcneril pro\iiion- Article 28, pdrap~iph 1, ti)uhich ihc Rr.prcrntïtive
of Paktstan 3lrcddy refcrred-uhish ssys that the Coun:il shalldeieriiiinethe
lime-liniiis ta bc applied and oiher proiedural que<tions rclating to the pro-
cecdings. The wcond scntence is ais0 iniporiant: ",\ny iime-l~niiin\cd pur-
suant to these Rules shall be so fixed as to avoid anv possible delavs and to
ensure fair treatment of the party or parties conceriiëd." The ~e~rësentative
of France.
63. Mr. Agésilas:1must say that 1have the same fears as the Representative
of Tunisia. If we follow the procedure suggested-that is to say, if weagree
to the submission of a new document-1 think we risk deviating from the
procedure. Suppose that when this document is compared with the verbatim
which the Secretariat willestablish, differences appear, orat least certain mem-
bers of the Council find differences, between the way in which the Represen-
tative of India, in al1good faith 1am sure, summarizes in the document what
he has said and the wav in which the Secretariat reoorts il in the minutes-we
shall, I think. be crearing 8 source of \,Cr) dttticult discusiions. I am alraid.
thcrcforc. ih;ti the xIopiton of this procedure itould niean thai >ir uould no1
k rtricilv resncctinr the nro\isions of oiir R~1c.sfor ihc Scttlcmcnt of I)~ffcr-
ences. ~hat is my opinion, Mr. President.
64. ThePrrsidenl: Any other views on this question? The Representative of
Senee-l.
OS \Ir. l><(t//o1sec tliis as a sor,jfdebxtc un pro~edurc You, Mr. Prcsi-
dent,gave in arlirniîtivc reply ro the quc,tidn of the Ilcprcicntati\~eof lunisin,
but 1 do not think India has yet given a reply ta this question-because they
are lawyers we have with us. Do they think il is necessary to wait for this
document before deciding? 1 do not think so, or else 1 have not understood
very well. Could I be enlightened on this question?
66. ThePresident: No,the Chief Counsel for lndia has requested the Coun-
cil's permission ta file a brief ("mémoire" inFrench), in writing of course,
within a certain time-limit and this brief will be related ta arguments thathave ken adduced in this hearing today. That is asfar asit goes.The Represen-
tative of Senegal.
67. Mr. Diallo: Yes, that is what 1 undentood. Ohviously everyone is free
to write his own book aftenvards. becausereallv ifhas been a verv instructive
meeting for nie-l have hedrd \orne rather extrhordin~ry things Ëiit tlie pro-
blem is this. dfter hearing the tuo pdrtieson theque>tion. are ue fully inforrned
or are we not? I think when vou asked "Has anvone anv auestions?". no one
raised his hand. Everyone is quite clear. ~herefore we nowhave a deCision to
take. If tomorrow we receive a fine document which deals with everything that
has ken said here, and if it is in conflict with the minutes, what is governing
for us is the minutes, which will be distributed and which we shall send to our
administrations. 1 have not really understood very well what relation it is
desired to establish between this new document India proposes to present to
us later and the decision we have to take today.
68. The Presidenr:Well, as 1 undentand il, if the Council would agree to
the request of India, there would he no decision now. The decision of the Coun-
cil on the preliminary objection of India would be taken only after this other
document has been received. The Representative of the Congo.
69. Mr. Ollassa: 1 take the floor orudentlv and sim~lv to ask a auestion.
because1didnot understand the last hterventions very weil. My under;tdndini
was that you had replied in the negative to the question put by the Represen-
tative of Tunisia-in other words, you said that the lndian request was receiv-
able at any lime, having regard ta the actual procedure. That was not iinplied
in the question put by the Representative of Tunisia. 1 should therefore like to
have clarification.
70. ThePresidenr:Well, 1 understood the question of the Representative of
Tunisia to be whether it was in order, under the Rules for Settlement of Dif-
ferences, to agree to the request of India. My answer was that it was really up
to the Council to decide whether it was permissible or not becausethe Council
has Article 28 and can decide as it wishes. The Representative of Tunisia.
71. Mr. El Hlclreri:1 apologize for developing my thought a little further,
but 1 am going to let this point drap, becausereally it is procedure piled on
procedure. We are meeting now on a question of form and I do not want to
get into a whirlpool that risks carrying us far on the subject of procedure. My
doubt, MI. President, is only about whether the hearing is an oral hearing or
whether, once it has been settled, it is possible tomake furtherwrittensubmis-
sions. Article 28 says nothing of the kind. It speaks of lime-limits. The Coun-
cil may now decide to extend the time-limit, but it is not said in Article 28
that ifcan authorize the publication of other documents. That was thespecific
auestion 1 put.
.72. Tl!@~rc.siderrr: read the irh,rle Arti;le.but the uords that ivould ~pply
tu )OUI que5tion are "and other prsccd~ral que,tiuris relaling 13 the procced-
inrs"-"other iiro;ediiralquc>tion\". So itisfor the C'ounciltu de~idewhether
il ias enough bith this oral hearing or whether it wishes to wait and have
more. It is, 1 think, up to eachCouncil member. 1shall have toput thequestion
to seewhether the Council wishes ta accede to the Indian request and I am
going to do sa now unless there is more discussion. The Representative of
Belgium.
73. Mr. Pirsoi~:1 am a little concerned about the procedure. The French
text of Article 28is preceded byfour words, "Mesures intéressantla procédure"
("Procedural Measures"). In other words, the three paragraphs of Article 28
have to do with procedural measures. Article 5, paragraph (4)says "If a pre-
liminary objection kas been filed, the Council, after hearing the parties, shall 79. iilr. Polhh~t.olo:t'rdnkly. the idcd us, not ICI~nilicttipon the Council
3ny furthcr picx <ifwriitcn \iurk: the ide3 \ras mercl) 1~ aulit the Council.
In fact. 5nc:ikin- fair inyself. 1w<iulrlhc riuitc content if. insic0f.1 scmratc
nicmordndutii. whirli I thsuchi ~ould he drifiecl iiith a)me cïrc and liticntion,
the vcrhdtim ni>ic\dre iii3des\liil.ihlc.II! only ilc\irc-l ,h:tllh: ver) Ir3nk.-
is this. As 1see it, there is much more to this matter than mav anvear to some
people at first sight. My only desire is that in a matter of suchfar-reaching
importance every Staterepresented here should have the opportunity of con-
sidering the full arguments before comine to a conclusion. Now. 1 am aoing - -
to spea?<very frankly again, because theré is no use keeping back anything in
my mind. If the normal practice of a particular State is to allow its Represen-
tative hereto make up his own mind after hearing al1 the arguments, that is
al1right hecause the delegates have been kind enough to hear us very patiently.
If, on the other hand, since the mattcr is one of the most far-reaching impor-
tance, there are Representatives who would like to have instructions from
their Government or Administration-and that is not for me to ask; 1am only
stating a possibility-then 1 would say that even if you dispense with the
memorandum, 1 would appreciate having at least the verbatim notes made
available to every member before a decision is taken. As 1said, my desire here
is not to gain'time. 1 am not interested in that at all. 1 am only interested in
seein-. that a .ust. fair decision is reached after full consideration. For that
purpose 1 suggested a memorandum. The alternative, if you don't want a
memorandum, is to have the verhatim notes made available to every member
before a decision is reached. This, again, is a request; 1cannot insist upon it.
It is for this leamed, honourahle tribunal of Council members to consider
whether this request is fair. If they think it is fair, 1 would appreciate their
saying "All right, no memorandum, but let al1 the verbatim notes be made
available." That is all. Thank you.
80. ThePresident: Well, supposing lhat there would be no agreement to or
reauest for a nresentation of a written brief. whether the Council will take a
decisionrighiarr3yor \vilr\ait for thcvcrhsiim m.nute5 10 hea\.tilxble 1ssrne-
ihing \re rhdil only knoii when iic go Io the Jclihcraii<in rt3ge. u,hic1sthe neit
step. Perhaps we should have a coffee-break now and return in 15 minutes
Recess
81. ThePresidenr: The Council is again in session. We still have to decide
on this question and 1am not sure whether at this moment we have a request
from India for nermission to Dresent a written brief on the arguments already
adduced. You indicated that was perhaps either that or having the verhatim
available, but, as 1 said, whether the Council is ready to take a decision now
or will wait for the verbatim is something we shall know only when we go to
the deliberations. So 1would not like ynu now to sign a hlank cheque, because
you might not gel it afterwards, but 1leave it to you.
82. Mr. Pa/khivo/a: Mr. President. My request to the honowable members
is either to have a memorandum from India setting out the arguments or,
alternatively, the verhatim notes, and to consider and take them into account
before coming to a decision. If the honourable members want neither and are
prepared to take a decision without the memorandum, without the verbatim
notes, on a matter of such far-reaching importance, it is their decision.
83. The Presidenr: 1 take it. then. that there is no reauest at the moment.
Perhaps when we come to the delibeiation, the question oi whether the Council
should wait for the verbatirn will have to he suhject to discussion also. 1sthereanything more on the hearing itself before we enter in10 the so-called deliber-
ation? Apparently not. Then we are going to go into the deliberation. 1 had
~ -i.~~ed at the kei-nine of the meetine that accordine to the advice J had
received, when the ~ounGl starts 11sdelib;ration,the usial court practice will
be followed of having the Agents withdraw from the room. India and Pdki5tan
will, of course, stibe represented by other representatives whose names 1read
at the opening. 1 will ask the Chief Counsels of India and Pakistan whether
they have anything to Say before we begin the deliberation.
84. Mr. Polkhivola: Nothine fwther. Mr. President. Thank vou.
85. Mr. Pirrada: Mr. ~resident and honourable members of-the Council. 1
would iust like to take this opportunity of expressi-g m~ dee..gratitude for the
indulgënce shown to us. Thank you.
TheAgewrsund Chief Counselsfor India and Pakistan wirhdraw
86. ThePresident: Before we enter into the discussion 1 would like to know
whether the reauest for a verbatim record applies also to this part of the dis-
cussion. The ~eoresentative of the Coneo.
87. Mr. 0llos~a: Does Article 30 of the Rules not apply in a?y case?
88. The Presidenr: Yes, but you were not here yesterday when 1 gave the
followine-.xolanation. The Secretarv General has been keeoin. v-rbatim tran-
scripts of al1the proceedings pertaining to this case since the very beginning,
but, so far, they have jus1 ken included in the files of the Organization and
will be made available if an..oart. oreven the ~ublic would liketo have access
tothem.Tosave work u.eh~veno1ken diunbuiingthcrn ~nthelhreelsnguirgcs.
Howe\er, yejterday, uhen ive started the hearingon the k'reliminary Objection,
it was agreed thatwe were going to have verbatim in the three languages of
everything that would besaid yesterdayand today. My question now iswhether
this applies also to the deliberation. Do you still want the verbatim? The
Representative of the Congo.
89. Mr. Ollassa: On what would any difference be based? 1 ask you this,
Mr. Presiden1,becauseyou have asked uswhetherwe want the verbatim or not.
Why would there be a diiïerence in procedure?
90. The Presidenr: For the hearing. the Council wanted to have al1 the
arguments in writing, particularly because hoth parties have made important
presentations. We are now going into a discussion which is closer to the usual
type of discussion the Council has or which is similar, let us say, to the discus-
sions we had in Vienna when we set the date, etc. But 1 was jus1 asking a
nuestion: 1 am not sue--stine that there should not be verbatim. 1 iust want
10 know ;O that the necessarysteps aretaken. The Representative of the Congo.
91. Mr. Ollasso: In view of the importance of the question, Mr.President,
we should follow the same procedure.
92. ThePresidenr: Then we shall continue with the verbatim. We now enter
into the deliberation on Case 1 and the basic proposition before the Council
is the one presented hy India, namely, that the Council has nojurisdiction in
this Case. The Representative of the United States.
93. iblr.Blttler:The remarks 1 have to niake now are necessitated by the
referençes on manv occasions to the oosition stated bv the United States in
responseto a quesiion in the Court onihe iVoniihicasewhich hasjus1 recently
been decided by the International Court of Justice.
1wotild like to make the msition of the United States clear duritir! this dis-
cussion phase, becausethe kesponseof the United States has beeniubmitted
as part of the record and it will be noted chat the reply of the Counsel for the United States in that case was addressed to the question of the suspension or
terminalion of a treaty by one party or brought about hy the matenal hreach
of that treaty by the other party. There have ken extensive references to
Article 60 of the Vienna Convention on the Law of Treaties and the question
of material hreach as faras that Convention is concerned. 1should like to refer
for a moment, if 1 may, to Article 65 of that Convention. Now, while the
Viema Convention mavnot be in ~~rce. as has been oointed out. manv of its
articles are codifications of existing international law. While p&agraih 4 of
Article 65 may nothave the force of a treaty among States around this table
it should be keot in mind as a orovision thouaht necessan, bv the drafters of
the Vienna convention conccrning the rights and obligati(hs of parties IO any
rreaty uhich h3s a provision regarding the settlcment of disputes. Article 65
deals with the procedure IOk follou,ed with respect to invalidity, termination,
withdrawal from or suspension of the operation ofa tresty. Now, obviously,
theestablishment of 3procedure such as this is no1bssed mcrely on codification
of existinainternational law. but it is imoortant that.Dar-.ra~h 4 orovides that
thrproce~iirc for notificntio" of othrr parties to the same ircaty d"cs no1aflîct
the rights and obligations of parties IO the treaty or any provisions in force
which-bind the with regard to the settlement ofdisputes.
It js the United States position-and our response to the Court in the
Narnibia case should k read in this context-that Article 84 of the Chicago
Convention, as well as Article 7 of the Mandate which was the subject of the
Namibia case and refers to questions of interpretation and application of the
terms of the Convention, includes auestions related to any provision. al1pro-
visions, of the Convention. It doernoi secm possible to us-that one plirÏy to
a convcniion or a treaty may negatc procedures for the settlemcntofdisputcs
by stating that the treaty is no longer in force and thereby depriving of ifs
jurisdiction to settle the dispute the tribunal that has ken given jurisdiction
in the settlement of disputes. Thank you.
94. The President: 1sthere funher discussion? The Representative of India.
95. Mr. Gidwani: Mr. Chairman, 1 am in some difficulties. 1 do wish that
the legal point that is being raised at this stage had been raised when the
lawyers were present here. However, 1 will try my best to answer my friend
from the United States.
Briefly,the position taken by him is simply this: that the words in Article 84
of the Convention, when they refer to interpretation and application, would
seem to cover each and every grievance, each and every dispute,each and every
difference, but as the Chief Counsel for India explained this morning, if that
were so Article 84 would simply say that if any disagreement whatsoever
'between two Contractina States should arise. the Council has iurisdiction. Our
contention, Mr. ~resideit, is simply this, th& the words "int&pretationW and
"application" have a narrnw, restricted meaning and cannot be deemed to
inckde termination. Thank vou.
96. ThePresidenr: If no oie else wishes the floor,1uill have to put the next
question. That is whether the Council is ready to go now to a decision on the
basic questions raised hy India. Do 1take the silence as meaning that we can
proceed with the discussion and eventually reach a decision?The Representative
of the United Kingdom.
97. Air ViceMorshal Russell: On this question of going now to a decision,
Mr. President, we have heard lengthy discussions and expositions, although
they may k brief in legal terms, and not king a lawyer, 1 could not regard
it as reasonable for me, myself, to participate in a decision here and now on
the rneritsof the preliminary objection, which for me turnsentirely on questionsof law. To that extent 1 shall therefore not be able to support any positive
action on the substance of the matter. For me it is essential toobtain legal
advice on the arguments which have been presented before so participating.
98. The Presidenr: Further discussion or views? The Representative of
Czechoslovakia.
99. Mr. S~ohodo: 1 should like to ~xo~ess .l~ ~ ~the same~ ~ ~ as~ ~e ~
Representative of the United Kingdom has expressed, because 1 too am not
a lawyer. During these two days we have heard many things linked very closely
to internationalÏlaw and 1 tao would liketo have the nossi<i~itv of consultine -
my Administration.
100. The Presnlrirr: Since there are two Representatives, at least, who have
some difficulties. 1think the first thine we have to settle is whether we oroceed
with the discusiion înd ihr. drciïion now or uheiher there should be same
interval. The K~.prescnt3ii\e of lklb'?uni.
101. .\Ir Plrsmr: \Ve havejusl heîrd the Kepreseniaiivc* of the United King-
doni and C7echoslovirLia request defernient io permit them tu reccive in,iruc-
tions. Ci~uld irc knoiv hou long 3 dela) tliey hï\e in niiiid? Ir itfor exïmple.
a week?
102. Air Vice Mirrsltol Russell: What 1said, Mr. President, was that 1could
not participate in a substantive decision at this time. unfortunately being.with-
out leeal trainine mvself and not havine had the onoortunitv to seek leeal
-~ -. - . r ~ -
advice. 1 was not asking for time. 1 was simply saying that 1 was, unhappily,
not in a position to evaluate from a strictly legal woint of view the presentations
which have been made to us.
103. ThePresident: That clarifies your position very well, 1 think. 1 don't
know whether the Representative of Czechoslovakia wishes to say more.
144. Mr. Svoboda: 1 would need a minimum of eight or ten days, if possible,
to consult my Administration.
105. The Preside~it:The Representative of the Congo.
106. Mr. Ollassa: Mr. President. throueh vou 1 would like to out a auestion
Io ihe ~e~resentati\e or the unitcd ~iii~io;. Does he mcan thÛi he w;ll iiever
p3rticipate in a decisiun?- k~sw he said he co~ld not cvsluate the question
but mdde no mention ofiin!. delsy. \\'ha[ does thxt m<ün. >Ir. I'rci~deni? 1she
going to consult to <~htîin ~d\i:e ss ihat he caii participate or jwr he inean
simply thai he irillnorr psrticipate bccïu~c hç cïnnoi mdke the evaluation
hiinself? 1 did not grasp very well the nuance there was in the reply he iave us.
1admit it must be very difficult for him to state his position very clearly, but
1 did no1 understand it very well. We must know if deferment will permit the
entire Council to narticioate in the decision or not. becauseif there isdeferment
and we arrive at'the same result-some saying that they cannot evaluate the
correctness of the legal presentation-if would be very bad, Mr. President.
107. The Presidenr: 1 understood the second intervention of the Reoresen-
tative of the United Kingdom as meaning that ifthe Council decides now he
will not take part. Perhaps he doesn't wdnt to say what he plans to do in the
future; so it is completely up tohim to answer or not. ~he~~e~resentative of
the United Kingdom.
108. Air Vice Morshal Russell: Of course, Mr. President, 1 was not saying
1 wouldn't oïrticioate. If the distineuishcd Reoresentative of the Coneo had
ken present yesterday, perhapseven with his ;minent legal training hewould
have as much le~al indigestion as 1 have. 1 don't wish to treat this matter in
a spirit of levitvi 1 am endeavourine -o treat it seriouslv. The essential ooint
Io ive15 thii ih~. ia legal quesiion dnd for me-and 1dm not trying to çxtend
rny posiiion ro dny iither Reprewnt~ti\e on this Couiicil-the expression ofîview on the substance of the preliminary objection turns entirely on niatters
of law. Now 1 am not a lawyer and at this particular moment 1 am perhaps
a little bit sorry and a little bit glad that 1 am not a lawyer, but it is a fact
that 1am no1 and it would be unreasonahle-1 think that is the right word-
for me here and now to express, on behalf of my country, a substantive view
on matters of quite complex law. AI11 am saying is that, for better or worse,
1am not in a position todo so.
109. The President: The Representative of France.
110. Mr. Agésilas: Like the Representative of Belgiuni, 1 think that as il is
evident that several of Our colleagues need advice or instructions before a de-
cision is taken, we must, in fact, consider deferment. 1 personally would k
ready to participate in the taking of a decision immediately, but I must admit
that what we have heard during the last 48 hours needs some digesting. We
are, however, faced with a procedure in the Rules for the Settlement of Difier-
ences that is precise and indicates that after hearing the parties the Council
mus1 decide. The Convention. like the Rules. svecifies that it is.the Council
which musi decide; it does nit say that the members of the Council must be
lawyers. 1 therefore believe that, as the Representative of Belgium raid, a
deferment ofeightdays would help acerfain number of our colleagues Io obtain
advice or instructions and it would certainly be desirable that the larges1 pos-
sible number of Council memhers be in a position to participate in the taking
of a decision. 1, for one, would have no objection to an interval of the order
1 have indicated before we have another meeting at which we can take a
decision.
111.The President: The Representative of Tunisia.
112. Mr. El Hicheri: 1 believe the question is basically very simple.There
has ken a long discussion, but essentially it was on the question of whether
the Council was or was no1 comoetent in this alfair. and 1think that since the
preliminary objection wasfiled,chancelleries and national administrations have
had time to study it and form an opinion on this question. Some of us think
that the Council is comoetent: others are of the opinion that it is not. In any
~ve~t. what 1 wan~ ~ ~~m~ha=ize~ ~ ~h~t the auestion is simule enouah. ~he -
argumcntatiun hxs ken rather long in m) opinion. but thxi 18 iinoiher Iiiattcr.
The aucstioii ii siniple and I think nïtionlil 3dminisiraiions and leglil services
have had sufficient iime Io make up their minds on the validity of the prelimi-
nary objection, just as India and Pakistan have ken able Io make written
submissions.
1 am a little embarrassed because 1 do not see exactly under what Article
of the Rules for the Settlement of Difierences deferment could be envisaged.
The Rules are obviously quite flexible. In principle, we should take a decision
immediately after hearing the parties. There can be objection, but il should be
couched in the form of a proposal and could then k voted on. That is what
1 wish Io em~hasize. Mr. President. To be very frdnk. 1 do not think eight
days would be long enaugh fur ihose uho are nit iuficie~itly iiiiornied i)n Ïhe
question eien though IIis alniasr two months stncc ihr' prcliiiiiiiir). objcriion
was filed andthe legal services and administrations of the countries represented
on the Council have had time to consider it. 1 think that if some of ils wish
Io request deferment for onereason or another, they should, in theseconditions,
make a firm proposal specifying a time-limit. I have the inipressinn that it may
be covered bv Article 28 or some other orovision of the Rules. which seem
fairly ficxihlc. In principle, haiic\cr,uc sh<>uldplsr iiiiniediately id .tdectsioii
after hesring ihe psrtic,. Si~w ii appc.irs th31 s<inieof u>:.re n<-tredy io il.>
soand thereshouldtherefore beap&posalfordeferment in dueand properform. 113. The Presidenr: The Reoresentative of Seneaal.
114. MF. Diallo: My delegaiion is a little embariassed by this situation. We
are in fact, moving alorig a procedural trail that is rather delicate. 1 understand
the attitude of thédelrgations who would like a deferment becausethey need
instructions to be able to take a position, but 1 reject the argument that the
27 of us here mus1 be lawyers 10 decide questions of this nature. My persona1
oo.nion~ ~ that not everr sciencemav becharacterized bv loaic and aood sense.
but any one worthy of ihe name is. in any event, we ha;e heard théarguments
of the Iwo parties, we have evaluated them, and the question before us seems
to me much sim~ler than al1 we have heard. Perhaps 1am aoing to be a little
brutal, but the question is as simple as this: 1s the Counci going to survive
or die? 1sit going to take ils responsibilities or refusethem? For methe problem
is no more comvlicated than that.
Noti there may bea problçm of digesting XII uc hiive hcard during the last
48 hours, but the decision does not bcïr on thc nierits of the dispute between
lndia and Pakistan. The question kfore us is whethcr the Cuuncil i,competent
10deal with the problem-and 1think that in the Iwo months, if not more, that
we have had, everyone has made up his mind-to borrow the words of our
colleague from Tunisia-no1 as to the substance, but as to the procedure. 1say
this to explain that 1 am ready to vote today on this question, but 1 do no1
want to press those who wish to have advice. If we must defer the vote, we
must know whether or not the debate is closed, becauseif it is not closed, if
we have to set aside another 48 hows in the month of August-well, il is very
fine 10 have marathon sessions like this, but we must know exactly what is
wanted and what we are going to do. If the debate is closed, we are goiog
to have a meeting from 10 o'clock until noon, we know that we are here tq
vote, and those who do not have instructions can stay away if they wish, but
we shall have fixed a lime-limit for coming Io a vote. We mus1 think of the
Delegations of lndia and Pakistan, who come from the other end of the world.
Are they 10 be forced to wait around here for 8 or 14 days so that they can
answer questions that are going to be put to them? 1am not very well informed
on the orocedure it is desired tn fnllow. In anv event. if the debate is closed
r - ~-~ ~ , , ~ ~ ~
and if we must give lime to the Representatives who want precise instmctions
from their administrations. 1donotthink it would bewise to oupo..deferment,
although 1really do not seeof what use il will be.
IlS. The Presidenr: Before we proceed I would like to make clear that the
fact that we are now in the deliberation stage meaus that the hearing stage
has beenclosed, so there is no question of going back 10il. It is only a question
of deliberations so that the Council can decide whether or not it hasjurisdiction.
The Representative of the Congo.
116. Mr. Oll<rssa: 1 would like tn~~-v~.hat althoueh 1 have-no1 had the
benefit of the brilliant argumentation here yesterday, 1 am ready to take the
decision that hasto be taken. because.as many speakers have said, the problem
hasken with ussince Vienna and wehave had lime to think about il. Obviously
il canbe said that IO take a decision without having heard the parties is perhaps
unjust, bot in a certain way the problem is objective. Il is a malter of knowing
whether the Council i~ com~etent.or n~ ~-~t is~a leeal orob-.m that does no1
depend on the arguments of one party or the other and in my opinion it is a
probleni that presents itself in a rather simple way. It is claimed that we need
10 have in wriiing al1 the argumentation pr&ented here. Well. 1heard a good
part of it and without being a great lawyer I San say irnmediately that many
of the arguments were foresceable and imaginable and therefore we have
already taken them into account in our reasoning. In a question as important as this, Mr. President, what is important is that
the Council, as a body, should be ready to take a decision. It happens that
this is not the caseand becauseof that 1fullv agreethat we should have a delav.
1 think, too, that this would be equitable to the two parties, because one
wanted no delay, the other asked for 14 days, and a week's deferment would
split the difference-to use a rather vulgar expression. 1 shall therefore vote
-if there isavote-with those who want a deferment of 8 days, which 1 think
was one of the figures mentioned. Eight days would be much better than IO,
because 10 is too close to 14.
L17. Tlt@Prendenr Bcfore wecontinue, lwould Iike io givesomeinfomiion
regarding documentation. You recall ihai ycsicrday therç was a request for
verbatim minutes and they, of course, will take tirne, becausethey have to be
translated. 1think the Secretary General reckons that for these four meetings,
which have been rather long, full minutes in the three languages will require
between thee and four weeks. On the other hand. 1 understand that oart of
the Summaries of Decisions hasalready gone to the ~aiguage Branci, &ore
will be going, and just to be on the safe side, the last one, in other words this
afternoon's,~sbould be distributed in the three languages, of course, by noon
next Friday. The Representative of ltaly is next.
118. Dr. Cucci: 1 had no1 intended 10 speak at this stage, but 1would like
to sav. first. that if the Council's decision is to have a deferment. 1 shall vote
for ii1f théCouncil wishes to take a decision immediately, 1cando the same,
but in my opinion we are faced today with an alternative. 1sdeferment neces-
sarv to enahle certain ~e~resentatives on the Council to dia-st what thev have
heard and then-and ihis is ihc essential-inform ihcir respective ndniinisira-
tionî? For me "inlorm administrations" mcans io inform them fully. As h3s
ken said. vesterdav and todav we have hearda whole seriesof verv interestina
things. ~ëtherefore need the minutes. The Summaries will be of no use whac
ever, especially for people who have no knowledge of law. That is why 1 say
that it isbsolutelv meaninaless to soeak of a deferment of 8 davs. It does not
give ~cpresentïri~es on coincil the'possibiliiyof informing thfir adminisira-
lion$. The aliernatives, in my vicu., arc to take an immediate decision-and I
am readv to do so-or to have a reasonabledeferment. that is to sav. a defer-
ment ihat u.111enablc al1of us io inform our adminisirotions fully. ihe subject
is eiiher difficuli or not difticuli. Ifii is difficuli, u,emust have ihedocumentation
from the Secretariat. Therefore-and 1 repeat that 1 am advocating neither
one thing nor the other-if 1am obliged to take a stand on deferment, it must
be on a deferment that givcs everyone the Dossibility of informing his adminis-
tration completely. ~o~obvious& cannot inform administrations on the basis
of Summaries or personal ideas that may be in conRict with the Secretariat's
record when that appears. That is why, for me, 8 days is not a reasonahle
deferment. If an 8-day deferment is the alternative. it would be better Io take
an immediate decision.
119. The President: The Representative of Belgium.
120. Mr. Pirson: We are read~,to~.articinate in a decision todav. WC have
studied uiih a greai deal of inicrert the prcliminary objection filcd bv India,
u.hich uas firsi distributcd in Enylish on 3 Junc. We hd\c 11ceiiabIr.ru
studv I1dki,t.in's re~lv. in Enclish. io Indix's nreliniin~ry obieciion. Because
. .
1wai in Europe at ihéiime, this st"dy could bémade in consultation with the
competent services of the Belgian Government. Ipersonally consider the very
brilliant prcsentations we have heard yesterday and today only an explanation
of the position that had been given to us very clearly in the two documents,
and consequently it does not appear indispensable to defer the decisi011of theCouncil Ilo~e\,er, as certain Representsti\es wish tu have deferinent, I think
we bhould give IIto them. but in the niciniime du nothing thdi could be
considercd contrüry Io Art~cle 5 of the I<ulesfor the Seitlement oi Dirlerences.
In other words, the Council mus1take a decision, but il can take that decision
in 8 days, 10days or 15days. The only problem we have at the moment is this.
If those Reoresentatives wish to be informed of the views of their governments.
it mesns that thcy consider that the t\ro documents that hüvc &:en presenicd
-the preliminary objectioii oi India, disiributer( un 3 Junc. and Pakibtlin'r
rrply IO it.d:riributed in English on 9 Jul,-uere not sullicicnti,iDerniit them
10-come th a conclusion. lnthat case it is essential Corthese Reiresentatives
Io have at leut the Summary of Decisions. 1am not speaking of the minutes,
because1believe that to ask for them nieans deferring any decision for at leut
a month, and it seems to me that in the circumstances that would not be
reason~ble or in conformity with Article 28 of the Rules for the Settlement of
Differences.
It seemsto me, however, that we should be able to have the Summary and,
when we have it, those Representatives who have just expresseda desire to be
able to consult their governments can do so. If you tell us that the Summary
will not be available until next Friday, that is to Say, in 9 days, 1 believe
it would be difficult for us to take a decision on the subject ihat same day.
If we reallv wish to -ive the Reoresentatives who wish il lime to consult their
.idminisirations. we musi give ihcni a feu mure d.i)s tlie sliortcst lime porsible
comp3tible with Article 28 of the Kules for the Scttlc.ment of Ditlerences. It
seems Io me, then, that we must give 12, 13, 14 days to permit speedy
consultation with governments.
1 shall therefore not oppose any request for deferment of a decision for
14 davs. unless the Summdries are available sooner. If we could have the
Summlirie5-and I realize thatit is an exorhitani n'quest I am making of the
Secretansi-next Monda).. we ci~uld, 1think. decide the question on Monda)'.
9 August. \Vc would bcirllowing a wcek after the distribution of the Summüries.
If the Siimmariescün be distributcd onlj next Friday, 1think ii trould hereally
dcficult Itot to defer the decision on the subject for 5 or 6 days. Thüt would
mean that the decision would have to be taken bv the Council about a week
after the distribution of the Summaries, and wheo chat is will depend very much
on the work of the Secretariat. We know that the particular person concerned
always works with zeal. enthusiasm and intellieence. and in this casewe ho~e
she willcontinue todo sb, but we must also be reasonable. We must not demafid
of others what we do not always demand of ourselves, Mr. President, that is
10 sav. tu work dav and nieht so that we can have this material
Inium. thereroré. I uuuid Iike to 5s)ihar I shill not oppohe an) fi~rmul~
th;it coniirts in asking the Council tu take adecision s ucek afier thedistribution
of the Summaries of the debates in which we have iust oartici~ated.
121. The Preside,rr:Thank you. The ~epresentaiive of ~ganda.
122. Mr. Mimiri: Like the Representative of Italy, 1would prefer. if we have
a delay, that if be a meaningful one. 1 myself would be prepared to take a
decision now and it would then be understood that my decision would be
limited to my knowledge of the Convention, the Transit Agreement and the
Rules for the Settlement of Dilïerences. The Namibia case and al1 the other
cases that have been cited and the Vienna Convention are the things which
put us off.These are the things about which we need to consult lawyers whose
businessis much wider than Our business here.If we are to make consultations,
to make sure that our advisers are going to look into al1 these matters that
have been discussed yesterday and today, we need enough lime. This is notsomething you can do after getting a summary of our deliberations yesterday
and today, sending it to your Government and saying "Will you give me a
reply within 5 days?" It would take Lime. Either we delay the decision for 3
or 4 weeks and get advice on the implications of the Vienna Convention
and al1the cases which have heen mentioned, or we take a decision now, basing
it on the documents we have here. It al1 depends on what we consider to be
the function of this Council. If the function~of this Council is to deal with al1
aspects of international law, if our decisions must take due account of al1the
international decisions which have heen made. of al1the cases which have been
ciied here. ihenWC have go1to h~vcricic io examine ihese ihing, and get proper
odvice, but if we are cxpected to dedl only wirh the mdtters dedli iviih in the
Chicazo Con\ciition. in the Iran$ii Aarcement and inihc Rules fur the Seitle-
ment of iff fer en cw escan take a décision today. Things which put us off
are matters which are not defined here. For instance, it was heing argued that
a convention could be susoended hv one State in resoect of another State or
termlniitcd by one Siaie in respe..i <>fanother Srare. ~his i.; the sort of thing
abi~uiuhich I iim in doubi. 1ni)self didn'i Lnow ihis could be done and I wlis
prepared to deal with the matter recognizing that 1 am ignorant of anything
outside the Convention. 1would prefer to take a decision today, Mr. President,
but if we are to defer it, the period of deferment should be long enough to
permit sufficient investigation of the matters which have been cited.
123. The President: Thank you. The Representative of Spain.
124. LI.Col. Izquierdo: In general 1 agree with what the Representatives of
Italv and Unanda have said. Basicallv. 1 am vrevared to take a decision todav.
weactuallyhave in Ourhands the do&mentsbeneed. We have the conventio",
the Transit Agreement and the Rules for the Settlement of Differences. We also
have India's ~reliminarv obiection and Pakistan's revlv. Thus the onlv new
elements thatAhaveenteied into the discussion are thékasterly presentations
made hy the Counsels for India and Pakistan. The Summary of Decisions
reallv would not heln.us. .ecause what we have to think about seriouslv is in
thc,e mditcrl, prcreiiiations. '1herefore, to ci~nsultmy C><ii.ernmenton these
prescnriiii<>n>I. musr first hiive ihc \erbaiirii froni ilic Sczrciariai. Tlicn 1muit
send it to mv Government. Then. of course. there will have to be a meeting
of lawyers spécializedin international law, which will take 5or 6weeks. 1therez
fore am in favour of taking a decision today, Mr. President. or in the extreme,
6 weeks from now, so that Our administrations can study the new elements,
and only the new elements, introduced in the masterly presentations of the
Counsels for Pakistan and India.
125. ThePresident: The Representative of Colombia.
126. Major Charry: 1 was going ta say practically the same as the Repre-
sentative of Spain. Eight or 10days would be of no use to me. 1shdll have to
wait 3 or 4 weeks for the detailed minutes. 1 would then have to send them
Io my country. thc Ili\iycrï uould mccr--usu3llg rhcrc are four of tlicrii. ucli
wiih a diticrenr polnt oi'vie\i. This \iould inkc ? or 3 nionihi. and Ido not
th~nkihal \vould he fair to ihc pciriiesio [lie dispuic. On the oiher hdnd. I:lm
nor s laivycr, but 1understand thst I~iiis thc naturd order oi thi~igsand I do
rio1 think ilis neccssdr) io go into furtlicr dci.iilsA< oihcr Reprr.1ent3rives
hivc said. ihc Council eiiher iior 1,not comrieicnt io dcll wiih this qucstii)n.
1have formed an opinion, and 1am ready tovote immediately.
127. ThePresident: The Representative of Tunisia.
128. Mr. El Hicheri: Just a few words on this question. Mr. Presideiit, he-
cause, really, hetween deferment and no deferment, memorials and counter-
memorials, time-limits, etc., 1am beginning to get lost. We are advancing, butalwavs runnina -way. -nd 1ask mvself when this is xoinx to end. Besides.this
seemi to me more and more like aKafka novel; 1 <il1 say no more than that.
1 wish only to ask you a small question, Mr. President. When we met in
Vienna and decided to meet in Montreal at this lime-since it was vour humble
servant who proposed the date that had a chance of being acce~table to the
Iwo parties-and to interfere with the holidays, the private life. the professional
life. of manv of Our colleaa-.s. was it sim~l. .o hear the oarties and then ro
or W& 11 IOhear the parties and takç a decision'! ~hdi is the quci~ioi I
wish toask you. hlr. Presidcnt. becausethis afiir 1skginning IO becornerather
ludicrous. corne, listen, leave, return-this must end some day.
129. The President:1 don't know what the Representatives on the Council
had in mind when they look the decision. That point was not specifically dis-
cussed. It was simply agreed that the Council would meet on 27 July to hear
the parties on the preliminary objection. We didn't say more than that. So
perhaps some people thought that we were going to take a decision and others
did not. The Representative of Senegal.
130. Mr. Diallo: Jus1to expressmy opinion, Mr. President, and to Saythat
if you ask us to decide whether we should vote todray, 1 shall vote in favour
of doi~ u -~~I-~,ou ask us whethe~ ~ ~ ~ ~ to defer. 1 shall abstain~-~d~ ~ ~
decision will be taken by the majority of my colleagues. As for havingmeetings
in August. 1would hopethat after the final meeting on this question we decide
to ha& a month's vacation in January or ~ebruarj, becausewe are in danger
of not having any this year.
131. TlrePresidenr:I am hesitant to put any questions kcause you will recall
that anv decision the Council takes. even for a delav. reauires a statutorv
.. .
majority; it requires 14votes. 1 thereforedon't want to put anyone in difficully.
That is why 1don't want to put questions until 1really have to, but of course
1 shall have to do so eventuallv. The Reoresentative of France
132. Mr. Agisilus:1havealréadyindicated that 1wasready Io take a decision
immediately, and a little while ago 1 ex~ressedan opinion favourable Io a
deferment that appeared reasonab6 to me. But Iam not in favourofadeferment
of the length now king envisagedand 1think, therefore, that a decision should
be taken immediately, that is to Say, tomorrow morning, because it will be
necessaryin some casesto give explanations of vote. In conclusion, then, 1am
in favour of a quick decision tomorrow morning.
133. The President:1 have had no proposal for a delay. There have been
only suggestions so far. May 1 take it that the Council will meet tomorrow
morning and proceed to take a decision? The Representative of India.
134. Mr. Gidwani: Mr. President, the decision is naturally for the Council
to take. but 1would jus1 like to draw attention to one factor: that in Vienna
you look a certain decision and that decision was that you would have this
meeting here to hear the parties. 1 am rather surprised that after hearing the
parties you should immediately try Io reach a deliberative judgment without
making available to the Memkrs of the Council either a summary or a ver-
batim record.
Mr. President. 1 also want to oint out that the Government of Pakistan
was good enough to furnish a riGy to the preliminary objection filed by India,
but there is no mention in the Rules of the submission of a re~ly. You were
good enough to circulate that reply. 11reacheduson 20th of July.~1twassenton
the 22nd to our Chief Counsel, who was to leave on the 24th. We therefore
did submit to you this afternoon that we would like to send a detailed memo-
randum on this subject to clarify the pleadings we have taken. You have also
heard today that there are certain Council Representativeswho would like torenort to their Governments on the leaal issuesinvolved and obtain their advice.
h;t it seems ta me that the Council perhaps wishes to consider taking a decision
now. 1would suhmit to you, Mr. President, that any decision you try to take
today will be a vitiated decision if you do so without proper ~ecord, without
proper minutes, without proper notice, when at the meeting in Vienna you
decided that you would merely hear the parties in Montreal on 27th July.
135. The President: Regarding what we decided in Vienna, 1read the record
and 1think we have no more than that. Perhaps without now deciding to take
a decision tomorrow, we could say that we shall continue this discussion to-
morrow morning. For the time being 1 have no proposal for deferment; so
unless there is such a proposal tomorrow, on which we will have to vote, the
Council will eventually reach the point of having to decide. We shall therefore
meet tomorrow morning at 10 o'clock. The order of business for tomorrow
has already been prepared. After the end of the discussion on this question,
we shall go into the other question of Resolution 3911. The Council is ad-
journed. (e) COUNCIL-SEVENTY-FOUR-TH SESSION
Minutes of rheSixth Meeting1
(The Council Chamber, Thursday, 29July 1971,at 1000hours)
CLOSED MEETING
Presiàent of the Council: MI. Walter Binaghi
Secretary: Dr. Assad Kotaite, Secretary General
Presenl:
Argentins Com. R. Temporini
Australia Dr. K. N. E. Bradfield
Belgium Mr. A. X. Pirson
Brazil Col. C. Pavan
Ca~ ~ ~ ~ ~ Mr. J. E. Cole (Alt.)
Colombia Major R. Charry
Congo (People's Republic 00 Mr. F. X. Ollassa
Czechoslovak Socialiçt Republic Mr. Z. Svoboda
Federal Republic of Germany Mr. H. S. Marzusch (Alt.)
France Mr. M. Agésilas
lndia Mr. Y. R. Malhotra
lndonesia Mr. Karno ~arkah
ltaly Dr. A. Cucci
Japan Mr. H. Yamaeucbi
Mexico Mr. S. ~lvea;~6pez (Alt.)
Nigeria Mr. E. A. Olaniyan
Mr. B. Grinde
Norway
Senegal Mr. Y. Diallo
Spain Lt. Col. J. Izquierdo
Tunisia Mr. A. El Hicheri
Ugÿnda MI. M. H. Mugizi (Alt.)
Union of Soviet Socialist Republics Mr. A. F. Borisov
United Arab Republic Mr. H. K. El Meleigy
United Kingdom AIVIM J. B. Russell
United States MI. C. F. Butler
Also presenr:
Dr. J. Machado (Alt.) Brazil
Mr. L. S. Clark (Alt.) Canada
Mr. B. S. Gidwani (Alt.) lndia
Mr. M. Garcia ~en/to (~lt.) Spain
Mr. N. V. Lindemere (Alt.) U.K.
Mr. F. K. Willis (Alt.) U.S.
Mr. A. A. Khan (Obs.) Pdkistan
Mr. H. Rashid (Obs.) Pakistan
Mr. Magsood Khan (Obs.) Pakistan
Secretoriar:
Dr. G. F. Fitzgerald Sr.Legal Officer
Mr. D. S. Bhatti Legal Officer
Miss M. Bridge CS0
' Rcproduced from ICA0 Doc. 8956-C/lOOl.C-Min. LXXIVI6(Closed). MEMORIAL OF INOIA 267
SUBJECTS DISCUSSED AND ACTION TAKEN
SubjectNo. 26: Settlementof DisputesbefweenContracting States
Pakistan versusIndia-Suspension by India of Flightsof Pakistani
Aircraft overIndian Territory
1. The meeting opened with the statement by the Alternate Representative
of India reproduced in Part II, paragraph 2, of these Minutes. A request for a
legal opinion from the Secretariat on the validity of an immediate decision
was denied on the ero-nd that the Council was at this time sittine as a court
and accoiding to Icgal pnictice .ri,ouldhave IO pronounce on ihar;uestion it-
srli The Re~rcxntaiivcs or the Peoule', Ke~ublicof thr Congo and Australia.
however. diiaereed exoli.it~ ~ ~th the 1ndia" ~-~ition and théReoresentatives
of ~okay, canada and &ance disigreed wiih it implicitly in declaring their
readiness to uroceed to a decision forthwith. The Representative of the Czecho-
slovak ~ocialist Reoublic. s.ooo..ed hv the ~eorësentative of the Union of
Soviet Socialist ~eiublics, proposed défermentof a decision until 10 August,
but when out to the vote this orooosal failed to receive the statutory majority
which it had ken understood~-~om~ ~e start of the oroceedin~s on the ~akistan
application and complaint would be required for'any decision, the result of
the vote being 8 for, none against, and 10 recorded abstentions (the Represen-
tatives of Argentins, Brazil, Canada, the People's Repuhlic of the Congo,
Indonesia, Mexico, Norway, Senegal, Spain and Uganda).
2. The President then expressed his intention of putting to a vote the fol-
lowing propositions based on the preliminary objection:
Case I (ApplicationofPakistanunderArticle84 of theConventionand Article II,
Section 2 of the InternationalAir ServicesTransit Agreement)
(i) The Council has no jurisdiction ta consider the disagreement in
Pakistan's Application in so far as concerns the Convention on Inter-
national Civil Aviation.
(ii) The Council has no jurisdiction to consider the disagreement in
Pakistan's Aoo..ca~ion~in so far as ~ ~ ~rns the International Air
Services Transit Agreement.
(iii) The Council has no juisdiction to consider the disagreement in
Pakistan's Application in so far as concerns the hilateral agreement
hetween India and Pakistan.
Case2 (Cornplaintof Pakistan underArticle II, Section I of the Internationai
Air ServicesTransit Agreement)
(iv) The Council ha$ no jurisdiction to consider the complaint of Pakistan.
The Indian Delegation asserted that this was an improper formulation. Ac-
cording to Article 5 of the Rules for the Settlement of Differences, if the res-
pondent questioned its jurisdiction, the Council had to decide the question-
in other words, the question of jurisdiction-as a preliminary issue before
any further steps were taken under the Rules. The proper formulation there-
fore was "Has the Council jurisdiction to consider the disagreement in Pakis-
tan's Application.. .?", etc.; any other would he prejudicial to India and
contrary to the Rules. The President explained that the Council so far hadbeen proceeding on the assumption that it did have jurisdiction; India had
challeneed its iurisdiction: the Council accordinelv had now to decide on the
challenge. ~hé~epresentatives of Canada, the Üiited States, Tunisia and the
Peo~le's Republic of the Congo supponed the President's formulation, main-
tain& thal-the purpose of the vole was to determine whether the challenge
was upheld, not whether the Council had jurisdiction. The manner of fomu-
lation would not affect the results of the vote, but was important buse of
the precedent-making nature of the decisions to be taken.
3. The result of the vote on the fint proposition was none in favour, 20
opposed and 4 abstentions (the Czechoslovak Socialist Republic, Japan, the
U~~ ~~~ -Soviet Socialist Renubl.cs and the United Kinedom). The lndian
Delegation protested that the manner in which the vote Lad &en taken was
incorrect and inadmissible under the Rules for the Settlement of Differences,
and requested a rollsall on the remaining propositions.
4. The President noted that only parties to the Transit Agreement' (except,
of course, India) were eligible to vote on the second proposition, but the sta-
tutory majority would still be required for a decision. The result of the vote
was as follows:
For: None
Against: Argentina, Australia, Belgium, Canada, the Federal Republic
of Germany, France, Mexico, Nigeria, Nonvay, Senegal,
Spain, Tunisia, the United Arab Republic and the United
States (14)
Abstained: the Czechoslovak Socialist Republic, Japan and the United
Kingdorn (3).
S. After several Representatives had questioned both the necessity and the
desirability of putting the third proposition to the Council-and, indeed,
whether Pakistan had really sought relief from the Council under the bilateral
agreement-the Representative of Pakistan, after consulting his country's
Chief Counsel, stated that it had not; the bilateral agreement had been men-
tioned simnlv to reinforce the case beine made for Council action under the
convention and Transit Agreement. ~he~ndian Deiegation protested, calling
attention to the frequent references to the bilateral agreement in Pakistan's
Anolication and to the fact that in the nrelirnina~ objection India had denied
. -
the~ouncil's jurisdiction to handle an; dispute under a bilateral agreement;
they did not, however, insist upon the third question king put, having already
-eone on record as considerine anv decision taken at this meeting i&rover.
6. A roll-call vote was thehtakén on the fourth proposition, oily ianies to
the Transit Agreement (except India) again king eligihle to participate. The
result was:
For: the United States of America
Against : Argentina, Australia, Belgiurn, Canada, the Federal Republic
of Gemany, France, Mexico, Nigeria, Nonvay,. Senegal,
Spain, Tunisia and the United Arab Republic
Abstained: the Czechodovak Socialist Republic, Japan and the United
Kingdom.
The followingCouncil mernbersare parties to the Transit Agreement: Argenti-
na, Australia. Belgium,Canada, the CzechoslovakSocialist Republic,the Federal
Republic of Germany, France, India. Japan, Mexico,Nicaragua, Nigeria, Norway,
Senegal, Spain, Tunisia, the United Arab Republic, the United Kingdorn, the
United States of America.on the basis of the argu-ents ureed.-.ut on the basis of the nleadincs filed-
earlier relating to the preliminary objections and the treaties and the rules ap-
plicable thereto. II would make the oral hearing an idle ceremony if time was
not allowed Io the members Io studv the verbatim records and take such as-
sistance from their Go\,ernments o;~dministratii>ns as they may require. If
the Council urre to come to an immcdiatc dccision on ail iswe ofthis charaiter.
without waiting for the verbatim records of the armiments and without waitin~
for the respeczve Governrnents of the member States Io consider those ver-
batirn records of the full arguments, 1am constrained to say that the Council
would be failing to discharge its duty and to function as a judicial body.
It is true that there should not be any delay in the Council arriving at fair
decisions, but what is the meaning of delay? Delay means taking more time
than is necessary for the judicial process. Delay does no1 mean denying the
lime necessary to apply the judicial process fairly after full and adequate con-
sideration.
If unfortunatelv the administrative set-uo of the Secretariat is unable to
producc the verhatim records within 24 hui.rs. ;is is c<liiimonwith niany oiher
orgdns of ihc Cnited Naiionç. that drairhack has ncicss:irily to hc acceptcd 3s
a part of the procedural problems of the Council, and the time involved in the
production of the necessary verbatirn records should no1 and cannot be con-
strued as delay.
Mr. President. 1reallv fail to understand how an international tribunal like
this Council, afier detailed arguments of such far-reaching importance, can
possibly come to a quick decision without full consideration by the respective
Governments of the arguments advanced here of which the Governments so
far know nothing or have not been able to evaluate or assess.
It is most significant, Mr. President, to note that some mernbers of the Coun-
cil have alreadv stated that thev are not in a ~osition to evaluate and decide
upon the respective submissions made by India and Pakistan on the prelimi-
nary points of jurisdiction without further consideration. Other members have
ex~resslv stated that if the decision is to be made later. the rime-lac must be
meaningful and it must be after the verbatim records are made avslable for
full consideration by them and their Govemments or Administrations. This
shows verv clearlv that ifthe Council were to make a decision now. the decision
n,ould ha\e no ulidity or prupriety in law kcause the memhers of the Coun-
cil,ihat is some of the judges. are admittedly noi in a position to evliluate and
decide uoon the areuments and submissions without further consideration. 1
repeat, MI. Preside;, if the Council were to make a decision now, the decision
would have no validity or propriety in law. II is for the Council to consider
whether it would like to come to a decision in such circumstances where lime
is not given Io every judge Io give full and adequate consideration Io the issues
involved.
Another ground on which the decision of the Council would be vitiated, if
il is arrived at without waiting for the verbatim records, is that the Council,
as already stated above, is here acting as a judicial court, and some of the
judges, i.e., memhers of the Council, were not present throughout the oral
hearine from the ~e~nnine Io the end~ ~ ~v can ioin in the decision onlv after
reading the verbatim reco;ds; and if they join in ihe decision without consider-
ing the verbatim records, then, Mr. President, the whole decision of the Coun-
ciiwould stand vitiated on the ground that some of the judges.had not applied
their minds to the entire case of both sides. It is needless to add that what
lndia and Pakistan had filed before the Council are only pleadings on prelimi-
nary objections and not arguments or Statements of the Case or full Briefs onthe preliminary objections. If a judge decides a case merely on pleadings,
without considering fully the oral or written presentation of the case,the de-
cision would no1 be proper in law.
It is therefore my suggestion that the final decision should be, it has to be,
arrived at after the verbatim records are made available to the members of
the Council and, through them, to their respective Govemments.
1will furnish a copy ofmy statement to the Secretariat and if they would be
so kind, 1 would like ta have it distributed ta the Members. 1 was reading
from a prepared speech. Thank you.
3. ThePresidenl:,The Representative of the Soviet Union.
4. Mr. Borisov: Mr. Prcsident, the Soviet Union was not a member of the
Council whenthe Council previously discussedthis question, first in Montreal
and then in Vienna. It is quite clear that king present for the first time at a
Council meeting on this question 1 met with some nuanceson which 1, like
Re~resentatives of some other countries, have to consult with my competent
orbans. 1requesttime for suchconsultation after receiving thecomplete records
from the Secretariat. 1 believe that a week or 10 days would be necessaryfor
this. Failing this, 1 shall no1 be able to make a decision on this question.
Thank vou.
5. ~/;e Presidenr: The Representative of Colombia.
6. Major Charry: 1would like to havethe Legal Bureau explain ta uswhether
a decisiin taken (odav would not be valid. as the Re~resentativeof India says.
May 1 hear what theiegal secretariat hasto say on ihis point?
7. ThePresident: The Secretary General.
8. The Secrerary Cerreral: 1understand the question put by the Representa-
[ive of Columbia, but it must not be forgotten that the Council is now sitting
as a court, as a tribunal. It is for the court to pronounce on this question, not
fo~ the~Secretariat to eive a leeal ooinion on it.In my view, for the Secretariat
-.
io gi~ea Icgiil opinion trould be conirary to judicial pr3ciicc andcihics, bccaus
a court does not need a Icgd opinion It isfur ilto gi\,c ihai opinion.
~. ~l~rPrr>idt,»r. Thlink vuu. Is ihere furiher diicuwion? Thc Reorereriiüiive
of Norway.
10. Mr. Crinde: 1 should like to state my position briefly. 1 can say that
1am ready to take a vote today, but 1do understand and respectthe difficulties
some Representatives have and their consequent desire to consult with their
authorities at home. If the Council should find it necessaKyto delay action,
1 shall not object to this provided the time given will be meaningful. After
hearing the discussion yesterday, 1 do not believe that a few weeks will suffice.
1 understand itwill take quite some time to gel the verbatim records and if
theseare Io be given a real legal study by my authorities, 1 am quite sure that
they will need several months. So may 1reiterate-1 am ready to take n vote
today but 1shall not object to a delay if the time given is meaningful. Thank
you.
II. The President: 1s there further discussion? 1 am no1 sure whether the
Representative of the Soviet Union was making a proposal to defer a decision
or just a statement indicating that he had difficulty in taking a decision now.
T-~~~~o~ese~ ~ ~~e of~t~e Soviet Union.
12. Mr. Borisov: It was a statement.
13. ThePresidenr: 1sthere further discussion?The Representativeof Canada.
14. Mr. Clark: 1 find niyself supporting the views so ably expressed yes-
terday by my distinguished friend from the People's Republic of the Congo.
The question before this body apprears to be fairly straightforward: does the
Council have jurisdiction to hear the case brought kfore it or not? Theoreliminarv obiection lodeed was. at least in mv vie%!-and 1believe this view
kould be iharéd by mosc~epre&ntatives on the Council-clear, concise and
well-documented and, professionally speaking, 1 think it was as well drafted a
document as 1 have ever had occasion to studv. The reolv b.. .e other Partv
that was distributed and circulated was also Concise, clear and well draftei.
The Rules for the Settlement of Differences, Article 5 (4). seem to contem~late
that once the written documentation has been submitted, there would be a
hearing of the parties. We have listened here, during the pas1 two days, to
the distinguished advocates for both parties, whose contribution was surely a
clarification and explanation of the written cases, but the main issue remained
the same and we have had the benefit of carefully studying the documentation
that was distributed in advance over a reasonably lengthy period of lime.
Accordinelv. 1would be ureoared to oroceed to a decis~on~ ~ the issue of the~ ~
preliminar; objection at ;hi; lime. 0; the other hand, 1 can also understand
the preoccupation of the other delegations who seem to feel that they would
rather have~time to consult with the% authorities. At the same time, however,
the comment made by the distinguished Representative of Italy would appear
to be very Sound, and that was that a mere summary of the debate would not
be of any particular benefit to us and therefore a short delay to allow the
circulation of such a document might not, in fact, achieve ils purpose. On the
other hand, a delay of several months to allow translation, correlation and
distribution of a complete verbatim record of the discussion of the past two
days would, in our view, not really be compatible with what is contemplated
in Article 28 of the Rules, and may no1 ensure fair treatment of both parties
concerned.
So, to reiierate, the Canadian position would be that we are certainly pre-
pared to proceed to a decision today, and would not think that a lengthy delay
of several months to allow correlation and distribution of a complete verbatim
record would be upholding the responsibility of this body to ensure fair treat-
ment of both parties. Thank you.
15. ThePresident: The Reoresentative of the United States.
16. Mr. Butler: There is j"st one point 1would like to make here and that
is a reminder that we sit here as representatives of govemments. We are not
individual members of the ~ouncii Our ~overnments are members of the
Council and even though the Council may be Sitting in a judicial capacity a1
this time, we sit as 27 governments, not as individuals. If 26 govemmenls are
oreuared to !?Oto a decision todav. it is the decision of those xovemments.
nocof the individuals who sit at th;; Council table, and 1think itis important
for us to remember this. We are unlike the menbers of the World Court, for
example, which sits in ajudicial capacity; they sit in personal capacity asjudges
not responsible to national administrations. Here we represent governments,
and it is important for al1of us to remember this.
17. The Presidenr: 1sthere further discussion on this question? The Repre-
sentative of the United Kingdom.
18. Air Vice Morslial Russell:1would just like to express a little disappoint-
ment at the reply given to the Representative of Colombia hy the Secretary
General. althounh 1understand his ooint of view. It is not uniaue for a body
of per&ns othe; than professional hdges to sit in a judicial capacity, at an;
rate no1in the United Kingdom. It is usual in such circumstancesfor the body
to have recourse to leeal advice on ooints of strict law and if.1am correct in
supposing thai the ~&rewniats\c of India kas uying that for reasons which
hc gave a dccision taken nom,would not k takcn Icgally, is ilporsihle for me
to be advised on how this point should be determined as a point of law? MEMORIAL OF INDIA 273
19. ThePresident: 1think the Representative of India said that the decision
would be vitiated: those were the words that he used. 1 think the Secretam
General feels that he cannot s3y that he agrees or diugrees with that poritio~
This Council has to take a decision itself. If Kepresentatives cannot decide by
themselves. 1suooose they will have to check with their own administrations.
As the ~e'preseniative of the United States just said, Council members are
sitting as representatives of governments. 1imagine also that if the decision of
the Councilon this question was contested, there is always a superior body to
which India could apply.
20. Mr. Cidwani:Thank you, Mr. President, 1jus1 wanted to state that you
quoted me correctly: that the decision if taken now would be vitiated. And
1-wantIo bevery clear-il is not that lndia isseeking any timc; lndia issecking
fair treatnicnt. What we wish is thai these verbatim recordsshould be available,
as indeed 1sprovidcd for in the Kules for the Settlcmcnt of Differences. Quite
apart froni thnt, if itwas a question of merely seeking lime. itwould be very
easy for me 111say that ihis puticular meeting has ken hcld here. as per the
decision of the Council in Vicnnd. for the Durnose of hcarina the outies. No
indication whatsoever was given tb the ~ovemment of lndia-that Ïhe Council
would diruss the matter and take a decision at this meeting. Othenvise, 1
could have claimed my right under the Convention and sought time so that
the Govemment of lndia might have an opportunity to appoint a special
representative, if it wanted, for the purpose of this meeting, because every
Govemment has the riaht to be reoresented in renard Io a matter affectina ils
interests. Therefore theindication should be given: 1did not take that p~eading
because the Government of lndia is not interested in seeking time, but it is
very much interested that there should be fair treatment of the parties, that
the verbatim reports should be available. If the Council is to take a vote now,
ils action will be improper, illegal, entirely invalid and certainly vitiated,
Mr. President.
21. ThePresident: That, of course, is a matter of opinion. 1 think that one
point Council rnembers are now considering is this: was something brought
fonvard in the hearina itself that was different from the written oresentaiions
and required them 10-seek further instmctions? 1 think each ~ouncil member
is the judge of that. Sorne apparently believe there was, others that they had
enough material before the hearina or that there was nothina new-or not
enough new-brought forward in the hearing to make it necësary for them
to consult. That is how 1interpret the position of some Representatives. The
Representative of the Congo.
22. Mr. Ollassa: I consider what the Representative of lndia said an asser-
tion. The Govemment of India, like any other govemment, can make al1the
assertions il likes. In any event, after having read and re-read the documents,
and thoueh 1did not hear al1that h~s ~ ~ ~~ ~ ~ere. 1find that the arawnents
brought fonvard were, asthe Representative of ~elgi& said,jus1an i~l~stration
of the preliminary objections we have received. Besides. we know that when
there is a disaereement. .he or.ceedines are eenerallv in writinn. Therefore in
principle ir,haÏhas been given 10 us iA,ritini is theéssential; Ïhe rcst ij only
;inexplanaiion olihedocumenis ue have. Becauseof ttiat. Xti. Prcsidcni. 1ani
in cornolete aereement with the Secretarv General that it is not for him to aive
a legal&pinioi. We had these document; in Vienna; administrations havehad
lime to read them. The explanations given here perhaps are considered by
certain memhers of the Council to suo~iement what was saidin theoreliminarv
objections, but they may equally be considered simply as illustrating what wai
submitted in writing. At al1events, that is what the People's Repuhlic of the274 ICAO COUNCIL
Congo thinks; what has ben said merely illustrates the preliminary objections.
For that reason, Mr. President, 1 think the Secretary General really has
nothing to do now. It is forus to decide, and 1would leave the Representative
of India the responsibility for everything he has said. He has said that the
decision would be vitiated. That is not mv oninion at all. kause we have had
the documents for a long time. There haie'been brilliant arguments, some of
which, as I have already said, were foreseeable and imaginable. The arguments
were magnificent, brilliant, and to me it was an extremely interesting legal
game. 1 would have liked to be able to participate in iffrom the beginning,
but it has changed absolutely nothing, Mr. President. The question remains
the same as if was in Viema. The arguments have not changed it and they
cannot change the solution. That any decision taken at this lime would be
vitiated is an assertion by a government and mus1be left to that government,
but to me the decision would not be vitiated. 1 am ready to take one and if
there is no proposal for deferment we must take a decision today and make an
end, because the question is clear to everybody, at any rate to governments
who have had the oreliminarv obiitions to read.
23. The ~resideit: 1s therë fu2her discussion? Apparently not, so 1 shall
have to put the questions. There are several, because you realize that there are
two cases and that different instruments are involved. in the Application of
Pakistan there is the Chicago Convention, the Transit Agreement and the
bilateral Air ServicesAgreement between India and Pakistan; that coven Case
1. Then we have Case No. 2, the Comvlaint. So 1 shali have to out those
questions separately and it will be realikd that al1 Council membek, except
India, of course, can vote on the question relating to the Chicago Convention
and on the question relating to the bilateral agreement, but only Council-
member States parties to the Transit Agreement-again, except India-can
vote on what concerns that Agreement. Therefore when the votes are taken
we shall have to oroceed on that basis. 1 shall iust read the list of Council-
member States that are parties to the Transit ~greement. You have had that
list for the old Council, buthad better read it again now for this new Council.
The Statesthat are at present parties $0 the ~ransit Agreement are Argentina,
Australia, Belgium, Canada, Czechoslovakia, France, Germany, India-1 made
a reservation about India already-Japan, Mexico, Nicaragua, Nigeria, Nor-
way, Senegal, Spain, Tunisia, United Arab Republic, United Kingdom,
United States. There are 19,of which only 18are eligible to vote. The Repre-
sentative of France.
24. Mr. Aaésilas:MI. President, ifyou intend now to ask us to vote. 1should
like an opporrunity. before the voie;to explüin how I ani going to "ote. The
French authorities have uudied the prelimin3ry objection filed by lndia uith
the utmost objectivity and with concern thar the delicatc question of the
disagreement submitted to the Council should betreated in a Gay fair to both
parties. 1 myself have listened attentively and with keen interest to the very
complete statement by the Representative of India and the reply made by the
Renresentative of Pakistan. 1 wish to summarize brieîlv. Mr. Presiden~.-the
conclusions on which the position 1am going to take is-based.
Three international agreements have ken mentioned by the two parties:
(1) the hilateral agreement concluded between India and Pakistan in 1948:
(a the Chicago Convention, to which the two States are parties;
(3) the International Air Services Transit Agreement.
As far as the bilateral agreement is concerned, we have noted that in 1952
India recognized the competence of the Council in applying to it to settle the MEMORIAL OF tNDtA 275
first differenceit had with Pakistan at that time andthe Council itselfrecognized
its comwtence in aereeine to consider the Indian reauest. Naturallv we are
not forietting the e\.ents chat look place in 1965, but'it remïins th;, io the
extent 111sadmittcd thdt dfier the Ta\hkent arrangements had put an end io the
hostilirie\ the1948 Aareenient had al leasi ~artiallv 10 k brounht back into
force, the right of one of the parties conceied toaddress itself to the same
court-in this case the Council of ICAO-must be rvognized. This is the rule
of estoppel, well known to jurists.
As far as the Chicago Convention is concerned, Article 89 has been cited
and commented on at some length. This Article, as we know, provides that in
case of war or national emergency Contracting States regain their full freedom
as regards their obligations under the Convention. If this Article could be
invoked in 1965at the time of the armed conflict, it is difficult to concede that
after the Tashkent ameement and six years later-in 1971-a state of war in
the legai sense couldbe considered to exist ktween the two States. As for the
state of cmergensy, which might kttcr conerpund to the actual situation
krwcen Pïktstan and India, fur itto he invoked it musi haw ken notificd to
the Council, which is no1 ihc case.
Since the particular ciindition, en\iwged in Article 89 of the Ctinveniion
cannot be maintained. we come back, as regards the multilateral agreements
(Chicago Convention and I'riinsit ~greemeit), to the general rulei of inier-
nation31 law. The tu0 speakers have citcd Article 60 of the Convention on the
Law ofi'resties. the Vienna Convention of 1969.We know that thisConvention
hac not come into forcc, but as Article 6ûdoes no niore than codify customary
international Iau,, ircm, in f~ct, k validly relerred IO.
This Ariicle 6iJ recocniws the richt of a State 10 suvend or terminaie an
agreement if there has ken materiai hreach hy the otherparty. Has there been
a material hreach hy Pakistan in the case before us? 1 shall not reply to this
question, which touches on the very substance of the case suhmitted to the
Council, but we must at least record that there is a dispute on this point of the
existence of material breach. We are, then, faced with a disagreement in the
sense of Article84 of the Chicago Convention.
For al1these reasons that 1havejust evoked, wecannot acknowledge that the
Council is incompetent and are ready to participate in the taking of a Council
decision on this point.
We could also admit another formula. Since, in the final analysis, it is a
question of judging whether India's decision to suspend or terminale the
agreements is validly based on a previous and material breach hy Pakistan,
one could admit that it would onlv k.oss .i hie to nass final .ud-ment on this
puint aftcr an examinaiion in substance uf I'akistan'i applic~tion and India's
defense. Il this forniiila u,ere adopted, exaniinïtion of the Indian preliminary
objection could beassociatedwithexamination of the substance. The procedure
which was interrupted would therefore be set in motion again. The Indian
counter-memorial should be filed, and the Council would pursue its examina-
lion of the case, but it would he in the course of this examination that a defini-
tive decision would be taken on the objection presented hy India.
In short, Mr. President, Our position consists either in voting in favour of
the last formula 1 have just described, if it is supported, or of expressing an
opinion in the ûense that the Council is competent, if the general tendency is
in favour of taking an immediate decision.
25. ThePresident: The Reoresentative of India has asked for .the floor.
26. Mr. Gidwu,~,:I ha\coni) one suhmirsion io niakc. I hedrd the distinguish-
ed Keprexniaiiie of the USSR sÿy that he would rnakc a pruposal aitcr thewKee break. unless 1am verv much mistaken. 1 would also like to consult mv
advisen about whar the ~rench Delegation has said and therefore wonder,
Mr. Prcsideni. if you would be kind cnough to let us have a coffee break.
27. The Presidenr: 1 had not understood the Renresentative of the USSR
to say that he wanted to have a break, but üthere isno objection, we can have
a short one, until II o'clock.
Recess
28. The President: The discussion continues and, as 1 said,1 hope we can
come Io a vote as soon as possibleithe Council is ready Io vote1 understand
the Representative of Czechoslovakia wanted the floor.
29. Mr. Svoboda: After the consultation, permit me Io propose deferment
of the Council's decision until 10August 1971.Thank you.
30. The Presidenr: 1s that proposal supported? Supported by the Soviet
Union. 1sthere discussion now on the proposal that the Council's decision on
this question be deferred until 10August? The Represeotative of Tunisia.
31.Mr. El Hicheri: Mr. President, 1suppose the statutory majority mle will
be applied?
32.ThePresident: All decisions of the Council on this case reauire 14~-tes
to pas. The Representative of the United &ah Republic.
33.Mr. El Meleinv: Before wevote on the nronosal. could 1know how many
Council members will benefit from deferment uitil 10Aupust?
34.The President:Perhaps when they vote they will indikte that.
35.Mr. El Meleigy: If some Council members were in a position to givean
opinion on the point it migbt be helpful.
36. The President:1 have some speakers on my list. The Representative of
Nigeria.
37.Mr. Olaniyan: Just a small question. Could 1 be told whether the de-
ferment refen only to the voting, notthat on August 10thweare again going to
embark on this question?
38. The President:1 undentood that the intention of the Renresentative of
Czechoslovakia is that thetaking of the decision be postponed.~s 1explained
yesterday, in any casethe heariog has been closed, so we cannot retum to if.
The ~epresentative of the Coneo.
39. ~r. Ollrrssa1wisb to explain what 1said yesterday, now that we have
a formal proposal. 1said yesterday that what we are aiming at is fair treatment
for the Iwo States. and deferment for more than a week could be somethine
that fai9uursone ~~atemore thsn the oiher. 1think, however, that our calcula-
lion was no1good because itseem that one of thc States asked for four weeks.
whereas accordine to mv calculations it was Iwo. In any event. Mr. President.
I believe 1 rnuGy this now: for me to support defenkent there would have
to be many rnembers of the Council who would have difficulty in deciding
today. because more and more I have the im~ression that what the Ren-
resenl3tive of Tuniria said yeçterdayis tme-these are evasivetactics. Yesterday
we could have decided on deferment; the conditions were present; everyone
was alrnost readv to aeree to deferment. when suddenlwe became aware that
no-one was making aproposal and al that moment fchanged my mind and
took up again rny initial nosifion, whicb was that we should decide. 1 came
here this morninë with the same feeline. Now we have this new nronosai. 1
believethere murïbe extraordinary or exceptional rearons, or in an; case wide
support. before my delegation could ïgree to il. This time 1shall no1join u,itli
the majority, because Ifind that this deferment has not ken requested for good reasons: for those we must have the verbatim and have it for a fair.~-lone time.
What other reason could there Lxfor deferment? To obtain instructions?-we
have had this problem before us for two months. Mr. President, and in my
opinion our instructions are not going to be influenced by some example 0.1
other that has been given now by way of illustration.
1 shall therefore abstain in this vote, in full knowledge of the fact that an
abstention is very important in a vote on which the statutory majority applies.
Thank you.
40. The Presidenr:The Representative of Tunisia.
41. Mr. El Hicheri: 1 have the same concern as the Representative of the
People's Repuhlic of the Congo. In al1 honesty+specially as the proposal
comes from my friend. the Representative of the Czechoslovak Socialist
Republic-1 do not believe a deferment of 10 days can be of any use at ail.
1do not think it can serve either of the parties or the interests of the Council.
1do not think it can serve even those who have asked for it, because either
administrations are not informed, in which case they must have al1the docu-
ments and that will certainly take more than 10 days-perhaps a minimum
of two months-or else administrations have had time to come to a conclusion
on the problem before us-the competence of the Council. 1 said yesterday
that 1thought it would have been possible for them in two months to forman
opinion on the subject.
For these reas~~s. Mr. President. I cannot suonort the orooosal made bv
the Kepresentativc of the ~z&hosl&ak ~ocialisr'Kcpublic'and suppoited b;
the Ke~resentati\,e of the Union of Soviet Socialist Krr>ubliii. 1believe ilu,u
made ingood füith. but I do not think that in practiceitcan serve the Interesis
of the Council Thdt is my opinion Perhapsthere will bea proposa1fur a longer
deferment, but that is another problem. Thank you.
42. The President: 1s there further discussion before we go to the vote?
Then 1will take a vote on the Czechoslovak proposal that the decision of the
Council on this question Lxdeferred until 10 August. Those in favour please
raise their hands. Opposed. Eight in favour, no opposition, but of course
14votes have not been obtained, and so the proposal has failed. Any recorded
abstentions? Congo, Brazil, Spain. Mexico, Uganda, Senegal, Norway. Indo-
nesia, Canada, Argentina.
We continue, then, with the discussion with a view to taking a decision now.
1sthere any discussion before 1proceed with the questions? By the way I will
read the questions-al1 of them-before we start to vote.The Representative
of Australia.
43. Dr. ilradfield: MI. President. before the vote is taken 1 would like to
make a statement explaining the ~"stralian vote.
The Australian Delegation appreciates the difficult circumtances existing
at the present time and the background against which this dispute between
Pakistan and India must inevitably beconsidered. For this reason we have
been more than ever concerned to approach the matter before us now as one
dealing solely with the preliminary objection, and particularly with the legality
of it.
Weare in aposition tostate our opinion in'a vote taken on this matter today.
We wish to reiterate the point made by the Representative of the United States
that this Council is a Council of States, not of individuals. and the opinion
of Australia that the Council has competence to consider the dispute is an
opinion of Australia as a State after consideration of the papers submitted by
India by appropriate legal authorities in Australia. 1, as Representative here
in the Council, may not have the qualifications to express a legal opinion, asmay be required in a matter of this nature, but 1 do consider that 1 have the
ability to determine whether or not the statements made, and made so ably.
by the Counsel for lndia have contained any significant new arguments in
addition to those which are contained in the original statement and Io advise
the appropriate organs of my Government accordingly. In consequenceof this,
the vote to be cast by me today is a vote of Australia based on legal opinion.
1 am afraid that 1 could not agree with the opinion of lndia that a decision
taken by Council today would be vitiated. If 1did so 1would no1cas1a vote.
44. ThePresidenr:1sthere furthcr discussion?1referred Io several questions.
Really there are four and 1 will read al1 of them so that vou see why 1 an1
making the distinction. It has to do aiih the faci t1i.1thrk instruments are
involved and the voting on dilfcrwit cases i\diilcrent. Some Council Mcmbers
can vote in certain casesbut not in others.
Concerning Case No. I there will be three questions and therefore three
votes. The basic propositions are the following; they are the ones that lndia
has brought forward:
The fir-~~is th~ ~the C~ ~ ~l has no iurisdiction to consider that dis-
agreement in I'akist3n's Application in so far a, concerns ihe Convention
on Intcrnïiional Civil Aviation. In other irords, ihc Counîtl has no
jurisdisiion in uhar regards rhc Convcniton.
The second is lhat the Coun~il h3r no jiirisdiciion in jo iûras conxrns
the Transit Ar-cemcnt : thcre onlv Siaie\ "artles IO ihe Tr~nsii Agrecrnent
cari vote, except India.
The third question is that the Council has no jurisdiction in so far as
concerns the Bilateral Agreement between lndia and Pakistan.
1 hope ifis clear. It is always the same question, in one case for the Chicago
Convention, in the second case for the Transit Agreement, in the third case
for the Bilateral Agreement, and that would complete the decision regarding
Case 1.
Reaardina Case 2. the ~ronosition is that the Council has no iurisdiction
. .
to co~siderl'akistan's Complaint, the word "Cornplaint" being iakcn froin
Articles 1and 2 of the Rules for the Settlement of Differences. So theseare the
questions which 1shall put in due course. 1will ask if there is any more discus-
sion. The Representative of the United States.
45. Mr. Bittler: A question for clarification. Mr. President. If 1 understand
correctly, the jurisdictionof the Council has been invoked by Pakistan as far
as the ChicagoConvention and the Transit Agreement are concerned under the
Application and then under the Complaint. Could you clarify for me whether
Pakistan invoked the terms of the Bilateral Agreement in their Application
and Complaint and has the jurisdiction of the Council been requested by
Pakistan on that issue?
46. The Presidenr:That is the way the Legal Bureau read the Application
of Pakistan: the Bilatcral Agreement was mentioned in the Application but
since a representative of Pakislan is here 1 will ask him.
47. iWr. A. A. A'han:Mr. Chairman, I must confess my own ignorance and
shortcoming, but so far as 1 recall-and perhaps the documents would show-
we sought relief under the Convention and the Transit Asreement and we
quoted the Bilateral Agreement in order to strengthen Our case.This is perhaps
the position.
48.The President:Dr. Fitzgerald.
49. Dr. Fitzgerald: Mr. President. we in the Secretariat had examined the
relevantdocumentation as besi we could in order to find out how the qucstionscould be framed as simply as possible and when we came to page 8 of Pakistan's
Application we found a paragraph 8 which said that the decision of the Govern-
ment of India is arbitrary, unilateral and illegal and is in violation of the
Conventions (plural) and Agreements (plural). Then further down, wben we
get to Section F (Reliefs Desired), we find-and 1 quote: "The Government
of Pakistan seeks. amons others, the followins reliefs by action of the ICA0
Council: (1) To decide and declare that the decision of the Governnient of
lndia suspending the overliights of Pakistan aircraft over the territory of lndia
is illeral and in violation of India's international oblisations under the Con-
vention and Agreements" (plural) "aforesaid.", and wë took it that the Bila-
teral Agreement of 1948 was included. Similar material is also found in the
Com~laint. This does not mean that theSecretariatholds anv brief for inclusion
or eiclusion; it is jus1 a question of trying to ascertain what were the issues
ta be put to vote. Thank you, Sir.
50. ThePresident: 1sthere further discussion before 1proceed with the vote
on the first point? The Representative of India.
51. Mr. Cidwa,ii: Merely to clarify, in the spirit of helping, sub-paragraph
8 of Pakistan's Memorial also mentions that a disagreement has arisen between
the Government of Pakistan and the Government of lndia relating ta the
application of the provisions of the Convention, the lnternational Air Services
Transit Agreement, and the Bilateral Air Services Transit Agreement of 1948,
and throughout they have referred to al1three documents, the Bilateral Agree-
ment along with the other two. Thank you.
52. The Presidenr: Thank you. The Representative of Pakistan.
53. Mi-. A. A. Khan: Sir, the documents are quite clear.
54. The Presidetir:All right, then 1 will proceed with these four questions.
The first proposition is.. .The Representative of the Congo.
55. Mr. Ollassa: For a clarification, MI. President. In Case No. 2 only the
Transit Agreement is involved?-because 1 cannot participate on what con-
cerns the Transit Agreement.
56. The Prerideiit: Yes, in Case No. 2 it is only the Transit Agreement.
The Reprcscntative of India.
57. Mr. Gidwatii: Mr. President, 1 thought that even in Case No. I the
second issue which yoii raised relates to the Transit Agreement, does it not?
58. Tlie Presidele,rhe Representative of the Congo was asking about Case
No. 2. 1 hope 1 will be clear each time. So, the first question, on which al1
Council Membcrs exccpt lndia are entitled to vote, is the following proposition
of India: that the Council kas no jurisdiction ta consider the disagreement
in Pakistan's Application in so far as concerns the Convention on International
Civil Aviation. Those who agree with that please raise their hands. The Repre-
sentative of India.
59. iMr. Gidwaiii: Mr. President, surely that will not be the way the vote
will be taken. The Couricil has to decide it as the preliminary issue and in
either case the statutory majority will be necessary: It is not that lndia is pro-
posing somcthiiig and if itdoes not receive 14votes, lndia loscs. Any proposal
you niake here has to rcceive 14 votes. That is my understanding.
60. ThePresidei,r: Yes, but the question is this: lndia has come with a basic
contention to thc Council; the contention is that thc Council has no jurisdic-
tion. Now 1have to îsk those who agree with this contention and, as you Say.
14 votes are necessary. If there are not 14 votes in agreement with that con-
tention, the Council is rejecting the contention.
61. Mr. Gidwani: That is not the way a vote can betaken. After all, you
have to sctlle it as a prcliminary issue and we have raised a preliminary ob-jection. Youhavetosay "Hasthe CounciIjur~sdiction?'or "Ha the Council not
jurisdiction?'and each proposal musi receire a statuiory nujority. It is not
that India is proposing something and you have rejected ii. It is Pakisian saying
that the Council has jurisdiction and that also will be subjected to a vote.
62. ThePresident: No, 1am sorry, Pakistan has not said anything. Pakistan
has. of course. reolied to India but the Council was workine on the basis that
it had jurisdiction. lndia cornes with the preliminary objection: you have no
jurisdiction. The Council has to decide on this position of India. If the Council
does not accept it, we continue as we were.
63. Mr. Cidwoni: You have to settle it as a preliminary issue and you have
to determine by 14 votes. a statutory majority, that you have jurisdiction.
You cannot do it othenvise.
64. The President: The Representative of the Congo.
65. Mr. Ollassa: Mr. President, the result would be exactly the same, but
1believe it would be well. nevertheless. to admit the iustice of what the Reore-
sentative of lndia has said. It would bé better for tie Council to take the'de-
cision and that this decision should be taken not by saying, if you will, "lndia
is wrone" or "lndia is rieht". but bv savine "Has the Council comoetence or
not?" 1-believe it would-be much bette; lice that, Mr. President. fhe result
is exactly the same, but if this formulation pleases India, 1believeit may please
evervone here. The result is exactlv the same.
65. ThePresident: Well, 1don't know whether the result is the same or not.
Really 1personally only want a result. Which one it is is not for the Chair to
prefer. but 1would net-like to put questions in a way that will set a precedent
for future cases. That is the problem 1see. As 1see it, each time something is
brought to the Council, unless the Council agrees with that something, we
continue as we are. This applies to this case and would apply, of course, to
the substance of the case in the future, because othenvise 1shall be asking the
Council Cotake simultaneously a positive decision and a negative decision,
which 1 believe is rather difficult. The Renr.se~ ~ti~ ~~~~Can-~~~~~
67. Mr. ~lark; Before haking a comment 1 would like to ask a question
of the Secretariat throuah vou. Mr. President. Could 1have the date and the
text, because it is extremei9 short, of the resolution of the Council setting a
date for the filing of the lndian Counter-Memorial to the Pakistan Memorial?
68. ThePresident: The text and the date? The date was the 8th of April. The
Secretary General will read the text.
69. The SecretoryCenerol: The text is the following:
"The Council:
(1)invites the two parties immediately to negotiate directly for the pur-
pose of settling the dispute or narrowing the issues;
. . decides. subiect to the consent of the oarties concerned. to render
any assistance likely to further the negitiations;
(3) fixesat eight weeks the period within which lndia is invited to present
its counter-memorial."
70. Mr. Clark: It would seemclear, at least to mv Deie~ation, that by adopt-
ing thi rc~oiution the Council was mting as iï ithad ju~sdiciion in this cise.
IFwe now have a challenge to that jurisdiction, itwould be, we u,ould submit.
a question which would have to be u~held by the Council bv a statutory ma-
johty. because the Council has already, in adopting this resolution. acted as
if it had jurisdiction and now we have a challenge to the jurisdiction. So in
my view there is no question that the statutory majority required is to uphold the challenge to the jurisdiction rather than to affirm the fact thaf the Council
does havehrisdiction. Thank you, MI. President.
71. ThePreside&: That is how 1saw the issue and in non-juridical language
1 said that we would continue as we were before the preliminary objection
was filed,unless by 14votes the Council decided othemise. The Representative
of Tunisia is next.
72. Mr. ElHicheri: Very brieflv. 1sharerour concern a little. Mr. President.
1 agree with the ~e~reseniative nf the people's Kepublic of the Congo when
he sdys the result uill k the rame That 1smy opinion too. but as this is the
first case of ils kind, there is a risk of creating a precedent, as you have under-
lined, and perhaps that should determine our action. It is really the only im-
portant point here. Aside (rom that, 1 do not think there will be a great dif-
ference if the question is taken one way or the other. Thank vou.
73. The ~res;dent. Thank you. The ~epresentative of the United States.
74. Afr. Rurler: Merely Io say rhai we support ihe view of ihe Delcgation of
Canïda. We ihink ituould have imooriant im~lications for al1of the work of
this Council if the proposition fomard by the Representative of lndia
were to stand. It would be impossible to try to take many decisions of the
Council in both directions, particularly because of the abstention problem.
Thank you.
75. The Presidenf: The Representative of India.
76. Mr. Gidwani: MI. President, 1 do hooe that on grounds of ex~ediency
vo~-would no1take ~ ~ ~ ~~~~t 1wo-ld ~eallvcon,i~er would result in a-decision
khich isentirely invalid. Article 5of the Rules for the Settlement of DiiTerences
is very clenr. Clause (1) says: .'If the respondent questions the jurisdiciion of
the Council"-we certainly have quebtioned the jurisdiction of the Council in
th15mattrr and weshall continue to do so for valid reasons already given-and
Clause (41clearlv savs: "If a oreliminary obiection has becn filed. the Council.
after he&g théparties, shajl decide the Gestion.. .", the question of your
jurisdiction. You have to decide the question of your jurisdiction, no1 my
nreliminarv obiection. You do not work on mv ~reliminarv obiection: vou
becide ihe.que;tion of your jurisdiction and to ;;me Io th<con;lusion'ihat
you have the jurisdiciion you need the statutory majority. Any oiher dccision,
Mr. President. would be reallv Irving to use the statutory majority rulc in
order to placé us in an entiiely-unfavourable position, -for no rhyme or
reason. The Rules are very clear, MI. President.
77. The Presidenr: 1 am not asking the Council to agree or disagree with
India. The question 1 am puttiog to the Council is that the Council has no
jurisdiction to consider the disagreement. That is al1 1 want the Council to
vote on: that the Council has n6 jurisdiction. 1 want 10 find out how many
agree that the Council has no jurisdiction and for the reasons the Represen-
tative of Canada has just mentioned, uoless the Council decides now that it
has no jurisdiction, we carry on as we were before the preliminary objection of
India. The Representative of India.
78. Mr. Gidwni: Has the Council jurisdiction or has il not? Both mus1
receive a statutory majority in any case. If cannot k that by mere abstentions
on the one proDosilion, the othei does no1 stand.
79. ThePresident: The Representative of the Congo.
80. Mr. Olla~sa: Just to Say, MI. President, that 1support the opinion ex-
~ressed a moment aeo bv the Reoresentative of Canada and bv the Reoresen-
iative of Tunisia afcr what you have said, because, in the final analy&, one
could also say that India herself. in coming here the first tirne, agreed that the
Council was competent. At that time she could have said "No, 1am not goingthere, because il is a court that is no1 competent." So there really is,as they
Say in English, a "challenge".
81. The President: 1sthere more discussion? 1regret-and 1am addressing
myself to the Representative of India-that 1 will proceed on that basis,
but 1 am glad that the discussion has taken place. That was the way 1
saw the question and 1 see that Council members as they have spoken now
seem to agree that that is the way il should be considered. So, 1 repeat, the
ht proposition is: "The Council has nojurisdiction 10 consider the disagree-
ment in Pakistan's Application in so far as concerns the Convention on Inter-
national Civil Aviation." Those who agree with that please raise their hands.
Those onnosed. olease raise their hands. No votes in favour. 20 votes aaoinst.
Any reiirded 'abstentions? The United ~ingdom,. ~apai, Soviet union,
Czechoslovakia. Well. 1 think that since there have ken 20 contrary votes,
the question of a positive or negative decision has now ken superseded. There
are 20votes against, which means that there are 20 members who consider that
the Council is competent. The Representative of India.
82. Mr. Cidwani: Mr. Chairman, just to ask you to record my statement
that the manner in which the vote has been taken is not correct and is no1per-
mitted by the Rules. Thank you.
83. The President: Thank you. Now we go to the second question. The
Representative of India.
84. Mr. Malhotra: Mr. President, 1 don't want to raise any matter of sub-
stance, but just 10 request a roll-cal1 vote. The first vote has already taken
place and nothing can be done aboutit now, but may 1have a roll-cal1on the
other questions?
85. ThePresident:For the information of new Council memben, 1am draw-
ing a name to determine who is going to vote first. On the second question
only those States that are parties to the Transit Agreement, except lndia,
can vote. The question is: The Council has no jurisdiction to consider the
disagreement in Pakistan's Application in so far as concerns the Transit Agree-
ment.
86. Mr. Agésilas:Mr. President, so that il will be very clear, as a roll-cal1
vote is involved, in replying "Yes" one endorses the negative position taken
by India. 1s that il? Then, 10 oppose il you mus1 Say "No".
87. ThePresident:Yes, those who agree that the Council has no jurisdiction
have to Say"Yes", those who consider that the Council has jurisdiction have
to Say"No". The first name is Lebanon, which is not here and is not a party
to the Transit Agreement. Spain. Spain is a party to the Transit Agreement.
88. Lr. Col. Izquierdo:As you put il, il was no1very clear.
89. ThePresident:Those who agree that the Council has no jurisdiction Say
"Yes". Those who think that the Council has jurisdiction say "No". The
Re~~ r ~ ~ - ~ of the Coneo.
90. Mr. ~llassa: Mr. pisident, 1 don't wish to complicate matten for you.
but in French il is difficult. Those who think the Council is not competent
should Say "Yes" and those who think il is should say "No".
91. The President: 1could make it longer. Those who agree with the pro-
position that the Council has no jurisdiction lo consider the Application under
the Transit Agreement-1 think this is good in the three languages-say "Yes";
those who consider that the Council has jurisdiction say "No". Spain was
first and says "No". Will you continue reading, please.
92. Dr. Fitzgerald: Mr. President, Spain has said No. Tunisia-No Czechoslovakia-Abstention
United Arab Republic-No France-No
United Kingdom-Abstention Federal Republic of Germany-No
United States of America-No Japan-Abstention
Argentina-No Mexic-No
Australia-No Nicaragua-Not here
Belgium-No Nigeria-No
Canada-No Norway-No
Senegal-No
That is all, Mr. President.
93. ThePresident: Thank vou. There ore no votes "Yes", 14 votes "No". 3
absrenrions The Council hasiherefore not agreed uith the contention ihat the
Counol has no jurisdiciion rcgarding the Transit Agrcement as there wcre 14
votes against. The Representative of Belgium.
94. Mr. Pirson: When you have put your third question, Mr. President,
may 1 speak before the vote?
95. The Presidenr: Yes. 1 will out it soas to be clear and the1 certainly
will allow statcments. The third-quesiion is the sîme question excepi thai(
haï [ido with ihc Bilateral Agreenient. I will put it this way: Those who agree
ihat ihe Council h3s no jurisdjction10consider Pakisian'r Application in so
far as c~~nccrnsthe Bilatcr~lAir Scn,ices Agreement of 1948betucen India and
Pakisian should voie "Yes". Those u,ho are against that should vote "No".
The Re~resentative of Belaium.
96. ~r. Pirson:I u,ish aily ta sÿy that I am not convinced ihai this question
should be put io the Council and in these circumsrances. if you proceed to a
vote, 1shall abstain1do not want to go further. but really 1have very serious
doubts about the necessity of putting-this question to the Councii-
97. The Presidenr: 1 asked the Representative of Pakistan and he made a
statement to the effect that the documents were clear. 1 don't know whether
he wishes tospeak again on this question.As Pakistan made the Application,
it tells us how it considers the is1have, however, other speakers and while
the Delegation of Pakistan is consulting, 1will give the fioor ta the Represen-
tative of Tunisia.
98. Mr. El Hicheri: 1 am of the same opinion as the Representative of
Belgium; 1have very strong doubts about tbis. It is my impression tbat Pakis-
tan has based its case on the Transit Agreement. On reading the documents,
1 did not have the impression that the interested Party, Pakistan, came here
to ask the Council to pronounce on its competence in regard to the Bilateral
Agreement. 1 did not have that impression at all, Mr. President. 1 therefore
wish to associatemyself very strongly with the doubts expressed by the Repre-
sentative of Belgium. Perhaps the Pakistan Delegation should be allowed a
few minutes to consult their Chief Counsel. He might be able to give us a
clear answer in this regard.
99. The President: Yes, 1 agree that we are in the hands of Pakistan. It is
the Applicant and if it now says that it is not seeking relief under the Bilateral
Agreement, India's point isno longer of interesas faras the Council is con-
cemed. The Representative of the Congo.
100.Mr. Ollosso: 1too am very reluctant to deal with this question; in
fact 1 shall not deal with it at all, because 1 do not think the Council has to
pronounce upon a bilateral agreement. 1 think our field has to do with multi-
lateral agreements and if westart entering into bilaterals it is gobcgvery
difficult. In any case, 1for one do not have authority to pronounce on a bila-
teral agreement. 101. ThePresidenr:Thank you. The ~e~rekntative of Nigeria.
102. Mr. Olanivan:Just Io sav .hat 1share ~he v~ ~ exnre7sed bv the Reore~-.
sentative of Belgium.
103. ThePresidenr:Thank you. The Representative of France.
104. Mr. Agésilas:A few minutes ago 1expressed our opinion on this sub-
ject, but1think, nevertheless, that it would probably be better for the Council
not to pronounce on this point.
105. ThePresident: 1s the Renresentative of Pakistan readv to soeak now?
106. Mr. A. A.~han: M;. ~Gairman, 1 am grateful for~thésuggéstionthat
1 should seek your indulgence to consult Our Chier Counsel on this point and
1 would anoreciate it if a short time could be eiv-n to us for that nuro.se.c
Thank yob'very rnuch.
107. ThePresident: 1still have four speakers, but if the Council agrees that
we give the Delegation of Pakistan time to consult on this particular point,
it may not be necessary for thern to intervene. However, 1will cal1them in the
order 1 had them. The Representative of Spain.
108. LI. Col. Izquierdo:Very briefly,jus1 to say that 1sharethe viewsexpres-
sed by the previous speakers on this particular point and that 1shall, of course,
be obliged to abstain on il.
109. ThePresidenr; The Representative of the United States.
110. Mr. Burler: 1still have the question 1 raised before, whether we have
been asked to came ta any decision, and 1also question whether India addres-
sed itself to the auestion of violation of the Bilateral Aereement in ils oreli-
minary abjeciion: In rcdding the summary of Ground Ï. itsayr ihere ;s no
dirîgreement kiweçn lndia and Pakistan rclaring IO the interpret~~lionor ap-
olication of the Convention or the Transit ~greement and no action bv India
bnder the Transit Agreement. In other words, there are three questions, not
four. So even assuming that Pakistan had invoked il, if 1am correct, the fact
that lndia has not auestioned the iurisdiction of the Council to deal with the
bilateral issue is,1 ihink, an addéd element.
111. The President: Thank you. The Representative of Senegal.
112. Mr. DialIo:1 know that in bilateral agreements the two uarties usuallv
explicitl) agree to submit any difirence to ICAO a.cl uhen ihey have one tb
submit. the) muir do iltagcther-in other words. by comnlon conxnt. I also
knou thdt hilater31agreenient, are rc.aistercd uith ICA0 so thiit 11can lollow
lheir ;ipplication and p'rhspr be nwlire of the difcrences thiit cm îrise, but
I believe that in the prcsent cax 1cïn siiy th31 itis no1 that the Council hm
not to express an opinion on this particular point, but that it is preferable
for the Council oot to do so.
113. ThePresident: Thank you. The Representative of Uganda.
114. Mr. Mugizi: MI. President, 1would like ta ask if this dispute regarding
the Bilateral Agreement has ken submitted in accordance with Article XI of
the Agreement.
115. The Presidenr: The Delegation of Pakistan is seeking advice and 1
think 1 will beinformed in a few minutes about this. The Renresentative of
~~ ~
Uganda.
116. Mr. Mugizi: Mr. President, is it something ta beexplained by Pakistan
or by the Secretary General?
117. The President: 1 think we have to know first whether Pakistan in its
Application has covered also the question of the Bilateral Agreement. The
Renresentative of Beleiurn.
f18. Mr. Pkn: 1do not think so, Mr. President. On your third proposition
1did no1wish, a fewmoments aga, Io say what the Representative of the United MEMORIAL OF INDIA 285
States has said. but it is mv oninion also. No doubt the Reoresentative of
India could enlighten us: ha; 1n.diachallenged the competenceLf the ~ouncil
in regard Io the Bilateral Agreement? If lndia has done sa. does this mean that
~akistan reauested the Council's intervention in the framehork of the,B~l~teral
~greement?'~do not remember exactly al1the provisions of India's preliminary
objection. If we find a contestation on thispoint by India. can weask Pakistan
ifit wishes. still on this noint. the Council's intervention?After that the Council
will have io express ai opinion. Does India wish the third proposition to be
submitted to the Council?
119. ThePresidenr: 1 think the Secretary General will explain.
120. The Secrerary General: 1 refer to paragraph 39 (dl, page 25, of the
preliminary objection submitted by lndia and wish to read the origin;il text,
in English, presented by India: "The Council has no jurisdiction to handle
any dispute under a Special Régimeor a bilateral agreement."
121. The President: Thank you. The Representative of Tunisia.
122. Mr. El Hicheri: Really, Mr. President, l do not see how we can extend
the affair. The Government of Pakistan brought two cases before the Council;
this is very clear and. besides, was presented in that way. Case No. I relates
to disagreements between the two States in the sense of clauses (a) and (6)
of Rule (1) of Article 1 of the Rules for the Settlement of Differences. Case
NO. 2 is a camplaint relating to the International Air Services Transit Agree-
ment in the sense of Rule (2) of Article I of the Rules. Now, Mr. President,
the case is king extended. It is very clear that at no point did the Govern-
ment of Pakistan bring before the Council a question concerning the inter-
pretation. or misinterpretdtion, of the Bilateral Agreement. lt came before the
Council on the basis of the Chicago Convention and the Transit Agreement.
and fromthe beginning the question has been presented in this way: Case No. 1,
Case No. 2. There has never been a Case No. 3, and oforriori a Case No. 4.
123. The Presidenr: The question is no1 as simple as that. According ta the
Secretariat, Case No. I has three parts, but it could have only two and we are
going to learn which from Pakistan. Case No. 1 covers the Convention and
the Transit Agreement; the question now is whether or not if covers the
Bilateral Agreement. The Representative of Tunisia.
124. Mr. El Hicheri: 1 have not finished. Mr. President. What 1said is in
a Council document that has been distributid, C-WP/5372.1 was not speaking
from memory; 1was reading something before me. Now in Case No. I it is
a question of the Chicago conventionand the Transit Agreement, in Case
No. 2 a question of the Transit Agreement. That is how the question hds been
presented to us from the beginning. It is another matter if Pikistan now
wishes 10add something else, but 1am basing myself on what the plaintifi has
presented so far.
125. ThePresidenr: We have the delegation of Pakistan here and they ivill
explain.
126. Mr. A. A. Khan: Thank you very much Mr. President. 1apologize for
this slight confusion, which is entirely due to my own shortcomings. 1 have
soucht and received clarification and 1 fullv confirm the understandinc which
hasbeen explained by the distinguished ~epresentative of Tunisia. ~edid not
seek relief under the Bilateral Agreement and we did not argue on that point
either. As 1stated earlier. this Agreement was mentioned to reinforce Ourcase.
127. The Prrside,ir: Thank you. That is clear now and will. of course, bc
entered in the record. The Representative of India.
128. Mr. Gidwani: 1really find it rather strangethat at this late stage we are
being told what Pakistan intended or did not intend. Your first memorandumon this very suhject, Mr. President, said that Pakistan has aired, in regard to
Case No. 1, a disagreement under the Chicago Convention, under the Transit
Agreement and under the Bilateral Agreement. Pakistan has said so throughout
in its Application. We took the trouble, therefore, of refuting that and saying
that the Council has no jwisdiction. Now we are told that Pakistan does not
wish ta raise this after al1the pleadings and after al1the argument. 1seek no
remedy from you for this. 1merely wishto point out themannerand themethod
in which Council has been functioning. Thank you and.1 do consider it entirely
improper, as 1said.
129. The Presidenf: Well, as 1explained before, the Secretary General after
reading the text was also of the opinion that the Bilateral Agreement was in-
cluded. Now it has ken explained in a different way. The Representative of
India.
130. Mr. Gidwairi: We were told that the first Case represents this, this and
this and everyone had the documentation. Now people are getting surprised
as to what was before them. This comes from not having the verhatim: this
comcs fr,)m not having the records: this corner from givini 2 snap dccisiim in
the oiihlind rnlinner in which the Council is giving 11.Thank sou.
131. TI><P,rrridenl Thank ).ou. The Keprcscnl~tive of Relgiuni.
132. \fr. Pirrwi: 1 undersiand thlit Indiï ir objccting ti)the procedure. In
thcsc circumsiïnccs. doel India insist thiii the question k put'?-becauie if India
insists that the question he put, it can beput.
133. The President: 1 think we should not complicate matters. The Repre-
sentative of India was referring to the manner in which this matter was being
handled. That is how 1 understood his intervention. The Representative of
India.
134. Mr. Gidwairi: Yes. Mr. President, you are quite right. 1am not suggest-
ing that any matter be put or not put because, as 1said, al1matters being put
to a vote and al1decisions king taken are vitiated. So it would not help very
much if 1put fo a vote another matter, the decision in respect ofwhich would
also be vitiated.
135. TirePresideirr:We eo now to the next auestion. concernine Case No. 2:
-
that the Council has no jurisdiction to consider Pakistan's Complaint. The
Complaint has to do with the Transit Aareement: therefore only those States
that are narties to that Aereement. exceot India. aie entitled to vote.1will ask
those wco think that the ~ouncii has 'no jurisdiction Io consider Pakistan's
Complaint to so indicate hy sayinp."Yes" and those who disagrec with that
to sav "No". as in the votewe to~~ ~efore. 1will now have to draw the name
for the firit,& vote. Canada is the one and is a party to the Transit Agreement.
Dr. Fitzgerald, will you start calling the roll, please?
136. Dr. Filzgerald:
Canada-No Spain-No
Czechoslovakia-Abstention Tunisia-No
France-No United Arab Re~ublic-No
Federal Republic of Gcrmany-No United ~ingdom-~bstention
Japan-Abstention United States of AmericaYcs
Argentina-No
Mexico-No
Nicaragua-Not here Australia-No
Nigeria-No Belgium-No
Nonvay-No
Senegal-No
That is all, Mr. President.288 ICA0 COUNCIL
will provide it. 1 would not like now to engage in an hour's discussion on a
question on which 1said something some time ago. The Representative of
146. Mr. Diallo: Mr. President, my delegation voted for the competence of
the Council to deal with the three questions put to us. This in no way prejudges
the position we shall take on the substanceof the disagreement. 1did not believe
1 had to abstain to make clear my Government's neutrality towards the two
countries that have this disagreement, because we think it is more than a
auestion of beinp.on one side or the other. It is a auestion of saving the truth,
Of rnpecting thé Iaw and jurisprudence already esisblished by the ~ouncill
If ihc Council Jeclared itself inçompcteni on thts quesiion of overflight which
two Contractine States are contestine. we think that in future it would no
longer be sure on what it was compe;&t and on what il was not. Therefore,
Mr. President. unilateral cancellation in the circumstances explained to us in
the statements of the two parties ro the disagreement does not appear to us
to be outside the framework of the Convention, becausea certain number of
articles in the Convention explicitly reject the idea of discrimination. That is
why, Mr. President, my delegation voted to support the competence of the
Council on the three questions put to us.
147. ThePresidenr:Thank you. The Representative of Spain.
148. LI. Col. Irouierdo: MI. President. 1 should like to ex~lain brieflv the
position of my ~Overnment on the quesiion we have been dealing with ihese
past few days. We have always considered that problems of this nature, which
directly involve the interests of States,deservespecial attention and very careful
consideration from the Council. We are satisfied that these aspectshave ken
taken care of in the course of Our dehate. We have considered with the greatest
care the Dreiiminarv obiections submitted bv the Government of India. as well
as the reply of the ?iov>rnrnent of ~akistan; and have had the opport"nity to
hear, during these meetings, the thouahtful presentations made by the distin-
euished Leeal Counsels of the two ~over&~ents. For a varietv of reasons
which havAmerged in the course of our debate, we consider that the ICAO
Council does havejurisdiction in this caseand have voted accordingly, without
this action in any Lay prejudging the attitude we may take on the substance
of the problem.
149. The Presidenr:The Representative of Indonesia.
150. Mr. Karno Barkah: We have voted positively for the competence of the
Council, but this does no1 prejudge our position regarding the substance of
the natter, Mr. President. Indonesia has always had good relations withboth
India and Pakistan and will continue to have and we are doing our best to
maintain strict neutrality and fairness in our decision between the two parties.
151. The Presidenr:Any other explanations of vote? On the question on
which 1 interrupted the Representative of Nigeria, the Secretary General will
circulate a memorandum giving al1 the reasons why this is so and if the
Council, at a later stage, wishes to questionthat, it will have an opportunity to
do m. 1 remember. however. havine e..~a.ned the situation when we started
on this questionand the secretary General wiil be able IO provide background
inforniaiion on n,hy it1sso. Thr Representative of India for an e.xplanation of
vote. 1understand-or rather an exdanation of the situation.
15?. .If,. ~idwani: Mr. ~residen;, I have no explanaiion of vote; in fact 1
didn'i votc.There is only one point 1wanied io meniion IO you: ihat one shnuld
take these decisions snortin-.v. Unfortunatelv 1 at the moment am not taking
them 9portingly. becaire I felt there wassumeihing wiong utth the nicthod and
the manner. Quite apdrt from thdi. 1jus1 nanted 10ihanh you for al1the cour-290 ICAO COUNCIL
161. ThePresident: The Representative of Tunisia.
165. Mr. El Hicheri: As,there have ken several explanations of vote, al1
having to do with the relations members of the Council have with the two
parties,1 should not like to lose this opportunity to do the same. Of course, it is
unnecessary to say, Mr. President, that we have very good relations with the
two parties, and, addressing myself particularly to india, 1 may say that these
are not platonic words. At a lime when India was very gravely threatened and
many couritries failed in their obligations, Tunisia was one of the few to speak
~~7for what itconsidered i-st. But. Mr. President. this auestion should not be
considercd frai; ihc srndpi3int of our frie"dsh/p for on; cuuntr) or the other.
It niusi hc constdercd froni the standr>oint of lÿw and of the interprctation of
~ ~ ~ ~e texts. In an,~case. the vote toda~~.as several members ofihe Council
have emphasized, bears only on a point of law, a question of form on the com-
petence of the Council, and 1 believe it is inadmissible to interpret it as an
indication of friendship or hostility towards one party or the other. This vote
must be interpreted as a legal decision hy the Council on a question of form.
At any rate, that was the intent ofour vote.
166. ThePresidenr: The Reoresentative of the Coneo.
167. Al,. O//os.su~WCiuo ha%,eexcelieni relations kith thc iwo parties. We
came here only to dccide a question of liiwand 1wish to say immedi<iielythat
the decision wë look on thisquestion has nothing to do with any solution that
may be given to the substance of the problem. We think, and 1believewe shall
continue to think, that it is in bilateral negotiations that the Iwo States in
question will find a solution for al1their problems.
168. ThePresident: The Representative of Pakistan.
169. Mr. A. A. Khan: Mr. President, 1 wish to take this opportunity to
thank vou. Sir. the Secretariat and narticularlv the deleeates who have been so
generi,us in ex;ending and reiteraii& ihcir friéndshipfuymy country. WCcame
to this august body ina spirit of humility, in a s~irit of acconiniodation. in a
soirit of eoodwill.MV Government does got consider the decision of thisaueust
gody asa victory O; a defeat for any tat t et.is our conviction that it Ysa
victory for the Council, for this august body, for the responsihilities which this
aueust bodv ,as~ ~ ~ ~ed and reaffirmed. As Re~re~ ~ ~tive of Pakistan. 1
dowish to assure y&i~r. pisident, and distingui;hed delegates, that it is bur
intention to continue appearing before this Council in the same spirit, adhering
to the Convention, adhering~to the internationally established procedures,
laws and conventions. With these remarks on behalf of my delegation 1do
wish to reiterate, once again, Our thanks and out gratitude for the courtesy,
for the kindness and for the consideration that al1 the Representatives, the
Chairman, and the members of the Secretariat have extended to us. Thank you
very mnch, Sir.
170. ThePresident: Any other statements? The Representative of the Soviet
Union.
171. Mr. Borisov: 1 abstained from voting on the ûrst case because 1 was
not given time for consultation with the competent organs of my Government.
1request that this be recorded in the minutes. Thank you very much.
172. The Presidenr: Thank you. That will be done. The Representative of
Australia.
173. Dr. Bradfild: 1 presume that the decisions of the Council in this matter
willbe formally cornmunicated to the rcprcsentatives of the Governmcnts of
India and I'akistan and 1sunaest. Mr. Chairman. that when that is done, the
point recently made by the ~épnsentative of thecongo be followed and that MEMORIAL OF INDIA 291
we reiterate our invitation to the Iwo parties to make progress towards a
solution by negotiation.
174. ThePresidenr:Thank you. Any further points? 1would like to remind
the Council that, because of this decision, the time-limit which ceased to run
when India deposited ifs preliminary objection, begins to nin again as of today.
1sthere anything else on tiiis question? The Representative of Senegal.
175. Mr. Diallo: Jus1 to clarify our ideas, Mr. President. When will this
period which begins to run again today corne to an end?
176. ThePresident:The original deadline was the Ilth of June and wereceived
the preliminary objection on the first of that month. india knou,s the dates.
The Representative of India.
177. Mr. Gidwani: MI. President, as 1 mentioned to you, we propose to go
to the International Court of Justice and we will see legally whether or not a
Counter-Memorial has to be filed. Personally 1am of the view that no further
proceedings of the Council on this matter are possible. As 1said, we will go to
the International Court of Justice. However, this is a matter which the Council
separately, and the Government of india separately, willcertainly examine.
178. The Presidenr: Thank you. 1 repeat that the deadline was the Ilth of
June and we received the lndian preliminary objection on the 1st of June, in
other words there were 10days more. So thedeadline will be10days from today.
Today is the 29th. so 1think it will be something like the 8th of August. The
Secretary General will have Io determine it. The Representative of Senegal.
,179. Mr. Diallo: Then it is in 10days that the period will expire. 1asked the
question because my ideas are a little confused. Does the explanation the
Delegate of lndia has just given mean that we shall not have the Counter-
Mernorial?-because Icannot place theproblem. Are westill intheframework of
Article 84 of the Convention which sais that an appeal shallbe notified to the
Council within 60 days? The Representative of India has notified us at this
meeting, but what are weto understand? Iconfessthat 1am a little lost. because
we have not e-ne into the substance of the ouestion and one Government has
already expre~xd its intention of appealing IOthe lnternationnl Court tiJustice.
How orr thing~noinn to develop7 1shoiild Iikc IO have your reply \urnniarized
in the note on thédecisions which was asked for a few minutes ago.That isnot,
of course, the "Summary of Decisions", but 1 should like to have this point
clarified at this meeting. Thank you, MI. President.
180. The Presidenr: 1 think that this is a very serious business and that it
would not be desirable to ask lndia now exactly what it intends to do. I think
al1 the Council has to note now-it is only noting-is that because of the
decisions takeo todav. the time-limit has started to run aeain and that 10davs
. from now lndiahas ii present the Counter-Memorial, and westop there. ~hat
happens next, what lndia wants to do is something we shall learn intime. The
Representative of the Congo.
181. Mr. 011~ssa:1 think that after what the Representative of lndia has
said, it is useless to adopt an ostrich policy. What lndia has said it has said
officiallvand it willaooear in the minutes.As itwill aooear in the minutes. one
has a right to ask whai the situation is going to be. 1t;Lerefore would be desir-
able, at the very least, for members of the Council to have in a few days a
memorandum on the main possibilities there will be if lndia does. in fxct, do
what it has just said it willdo. To do what you have just said, MI. President, is
really following an ostrich policy.
182. The Presidenr:1don't think it is an ostrich policy. What will happen is
this. We have to wait until, 1 think, the 8th or the 9th of August, when the
deadline cornes. The Secretary-General will keep the Council informed of whatweek, at the latest on Friday, but thisone you are going to have earlier and you
willhave in it the information vou want. 1understand. however. that in addition
to that the wording of the questions and the resultsof the voting will be di;
tributed separately today in a flimsy.The Representative of France.
187. ~r: Aaésilas: 1am eoine to take the libertv of askina another auestion.
which, though a hypothctic<iloie, the ~ccretaria<may be able to answer moré
casily. Supposing India's Counter-Mcmorial is received in about IOdays, could
the secretariat lriveus an indication. even a rouah one. of how lona it would
take 10 translateand distribute it andwhen, cvenkîlly, the Council would have
to mcct IOdeal with thc substance of the quesiion'! Iiis an evcniuîlity on which
it would perhaps be interesting to have an indication and the ~ecretariat may
be able to give one.
188. ThePresident: Yes, that is something the Secretary Gcneral can answer,
1am sure.
189. The Secrerary Ceneral: The Council realizes that we shall have a ver-
batim record of these last five meetings and we shall make every effort Io
nublish it in the three laneuaees. We shall need at least three or four weeks for
ihat. To answer the questik if the Representative of France, obviously weshall
do our best to distribute the Counter-Memorial in the three languages as soon
as possible, but when we shall be able to do so will depend on i&length-how
many pages, if there are attachments, if there are such detailed arguments that
it will take quite a time to translate them. 1can, however, assure the Council
that this auestion will be eiven hieh orioritv bv the Lanauaae and Production
Services, ;O that the matehai will-bekade ;vailable to Council members.
190. The Presidenr: As far as a Council meeting to consider the matter, 1
believeit isout of auestion to think in tenns of the month of Aueust. It will not
be in August and killprobably be even alter Labour Day ~nless India makes
a very short prewntation, latc Seplember ISthe earliestWC wnuld he ablc IOdo
anything. The Representative of India.
191.Mr. Cidwani: Mr. President, talking of short presentations, 1should be
very grateful if in the Summary Record which you are going to give today or
iomorrow, as you said. the statcmcnt made by mc this morninp. copies of which
1handcd to the Secrctariai. could be inseried in full. Thank sou.
192. ï%r Prcsidenr: We nill attach il. becîuse itis no1 normal IO include
statements in extenso in the Summary. The Representative of Belgium.
193. Mr. Pirson: 1 am aware of the difficulties, but 1 wish the Secretary
General would give absolute priority to the distribution of the Summaries. 1
realize that the minutes proper will take some time. 1am thinking particularly
of the translation of the Summaries and 1hope that we can have them at the
beginning of next week at the latest, rather than at the end of next week.
194. ThePresidenr: Well, as far as today's is concerned, yes, it will be avail-
able early next week. The other four will be within the week and, as 1 said
before, the last of them will be out by Friday, noon a1the latest. 1sthere an9
thing else on this question? Apparently not, so the Council has completed
discussion of this issue and at 2.30 this aftemoon we shall meet for considera-
lion of Resolution 3911. Annex F
1. \on DATFD 3F~~RKUAKY 1971 FROII THIHIUH COMMISSION 01. ISI>IAIS PAKIS-
l'AU 10 IHL WINISTRY OF FOHLIGS ,\tFAlRS OF TIIF GO\'IHS~IFhT i3F PAKISIAN
(See p. 77, supra.)
2.NOTE DATED 4 FEBRUARY 1971FROM THE HIGH COMMISSION OF INDIA IN PAKIS-
TAN TO THE MlNlSTRY OF FOREIGN AFFAIRS OF THE GOVERNMENT OF PAKISTAN
(See p. 78, supra.) Annex C
1. MESSAGE OATEO 4 FEBRUARY 1971 FROM MU. N. SAHGAL. SECRETARY
TO THE GOVERNMENT OF INDIA, MlNlSTRY OF TOURISM AND ClVlL AVIATION,
TO DR. WALTER BINAGHI, PRESIDENT OF THE COUNCIL OF THE INTERNATIONAL
ClVlL AVIATION ORGANIZATION
1 have the honour tu brine. tu vour notice the following incident of hi-
jacking of an lndian aircraft I'nvolbingdetention of passen&rs and crew and
deliberate destruction of the aircraft at Lahore international airport in
Pakistan:
An Indian Airlines Fokker Friendship aircraft VT-DMA whilst
operating a scheduled service No. 422-A from Srinagar to Jammu on
30th January 1971 was hijacked at about 1238hours IST and diverted tu
Lahore (Pakistan). This act of hijacking was committed by two persans,
one of whom enterina the cockpit threatened the Pilot with a revolver
and the other threa~en~ ~the oasieneers with a handerenade. The aircraft
- - ~ ~ ~ ~ ~
was forced Io land at ~ahore'international airport ac1325 hours IST with
28 passengers and 4 crew as also the two hiiackers on board. The aircraft
was also carrying considerable quantities oi'baggage, cargo and mail.
On the afternoon of the same day, as soon as the Indian Civil Aviation
authorities learnt of the unlawful seizure and diversion of the aircraft ta
Lahore, the D.G.C.A. Pakistan was contacted on the telephone and by W/T
signal by the D.G.C.A. India. At first the D.G.C.A. Pakistan agreed tu
facilitate the irnmediate return of the aircraft, passengers, crew, cargo and
mail tu India. The same assurance was also conveyed by the High Commis-
sioner of Pakistan in lndia tu the Secretarv in the Ministrv of External Affairs.
. ~ ~~ ~~~ ~
Government of India. Messages continued tu be sent, ihrough al1channels;
to D.G.C.A. Pakistan and other concerned authorities for the return and
restoration of passeng'ers,crew members. aircraft, baggage, cargo and mail on
30th January, 31st January and on 1st February, 1971.The Pakistan author-
ities however look the position that whilst the passengers and crew members
had been disemharked the two hiiackers were still on the aircraft and were
threatening ta blow it up in case the Pakistani authorities tried to take charge '
of the aircraft. In the circumstances, the Pakistan authorities claimed that
they were unable to make arrangements for the immediate return of the olane
buithat they would facilitate thereturn of the passengers and crew members.
On the morning of 3Ist January 1971,the Indian Civil Aviation authorities
offered to send a relief plane and a spare crew to Lahore to bring back the
hijacked aircraft and its passengers as well as its crew. At first, the Pakistan
authorities agreed that a relief plane from India could be sent but later
declined permission urging the ground that demonstrators at Lahore airport
would not permit the landing or the take off of the lndian relief plane. Alter-
natively, the Pakistanauthorities were requested ta send the Indian passengers
and crew rnembers on an Ariana Afghan Airlines aircraft which landed at
Lahore at about 2330 hours (IST) on 31st Januarv 1971.but Pakistan turned
down this request on the same giounds as above:
On the morning of 1st February 1971,whilst the passengers and crew mem- bers continued to be detained in Lahore, the Minister of Civil Aviation in
lndia addressed to the Minister in charge of civil aviation, Pakistan, a tele-
graphic message expressing concern and distress at the prolonged delay in
allowina vassenners and crew to return to India. The Minist~ ~~-so~ ~ ~ ~ ~ ~~ ~ ~ ~ ~-
the ~akisian authorities that the lndian relief aircraft with spare crew had
been standing-by awaiting clearance fromthe Pakistan authorities. The Minister
of External Affairs, Government of India, addressed a similar message to the
Home Minister of Pakistan. Still Pakistan failed to give clearance for the
Indian relief plane nor wert the crtw members of the relief aircraft granted visas
for Pakistan by the High Commission of Pakistan in India.
On the afternoon of 1st February 1971, passengers and crew members of
the lndian hijacked aircraft were permitted to leave and were brought by
road and handed over to the Indian authorities on the hdia-Pakistan border.
They had been in Lahore for a period of Iwo days. Meanwhile, the lndian
hijacked aircraft VT-DMA continued Io be detained at Lahore international
airport. At 2030 hours (IST) on.February 2, 1971, the aircraft was blown up
and destroyed at the Lahore International Airport within sight nd control
of the Pakistan Police, civil and militas. authorities, and in the .dl view of
the press and television cameras. The fire brigade which was at hand look no
action until the last minute.
The following factors are significant in this regard: although it was incumbent
under international law and usaae and custom for the Pakistan Government
Io hwe repatriated immediately;he stranded passengers and creu, they look
more than 48 hours to send thern to the Indisn-Pakistan border. The naç<engerc
and the crew were not allowed to brinn their baaaaae nor were thecareo and
mail released. Although the ~akistan~overnm-ek-stated that the hiyackers
were preventing them from boarding the aircraft and taking it into custody
and were brandishina a revolver and a hand arenade to ward them off. the
Government of ~akistan announced that they <ad given them political as;lum
in Pakistan on the very first day of the landing without disarming them. It is
stranae that instead of takina the offenders into custorv and returnine the -
plane-the Government of ~akistan granted political asyluk to them.
The Government of lndia is not aware of any instance in which political
asylum has been granted by a country to ofenders~even when these offenders do
not submit to the laws of that country and continue to threaten with firearms
and grenades the safety of an international airport, persons and property
thereon and on aircraft unlawfully seized from a foreien countrv. The hiiackers
urre rreel) pernlitted to vrsit by hrns the terminal bu>d,ng of khore Airpari.
to put in long-di\t.incc salls to accomplices in Pdkistan frorn thcrc and meet
various peovle besides beinn vrovided with food and other amenities which
alone enabled them IO continie their unlawful possession of the aricraft for
3-'1,days against the alleged efforts 01'the Pakistan authorities. This happened
on the apron of the Lahore international Airvort in full view of the authorities.
troops and police there. Advance arrangements were also made by the Govern:
ment of Pakistan for the press and T.V. to cover the destruction of the lndian
aircraft. This destruction of the aircraft was dramatized on the television
network of Pakistan and it was made to appear as if the event was an occasion
for celebration. It was alleged by the Pakistan authorities that a large crowd
had prevented them from repatriating the crew and passengers to India whereas
the fact is that there is strict martial law in Pakistan and it is not oossible for
crowds to gather or demunstrdte uithout the connivdnce of the lo~ulauthor-
itic\ In point of tact there uere nocroudsgathered nt the Lahorcairvort evcn
though some politicians visited the airport. Mat is more the ~irport wasthroughout open for al1 normal traffic including the Ariana flight which
landed there on 31st.
The Government of India would like to reiterate its declared policy of
condemning and curbing acts of unlawful seizure of aircraft and unlawful
interference with civil aviation. It deplores the detention of nassengers and
crew member* in I1ïki,ian for .perid ofiiio Jayr and the de;iruction of the
hijacked dircr~ft. This isconIrdry io the principle$ of the Chliago Con\cniion
and oiher inicrnaiional conventii>n.. Article II i~fthe Ci)n\cniion on Olfence\
and Ceridin Oiher Act\ ~.i>nimiited Board Aircr~fi, signed al Tokyo on 14th
Sepienibcr 1961.Ari.clc 9 of the <'onveniit~nfor the Suppression <ifI.'nlauful
Sciz~re of Aircrdi ador>teJ ai The Hague on 16th Deceniher 1970. The
various resolutions adopied by the lnternational Civil Aviation Organization
and the Resolution No. 2645 (XXV) adopted hy the General Assemhly of the
United Nations have al1exnressed deep concern over acts of hijacking and
unlawful interference with international civil aviation and have called Üpon
States to take every appropriate measure to return immediately aircraft, pas-
sengers, crew, cargo, mail and baggage whenever an act of unlawful seizure of
aircraft takes place. In this case the aircraft was destroyed with the active
assistance of the Government of Pakistan. Also the Government of Pakistan
detained passengers and crew for two days. Cargo, mail and baggage have not
been returned as vet. The~Go~ernment of India denlores this deliberate act of
the Pakistan Government in violation of international law, usage and custom
and reserve their rightta take such further action as it may deem necessary.
2. MESSAGE OATED 10 FEBRUARY 1971 FROM MR. N. SAHGAL, SECRETARV TO
THE GOVERNMENT OF INDIA. MlNlSTRY OF TOURlSM AND CIVIL AVIATION,
TO DR. WALTER BINAGHI ,RESIDENT OF THE COUNCLL OF THE INTERNATIONAL
CIVIL AVIATION ORGANlZATlON
This is further tamy message ta you, of the 4th February,conveyed through
our Representative on the Council of I.C.A.O.
We have not vet received anv nositive resnonse from the Government of
Pakistan regard& action again&kjackers and compensation for destruction
of our hijacked aircraft at Lahore International Airport in full view of civil
and militarv authorities of Pakistan. Nor have we received from Government
of ~rkisian.nny ekplanation for iheir rfirding full faciliiics and ameniliç10
hijackcr\ rcsuliing in deliberate de5truction of Our aircrdt. Furiher. \rc hdvc
also not receivedanv exolanation of circumstances in which nassengers and
crew were detained in ~akistan for over 48 hours; despite an Ariana-~fghan
Airlines flight being available and despite Our offer ta send relief aircraft with
snare crew. We have also received no information about the fate of the baggage,
cirgo and mail in the hijackédaircrïft. Governnient of Pakistrn hai not6iven
any assurance thai such incidenti \\il1 be cffcciivcly prevenied in fuiuie. On
the contrary, various authoritative pronouncements from Pakistan clearly
indicate that, in future also, Government of Pakistan would aford facilities
and asylum ta hijackers. In these circumstances, and ta maintain the con-fidence of the travelline nublic and in the interest of our national securitv. ~ ~ ~ ~ ~ ~ ~ ~ ~ ,.~
and to protect the sîfeiy'of aircrafi openitions, WC have been compcllcd to
suspend our flights o\,er Pakistan territory. Pakistan's actions. which are in
clearviolation of international law, havingleft us with no other-alternative, in
the circumstances, it is inconceivable that their aircraft should continue to
overfiy our territory. Amex H
CONVENTION ON INTERNATIONAL CIVIL AVIATION
(Signed al Chicago on 7 December 1944)
PREAMBLE
IVhereasthe future development of international civil aviation can grcatly
help io create and preserve friendship and understanding among the nations
and . .oles of the world.. .t its abuse can become a threat to the ae-eral
security; and
Whereas it is desirable to avoid friction and to promote that cooperation
between nation and peoples upon which the peace of the world depends;
Therefore, the undersigned governments having agreed on certain prin-
ciples and arrangements in order that international civil aviation may be
developed in a safe and orderly manner and that international air transport
services may be established on the basis of equality of opportunity and oper-
ated soundly and economically;
Have accordingly concluded this Convention to that end.
PART 1
AIR NAVIGATION
CHAPTER I
General Principles and Application of the Convention
Article 1
Sovereignty
The contracting States recognize that every State has complete and exclu-
sive sovereignty over the airspace above its territory.
Article 2
Territory
For the purposes of thisConvention the territory of a Stateshall bedeemed
to be the land areas and territorial waters adjacent thereto under the sover-
eignty, suzerainty, protection or mandate of such State.
' Canic in10forceon 4 April 1947.the ihinieih day afier depositwiihthe Go\crn-
nieni of the Unlicd Siatcs of Arncricaof ihc iucnty.sixih inrirument of ratirication
ihcreofor notificationof adhercncrthcrciin accordanccuith Anlclc91 (61 Article 3
Civil and State Aircraft
(a) ThisConvention shall be applicable only Io civil aircraft, and shall not
be applicable to state aircraft.
(b) Aircraft used in military, customs and police services shall he deemed
to be state aircraft.
(c) No state aircraft of a contracting State shall fly over the territory of
another State or land thereon without authorization hy special agreement or
otherwise, and in accordance with the terms thereof.
(d) The contracting States undertake, when issuing regulations for their
state aircraft, that theywill have due regard for the safety of navigation of
civil aircraft.
Article 4
Misuse of Civil Aviation
Each contracting State agrees oot to use civil aviation for any purpose
inconsistent with the aims of this Convention.
CHAPTER II
Flight over Territory of ContrucringStates
Article 5
Right of Non-ScheduledFlight
Each contractine. State aerees that al1 aircraft of the other contractine
States. being aircra?~not cngaged in schedulcd international air services shan
have the righr, subjeci IO the observance of the tcrms of this Conventiun. to
make flieh& into OÏin transit non-stoo across its territorv and to make stoos
for non-Trafic purposes without the ieçessity of ohtaini& prior
and subject to the right of the State flown over to require landing. Each con-
tractinastate nevertheless reserves the rieht. for reasons of safetv of fli~ht. to
require-aircraft desiring to proceed ov& régions which are iiaccessi.ble' or
without adequate air navigation facilities to follow prescribed routes, or to
obtain soecial oermission'?or such fli-hts
Such aircraft, if engaged in the carriage of passengers, cargo, or mail for
remuneration or hire on other than scheduled international air services, shall
also. subiect to the orovisions of Article7. have the orivileae of takine on or
discharging passengers, cargo, or mail, subject to the'right of any tat tehere
such emharkation or discharge takes dace to impose such regulations, con-
ditions or limitations as it may consider desirable.
Article 6
ScheduledAir Services
No scheduled international air service may he operated over or into the
territory of a contracting State, except with the special permission or other
authorization of that State,and in accordance with the terms of such permis-
sion or authorization. . Article 7
Cabotage
Each contracting State shall have the right to refuse permission to the
- .
aircraft of other contracting,Staies to take on in its ierriiory passengers. mail
and cargo carricd for remuneraiion or Iiire and destined for another point
within its territorv. Each contracting -tate undertakes not to enter into anv
arrangements which specifically grant any such privilege on an exclusive basis
to any other State or an airline of any other State, and not to obtain any
such exclusive privilege from any other State.
Article 8
Pilot/ess Aireraft
-o-aircraft caorhle of beine f-own withoui a oilot shall be flown without a
pilot ove1the territory of a contracting State without special authorization hy
that State and in accordance with the terms of such authorization. Each con-
tracting state undertakes to insure that the flight of such aircraft without a
pilot in regions open to civil aircraft shall be so controlled as to obviate
danger to civil aircraft.
Article 9
(a) Each contracting State may, for reasons of military necessity or
public safety, restrict or prohibit uniformly the aircraft of other Statesfrom
fl.in- over certain.areasof ~ ~ t~rrit~... vrovided that no distinction in this
respect is madebetween the aircraft of the State whose territoryis involved,
enaaaed in international scheduled airline services. and the aircraft of the
otheFcontractine - States like~is~ ~ ~a-ed. Such orohihited areas shall be of
reasonable cxtrnr and locïtion so ïs no1 to jnterfere unneccss;irily uith air
naviaaiion. Descriptions of such nrohibited areas in the territory of a coii-
tracGng State, as well as any subséquent alterations therein, shall be commu-
nicated as soon as possible to the other contracting States and to the Inter-
national Civil Aviation Organization,
(b) tach contrîciing Statr rererves 3150 the right, in excepiional circum-
stances or during a period olemergency, or in the inierest of public safety,and
with imniedtate clTect.temporarily to resirict or prohibit flying over the u hole
or any part of 11,terriiory. on condition that such restriction or proliib~tion
shall be applicable without distinction of nationa1.t~ to aircraft of al1 uiher
Srlitcr.
lo Each contracting Stiiie, under iuch regulaiions as it m3y pre>cribe,
m3y require any aircraft critering the arcab contemplaied in subpariigraphs
(a, or lbl abovc tu elïcct a landinc as soon as practicshle theredrter ai sonic
designated airport within its territory.
Article 10
Landing at Customs Airport
Except in a case where, under the terms of this Convention or a special
authorization, aircraft are permitted to cross the territory of a contractingState without landing, every aircraft, which enters the territory of a contrac-
ting State shall, if the regulations of that State so require. land at an airport
desianated bv that State for the ourwse of customs and other examination.
On departuri from the territor; of a contracting State, such aircraft shall
depart from a similarly designated customs airport. Particulars of al1 desig-
nated customs airoorts shall be oublished bv the State and transmitted to
the International Civil ~viation'0r~anization established under Part II of
this Convention for communication to al1other contracting Sratcs.
Article 11
Applicability of AirRegulations
Subject to the provisions of this Convention, the laws and regulations of a
contracting State relating to the admission to or departure from its territory
of aircraft enaaaed in international air naviaation. or to the ooeration and
navigation of-s'ch aircrafr while within its crrito&, shall be applieto the
airsraft of al1 contrdcting States uirhout disrinctioii as tu nationality. and
shall be complied with by such aircraft upon entering or departing from or
while within the territory of thState.
Article12
Rules of the Air
Each contracting State undertakes to adoot measures to insure that every
aircraft flying over-or maneuvering within it; territory and that evcry aircraft
carrjing its nationality mark. whcrever such aircraft n~ay bc. shall comply
uith the rules and regulations relarin[O the flight and maneuvcr of aircraft
there in force. Each contracting State undertakes tu keep ils own regulations
inthese respects uniform. Io the greatest possiblccxtent, with thoseestablished
from time to time under this Convention. Over the high seas. the rules in
force shall be those established under this convention. ~ach contracting
State undertakes toinsure the prosecution of al1persons violating the regula-
tions applicable.
Article13
Entry and Clearance Regularions
The laws and rea-lations of a contractin- State as to the admission to or
departure from its territory of passengers, crew or cargo of aircraft, such as
regulations relating to entry, clearance, immigration, passports, customs, and
auarantine shall be cornolied with bv oron behalf of such oassenaers. crew or
cargo upon entrance inio or deparkre from, or while within thëter~itory of
that State.
Article14
Prevention of Spread of Disease
Each contracting State agrees to take effective measures to prevent the
soread bv means of air navi~-tio~ o~~c~olera. tvohus (eoidemic). smalloox.
kllou, f&er, plague. and such other communi&bié discàsésas thecontracting
States shall from tirne to time drcide ro designate, and to that end contracling MEMORIAL OF INDIA 303
States will keep in close consultation with the agencies concerned with inter-
national reaulations relating to sanitary measures applicable to aircraft.
Such cons~lktion shall be ushout prcjudjce Io the appl~&tion of any cxisting
international convention on this subject to which the contracting Siates rnay
be parties.
Article 15
Airport and Sirnilar Charges
-verv airoort in a contractine State which is ooen to oublic use bv its
nationdl aircrîft shïll likcwise, suubjectto the provi\ions of A'rtisle 68. hc ;pcn
under uniform conditions ta the aircrafi of al1the other coniracting States.
The like uniform conditions shall a.. . to the use. . .aircraft of evcrv con-
tracting State, of al1air navigation facilities, including radio and meteorolo-
aical services. which mar b. .ovided for public use for the safety and expe-
dition of air navigation.
Any charges that may he imposed or permitted to be imposed by a con-
tracting State for the use of such airports and air navigation facilities by the
aircraft of any other contracting State shall not be higher,
(a) As ta aircraft not engaged in scheduled international air services,
than those that would be paid by its national aircraft of the samc class
engaged in similar operations, and
(b) As to aircraft engaged in scheduled international air services, than
those that would be paid by ils national aircraft engaged in similar inter-
national air services.
Al1sucb charees shall be oublished and comrnunicated to the International
Civil Aviation 6rganization: providcd thiit,upon representation by an inter-
esied contracting Sratc, the charges imposed for the use of airports and othcr
fa.'iiies shï11 he suhiect to review bv the Council. uhich shall report and
make recommendatio& thereon for the consideration of the State or States
concerned. No fees, dues or other charges shall be imposed by any contrac-
ting State in respect solely of the right~of transit over or entry into or exit
from its territory of any aircraft of a contracting State or persons or property
thereon.
Article 16
Search of Aircran
The aoorooriate autborities of each of the contracting States shall have
the righc kithout unreasonable delay, to search aircraft of the other contrac-
ting States on landing or departure, and ta inspect the certificates and other
documents prescribed by th& Convention.
CHAPTER III
Narionality of Aircrafi
Article 17
Narionality of Aircraft
Aircraft have the nationality of the State in which they are registered. Article 18
Dual Regisrrarion
An aircraft cannoi be validly registered in more than one State, but ils
registration may be changed from one State to another.
Article19
National Laws governing Regisfration
The registration or transfer of registration of aircraft in any contracting
State shall be made in accordance with its laws and regulations.
Article20
Display of Marks
Every aircraft engaged in international air navigation shall bear its appro-
pnate nationality and registration marks.
Article21
Report of Regisrrafions
Each contracting State undertakes to supply to anyother contractingState
or to the International Civil Aviation Organization, on demand, information
concerningthe registration and ownership of any particular aircraft registered
in that State. Io addition, each contracting State shall furnish reports to the
International Civil Aviation Organization, under such regulations as the
lattermay prescribe, giving such pertinent data as can be made available
concerning the ownership and control of aircraft registered in that State and
habitually engaged in international air navigation. The data thus obtained
by the International Civil Aviation Organization shall be made available by
it on request to theother contractingstates.
CHAPTER IV
Measeres IO FacilirareAir Navigafion
Article 22
Facilitarionof Formaliries
Each contracting State agrees to adopt al1 practicabie measures, through
the issuance of s~ecial regulations or otherwise. to facilitate and exuedite
navigation by aircraft bctu,een the tcrriiories of coniraciing States, a-nd tu
preveni unneccssary dclays IOaircrdft, crcws, passcnpcrs and cargo, especially
in the administration of the laws relating to immigration,quarantine, customs
and clearance.
Article 23
Cusromsand Immigration Procedrrres
Each contracting State underfakes, so far as it may find practicable, to
establish customs and immigration procedures aiïecting international air navigation in accordance with the practices which may be established or
recommended from rime Io time. pursuant to ihis Convention. Nothing in
this Convention shall beconrtrued as oreventing the establishment ofcustoms-
free airports.
Article 24
Customs Duty
(a) Aircraft on a flight to, from, or across the territory of another con-
tracting state shall be admitted temporarily free of duty, subject to the cus-
toms regulations of the State. Fuel, lubricating oils, spare parts, regular
eaui~ment and aircraft stores on board an aircraft of a contractina State. on
anival in the territory of another contracting State and retainedon bo'ard
on leaving the territory of that State shall be exempt from customs duty,
insnection fees or similar national or local duties and charees. This exemotion
r
shall not applyto any quantities or articles unloaded, eicept in accordance
with the customs regulations of the State. which may require tbat they shall
bekept under customs supervision.
(b) Spare parts and equipment imported into the territory of a contracting
State for incorporation in or use on an aircraft of another contracting State
eogaged in international air navigation shall be admitted free of customs
duty, subject to cornpliance with the regulations of the State concerned,
which may provide that the articles shall be kept under customs supervision
and control.
Article 25
Aircrafr in Distress
Each contractine Stateundertakes to orovide such measures of assistance to
aircraft in distresLin its territory as it'may find praciicable. and Io permit.
~ubject tocontrol by its own authorities. the ou,ners of the aircraft or authori-
ries of the Stateiriwhich the aircraft is registered to provide such measures of
assntance 3s may be necessitated by the circumstances. Each contracting
Siate, when undertaking scarch for missing aircraft, will collaboraie in coor-
dinated measures which may be recommended from time Io time pursuant
to this Convention.
Article 26
Investigation of Accidents
In the event of an accident to an aircraft of a contractine State occurrina in
. ~.~~-~ ~~ ~ . .~ - -
the territory of another contracting State, and involving death or serious
injury, or indicating serious technical defect in the aircraft or air navigation
facilities, the State in which the accident occurs will institute an inquiry into
the circumstances of the accident, in accordance, so far as its laws permit,
with the procedure which may be recommended by the lnternational Civil
Aviation Organization. The State in which the aircraft is registered shall be
given the opportunity to appoint observers to be present at the inquiry and
the State holding the inquiry shall communicate the report and findings in
the matter to that State. Article 27
Exemptionfrom Seizure on Patent Claim
(a) While enaaaed in international air naviaation. anv authorized entrv
of'aircraft of aCintracting State into the terrytory of another contracting
State or authorized transit across the territory of such State with or without
landina. shall not entail anv seizure or detention of the aircraft or anv claim
against the owner or operalor rhercoior anv oihcr inierfrrcnce iherewith hy or
on bchalf of such State or any pcrson therein, on the ground tliai the consiruc-
tion. mechanism. oarts. accessories or o~eration of the aircraft is an infrinae-
ment of any patent, design, or mode1 d;ly granted or registered in the ~tite
whose territory is entered by the aircraft, it heing agreed that no deposit of
securitv in connection with the foregaina exemotion from seizure or detention
of the-aircraft shall in any case be reiuired'in the State entered by such
aircraft.
(b) The provisions of paragraph (a) of this Article shall also be applicable
to the storage of spare parts and spare equipment for the aircraft and the
right to use and install the same in the repair of an aircraft of a contracting
State in the territorv of anv other contracting State. orovided that anv oat-
ented part or equipment sOstored shall not Gesold'or distributed intërially
in or exoorted commercially from the contracting State entered by the
aircraft.
(c) The benefits of this Article shall apply only to such States, parties to
this Convention, as either (1) are parties to the International Convention
for the Protection of Industrial Prooertv and ta anv amendments thereof: or
(2) have enacted patent laws which rkognize andgive adequate protechon
to inventions made by the nationals of the other States parties to this Con-
vention.
Article 28
AN. Navigation Faciliries and Standard Sysrems
Each contracting State undertakes, so far as it may find practicable, 10:
(a) Provide, in ifs territory, airporfs, radio services, meteorological
services and other air naviaa-ion facilities to facilitate international air
navigation. in accordance wirh the srandards ancl prdsiiccs recommended
or established from iimc IO lime. punu3nt to rhis Con\cniion;
16) Adoot and out into ooeration the aooro~riate standard svstems
of communications procedure, codes, rnarkings, . signals, lighting and
other operational practices and rules which may be recommended or
estahlished from tirne to time. oursuant to this Convention:
(c) Collaborate in internatiinal measures to secure the Publication
of aeronautical maps and charts in accordance with standards which
may he recommended orestablished from tirne to time, pursuant to this
Convention. CHAPTER V
Conditions To Be Fulflled with Respect to Aircraff
Article 29
Documents Carried in Aircraff
Every aircraft of a contracting State, engaged in international navigation,
shall carrv the followina documents in conformity with the conditions ore-
scribed in this convention:
/al Its certificate or reeistration:
ibj Its certificate of airkorthiness;
(cl The ao..omi.te licenses for each member of the crew;
id] lts journey log book;
(e) If it is equipped with radio apparatus, the aircraft radio station
license;
(f) If it carries passengers, a list of their names and places of embar-
kation and destination;
(g) If it carriescargo, amanifest and detaileddeclarations ofthe cargo.
Article 30
Aircraft Radio Equipment
(a) Aircraft of each contracting State may, in or over the territory of other
contractina States. carrv radio transmitting amaratus onlv if a license to
install and-operatesuch~pparatus has been issued hy the apbropriate autho-
rities of the State in which the aircraft is registered. The use of radio trans-
mitting apparatus in the territory of the contracting State whose territory is
flown over shall be in accordance with the regulations prescrihed by that
State.
Ibl Radio transmittine aooaratus mav be used onlv bv members of the
flighi crew who are providedwith a spec&l license for the purpose, issued by
the appropriate authorities of the State in which the aircraft is registered.
Article 31
Certifiates of Airworlhiness
Every aircraft engaged in international navigation shall he provided with a
certificateof airworthiness issued or rendered valid by the State in which it is
registered.
Article 32
Licenses of Personnel
(a) The pilot of every aircraft and the other members of the operating
crew of every aircraft engaged in international navigation shall be provided
with certificates of comnetencv and licenses issued or rendered valid bv the
State in which the aircraft is registered.
(bl Each contracting State reserves the right to refuse to recognize, for
the purpose of flight above its own territory, certificates of competency and
licenses granted to any of its nationals by another contracting State. Article 33
Recognition of Certificates andLicenses
Certificates of airworthiness and certificates of competency and licenses
issued or rendered valid by the contracting State in which the aircraft is
registered, shall be recognized as valid by the other contracting States, pro-
vided that the renuirements under which such certificates or licenses were
issued or rendered'valid are equal 10 or abo\,e the minimum standards nhich
may be established from lime to time pursuant Io this Convention.
Article 34
Journey Log Books
There shall be maintained in respect of every aircraft engaged in inter-
national navigation a journey log book in which shall be entered particulars
of the aircraft, ils crew and of each journey, in such form as may be pre-
scribed from time to lime pursuant to this Convention.
Article 35
Cargo Restrictions
(O) No munitions of war or implements ofwar may be carried in or above
the territory of a State in aircraft engaged in international navigation, cxcept
by permission of such Statc. Each State shall determine by rcgulations what
constitutcs munitions of wnr or implements of war for the purposes of this
Article, giving due consideration, for the purpoies of uniformity, 10 such
recommendations as the International Civil Aviation Ore-nization mav from
time to time make.
(b) Each contracting State reserves theright, for reasons of public order
and safety. to remlate or orohibit the carriaae in or above its territory of
articles other thin those ënumerated in parGaph (O): provided tbai no
distinction is made in this respect between its national aircraft engaged in
international navigation and the aircraft of the other States so enna--d: an.
provided further ïhat no restriction shall be imposed which may interfere
with the carriage and use on aircraft of apparstus necessary for the operation
or navigation of the aircraft or the safety of the personnel or passengers.
Article 36
Photog-ap~ie Ap..ratus
Each contracting State may prohibit or regulate the use of photographie
apparatus in aircraft over ils territory.
CHAPTER VI
InternationalStandards and Recommended Pracrices
Article 37
Adoption of International Standards ond Procedures
Each contracting State undertakes to collaborate in securing the highest
practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services
in ail matters in which such uniformity will facilitate and imorove air na-iaa-
lion.
To this end the International Civil Aviation Organization shall adopt and
amend from time to time, as may be necessary. international standards and
recommended practices and procedures dealing with:
(a) Communications systems and air navigation aids, including
ground marking;
IbJ Characteristics of airoorts and landina areas:
(cj Rules of the air and-air traffic contril praciices;
(d) Licensing of operating and mechanical personnel;
(ej Airworthiness of aircraft:
(fj Registration and identification of aircraft;
(g) Collection and exchange of meteorological information;
(h) Log books;
(i) Aeronautical maps and charts;
(j) Customs and immigration procedures;
(k) Aircraft in distress and investigation of accidents;
and such other matters concerned with the safety, regularity. and eficiency
of air navigation as may from time to time appear appropriate.
Article 38
Departuresfrom International Sfandards and Procedures
Aov State which finds it imoracticable to com~lv in al1resoects with anv
such international standard or'procedure, or to &Ag its ownregulations or
practices into full accord with any international standard or procedure after
amendment of the latter. or which deems it necessarv to adoot re~ulations
or practices differing in any particular respect from Choseesta.blishëd by an
international standard, shall give immediate notification to the International
Civil Aviation Oraanization of the differences between its own oractice and
that established b; the international standard. In the case of akendments to
international standards, any State which does not make the appropriate
amendments to its own regulations or practices shall give notice to the Coun-
cil within sixty days of the adoption of the amendment to the international
standard, or indicate the action which it proposes to take. In any such case,
the Council shall make immediate notification to al1other States of the differ-
ence which exists between one or more features of an international standard
and the corresponding national practice of that State.
Article 39
Endorsement of Cerfific~tesand Licenses
(a) Any aircraft or part thereof with respect to which there exists an inter-
national standard of airworthiness or ~erformance. and which failed in any
respect to satisfy that standard at the iime of its cértification, shall have en-
dorsed on or attached to its airworthiness certificate a complete enumeration
of the details in resoect of which it so failed.
(b) Aoy person holding a license who does not satisfy in full the conditions
laid down in the international standard relating to the class of license or
certificate which he holds shall have endorsed on-or attached to his license acornplete enumeration of the particulars in which he docs not satisfy such
conditions.
Article 40
Validity of Endorsed Certificates and Licenses
No aircra~ ~ ~ nc~sonnel havine c-rtificates or licenses so endorsed shall
participate in international navigation, except with the permission of the
State or States whose territory is entered. The reaistration or use of any such
aircraft. or .f ~ ~ ~ ~tificated aircraft oart. in inv State other than that in
which ii was origi'nallyc2ificated shali be at the discretion ofthe State into
which the aircraft or part is imported.
Article 41
Recognition of Existing Srandardsof Airworthiness
The provisions of this Chapfer shall not apply to aircraft and aircraft
equipmeot of types of which the prototype is subrnitted to the appropriate
national authorities for certification prior to a date three years after the date
of adoption of an international standard of airworthiness for such equipment.
Article 42
Recognitionof Existing Standards of Competencyof Personnel
The nrovisions of this Chaoter shall no1 ao..v .o oe.sonnel whose licenses
are originally issued priorto a date one year after initial adoption of an inter-
national standard of qualification for such ~ersonnel; but they shall in any
case apply to al1 whose licenses Ïemain valid five years after the
date of adoption of such standard.
PART II
THE INTERNATIONAL CIVIL AVIATION ORGANlZATlON
CHAPTER
The Organization
Article 43
Nome and Comoosition
An Organization to be named the International Civil Aviation Organization
is formed hy the Convention. It is made up of an Assembly, a Council, and
such other bodies as may be necessary.
Article 44
Objecrives
The aims and objectives of the Organization are to develop the principles
and techniques of international air navigation and to foster the planning
and development of international air transport so as IO: (a) Insure the safe and orderly growth of international civil aviation
throughout the world;
(b) Encourage the arts of aircraft design and operation for peaceful
purposes;
(c) Encourage the development of airways, airports, and air naviga-
tion facilities for international civil aviation;
(d) Meet the needs of the peoples of the world for safe, regular,
efficient and economical air transport;
(e) Prevent economic waste caused by unreasonable competition;
f Insure that the rights of contracting States are fully respected and
that every contracting State has a fair opportunity to operate internatio-
nal airlines;
/al Avoid discrimination between contractine States:
(h) Promote safety of flight in international Gr navigation;
lii Promote generally the development of al1aspects of international
civil aeronautics.
Article 45 1
PermanentSeaf
The permanent seat of the Organization shall be at such place as shall be
determined at the final meeting of the Interim Assembly of the Rovisional
International Civil Aviation Organization set up by the Interim Agreement
on International Civil Aviation signed at Chicago on December 7, 1944.
The seat may be temporarily transferred elsewhere by decision of the Council
and otherwise than temporarily by decision of the AssemMy. such decision
to be taken by the number of votes specified by the Assembly. The number of
votes so specified will not be less thao three-fifths of the total number of
contracting States.
Article 46
Firsr Meeting of Assembly
The first meetins of the Assemblv shall be summoned bv the Interim Coun-
cil of the above-mentioned ~rovisional Organization as &on as the Conven-
tion has come into force, to meet at a time and place to be decided by the
lnterim Council,
Article 47
Legal Capacity
The Organization shall enjoy in the territory of each contracting State such
legal capacity as may be necessary for the performance of ifs functions. Full
1 This is the text of the Articleas amendedby the Eighth Swion of the Assembly
on 14 June 1954;it entered inIo forceon 16May 1958.Under Article94 fol Of the
Convention,theamended tex1isin forceinrespectof thosc States which have ratiûed
the amendment.In respwt of the Stateswhichhave not ratifiedthe amendment, the
ori-inaltex1isstillinforceand..he~ ~ ~ ~tbat textis reoroducedbelow:
"The permanentseatoftheOrganizationshallbeat suchplaceasshall bedetermined
a1 the final meeting of the lnterim Assemblyof the ProvisionalIntematianal~Civii
Aviation Organizationsetup bythe InterimAgreement onlnternationalCinl Anation
simed a1Chicagoon Dgember 7,1944.TheseatmayLxtemporarilytransferred else-
whereby decisionof the Council."juridical personality shall be Branted wherever compatible with the consti-
tution and laws of the State concerned.
CHAPTER Vlll
The Assembly
Article 48
Meetings of Assembly and Voring
(a) The Assembly shall meet not less than once in three yean and shall
be convened hv the Council at a suitable time and dace. Extraordinarv
meetings of the~ssembly may be held 31nny lime upon-the cal1of the COU"-
cil or at the request of any ten contracting States addrcssed to the Secretary
General 1.
(bJ All contracting States shall have an equal right to be represented at
the meetings of the Assembly and each contracting State shall be entitled Io
one vote. Deleeates reoresentina contractina States mav be assisted bv tech-
nical advisers ;,ho miy participate in the meetings hui shall have no vote.
(c) A majority of the contracting States is required to çonstitute a quorum
for the meetinesof the Assemblv. Ünless otherwise orovided in this Conven-
tion, decisions-of the Assembly ;hall he taken by a majority of the votes cast.
Article 49
Powers and Duties of Assembly
The powers and duties of the Assembly shall he 10:
(a) Elect at each meeting its President and other officers:
ibj Elect the contracting~tates to be represented on the ~ouncil, in
accordance wiih the provisions of Chapter 1X;
(cl Examine and take aDDronriate action on the reports of the Coun-
ciland decide on any mat&; reierred to it by the ouic cil;
Id) Determine ils own rules of procedure and establish such subsid-
iarv commissions as il mav consider to be necessary or desirable;
ie) Vote ünnual hudge;s and dcterminc the financial arrangements of
the Organizirtion. in dccordance u~th the prov.sions of Chapter XII2.
This is the text of the Article as amended by the Eighth Sessionof the Assembly
on 14lune 1954;itentered into forceon 12December1956.UnderArticle94 (O) ofthe
Convention, the amended tex1is in force in respectof those Stateswhichhave ratified
the amendment. In respect of the States whichbave not ratified the amend-nt, the
originaltex1is still in forceand, therefore that text is reproduced below:
"(a) The Assemblyshall meet aMually and shall be convened by the Council at a
suitable rime and place. Exiraordinary meetingsof the AsscmblyMay be held at any
lime upon the -11 of the Council or atthe request of any ten conlractingStates ad-
dmScd Io the SecretaryGeneral."
'This is the tex1of the Article as amended by the Eighth Sessionof the Assembly
on 14lune 1954;it enteredinto forceon 12Ikcember 1956.UnderArticle94 (a) ofthe
Convention, the amended text is in force in respectofose States whichhave ratified
the amendment. In respect of the States whichhave not ratifiedthe aniendment, the
originaltext istillin forceand. therefore,that tex1isreproduced below:
"le) Votean annual budget and determinethe financialarrangementsof the Orga-
nization.in accordancewith the provisionsof Chapter XII;". (f) Review expenditures and approve the accounts of the Organiza-
tion;
(g)Refer, at ils discretion, to the Council, to subsidiary commissions,
orto any other body any matter within ils sphere of action;
(h) Delegate Io the Council the powers and authority necessary or
desirable for the discharge of the duiies of the Organization and revoke
or modify the delegations of authority at any lime;
(i) Carty out the appropriate provisions of Chapter XIII;
(j) Consider proposals for the modification or amendment of the
provisions of this Convention and. if it approves of the proposals.
recommend them to the contracting States in accordance with the pro-
visions of Chapter XXI;
(k) Deal with any matter within the sphere of action of the Organiza-
tion not specifically assigned to the Council.
The Council
Article 50
Composition and Election of Council
(O) The Council shall be a permanent body responsible to the Assembly.
It shall be composed of twenty-seven contracting States elected by the
Assemblv. An election shall be held at the first meeting of the Assemblv and
therealter every three years, and the members of the Council so electedshall
hold office until the next following election 1.
fbJ In electinx the members of the Council. the Assemblv shall aive
adequate representation to (1) the States of chief importance in Gr transport;
(2) the States not otherwise included which make the largest c~ntribution to
the orovision of facilities for international civil air navhation: and (3)the
~tatk not otherwise included whose designation will insu; thatall the'major
geogra~hic areas of the world are represented on the Council. Any vacancy
on the- Council shall be filled by the Assembly as soon as possible; any
contracting State so elected to the Council shall hold officefor the unexpired
portion of its predecessor's term of office.
(c) No representative of a contracting State on the Council shall be
actively associated with the operation of an international air service or
financially interested in such a service.
1 ThisisthetextoftheArticleasamendedbytheThifleenth(Extraordinary)Session
ofthe Assemblyon 19lune 1961;if enteredinto for5 on 17 July 1962.Under Article
94 fa) of theConvention,theamendedtextisin forceinrespect ofthoseStateswhich
have ratifid the amendment. In respect of the States which bave not ratified the
amendment,.the original text is still in force and. therefore,lhat text is reproduced
bel0w:
"fol The Council shallbea manent body ra~onsible to the Assembly.It shall
be ~&~osd of twenty-onecontracting ~tateielaied by the Assembly. Ai elstion
shallbeheldat the fintmeeting ofthe Assemblyand thereaftereverythreeyean, and
themembersoftheCounBlsoelstedshall holdofficeuntilthenextfollowingelstion." Article 51
Presidenr of Council
The Council shall elect its President for a term of three years. He may be
reelected. He shall have no vote. The Council shall elect from among its
members one or more Vice Presidents who shall retain their right to vote
when serving as acting President. The President need not be selected from
among the representatives of the members of the Council but, if a represen-
tative is elected, his seat shall be deemed vacant and it shall be filled by the
State which he represented. The duties of the President shall be to:
(a) Convene meetings of the Council, the Air Transpon Committee,
and the Air Navigation Commission;
(6) Serve as representative of the Council; and
(c) Carry out on behalf of the Council the functions which the Coun-
cil assigns to him.
Article 52
Voting in Council
Decisions by the Council shall require approval by a majority of ils mern-
bers. The Council mav deleaate authoritv with resoect to anv oarticular
matter to a cornmittee-of itsmembers. ~écisions of'any corniiltee of the
Council may be appealed to the Council by any interested contracting State.
Article53
Parriciparion Wilhour a Vote
Anv contractineState mav oarticioate. without a vote. in the consideration
by théCouncil an> by its co&ittees and commissions of any question which
especially affects its interests. No member of the Council shall vote in the
consideration by the Council of a dispute to which it is a Party.
Article 54
Mandatory Funcrions of Council
The Council shall:
(a) Submit annual reports to the Assembly;
/bl Carrvout the directions of the Assemblv and discharge -he duties
înh "bligstions u,hich are laid on itby this convention;
(CI Deiermine its organization and rules of procedure;
((11 Aoooint and dcfine the duties of an Air Triinsoort Committee.
which shail be chosen from among the representatives-of the members
of the Council, and which shall be responsible to it;
(el Establish an Air Navigation Commission, in accordance with the
provisions of Chapter X;
(f) Adrninister the finances of the Organization in accordance with
the orovisions of Chaoters XII and XV:
(g) Determine the'emoluments of tt;e President of the Council;
(hl Appoint a chief executive officer who shall be called the Secretary
General, and. make provision for the appointment of such other person-
nel as may be necessary, in accordance with the provisions of Chapter XI; (i) Request, collect, examine and publish information relating to the
advancement of air navigation and the operation of international air
services, including information about the costs of overation and varti-
culars of subsidiei paid to airlines from public funds;
(j) Report to contracting States any infraction of this Convention,
as well as any failure to carry out recommendations or determinations of
t~ ~ ~uncil:
(k) ~eport to the Assembly any infraction of this Convention where a
contracting State has failed to take avor..ria.e action witbin a reason-
able time after notice of the infraction;
(1) Adopt, in accordance with the provisions of Chapter VI of this
Convention, international standards and recommended practices; for
convenience, designate them as Annexes to this Convention; and notify
al1contracting States of the action taken;
(m) Consider recommendations of the Air Navigation Commission
for amendment of the Annexes and take action in accordance with the
provisions of Chapter XX;
(n) Consider any matter relating to the Convention which any
contracting State refers to it.
Article 55
Permissive Funcrionsof Council
The Council may:
(a) Where appropriate and as experience may show to be desirable.
createsubordinateair transport commissions on a regional or other basis
and define groups of States or airlines with or through which it may deal
to facilitate the carrying out of the aims of this Convention;
(b) Delegate to the Air Navigation Commission duties additional to
those set forth in the Convention and revoke or modify such delegations
of authority at any time;
(c) Conduct research into al1aspects of air transvort and air naviaa-
tion which are of international importance, communicate the resultsof
its research to the contracting States, and facilitate the exchange of
information between contracting States on air transport and air naviga-
tion matters:
(d) ~tud; any matters afîecting the organization and operation of
international air transvort, includina the international ownershiv and
oneration of international air serviceson ~ ~ ~~ro~te~. and submitio the
~ssembly plansin relation thereto;
(e) Investigate, at the request of any contracting State, any situation
which may appear to present avoidabléobstacles to the development of
international air navigation; and, after such investigation, issue such
reports as may appear to it desirable.
CHAPTER X
The Air Navigation Commission
Article 56
Nominarion andAppointment of Commission
The Air Navigation Commission shall be composed of twelve members316 ICAO COUNCIL
aooointed bv the Council from amone nersons nominated bv contractina
~iites. ~hesépersons shall have suitable ~ualifications and ex&rience in thé
science and practicc of aeronautics. The Council shall request ;il1contracting
States to submit nominations. The President of the Air Naviaarion Commis-
-
sion shall be appointed by the Council.
Article 57
Dulies of Commission
The Air Navigation Commission shall:
(a) Consider, and recommend to the Council for adoption, modifica-
tions of the Annexes to this Convention;
(b) Establish technical subcommissions on which any contracting
State mav be reoresented. if it so desires:
(c) ~dvise the councii conceroing thécollection and communication
to the contracting States of al1information which it considers necessary
and useful for the advancement of air navigation.
CHAPTER XI
Personnel
Article 58
Ao~oinrmenrof Personnel
. .
Subject to ûny rules laid doivn by the Assembly and Io the provisions of
this Conventton. the Council sholl detcrmine the method of appointment and
of terrnination of aooointment. the trainine. and the salaries. allowances.
and conditions of service of the Secretary Genera~ and otherpenonnel of
the Organization, and may employ or make use of the senices of nationals
of any contracting State.
Article 59
Inlernarional Characrer of Personnel
The President of the Council, the Secretary General, and other personnel
shall not seek or receive instructions in regard to the discharge of their
responsibilities from any authority external to the Organization. Each con-
tractine State undertakes fullv'to resoect the international character of the
responsibilities of the and Lot to seek to influence any of its natio-
nals in the discharge of their responsibilities.
Article 60
Immunilies and Privilegesof Personnel
Each contracting State undertakes, so far as possible under its constitu-
tional procedure, to accord to the President of the Council, the Secretary
General, and the other personnel of the Organization, the immunities and
privileges which are accorded to corresponding personnel of other public
international organizations. If a general international agreement on the
immunities and privileges of international civil servants is arrived at, theimmunities and privileges accorded to the President, the Secretary Ceneral,
and the other oersonnel of the Or~anization shall be the immunities and
privileges accorded under that geneil international agreement.
CHAPTER XI1
Finance
Article 61 2
Budget and Apportionment of Expenses
The Council shall submit to the Assembly annual budgets, annual state-
ments ofaccounts and estimates of al1receipts and expenditures. The Assem-
bly shall vote the budgets with whatever modification it sees fit to prescribe,
and, with theexception ofassessments under Chapter XV Io States consenting
thereto, shall apportion the expenses of the Organization among the contrac-
ting States on the basis which it shall from time to time determine.
Article 62
Suspensionof Voting Power
The Assembly may suspend the voting power in the Assembly and in the
Council of any contracting State that fails to discharge within a reasonable
period its financial obligations to the Organization.
Article 63
Expensesof Delegarions and Other Representatives
Each contracting State shall bear the expenses of its own delegation to the
Assembly and the remuneration, travel, and other expenses of any person
whom it appoints to serve on the Council, and of its nominees or represen-
tatives on any subsidiary committees or commissions of the Organization.
CHAPTER XII1
Other International Arrangements
Article 64
Security Arrangements
The Organization may, with respect ta air matters within ils competence
directly aiïecting world security, by vote of the Assembly enter into appro-
1This is the tex1of the Article as amended by the Eighth Sessionof the Assembly
on 14 June 1954;itentered inta forceo12December 1956. UnderArticle94 (O)ofthe
Convention,the amended text is in force in respectof those Stateswhichhave ratified
the amendment. In respect of the States which have not ratified theamendment,the
originaltextisstillin forceand, therefore,that text isreproducedbelow:
"The Council shallsubmit to the Assemblyan annual budget,annual statementsof
accounts and estimates of al1receipts and expenditures.The Assemblyshall vote the
budget withwhatevermodificationil seesfitto prescrik, and, withtheexceptionoas-
swments under Chapter XVto Statesconsentingthereto,shallapportion theexpenses
of the Organizationamong the cantracting Stateson the basiswhichit shall fromlime
to tirnedetermine."priate arrangements with any general organization set up by the nations of
the world to preserve peace.
Article 65
Arrangements withOther International Bodies
The Council, on behalf of the Organization, may enter into agreements
with other international bodies for the maintenance of common services and
for common arrangements concerning personnel and, with the approval of
the Assembly, may enter into such other arrangements as may facilitate the
work of the Organization.
Article 66
Funcrionsreluring to Other Agreements
(a) The Organization shall also carry out the functions placed upon if
by the International Air Services Transit Agreement and by the International
Air Transport Agreement drawn up at Chicago on December 7, 1944, in
accordance with the terms and conditions thezein set forth.
(b) Members of the Assembly and the Council who have notaccepted the
lnternational Air Services Transit Agreement of the International Air Trans-
port Agreement drawn up at Chicago on December 7, 1944 shall not have
the right to vote on any questions referred to the Assembly or Council under
the provisions of the relevant Agreement.
PART III
INTERNATIONAL AIR TRANSPORT
CHAPTEU X1V
Information and Reports
Article 67
File Reports wirhCouncil
Each contracting State undertakes that its international airlines shall, in
accordance with requirements laid down by the Council, filewith the Council
traffic reports, cost statistics and financial statements showing among other
things al1receipts and the sources thereot
CHAQTEU xv
Airports and Other Air NavigationFacilities
Article 68
Designutionof RoutesundAirports
Each contracting State may, subject to the provisions of this Convention.
designate the route tobe followed within its territory by any international
air service and the airports which any such service may use. Article 69
Improvemenr of Air Navigation Faciliries
If the Council is of the opinion that the airports or other air navigation
facilities, including radio and meteorological services, of a contracting State
are no1 reasonablv adeauate for the safe. reeular. efficient. and economical ~ ~ ~ ~ ~ ~ ~ ~ ~
opcrïtion of international air services. prcsent or coniemplated, the Council
shïll consult with the State dircctly concerned. and other Siaie, aficted. u,ith
a view to findine means bv which the situation m~v b~ remed.ed. . and ~ ~ ~ ~ ~
make recommeidations for that purpose. No contracting State shall be
guilty of an infraction of this Convention if if fails fo carry ouf these recom-
mendations.
Article 70
Financing of Air Navigation Fociliries
A contracting State, in the circumstances arising under the provisions of
Article 69, may conclude an arrangement with the Council for giving effect
to such recommendations. The State may elect to bear al1of the costs involved
in any such arrangement. If the State does not sa elect, the Council may agree,
at the request of the State, ta provide for al1or a portion of the costs.
Article 71
Provision and Maintenace of Faciliries by Council
If a contracting State so requests, the Council may agree ta provide, man,
maintain, and administer any or al1 of the airports and other air navigation
facilities including radio and meteorological services, required in ils territory
for the safe, regular, efficient and economical operation of the international
air services of the other contracting States. and may specify jus1 and reason-
able charges for the use of the facilities provided.
Article 72
Acquisirion or Use of Land
Where land is needed for facilities financed in whole or in Dart bv the
Counctl at the request of ï contracting Stdic. that Siâtc %hallclcher provide
the land it5elf. retaining titlcif IIwishes. or racilitaic the ubcof the land by the
Council on jus1 and reasonable terms and in accordance with the laws of the
State concerned.
Article 73
Expenditure and Assessmenr of Funds
Within the limit of the funds which may be made available to it by the
Assemhly under Chanter XII. the Council mav make current exoenditures for
the purposes of this ~hapter {rom the generalfunds of the ~rganization. The
Council shall assess the capital funds required for the purposes of this Chap-
ter in previously agreed over a reasonable period of lime ta the
contracting States consenting thereto whose airlines use the facilities. The
Council may also assess to States that consent any working funds that are
required. Article 74
TechnicolAssistance and Urilizariono/Revenues
When the Council, at the request of a contracting State, advances funds or
provides airports or other facilities in whole or in part, the arrangement may
provide, with the consent of that State, for technical assistance in the super-
vision and operation of the airports and other facilities, and for the payment,
from the revenues derived from the operation of the airports and other facili-
lies, of the operating expenses of the airports and the other facilities, and of
interest and amortization charges.
Article 75
Toking over of Faciliries/rom Council
A contracting State may at any lime discharge any obligation into which it
h3s entrred under Article 70. and take ovcr airports and other facilitics which
the Council has orovided in its territory Dunuant to the orovisions of Articles
71 and 72, by paying to the Council &-amount which ln the opinion of the
Council is reasonable in the circumstances. If the State considers that the
amount fixed bv the Council is unreasonable it mav aooeal to the Assemblv
against the deckion of the Council and the ~ssembi~ kay confirm or amend
the decision of the Council.
Article 76
Rerurn O/ Funds
Funds obtained bv the Council throueh reimhursement~ ~ ~~ Ar~ ~ ~ ~ ~ ~
and from receipts 2 interest and amoriization payments under ~rticle 74
shall, in the case of advances originally financed by States under Article 73. be
returned to the States which were originally assessed in the of
their assessments, as determined by the Council.
CHAPTER XVI
Joinr Operaling Orgonizarionsand Pooled Services
Article 77
Joinl OperaringOrgnnizotions Permitred
Nothing in this Convention shall prevent two or more contracting States
from constitutingjoint air transport operating organizations or international
operating agencies and from pooling their air services on any routes or in any
regions, but such organizations or agencies and such pooled services shall be
subject to al1the provisions of this Convention, including those relating to the
registration of agreements with the Council. The Council shall determine in
what manner the provisions of this Convention relating to nationality of air-
craft shall apply to aircraft operated by international operating agencies.
Article 78
Funclionof Council
The Council may suggest to contracting States concerned that they form
joint organizations to operate air services on any routes or in any regions. Article 79
Participation inOperafing Organizations
A State mav narticinate in ioint onerati- -oreanizations or in nonline ar-
rangements, either through it;government or through an a.rline compaiy or
companies designsted by its governnient. The comnanies miiy, al the rolc
discretion of the State concemed, be state-owned oÏ partly state-owned or
privately owned.
PART IV
FINAL PROVISIONS
CHAPTER XVII
Other Aeronautical Agreements and Arrangements
Article 80
Paris and Habana Conventions
Each contracting State undertakrs.immediately upon the cominginto force
of this Convention. to give notice of denunciation of the Convention rclating
to the Regulation ufAerial Navigation signed ar Paris on Osrober 13, 1919or
the Convention on Commercial Av~atiunsigned at Habana un February 20,
1928.if il is a Party tu either. As bctweçn contriicling States, this Convention
supersedes the conventions of Paris and Habana previouslyieferred ta.
Article 81
Registrationof Exisfing Agreements
Ail aeronautical agreements which are in existence on the coming into force
of this Convention, and which are between a contracting State and any other
State or between an airline of a contracting State and any other State or the
airline ofany other State, shall be forfhwith registered with the Council.
Article 82
Abroaarionof InconsistentArrana.ments
The Contracting Statcs accept this Convention asahrogating al1obligations
and understandings between them which are inconsistent with its terms. and
undertake not to~enter into anv such oblieations and understandines. A
coniracting State which, beforr becciminga member of the Organi~ati& has
undertaken any obligations toi\ard a non.çoniracting Stnte or a national of a
contractine State or of a non-contractins State inconsistent with the terms of
this ~onv~ntion, shall take immediate Geps to procure its release from the
obligations. If an airline of any contracting State has entered into any such
inconsistent oblieations. the State of which it is a national shall use its best
ctiorts Io secure rheir te;mination forthwith and shall in any cvent cduse them
to be terminated as soon ds such action can laufully be taken after the coining
into force of this Convention322 [CAO COUNCIL
Article 83
Registration of New Arrangements
Subject to the provisions of the preceding Article, any contracting State
may make arrangements not inconsistent with the provisions of this Conven-
tion. Any such arrangement shall be forthwith registered with the Council,
which shall make it public as soon as possible.
CHAPTERXVIrI
Disputes and Default
Article 84
Settlemenr of Disputes
If anv disaereement between Iwo or more contractina States relatina to the
intcrprftation or application of this Convention and its ~nnexer-annot
be settled by negotiation. it shall. on the application ofany State concerncd in
the disagreement, be decided by the Council. No member of the Council shail
vote in the consideration by the Council of any dispute Io which ilisa party.
Any contracting State may. subjeci Io Article 85. appcal from the decision of
the Council to an ad hoc arbitral tribunal ameed uoon with the other oarties
10 the dispute or to the Permanent Court oÏ lniernational Ju5tice. ~"y such
aopeal shall be notified to the Council u,ithin sixty dtys ofreceipt of notifica-
tion of the decision of the Council.
Article 85
Arbirration Procedure
If any contracting State party to a dispute in which the decision of the
Council is under appeal has not accepted the Statute of the Permanent Court
of International ~ÜGiceand the contractine. States oarties to the disoute can-
not agree on the choice of the arbitral tribunal, eaci of the contracting States
parties to the dispute shall name a single arbitrator who shall name an um-
oie. Ifeither contractina State oartv tothe disnute fails to name an arbitrator
hiihin a period of thrce months'frok the dtte &the ap~ÿl. an arbitrator shïll
be nomcd on behnlfof that State by thc President of the Council from a lis1
of qualified and available pcrsons maintaincd by the Council. If. within thirty
days. the arbitratorscannot agree on an umpirc, the Presidcnt of the Council
shalldesignate an umpire from the liat previously rcferred IO. The arbitrators
and the umnire shall then iointlv constitute an arbitral tribunal. Anv arbitral
tribunal esiablished unde; this-or the preceding Article shall settlé its own
procedure and give its decisions by majority vote, provided that the Council
may determine procedural questions in the event of any delay which inthe
ooinion of the Council is excessive.
Article 86
Appenls
Unless the Council decides otherwise any decision by the Council on
whether aninternational airlineis operating in conformity with the provisions MEMORIAL OF INDIA 323
of this Convention shall remain in eiïect unless reversed on appeal. On any
other matter, decisions of the Council shall, if appealed from, be suspended
until the appeal is decided. The decisions of the Permanent Court of Inter- '
national Justice and of anarbitral tribunal shall be final and binding.
Article 87
Penalty for Non-Conforrnity of Airline
Each contracting State undertakes not to allow the operation of an airline
of a contracting State through the airspace ahove its territoryif the Council
lias decided that the airline concerned is not conforming to a final decision
rendered in accordance with the previous Article.
Article 88
Penaltyfor Non-Conformify by Sfate
Thc A>iembly \hall ,u>pend thc voting powcr in the As~embly and in ihc
Council orany contr.icting State thai is round in derault unJer the provisions
of this ~hapter.
CHAPTER XIX
War
Article 89
War and Emergency Conditions
In case of war, the provisions of this Convention shall not affect the free-
dom of action of any of the contractingStates aiiected, whether as helligerents
or as neutrals. The same principle shall apply in the case of any contracting
State which declares a state of national emergency and notifies the fact to the
Council.
Annexes
Article 90
Adoprionand Amendmetrtof Annexes
(a) The adoption hy the Council of the Annexes described in Article 54,
subparagraph (11, shall require the vote of two-thirds of the Council at a
meeting called for that purpose and shall then be submitted by the Council to
each contracting State. Any such Annex or any amendment of an Annex
shall become effective within three months after ils suhmission to the con-
tracting States orat the end of such longer period of time as the Council may
prescribe, unless in the meantime a majority of the contracting States register
their disapproval with the Council.
(b) The Council shall immediately notify al1 contracting States of the
coming into force of any Annex or amendment thereto. CHAFTER XXI
Ratifications,Adherenres,Amendmeny and Denunciations
Article 91
Ratification of Convention
(al ThisConvention shall he subiect to ratification bv the signatory States.
~he /nstruments of ratification shali bc deposited in théarchives of Checiov-
ernmeni of the United States of America. which shall give notice of the date of
the deoosit to each of the sianaton, and adherinc! States.
(b)'~s soon as this convention has been ratsed or adhered to by twenty-
six States it shali come into force between them on the thirtieth day after
deposit of the twenty-sixth instrument. It shall come into force for each State
ratifying thereafter on the thirtieth day after the deposit of ils instrument of
ratification.
(c) It shall he the duly of the Government of the United States of America
to notify the government of each of the signatory and adhering States of the
date on which this Convention comes into force.
Article 92
Adherenceto Convention
lu) This Convention shîll beopen for îdherence by membcrsofthe United
Nations and States associated wiih them. and States which remïined neutral
during the present world conflict.
(b) Adherence shall be effected by a notification addressed to the Govern-
ment of the United States of America and shall take effect as from the thirtieth
day from the receipt of the notification hy the Govemment of the United
States of America, which shall notify al1the contracting States.
Article 93
Admissionof Other States
Statesother than those provided for in Articles 91 and92 (a) may, suhject to
anoroval hv anv c!eneral international oreanization set un.bv,the nations o~ ~-
théworld Copreserve peace,~be admitted'to participation in this Convention
by means of a four-fifths vote of the Assembly and on such conditions as the
~ssemhly may prescribe: provided that in each case the assent of any State
invaded or attacked during the present war hy the State seeking admission
shall he necessary.
Article 93 bis'
(a) Notwithstanding the provisions of Articles 91.92 and 93above:
(1) A State whose government the General Assemhly of the United
Nations has recommended he deharred from membershio in international
agencies established hy or brought into relationship -with the United
1 On 27 51~) 19.17[hr A\,crnhly drcidcd lo amend rhc Chicago Convention by
inIrocl.icingAriclrY3bis C'ndcrArticle94 fu, oflhcCon\cniion rhcamcndmcnrcarne
in10 ior.çon 20 Marrh 1961in respcciof Siarec*hich raiiiiedil. Nations shall automatically cease to be a memher of the International
Civil Aviation Organization;
(2) A State which has been exoelled from membershi~ in the United
~ations shall automatically cease to be a mcmhrr of the International
Civil Aviation Organization unless the General Assembly of the United
Nations attaches to ils act of expulsion a recommendation to the con-
trary.
(b) A State which ceases to be a member of the International Civil Avia-
tion Oreanization as a result of the orovisions of oaraera~h (a) above mav.
after a&roval by the General ~ssembl~ of the ~niied <aiions, be readmittéd
IO the International Civil Aviation Organiziition upon applic~tion and upon
approval bya majority of the ~ouncill
(c) Members of the Organization which are suspended from the exercise
of the rights and privileges of memhersbip in the United Nations shall, upon
the request of the latter, be suspended from the rights and privileges ofmem-
bership in this Organization.
Article 94
Amendmentof Convention
(a) Anv..rooo.ed amendment to this Convention mus1 be approved by a
tu"-lhirds vote of the Assembly and shall ihen comç into force in respecrof
States which have nitified such amendment when ratified by the nuniber of
contr3cting States spccified by the Assembly. The number so speciticd shall
not be less ihan two-thirds of the total numbrr olcontr~cting States.
(h, If in ils opinion the amendment is of rush a nature as 10 justify this
course. the ~ssemblv in its resolution recommendine adoption may provide
that any State whichhas not ratified within a specifiedperiod after the'amend-
ment has come into force shall thereupon cease to be a member of the Or-
ganization and a party to the Convention.
Article 95
Denunciation of Convention
(a) Any contracting State may give notice of denunciation of this Conven-
tion three years after its coming into effect by notification addressed to the
Government of the United States of America, which shall at once inform
each of the contracting States.
(b) Denunciation shall take effect one year from the date of the receipt of
the notification and shalloperate onlyas regards the State effecting the denun-
ciation.
CHAPTEX RXII
Definifions
Article 96
For the purpose of this Convention theexpression:
(a) "Air service" means any scheduled air service performed hy air-
craftfor the public transport of passengers, mail or cargo.
(b) "International air service" means an air service which passes
fhrough fhe air spaceover fhe terrifory of more than one State. (c) "Airline" mean$ any air transport enterpriseoffering or operating
an international air service.
(d) "Stop for non-traffic purposes" means a landing for any purpose
other than taking onor discharging passengers, cargo or mail.
SIGNATURE OF CONVENTION
In wirnesswhereof, the undersigned plenipotentiaries, having been duly
authorized, sign this Convention on behalf of their respective governments
on the dates appearing opposite their signatures.
Done at Chicaeo the seventh dav of December 1944.in the Enalish laneuaae.
A ieht drîun u$n the English, French and Spanish ianguiiger,each ofwhGh
shsllk of cqual auiheniicity. rhïll be open for signature ai Washington, D.C.
Both texts shall be denosiicin the archives of the Cobernmcnt of the United
States ofAmerica, and cenified copies shalbetransmitted by that Government
to the governments of al1the States which may sign or adhere to this Conven- MEMORIAL OF INDIA
Annex 1
INTERNATIONAL AIR SERVICES TRANSIT AGREEMENT
Signed ut Chicago, on 7 December 1944
The States which sign and accept this International Air Services Transit
Agreement, heing memhers of the International Civil Aviation Organization,
declare as follows:
Section 1
Each contracting State grants to the other contracting States the following
freedoms of the air in respect of scheduled international air services:
(1) The privilege to flyacross its territory withoutlanding;
(2) The privilege to land for non-traffic purposes.
The privileges of this section shall not he applicable with respect to airports
utilized for military purposes to the exclusion of any scheduled international
air services. Inareas of activehostilities or of military occupation, and in time
of war along the supply routes leading to such areas, the exercise of such
privileges shall he suhject to the approval of the competent military authori-
ties.
Section 2
The exercise of the foregoing privileges shall he in accordance with the
provisions of the Interim Agreement on International Civil Aviation and,
when it comes into force, with the provisions of the Convention on Intema-
tional Civil Aviation, hoth drawn up at Chicago on December 7, 1944.
Section 3
A contractingState granting to the airlines of another contracting State the
privilege to stop for non-traffic purposes may require such airlines to offer
reasonahle commercial service at the points at which such stopsare made.
Such requirement shall not involve any discrimination hetween airlines
overatinp. on the same route. shall take into account the cao.citv.of the air-
ciaft, and shall be exercised /n such a manner as not to prcjudice the normal
operations of the international air services concerned or the rights and obliga-
tions of a contracting State.
Section 4
Fach contracting State mîy, subjeci to the provisions oTihis Agreement,
(Il Designate the route to he folloucd within 11stcrritiiry by any intrrna-
tional air service and the airoorts which any such service may use;
(2) Impose or permit to be imposed on any such servicejust and reasonahlc
charges Torthe use ofsuch airports and other raciliiics; thesechargcsshiill no1be higher than would be paid for the use of such airports and facilities by ils
national aircraft enaaaed in similar international services:nrovided that. .non
rcpresentaiion by ai Lterested contracting State. the charges imposed for the
use of airporrs and other facilities shalbe subject to review by the Council of
the International Civil Aviation ~rganization established under the above-
mentioned Convention, which shall report and make recommendations there-
on for the consideration of the State or States concerned.
Section5
Each contracting State reserves the right in uithhold or revokc a certificate
or permit IO an air transport cnierprise ofanoiher Siatc in any case where itis
not satisfied that substantial ownershio and effective control are vested in
nationals of a contracting State, or in case of failure of such air transport
enterprise to comply with the laws of the State over which it operates, or to
perform ils obligations under this Agreement.
ARTICLE II
Section I
A coniraciing State which decmi that action by anorher contracting Siate
under this Aprecment IScaiising injustice or hardship to it,may requesi the
Council to examine the hituation. The Council shall thereupon inquire inio the
matter, and shall cal1the Statessoncerned inio consuliaiion.Should such con-
sultaiiun fail to resolve the diEculty, the Council may make appropriate find-
ings and recommendations to the contractine. States concerned. If thereafter a
contracting State concerned shall in the opinion of the Council unreasonably
fail to take suitable corrective action, the Council may recommend to the
Assembly ofthe above-mentionedOraanization that such contractina State be
suspended from ils rights and privileges under this Agreement unticsuch ac-
tion has been taken. The Assembly by a two-thirds vote may so supend such
contracting State for such wriod of lime as il mav deem orooer 01 until the
Council shall find that corréctiveaction has been taken by Such State.
Secrion 2
If any disagreement between two or more contracting States relating to the
interpretation or apolication of this Aareement cannot be settled bv neaotia-
tion,~the provisio"s~of Chapter XVIIÏ of the above-mentioned convention
sball be applicable in the same manner as provided therein with reference to
any disgreement relating to the interpretation or application of the above-
mentioned Convention.
ARTICLE III
This Agreement shall remain in forceas long as the above-mentioned Con-
vention; provided, however. that anv contractina State. a oartv to the oresent
~greement, may denounce it on on; year's not& give" by itio the ~overn-
ment of the United States of America, which shall at once inform al1 other
contracting States of such notice and withdrawal. Pending the coming into force of the above-mentioned Convention, al1
references to it herein, other than those contained in Article II,Section 2, and
Article V. shall be deemed to be references to the Interim Agreement on Inter-
national 'civil Aviation drawn up at Chicago on ~ecember 7, 1944; and
references to the International Civil Aviation Organization, the Assembly,
and the Council shall be deemed to be references to the Provisiondl Interna-
tional Civil Aviation Organization, the Interim Assembly, and Interim Coun-
cil respectively.
For the purposes of this Agreement, "territory" shall be defined as in
Article 2 of the above-mentioned Convention.
Signatures andAcceptances of Agreement
The undersigned delegates ta the International Civil Aviation Conference,
convened in Chicago on November 1, 1944, have affixed their signatures to
this Agreement with the understanding that the Government of the United
States of America shall be infotmed at the earliest possible date by each of
the governments on whose behalf the Agreement has been signed whether
signature on its behalf shall constitute an acceptance of the Agreement by that
novernment and an oblination bindinn won it.
- An) Stdte ï nieniber 2 the lniernaiionïl Civil A\iation Orgdni7ït1on ma)
accept the present Agrccmcnt as in ohlie~tion binding upon il by notiliiïiion
of its acceotance to the Government of the United States. and such acceptance
shall becotne effectiveupon the date of the receipt of such notification by that
Governmeot.
This Agreement shall came into force as between contracting States upon
ils accrptÿnce b) eüch or them. Thereafter il shlill beconle binding lis tu &ch
othcr Stïic indicating ifs accepiance to the Governnicnt of the United Siaie5
on the date of the recci~t of the 8c<cotïnsc b) th31Ciurcrnmcnt. The Ci<~vern-
ment of the United tat t ehall infbrm al1signatory and accepting States of
the date of al1acceptances ofthe Agreement, and of the date on which it cames
into force for each acceptinn State.
In wirness whereof, the ~~dersigned, having been duly authorized, sign this
Agreement on behalf of their respective governments on the datesappearing
opposite their respective signatures.
Done at Chi~ae~ the sev~n~ ~d~v o~ Decemher. 1944. in the Ennlish lan-
guïge. A iexi Jraun up in the tngli\h, I rcnch, and~p;ini!h 1.tiiguage~.eïch il!'
i<hi;h sh;tll be of equal ituitienticii) '. sli;ill be opcncd for signature ai
Washinati-. D.C. tioth text~,hall hc dcnositcd inthe ÿrchi\,es of the Govern-
ment of [lie United Silites of Amrricï, and ceriificd copies shxll be trünsmiitcd
by thai Go\ernmcnt io the co\ernrncnis of 311 the Staics !\,hich mdy sign or
-
accept this Agreement.
~--
1TheAyicmeni ~assigneciin!lietnglirh %>rigin alrsi<inIorm.l~ir.ridi ihcIniir-
national Ci\il Atiaiion <:<>niercnie uh1.h ti><ipliiceai ChicagoIrorii I Noiember la
7 Deceniber194. N<i trilinrualtex1 ha> bern tipsnrd f<ir,tgnaiurc a<protided for in AnnexJ
RULES FOR THE SETILEMENT OF DIFFERENCES
Approved by the Council on 9 April 1957
SCOPE OF RULES
Article I
(1) The Rules of Parts 1andIII shall govern the settlement of the following
disagreements between Contracting States which may be referred to the
Council:
(II)Anv disameement between two or more Contracting States
reiating to the interpretation or application of the Convention on Inter-
national Civil Aviation (hereinafter called "the Convention") and its
Annexes (Articles 84 to 88 of the Convention):
(hl A& disagreement between tir0 or more Contracting States
relating to thc interpretation or application of the International Air Ser-
vices Transit Aareement and of the International Air Transport Amee-
ment (hereinaftér respectively called "Transit Agreement" and "~Ïans-
port Agreement") (Article II, Section 2 of the Transit Agreement;
Article IV, Section3 of the Transport Agreement).
(2) The Rules of Parts II and IIi shall govern the consideration of any
complaint regarding an action taken by a State party to theTransit Agreement
and under that Agreement, which another State party to the same Agreement
deems to cause inyustice or hardship to it (~rticie II; Section I), or regarding
a similar action under the Transport Agreement (Article IV, Section 2).
PART 1
DISAGREEMENTS
Article 2
Any Contracting State submitting a disagreement to the Council for settle-
ment (hereinafter referred to as "the ap~licant") shall file an application to
whichshall be attached a memorial coniaining: ' ~.
(a) The name of the applicant and the name of any Contracting State
with which the disagreement exists (the latter hereinafter referred to as
"the respondent");
(b) The name of an agent authorized to act for the applicant in the
proceedings, together with his address, at the seat of theganization, to
which al1 communications relating to the case, including notice of the
date of any meeting, should be sent; Ic) A statement of relevant facts:
id) Supporting data related to the facts;
(e) A statement of law;
IfJ The relief desired bv action of Council on the svecific points sub-
miïtéd;
(g) A statement that negotiafions to settle the disagreementhad taken
place between the parties but were not successful.
CHAPTER III
ACTION UPON RECEIPT OF APPLICATIONS
Article 3
Action by Secretary General
(1~.Uvon receivt of an a. .ication. the Secretaty General shall:
(a) Verify that it complies in form with the requirements of Article
2, and, if necessary, require the applicant to supply any deficiencies
a-.arinn therein:
(b) ~&nediately thereafter notify al1 parties to the instrument the
interpretation or application of which is in question, aswell as al1Mem-
bers of the Council. that the aovlication has been received:
(c) Forward copies of the application and of the supporting docu-
mentation to the respondent, with an invitation to file a couoter-memo-
rial within a time-lirnit fixed bv the Council.
(2) Copies of dl1aub~cquent pleddings or other documents submittcd by a
pdrty Io the Cuunsil >hallsimilarly be fonvarded by the Secretary General to
the other party or parties in the case.
Article 4
Counter-Mernorial
(1) The counter-mernorial shall contain:
(a) The name of an agent authorized to act for the respondent in the
proceedings,together with his address, at the seat of the Organizatioh, to
which al1 communications relatina to the case, including -otice of the
date of any meeting, should be sent;
(b) Answer to points raised in the applicant's memorial under Article
2 (c1 to I.e):
(CI ni addition faatl and supporîing data;
(d) Statement of law.
(2) In thecounter-mernorial there mav be oresented a counter-claim directly
connected with the subject-matter of théapilication provided it cornes within
the jurisdiction of the Council. The Council shall, after hearing the parties,
direct whether or not the auestion thus oresented shall bejoined to the origi-
nal proceedings.
Article 5
Preliminary Objection and Action Thereon
(1) If the respondent questionsthejurisdiction of the Council to handle thematter presented by the applicant, he shall file a preliminary objectionsetting
out the basis of the obiection.
(2) Such preliminar). objection shall be tiled in a special pleading at the
latest before the expiry of the time-limit set for delivery of the counter-inemo-
rial.
(3) Upon a preliminory objcction being filed, the proceedings on the nierits
shall be iuspended and. uith respect to the lime-limit fixed under Article 3 (1 J
ICI. timc \hall celrse IOrun from the nionient the ~reliminary obj.ctio~ is filed
cntil the objection is decided by the Council.
(4) If a preliminary objection has been filed, the Council, after hearing the
parties, shall decide the question as a preliminary issue before any further
steps are taken under these Rules.
Article 6
Acrion of Council on Procedure
(1) Upon the filing of the counter-mernorial by the respondent, the Council
shall decide whether at tbis stage the parties should be invited to enter into
direct negotiations as provided;n ~rticle 14.
(2) If it is decided not to invite direct negotiations at this stage, without
prejudice ta a later invitation as provided in Article 14, the Council shall de-
cide which oro.edu~ ~under these Rule~ ~s aoàicabie. Unless the Council
decideito undert~ke the preliniinsry eraminatioo of the matter ilself, itshall
appoint a Cornmittee (hercinafter rcferred to os "the Committee") of five
individuals who shall be Renresentatives on the Council of Member States
not concerned in the disagreement, and shall designate one of them as Chair-
man.
(3) The dccisions undcr (?),in cases whcre negotiations are invited, may
be postp,>nrd until the parties have rithcr refuscd toenter into neguriîtions or
reportcal that the negotidtiuns hxve Pdiledtu solve the dispute.
CHAPTER IV
PROCEEDINGS
Article 7
WriftenProceedings
(1) The additional pieadings which may be filed by the parties shall consist
of:
Reply to be filed by the applicant,
Rejoinder ta be filed by the respondent.
(2) The pleadings shall be filed with the Ssretary General within time-
limits fixed.
(3)There shall be annexed to every pleading, copies or originals of al1the
relevant documents which the party filing the pleading may wish to have con-
sidewd.
(41 After the liling of thc 1st pleading, >.ii,c in the case of the subini\sion
of nritten cvidencc pursuant to Article 9 or ofob<ervat~ons in ariting pursu-
ant to r\rticle 19 (51. no fi.rther documents may be ,ubrniitcd b) xny Party
except with the consent of the other party or by permission of the Council
granted after hearing the parties. . Article 8
Investigationsby Council
(1) The Council may at any time, but after hearing the parties, entrust any
individual, body, bureau, commission, or other organization that it may
select, with the task of carrying out an enquiry or giving an expert opinion. In
such cases it shall define the subject of enquiry or expert opinion and prescribc
the procedure to k followed.
(2) A report incorporating the results of the investigation. together with the
record of the enquiry and any expert opinion, shall be submitted to the Coun-
cil in such form, if any, as the Council may have prescribed, and shall be
communicated ta the parties.
Article 9
Evidence
If the oarties should desire to produce evidence in addition to any evidence
produced with the pleadings, such evidence, including testimony of witnesses
and experts, shall be suhmitted in writing, within a time-limit fixed by the
Council. but on mecial a~plication the Council may agree to receive oral testi-
mony. The ~ouncil ma; also request the parties-tocall witnesses or experts
to give testimony before it at an oral hearing.
Declararion by Witnessesand Experts
(1) The testimony of a witness shall be verified by the following declaration:
"1 solemnly declare upon my honour and conscience that my testimony
contains the truth, the whole truth and nothing but the truth."
(2) The statement of an expert shall be verified bythe followingdeclaration:
"1 solemnly declare upon my honour and conscience that my statement
is in accordance with my sincere belief."
Article II
Questions
At the oral hearing, any Member of the Council nota party ta the dispute
may put questions, through the President, to the agents ofthe parties orto any
counsel or advocate appearing for them. Such questions, if any, may be
answered immediately or at a later date to k fixed by the Council.
Article 12
Arguments
(1) Upon completion of the evidence, arid after a reasonable period Fr
preparation by the parties, they may present arguments to the Council within
time-limits fixed by it.
(2) The final arguments shall be in writing, but oral arguments may be
admitted at the discretion of the Council. Article 13
Procedt~rebeforerhe Commirree
(1) If under Article 6 of the present Rules aCommittee has beenappointed,
it shall, on behalf of the Council, receive and examine al1 documents sub-
mitted in accordance with these Rules and, in its discretion, hear evidence or
oral arguments, and generally deal with the case with a view to action being
taken by the Council under Article 15. The procedures governing the exami-
nation of the casebv the Committee shall be those orescribed for the Council
when it examines the matter itself. While the cornmittee has charge of the
proceedings, the functions of the President of the Council under these Rules
shall be exercised bv the Chairman of the Committee
(2) Thereafter thé Committee shall, without undue delay, present to the
Council a report which shall be a part of the record of the proceedings. The
report shall include a summary of the evidence and other matters on record
and the findings of facts and the recommendations of the Committee.
(3) The Council shall cause a copy of the report of the Committee to be
delivered to each oartv in the caseand each of the narties mav. within a time-
limit fixed by theko"ncil. submit to the Council ifswrittenobservations in
the said report or, if permitted by the Council, its oral observations.
(4) When considering the report of the Committee, the Council may make
such further enquiries as it may think fit or obtain additional evidence.
Article 14
NegoriarionsduringProceeditigs
. . The Council mav. al anv time durine the ~roceedines and d ri orto the
meeting 31 uhich the de~ision is rendered as provided in Article 15(4). invite
the parties io the dispute toen~d?o in direct ncgot,ation\. if the Coiinsll deems
that the oossibilities of settlin-a Ïhe disnute or narrowine the issues throueh
negotiatibns have not been exhausted. ' -
(2) If the parties accept the invitation to negotiate, the Council may set a
time-limit for the com~letion of such neeotiations. durine which other oro-
ceeding, on the merit~'\hall be suspendri.
(3) Suhject Io the consent of the parties cunccrned, the Council ma! render
any assistance likely to further thenegotiations, including the design%tion of
an individual or a group of individuals ta act as conciliator during the ne-
gotiations.
(4) Any solution agreed through negotiations shall be recorded by Coun-
cil. If no solution is found the parties shall so report to Council and the sus-
pended proceedings shall be resumed.
Article 15
Decision
(1) After heïring Argument,. or alter i~ins~dcritiun of the report of the
Conimittee, as the case mïy bc. the Coiinsil shall rcnder itsdecision.
(2) The Jecision of the Council shall be in rrritinc 2nd \hall contain:
(i) the date on which it is delivered;
(ii) a list of the Members of the Council participating;
(iii) the names of the parties and of their agents;
(iv) a summary of the proceedings; (v) the conclusions of the Council together with its reasons for reaching
them;
(vi)its decision, ifany, in regard to costs;
(vii)a statement of the voting in Council showing whether the conclusions
were unanimous or bv a maioritv vote. and if bv a maioritv. givina the
number of Members of the ~ouncil who voted nifav&r oi the conclu-
sions and the number of those who voted against or abstained.
(3) Any Member of the Council who voted against the majority opinion
may have its views recorded in the form of a dissenting opinion which shall be
attached to the decision of Council.
(4) The decision of the Council shall be rendered at a meeting of the Coun-
cil called for that purpose which shall be held as soon as practicable affer the
close of the proceedings.
(5) No Member of the Council shall vote in the consideration by the
Council of any dispute to which it is a party.
Article 16
Defaulr of Appearanceor in Defending
(1) If one of the parties does not appear before the Council or the Com-
mittee, if any, set up under Article 6, or fails to defend its case, the other party
inay cal1upon the Council to decide in favour of its claim.
(2) The Council must, before doing so. satisfy itself not only that it has
jurisdiction in the matter but also that the claim is well founded in fact and
law.
Article 17
Disconrinuance
(1) If in the course of the proceedings the applicant informs the Council
in writinn that it is not eoine on with the ~roceedines. and if. at the date on
!%hichthis communicarh)n isrcccivcd by ihc ~ccrct~~r;Cieneial, the respon-
dent has no1 yet taken nny step in the proceedings, the Council. or its Presi-
dent if the Council ii not in session. willoiiiciallv record the disconiinuance of
the proceedings, and the ~ecretar; General shall inform the respondent ac-
cordingly.
(2) If, at the time when the notice of discontinuance is received. the re-
spondent has already taken some step in the proceedings, the ~oun&l, or its
I'resident if the Council is not sitting, shall fix a time-limit within which the
res~ondent must state whether it obiects to the discontinuance of the pro-
cerilings. If no objection is so made,.acquiescence uill hc presumcd ind ihc
Council. or ils F'resident if the Council is no1 sitting, will orhcially recorJ the
discontinuance of the nri)ccedings. If objection is made. the ~roccedinss shall
continue. . . .
Arricle 18
Norificarionand Appeal
(1) The decision of the Council shall be notified forthwith to al1 parties
concerned and shall be published. A copy of the decision shall also be com-
municated to al1States previously notified under Article 3 (1) (6).
(2) Decisions rendered on cases submitted under Article 1 (1) (a) and (6)are subiect to aowal nursuant to Article 84 of the Convention. Anv such
appeal ;hall be "otified IO the Council through the Secretary ~eneralbithin
sixty days of rcccipt of notification of the decision of the Council.
Article 19
Intervention
(1) Any State which is a party to the particular instrument, the interpreta-
tion or application of which has been made the subject of a dispute under
these Rules, and which is directly affected by the dispute, has the right to
intervene in the proceedings, but if it uses this right it shall undertake that
the decision of the Council will be equally bindinguponit.
(2) Anv State which desires to intervene in a disaereement shallforthwith
filea deciaration 10 that ctïect wtth the Secretary General.
(3) Such declaralion shall becommunisated to thc parties to the instrument
concerned. If within a month of the desnatch of this communication. anv
objection has ken notified Io the Secretary General with respect to thé ai-
missibility of an intervention under paragraph (1) of this Article, the dccision
shall rest with the Council.
(4) If no objection hns been notified within the above-mcntioned pcriod or
if the Co~ncil decide.: In favour oi the adniissibility of <inintcr\eniion. as tlic
case mav be. the Secretarv General shall take the Üecessarvstem to make the
documents ;f the caseavailable 10the intcrvening party who miy file a mcmo-
rial within a rime-limit IO be fixcd by the Council, in no event later ihan the
date lixcJ for the iiling of theIüst plcüding refcrrcd to in Article 7 (4).
(5) An) rush nicnior1a1 ,h:ill be commiinicated to ihe cither parties to the
disagrernicnt \%hoihall <end to the Sr~rctary Cieneral iheir obscr\.ations in
writing within a time-limit to be Iixed by the Council. The memorial and ob-
servations may be discuiscd by the parties in the course of the subsequent
procccdings in which the intervening party ,hall take part.
Article 20
Dismissalof Proceedings
(1) (a) If at any time before a decision is reached the parties conclude
an agreement for the settlement of the disnute. or amee to discontinue the
procëedings, they shall so inform tlie ~ouncil jn wri& The Council shall
thcn ofiïcially record the conclusion of the settlcment or the discontinuance of
the proceedings.
(il In the évent that the oriein-l ~ ~t.es to - d~s~ut-~c.ncl~ ~ such~ ~ ~-~
a&e;mcnt. the Councilshall terminale the proceedings notwithsianding the
faCi that ndditional parties have intewcned. This provision does not affect the
right of an intemcoing party to filean applicationon its own behalf respecting
the subject-matter of the original dispute.
(2) In case the termination of the proceedings is pursuant to a settlement
between the parties, the terms of the settlement shall be transmitted to the
President of the Counciland he shall communicate such terms to al1 States
previously notified under Article 3 (1) (b). PART II
CHAPTER V
COMPLAINTS
Article 21
Form of.Reuue.t
Any Cuntracting Srate submirting a coniplaint io the Council regarding a
situation dcfincd in Article 1 (2) of thcse Kules shall file a request to whch
shall be aitached a niemarial containine the rame psrticulars as in the cas= of
an application submitted under ~rticlé2.
Article 22
Action won Receipt .. Reuues.s
Article 3 (1) (a) and (c), 4 and 5 of Chapter III of Part 1 (Action upon
receipt of Applications) shall apply correspondingly to a request submitted
under the preceding Article,
Article 23
Appointment of Committee
(1) Upon the filing of the counter-memorial the Council shall meet and
formally decide whether the rnatter falls under the category of cornplaints
under the provisions listed in Article 1 (2).
(2) The Council shall, if the answer under (1) is in the affirmative, appoint
a Committee composed as the Cornmittee described in Article 6 (2) of these
Rules.
Article 24
Proceedings before Commitree
(1) The Committee shall thereunon inauire into the matter on behalf of
the ~ouncil arid rhsll cal1the sixte; ~,>ncernrdin10c<insultarion.
(2) The Cornmittee shsll arrange the procedures for the consuliaiion as f3r
a< possible in agreement wiih the parties, and on an informal hasis in accord-
ance with the circanistanccs ofcach c.ile. It nia). requcst additions1 informa-
tion and \ummon rcprcscnt~tives of the partics tu rnîet \sith ihc C<imrnittcc ït
the seat of the Organization or in any other place.
Article 25
Report of Committee
(1) The Cornmittee shall report to Council on the outcome of the consul-
tation held as exoeditiouslv as oossible.
(2) If the conSultation ias kiled to resolve the difficulty the report may
include proposed findings and recommendations ta the States concerned. Article 26
CouncilAction
(1) After receiving the report of the Committee the Council shall consider
..~
(2) If a settlement has been reached through consultation the terms of the
settlement shall be recorded and communicated to al1 States notified of the
proceedings.
(3) If consultation has failed to resolve the difficulty the Council may make
appropriate findings and recommendations ta the States concerned. Article 15
shall apply, mutatis mutandis, in this case.
PART III
GENERAL PROVISIONS
Article 27
Agents
(1) A State which hecomes a party ta the proceedings on disagreements or
complaints under these Rules shall name an agent authorized to represent it
and to act for it in the oroceedings, orovided that a Reoresentative on the
Council of any Member ~tate shalinoi be nominated as an agent.
(2) The agent may have the assistance of counsel or advocates. The name
of anv assisting counsel or advocate shall be communicated to the Council in
advance of an; meeting where he will be present.
(3) The agents shall be invited to attend any meeting convened to discuss
the case.
Article 28
Procedurol Measures
(1) The Council shall determine the time-limits to be applied, and other
procedural questions related to the proceedings. Any time-limit fixed pur-
suant to these Rules shall beso fixed as to avoid anv nossible delavs and to
ensure fair treatment of the party or parties concerned.
(2) The Council may at any time extend any time-limit that has been fixed
under these Rules. either at the reauest of anv of the oarties or at its own
discretion. It may also in special ci~cumstanceS and aftérhearing objections
from any party, decide that any step taken after the expiration of a time-limit
shall be considered as valid.
(3) In respect of fixing or extending a time-limit under these Rules, the
President of the Council shall act on behalf of the Council when it is not in
session.
Article 29
Longuages
(1) A Party may make its submissions, written or oral, in any of the three
official languages of the Organization and, at the request of any of the otherparties, these shall be translated into each of the other languages under ar-
rangements ta be made by the Secretary General. The Council may at the
request of any party authorize another language ta he used by that party, in
which case the necessary arrangements for translation shall be made hy the
oartv concerned.
' (2; The text of the decision of the Council in case of a disagreement, or ils
findings and recommendîtions in case of a cornplaint, shall bc rendered in the
three orficial lanaua~es. dnd ea;h of such tents shîll be of eaual authenticity
unless al1 the parties agree that any of the texts shall be considered as the
authentic one.
Article 30
Recordsand Publicity
(1) The Secretary General shall keep a full record of the proceedings.
(2) A verbatim transcript shall he made of any oral testimony and any
oral arguments and incoroorated into the record of the oroceedinns,
(3) ihe record of iheproceedings shall, unless othérwise or&rcd hy the
Council. be open io the public. The Council may open to the p~blic any part
of the record previously ordered to be withheld from the public.
Article 31
costs
(1) Unless otherwise decided hy the Council, each party shall hear its own
COStS.
(2) All other costs may he assessed to the parties in proportions fixed by
the Council.
Article 32
Susuensionof the Rules
Suhjeci 10 agreement of the parties. any of these Rules mdy be vîried or
their application suspended when, in the opinion of the Council. such action
would ledd to a more expeditious or elïectivc disposition of the case.
Article 33
Amendmentsto the Rules
The present Rules may, at any time, be amended by the Council. No amend-
ment shall apply ta a pending case except with the agreement of the parties. RESOLUTIONS OF THE INTERNA'IlONAL ClWL AVIATION ORGANLZATION
I. ResolutionsO/the Assembly
(a)RESOL~ONAl-23
(See p. SI, supra)
(b) RESOLUTIO ONUNLAWFUSL EUURE OF AIRCRAFT
ADOFIED BY THE ICA0 ASE~LY
AT ITSIXTEENT SESSION
(Buenos Aires,3-26 Seprember1968)
A16-37: Unlawful Seizureof CivilAircraft
Whereasunlawful seizureof civil aircrhas a serious adverse effecton the
safety, efficiencyand regularity of air navigation;
The Assembly,
Noring that Article II of the Tokyo Convention on Offences and Certain
Other Acts Committed on Board Aircraft provides certain remedies for the
situation envisaged;
Being ofthe opinion,however, that this Article does not provide a complete
remedy,
1. Urges al1States to become partias soon as possible to the Tokyo Con-
vention on,Offencesand Certain Other Acts Comrnitted on Board Aircraft;
2. Invites States, even before ratification of, or adherence to. the Tokyo Con-
vention, toiveeffectto the principlesof Article II of that Convention; and
3. Requesrs the Council, at the earliest possible date, to institute a study of
other measures to cope with the problem of unlawful seizure.
(c) DECLARATIO BYNTHE ASSEMBLY
AIT-1: Declaration by the Assembly
Whereasinternational civil air transport helps to create and preserve friend-
ship md understanding among the peoples of the world and promotes com-
merce between nations;
Whereas acts of violence directed aeainst international civil air transoori
and airports and other facilitiesusedbysuch air transport jeopardize the safety
thereof, seriously affect the owration of international air servicesand under-
mine the confidenceof the pioples of the world in the safety of international
civil air transport; and Wherras Contraciing States, noting the increasing number of acts of violence
against internaiional air transport, are gravely concemed wirh the safeiy and
Gurity of such air transport;
TheAssembly,
Condemns al1acts of violence which may be directedagainst aircraft, aircraft
crews and nassenaers enaaaed in international civil air transport:
condemis al1 airs of ;&ence which may be directed against civil avlation
personnel,civil airports and other facilities used by international civil air trans-
port;
-~-~ni~~~,
Calls upon States not to have recourse, under any cucumstances, to acts of
violence directed aaainst international civil air transport and airports and other
facilitiesserving sÜchtransport;
Urgently
Callsuoon States. oendina the comina into force of ap..opr.ate international
conventions, IO takcelTecti;e measure; to deter and prevenr such acts and Io
ensure, in accordance with their national laws. the prowcuiion of ihou who
commit such acts;
Adoptsthe/ollowing Declorarion:
The~As~ ~blv .f the International Civil Aviation Oraanization.
Meciing in ~xiraordjnary Session io deal with thealahing incr- inacts of
unlawful seizure and of violence against inicrnational civilair transport aircraft.
civilairport installations and relaied facilities;
Mindful of the principles enunciated in the Convention on International
Civil Aviation;
Recognizing the urgent need to use al1 of the Organization's resources to
prevent and deter such acts;
Solemnly
1. Deplores acts which undermine the confidence placed in air transport by the
peoples of the world.
2. Expresses regret for the loss of life and injury and damage to important
economic resources caused by such acts.
3. Condemns al1acts of violence which mav be directed a-ainst aircraft. crews
and passengers engaged in. and against civilaviation personnel, civilairports
and other facilities uscd by. international civil air trdnsport.
4. Recognizes the urgent need for a consensus among States in order ta secure
widespread international co-operation in the interests of the safety of inter-
national civil air transport.
5. Requests concerted action on the part of States towards suppressing al1acts
which jeopardize the safe and orderly development of international civil air
transport.
6. Requests application, as soon as possible, of the decisions and recommen-
dations of this Assembly so as to prevent and deter such acts.
Whereas it isdesirable that measures be recommended for adoption by States
in order to alleviate the consequences of an unlawful seinire of aircraft;
TheAssemblyrecommendsthat:.1, States should take al1 anoronriate meastues Io restore wnuol of an un-
lawfully diverted aircrafiio ik lawful commander or Io preserve his contril
of the aircraît and to retum, assoon as nracticable. theaircraft and-ils ca~ao
to the persons lauftùly entitled to posksion;
(2) States shotùd permit the paswngers and crew of an unlawfully diverted
aircraft to wntinue their journey on the same aircraît without delay or as
swn as arrangements can-be made for other transportalion in the event the
unlawfully diverted aircraft is unserviceable;
(3) States should develop and utilize measures for the safety and care of
passengers and crew of unlawfully diverted aircraft until their journey can
be continued;
(4) States should adopt measures for the notification to the State of registry
of an unlawfully diverted aircraft when such aircraft has landed in their
territory;
(5) When a State has taken into custody any person suspected of committing
an unlawful diversion of an aircraft in fliaht. it should immediately notifv
the Siate ofnationality of that person. thé&te of registry of the-aircraft
and. if it considers it advisable, ïny othcr interested States of the fact that
such wrson is in custodv:
(b3 The tat oferegistry oan unlawfullydiverted aircrüft, the State of naiion-
ality of a pcrson taken into custody on surpicion of hving committed the
unlawful diversion. andanv other interestid State should suonlv exwdi-
tiously to the Rate of land& any relevant information which isavaiiahle
regarding the person taken into custody;
(7) Without prejudice to its obligations under paragraph1 and 2 hereof, the
State of landing, in accordance withits national law, should inquire into
the aeronautical aspects of the act of unlawful diversion and dispatch its
findings to the State of registry and to the Council of the International Civil
Aviation Organization as soon as it is possible to do so;
(8) The State of registry of an aircraft which has been unlawfully diverted
should. in accordance withls national law. fonvard. as soon as nracticable.
a repon on the aeronautical aspects ofthéincideor to the ~ouncil of the
International Civil Aviation Organization for analysisand evaluation;
(9) in situations in which an aircraft is leased to. and owratby. a carrier
of a State othcrthan the State of regiiiry, the State of the carrier should
have the same rights and responsibilities recommendcd herein for the Sraic
.2. Resolutionsof the Council
(a). RESOLUTIO ONN UNLAWNLSEIZURE OF AIRCMITADOPTED
BY THE COUNCIL ON 16 DECEMBE1 R968
TheCouncil,
Notina with concernthe serious threat to safetvin airnavieation from the
increasing number of acts of forcible and unlawfh seizure ofiircraftand
Takingparticularaccountof the provisions of Article 44 (h) of theConvention
on International Civil Aviation.
UrgesContracting States to 'take al1 possible measures to prevent acts of
unlawful seizure of aircraft and, where appropriate, to CO-operatewith any
State whose aircraft has been the subject of s&h a seizure. (6) RESDL~TIO NN UNLAWNLI~RFERENCE
wirn INTERNATIONC AIVILAVIATION
AND ITS FACILITIES
ADOPTED BY THE COUNCIL ON IOAPRIL1969
The Council.
Gravely concerned that acts which unlawfully interfere with international
civil aviation jeopardize the safety thereof, seriously, affect the operation of
international air services andundermine the confidence of the neonles of the
. .
world in the safety of international civil aviation;
Considerinnthat the threat thus posed to international civil aviation reauires
ureent and continuine attention bv the Oreanization and the full co-oner&ion
of'all Contracting Sates under théconvention on International Civil Aviation
in order to assure the continued safety of international civil aviation;
1. Declares that acts of unlawful interference with international civil aviation
are not to be tolerated;
2. Urges al1 Contracting States to take al1 appropriate measures to prevent
the occurrence of any acts of unlawful interference so as to assure continued
safety in international civil aviation;
3. Decides 10 give immediate and continuing attention to future actsofunlaw-
ful interference with international civil aviation hy:
(i) inviting al1 Contracting States directly concerned to furnish il with
a report on all non-political aspects of cases of unlawful interference;
(ii) developing preventive measures and procedures to safeguard interna-
tional civil aviation againstuch acts; and
(iii) assisting, at the request of a Contracting State, the national authorities
of that State in the adoption ofsuch measures and procedures;
4. Establishes, in accordance with Article 52 of the Convention, a Committee
of eleven members chosen from amone the Members of the Council. to
implcment Tlau<c (3) <ibu$,eunder the rcrms of rcfcrense appearing in the
Apprn<lix 101the present Resolutioni. and whtch will rcport Io Council;
5. Decides thai the Committee ihall deal onlv with the aeronîuiical asuccts of
cases of unlawful interference and shall refrain from considering a& case
which may involve the Committee in matten of a political nature or of
controversv between two or more States:
6. Decides that, for the purposes of the iresent Resolution, the expression
"unlawîul interference" means (1) unlawful seizure of aircraft and (2)sabo-
taxe or amed attack directed aaainst aircraft used in international air
transport or ground facilities used hy international air transport;
7. Decides Io review annually the question of whether the Committee should
be continued and the comoosition of ils membenhi~:
8. Requests the Secretary ~eneral to invite al1~ontraciing States to give their
immediate and full co-operation to achieve the objectives of this Resolution
and their suggestions foi any other measures which they consider should be
taken to prevent unlawîul interference with international civil aviation.
' Appendix not reproduced. (c) REY>LUTLO ADOeTZD BK THE COUNCIL ON 1 OCTOBER 1970
The Council,
Finding that a heightened threat to the safety and security of intemational
civil air transoort exists as a result of unlawful seinire of aircraft involvine the
detention ofksengers, crewaod aircraftcontrary to the principles of ~rtic'le11
of the Tokyo Convention for international blackmail~purposes. and the de-
struction of such aircraft:
Raognizing that Contracting States Io the Convention on International
Civil Aviation have obligated themselves to ensure the sale and ordcrly growth
of international civil aviationhroughoul the world;
Calls upon Contracting States, in order to ensure the safety and security of
international civil air transport, upon request of a Contracting State toult
toaether immediatelv with a view to daiding what joint action should be
un-dertaken, in accordancc with international law, uithout excluding mesures
such as the suspension of international civil air IranFport services to and from
anv State which. after the unlawful seizure of an aircraft, detains vassengen.
creworaircraft chntrary IO theprinciplesof Article Iofthe~okyo&nven~ion;
for international blackmail purpous, or any Stnte >i,h:ch,contrary to the pnn-
ciolcs of Articles 7 and 8 of the Draft Convention on Unlawful Seizure of
~jrcraft. fails to extradite or prosccute persons cornmitting acts of unlawful
seizure fur international blackmail purposer;
Directs the Leaal Cornmittee to consider durina ils Eighteenth Session. if
necessary by extension of the session, an internaiional convention or other
international instmments:
(i) to give etîat to the purposes set out in the preceding paragraph;
(ii) to provide for joint action by States to take such measures as may be
a..roo.iate in other cases of unlawful seizure: and
(iii) to provide for amendment of bilateral au transport agreements of con-
tracting parries to remove al1 douht concerning the authority to join in
takingsuch action against any State. RESOLWlIONS OF THE UNiiED NATIONS GEMI<AL ASEMBLY
1. 2551 (XXIV). Forciblediversion of civil aircraftinfiight
The General Assembly,
Deeply concerned over acts of unlawful interference with international civil
aviation.
Consideringit necessary to recommend effective measures against hijdcking
in al1its forms, or any oihcr unlawful seinire or exercise of wntrol of airdi.
Mindfulthat such &ts mav e~~a~ . ~ -~~l~ ~ ~nd health of nasseneers -nd
crew in disregard of commonly accepted humanitarian considerations,
Aware that international civil aviation can only function properly in con-
ditions euaranteeine the safetv of its ooerations &d the due exercise of the
freedom-of air travel,
1. Calls uponStates to take every appropriate measwe to ensure that their
resoective national leeislations nrovide an adeauate framework for effective
leial measures againsrall kinds'of acts of unlar;ful interference with, seinue
of, or other wrongful exercise of control by force or threat thereof over, civil
aircraft in flight;
2. UrgesStates in particular to ensure that persons on board who perpetrate
such acts are prosecuted;
3. Urgesfull support for the efforts of the International Civil Aviation Or-
ganization directed towards the speedy preparation and implementation of a
convention providing for appropriate measures, inter alia, with respect to
making the unlawful seinire of civil aircraft a punishable offence and to the
prosecution of persons who commit that offence;
4. InvitesStates to ratify or accede to the Convention on Offences and Cer-
tain Other Acts Committed on Board Aircraft, signed at Tokyo on 14Septem-
ber 1963,in conformity with the Convention.
183lst plenary meeting,
12 December1969.
2. 2645 (XXV). Aerialhijackingor interference with civilair travel
The GeneralAssembly,
Recagnizingthat international civil aviation is a vital link in the promotion
and presemation offriendlyrelationsamongStatesand that its safe and orderly
functioning is in the interest of al1peoples,
Gravelyconcernedover acts of aerial hiiacking or other wrongful interference
with civil air travel.
Recognizingthat such acts jeopardize the lives and safety of the passengers
and crew and constitute a violation of their human rights,
Aware that international civil aviation can only function properly in con-
ditions guaranteeing the safety of its operations and the due exercise of the
freedom of air travel,
Endorsingthe solemn declaration of the extraordinary session of the Assem-ly of the lnternational Civil Aviation Organization held at Montreal from
16 to 30 June 1970,
Beuringin mind General Assembly resolution 2551 (XXIV)of 12December
1969and Security Council resolution 286 (1970) of 9 September 1970adopted
by consensus at the 1552nd meeting of the Council,
1. Condemns, without exception wbatsoever, al1acts of aerial hijacking or
other interference with civil air travel, whether originally national or interna-
tional,through the threat or use of force, and al1acts of violence which may be
directed against passengers, crew and aircraft engaged in, and air navigation
facilities and aeronautical communications used bv. civil air trans.ort:.
2. Cal/.! uponStates to takc al! appropriate measures to dcter. prevcnt or
suppress such acts nithin their jurisdiction, al every stage of the cxecution of
those acts. and to orovide foi the orosecution and nunishrnent of oersons
who p.srPeirate suchacts, in a manne; commensurate with the gravity of those
crimes. or, without prejudice to the rights and obligations of States under exist-
ine international inst~ments relatineto the matter. for the extradition of such
persa ors the purposc of their prosecution and punishment,
3. Decloresthat the exploitÉlion of unlanful scizure ofaircrafl for -he ~urpose
of taking hostages is to-be condemned;
4. Declaresfurther that the unlawful detention of passengen and crew in
transit or othemise engaged in civil air travel is to becondemned as another
form of wroneful interference with free and uninterruoted air travel:
5. Ur.+-e~Gies to the territory of which a hijackeh aircrafi is dilerted to
provide for the care and safety of its passengers and creu and to enablc thçm
to continue their journey as soon aspracticable, and to return the aircraft
and ils cargo to the penons lawfully entitled Io possession;
6. InvitesStates to ratify or accede to the Convention on Offencesand Cer-
tain Other Acts Committed on Board Aircraft, signed al Tokyo on 14 Sep-
tember 1963,in conformity with the Convention;
7. Requests concerted action on the part of States, in accordance with the
Charter of the United Nations, towards suppressing al1acts which jeopardize
the safe and orderly developrnent of international civil air transport;
8. Calls upon States to take joint and separate action, in accordance with
the Charter. in co-owation with the United Nations and the International
CivilAviation Organizatiun to ensurcthat pnssengers,srew andÿircrafi engaged
in civil aviation are not used as a mcans of extorting îd\,antage of any kind;
9. Uraerfull su..ort for thecurrentelT~irtsof the InremalionalCivil Aviation
Org~nization towards the dcvclopmeni and co-ordination. in accordance uith
its compctcnce. of eîïcctive mcasures in respect of iiilerfercnce with civil air
travel ;
10. Calls upon States to make every possible effort to achieve a successful
result at the diplomatic conference to convene at The Hague in December 1970
for the Duroose of the adootion of a convention on the unlawfui seime of
aircraft,'soihat an effectiv~convention may be brought into force at an early
date.
1914thplenarymeeting.
25 November1970. AnnexM
LEGAL RATIONALE FOR SUSPENSIO OF SERVICE UNDER
BILATERAL AVIATION AGREEMENT SURSUANT TO THE
UNITEDSTATES RESOLUTION BEFORE THE ICA0 COUNCIL
(A Paper prepored by rhe Covernmentof the Uriired States)
Sunenary
Termination of services by United States carriers to and from a country
raises no legal ~roblem since there is no obli.ation Io conduct such service,
but only a Ïighi.
Suspension of the service of Foreign carriers to and from the United States
under circumstances contemplated by the draft resolution is legally justifiable
on the followine--rounds:
(A) The bilateral aviation agreements cannot properly be interpreted as
granting foreign airlines the right Io continue such servicesunder thesecircum-
(8) Even ifthey uere interpreicd asgrantlng such rights, the conduci against
>$hichthe resolution is dirccied would justify susprnslon of scnices bccausc
(i) It would constitute a breach of the hilateral; and
(ii)It would constitute a breach of the Chicago Convention, justifying
suspension of the bilateral becauseof the nexus existing between the
Chicago Convention and the bilateral.
(C) The bilateral agreements by their tcrms allow $uspension. under thesc
circumstdnces. pursuant to generally applicable Idwb and regulations
Discussion
Insofar as the termination of service by United States carriers to and from
another country is concerned, no legal problem is raised. We have the right
10 conduct such service but we have no obligation to do so.
We do no1 believe that Our bilateral aviation agreements can properly be
inter~reted as.granti-e the r-nht Io airlines of the other st.te .xartv10the bilat-
cral agreement io continue air serbice IO and froii~ the U.S. if that aiiher staic
detaini passengcrs,crcw or nircraft contrÿr) to the principles of ArticleII of
the Tokyo Convention for iniernational hlsckmîil nurooses. or if s~ch iidte.
contrary to Articles 7 and 8 of the Draft ~oni,cniion on Unlawful Seizurc of
Aircraft, fails Io extradite or prosccuic pcrsons committing acts of unl3rrful
seizure for international blackmail ourooses. In nenotiatinn the bilaterals we
did not anticipateand specificnlly provide for situaiions such>s thesc.Houevcr.
itis clcar that boih pnrtics had in mind normal, sïfe. commercinl operations
of the type contempÏated by the Chicago Convention and that the grant of
rights contained in each of Our bilaterals is not intended to cover the contin-
uation of operations into and from the U.S. by the planes of a state which a1
the same time is disruo.ina-such normal. safe. commercial aviation generally
in a manne1specified in the draft resolution. ~iecific provisions of thëbilateral
support this interpretation, because a failure by a state to take practicable
measuresnecessari IO prevent the disruption of international aviation that iscaused by such acts of detention and seizure for international blackmail pur-
posesas are specified in the resolutionwould not be consistent with the state's
erant of richts necessarsfor the conduct of air traffic bv Ourcarriers asreauired
inder 1heEilaterals. ~hesepoints apply to bilateral agreements nith countries
that are not, as well as to countries that are, party Io the Chicago Convention.
The grant of rights necessaryfor the conduct of air services in the bilateral
agreements also has to be read in the context of the Chicago Convention.
The Chicago Convention of 1944 established principles and arrangements
designed to assure that international civil aviation would develop "in a safe
and orderly manner" (third preambular paragraph); itimposes obligation
upon each contracting state "no1 Io use civil aviation for any purpose incon-
sistent with such ainis (Article 4). More directlv. il soecificdll. rea.ires each
contracting state "10 adopt 311 praciiidble nicarurei .. .10lacil~iate and chpe-
dite na\,ig~tiun by a~rcraft bcttieen the territorie< of C'ontrdcting Stïtes. and
IO prevent unnecessary delays to aircraft, crews, passengersand cargo .. ."
(Article 22). The Chicago Convention clearly contemplates the existence of
subsequent bilÿteral agreements pertaining to scheduled civil aviation between
ils oarties (Articles 6. 81. 82 and 83): the final Act of the 1944 Conference
whkh adopted the ~bnv;ntion even'contained a model agreement in many
respects similar to Our niodern bilateral agreements. It is quite clear that the
parties Io the Chicago Convention (nowl19 States) intended that itwould
provide the legal foundation for subsequent bilaterals between the parties to
the convention. There is a nexus between the Convention and the bilateral.
A forceful illustration of this relationshio is contained in Article 82 which
specifies that "That Conlracting States aicePt this Convention as abrogating
al1 obligations and understandings hetwcen them wtiich are inconsistent with
ils terms, and undertake not to enter into any such obligations and understand-
ings."
In view of the close relationship between the Chicago Convention and Our
bilateral agreements, refusal by a state to adopt generally agreed procedures
to eliminate the threat Io international civil aviation posed by such acts of
detention and seizure for international blackmail purposes as are specified in
the resolutionwould constitute a failure bv that state to carrv out ils oblieations
under Articles 4 or 22, or both. of th; chiCago onv vent anionthis failure in
turn would constitute a failure Io comply with the obligation imposed by the
bilaterals torrant richts necessarsfor <heconduct of air servicescontem~lated
therein. ~his-wouldbe true even.if the bilaterals are interpreted to con& a
broader grant of rights than hns been stated in paragraph 5 above. This point
is directl~ relatedto the auestion whether the U.S. would beentitled to suspend
air transport service und& a bilateral in the event the other party thereto-had,
for example, refused to prosecute or extradite the hijacker of a plane belonging
to a third state under circurnstanccs covered bv the resolution. The Chicago
Coii\enti<,n rccogiiile, th~t the %sfct)anJ dc\c.lopnient of international L\~II~~IO~
requtre. thr. brode.i intcrnaiiunal c,i.ipcr~ii,riThe uhligatiuiis undertaken
run tu ,11n.irticsIO the Conhrntion aiid i\rtiilc S?snr.citi~all~riri~hihits Jcro-
galion frok those requircments. Condonation by astate of ai; hijÿcking for
international blackmail purposes under circumstances covered by the reso-
lurion is lhus a breach of ifs obligations under the Chicago Convention no1
only Io the State whose plane has heenhijacked but also to al1 other parties
Io the Convention. Air stfety is indivisible. From the standpoint of interpre-
talion of the bilateral's reauireiiients. therefore. such a refusal Io cooperate
in the elimination of these ihreats IO air safety constitutes a failure to providc
rights necessary for the conduct of air services regardless of whether the in-dividual case of failure involves the plane of the other party 10 the bilateral
or not.
Furtherrnore, in view of the nexus described above that exists between bilat-
eral aviation agreements and the Chicago Convention. a substantial casecan
be made that a breach of the Chicago Convention involving risk Io air safety
of the magnitude involved in the circumstances covered in the resolution jus-
tifies the suspension of rights under the bilateral whether or not thestate's
conduct is viewed as a breach of the bilateral itself. This particular aspect of
the efïect of breach ofa treaty has no1been taken up in the Vienna Convention
on the Law of Treaties. However, the doctrine on this subject was enunciated
by Lord McNair in his Treatise on the Law of Treaties (1961 edition at page
571): ". .. In special circumstances il may be possible to show that of two
seoarate treaties each was the consideration for the other and that they were
iniended Io be interdependent; and that in that case the breach of onëmight
give rise to a right to abrogate the other." Any state party ta the Chicago Con-
vention that detains oassengers.crew or aircraft contrars to the principles of
Article 11 of the ~ok~o convention for international blâckmailpurposes or
that, contrary to Articles 7 and 8 of the Drüft Convention on Unlawful Seizure
of Aircraft. fails to extradite or Drosecuteoersons cominittinn acts of unlawful
seizure for international blackmail purioses would, as mentioned above,
breach ils obligations under Article4or 22, or both, of the Chicago Convention.
The reauirements of these Articles are. in Our view. underl~in~ reauirements
. .
for the &nt of right, in ilie $~bieq.ieni hii;iter~ls. The pr<>i.tiions,?f',\rt.cle X?
of ihe Chiaigo C'<inveniitiii csi;ibli~h thc eleliient of interdcpcndence. .A bres.h
of Article 4 or 22. or both. of the Chicarzo Convention bs one of the oarties
to a bilateral aviaiion agreement would,?herefore, give r&e Io a right on the
part of the other party to suspend the air trafic provided for under the bilat-
eral ag-eement.
Furtherniorc. bil;iter;il ï\,.stion agreenienis c~irotn:irily recogni7c ihst ç~ch
p3rry re,er\ss the right 161revoke the righi\ granted 11 b) the Iigreenent IIIthe
event of the other ~ar.s's .ailure Io complv wi. .uniformls applied.law~ and
regulations rel.itlng ILIÿdiiiiss~on and rlep3riure Iroiii lis territory It secni,
clrx th31under this pr<ivision stâtcjc<iuld adopt rules ïnd regulâtions. dcsigneJ
10 further the aims and obicct,\e~ of the Chicaco Conrention. uhich deny
admission Io aircraft of an;country that is abushg international aviation in
the manner specified in the resolution.1. Letrer No. LE6/1, LE612 of 30 July 1971froni the Secrelary Generalof ICA0
Io rireHigh Co~nmissionerfor Indio, Ograwa
The Secretary General of the International Civil Aviation Organization
presentshiscompliments and has the honour ta refer ta the Preliminary Objec-
tions, dated 28 May 1971,filed by the Government of lndia and relating re-
spectively to the Application of the Government of Pakistan, dated 3 March
1971,filed under Article 2 of the Rules for the Settlement of Differences and
the Cornplaint of the Government of Pakistandated 3 March 1971,filedunder
Article 21 of the said Rules.
On 29July 1971,theCouncil decidednot toaccept the Preliminary Objections
aforesaid.
Accordingly. the time.liniit set ior dclivery of thecountcr-niemorials b) the
Ci<i\ernrncnt of India and uhich had sraed IO run ori I June 1971,the date on
u.hi<h the 1'rclini:n~rv Ohicct~ons iiere tiled. be-an to rdn ar-in a., lrom 29
luly 1971and will expire on 8 August 1971.
The Secretary General desires, on this occasion, once more to draw your
attention Io the Council's resolution of 8 April 1971in which the parties were
invited to negotiate.
The Secretary General takes the opportunity of conveying Io your Excel-
lency, the assurancesof his highest consideration.
(Si,~ned) Assad KOTAITE,
Secretary General.
2. Meniorandu1fiSG609/71,LE4/1.11 Conf., LE411.12 Coli/. of 10August 1971
/rom rhe Secrerary General of /CAO to Representariveson the Council
Subject: Voting in the Council on Disagreements and Complaints Brought
under the Rules for the Settlement of Differences
I. During the Sixth Meeting of the Swenty-fourth Session of the Council,
held on 29 July 1971, it was requested that a memorandum be circulatedin
which it would k ex~lained why, even if certain Council Members did not
have the right IO votein a rnattrr hrought before the Council under the Kules
for the Settlement of Difirencrs. itwas sti11necessar).to require that decisions
of the Council on siich matters be takcn by a müjority of 11sMembers.Aswill
k secnirom the following parîgraphs, .ihrief history of the question ofvoting
in the caseof the Rulcs for the Settlement oïUinèrences provides the necessîry
explanation
2. The question of \,oting in circumsiances where pürties io a differencc did
no1havc the right IO vote nroseduring the preparation of provisir~nal Rules for
the Settlement of Dilferences in 1953.At that tirne. itutis noted thai, because
of the provisions of Article 52 of the Convention, the majority required for a
decision under the Rules would have ta be a majority of al1Council Members.
The question also arase during the preparation of the present Rules for theSettlement of Differences in 1955 by a Group of Experts nominated by the
Chairman of the Legal Committee in consultation with the President of the
Council. In its report, that Group pointed out, in the terms set forth below,
the difficulty that could arise in regard to voting if certain Council Members
did not have the right to vote, thus:
"According to Article 52 of the Convention: 'Decisions by the Council
shall require approval by a rnajority of its rnembers'. In the opinion of .
the gr ou^. this ~rovision reauires 11 votes for a decision '.However,
sincc, iiccording in Articlcs 53 and 84. no mcmhcr of ihc Council ml)
vote in the conrideration hy the Council of 3 dispute to ti'hich iti$a Party.
11 mav u.cll ha~~cn that the Council finds itself unable to gi\r a decision.
A po;sibility 0t.a tic vote has also to be tdkcn inio dccouniÏin [hi%connec-
lion " (See C-WP 2271, 15 10 56, p. 6.)
This view of the Group of Experts was not disputed by the Council when the
latter adopted the Rules for the Settlemeni of Difierences in 1957.
3. Similarly, in cases involving the International Air ServicesTransit Agree-
ment, the rnajority required by Article 52 of the Convention would continue
to apply even where. in accordance with Article 66 (bj of the Convention,
Council Mernbers who did not have the right to vote because they had not
accepted the Transit Agreement.
4. -~~vie~ of the foreeo-ne. -.e Council is merelv b~,ne~con-istent with ils
attitude in the pas1when. in relation io the cases involving Pîkistan and Indin.
it folloirs the statemcni made by the Prcsidcnt on 7 April 1971 io the cflcct
that at "this meeting and in any other proceedings on these cases, the Council
would be acting under Article 84 or 66 of the Convention, which implied ob-
servance of the statutory rnajority requirement in Article 52 for any decision
taken". (C-Min. LXXII/10(Closed), para. 6).
(Signed) Assad KOTAITE,
Secretary General.
' Obviously;the referenceof the Group of Experts to a requirement of II votes
for a decision was made in relation to a Council which, at the time, contained
21 Mernbers and had the Council then contained 27 Members, the Group would
no doubt have includedthe figureof "14" instead of "II". Annex O
The Prime Minister of lndia and the President of Pakistan, having met at
Tashkent and having discussed the existing relations between lndia and Pakis-
tan, hereby declare their firm resolve to restore normal and peaceful relations
between their countries and to promote understanding and friendly relations
between their peoples. They consider the attainment of these objectives of vital
importance for the welfare of the 600 million people of India and Pakistan.
The Prime Minister of lndia and the President of Pakistan agree that both
sides will exert a11efforts ta create good neighbourly relations between lndia
and Pakistan in accordance with the United Nations Charter. Thev reaffirm
their obligation under the Charter no1 ta have recourse to force and ta settie
their dis~utes through peaceful means. They considered that the interests of
peaceiniheir region-and particularly in the Indo-Pakistan Sub-Continent and,
indeed, the interests oF'the peoples of lndia and Pakistan were no1 served b~
the continuance of tension between the two countries. It. was against this
background that Jammu and Kashmir was discussed, and each of the sides
Setforth ifs respective position.
The Prime Minister of lndia and the President of Pakistan have agreed that
al1 armed personnel of the two countries shall be withdrawn not later than
25 February 1966to the positions they held prior to 5 August 1965,and both
sides shall observe the cease-fire tenns on the cease-fire line.
The Prime Minister of lndia and the President of Pakistan have agreed that
relations between lndia and Pakistan shall be based on the principle of non-
interference in the interna1 affairs of each other.
The Prime Minister of lndia and the President of Pakistan have agreed that
bath sides will discourage any propaganda directed against the other country,
and uill encourage propaganda which promotes the development of friendly
relations between the two countries.
The Prime Minisier of lndia and the President of Pakistan have agreed that
the High Commissioner of lndia to Pakistan and the High Commissioner of
Pakistan to lndiu will return to their posts and that the iiormal functioning
of diplomatic missions of bath countries will be restored. Both Governments
shall observe the Vienna Convention of 1961 on Diplomatic Intercourse. The Prime Minister of lndia and the President of Pakistan have agreed ta
consider measures towards the restoration of economic and trade relations,
communications, as well as cultural exchanges between lndia and Pakistan,
and to take measuresto implement the existing agreements between lndia and
Pakistan.
VI1
The Prime Minister of India and the President of Pakistan have agreed that
they will give instructions to their respective authorities to carry out the
repatriation of the prisoners of war.
Vlll
The Priiiie Irlinisiçr of Indu and the I'recideiit of Pdkisian hsw agrçcd il131
the tut,riJcs will conninu the discussi<inolqiicstions rcliting ti>the problcni,
of rçfueces and c\ ictions iIlci?sl ininiicrdiioThe, alsir ;iareed ihai bath >ides
will cr&te conditions which'will preient the exodus of people. They further
agreed ta discuss the return of the property and assets taken over by either
side in connection with the conflict.
The Prime Minister of Lndia and the President of Pakistan have agreed that
the sides will continue meetings bath ai the highest and at other levels on
matters of direct concern to bath countries. Bath sides have recognized the
need ta set up joint Indian-Pakistani bodies which will report to their Govern-
ments in order to decide what further steps shotild be taken.
The Prime Minister of lndia and the President of Pakistan record their fecl-
ings of deep appreciation and gratitude to the leaders of the Soviet Union,
the Soviet Government and personally to the Chairnian of the Council of
Ministers of the U.S.S.R. for their constructive friendly and noble part in bring-
ing about the present mfeting which has rcsulted in miatually satisfactory
results. They also expressto the Governnient and friendly people of Uzbekistan
their sinceri thankfulness for their overwhelming reccption and generous
hospitality.
They invite the Chairman of the Council of Ministers of the U.S.S.R. to
witness this Declaration.
Prime Minister of lndia President of Pakistan
Lal Bahadur SHASTRI. Mohammed Avue KHAN.
Tashkent, 10January 1966. LETCERS EXCHANGED BETWEEN THE PRIME MlNlSTER OF INDIA AND
THE PRESIDENT OF PAKISTAN ON 3 FEBRUARY 1966 AND 7 FEBRUARY 1966,
RESPECTIVELY
Dear Mr. President.
Our Foreign ~inister and Defence Minister, on their return from Tashkent,
informed us of your desire for the early resumption of over-flights of Pakistani
and lndian aircraft across edch other's territorv. 'h'e had thouxht that this
matter would be settled at a meeting between the Ministers of both countries
within a few days along with other problems connected with the restoration
of c~~municati~ns~ ~ r~- anwars that such a meetine mieht take some lime.
wewoutd be agreeable ta ai Fimediate resurnption or~~&-flights across each
other's territory on the same basis as that prior to 1stAugust 1965.Instructions
are king issued ta our civil and military authorities accordingiy.
1very much hope that in bath our countries emphasis will be placed on the
positive aspects of the Tashkent Declaration, such as early normalisation of
relations and the initiation of various processes of co-operation between our
Iwo countries in mutually beneficial fields.
Yours sincerely,
Dear Prime Minister,
Your Hiah Commissioner. Mr. Kewal Singh. has delivered your message Io
me in ~arkana this afternoon. 1am glad ta léamof your consiructive dession
in a matter which is of high benefit Io India and Pakistan. 1 am also issuing
immediate instructions ta Our Civil and Military authorities to permit the
resumption of air flights of lndian and Pakistani planes across each other's
territories on the same basis as that prior 10 the First of August 1965.
The late Prime Minister. Mr. Lal Bahadur Shastri discussed with me the
necessity of taking such measures in our mutual relations as would make a
salutary impact on our peoples and further the need for the early restoration
of normal relations between the Iwo countries. We believedthat vrompt ac.ion .
10 this end would greatly facilitate the opening of a more conducive and ben-
eficial period of relations between lndia and Pakistan. In this context, as a
manifestation of our earnest intentions to improve relations and Io generate
confidence, we discussed the desirability of a meeting between our two Army
Chiefs to draw up plans for withdrawal and resumption of air flights.
We also discussed the need Io appoint Ministen, who would facilitate
mutual neeo-iatio~s~b-tw--n l~ ~ ~~ ~ Pakistan on al1 our ditïerences and
dispuic., tu enable lsiing peÿceto rçiurn to the Sub-Continent. I am. thercfore.
slad in noie thal SOU h3t.e lssued orders on the early resumption of air flights
according Io the spirit of our undertaking.
Before 1conclude, permit me to add a personal note of admiration of the
manner in which you have responded to the Tashkent Declaration. This leads
me to believe that we are moving in the right direction, and that you willcontinue to make profound contributions to a happierrelationshiphetus.n
1 can assureyou that you will find mereadily reciprocatingyourendeavours
in any positive measure made in this regard.
With warm regards,
Yours sincerely,
(Signed) Mobammad AYUB KHAN,
Field Marshal. CONVENITON
ON OFFENCES AND CERTAIN OTHER ACIS COMMITTED ON BOARD AlRCRAFT
TheStares Parties to this Convention
Have agreed as follows:
CHAPTER 1.SCOPE OF THE CONVENTION
Article 1
1. This Convention shall apply in respect of:
(a) offences against penal law;
(b) acts which, whether or not they are offences, may or do jeopardize
the safety of the aircraft or of pesons or property therein or which
jeopardize good order and discipline on board.
2. Ehccpt 3s provided in Chapter III. this Conr,ention shall applin respect
of ollences commiited or acts donc hy a pcrson on board any aircraft registercd
in a Contracrina Staie. while ihar îircrafi is in flight or on the surface of the
high seas or of &y other area outside the territory of any State.
3. For the purposes of this Convention, an aircraft is considered to be in
flight from the moment when power is applied for the purpose of take-off
until the moment when the landing run ends.
4. This Convention shall not apply to aircraft used in military, customs or
police services.
Article 2
Without oreiudice 10 the orovisions of Article 4 and exceDt when the safe-
ty of the aircraft or of persons or groperty on board so requires, no provision
of this Convention shall be interpreted asauthorizing or requiring any action
in respect of offences against penal laws of a political nature or those based
on racial or religious discrimination.
Article3
1. The State of registration of the aircraft iscompetent to exercise jurisdic-
tion over ofences and acts committed on board.
2. Each Contracting State shall take such measures as may be necessary
to establish its jurisdiction as the State of registration over offences committed
on board aircraft registeredin such State.
3. This Convention does not exclude any criminal jurisdiction exercised in
accordance with national law.
Article4
A Contractine- State which is not the State of registration may not interfere
with an aircrali in flight in ordeIO exercise iis criniinal jurisdiciion over an
otïence cominiiied on board eilccpt in thc follouing cÿses: (a) the offence has effect on the territory of such State;
(b) the offence has been committed by or against a national or permanent
resident of such State;
(c) the offence is against the security of such State;
(d) the offence consists of a breach of any rules or regulations relating to
the flieht or manoeuvre of aircraft in force in such State:
(e) the exercise of jurisdiction is necessary to ensure the observance of any
obligation of such State under a multilateral international agreement.
CHAPTER 111. POWERS OF THE AIRCRAFT COMMANDER
Article 5
1. The nrovisions of this Chanter shall not ~.. . to offences and acts com-
mitted or about ro he coniinitted by a perron on board an air~.rift in flicliin
the airspce of the Siaie of registration or mer the high seas or an). othcr ared
outside the territory of anv State unless the last ooint of take-off or the next
piiint of intcnded lsn~ing /i situdird iniiState othrr than thai tifregisir~tion.
or thc aircrafi ~ubxquenily flics in ihe airspase of a Staie oiher than thsi of
registration with such Derson still on board.
2. ~otwithstandingthe provisions of Article 1, paragraph 3, an aircraft
shall for the purposes of this Cbapter, be considered to be in flight at any
time from the moment when al1 its extemal doors are closed following em-
barkation until the moment when any such door is opened for disembarkation.
In the case of a forced landing, the provisions of this Chapter shall continue
to apply with respect to offences and acts committed on board until com-
petent authorities of a State take over the responsibility for the aircraft and
for the persons and property on hoard.
Article 6
1. The aircraft commander may, when he has reasonable grounds to believe
that a person has committed, or is about to commit, on board the aircraft,
an offence or act contemplated in Article 1, paragraph 1, impose upon such
person reasonable measures including restraint which are necessary:
(a) to protect the safety of the aircraft, or of persons or property therein; or
(b) to maintain good order and discipline on board; or
(c) to enable him to deliver such person to competent authorities or to
disembark him in accordance with the provisions of this Cbapter.
2. The aircraft commander may require or authorize the assistance of other
crew members and may request or authorize, but not require, the assistance
of passengers to restrain any persan whom he is entitled to restrain. Any
crew member or passenger may also take reasonable preventive measures
without such authorization when he has reasonable grounds to believe that
such action is immediately necessary to protect the safety of the aircraft, or
of persons or property therein.
Article 7
1. Measures of restraint imposed upon a person in accordance with Article
6 shall not be continued beyond any point at which the aircraft lands unless:
(a) sucb point is in the territory of a non-Contracting State and its au-
thorities refusetovermit disembarkation of that person or those measures have been imposed in accordance with Article 6, paragraph 1 (c) in
order to enable his delivery tocompetent authorities;
(b) the aircraft makes a forced landing and the aircraft commander is
unable to deliver that person to competent authorities; or
(c) that person agrees to onward carriage under restraint.
2. The aircraft commander shall as soon as practicable, and if possible
before landing in the territory of a State with a person on board who has been
placed under restraint in accordance with the provisions of Article 6, notify
the authorities of such State of the fact that a person on board is under re-
straint and of the ieasons for such restraint.
Article 8
1. The aircraft commander may, in so far as it is necessary for the purpose
of subparagraph (a) or (6) of paragraph 1 of Article 6, disembark in the
territory of any State in which the aircraft lands any person who he has rea-
sonable grounds to believe has committed, or is about to commit, on board
the aircraft an act contemplated in Article 1, paragraph 1 (b).
2. The aircraft commander shall report to the authorities of the State in
which he disembarks any person punuant to this Article, the fact of, and the
reasons for, such disembarkation.
Article 9
1. The aircraft commander may deliver to the competent authorities of
any Contracting State in the territory of which the aircraft lands any person
who he has reasonahle grounds to believe has committed on board the air-
craft an act which, in his opinion, is a serious offence according to the penal
law of the State of registration of the aircraft.
2. The aircraft commander shall as soon as practicable and if possible
before landina in the territorv of a Contractine State with a Derson on board
u,hom the airiraft commandér intcnds to delikTerin accordn"ce u,ith the prc-
cedina..arag-aph, notify the authorities of such State of his intention to dcliver
such nerson and the reasons therefor.
3. ?hi aircraft commander ;hall furnish the authorities to whom any sus-
pected offender is delivered in accordance with the provisions of this Article
with evidence and information which. under the law of the State of reaistra-
tion of the aircraft, are lawfully in hi;possession.
Article 10
For actions taken in accordance with this Convéntion, neither the aircraft
commander, any other member of the crew, any passenger, the owner or op-
erator of the aircraft, nor the person on whose hehalf the flight was performed
shall he held responsible in any proceeding on account of the treatment under-
gone hy the person against whom the actions were taken.
Article 11
1. When a person on board has unlawfully committed by force or threat
thereof an act of interference, seizure, or other wrongful exercise of control
of an aircraft in flight or when such an act is about to be committed, Con-
tracting States shall take al1appropriate measures to restore control of theaircraft to its lawful commander or to preserve his control of the aircraft.
2. In the cases contemplated in the preceding paragraph, the Contracting
State in which the aircraft lands shall permit ils passengen and crew to con-
tinue their journey as soon as practicable, and shall return the aircraft and
its cargo tathe persons lawfully entitled to possession.
CHAPTER V. POWERS AND DUTIES OF STATES
Article 12
Any Contracting State shall allow the commander of an aircraft registered
in another Contracting State to disembark any persan pursuant to Article 8,
paragraph 1.
Article 13
1. Any Contracting State shall take delivery of any person whom the air-
craft commander delivers oursuant to Article 9. varaaraoh 1.
.. -.
2. Upon being satisfiedlthat the circumstances so warrant, any Contracting
State shall take custody or other measures toensure the presence of any person
susoected of an act contem~lated in Article 11.oaraeraoh 1 and of anv Üerson
of whom it has taken delibery. The custody id oihér measures shali be as
provided in the law of that State but may only be continued for such lime
as is reasonably necessary to enable any criminal or extradition proceedings
to be instituted.
3. Any person in custody pursuant to the previous paragraph shall be
assisted in communicating immediately with the nearest appropriate repre-
sentative of the State of which he is a national.
4. Any Contracting State, to which a person is delivered pursuant Io Article
9, paragraph 1, or in whose territory an aircraft lands following the com-
mission of an act contemplated in Article II, paragraph 1, shall immediately
make a preliminary enquiry into the facts.
5. When a State, pursuant Io this Article, has taken a person into custody,
il shall immediately notify the State of registration of the aircraft and the
State of nationality of the detained person and, if it considers it advisable,
any other interested State of the fact that such person is in custody and of
the circumstances which warrant his detention. The State which makes the
preliminary enquiry contemplated in paragraph 4 of this Article shall promptly
report its findings to the said States and shall indicate whether it intends to
exercisejurisdiction.
Article 14
1. When any person has been disembarked in accordance with Article 8,
paragraph I, or delivered in accordance with Article 9, paragraph 1, or has
disembarked after committing an act contemplated in Article 11, paragraph 1,
and when such person cannot or does not desire to continue his journey
and the State of landing refuses to admit him, that State may, if the penon
in question is not a national or permanent resident of that State, return him
10 the territory of the State of which he is a national or permanent resident
or to the territory of the State in which he hegan his journey by air.
2. Neither disembarkation, nor delivery, nor the taking of custody or
other measures contemplated in Article 13. paragraph 2, nor.return of the
person concerned, shall be considered as admission to the territory of theContracting State concerned for the purpose of its law relating to entry or
admission of persons and nothing in this Convention shall affect the law of
a Contracting State relating to the expulsion of persons from its territory.
Article 15
1. Without prejudice to Article 14, any person who has been disembarked
in accordance with Article 8, paragraph 1, or delivered in accordance with
Article 9, paragraph 1, or has disembarked after committing an act conteni-
plated in Article II, paragraph 1, and who desires to continue his journey
shall be at liberty as soon as practicable to proceed to any destination of his
choice unless his presence is required by the law of the State of landing for
the purpose of extradition or criminal proceedings.
2. Without prejudice to its law as to entry and admission to, and extradi-
tion and expulsion from its territory, a Contracting State in whose territory
a person has ben disembarked in accordance with Article 8, paragraph 1,
or delivered in accordance with Article 9, paragraph 1 or has disernbarked
and is suspected of having committed an act conternplated in Article II,
paragraph 1, shall accord to such person treatment which is no less favour-
able for his protection and security than that accorded to nationals of such
Contracting State in like circumstances.
CHAPTER IV. OTHERPROVISIONS
Article 16
1. OKences committed on aircraft registered in a Contracting State shall
be treated, for the purpose of extradition, as if they had been committed not
only in the place in which they have occurred but also in the territory of the
State of registration of the aircraft.
2. Without prejudice to the provisions of the preceding paragraph, nothing
in this Convention shall be deemed to create an obligation to grant extradi-
tion.
Article 17
In taking any measures for investigation or arresf or othenvise exercising
jurisdiction in connection with any offence committed on board an aircraft
the Contracting States shall pay due regard to the safety and other interests
of air navigation and shall so act as to avoid unnecessary delay of the air-
craft, passengers,crew or cargo.
Article 18
If Contracting States establish joint air transport operating organizations
or international operating agencies, which operate aircraft not registered in
any one State those States shall, according to the circurnstances of the case,
designate the State anlong them which, for the purposes of this Convention,
shall be considered as the State of registration and shall give notice thereof .
to the International Civil Aviation Organization which shall communicate
the notice toal1States Pariies to this Convention.
Article 19
Until the date on which this Convention comes into force in accordance
with the provisions of Article 21, it shall remain open for signature on behalfof any State which at that date is a Member of the United Nations or of any
of the Specialized Agencies.
Article 20
1. This Convention shall be subject Io ratification by the signatory States
in accordance with their constitutional procedures.
2. The instruments of ratification shall be deposited with the International
Civil Aviation Organization.
Article 21
1. As soon as twelve of the signatory States have deposited their insuu-
ments of ratification of this Convention. it shall come into force between them
on the ninetieth day after the date of'the deposit of the twelfth instrument
of ratification. It shall come into force for each State ratifying thereafter on
the ninetieth dav after the deoosit of its instrument of ratification.
2. As soon ai this ~onve~tion comes into force, it shall be registered with
the Secretary-General of the United Nations by theInternational Civil Aviation
Organization
Article 22
1. This Convention shall, after it has come into force, be open for acces-
sion by any State Member of the United Nations or of any of the Specialized
Agencies.
2. The accession of a ~tatè shall be effected by the deposit of an instm-
ment of accession with the International Civil Aviation Oreanization and shall
take effect on the ninetieth day after the date of such dep&.
Article 23
1. Any Contracting State may denounce this Convention by notification
addressed to the International Civil Aviation Organization.
2. Denunciation shall take effect six months after the date of receipt by
the International Civil Aviation Organization of the notification of denun-
ciation.
Article 24
1. Any dispute between two or more Contracting States concerning the
interpretation or application of this Convention which cannot be settled
through negotiation, shall, at the request of one of them, be submitted to
arbitration. If within six montbs from the date of the request for arbitration
the Parties are unable to agree on the organirrition of the arbitration, any one
of those Parties may refer the dispute to the International Court of Justice
by request in conformity with the Statute of the Court.
2. Each State may at the time of signature or ratification of this Conven-
tion or accession thereto. declare that it does not consider itself bound by
the preceding paragraph. The other Contracting States shall not be bound
by the preceding paragraph with respect to any Contracting State having made
such a reservation.
3. Any Contracting State having made a reservation in accordance with
the preceding paragraph may at any time withdraw this reservation by noti-
fication to the International Civil Aviation Organization. Article 25
Except as provided in Article 24 no tesemation may be made to this Con-
vention.
Article 26
The International Civil Aviation Organization shall give notice to al1States
Members of the United Nations or of any of the Specialized Agencies:
(a) of any signature of this Convention and the date thereof;
(b) of the deposit of any instrument of ratification or accession and the
date thereof;
(cl of the date on which this Convention comes into force in accordance
with Article 21, paragraph 1;
(à) of the receipt of any notification of denunciation and the date thereof;
and
(e) of the receipt of any declaration or notification made under Article
24 and the date thereof.
In witness whereof the undersigned Plenipotentiaries, having been duly
authorized, have signed this Convention.
Done at Tokyo on the fourteenth day of September One Thousand Nine
Hundred and Sixty-three in three authentic texts drawn up in the English,
French and Spanish languages.
This Convention shall be deposited with the International Civil Aviation
Organization with which, in accordance with Article 19, it shall remain open
for signature and the said Organization shall send certified copies therwf to
al1States Members of the United Nations or of any Specialized Agency. Annex R
CONVENTION FOR THE SUPPRESSION
OF UNLAWFUL SEIZURE OF AIRCRAFT
Preamhle
The States parties fo this Convention
Considering that unlawful acts of seizure or exercise of control of aircraft in
flightjeopardize the safety of persons and property, seriously affect the opera-
tion of air services, and undermine the confidence of the peoples of the world in
the safety of civil aviation;
con si der int^hat the occurrence of such acts is a matter of erave concern:
ons si de thatgfor the purpose of deterring such acts, there is an urgent
need to provide appropriate measures for punishment of offenders;
Have igreed asfoll&s:
Article 1
Any person who on board an aircraft in flight:
(a) unlawfully, by force or threat thereof, or hy any otherform of intimidation,
seizes, or exercises controlof, that aircraft, or attempts to perform any such
act, or
(b) is an accomplice of a person who performs or attempts to perform any
such act
commits an offence (hereinafter referred to as "the offence").
Article 2
Each Contracting State undertakes to make the offence punishable by severe
penalties.
Article 3
1. For the purposes of this Convention, an aircraft is considered to be in
flight at any time from the moment when al1 its extemal doors are closed
following embarkation until the moment when any such door is opened for
disemharkation. In the case of a forced landing, the flight shall be deemed to
continue until the competent authorities take over the responsihility for the
aircraft and for penons and property on board.
2. This Convention shall not apply to aircraft used in military, customs or
police services.
3. This Convention shall apply only if the place of take-off or the place of
actual landing of theaircraft on board which the offenceiscommitted issituated
outside the territory of the State of registration of that aircraft; it shall he im-
material whether the aircraft is engaged in an intemational or domestic flight.
4. In the cases mentioned in Article 5. this Convention shall not~DD~Y ifthe
place of take-off and the place of actual ianding of thiaircraft on boaidwhich
the offence is committed are situated within the territory of the same State
where that State is one of those referred to in that Article.
5. Notwithstanding paragraphs 3 and 4 of this Article, Articles 6, 7,8 and 10shall apply whatever the place of take-off or the place of actual landing of the
aircraft, if the offender or the alleged offender is found in the territory of a State
other than the State of registration of that aircraft.
Article4
1. Each Contracting State shall take such measuresas may be necessarv10
establish ils jurisdictiOn oier the offence and any oihcr act or violcncc against
pnssengeisor irew committed by thc alleged offender in conneciion with the
offence, in the following cases:
(a) when the offence is committed on board anaircraft registered inthat State;
.6). when the aircraft on board which the offence is committed lands in ils
territory with the alleged ofiender still on board;
(c) when the offence is committed on board an aircraft leasedwithout crew to
a lesseewho has his principal place of businessor, if the lesseehas no such
place of business,his permanent residencein that State.
2. Each Contracting State shall likewise take such.measures as may be
necessary to establish ils jurisdiction over the offence in the case where the
allcged onènder is prcscnt in ils territory andildoesnotextrïdite hini punuant
Io Article 8 to any of the Statcs mcntioned in pïrngrïph I of th~sArticle.
3. This Conventioii does not exclude anv criminal ~urisdistion cxercised in
accordance with national law.
Article 5
The Contracting Stateswhich establish joini air transport operïting organim-
lions or iniernûtionnl operating agencics, which operate aircraft which are
subiect to joint or international reaistration shall. bv a~uro~nate means,
designate for each aircraft the Siate a&ong them whjch shall >xercisethe juris-
diction and hï\e the;ittributcs of the Stateof rcgislration for the purposeof this
Convention and shîll give notice thereof to thc International Civil Avililion
Organization which shall communicate the notice 10 al1 States Parties to this
Convention.
Article 6
1. Upon king satisfied that the circumstances so warrant, any Contracting
State in the territorv of which the offender or the allezed offender is oresent.
shall iake him into Cusiody or take oiher measuresto ensure his presence.The
custoJy Andoiher measuresshall bcas ~rovided in the law of that State but niay
only becontinued for suchtirne asis neiessary toenableany criminal orextradi-
lion proceedings 10 be instituted.
2. Such State shall immediately make a preliminary enquiry intothe facls.
3. Any person in custody pursuant to paragraph 1 of this Article shall be
assistedin communicating immediately with the nearest appropriate represen-
tative of the State of which he is a national.
4. When a State, pursuant to this Article, has taken a person in10 custody,
it shall immediately notify the State of registration of the aircraft, the State
mentioned in Article 4, paragraph 1 (c), the State of nationality of the detained
person and, if it considers it advisable, any other interested States of the fact
that such person is in custody and of the circumstances which warrant his
detention. The State which makes the preliminary enquiry contemplated in
paragraph 2 of this Article shall promptly report ils findings 10the said States
and shall indicate whether it intends 10exercisejurisdiction. Article 7
The Contracting State in the territory of which the alleged offender is found
shall, if itoes not extradite him, beobliged, withnut exception whatsnever and
whether or not the offence was committed in its territory, to submit the case to
its competent authorities for the purpose of prosecution. Those authorities
shall take their decision in the same manner as in the case of any ordinary
offence of a serinus nature under the law of that State.
Article 8
1. The offence shall be deemed to be includedas anextraditableoffenceinany
extradition treaty existing between Contracting States. Contracting States
undertake to include the nffence as an extraditable offence in every extradition
treaty to be concluded between them.
2. If aContracting State which makes extradition conditional on theexistence
of a treaty receives a request for extradition frnm another Contracting State
with which it has no extradition treaty, it may at its option consider this Con-
vention as the legal basis for extradition in respect of the offence. Extradition
shall be subject to the other conditions provided by the law of the requested
State.
3. Contracting States which do not make extradition conditional 'on the
existence of a treaty shall recognize the offence as an extraditahle offence te-
tween themselves subject to the conditions provided hy the law of the requested
State.
4. The offence shall be treated, for the purpose of extradition between
Contracting States, as if it had been committed not only in the place in which it
occurred but alsn in the territories of the States required to estahlish their
jurisdiction in accordance with Article 4, paragraph 1.
Article 9
1. When anv o. ~ ~ ~ ~ ~ ~tio~ ~ ~n Article ~ ~~ ~. .J has occurred or isabout to
oxur, Contracting Sidie, shall iahc dl appropri.iie nieïsure.; to rc~torecontrol
uf the aircraft 811itr laiiful commanderor to prcscn.c hi>cunirol of the aircr~ft.
2. In the cases contemplated by the precëding paragraph, any Contracting
State in which the aircraft or its passengers or crew are present shall facilitate
the continuation of the joumey of the passengers and crew as soon as practi-
cable, and shall without delay retum the aircraft and its cargo to the persons
lawfully entitled to possession.
Article 10
1. Contracting States shall afford one another the greatest measure of
assistanc ie connection with criminal proceedings brought in respect of the
offence and other icts mentioned in Article 4. The law of the Siate requested
shall apply in al1cases.
2. The provisions of paragraph 1 of this Article shall not affectobligations
under any other treaty. bilateral or multilateral, which governs or will govern,
in whole or in part, mutual assistance in criminal matters.
Article 11
Cdch ConIracting Stdrc shall Inaccordincc wiili its n.ition~lIdwreport tu the
Council ofihc Iniern.iiion31Cii I Aviation Orc;iii.7;at.dn3spr~~~iiptlyisudisible
any 1-elevantinformation in ifs possession conceming:(a)the circumstances of the offence;
(b) the action taken pursuant to Article 9;
(cl the masures taken in relation to the offender or the alleged offender, and,
in particular, the results of any extradition proceedings or other legal
proceedings.
Article 12
1. Any dispuie between iuo or more Ci)ntraciing States conscrning the
interpretation or application of thisConi,cntion nhich cannot bescttled ihrough
neaotiation. shall.-& the reauest of one of thembe submitted to arbitration.lf
within six monthi from the date of the request for arbitration the Parties are
unahle to agree on the organization of the arbitration, any one of those Parties
may refer the dispute to the International Court of Justice by request in con-
formity with the Statute of the Court.
2. Each State may at the time of signature or ratification of this Convention
or accession thereto. declare that it does not consider itself bound bv the
preceding paragraph.'The othcr Contraciing Siaies shall not be bound by the
preccding paragraph wth respect to any Contraciing State hîving made such a
resewation.
3. Any Contraciing Siaie having made a rescwation in sccordance wiih the
preceding paragraph may at any lime nithdraw this resewation by notification
to the Depositary~~overnments.
Article 13
1. This Convention shall be open for signature at The Hague on 16Decem-
kr 1970, hy States participatiiig in thc International Conference on AI^Law
held at Thc Hague from 1ta 16Decemkr 1970(hereinsfter rcfcrred ta as The
Hague Conference). After 31 Decemkr 1970,the Convention sha11be open 10
al1States for signature in Moscow, London and Wshingion. Any State uhich
does not sign this Convention kfore its entry into force in accordance with
paragraph 3 of this Article may accede to it at any time.
2. This Convention shall be subject ta ratification hy the signatory States.
Instrumentsof ratification and instruments of accession shallbedeposited with
the Govemments of the Union of Soviet Socialist Republics, the United
Kingdom of Great Britain and Northem Ireland, and the United States of
Ametica, which are herehy designated the Depositary Govemments.
3. This Convention shall enter into force thirty days following the date of
the deposit of instruments of ratification by ten States signatory ta this Con-
vention which participated in The Hague Conference.
4. For other States, this Convention shall enter into force on the date of
entry into force of this Convention in accordance with paragraph 3 of this
Article, or thirty days following the date of deposit of their instmments of
ratification or accession, whichever is later.
5. The Depositary Governments shall promptly inform al1 signatory and
acceding States of the date of each signature, the date of deposit of each in-
strument of ratification or accession, the date of entry into force of this Con-
vention, and other notices.
6. As soon as this'convention comes into force, it shalbe registered by the
Depositary Govemments pursuant to Article 102of the Charter of the United
Nations and pursuant ta Article 83 of the Convention on International Civil
Aviation (Chicago, 1944). Article 14
1. Any Contracting State may denounce this Convention hy written notifica-
tion to the Depositary Govemments.
2. Denunciation shall take effect six months following the date on which
notification is receivedhy the Depositary Governments.
In ~irne.r.Hshrreu] the undcrsigncd Plenipotentiaries. king dul) authorised
thercto by lhcir Go\ernrnent\, have signrd ihis Convention.
Dune ït The Ilxgue, this sixtccnth dsy of Drcenikr, one thousand nine
hundred and seventy, in three originals, each being drawn up in four authentic
texts in the English, French, Russian and Spanish languages.
Memorial submitted by the Government of India