ASIL Insights

World Court Rejects Jurisdiction in 1999 Aerial Incident Case brought by Pakistan against India
By Peter H.F. Bekker, Ph.D.
June 2000

On June 21, 2000, the International Court of Justice (ICJ) ruled (14-2) that it lacks jurisdiction to adjudicate the dispute brought by Pakistan against India in September 1999. The Court, which is the principal judicial organ of the United Nations entrusted with settling legal disputes between sovereign States, consists of 15 judges elected to nine-year terms by the UN General Assembly and Security Council, together with two judges ad hoc appointed especially for the case by Pakistan and India. The ICJ has its seat at the Peace Palace in The Hague, the Netherlands.

Pakistan's Application of September 21, 1999, requested the Court to declare that India is responsible under international law for the shooting down, on August 10, 1999, of an unarmed aircraft of the Pakistani navy allegedly by Indian air force planes. The aerial incident resulted in the death of all 16 personnel on board who allegedly were on a routine training mission over Pakistani territory. Pakistan also maintained that Indian air force helicopters violated its territorial integrity by visiting the aircraft's crash site inside Pakistan territory, in an attempt to pick up items from the debris immediately after the incident. In Pakistan's view, the actions of the Indian air force violated its sovereignty and breached India's obligation to refrain from the threat or use of force under Article 2, paragraph 4 of the UN Charter, other treaties and customary international law. Pakistan also claimed that India's actions constituted breaches of the 1991 Agreement on Prevention of Air Space Violations between both countries for which India must bear international responsibility. Article 1 of the 1991 Agreement obligates both countries to ensure that violations of each other's air space do not take place and provides that if any violation occurs inadvertently, the incident is to be investigated promptly and the other side informed of the results without delay. Pakistan asked the Court to hold that India is obligated to make reparations to it for the loss of the navy aircraft and to the heirs of the Pakistani servicemen. 

First, Pakistan relied on Article 17 of the 1928 General Act for Pacific Settlement of Disputes as providing jurisdiction to the ICJ as successor to the Permanent Court of International Justice (PCIJ), which functioned between 1922 and 1945. Article 17 provides that all disputes with regard to which the parties to the General Act are in conflict as to their respective rights are to be submitted for decision to the PCIJ (currently the ICJ, as Article 37 of the ICJ Statute provides). In Pakistan's view, the General Act survived the demise of the League of Nations and is a treaty that is still in force, having devolved upon India at the time of its independence in 1947. However, India referred to a communication of September 18, 1974, addressed to the UN Secretary-General stating that India "never regarded [itself] as bound by the General Act of 1928 since [its] Independence in 1947, whether by succession or otherwise." Based on this statement, which in any event was found to have served as a notification of denunciation, the Court concluded that India cannot be regarded as having been a party to the General Act at the date of filing of Pakistan's Application, so that the General Act does not form a basis of jurisdiction.

As an additional basis of the Court's jurisdiction, Pakistan relied on the declarations made by the two States accepting the Court's compulsory jurisdiction under Article 36(2) of the ICJ Statute. That provision, known as the "Optional Clause," provides that States Parties to the ICJ Statute (currently all the 188 UN Member States and Switzerland) may at any time file with the UN Secretary-General declarations stating that they recognize as compulsory, without special agreement, in relation to any other State accepting the same obligation, the Court's jurisdiction over all legal disputes concerning the interpretation of a treaty, any question of international law, the existence of any fact which, if established, would constitute a breach of an international obligation, or the nature or extent of the reparation to be made for the breach of an international obligation. India challenged the Court's jurisdiction, invoking a reservation contained in its declaration of September 18, 1974, which excludes from jurisdiction "disputes with the government of any State which is or has been a Member of the Commonwealth of Nations." Pakistan argued that India's Commonwealth reservation lay outside the range of reservations permitted by the Court's Statute and that it is in any event obsolete and lacks any contemporary justification because members of the Commonwealth are no longer united by a common allegiance to the British Crown and the modes of dispute settlement originally contemplated never materialized. Rejecting Pakistan's arguments, the Court pointed out that, whatever may have been the reasons causing India to limit the scope of its acceptance of the Court's compulsory jurisdiction in the way it did, it must abide by this limitation expressing the intention of India as the declarant State. Given that Pakistan and India are both members of the Commonwealth of Nations, the Optional Clause provides no basis of jurisdiction in this case.

Finally, Pakistan invoked Article 36, paragraph 1 of the ICJ Statute as a basis of jurisdiction. According to this provision, the Court's jurisdiction comprises all matters specially provided for in the UN Charter or in treaties and conventions in force. However, the Court concluded that the Charter and a bilateral treaty relied on by Pakistan do not contain any specific provision of itself conferring compulsory jurisdiction on the Court.

Notwithstanding its rejection of jurisdiction, the Court reminded both parties that the international obligations which they have undertaken still require that they seek a peaceful settlement of their disputes in good faith, including in particular the dispute arising out of the aerial incident of August 10, 1999.

This is the second time since the judgment in Aegean Sea Continental Shelf (Greece v. Turkey) rendered in 1978 that the Court has found, at a preliminary stage, that it is without jurisdiction to entertain an application. On December 4, 1998, the Court dismissed a case brought by Spain against Canada involving a fisheries jurisdiction dispute in the initial phase of the proceedings.

India and Pakistan also were involved in litigation before the Court in the 1970s, namely in Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) and Trial of Pakistani Prisoners of War (Pakistan v. India).

The text of the decision is available from the Court's web site: http://www.icj-cij.org.