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I. Recent Cases

Published online by Cambridge University Press:  17 January 2008

Malcolm D. Evans and
J. G. Merrills
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Extract

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On 21 September 1999 Pakistan filed an application instituting proceedings against India in respect of a dispute relating to the destruction in the previous month of a Pakistani military aircraft. According to Pakistan the aircraft, which was unarmed, was shot down by Indian fighter aircraft while in Pakistan air space and without warning. The 16 people aboard the aircraft, who were mostly naval trainees, were all killed. India denied all responsibility for the incident and rejected Pakistan's suggestion that a United Nations fact-finding mission should be sent to the area. Having unsuccessfully demanded some 60 million dollars compensation for India's allegedly illegal action, Pakistan then referred the matter to the Court.2

Information

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 50 , Issue 3 , July 2001, pp. 657 - 662
Copyright
Copyright © British Institute of International and Comparative Law 2001

Footnotes

*

The aim of this annual section is to provide a guide to the current work of the ICJ by summarising the essential aspects of recent cases and highlighting points of particular significance.

References

1. Case concerning the Aerial Incident of 10 August 1999 (Pakistan v. India), Jurisdiction of the Court, Judgment of 21 June 2000,1.C. J. Rep. 2000. All references are to the version of the text provided by the Registry of the Court and available on the Court's website.

2. For an account of the background and rival claims see the dissenting opinion of Judge Pirzada, paras 1 and 2, quoting Pakistan's counter-memorial.

3. Pakistan also put forward a subsidiary argument based on Art. 36(1) of the Statute which was rejected in paras 47 to 50 of the Judgment.

4. In particular, Pakistan's declaration includes the multilateral treaties reservation in the formulation which requires all parties to the treaty “affected by the decision” to be parties to the case. As noted in the text, India's reservation, which it relied on in the present case, uses a wider formulation.

5. Art.36(3) of the Statute permits declarations to be made “unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time”. On the reasons for this formulation see Merrills, J.G., “The Optional Clause Revisited” (1993) 64 B.Y.B.I.L. 197 at pp.200–201.Google Scholar

6. In this connection the Court also rejected Pakistan's argument that India's reservation was an abuse of right because its only purpose was to prevent Pakistan from bringing an action against India. See para. 40 of the Judgment.

7. In 1992 these considerations led Judge Ago to suggest that the Commonwealth reservation was obsolete. See Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objection, Judgment, I.C.J. Rep. 1992, 240 at p.327, para. 5, separate opinion of Judge Ago.

8. See Merrills, op. cit. supra n.5 at pp.221–222.

9. See Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C. J. Rep. 1998 at p.454, para. 49.

10. For discussion of the earlier cases see Merrills, J. G., “The International Court of Justice and the General Act of 1928” (1980) 39 C.L.J. 137.CrossRefGoogle Scholar

11. See para. 54 of the Judgment.

12. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.A.), Merits, Judgment, I.C.J. Rep. 1986,14. For discussion of this point see Merrills, op. cit. supra n.5 at pp.230–232.

13. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) Preliminary Objections, Judgment, I.C.J. Rep. 1998, 275. For comment see the author's case-note in (1999) 48 I.C.L.Q. 651.Google Scholar

14. See n.9 supra. For comment see the case-note by De La Fayette, L. in (1999) 48 I.C.L.Q. 664.Google Scholar