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Lack of jurisdiction does not mean dispute was not justiciable; Joins call to Parties to settle disputes through peaceful means: Judge Al-Khasawneh

THE HAGUE, June 23 (APP)- Reiterating that lack of jurisdiction did not in itself mean that the dispute was not justiciable, a Judge of the International Court of Justice (ICJ) Al-Khasawneh, in his dissenting note Wednesday joined the call made by the Court on India and Pakistan "to settle this and other disputes, through peaceful means." He felt that such a call was "urgent" in view of the "possibility of dangerous escalation, and pertinent in view of the rejection by India of any other modes of peaceful settlement before the case was brought to the Court." Syed Sharifuddin Pirzada was the other Judge giving dissenting opinion, in the Wednesday's ICJ ruling in the aerial incident of August 10, 1999, in which 16 persons were killed in the air-to-air Indian missile attack on unarmed Naval reconnaisance aircraft 'Atlantique'. The ICJ through 14-2 split decision ruled that the Court lacked jurisdiction. Judge Pirzada, for the reasons set out in his dissenting note, concluded that the Court ought to have rejected India's preliminary objections to the jurisdiction of the Court and ought to have entertained Pakistan's Application. He emphasized that the Parties are under an obligation to settle in good faith all their disputes, including the dispute regarding the State of Jammu and Kashmir and in particular the dispute arising out of the aerial incident of Aug. 10, 1999. "Let India and Pakistan keep in view the ideals of Quaid-e-Azam Mohammad Ali Jinnah and Mahatma Gandhi and take effective measures to secure peace, security and justice in South Asia," he maintained. Pirzada stated that in view of the consensual nature of its jurisdiction, "the Court generally shows judicial caution and restraint." However, in due course of time, he stated, "principles of constructive creativity and progressive realism could be evolved by the Court." Judge Pirzada considered that in view of the allegations by Pakistan that India, by its incursion into Pakistan's airspace and by shooting down the Pakistan naval aircraft 'Atlantique' in which 16 persons were killed, "committed breaches of obligations of customary international law-- (i) not to use force against another State, (ii) not to violate the sovereignty of another State." Therefore, he noted, "the International Court has jurisdiction regarding the claim of Pakistan." In this behalf, he cited and relied upon the findings of the Court in the Nicaragua case (1984). He also referred to the separate and dissenting opinions of Judge Weeramantry, Judge Vereshchetin and Judge Bedjaoui in the Fisheries Jurisdiction case (1998). He observed that the Court's task is to ensure respect for international law. It is its principal guardian (Judge Lachs in his separate opinion in the Lockerbie case in 1992). Regarding India's Commonwealth reservation, Pirzada said, "it is obsolete, having regard to the view of Judge Ago in the Nauru Case, since the expectation of the Commonwealth Court could not be fulfilled." "The Indian Commonwealth reservation is aimed at Pakistan only, and is discriminatory and arbitrary. It does not fall under the permissible reservations exhaustively set out in Article 39 of the General Act and is invalid," he ruled.