US embassy cable - 00THEHAGUE1887

UNCLAS SECTION 01 OF 02 THE HAGUE 001887 
 
SIPDIS 
 
 
DEPARTMENT FOR L/UNA - MATHIAS, L/NEA - BOREK, SA 
 
 
E.O. 12958: N/A 
TAGS: PREL, IN, PK, ICJ 
SUBJECT: ICJ FINDS NO JURISDICTION OVER PAKISTAN-INDIA 
AIRCRAFT SHOOTDOWN CASE 
 
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SUMMARY 
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1.  IN A JUDGMENT ISSUED ON JUNE 21, THE INTERNATIONAL COURT 
OF JUSTICE (ICJ) DECIDED THAT THE COURT LACKED JURISDICTION 
OVER A CLAIM BROUGHT BY PAKISTAN AGAINST INDIA ARISING OUT OF 
THE ALLEGED DOWNING BY INDIAN FORCES OF A PAKISTANI AIRCRAFT 
TRAVELING IN PAKISTANI AIRSPACE.  BY A VOTE OF 14 TO 2, THE 
ICJ DISMISSED PAKISTAN'S CLAIM.  THE COURT NEVERTHELESS 
EXHORTED THE PARTIES TO RESOLVE THEIR DISPUTE BY PEACEFUL 
MEANS IN ACCORDANCE WITH INTERNATIONAL LAW. 
 
 
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BACKGROUND 
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2.  ON JUNE 21, THE ICJ ISSUED ITS JUDGMENT ON THE 
PRELIMINARY OBJECTIONS LODGED BY INDIA IN A CASE BROUGHT BY 
PAKISTAN ON 21 SEPTEMBER 1999.  IN ITS APPLICATION, PAKISTAN 
ALLEGED THAT AN UNARMED PAKISTANI NAVY AIRCRAFT, THE 
"ATLANTIQUE," WHILE ENGAGED IN A ROUTINE TRAINING MISSION IN 
PAKISTANI AIR SPACE, WAS SHOT DOWN BY INDIAN AIR FORCE 
PLANES.  PAKISTAN ALSO ALLEGED THAT AFTER THE PLANE WAS SHOT 
DOWN, INDIAN HELICOPTERS ENTERED PAKISTANI TERRITORY TO 
COLLECT DEBRIS FROM THE WRECKAGE OF THE PLANE TO SUPPORT 
INDIA'S POSITION THAT THE PLANE HAD BEEN SHOT DOWN OVER 
INDIAN AIR SPACE.  PAKISTAN ALLEGED THAT THE DOWNING OF THE 
"ATLANTIQUE" VIOLATED THE U.N. CHARTER'S PROHIBITION ON THE 
USE OF FORCE, A BILATERAL AGREEMENT ON THE PREVENTION OF AIR 
SPACE VIOLATIONS, AS WELL AS CUSTOMARY INTERNATIONAL LAW 
NORMS NOT TO USE FORCE AGAINST OTHER STATES AND NOT TO 
VIOLATE THE SOVEREIGNTY OF OTHER STATES. 
 
 
3.  ON 2 NOVEMBER 1999, INDIA FILED PRELIMINARY OBJECTIONS TO 
PAKISTAN'S APPLICATION, AND ARGUED IN PARTICULAR THAT THE ICJ 
LACKED JURISDICTION OVER PAKISTAN'S CLAIM.  AFTER MEMORIALS 
WERE FILED ON THE JURISDICTIONAL ISSUE, THE COURT ON APRIL 
3-6 HELD A HEARING. 
 
 
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JURISDICTIONAL GROUNDS 
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4.  PAKISTAN SOUGHT TO BASE THE ICJ'S JURISDICTION ON THREE 
SEPARATE GROUNDS:  (1) THE DISPUTE RESOLUTION PROVISION OF 
THE GENERAL ACT FOR PACIFIC SETTLEMENT OF INTERNATIONAL 
DISPUTES, SIGNED AT GENEVA ON 26 SEPTEMBER 1928 ("THE 1928 
GENERAL ACT"); (2) THE "OPTIONAL CLAUSE" DECLARATIONS OF 
INDIA AND PAKISTAN UNDER ARTICLE 36(2) OF THE STATUTE OF THE 
ICJ; AND (3 ARTICLE 36(1) OF THE STATUTE OF THE ICJ. 
 
 
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THE 1928 GENERAL ACT 
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5.  ARTICLE 17 OF THE 1928 GENERAL ACT, TO WHICH BRITISH 
INDIA ACCEDED IN 1931, PROVIDED FOR THE REFERRAL TO THE 
PERMANENT COURT OF INTERNATIONAL JUSTICE, THE ICJ'S 
PREDECESSOR, OF INTERNATIONAL DISPUTES BETWEEN PARTIES OT THE 
ACT.  THE PARTIES ADVANCED A VARIETY OF ARGUMENTS ABOUT 
WHETHER THE 1928 GENERAL ACT REMAINS IN EFFECT, AND WHETHER 
IT CONSTITUTES A TREATY UPON WHICH THE ICJ'S JURISDICTION MAY 
BE BASED.  THE ICJ DID NOT ADDRESS THESE GENERAL QUESTIONS, 
BUT RATHER NOTED THAT INDIA, IN A 1974 COMMUNICATION TO THE 
U.N. SECRETARY-GENERAL, ANNOUNCED THAT IT "NEVER REGARDED 
(ITSELF) AS BOUND BY THE (GENERAL ACT) SINCE HER INDEPENDENCE 
IN 1947, WHETHER BY SUCCESSION OR OTHERWISE.  ACCORDINGLY, 
INDIA NEVER HAS BEEN AND IS NOT A PARTY TO THE GENERAL ACT 
EVER SINCE HER INDEPENDENCE." 
 
 
6.  THE ICJ RULED THAT EVEN IF INDIA COULD NOT CLAIM THAT IT 
WAS NEVER SINCE INDEPENDENCE A PARTY TO THE 1928 GENERAL ACT, 
THE 1974 COMMUNICATION EFFECTIVELY CONSTITUTED A DENUNCIATION 
UNDER ARTICLE 45 OF THAT ACT.  AS SUCH, THE LATEST INDIA 
COULD BE DEEMED TO BE A PARTY TO THE GENERAL ACT WAS AUGUST 
1979, THE DATE ON WHICH SUCH A DENUNCIATION WOULD TAKE 
EFFECT.  THE COURT ACCORDINGLY CONCLUDED THAT THE 1928 
GENERAL ACT COULD NOT SERVE AS A BASIS FOR THE ICJ TO 
EXERCISE JURISDICTION OVER PAKISTAN'S CLAIM AGAINST INDIA. 
 
 
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ARTICLE 36(2) OPTIONAL CLAUSE DECLARATIONS 
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7.  PAKISTAN ALSO SOUGHT TO BASE THE COURT'S JURISDICTION 
UNDER ARTICLE 36(2) OF THE ICJ STATUTE, THE SO-CALLED 
"OPTIONAL CLAUSE," UNDER WHICH STATES MAY FILE DECLARATIONS 
CONSENTING TO THE COURT'S JURISDICTION OVER DISPUTES WITH ANY 
OTHER COUNTRIES THAT HAVE SIMILARLY FILED OPTIONAL CLAUSE 
DECLARATIONS.  INDIA OBJECTED, ON THE GROUNDS THAT IT MADE 
ITS OPTIONAL CLAUSE DECLARATION SUBJECT TO A NUMBER OF 
RESERVATIONS PRECLUDING JURISDICTION IN CERTAIN CASES, 
INCLUDING DISPUTES CONCERNING MULTILATERAL TREATIES (UNLESS 
ALL PARTIES TO THE TREATY ARE ALSO PARTY TO THE ICJ CASE) AS 
WELL AS DISPUTES WITH COUNTRIES WHICH ARE OR HAVE BEEN 
MEMBERS OF THE "COMMONWEALTH OF NATIONS." 
 
 
8.  THE ICJ DID NOT RULE ON THE MULTILATERAL TREATY 
RESERVATION, BUT HELD THAT PAKISTAN'S CLAIM WAS BARRED BY 
INDIA'S "COMMONWEALTH NATIONS" RESERVATION.  THE COURT 
REJECTED PAKISTAN'S CLAIM THAT PAKISTAN'S NONACCEPTANCE OF 
THE RESERVATION MADE IT "INOPPOSABLE" TO PAKISTAN.  IT ALSO 
REJECTED PAKISTAN'S SUGGESTION THAT THE "COMMONWEALTH 
NATIONS" RESERVATION WAS OBSOLETE BECAUSE MEMBERS OF THE 
COMMONWEALTH WERE NO LONGER UNITED BY A COMMON ALLEGIANCE TO 
THE CROWN.  THE COURT REAFFIRMED THE RIGHT OF STATES TO 
CONDITION THEIR CONSENT TO THE ICJ'S JURISDICTION, AND 
CONCLUDED THAT ALTHOUGH THE HISTORICAL REASONS FOR INDIA'S 
"COMMONWEALTH NATIONS" RESERVATION MAY HAVE CHANGED, THIS DID 
NOT PREVAIL OVER THE INTENTION OF THE DECLARANT STATE AS 
EXPRESSED IN THE RESERVATION ITSELF. 
 
 
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ARTICLE 36(1) OF THE ICJ STATUTE 
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9.  PAKISTAN ALSO ARGUED THAT THE ICJ HAD JURISDICTION OVER 
THE CASE UNDER ARTICLE 36(1) OF THE ICJ STATUTE, WHICH 
PROVIDES THAT THE JURISDICTION OF THE ICJ COMPRISES, AMONG 
OTHER THINGS, "ALL MATTERS SPECIALLY PROVIDED FOR IN THE 
CHARTER OF THE UNITED NATIONS."  THE COURT REJECTED 
PAKISTAN'S CLAIM THAT ARTICLES 1(1), 2(3), 2(4), 33, 36(3), 
AND 92 OF THE U.N. CHARTER CONSTITUTED SPECIFIC PROVISIONS 
CONFERRING COMPULSORY JURISDICTION ON THE ICJ. 
 
 
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OBLIGATION TO SETTLE DISPUTES BY PEACEFUL MEANS 
--------------------------------------------- -- 
 
 
10.  ALTHOUGH THE ICJ FOUND THAT IT HAD NO JURISDICTION OVER 
THE APPLICATION BROUGHT BY PAKISTAN AGAINST INDIA, IT NOTED 
THAT THE COURT'S LACK OF JURISDICTION DOES NOT RELIEVE THE 
PARTIES OF EITHER THEIR OBLIGATIONS TO COMPLY WITH 
INTERNATIONAL LAW OR THEIR LEGAL OBLIGATION TO SETTLE THEIR 
DISPUTE BY PEACEFUL MEANS. 
 
 
 
 
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DISMISSAL BY 14 VOTES TO 2 
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11.  THE COURT CONCLUDED BY A VOTE OF 14 TO 2 THAT IT HAD NO 
JURISDICTION OVER PAKISTAN'S APPLICATION AGAINST INDIA. ONLY 
JUDGE AL-KHASAWNEH, THE RECENTLY-ELECTED JORDANIAN JUDGE, AND 
JUDGE PIRZADA, THE AD HOC JUDGE APPOINTED FOR PURPOSES OF 
THIS CASE BY PAKISTAN, VOTED AGAINST THE DISMISSAL. 
 
 
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COMMENT 
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12.  BECAUSE THE COURT'S DECISION IN THE PAKISTAN-INDIA CASES 
TURNS ON THE SPECIFIC LANGUAGE OF PARTICULAR DECLARATIONS 
LODGED BY INDIA, IT IS UNLIKELY TO HAVE BROAD LEGAL 
CONSEQUENCES BEARING ON OTHER DISPUTES.  THE COURT DID RESIST 
THE TEMPTATION, HOWEVER, TO TAKE AN EXPANSIVE VIEW OF ITS OWN 
JURISDICTION THAT WOULD UNDERMINE THE ABILITY OF STATES 
CAREFULLY TO LIMIT THEIR WILLINGNESS TO CONSENT TO THE 
COURT'S JURISDICTION. 
 
 
13.  THE TEXT OF THE ICJ'S JUDGMENT AND THE OPINIONS OF 
JUDGES WHO WROTE SEPARATELY OR DISSENTED, AS WELL AS A PRESS 
RELEASE AND LONGER SUMMARY OF THE JUDGMENT, MAY BE FOUND AT 
THE ICJ'S WEBSITE: WWW.ICJ-CIJ.ORG. 
SCHNEIDER