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Published online by Cambridge University Press: 09 March 2016
On August 18, 1972, the International Court of Justice delivered its Judgment in the Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) in which:
(a) By thirteen votes to three, it rejected Pakistan’s objections on the question of its competence, and found that it had jurisdiction to entertain India’s appeal from a series of decisions of the ICAO Council which had found that the Council had jurisdiction to entertain the application and complaint made before the Council by Pakistan on March 3, 1971, the details of the application and complaint being given below.
(b) By fourteen votes to two, it held the ICAO Council to be competent to entertain the above-mentioned application and complaint.
1 [1972] I.C.J. Rep. 46, 70.
2 Doc. 7300/4; 15 U.N.T.S. 395. The Chicago Convention contains the constitution of the International Civil Aviation Organization (ICAO), which has its headquarters in Montreal. A specialized agency of the United Nations, ICAO had, as at December 1, 1974, 129 member states. Unless otherwise indicated herein, all document numbers given in this paper refer to ICAO documents.
3 Doc. 7500; 84 U.N.T.S. 389. This is the so-called “Two Freedoms” Agreement. See note 10 infra.
4 A bibliography of the role of the ICAO Council in the settlement of differences includes the following items: Bhatti, D., Drion, H., and Heller, P., “Prohibited Areas in International Civil Aviation — The Indian-Pakistan Dispute,” [1953] U.S. & Can. Av. R. 109 Google Scholar; Buergenthal, , Thomas, Law-making in the International Civil Aviation Organization (Syracuse, 1969),Google Scholar Part III, “ICAO and the Settlement of International Civil Aviation Disputes,” 123–97; Cheng, , Bin, , The Law of International Air Transport (London and New York, 1962), 100–04Google Scholar; Domke, M., “International Civil Aviation Sets New Pattern,” (1945) 1 Arbitration Journal 20 Google Scholar; Hingorani, R.C., “Dispute Settlement in International Civil Aviation,” (1959) 14 Arbitration Journal 14 Google Scholar; Kos-Rabcewicz-Zubkowski,, L., “Le règlement des différends internationaux relatifs à la navigation aérienne civile,” (1948) 2 Revue française de droit aérien 340 Google Scholar; Mankiewicz, R., “Pouvoir judiciaire du Conseil et règlement pour la solution des différends,” (1957) 3 Annuaire français de droit international, 384–94Google Scholar; Morel-Fatio, L., “La juridiction internationale en droit aérien. International jurisdiction and air transport law,” in Union internationale des avocats. Les juridictions internationales/International courts (Paris 1959), 412–47Google Scholar; Münch, J.-B., “Le règlement des différends dans une organisation spécialisée des Nations Unies; l’Organisation de l’Aviation civile internationale,” Association suisse de droit aérien, Bulletin No. 48, 2–16 Google Scholar; Tymms, F., “Le différend Inde-Pakistan,” (1953) 16 Revue générale de l’air, 207–13Google Scholar; Whiteman, M.M., Digest of International Law, (Washington, 1968), Volume 9, 395–97.Google Scholar
5 Doc. 2187, pp. 24–38; 171 U.N.T.S. 345.
6 Doc. 2187, pp. 71–75; 171 U.N.T.S. 387. This is the so-called “Five Freedoms” Agreement. See note 9 infra.
7 Interim Agreement, note 5 supra, Article VI, first paragraph:
The Organization shall also carry out the functions placed upon it 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 therein set forth.
8 Doc. 2121 C/228 24/9/46.
9 The Five Freedoms are thus described in Article 1, Section 1, of the Transport Agreement:
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 fly across its territory without landing;
(2) The privilege to land for non-traffic purposes;
(3) The privilege to put down passengers, mail and cargo taken on in the territory of the State whose nationality the aircraft possesses;
(4) The privilege to take on passengers, mail and cargo destined for the territory of the State whose nationality the aircraft possesses;
(5) The privilege to take on passengers, mail and cargo destined for the territory of any other contracting State and the privilege to put down passengers, mail and cargo coming from any such territory.
10 The Transit Agreement (Article 1, Section 1) provides for freedoms (1) and (2) listed in note g above.
11 For information concerning this disagreement, see Doc. 7367 A7-P/1, Report of the Council to the Assembly for 1953, 74–76; (1952) 7 ICAO Bulletin, No. 7, pp. 14–15; No. 9, p. 4; No. 10, p. 4; (1953) 8 ICAO Bulletin, No. 1, pp. 3–4, 26; Buergenthal, Thomas, op. cit., note 4 supra, 123–97; Cheng, Bin, op. cit., note 4 supra, 101–03; Whiteman, M. M., op. cit., note 4 supra, 395–97. The Council has in the past entertained only two disputes under Chapter XVIII of the Chicago Convention: (1) The above-mentioned dispute, India v. Pakistan (1952–53), concerning a prohibited area established by Pakistan in a region lying along the Afghanistan border. As indicated above, this dispute was settled by negotiation between the parties. (2) United Kingdom v. Spain (1967–1969), concerning a prohibited area in the vicinity of Gibraltar. On November 28, 1969, consideration of the matter by the Council was deferred sine die at the request of the parties. (Doc. 8903-C/994 Action of the Council, 68th Session (1969), 27.)
12 Doc. 7782. For an indication of some of the basic philosophy behind the 1957 Rules, see Doc. GE RSD No. 3 6/5/55 a working paper prepared for the Group of Experts which met at the Hague in 1955 to prepare the draft “Rules for the Settlement of Differences.”
13 Article 6(2) of the “Rules for the Settlement of Differences.”
14 The text of Article 84 is given earlier in this paper.
15 Sections 1 and 2 of Article II of the Transit Agreement read as follows:
Section 1
A contracting State which deems that action by another contracting State 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 call the States concerned into consultation. Should such consultation fail to resolve the difficulty, 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 to take suitable corrective action, the Council may recommend to the Assembly of the above-mentioned Organization that such contracting State be suspended from its rights and privileges under this Agreement until such action has been taken. The Assembly by 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 XVIII of the above-mentioned Convention [on International Civil Aviation] shall be applicable in the same manner as provided therein with reference to any disagreement relating to the interpretation or application of the above-mentioned Convention.
16 The provisions of Article IV, Sections 2 and 3, of the Transport Agreement are the same as the provisions of Article II, Sections 1 and 2, of the Transit Agreement.
17 For a full discussion of this point, see Doc. GE RSD WD/3 9/5/55.
18 GE Report RSD WD No. 9 30/1/56. Group of Experts on the Rules for the Settlement of Differences. Report of the Group.
19 Keesing’s Contemporary Archives, April 24-May 1, 1971, pp. 24561–62, contains a very full factual description of the events between the date of the hijacking, January 30, 1971, and March 15, 1971. For a report of the Pakistani inquiry into the hijacking incident, see Keesing’s Contemporary Archives, August 7–14, 1971, p. 24755. See also India’s Application Instituting Proceedings, in I.C.J. Pleadings, Appeal Relating to the Jurisdiction of the ICAO Council, Sales Number 391 (hereinafter referred to as “I.C.J. Pleadings (ICAO Council’s Jurisdiction”), 6–7; Agrawala, S.K., Aircraft Hijacking and International Law (Dobbs Ferry, N.Y., 1973).Google Scholar Chapter 10 of this latter book contains a description of the incident of January 30, 1971, as well as a discussion of the legal issues arising therefrom.
20 Doc. 7782.
21 Doc. 8985-C/1002, Action of the Council, 72nd Session (1971), 47–51.
22 Doc. 7782, “Rules for the Settlement of Differences” (April 9, 1957), Parts II and III.
23 See Article 1(2) of the “Rules for the Settlement of Differences”.
24 Doc. 8918 A18-P/3 Annual Report of the Council to the Assembly for 1971, p. 84.
25 Doc. 8985-C/1002 Action of the Council, 72nd Session (1971), 47. In this regard, it is observed that Article 52 of the Chicago Convention provides that: “Decisions by the Council shall require approval by a majority of its members.”
26 Doc. 7559/4. Revised.
27 See Preliminary Objections of India as reproduced in I.C.J. Pleadings (ICAO Council’s Jurisdiction), 98–122.
28 See Reply of Pakistan as reproduced in op. cit., note 27 supra, 183–27.
29 See, in this regard, Briggs, , Herbert, W., “Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice,” 68 Am. J. Infi L. 51, 57–61 (1974)CrossRefGoogle Scholar where the I.C.J. Judgment in respect of the jurisdiction of the ICAO Council is examined.
30 Doc. 8987-C/1004 Action of the Council, 74th Session (1971), 42–46.
31 I.C.J. Pleadings (ICAO Council’s Jurisdiction), 3–21.
32 C-WP/5465) 21/10/71. Voting in the Council on Disagreements and Complaints Brought under the Rules for the Settlement of Differences.
33 Article 53 provides that no member of the Council shall vote in the consideration by the Council of a dispute to which it is a party. Article 62 provides for the suspension of voting power of a contracting state in the Council for failure to discharge within a reasonable period its financial obligations to ICAO. Article 66(b) provides that a member of the Council who has not accepted the Transit Agreement or Transport Agreement shall not have the right to vote on any questions referred to the Council under the provisions of the relevant agreement. Article 84 provides that no member of the Council shall vote in the consideration by the Council of any dispute to which it is a party.
34 In 1973, the Council’s membership rose to thirty. In October 1974, the Assembly adopted an amendment (not yet in force) to increase the membership to thirty-three. (Resolution A21–2).
35 Doc. 8987-C/1004 Action of the Council, 74th Session (1971), 46.
36 C-WP/5433, 9/9/71. Notes on Article 86 of the Chicago Convention Relating to Appeals from Decisions of the Council.
37 Doc. 8987-C/1004 Action of the Council, 74th Session (1971), 45–46.
38 Doc. 8987-C/1004 Action of the Council, 74th Session (1971), 42–46. The minutes of the five meetings are reproduced in I.C.J. Pleadings (ICAO Council’s Jurisdiction), 138–293.
39 Ibid.
40 The following summary is based on that found in Doc. 8987–0/1004 Action of the Council, 74th Session (1971), 42–46. The full details of the discussions are found in the I.C.J. Pleadings (ICAO Council’s Jurisdiction) 138 –293.
41 For the full discussion on this point, see part of the minutes of the 6th Meeting of the 74th Session of the Council in I.C.J. Pleadings (ICAO Council’s Jurisdiction), 279–82.
41a Section 66(b) of the Chicago Convention.
42 Doc. 8987-C/1004 Action of the Council, 74th Session (1971), 45.
43 Under Article 31 of the Statute of the I.C.J.
44 I.C.J. Pleadings (ICAO Council’s Jurisdiction), 234–93; Doc. 8987-C/1004 Action of the Council, 74th Session (1971), 42–46.
45 For example, Air Vice-Marshal Russell (United Kingdom) and Mr. Svoboda (Czechoslovak Socialist Republic) led off a lengthy debate on this point. I.C.J. Pleadings (ICAO Council’s Jurisdiction), 258. The Canadian position was that Canada was prepared to proceed to an immediate decision “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 treatment of both parties.” (Ibid., 272).
46 Ibid., 270.
47 Ibid.
48 I.C.J. Pleadings (ICAO Council’s Jurisdiction), 256–93.
49 See Dillard, , Judge, Hardy C, “The World Court — An Inside View” (1973) 67 Proc. Am. Soc. Int’l L. 296, 301–04.CrossRefGoogle Scholar
50 Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, [1973] I.C.J. Rep. 99; Nuclear Tests (Australia v. France), Application to Intervene, Order of 12 July 1973, [1973] I.C.J. Rep. 320.
51 Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, [1973] I.C.J. Rep. 135; Nuclear Tests (New Zealand v. France), Application to Intervene, Order of 12 July 1973, [1973] I.C.J. Rep. 324.
52 U.N. Monthly Chronicle, Vol. IX, No. 4, April 1974, p. 25.
53 [1972] I.C.J. Rep. 49.
54 Ibid., at 50.
55 See Note 10 supra.
56 I.C.J. Communiqué No. 72/17, August 18, 1972; [1972] I.C.J. Rep. 46.
57 [1972] I.C.J. Rep. 52 (para. 13).
58 Ibid., 52–53 (para. 14).
59 Ibid., 53 (para. 15).
60 Ibid., 53–54 (para. 18).
61 The texts are reproduced above.
62 Ibid., 55–57 (para. 18).
63 Reproduced above.
64 [1972] I.CJ. Rep. 57–60 (paras. 19–24).
65 As pointed out by Judge Dillard in an address to the American Society of International Law in 1973, “the Court, except to a very limited extent (as in the ICAO case ), is not an appellate court but both a court of first instance and a final court.” (Dillard, Judge Hardy C., op. cit., note 49 supra, at 303.)
66 [1972] I.C.J. Rep. 60–61 (para. 26).
67 Ibid., 61 (para. 27).
68 Ibid., 61–62 (para. 28).
69 Ibid., 62 (para. 29).
70 Ibid., 62–64 (para. 30).
71 Ibid., 64 (para. 31).
72 Ibid., 65 (para. 33).
73 Ibid., 65–66 (para. 34).
74 Ibid., 66 (para. 35).
75 Ibid.
76 Ibid., 66 (para. 36).
77 Ibid., 66–67 (para. 37).
78 Ibid., 67 (para. 38).
79 Ibid., 67–68 (para. 39).
80 Ibid., 68–69 (paras. 40–43).
81 Ibid., 69–70 (paras. 44–45). The Court brushed aside the Indian arguments about procedural irregularities and it is a pity that it did not consider this matter in detail. See, in this regard, the discussion earlier in this paper under the heading “Certain aspects of the decision-making procedure followed by the Council on July 28–29, 1971.” Indeed, Judge Lachs, in a declaration appended to the Judgment of the Court regretted that the Court had not gone into the matter of India’s objections. He stated, inter alia, that “the contracting States have the right to expect that the Council will faithfully follow these rules [Rules for the Settlement of Differences], performing as it does, in such situations, quasi-judicial functions, for they are an integral part of its jurisdiction.” ([1972] I.C.J. Rep. 74–75). He noted the need of the Council, in view of its composition, for “guidance” and that “it is surely this Court which may give it.” (Ibid.) Judge Petrén, in his separate opinion, noted, in particular, in referring to the Council’s decision of July 29, 1971: “It is a striking fact that the decision is devoid of all statement of grounds and consists solely in a declaration to the effect that the Council did not accept the objection.” (Ibid., 84).
82 Ibid., 79.
83 Ibid., 81. Also, the President of the Court, Sir Muhammad Zafrulla Khan, while not agreeing that the Court was competent to entertain the appeal, considered his dissent on the question of the admissibility of India’s appeal to be academic in view of the Court’s finding that the ICAO Council had jurisdicton to entertain Pakistan’s application and complaint, a finding with which he was in entire agreement.
84 Ibid., 84.
85 Ibid., 86.
86 Ibid., 86–87.
87 See Briggs, op. cit., note 29 supra.
88 See note 81 supra.
89 Ibid.
90 See note 34 supra.
