Appeal relating to the jurisdiction of the Council of the International Civil Aviation Organisation ICAO Case

Pakistan complained to the ICAO of breaches of the Chicago Convention on Civil Aviation 1944, and bilateral Air Transit Agreement that India did. India objected the ICAO Council to hear the complaint but the council rejected the objection. India asked the ICJ to declare that this rejection was wrong, relying on the jurisdictional clauses in the same treaties to establish jurisdiction. Pakistan argued that in relying before the court on the clauses India must be admitting that the treaties remained in existence.

A party must be free to invoke jurisdictional clauses without prejudicing its arguments on the merits. Autonomy of the arbitration clause ‘If a mere allegation, as yet unestablished, that a treaty was no longer operative could be used to defeat its jurisdictional clauses, all such clauses would become potentially a dead letter, even in cases like the present, where the one of the very questions at issue on the merits, and as yet undecided, is whether or nor the treaty is operative – i.e., whether it has been validly terminated or suspended’