Committee: International Court of Justice
Issue: ​Case concerning the Aerial Incident of 10 August 1999 (Pakistan vs India)
Jake Jung and Willy Lee
1. Description of Issue:
The case concerning the Aerial Incident of 10 August 1999 (Pakistan vs India), or
more commonly known to the public as the Atlantique Incident, was an aerial confrontation
involving the Pakistani presence in Indian airspace in the Rann of Kutch. This incident
occurred just a month after the Kargil War, aggravating already tense relations between India
and Pakistan.
A French-built Breguet Atlantic plane, flight Atlantic-91, was a part of the Pakistan
Navy’s frontline aircraft and was primarily used for reconnaissance purposes. Atlantic-91 left
the Mehran Naval base at 9:15 am PST, with the Indian Air Force ground radar locating the
plane as it approached the Pakistan-India border. Two IAF MiG-21 interceptor aircrafts of the
No.45 squadron were sent as a response from the Indian air base at Naliyah in the Kutch
region. After a series of manoeuvres and a conflicting version of story from both sides, the
two Indian jets were given clearance to fire at flight Atlantic-91. At 11:17 am IST, the
Atlantic was intercepted and shot down by an infrared homing R-60 air-to-air missile by the
squadron leader. The Atlantic-91 approximately landed in 23°54′N 68°16′E at 1130 hours
IST. All 16 personnel on board, including 5 officers of the Pakistan navy were confirmed
dead. Immediately following the news of the attack, an IAF helicopter carrying journalists
was attacked by the Pakistani military with aerial artillery, causing the IAF helicopter to abort
its mission and return back to India.
In the aftermath of the event, multiple differing claims were made by both sides of the
conflict. Pakistan claimed that the flight was on a routine training mission inside Pakistani air
space, and that the debris was found on the Pakistani side of the border. Meanwhile, the
Indian Air force claimed that the flight defied and did not respond to basic international
protocol such as responding to landing signals, stating purpose, and that it acted in a “hostile”
manner. India has also claimed that Pakistan had violated a 1991 bilateral agreement, in
which no military aircraft would come within 10km of the border. On 21 September 1999,
Pakistan lodged an official compensation claim to the International Court of Justice (ICJ) in
The Hague, on grounds that India had shot down an unarmed aircraft.
2. Definition of Key terms:
Airspace
A section of of the atmosphere controlled by a country/state above its territory,
including its territorial waters. Airspaces may be divided into zones in which certain aerial
activities would be restricted.
Reconnaissance
In military operations, reconnaissance is the exploration outside an area occupied by
friendly forces to gain information about natural features and enemy presence Examples of
reconnaissance include patrolling by troops (Long Range Reconnaissance Patrol, U.S. Army
Rangers, cavalry scout, or military intelligence specialists), ships or submarines,
manned/unmanned reconnaissance aircraft, satellites, or by setting up covert observation
posts.
1991 Bilateral Agreement
A bilateral agreement is one that allows two or more nations to allow international
commercial air transport services between their territories. ​The 1991 bilateral agreement
between Pakistan and India states: "Combat aircraft (including, Bombers, Reconnaissance
aircraft, Jet military trainers and Armed helicopters) will not fly within 10 km of each other's
airspace including Air Defense Identification Zone."
Line of Control
This refers to the military ceasefire border between India and Pakistan, located in the
Kashmir region. The Line of Control (LOC) does not constitute a internationally or legally
recognized border and is instead a ​de facto ​border, meaning that it is in practice, but not
necessarily ordained by law.
Kashmir Conflict
The Kashmir Conflict is a territorial dispute between India and Pakistan over the
highly contested region of Kashmir, with China playing an occasional minor role in the
conflict. It dates back to the 1947 partition of India, along the religious divides that that led to
the formation of the separate states of India and Pakistan. The root of the conflict is tied to
the dispute between Kashmir insurgents and the Indian government over the issue of local
autonomy. As of so far, India has major control of Jammu and Ladakh, while Pakistan has
major control of Azad Kashmir and Gilgit-Baltistan.
International Court of Justice (ICJ)
The International Court of Justice is the primary judicial branch of the United Nations
(UN). Seated in the Peace Palace in The Hague, Netherlands, the court settles legal disputes
submitted to it by states and provides advisory opinions on legal questions submitted to it by
duly authorized international branches, agencies, and the UN General Assembly.
Jurisdiction
The power of the court to rule upon or make legal decisions for a certain case.
3. Timeline of Key Events
1947 Partition of India
The British Partition of 1947 split the Indian sub-continent into two parts, the
majority Hindi India, and the majority Muslim Pakistan. In the riots which preceded the
partition, it is believed that between 200,000 and 2,000,000​ ​people were killed in the
retributive genocide between the two parties. UNHCR estimates 14 million Hindus, Sikhs,
and Muslims were displaced during the partition; it was the largest mass migration in human
history.
1947 Indo-Pakistani War
Also known as the First Kashmir War, the conflict started when Pakistan feared that
the state of Kashmir and Jammu would be annexed by India. Following the partition, states
were left to choose between India, Pakistan or to remain independent. Jammu and Kashmir,
the largest of the princely states, had a predominantly Muslim population ruled by a Hindu,
Maharaja Hari Singh. In cooperation with tribal states, the Pakistani army forced Singh to
sign an agreement that would effectively hand over the control of the states to Pakistan.
However with the intervention of the UN and India, the plan was stopped and the fronts
solidified gradually along what came to be known as the Line of Control. A formal cease-fire
was declared on 1 January 1949. India gained control of about two-third of the state including
(Kashmir valley, Jammu and Ladakh) whereas Pakistan gained a third, including Azad
Kashmir and Gilgit–Baltistan.
1999 Kargil War
The Kargil conflict was an armed conflict between India and Pakistan, taking place in
the Indian subcontinent, more specifically in the Kargil district of the highly-contested
Kashmir region. The conflict was caused by the involvement of Pakistani paramilitary forces
in the Indian side of the LOC. The Kargil conflict ended with an Indian victory, with the help
of international pressure on Pakistan to withdraw its military forces from the Kargil region.
10 August 1999 The Atlantique incident
The Atlantique Incident was an event in which a Breguet Atlantic patrol plane of the
Pakistan Navy's Naval Air Arm, with 16 people on board, was shot down by the Indian Air
Force for violating Indian airspace. The episode took place in the Rann of​ ​Kutch​ on 10
August 1999, just a month after the Kargil War, aggravating already tense relations between
India and Pakistan.
21 September 1999 Pakistan lodges an official complaint to the ICJ
In a compensation claim to the ICJ, the delegation of Pakistan accused India of
shooting down a n unarmed aircraft. Pakistan sought about ​ US$60 million in reparations
from India and compensation for the victims' families. India's attorney general, Soli Sorabjee,
argued that the court did not have jurisdiction,​ ​citing an exemption it filed in 1974 to exclude
disputes between India and other Commonwealth States, and disputes covered by multilateral
treaties.
4. Key Evidence Summary
General Act for the Pacific Settlement of International Disputes
Ratified by 22 states and in effect under the League of Nations, the act provided mechanisms
to resolve international conflicts between member nations in various means. The General Act
guided nations to resolve dispute through the means of establishing a commission,
establishing an arbitration tribunal, or requesting the Permanent Court of International Justice
to take care of the issue. The Permanent Court of International Justice was disbanded in 1946,
paving its way to the International Court of Justice. This piece of evidence, if applicable, can
be used to justify whether the International Court of Justice has jurisdiction over the conflict
between India and Pakistan.
The Commonwealth of Nations Charter
The Commonwealth of Nations is an international organization consisted of 52 member
states; the organization was newly founded after the London Declaration in 1949. The
association aims to achieve equality in democracy, human rights, liberty, and trade among
many others. Member states of the Commonwealth of Nations are obligated to abide by the
Commonwealth Charter, a document that dictates certain rules and regulations. In this case,
India filed a complaint against the court, contending that the International Court of Justice
does not have jurisdiction over the event as it filed an exemption in 1974 that excluded
disputes between India and Commonwealth states.
The United Nations Charter
The United Nations Charter is a foundational treaty, signed and ratified by the five permanent
members of the UN Security Council and by other member states. Unlike other international
promises, the United Nations Charter binds member nations to its articles and acts as the
primary document for international relations. One article worth noting is Article 103 which
specifically states that “obligations to the United Nations prevail over ​all other treaty
obligations”. Other important articles include Article 33 and Article 2. Article 33 states that
nations in conflict should initially seek a solution by negotiation or other peaceful means of
their choice. Article 2 states that all member states should fulfill their duties as a member
state with “good faith”. When considering if this incident is under the jurisdiction of the
International Court of Justice, it is also important to discuss whether the nations will be able
to negotiate a peaceful solution without the court’s intervention. During this process, the
United Nations Charter can be invoked to convince the judges.
Statute of the International Court of Justice
Similarly to how the International Criminal Court makes its indictment based on Rome
Statute, the International Court of Justice makes its indictment based on the ICJ Statute. The
ICJ Statute is an essential piece of evidence to determine the jurisdiction of the ICJ. Article
36 states that the jurisdiction of the Court comprises of cases provided for in the United
Nations Charter. When Pakistan filed its application, it recognized the ICJ to have
jurisdiction according to Article 36 where the two parties have recognized the compulsory
jurisdiction. However, India stated in return that it has not provided any consent that waives a
this requirement.
Simla Accord of 1972
The Simla Accord is an agreement signed by India and Pakistan following the Bangladesh
Liberation War. As nations facing their orders, the two nations signed the agreement as an
effort to put an end to the ongoing conflict. The agreement dictates that “the principles and
purposes” of the United Nations charter will dictate the relationship between the two nations,
which means that the UN charter will be utilized to resolve conflict.
5. Position of Key Member Nations and Other Bodies on the Issue
Islamic Republic of Pakistan
The applicant of this case, Pakistan filed a case regarding the incident of their plane being
shot down by air missiles from Indian air force plans to the International Court of Justice.
They claimed that this is a representation of “blatant military aggression” and that
international condemnation is highly necessary. Furthermore, Pakistan emphasized the fact
that the aircraft was on routine flight mission when radar contact was lost and all sixteen navy
trainees were killed instantly. Pakistan based their claim based on the United Nations
Charter—particularly Article 2 that states that all member nations are prohibited from using
force against the territorial integrity of another state in any manner.
In the application filed by Pakistan, it states that India further violated the bilateral agreement
between the two nations in which states that “air violations of each other’s airspace do not
take place” and that an incident will be subject to investigation if a violation takes place
without delay. Moreover, Pakistan contends that its national sovereignty was violated as the
aircraft was not only unarmed but was also on Pakistani air space— an area where foreign
militaries do not have control over. To prevent similar incidents in the future, Pakistan
believes that India has an obligation to make reparations and admit that it has violated
customary international law and the United Nations Charter.
India
Neither confirming or denying the military action, India responded to the initial Pakistani
appeal with a statement that the International Court of Justice does not have jurisdiction over
India as it is a Commonwealth country.
When Pakistan recalled the General Act of 1928, India responded that the Indian government
never regarded themselves as part of the General Act as India declared its independence in
1947,. Furthermore, India has conceded that it is willing to talk with Pakistan regarding the
incident while maintaining its strong stance, claiming that the International Court of Justice
shouldn’t’ intervene.