INTERNATIONAL DISPUTE

RESOLUTION BODIES (IDRB)

BBA LLB | 3rd Year | Complete University Examination Notes
All 7 Units • 12-Mark Depth • Landmark Cases • Definitions • Comparisons • Exam Tips
UNIT I: SETTLEMENT OF DISPUTES (10 Hrs)
1.1 Concept and Need for Settlement of Disputes
Disputes between states are an inevitable feature of international relations. A dispute in
international law is defined as a disagreement on a point of law or fact, a conflict of legal views or
interests between two parties. This definition was given by the Permanent Court of International
Justice (PCIJ) in the Mavrommatis Palestine Concessions Case (1924).
Historically, states settled disputes through war, conquest, and annexation. However, with the
development of international law, particularly after the two World Wars, the international community
recognised the imperative need for peaceful settlement mechanisms. The United Nations Charter,
1945 made peaceful settlement a legal obligation.

★ EXAM TIP / KEY RULE: Article 2(3) of the UN Charter: 'All Members shall settle their
international disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered.' This is a binding obligation on all UN members.

Legal Basis for Peaceful Settlement

• Article 33 of the UN Charter lists the methods: negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means.
• Article 2(4): Prohibits threat or use of force against territorial integrity or political
independence of any state.
• The Manila Declaration on the Peaceful Settlement of International Disputes (1982)
reaffirmed Article 33 obligations.
• The Friendly Relations Declaration (UNGA Resolution 2625, 1970) codified the duty to settle
disputes peacefully.

1.2 Classification of Methods of Settlement

Methods of settling international disputes are broadly classified into two categories:
Basis Amicable / Peaceful Means Compulsive / Coercive Means

Nature Voluntary, consensual, Coercive, unilateral, forceful

cooperative
Third party? May or may not involve third party Usually unilateral or imposed
Binding? Non-binding (except Imposed — may or may not
arbitration/judicial settlement) involve consent
Legality today Fully legal and encouraged Mostly prohibited by UN Charter
Preferred? Yes — primary obligation under No — contrary to UN principles
Article 33
 Examples Negotiation, Good Offices, Retorsion, Reprisal, Pacific
Mediation, Enquiry, Conciliation, Blockade, Intervention, War
Arbitration, ICJ

1.3 Amicable Means of Settlement

(A) Negotiation
Negotiation is the most elementary and widely used method of settling international disputes. It
involves direct discussion between the parties to the dispute, bilaterally or multilaterally, without the
involvement of any third party. It is the primary and preferred first step before any other method is
invoked.

Definition Negotiation is a direct diplomatic discussion between two or more

disputing states aimed at reaching a mutually acceptable settlement
through dialogue, compromise, and agreement.

Essential Features of Negotiation

• No third-party involvement — purely between the parties themselves
• Voluntary and based on mutual consent
• Flexible — no fixed procedure or rules of evidence
• Confidential — conducted through diplomatic channels
• No binding result unless the parties agree to formalize it in a treaty or agreement
• The most economical and fastest method if parties act in good faith
• Can be bilateral (two states) or multilateral (in a conference setting)

Forms of Negotiation
• Bilateral negotiations: Between two states — e.g., India-Pakistan negotiations on the Indus
Waters Treaty (1960)
• Multilateral negotiations: Among multiple states — e.g., GATT/WTO rounds of trade
negotiations
• Summit diplomacy: Direct meetings between heads of state
• Exchange of notes/diplomatic correspondence

Advantages of Negotiation
• Preserves sovereignty — parties are in full control
• Preserves diplomatic relations — no adversarial proceedings
• Can be conducted secretly — avoids public pressure
• Flexible and adaptable to the specific dispute

Limitations of Negotiation
 • Requires goodwill and willingness of both parties
• Fails where there is a significant power imbalance (weaker state may be pressured)
• No enforcement mechanism — an agreement reached through negotiation depends on
good faith compliance
• Can be prolonged indefinitely without resolution

★ EXAM TIP / KEY RULE: If a treaty obligation to negotiate exists, the obligation is to
NEGOTIATE IN GOOD FAITH — not necessarily to reach an agreement. (North Sea
Continental Shelf Cases, ICJ 1969)

(B) Good Offices

Good offices is a method where a neutral third party — another state, international organisation, or
eminent individual — offers its services to bring the disputing parties together and persuade them to
negotiate. The third party does NOT participate in the negotiations or propose any solution.

Definition Good offices involves the offer by a third party to use its influence and
position to encourage the disputing states to open or resume
negotiations, without itself proposing any terms of settlement.

Key Characteristics
• The third party acts as a mere facilitator or bridge-builder
• The role ends once the parties agree to negotiate — the third party does not sit at the
negotiating table
• Entirely consensual — parties must accept the offer of good offices
• No binding result — the third party cannot impose any settlement
• Governed by the Hague Convention 1907, Articles 2-4

Distinguished from Mediation

• In Good Offices: Third party only facilitates contact — does NOT propose solutions
• In Mediation: Third party actively participates and proposes solutions
• Good offices is the preliminary/preparatory stage; mediation is more substantive

Examples
• USA's good offices in the Camp David Accords (1978) — Egypt and Israel
• Algeria's good offices in the Iran Hostage Crisis (1981) — the Algiers Accords
• Norway's good offices in the Oslo Accords (1993) — Israel and PLO
• UN Secretary-General's good offices in various international conflicts
(C) Mediation
Mediation is a method of peaceful settlement where a third party (mediator) not only facilitates
negotiations between the disputing parties but also actively participates in the discussions and
proposes concrete terms of settlement. The parties remain free to accept or reject the mediator's
proposals.

Definition Mediation is the intervention of a third party in a dispute with the

consent of the parties, who participates in the negotiations and
proposes terms of settlement, which are not binding unless accepted by
the parties.

Key Characteristics
• Third-party actively participates and proposes solutions
• Proposals are advisory — parties are NOT bound to accept them
• Requires consent of both parties
• The mediator must be impartial and independent
• Governed by Articles 4-8 of the Hague Convention 1907
• A state offering mediation cannot be considered as committing an unfriendly act (Hague
Convention)

Types of Mediation
• State Mediation: A third state acts as mediator — e.g., Russia in Tashkent Agreement
(1966) between India and Pakistan after 1965 war
• International Organisation Mediation: e.g., UN Secretary-General's mediation in various
conflicts
• Individual Mediation: An eminent private individual or former head of state

Advantages
• Active third-party involvement brings fresh perspectives
• Faster than formal proceedings
• Preserves confidentiality
• Parties retain ultimate control over the outcome

Limitations
• Depends entirely on good faith of parties
• Proposals are non-binding — can be rejected
• May become a platform for delay rather than genuine settlement

Landmark Examples
 • Tashkent Agreement 1966: USSR Premier Kosygin mediated between India (PM Lal
Bahadur Shastri) and Pakistan (President Ayub Khan)
• USA in Camp David Accords 1978: Egypt-Israel peace mediated by US President Carter
• UN Mediation in Korean War (1950-53) and numerous civil conflicts

(D) Enquiry (International Commission of Inquiry)

Enquiry or inquiry is a method used when the dispute arises from a disagreement about facts —
what actually happened, who did what. An independent, impartial commission is established to
investigate and establish the facts. Importantly, the commission does not settle the dispute itself —
it only establishes the facts.

Definition A Commission of Inquiry is an impartial body established by the

disputing parties to investigate the facts relevant to a dispute and report
its findings, without the authority to decide the legal consequences or
impose a settlement.

Key Characteristics
• Purpose is purely FACT-FINDING, not settlement
• The commission's report is advisory/non-binding
• Parties are free to use or reject the factual findings in subsequent negotiations or
proceedings
• Formalized by the Hague Convention of 1899 (Articles 9-14) and 1907 (Articles 9-35)
• The commission operates with formal written procedure and hearings

Procedure under Hague Convention 1907

1. Parties conclude a special agreement defining the facts to be examined, the commission's
powers, and procedure
2. Commission is composed of an equal number of members appointed by each party, plus a
neutral president
3. Written memorials submitted by each party
4. Oral hearings conducted
5. Commission deliberates and issues a factual report

Distinguished from Conciliation

• Enquiry: ONLY establishes facts — does not propose settlement
• Conciliation: Investigates facts AND proposes terms of settlement

Landmark Examples
• Dogger Bank Case (1904): Russia vs UK — Russian fleet mistakenly fired on British fishing
vessels in North Sea; Commission of Inquiry found Russia at fault; Russia paid
compensation
 • Letelier and Moffitt Case (Chile-USA, 1988)
• Corfu Channel Mine-Sweeping Incident: Fact-finding mission

(E) Conciliation
Conciliation is a formal method where a standing or ad hoc Conciliation Commission investigates
the dispute, considers all relevant facts and the interests of the parties, and proposes terms of
settlement. It is more formal and structured than mediation but its outcome is non-binding.

Definition Conciliation is a method of settlement by which the parties submit the

dispute to a commission or committee of persons, whose task is to
elucidate the facts, to hear the parties, and to endeavor to bring them to
an agreement, and if necessary to state the terms of a settlement — the
terms not being binding on the parties.

Key Characteristics
• Combines elements of enquiry (fact-finding) and mediation (proposing solutions)
• Formal, structured procedure with written pleadings, hearings, and deliberations
• Commission issues a written report with proposed settlement terms
• The report / proposals are NOT legally binding — parties can reject them
• More institutionalised than mediation — commissions may be standing bodies under treaties
• Mandatory conciliation clauses exist in many multilateral treaties (e.g., Vienna Convention
on Law of Treaties 1969, UNCLOS 1982, UN Convention on the Law of Treaties between
States and International Organisations)

Conciliation under Major Treaties

• Vienna Convention on Law of Treaties 1969 (Article 66 + Annex): Provides for conciliation
on treaty interpretation disputes
• UNCLOS 1982 (Annex V): Compulsory conciliation for certain categories of disputes
• Hague Convention 1907: Contains conciliation-type provisions
• Many Bilateral Investment Treaties (BITs) include conciliation before arbitration

Advantages
• More thorough than simple mediation — involves formal fact-finding
• The report provides a reasoned basis for settlement
• Preserves party autonomy — they can accept or reject proposals

Limitations
• Non-binding — parties may reject even a well-reasoned report
• More time-consuming and expensive than simple negotiation or mediation
1.4 Compulsive Means of Settlement
Compulsive means are those methods which involve force, coercion, or pressure to compel a state
to settle a dispute. Modern international law has significantly restricted or prohibited many
compulsive means through the UN Charter, but some (such as countermeasures/retorsion) remain
permissible.

(A) Retorsion
Retorsion is an unfriendly but LEGAL retaliatory act by one state against another, in response to the
latter's unfriendly or illegal act. The response is within the bounds of international law — it consists
of acts that are inherently lawful.

Definition Retorsion consists of retaliatory measures taken by a state against an

unfriendly or illegal act of another state, where the measures taken are
themselves lawful under international law, though unfriendly.

Examples of Retorsion
• Withdrawal or reduction of diplomatic representation
• Expulsion of nationals of the offending state
• Withdrawal of preferential trade benefits or tariff concessions
• Suspension of economic and financial assistance programs
• Imposition of travel bans on officials
• Recall of an ambassador

Key Legal Points

• Retorsion is ALWAYS LEGAL — it consists of acts the state is entitled to do even absent
any provocation
• Must be proportionate to the original unfriendly act
• Distinguished from Reprisal: Reprisal involves acts that would otherwise be illegal; retorsion
involves only lawful acts

(B) Reprisal
Reprisal consists of acts that would normally be illegal under international law, but are justified as a
response to a prior illegal act by another state. The justification is that the illegal act of the other
state serves as legal authorization for the retaliatory illegality. Modern international law permits only
non-forcible reprisals (countermeasures).

Definition Reprisals are coercive measures, derogating from ordinary international

law, taken by one state in retaliation for another state's internationally
wrongful act, in order to compel that state to comply with its
 international obligations.

Conditions for Lawful Reprisal / Countermeasure (ILC Articles on State Responsibility)

6. Prior internationally wrongful act by the target state
7. The injured state must first demand cessation and reparation from the wrongdoing state
8. Offer of negotiations
9. Reprisal/countermeasure must be proportionate to the injury suffered
10. Must be aimed at inducing compliance — not punitive
11. Must be reversible — must stop when the wrongdoing state complies

Prohibited Reprisals
• Armed reprisals: Prohibited by the UN Charter (Article 2(4)) and the Declaration on Friendly
Relations 1970
• Reprisals against civilian population: Prohibited by Geneva Conventions 1949 (Article 33)

Modern Terminology — Countermeasures

Today, lawful non-forcible reprisals are called 'countermeasures' in international law. The ILC
Articles on Responsibility of States for Internationally Wrongful Acts (2001) codify the regime of
countermeasures in Articles 49-54.

(C) Pacific Blockade

Pacific blockade is the blocking of a state's ports or coast by the naval forces of another state, short
of a formal state of war, to compel the target state to comply with certain demands. It is a coercive
measure but was historically distinguished from war.

Key Features
• No formal declaration of war — conducted in peacetime
• Traditionally, only the blockading state's own vessels or vessels of the target state could be
stopped — third-party vessels could not be interfered with
• Historical instrument — now largely considered incompatible with the UN Charter
• Examples: France's blockade of Mexico (1838, the 'Pastry War'); UK-France-Italy blockade
of Greece (1886); Germany-UK-Italy blockade of Venezuela (1902)

Current Legal Status

• Considered unlawful under Article 2(4) of the UN Charter as a use of force
• UN Security Council can authorise naval blockades under Chapter VII — e.g., blockade of
Iraq after Gulf War 1990
(D) Intervention
Intervention is the dictatorial or coercive interference by one state in the internal or external affairs
of another state. As a means of settling disputes, intervention involves forcing a resolution by
coercive means that violate the target state's sovereignty.

General Rule — Non-Intervention Principle

• Article 2(1) UN Charter: Sovereign equality of states
• Article 2(7) UN Charter: No right to intervene in matters essentially within domestic
jurisdiction
• Declaration on Friendly Relations 1970: States have a duty not to intervene in internal affairs
of other states
• Nicaragua Case (ICJ, 1986): ICJ affirmed the absolute prohibition on non-consensual
intervention in internal affairs

Exceptions (Contested)
• UN Security Council authorised intervention under Chapter VII (Article 42) — collective use
of force when threat to international peace and security
• Humanitarian intervention: Controversial — no clear legal basis in UN Charter; used in
Kosovo (NATO, 1999)
• Right to self-defence under Article 51: Individual or collective — only against armed attack
• Invitation by legitimate government

(E) War
War was historically the ultimate compulsive means of settling disputes. However, modern
international law has radically restricted the right to resort to war.

Prohibition of War
• Kellogg-Briand Pact (1928): First general renunciation of war as an instrument of national
policy
• Article 2(4) UN Charter: Comprehensive prohibition on threat or use of force
• Article 51: Only exception — individual or collective self-defence against armed attack, until
the Security Council takes measures
• Chapter VII UN Charter: UNSC can authorise collective use of force
UNIT II: THE PERMANENT COURT OF
ARBITRATION (PCA) (11 Hrs)
2.1 Historical Origin and Background
International arbitration as a method of settling inter-state disputes has ancient roots, but its modern
institutionalization began in the 19th century. The Alabama Claims Arbitration (1872), in which the
USA recovered damages from the UK for breach of neutrality during the American Civil War,
demonstrated the utility and effectiveness of arbitration and galvanized the movement for a
permanent arbitral institution.
The First Hague Peace Conference (1899) was convened at the initiative of Tsar Nicholas II of
Russia. It was attended by 26 states and resulted in the adoption of the Convention for the Pacific
Settlement of International Disputes (1899), which established the Permanent Court of Arbitration
(PCA). The Second Hague Peace Conference (1907) revised the Convention, strengthened the
PCA, and broadened its membership.

Key Historical Timeline

• 1872: Alabama Claims Arbitration — demonstrates utility of state arbitration
• 1899: First Hague Peace Conference → Hague Convention for Pacific Settlement → PCA
established
• 1900: PCA becomes operational
• 1907: Second Hague Convention revises and strengthens PCA
• 1913: The Peace Palace at The Hague inaugurated — becomes PCA's permanent home
• 1976: PCA adopts UNCITRAL Arbitration Rules for use in its proceedings
• 1993 onwards: PCA's mandate expands to include investor-state and commercial disputes
• 2012: Expanded mandate — can administer cases involving international organisations

★ EXAM TIP / KEY RULE: IMPORTANT DISTINCTION: The PCA is NOT a court. It is an
intergovernmental organisation that provides a permanent framework for arbitration. The
word 'Permanent' means the institution is permanently available — not that there is a
permanently sitting panel of judges.

2.2 Nature and Structure of the PCA

The PCA is an intergovernmental organisation headquartered at the Peace Palace, The Hague,
Netherlands. It has three main structural components:
(A) The Panel of Members ('The List')
The PCA maintains a permanent list of arbitrators from which parties select arbitrators for their
specific disputes. This is what the word 'permanent' primarily refers to — a permanently available
list of qualified arbitrators.

Composition and Appointment

• Each member state may appoint up to 4 persons (called 'Members of the Court') to the
general panel
• Qualifications (Article 44, 1907 Convention): Persons of known competency in questions of
international law, of the highest moral reputation, and disposed to accept the duties of
arbiter
• Term: 6 years, renewable
• Appointed by national governments — typically eminent jurists, retired judges, diplomats,
senior lawyers
• Members are appointed independently of each other and serve in their personal capacity,
not as state representatives

Use of the List

• When parties agree to PCA arbitration, they select arbitrators from this list (or may appoint
from outside, subject to rules)
• The list ensures qualified and available arbitrators at all times

(B) The Administrative Council

The Administrative Council is the governing and oversight body of the PCA. It is responsible for the
overall supervision, administration, and financing of the institution.

Composition
• The diplomatic representatives of all member states accredited to the Netherlands — i.e.,
the ambassadors of member states to the Netherlands
• The Netherlands Minister of Foreign Affairs serves as President of the Administrative
Council
• Each member state has one vote

Functions
• Meets annually (usually in May) to approve the annual budget
• Reviews and oversees the activities and expenditures of the PCA
• Appoints and can dismiss the Secretary-General
• Sets broad policy directions for the PCA
• Amends the Internal Rules of the PCA
(C) The International Bureau
The International Bureau is the permanent administrative and secretarial body of the PCA —
essentially its secretariat.

Composition and Heading

• Headed by the Secretary-General (a senior international official, appointed by the
Administrative Council)
• Staffed by international civil servants — lawyers, administrators, and support staff

Functions
• Maintains the official list of members (Panel of Arbitrators)
• Acts as the registry for arbitral proceedings administered by the PCA — receives
documents, keeps records
• Provides legal, administrative, and logistical support to arbitral tribunals
• Facilitates the appointment of arbitrators
• Serves as a channel of communication between parties
• Organises hearings, maintains financial accounts for cases
• Publishes awards (where parties consent) to build a body of international arbitral
jurisprudence

2.3 Jurisdiction and Arbitral Procedure

(A) Jurisdiction — Consent Based
The PCA does NOT have compulsory jurisdiction. All PCA arbitrations are based on the consent of
the parties, expressed through:
• A compromis (special agreement) concluded after the dispute arises — the parties agree ad
hoc to submit to PCA arbitration
• Arbitration clauses in treaties — many bilateral and multilateral treaties provide that disputes
shall be referred to PCA arbitration
• Arbitration agreements in contracts (for investor-state or commercial disputes)

(B) Scope of Disputes — Expanded Mandate

• Inter-state disputes (the original mandate)
• State vs international organisation disputes
• Investor-state disputes (under BITs, NAFTA, ECT, etc.) — the PCA administers such cases
using UNCITRAL Rules
• Private commercial disputes involving at least one state entity
(C) General Arbitral Procedure
12. Parties conclude an arbitration agreement (compromis) specifying: the subject-matter of the
dispute, the law to be applied, the composition of the tribunal, and the procedure
13. Selection of arbitrators: Typically 3 or 5 arbitrators — each party appoints one (or two), and
the presiding arbitrator is agreed upon or appointed by the PCA
14. Written proceedings: Memorial (applicant) → Counter-Memorial (respondent) → Reply →
Rejoinder
15. Oral hearings: Each party presents oral arguments; experts may testify
16. Deliberation by the tribunal
17. Award: Rendered in writing, stating reasons; award is final and binding on the parties

★ EXAM TIP / KEY RULE: PCA awards are binding on the parties under their agreement
but there is no automatic enforcement mechanism. Enforcement depends on good faith
compliance, diplomatic pressure, or enforcement through national courts under
applicable treaties (e.g., New York Convention for commercial arbitrations).

2.4 Landmark Cases Decided by or Under the PCA

Alabama Claims Arbitration (1872 | Five-Member Arbitral Tribunal (USA, UK, Italy, Brazil,
Switzerland))
Facts: During the American Civil War, the UK allowed Confederate warships (Alabama, Florida,
Shenandoah) to be built and equipped in British ports, in violation of its neutrality obligations.
These ships caused enormous damage to US commerce.
Held / Significance: UK held liable for the damage caused by the Confederate warships built in
its territory. USA awarded $15.5 million in gold. This case established the foundational principle
that a neutral state is responsible for damage caused by vessels of a belligerent built or equipped
in its territory. It also demonstrated the viability of interstate arbitration for major disputes.

Island of Palmas Case (1928 | PCA (Sole Arbitrator: Max Huber, President of PCIJ))
Facts: Dispute between USA (successor to Spain's claim from 1898 Treaty of Paris) and
Netherlands over sovereignty over the Island of Palmas (also known as Miangas), located
between the Philippines and what is now Indonesia.
Held / Significance: Netherlands awarded sovereignty. Key holdings: (1) Effective continuous
exercise of state authority (effectivites) is the decisive criterion for territorial sovereignty —
discovery alone is insufficient; (2) Intertemporal law — the validity of an act must be judged by
the law in force at the time the act was done, not the law existing at the time of the dispute.
Highly influential for territorial sovereignty disputes.

Trail Smelter Arbitration (1941 | USA-Canada Arbitral Tribunal)

Facts: Sulphur dioxide fumes from a Canadian smelter (Trail Smelter in British Columbia)
 crossed the US border and caused damage to crops, animals, and forests in the state of
Washington, USA.
Held / Significance: Canada held liable. Key principle: 'No state has the right to use or permit
the use of its territory in such a manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein.' This is the foundational case for the principle of sic
utere tuo — the no-harm principle in international environmental law and transboundary pollution.

Abyei Area Arbitration (2009 | PCA (Five-Member Tribunal))

Facts: Dispute between the Government of Sudan and the Sudan People's Liberation
Movement/Army (SPLM/A) concerning the boundaries of the Abyei Area — a territory with
significant oil reserves and contested tribal loyalties. The Abyei Boundaries Commission's (ABC)
report was contested by the Government of Sudan.
Held / Significance: PCA ruled on the proper boundaries of the Abyei Area. Notable for being
the first PCA arbitration between a state and a non-state armed group; extensive use of GIS
mapping, satellite imagery, and scientific evidence. Demonstrated PCA's capacity for complex
technical disputes.

South China Sea Arbitration (Philippines v. China) (2016 | Annex VII Tribunal under
UNCLOS (administered by PCA))
Facts: Philippines brought claims against China's extensive maritime claims in the South China
Sea, particularly its 'Nine-Dash Line' claim covering approximately 85% of the South China Sea,
and China's conduct in constructing artificial islands and interfering with Philippine fishing and
resource exploitation in its Exclusive Economic Zone.
Held / Significance: Tribunal ruled unanimously that: (1) China's 'Nine-Dash Line' and
associated historical rights claims have no legal basis under UNCLOS; (2) China's construction
activities on submerged features violated Philippines' sovereign rights; (3) Several features
claimed by China are low-tide elevations (not islands) and cannot generate EEZ or continental
shelf rights. China refused to participate and does not recognise the award — raising
fundamental questions about compliance with international adjudication.

Indus Waters Kishenganga Arbitration (2013 | Court of Arbitration under Indus Waters
Treaty 1960 (PCA))
Facts: Pakistan objected to India's construction of the Kishenganga Hydroelectric Project on the
Kishenganga/Neelum River (a tributary of the Jhelum, which is a 'Western River' allocated to
Pakistan under the Indus Waters Treaty). Pakistan argued India could not divert the river waters.
Held / Significance: India has the right to divert waters of the Kishenganga for power
generation, subject to maintaining a minimum environmental flow downstream. Court interpreted
the Indus Waters Treaty creatively, imposing environmental flow obligations not explicitly in the
treaty. Important for India-Pakistan relations and water law.

2.5 Critical Analysis — PCA's Contribution to International Law

Positive Contributions
 • Institutionalization of arbitration: Created the first permanent framework for interstate
arbitration — a model for subsequent institutions
• Jurisdictional flexibility: Unlike the ICJ, PCA can handle disputes involving states,
international organisations, and private entities
• Development of substantive international law: PCA awards have contributed fundamental
doctrines — effective occupation, no-harm principle, state responsibility for ships, territorial
sovereignty
• Procedural innovation: PCA has developed rules for investment arbitration, environmental
disputes, maritime disputes — kept pace with evolving international law
• Expanded access: PCA now administers approximately 200+ cases per year — far beyond
its original inter-state mandate

Limitations and Criticisms

• No compulsory jurisdiction: Cannot act without the consent of both parties — a state can
simply refuse to participate (as China did in the South China Sea case)
• No enforcement mechanism: Unlike court judgments, PCA awards have no built-in
enforcement mechanism — compliance depends on good faith and diplomatic pressure
• Power imbalance in investor-state cases: Multinational corporations can use investor-state
arbitration (under BITs administered by PCA) to challenge legitimate government
regulations — creating a 'regulatory chill'
• Transparency concerns: Many PCA proceedings are confidential — limiting public scrutiny
and the development of publicly accessible jurisprudence
• Inconsistency: Different tribunals may reach conflicting conclusions on similar legal
questions — no doctrine of precedent or appellate review
UNIT III: THE INTERNATIONAL COURT OF
JUSTICE (ICJ) (11 Hrs)
3.1 Historical Background and Establishment
The ICJ is the successor to the Permanent Court of International Justice (PCIJ), which was
established under the League of Nations in 1920 and dissolved in 1946. The ICJ was established
by the UN Charter (Chapter XIV, Articles 92-96) and began functioning in April 1946. Its Statute (the
ICJ Statute) is an integral part of the UN Charter, making every UN member state automatically a
party to the ICJ Statute.

Legal Basis Article 92, UN Charter: 'The International Court of Justice shall be the
principal judicial organ of the United Nations. It shall function in
accordance with the annexed Statute, which is based upon the Statute
of the Permanent Court of International Justice and forms an integral
part of the present Charter.'

3.2 Organisation and Composition

(A) Composition of the Court
• 15 judges — elected for 9-year terms (renewable)
• 5 judges elected every 3 years (staggered elections for continuity)
• No two judges may be nationals of the same state
• Judges elected by CONCURRENT AND SEPARATE vote of the UN General Assembly and
the UN Security Council
• A candidate must obtain an absolute majority in BOTH the UNGA and UNSC separately to
be elected
• Judges must be of the highest moral character and possess the qualifications required in
their respective countries for appointment to the highest judicial offices, OR be jurisconsults
of recognised competence in international law (Article 2, ICJ Statute)

Composition Reflects Diversity

• The composition of the Court must collectively reflect the principal legal systems of the world
(civil law, common law, Islamic law, etc.)
• Equitable geographical distribution — representation from all major regions

(B) The President and Vice-President

• Elected by the Court itself for 3-year terms
• President presides over all sittings, manages judicial business, has casting vote in case of a
tie
 • Vice-President substitutes when President is unavailable

(C) Quorum and Chambers

• Full Court: Minimum quorum of 9 judges for a valid sitting (Article 25)
• Chambers: The Court may form chambers for particular categories of cases (Article 26):
Chamber for summary procedure (5 judges), Chambers for environmental matters,
Chambers ad hoc agreed by parties
• The Chamber in the Gulf of Maine Case (1984 — Canada v USA) was the first ad hoc
chamber agreed to by parties

(D) Ad Hoc Judges

Under Article 31 of the ICJ Statute, if neither party to a contentious case has a judge of its
nationality on the bench, each party may appoint one ad hoc judge (also called a national judge or
judge ad hoc) to sit for that particular case.
• Ad hoc judge may be of a different nationality from the appointing state
• Ad hoc judges participate fully in the case and receive the same remuneration
• They have full deliberative vote and may write individual opinions
• If BOTH parties lack a national judge, both may appoint — the net addition to the Court is
two ad hoc judges

★ EXAM TIP / KEY RULE: Criticism of Ad Hoc Judges: They tend to vote for the party that
appointed them — compromising the impartiality ideal. Defenders argue they provide
cultural and legal context from the appointing state's perspective.

3.3 Jurisdiction of the ICJ

(A) Who Can Appear Before the Court?
• Only STATES can be parties in contentious cases (Article 34(1), ICJ Statute)
• Not individuals, corporations, NGOs, international organisations, or non-state actors
• All UN members are automatically parties to the ICJ Statute — they CAN appear, but this
does not automatically create jurisdiction over any specific dispute

(B) Bases of Contentious Jurisdiction — CONSENT is Mandatory

The ICJ does NOT have universal compulsory jurisdiction. Every state must consent to ICJ
jurisdiction for each specific case. There are four ways this consent can be established:

1. Special Agreement (Compromis)

• Both parties conclude a specific agreement to submit a particular dispute to the ICJ
 • Most reliable basis — both parties clearly consent to ICJ's authority
• Example: Cameroon v Nigeria (Land and Maritime Boundary, 2002)

2. Forum Selection Clauses in Treaties (Article 36(1))

• Many bilateral and multilateral treaties contain clauses providing that disputes about
interpretation or application of the treaty shall be referred to the ICJ
• By ratifying such treaties, states in advance consent to ICJ jurisdiction for those disputes
• Examples: Vienna Convention on Consular Relations (used in LaGrand, Avena cases);
Genocide Convention (used in Bosnia v Serbia, Ukraine v Russia cases); Montreal
Convention on Aviation

3. Optional Clause — Declaration under Article 36(2)

• States may file a unilateral declaration with the UN Secretary-General accepting the
compulsory jurisdiction of the ICJ in relation to any other state accepting the same obligation
— 'ipso facto and without special agreement'
• This is called the Optional Clause — voluntary, not mandatory
• Such declarations are often accompanied by reservations (limiting the scope of accepted
jurisdiction)
• As of 2024, approximately 73 states have filed such declarations
• Reciprocity: A state can only invoke another state's declaration to the extent the invoking
state itself has accepted jurisdiction — and on the same terms
• Example: Nicaragua Case — Nicaragua used the UK's declaration to invoke jurisdiction
against USA

4. Forum Prorogatum
• If a state files an application against another state that has not accepted jurisdiction, but the
respondent state then participates in the proceedings without objecting to jurisdiction, it is
deemed to have implicitly consented — jurisdiction is prorogated
• Rare in practice — states typically object explicitly if jurisdiction is absent

(C) Advisory Jurisdiction

• Article 96 of the UN Charter grants the General Assembly and Security Council the right to
request advisory opinions from the ICJ on any legal question
• Other UN organs and specialised agencies may also request advisory opinions on legal
questions arising within the scope of their activities (subject to UNGA authorisation)
• Advisory opinions are NOT binding on any state — they are authoritative legal opinions
• However, they carry immense moral and legal authority and often shape subsequent state
practice and treaty-making

Landmark Advisory Opinions

• Reparations for Injuries Suffered in the Service of the UN (1949): UN has international legal
personality — can bring claims
 • Western Sahara (1975): Principle of self-determination; no legal ties warranting derogation
from self-determination
• Legality of the Threat or Use of Nuclear Weapons (1996): ICJ unable to definitively say use
of nuclear weapons is always illegal, but must generally comply with international
humanitarian law
• Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
(2004): Wall violates international law; Israel must cease construction and make reparations
• ITLOS Climate Change Advisory Opinion (2024): Though by ITLOS, not ICJ — but
illustrates the genre

3.4 Procedure of the ICJ

Written Proceedings
• Memorial: Applicant's written statement — facts, law, submissions (claims)
• Counter-Memorial: Respondent's written reply — factual disputes, legal arguments, counter-
claims
• Reply: Applicant responds to Counter-Memorial (if permitted by Court)
• Rejoinder: Respondent responds to Reply (if permitted by Court)
• Documents submitted must be in English or French (official languages of the Court)

Oral Proceedings
• Held in public (unless parties request otherwise or Court orders in camera proceedings)
• Conducted at the Peace Palace, The Hague
• Agents (official state representatives), counsel, and advocates address the Court
• Judges may put questions at the end of each party's oral argument
• Witnesses and experts may testify

Deliberation and Judgment

• After oral proceedings, the Court deliberates in private
• Judgment pronounced in open Court, signed by all judges who participated
• Decided by majority vote of judges present — President has casting vote in case of tie
• Judgment is binding on the parties to that specific case (Article 59)
• NO doctrine of stare decisis — ICJ decisions are NOT binding precedents for future cases,
though they carry great persuasive authority

Individual Opinions
• Separate Opinion: Judge agrees with the dispositif (result) but has different or additional
reasons
• Dissenting Opinion: Judge disagrees with the result
• Declaration: Brief statement of judge's position without full opinion
Provisional Measures
• Under Article 41, ICJ may indicate provisional measures (equivalent to interim injunctions) to
preserve the rights of either party pending the final judgment
• Application for provisional measures is heard as a matter of urgency
• BINDING: Since the LaGrand Case (2001), it is settled that provisional measures indicated
by the ICJ are legally binding on the parties
• Conditions: Prima facie jurisdiction; plausible rights; urgency (risk of irreparable harm before
final judgment)
• Example: In the Genocide Convention case (Ukraine v Russia, 2022), ICJ indicated
provisional measures ordering Russia to immediately suspend military operations in Ukraine

Preliminary Objections
• Before the merits of a case are heard, a respondent may raise preliminary objections to the
Court's jurisdiction or the admissibility of the application
• Common grounds: No jurisdiction (no valid basis of consent); application inadmissible (no
legal interest, non-exhaustion of local remedies, etc.)
• If a preliminary objection is upheld, the case is dismissed without examination of the merits

3.5 Role of ICJ in Development of International Law

• Article 38(1)(d): ICJ decisions are a subsidiary source of international law — they clarify and
develop customary international law and treaty law
• Defining customary international law: ICJ articulates what constitutes binding custom — e.g.,
North Sea Continental Shelf (1969) on the two-element test for CIL: state practice + opinio
juris
• Treaty interpretation: Authoritative interpretation of key multilateral treaties — Vienna
Convention, Genocide Convention, UN Charter
• Development of foundational principles: Self-determination (Western Sahara); state
responsibility (Corfu Channel); diplomatic protection (Barcelona Traction 1970 — erga
omnes obligations); right to reparations (Reparations case)
• Jurisprudence as soft compulsion: Although decisions bind only the parties, states and
tribunals worldwide follow ICJ jurisprudence as authoritative — creating a de facto body of
international case law

3.6 Landmark Cases

Corfu Channel Case (1949 | ICJ (UK v Albania))

Facts: After World War II, UK naval vessels were damaged and sailors killed when passing
through the Corfu Channel (in Albanian territorial waters), triggering mines. UK later swept the
mines without Albania's consent. Albania denied knowledge of the mines.
Held / Significance: Albania was responsible for the mining and the resulting damage — a state
must not knowingly allow its territory to be used for acts contrary to the rights of other states.
UK's mine-sweeping in Albanian waters violated Albanian sovereignty. First case decided by the
ICJ. Established principle of state responsibility for omissions.

Nicaragua Case (Military and Paramilitary Activities) (1986 | ICJ (Nicaragua v USA))
Facts: USA trained, armed, and financed the Contras (anti-Sandinista rebels) and mined
Nicaraguan harbours, during the Cold War era. USA argued it had filed a reservation to the
Optional Clause excluding disputes involving multilateral treaties; also raised the 'collective self-
defence' justification.
Held / Significance: USA violated customary international law principle of non-intervention; the
mining of harbours constituted an unlawful use of force. USA's collective self-defence justification
rejected — El Salvador had not been subjected to an 'armed attack' by Nicaragua. ICJ
distinguished 'armed attack' from lesser 'use of force' — setting a high threshold for Article 51
self-defence. USA withdrew from compulsory jurisdiction before the judgment and did not
comply. Important for distinguishing armed attack from mere frontier incidents.

LaGrand Case (2001 | ICJ (Germany v USA))

Facts: Walter and Karl LaGrand, two German nationals, were convicted of murder in Arizona and
sentenced to death. Germany argued the USA violated Article 36 of the Vienna Convention on
Consular Relations by not informing the brothers of their right to consular notification. ICJ had
indicated provisional measures ordering the USA to take all measures to prevent execution. USA
allowed the execution to proceed.
Held / Significance: USA violated Article 36 VCCR by not providing consular notification. More
importantly: ICJ held that provisional measures indicated under Article 41 are LEGALLY
BINDING — settling a long-standing controversy. USA's breach of the provisional measures also
constituted a separate internationally wrongful act.

Kulbhushan Jadhav Case (2019 | ICJ (India v Pakistan))

Facts: India's former naval officer Kulbhushan Jadhav was arrested by Pakistan in 2016 (under
disputed circumstances) and sentenced to death by a Pakistani military court on espionage
charges. India alleged Pakistan violated Article 36 of the VCCR by refusing consular access to
Jadhav for years.
Held / Significance: ICJ unanimously held Pakistan violated Article 36 VCCR. Pakistan ordered
to provide effective review and reconsideration of conviction and death sentence — taking into
account the VCCR violations. Pakistan must also inform Jadhav of his rights. India's request for
acquittal and release was rejected. Jadhav was granted consular access in 2019 and 2021. Case
is highly significant for India and for the law of consular relations.

Application of the Genocide Convention (Bosnia v Serbia) (2007 | ICJ)

Facts: Bosnia and Herzegovina alleged Serbia was responsible for genocide committed against
Bosnian Muslims, particularly at Srebrenica (1995), where over 8,000 Bosnian Muslim men and
boys were massacred.
Held / Significance: Srebrenica massacre constituted genocide. However, Serbia was not found
directly responsible for the genocide itself (Bosnian Serb forces were not fully under Serbia's
control). Serbia was found to have violated its obligation under Article I of the Genocide
Convention to PREVENT genocide — it had the capacity to influence and failed to use it. Serbia
was also found to have breached its obligation to punish (cooperate with ICTY). Established
distinction between 'effective control' (for attribution) and 'overall control' test.

Barcelona Traction Case (Belgium v Spain, 1970 | ICJ)

Facts: Belgium sought to exercise diplomatic protection on behalf of Belgian shareholders in
Barcelona Traction, a Canadian company incorporated in Canada but operating in Spain, whose
assets had been affected by Spanish actions.
Held / Significance: Belgium did not have standing to bring the claim — only Canada (as the
state of incorporation) could exercise diplomatic protection. Crucially: ICJ articulated the concept
of ERGA OMNES obligations — obligations owed to the international community as a whole
(e.g., outlawing aggression, genocide, slavery, racial discrimination). Any state has a legal
interest in the protection of such rights, regardless of whether it is directly injured.
UNIT IV: INTERNATIONAL CRIMINAL COURT (ICC)
(11 Hrs)
4.1 Historical Background and Need for the ICC
Before the ICC, there was no permanent international criminal court. Individuals who committed
grave violations of international law could only be prosecuted before ad hoc tribunals created for
specific conflicts, or before national courts. This led to several problems:

Pre-ICC Tribunals and Their Limitations

• Nuremberg International Military Tribunal (1945-46): Established by the Allied Powers to try
German war criminals after World War II. Criticisms: 'Victor's justice' — only Allied powers
sat in judgment; retroactive application of law; no equivalent tribunal for Allied war crimes;
limited to European theatre of WWII.
• International Military Tribunal for the Far East (Tokyo Tribunal, 1946): Similar criticisms —
established by Allied Powers; limited to Japanese officials.
• International Criminal Tribunal for the Former Yugoslavia (ICTY, 1993): Ad hoc tribunal
established by UNSC Resolution 827 for crimes committed in the territory of former
Yugoslavia after 1991. Important precedents — established personal criminal liability under
international law; prosecution of rape as a war crime; challenged head-of-state immunity.
• International Criminal Tribunal for Rwanda (ICTR, 1994): Established by UNSC Resolution
955 for genocide and crimes against humanity committed in Rwanda in 1994. Prosecuted
perpetrators of the Rwandan genocide; first international tribunal to convict someone
specifically for genocide.

The need for a PERMANENT, INDEPENDENT, and UNIVERSAL criminal court was recognised.
The UN held the Rome Conference in June-July 1998, which adopted the Rome Statute of the
International Criminal Court on 17 July 1998 by a vote of 120 in favour, 7 against (including USA,
China, India, Israel), and 21 abstentions. The Statute entered into force on 1 July 2002, after 60
ratifications.

★ EXAM TIP / KEY RULE: India voted AGAINST the Rome Statute in 1998 and has NOT
ratified it. India is NOT a party to the Rome Statute. Key reasons: (1) Definition of
aggression — India felt it gave too much discretion to the UNSC P5; (2) Nuclear weapons
not included in war crimes definition; (3) UNSC referral power — P5 veto can block
referrals, making ICC politically selective; (4) India's own judicial system is adequate
(complementarity).
4.2 Constitution and Composition of the ICC
Basic Facts
• Established by: Rome Statute of the International Criminal Court (adopted 17 July 1998, in
force 1 July 2002)
• Seat: The Hague, Netherlands
• States Parties: 124 as of recent count (USA, Russia, China, India, Israel are NOT parties)
• Relationship Agreement with UN: ICC is NOT a UN organ (unlike the ICJ) — it is an
independent international organisation with a special relationship with the UN

Organs of the ICC (Article 34, Rome Statute)

1. The Presidency
• Composed of: President + First Vice-President + Second Vice-President
• Elected by and from among the 18 judges for a 3-year term (renewable once)
• Functions: Responsible for the proper administration of the Court (except the Office of the
Prosecutor); represents the Court externally; presides over the Court's plenary sessions;
liaises with states parties

2. The Divisions and Chambers

The judicial work of the ICC is conducted through three divisions:
• Pre-Trial Division: Minimum 6 judges; Pre-Trial Chambers handle pre-trial matters
• Trial Division: Minimum 6 judges; Trial Chambers conduct trials
• Appeals Division: President of the Court + 4 other judges; Appeals Chamber handles
appeals

3. The Office of the Prosecutor (OTP)

• Completely independent organ — acts independently (Article 42)
• Headed by the Prosecutor (currently Karim Khan of the UK, elected 2021)
• Assisted by one or more Deputy Prosecutors
• Prosecutor and Deputy Prosecutors are elected by the Assembly of States Parties for non-
renewable 9-year terms
• Key powers: Initiate investigations on referrals from States Parties, UNSC, or proprio motu
(on own initiative with Pre-Trial Chamber authorization); collect evidence; arrest persons;
bring prosecutions

4. The Registry
• Responsible for the non-judicial aspects of the Court's administration
• Headed by the Registrar (elected by the judges for a 5-year renewable term)
 • Functions: Court's administrative backbone — manages victim participation, witness
protection, legal aid, detention, public information, translations

5. The Assembly of States Parties (ASP)

• One representative per state party — each state has one vote
• Meets annually (regular session) or in special session
• Elects judges, Prosecutor, Deputy Prosecutors, Registrar
• Approves the Court's budget
• Adopts amendments to the Rome Statute
• Discusses matters relating to the ICC's functioning

Composition of Judges
• 18 judges total — elected by the ASP for 9-year non-renewable terms
• No two judges may be nationals of the same state
• Representation criteria (Article 36(8)): Both men and women; fair geographic distribution;
representation of principal legal systems of the world; including judges with expertise in
specific areas (criminal law, international humanitarian law/human rights law)
• Judges must have the qualifications required for the highest judicial offices in their
respective countries, OR be experts in criminal law and procedure AND relevant areas of
international law

4.3 Jurisdiction of the ICC

(A) Subject-Matter Jurisdiction — The Four Core Crimes (Article 5)

1. Genocide (Article 6)
Definition: Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or
religious group, including:
• Killing members of the group
• Causing serious bodily or mental harm to members of the group
• Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part
• Imposing measures intended to prevent births within the group
• Forcibly transferring children of the group to another group
Key element: SPECIFIC INTENT (dolus specialis) to destroy the group as such — makes genocide
legally distinct from other mass crimes.

2. Crimes Against Humanity (Article 7)

Definition: Any of the following acts when committed as part of a WIDESPREAD OR SYSTEMATIC
attack directed against any civilian population, with knowledge of the attack:
 • Murder; Extermination; Enslavement; Deportation or forcible transfer of population
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules
of international law
• Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization
• Persecution against any identifiable group on political, racial, national, ethnic, cultural,
religious, or gender grounds
• Enforced disappearance of persons; Crime of apartheid
• Other inhumane acts of a similar character intentionally causing great suffering
Key elements: Does NOT require a state of war; the attack must be widespread (large scale) OR
systematic (organized, following a pattern/policy).

3. War Crimes (Article 8)

Definition: Grave breaches of the Geneva Conventions of 12 August 1949 AND other serious
violations of the laws and customs applicable in international or non-international armed conflict.
• Intentional killing; Torture or inhuman treatment; Willfully causing great suffering
• Extensive destruction and appropriation of property not justified by military necessity
• Unlawfully deporting or transferring civilians
• Intentionally directing attacks against civilian population or civilian objects
• Employing prohibited weapons (poison, chemical, biological weapons)
• Using, conscripting, or enlisting child soldiers under 15 years
• Pillaging; Sexual violence; Starvation of civilians as a method of warfare

4. Crime of Aggression (Article 8 bis — added by Kampala Amendment 2010, in force

2018)
Definition: Planning, preparation, initiation, or execution by a person in a leadership position (who
effectively controls the state's political or military action) of an act of aggression which by its
character, gravity, and scale constitutes a manifest violation of the UN Charter.
• 'Act of aggression': invasion, military occupation, bombardment, blockade, use of territory of
another state, allowing territory to be used for acts of aggression, sending armed bands or
mercenaries
• Only applies where BOTH the aggressor state and the victim state are parties to the Rome
Statute AND have not opted out
• UNSC has a special role — if UNSC determines aggression, the Prosecutor can proceed; if
UNSC does not determine, Prosecutor can proceed after 6-month waiting period with Pre-
Trial Division authorisation

(B) Personal Jurisdiction

• ICC has jurisdiction over NATURAL PERSONS only (Article 25) — not states (states are
subject to the ICJ, not the ICC)
• Minimum age of criminal responsibility: 18 years (Article 26) — persons under 18 at the time
of commission are excluded
 • No immunity for official capacity (Article 27): The Rome Statute applies equally to all
persons — heads of state, government officials, military commanders — official capacity
does not confer immunity or reduce sentence
• Command/superior responsibility (Article 28): Military commanders and civilian superiors are
criminally responsible for crimes committed by forces/subordinates under their effective
command and control, if they knew or should have known and failed to take necessary
measures

(C) Temporal Jurisdiction

• ICC has jurisdiction only over crimes committed AFTER 1 July 2002 (the date the Rome
Statute entered into force)
• NOT retroactive — cannot prosecute crimes committed before this date
• For states that ratify after 1 July 2002: ICC jurisdiction begins from the date of ratification
(unless the state makes a declaration under Article 12(3))

(D) Territorial and Personal (Nationality) Jurisdiction — 'Trigger Conditions'

The ICC can exercise jurisdiction over crimes committed:
• On the territory of a State Party (including ships and aircraft registered in a State Party)
• By a national of a State Party (wherever the crime is committed)
• By a non-national on the territory of a non-State Party IF that state has accepted ICC
jurisdiction by way of Article 12(3) declaration
• In any situation referred by the UN Security Council under Chapter VII — this gives the ICC
universal reach, covering non-States Parties (e.g., referral of Libya 2011, Darfur/Sudan
2005)

(E) Principle of Complementarity (Article 17) — THE CENTRAL PRINCIPLE

The ICC is complementary to national criminal jurisdictions — it is a court of LAST RESORT. The
ICC can exercise jurisdiction ONLY when a state is UNABLE or UNWILLING to genuinely
prosecute.

Conditions for ICC Admissibility (Article 17)

• Unwillingness: The state is conducting proceedings to shield the person from criminal
responsibility; there has been an unjustified delay in proceedings; proceedings not
conducted independently or impartially
• Inability: Total or substantial collapse of national judicial system; national system is
unavailable — making it unable to carry out proceedings
• Case not of sufficient gravity: ICC focuses only on the most serious crimes — minor cases
may be inadmissible even if the above conditions are met

★ EXAM TIP / KEY RULE: COMPLEMENTARITY — Key Exam Point: The ICC does NOT
replace national courts. It supplements them. A state that is genuinely investigating and
 prosecuting ICC crimes is protected — the ICC cannot take over the case. Only when
states fail does the ICC step in.

4.4 Penalties (Article 77)

• Imprisonment: Up to maximum of 30 years
• Life imprisonment: For crimes of extreme gravity, justified by the individual circumstances of
the convicted person
• Fine: In addition to or instead of imprisonment
• Forfeiture: Of proceeds, property, and assets derived directly or indirectly from the crime
• NO capital punishment (death penalty): This was a deliberate policy choice to secure
broader state acceptance and ratification of the Rome Statute
Sentences are served in states that have indicated willingness to accept convicted persons. The
ICC maintains a Detention Centre at The Hague for pre-trial and trial detention.

4.5 Law Applied by the ICC (Article 21 — Applicable Law)

Article 21 establishes a hierarchy of applicable law:
18. The Rome Statute, the Elements of Crimes (adopted by ASP, clarify the elements of each
offence), and the Rules of Procedure and Evidence — PRIMARY SOURCE
19. Applicable treaties and principles and rules of international law, including the established
principles of the international law of armed conflict — SECONDARY SOURCE
20. Failing the above: General principles of law derived by the Court from national laws of legal
systems of the world, including the national laws of states that would normally exercise
jurisdiction over the crime — TERTIARY SOURCE
In all cases, the application and interpretation of law must be consistent with internationally
recognised human rights.

4.6 Pre-Trial, Trial, and Appeals Chambers

Pre-Trial Chamber (PTC)
Functions
• Authorization of investigation: In proprio motu investigations (initiated by Prosecutor on own
initiative), the Pre-Trial Chamber must authorize the commencement of investigation
• Issuance of warrants: Issues arrest warrants (if satisfied there are reasonable grounds to
believe the person committed a crime) or summonses to appear
• Confirmation of charges: Before trial, holds a hearing to determine whether there is
'sufficient evidence to establish substantial grounds to believe' the person committed each
charged crime. If confirmed → case proceeds to Trial Chamber; if not confirmed → charges
dismissed
 • Protecting victims and witnesses: Can order protective measures
• State cooperation: Can rule on challenges to state cooperation obligations

Trial Chamber (TC)

Functions
• Conducts the full trial — ensures it is fair, expeditious, and conducted with full respect for
the rights of the accused
• The accused is presumed innocent until proven guilty beyond reasonable doubt (Article 66)
• Hears all evidence — prosecution and defence
• May hear victims' representations and evidence
• Makes findings of fact (what happened) and law (whether the acts constitute the charged
crimes)
• Pronounces guilty/not guilty verdict
• If guilty: holds a separate sentencing hearing and determines the appropriate sentence

Rights of the Accused (Article 67)

• Right to be informed promptly of charges
• Right to have adequate time and facilities to prepare defence
• Right to counsel of own choosing; if indigent, free legal assistance
• Right to be present at trial
• Right to examine witnesses against them and call witnesses
• Right to an interpreter
• Right to silence — no adverse inference drawn from silence

Appeals Chamber
Who Can Appeal
• Prosecution or defence may appeal against: a decision on jurisdiction or admissibility; an
acquittal or conviction; a sentence
• Both prosecution and defence may seek leave to appeal against interlocutory decisions

Grounds of Appeal (Article 81)

• Procedural error
• Error of fact that affected the decision
• Error of law
• Disproportion between the crime and the sentence (sentence appeals)

Powers on Appeal
• Affirm, reverse, or amend the decision or sentence
• Order a new trial before a different Trial Chamber
 • Vary the sentence as appropriate

4.7 India and the ICC — Detailed Analysis

India's Position
• India participated actively in the Rome Conference negotiations (1998) but voted AGAINST
the adoption of the Rome Statute
• India has NOT signed or ratified the Rome Statute
• India is NOT a State Party to the Rome Statute

India's Specific Objections

• 1. Definition of Aggression: India felt the definition was vague and gave the UN Security
Council (where P5 have veto) too much power to determine whether aggression has
occurred — making the ICC politically selective
• 2. Nuclear weapons exclusion: Nuclear weapons are not listed as prohibited weapons under
Article 8 war crimes — India (which has nuclear weapons) was concerned about selective
application of war crimes definitions
• 3. UN Security Council referral power: Under Article 13(b), the UNSC can refer non-States
Parties to the ICC. India objected that P5 members can refer others but cannot themselves
be referred (due to their veto power) — 'double standard'
• 4. Proprio motu prosecutor: India was concerned about an independent Prosecutor who
could initiate investigations on his/her own motion — potential for politically motivated
prosecutions
• 5. Adequacy of national system: India argued its own domestic courts are fully capable of
prosecuting atrocity crimes — the complementarity trigger should not apply to India

India's Continued Engagement

• Despite non-ratification, India engages with ICC discussions at the UN level
• India has supported some UN resolutions related to international criminal justice
• Domestic law: India's own laws (IPC, now BNS) cover offences that broadly correspond to
ICC crimes — genocide-like offences, war crimes under Geneva Conventions Act 1960
UNIT V: INTERNATIONAL TRADE DISPUTES (11
Hrs)
5.1 Historical Background — From GATT to WTO
International trade in the modern era is governed by a complex web of bilateral and multilateral
trade agreements. The General Agreement on Tariffs and Trade (GATT 1947) was the first
multilateral framework for international trade liberalization. It was followed by the establishment of
the World Trade Organization (WTO) in 1995, which took over and significantly improved upon
GATT's dispute settlement mechanisms.

5.2 Settlement of Disputes Under GATT 1947

(A) Overview of GATT
• GATT was signed: 30 October 1947, entered into force: 1 January 1948
• GATT was a treaty, not an organization — it had no formal institutional structure
• Purpose: Reduce tariffs and other trade barriers; eliminate discriminatory treatment in
international commerce
• Key principles: Most-Favoured-Nation (MFN) treatment (Article I); National Treatment
(Article III); prohibition of quantitative restrictions
• GATT was originally intended as a temporary arrangement pending the establishment of the
International Trade Organization (ITO) — but the ITO never came into being

(B) Dispute Settlement Under GATT

Primary Articles
• Article XXII — Consultations: If a GATT member considers that any benefit under GATT is
being nullified or impaired, it may make representations to the other state; the other state
must give sympathetic consideration
• Article XXIII — Nullification or Impairment: If consultations fail, the matter can be referred to
the Contracting Parties (all GATT members acting collectively)

Evolution of the Panel System

• The Panel System developed through practice and custom — not through formal treaty
provisions
• The Contracting Parties would appoint a Panel of 3 experts to examine the dispute and
issue a report with findings and recommendations
• Initially, panels were composed of government representatives; later, independent trade law
experts were preferred

Critical Weaknesses of GATT Dispute Settlement

 • Consensus Requirement for Adoption: A panel report had to be adopted by ALL Contracting
Parties — including the losing party. This meant the losing party could simply BLOCK
adoption of the panel report by withholding consent — the system was effectively powerless
• No automatic panel establishment: A respondent could delay or prevent the establishment
of a panel by refusing consensus
• No appellate review: No mechanism to review or correct panel findings on legal questions
• Slow and unreliable timelines: No binding deadlines; cases could drag on for years
• No enforcement mechanism: Even if a report was adopted, there was no clear mechanism
to ensure compliance
• Limited legal sophistication: Panels were diplomatic bodies, not legal tribunals — emphasis
on pragmatic solutions rather than strict legal analysis

★ EXAM TIP / KEY RULE: The GATT system's fatal flaw: The LOSING PARTY could block
the adoption of the panel report. This single deficiency made the entire dispute settlement
system unenforceable and created a credibility crisis for GATT in the 1980s. This directly
led to the creation of the WTO DSU with 'negative consensus.'

5.3 Settlement of Disputes Under the WTO

(A) The WTO — Overview
• Established: 1 January 1995 by the Marrakesh Agreement Establishing the WTO (1994),
concluded at the end of the Uruguay Round of GATT negotiations
• Headquarters: Centre William Rappard, Geneva, Switzerland
• Members: 164 member states (as of 2024) — representing over 98% of world trade
• India: Founding member of the WTO
• Functions: Administer WTO Agreements; forum for trade negotiations; settle trade disputes;
review trade policies; technical cooperation

(B) The Dispute Settlement Understanding (DSU)

The WTO's dispute settlement system is governed by the Understanding on Rules and Procedures
Governing the Settlement of Disputes (DSU), which is Annex 2 to the Marrakesh Agreement. It is
widely regarded as the most sophisticated and effective international dispute settlement mechanism
in existence — the jewel in the crown of the WTO.

Key Structural Improvements Over GATT

• 1. Negative Consensus (Reverse Consensus): Unlike GATT, under the WTO DSU, panel
establishment, report adoption, and authorisation of retaliation all proceed UNLESS there is
a consensus to stop them. Since the losing party is the only one interested in blocking, and
it needs a consensus (including the winning party) to block, reports are automatically
adopted. This transforms the system from one where the loser can veto to one where
adoption is nearly automatic.
 • 2. Binding Timelines: Strict deadlines at each stage — total dispute resolution in
approximately 15 months under normal circumstances
• 3. Appellate Review: A permanent Appellate Body (7 members) was created to review panel
decisions on questions of law and legal interpretation — addressing the GATT weakness of
no review
• 4. Cross-Retaliation: If the losing party does not comply, the winning party may be
authorised to suspend concessions — including in other sectors or agreements (cross-
retaliation)
• 5. Single Undertaking: All WTO Agreements (including DSU) apply to all members — no
cherry-picking

(C) Dispute Settlement Body (DSB)

• The DSB is the General Council of the WTO meeting in a special capacity
• Functions: Establishes panels; adopts panel and Appellate Body reports; authorizes
suspension of concessions (retaliation); supervises implementation of rulings
• One representative per member; decisions by negative consensus (consensus NOT to act,
rather than consensus to act)

(D) Detailed Stages of WTO Dispute Settlement

Stage 1 — Consultations (Article 4 DSU)

• Mandatory first step — disputing member must request consultations in writing
• Respondent must reply within 10 days and enter consultations within 30 days of the request
• Consultations are confidential — aimed at reaching a mutually agreed solution
• If no solution is reached within 60 days, complainant may request panel establishment
• Third parties with substantial interest may request to join consultations

Stage 2 — Panel Establishment and Composition (Articles 6-8 DSU)

• If consultations fail, the complainant requests the DSB to establish a panel
• DSB must establish a panel at the latest at the second DSB meeting at which the request
appears (negative consensus applies — automatic establishment unless all members
object)
• Panel composed of 3 members (or 5 by mutual agreement) — government officials or
independent trade experts
• Panel members selected by WTO Secretariat from an indicative list; if no agreement in 20
days, Director-General appoints

Stage 3 — Panel Examination (Article 12 DSU)

• Panel sets its own working procedures
• Receives written submissions from complainant, respondent, and third parties
• Holds oral hearings (usually two rounds)
 • May seek information from experts or technical expert groups
• Issues Interim Report (with findings) for parties to comment
• Issues FINAL PANEL REPORT — within 6 months (9 months for complex cases)

Stage 4 — Appellate Review (Article 17 DSU)

• Either party may appeal the panel report to the Appellate Body within 60 days of its
circulation
• Appellate Body: 7 members (in normal operation), serving 4-year terms renewable once;
broadly representative of WTO membership
• Appeals limited to ISSUES OF LAW and LEGAL INTERPRETATIONS in the panel report —
cannot appeal findings of fact
• Appellate Body Report issued within 60 days (90 days maximum)
• Appellate Body may uphold, modify, or reverse the panel's legal findings

Stage 5 — Adoption of Reports

• Panel and Appellate Body reports are adopted by the DSB within 30 days of circulation
UNLESS the DSB decides by consensus NOT to adopt (negative consensus)
• In practice, reports are ALWAYS adopted — the negative consensus threshold is
insurmountable for the losing party

Stage 6 — Implementation and Compliance

• The losing member must notify the DSB of its intention to comply and is given a 'reasonable
period of time' (RPT) to implement — usually 15 months, agreed by parties or determined by
arbitration
• If the losing member fails to comply by the end of the RPT, the winning member may
request authorisation to suspend concessions — i.e., impose retaliatory tariffs or other
measures
• Cross-retaliation: Winning party may suspend concessions in a different sector or even
under a different WTO Agreement from the one at issue in the dispute (e.g., suspend
intellectual property rights in response to an agricultural dispute)

(E) The Appellate Body Crisis

The WTO Appellate Body (AB) has been effectively paralysed since December 2019. The USA has
been blocking the appointment of new AB members since 2017, citing concerns about AB
overreach, slow proceedings, and what it sees as judicial activism. As the terms of AB members
expired without replacements, the AB fell below its minimum quorum of 3 members and can no
longer hear appeals.

Impact of the Crisis

• Losing parties can 'appeal into the void' — file an appeal even though the AB cannot hear it,
thereby suspending the adoption of the panel report indefinitely
• This undermines the binding nature of WTO dispute settlement
 • USA has used this mechanism to avoid compliance in multiple disputes

Multi-Party Interim Arrangement (MPIA)

• In 2020, a group of WTO members (including EU, China, India, and others — 53 members
as of 2023) created the MPIA as an alternative appellate mechanism for disputes among
themselves
• MPIA is a temporary workaround — it does not solve the core AB crisis
• USA and several other major trading nations are not part of MPIA

(F) India and WTO Dispute Settlement

• India has been one of the most active WTO members in dispute settlement — both as
complainant and respondent
• Notable cases involving India: India — Quantitative Restrictions on Imports (1999,
WT/DS90): USA challenged India's balance of payments-justified import restrictions; USA
won; India — Additional Duties on Imports from the USA (2008, WT/DS360): India imposed
additional duties on US agricultural and certain other products; USA challenged; India lost;
India — Measures Concerning Solar Cells and Solar Modules (2016, WT/DS456): USA and
EU challenged India's domestic content requirements under the Jawaharlal Nehru National
Solar Mission; India lost but argued developmental justification; India — Export Related
Measures (2019, WT/DS541): USA challenged various Indian export subsidy programs; AB
ruled against India on most counts
• India has generally cooperated with WTO dispute settlement, though implementation has
sometimes been contested
UNIT VI: INTERNATIONAL COMMERCIAL DISPUTE
RESOLUTION (11 Hrs)
6.1 Introduction — The Nature of International Commercial Disputes
International commercial disputes arise between private parties — corporations, business entities,
or individuals — from different states, in the context of cross-border transactions. Unlike public
international law disputes (which are between states), international commercial disputes involve
private rights arising from contracts, investments, trade, shipping, intellectual property, banking, and
other commercial activities.

Distinctive Challenges of International Commercial Disputes

• Jurisdiction: Which national court has authority? (Determined by conflict of laws/private
international law rules, choice-of-court agreements)
• Choice of law: Which country's substantive law governs the contract or dispute?
• Enforcement: A judgment of a French court may be unenforceable in India — unlike arbitral
awards which are enforceable under the New York Convention in 170+ countries
• Language and legal culture: Different legal systems, languages, and procedural traditions
create barriers
• Cost and time: Litigation in national courts is often expensive, slow, and unpredictable in a
foreign country

6.2 Litigation in International Commercial Disputes

Litigation refers to the resolution of disputes through national courts. While litigation is the traditional
mechanism, it faces severe limitations in the international commercial context.

Jurisdiction of National Courts

• National courts assert jurisdiction based on: presence/domicile of defendant; place of
contract formation; place of performance; express choice-of-court agreement; presence of
assets
• Many commercial contracts include forum selection clauses designating a specific court
• The Hague Choice of Court Convention (2005): Provides that a court designated in a
choice-of-court agreement has exclusive jurisdiction and other courts must decline
jurisdiction — enhances predictability

Recognition and Enforcement of Foreign Judgments

• Major gap: There is NO universal multilateral treaty requiring recognition of foreign court
judgments (unlike arbitral awards under the New York Convention)
• Enforcement depends on bilateral treaties, domestic law of the enforcing state, or common
law rules (reciprocity, public policy grounds for refusal)
 • Hague Judgments Convention (2019): Multilateral convention for enforcement of
civil/commercial judgments — not yet widely ratified

Limitations of Litigation
• Enforcement problem: Foreign judgments are not automatically enforceable
• Lack of neutrality: Parties from different countries may distrust each other's national courts
• Public proceedings: Commercial disputes are often commercially sensitive
• Slow: National court dockets are often congested

6.3 International Commercial Arbitration (ICA)

International Commercial Arbitration (ICA) is by far the most widely used and preferred method for
resolving international business disputes. It is a consensual, private dispute resolution mechanism
by which parties agree to submit their disputes to a privately constituted tribunal of one or more
arbitrators, whose award is final, binding, and enforceable under the New York Convention
worldwide.

(A) Definition and Legal Basis

ICA Definition International commercial arbitration is a method of resolving
international commercial disputes outside national courts, pursuant to
an agreement between the parties, before arbitrators selected by or on
behalf of the parties, in proceedings which are private and whose
outcome is a binding, final, and enforceable award.

'International' Element (UNCITRAL Model Law, Article 1)

• Parties have their places of business in different states, OR
• The place of arbitration or the place of performance is outside the state where the parties
have their principal places of business, OR
• The subject-matter of the dispute relates to more than one country

(B) Advantages of ICA over Litigation

Parameter International Arbitration National Court Litigation

Neutrality Neutral arbitrators, neutral venue — Risk of home court bias for local party
no home court advantage
Enforceability New York Convention — enforceable No universal enforcement treaty —
in 170+ countries depends on bilateral arrangements
Confidentiality Proceedings and award are private — Court proceedings are generally
unless parties agree otherwise public
Expertise Arbitrators can be chosen for Judges may lack specialized
 technical/industry expertise commercial/industry knowledge
Flexibility Parties choose rules, venue, Fixed by national court rules — no
language, number of arbitrators, party autonomy
procedural timeline
Finality Very limited grounds for challenge — Lengthy appeals process may extend
award is final litigation for years
Speed Generally faster than national courts Congested dockets cause significant
(with disciplined management) delays

(C) The New York Convention 1958 — The Cornerstone

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) —
popularly known as the 'New York Convention' — is the single most important instrument in
international commercial arbitration. It creates a near-universal obligation to recognise and enforce
foreign arbitral awards.

• Adopted: 10 June 1958 at the UN Conference on International Commercial Arbitration in

New York
• In force: 7 June 1959
• States parties: 172 as of 2024 — covers virtually all major trading nations
• India ratified: 1960

Key Obligations Under the New York Convention

• Article II: Each contracting state must recognise an arbitration agreement in writing and refer
parties to arbitration if a dispute covered by such an agreement is brought before its court
• Article III: Each contracting state must recognise arbitral awards as binding and enforce
them in accordance with its rules of procedure
• Article IV: Party seeking enforcement submits: (1) duly authenticated original award or
certified copy, (2) original arbitration agreement or certified copy

Exhaustive Grounds for Refusing Enforcement (Article V — very narrow)

• V(1)(a): The arbitration agreement was invalid under its governing law, OR parties lacked
capacity
• V(1)(b): Party was not given proper notice of appointment of arbitrators or of the
proceedings, or was unable to present its case
• V(1)(c): Award deals with matters beyond the scope of the arbitration agreement
• V(1)(d): Composition of the arbitral tribunal or procedure was not in accordance with the
agreement of the parties or failing such agreement, the law of the seat
• V(1)(e): Award has not yet become binding on the parties, or has been set aside or
suspended by a competent authority of the seat state
• V(2)(a): Subject-matter of the dispute is not capable of settlement by arbitration under the
law of the enforcing country (non-arbitrability)
 • V(2)(b): Enforcement of the award would be contrary to the public policy of the enforcing
country

★ EXAM TIP / KEY RULE: The grounds for refusing enforcement under the New York
Convention are EXHAUSTIVE and interpreted NARROWLY by courts worldwide. The
'public policy' ground — the most commonly invoked — is limited to fundamental
principles of the enforcing state's legal system. Mere errors of law or fact in the award are
NOT grounds for refusal.

(D) Indian Law — Arbitration and Conciliation Act, 1996

India's principal statute governing arbitration is the Arbitration and Conciliation Act, 1996 (the
'Arbitration Act'), which was modelled on the UNCITRAL Model Law on International Commercial
Arbitration (1985). It has been significantly amended by the Arbitration and Conciliation
(Amendment) Acts of 2015, 2019, and 2021.

Structure of the Arbitration Act

• Part I (Sections 1-43): Domestic arbitration and international commercial arbitration with seat
in India — based on UNCITRAL Model Law
• Part II (Sections 44-60): Enforcement of foreign awards (Section 44-52: New York
Convention awards; Section 53-60: Geneva Convention awards)
• Part III (Sections 61-81): Conciliation — based on UNCITRAL Conciliation Rules
• Part IV: Supplementary provisions

Key Provisions and Amendments

• Section 8: If a valid arbitration agreement exists, court must refer parties to arbitration
• Section 11: Appointment of arbitrators — High Courts and Supreme Court (for international
commercial arbitrations) have been designated arbitration-appointing authorities
• Section 17 and 9: Interim measures — by arbitral tribunal (Section 17) and by courts
(Section 9)
• Section 28: Applicable law — arbitral tribunal applies rules of law designated by parties;
otherwise, rules with which the dispute has the closest connection
• Section 34: Setting aside award — very limited grounds (same as NY Convention Article V)

2015 Amendment Key Changes

• Section 29A: Time limit for making award — 12 months from date of completion of pleadings
(extendable by 6 months by party consent; beyond that, court extension only with good
cause)
• Section 29B: Fast track procedure — sole arbitrator, documents-only arbitration — award in
6 months
• Automatic stay on enforcement removed — stay requires special showing
2019 Amendment Key Changes
• Arbitration Council of India (ACI): Established as an independent body to grade and accredit
arbitral institutions
• Institutional arbitration promoted: Designated arbitral institutions (e.g., MCIA, DIAC) to
appoint arbitrators — reducing court involvement
• Confidentiality obligations explicitly introduced (Section 42A)

6.4 International Commercial Arbitral Institutions

Institutio Full Name Seat Key Rules Specialty
n

ICC Court International Chamber Paris, France ICC Rules Largest caseload globally;
of Commerce — 2021 international commercial
International Court of disputes; scrutiny of
Arbitration awards before publication
LCIA London Court of London, UK LCIA Rules Major institution; emphasis
International Arbitration 2020 on speed and cost control;
widely used for finance and
energy disputes
SIAC Singapore International Singapore SIAC Rules Asia's leading arbitration
Arbitration Centre 2016 (2025 centre; expedited
update) procedure; emergency
arbitration
ICSID International Centre for Washington ICSID Exclusive jurisdiction over
Settlement of DC (World Convention investor-state investment
Investment Disputes Bank Group) 1965; ICSID disputes; self-contained —
Rules 2022 enforcement regime
independent of NY
Convention
PCA Permanent Court of The Hague, UNCITRAL Administers inter-state,
Arbitration Netherlands Rules; PCA investor-state, and
Rules complex commercial
arbitrations; State-related
disputes
MCIA Mumbai Centre for Mumbai, MCIA Rules India's premier
International Arbitration India 2016 international arbitration
institution; promotes India
as arbitration hub

6.5 Alternative Dispute Resolution (ADR)

ADR encompasses all dispute resolution processes other than litigation and formal arbitration. In
international commercial disputes, ADR is increasingly used because it is faster, cheaper, and
preserves business relationships.
(A) International Commercial Mediation
Mediation in the commercial context is a confidential, non-binding process in which a neutral
mediator assists the parties in identifying their underlying interests and reaching a negotiated
settlement. The mediator does not impose a decision.

Legal Framework
• UNCITRAL Model Law on International Commercial Mediation and International Settlement
Agreements Resulting from Mediation (2018): Replaces the 2002 UNCITRAL Model Law on
Conciliation; provides a uniform legal framework for commercial mediation
• Singapore Convention on Mediation (2019): The United Nations Convention on International
Settlement Agreements Resulting from Mediation — provides for the direct enforcement of
mediated settlement agreements in contracting states, similar to the New York Convention
for arbitration. India signed in 2019 but has NOT yet ratified.
• India: Mediation Act, 2023 — provides domestic framework for commercial mediation in
India; contemplates enforcement of mediated settlement agreements as a decree

Advantages of Mediation
• Parties retain control over outcome — no binding decision imposed
• Faster and cheaper than arbitration or litigation
• Confidential — protects commercial reputation
• Preserves business relationships — the process is collaborative, not adversarial
• High settlement rates — mediation succeeds in 70-80% of commercial cases where parties
engage seriously

(B) Expert Determination

• A neutral expert (accountant, engineer, valuer, technical specialist) is appointed to
determine a specific disputed question — usually a technical or valuation issue
• The expert's determination is BINDING on the parties (unlike mediator's proposal which is
advisory)
• Used in: M&A disputes (purchase price adjustments), construction (technical defects),
accounting disputes, oil and gas (quantity and quality disputes)
• Procedure is informal and document-based — no formal pleadings or hearings required

(C) Dispute Boards

• A Dispute Board (DB) is a standing panel of independent experts appointed at the start of a
long-term contract — typically large infrastructure or construction projects
• The DB visits the project site regularly, monitors progress, and is familiar with the project
from the outset
• When a dispute arises, the DB can quickly issue a decision based on its prior knowledge of
the project
 • Types: Dispute Adjudication Board (DAB) — binding decisions; Dispute Review Board
(DRB) — recommendations only; Combined Dispute Board (CDB) — hybrid
• FIDIC Contracts (commonly used in international infrastructure): Use Dispute Adjudication
Boards mandatorily

(D) Mini-Trial
• Senior executives of each disputing company (who have settlement authority) are presented
with a summary of each side's best case by their legal counsel
• A neutral advisor (often a retired judge or senior lawyer) may facilitate and offer a non-
binding opinion on the likely outcome of litigation
• After hearing both sides, the senior executives then negotiate directly — with a realistic
sense of each side's legal merits
• Particularly effective where the executives are not directly involved in the dispute and have
not been exposed to the merits
UNIT VII: SETTLEMENT OF DISPUTES UNDER THE
LAW OF THE SEA (10 Hrs)
7.1 Introduction — UNCLOS and the Law of the Sea
The oceans cover approximately 71% of the Earth's surface and are critically important for trade,
resources, security, and the environment. The legal framework governing all aspects of ocean
space is the United Nations Convention on the Law of the Sea (UNCLOS), 1982, which entered into
force on 16 November 1994. UNCLOS is often called the 'Constitution of the Oceans'.

Key Maritime Zones Under UNCLOS

• Internal Waters: Landward of the baseline — full sovereignty
• Territorial Sea (Article 3-16): Up to 12 nautical miles from baseline — sovereignty subject to
right of innocent passage
• Contiguous Zone (Article 33): Up to 24 nm — limited control for customs, immigration,
sanitation, fiscal matters
• Exclusive Economic Zone (Article 55-75): Up to 200 nm — sovereign rights for exploration,
exploitation, conservation, and management of resources; freedom of navigation for other
states
• Continental Shelf (Article 76): Natural prolongation of land territory — sovereign rights for
exploration and exploitation of natural resources of the seabed and subsoil; can extend to
350 nm or more with CLCS recommendation
• High Seas (Article 87): Beyond EEZ — open to all states; freedom of navigation, overflight,
fishing, scientific research
• The Area (Article 1): The seabed and ocean floor and subsoil beyond national jurisdiction —
declared 'common heritage of mankind' (Article 136)

★ EXAM TIP / KEY RULE: India ratified UNCLOS on 29 June 1995. India's EEZ extends
200 nm around its coastline and island territories, making it one of the largest EEZs in the
world.

7.2 Dispute Settlement Framework Under UNCLOS (Part XV)

Part XV of UNCLOS (Articles 279-299) provides a comprehensive and binding dispute settlement
system. The general approach is: parties must first try to settle by any peaceful means of their
choice (Article 279). If that fails, they may use the compulsory procedures under Section 2.

(A) Obligation to Exchange Views (Article 283)

• Before invoking compulsory procedures, parties must exchange views regarding settlement
by negotiation or other means
 • This is a procedural prerequisite — failure to comply does not bar the use of compulsory
procedures but may affect admissibility

(B) Optional Conciliation (Annex V, Section 1)

• Any party may submit to compulsory conciliation on matters listed in Article 297 and 298
even if the dispute would otherwise be excluded from compulsory binding proceedings
• Conciliation under Annex V — conciliation commission issues a non-binding report with
recommendations

(C) The Four Compulsory Binding Procedures (Article 287)

If other means of settlement fail, any party to a dispute may submit it to one of the following
compulsory procedures, which result in binding decisions:

1. International Tribunal for the Law of the Sea (ITLOS)

• Dedicated international court for law of the sea disputes — established by Annex VI,
UNCLOS
• Seat: Hamburg, Germany

2. International Court of Justice (ICJ)

• The ICJ also has jurisdiction over UNCLOS disputes for states that select it

3. Annex VII Arbitration

• Ad hoc arbitral tribunal constituted under Annex VII of UNCLOS — 5 members
• DEFAULT PROCEDURE: If a state has not made a declaration under Article 287, or if the
declarations of the disputing parties do not match (i.e., they chose different forums), Annex
VII Arbitration is automatically the applicable procedure
• The PCA usually administers Annex VII arbitrations

4. Annex VIII Special Arbitration

• Ad hoc special arbitral tribunal for specific technical categories of disputes: fisheries,
protection and preservation of the marine environment, marine scientific research,
navigation (including pollution from vessels and by dumping)
• Composed of experts in the relevant field — not just lawyers

★ EXAM TIP / KEY RULE: DEFAULT RULE — CRITICAL FOR EXAMS: If the parties'
Article 287 declarations don't match (or no declaration was made), Annex VII Arbitration
is the default compulsory procedure. This is why the Philippines vs China South China
Sea dispute was decided by an Annex VII tribunal — China had not made an Article 287
declaration.
(D) Declaration under Article 287
• States may at any time make a declaration choosing one or more of the four forums as their
preferred procedure
• If both parties to a dispute have accepted the same procedure, only that procedure applies
• If declarations don't match → Annex VII Arbitration as default
• Declarations can be made with conditions or reservations — some states choose ITLOS
only for provisional measures and ICJ for the merits

(E) Limitations on Compulsory Jurisdiction — Excluded Disputes (Article 297-

298)
• Article 297: Compulsory binding procedures do NOT apply to: exercise of sovereign rights or
jurisdiction over EEZ activities (fishing, scientific research) where UNCLOS gives the coastal
state discretion; military activities; disputes before the UNSC
• Article 298: States may OPTIONALLY EXCLUDE: maritime boundary delimitation disputes
between neighbouring states (Article 298(1)(a)) — most major states have invoked this
exclusion; disputes concerning law enforcement activities (Article 298(1)(b)); disputes in
respect of which the UNSC is exercising its functions (Article 298(1)(c))
• India invoked Article 298 exclusions — excluding maritime boundary delimitation and military
activities from compulsory procedures

7.3 The International Tribunal for the Law of the Sea (ITLOS)
(A) Establishment and Basic Facts
• Established by: Annex VI of UNCLOS; operationalized in 1996
• Seat: Hamburg, Germany (at the ITLOS Building, Am Internationalen Seegerichtshof)
• First case: The M/V Saiga Case (1997 — Saint Vincent and the Grenadines v Guinea)

(B) Composition
• 21 judges elected by UNCLOS States Parties for 9-year terms (renewable)
• 7 judges elected every 3 years (staggered elections for continuity)
• No two judges may be nationals of the same state
• Composition must reflect: equitable geographical distribution; representation of principal
legal systems of the world; adequate representation of each of the main maritime user
groups (coastal states, landlocked states, geographically disadvantaged states)
• Judges must be persons of recognised competence in the field of the law of the sea

(C) Chambers of ITLOS

1. Seabed Disputes Chamber (SDC)
• 11 judges selected from the ITLOS judges by the full Tribunal
 • EXCLUSIVE JURISDICTION over disputes relating to activities in the 'Area' (the
international seabed area beyond national jurisdiction and its resources — common heritage
of mankind)
• Can hear disputes between: States Parties; States Parties and the International Seabed
Authority; the ISA and contractors; contractors inter se
• Can also give ADVISORY OPINIONS at the request of the Assembly or Council of the
International Seabed Authority (ISA)

2. Chamber for Summary Procedure

• 5 judges (President, Vice-President, 3 others) — constituted annually
• Handles urgent cases on a fast-track basis

3. Special Chambers (Article 15)

• ITLOS may form chambers for particular categories of cases (e.g., fisheries disputes, marine
environment disputes) or for a particular dispute (ad hoc chamber)
• Chamber for Marine Environment Disputes — permanently constituted
• The composition of a special chamber for a particular case is subject to approval of the
parties

(D) Jurisdiction of ITLOS

Contentious Jurisdiction
• All disputes and applications submitted to it under UNCLOS (where parties have selected
ITLOS under Article 287)
• All disputes and applications under any other agreement conferring jurisdiction on ITLOS

Prompt Release of Vessels and Crew (Article 292)

• Where a vessel and its crew have been detained by a state for alleged violations of
UNCLOS and the flag state believes bond or other security has not been promptly set or is
unreasonable, the flag state may apply to ITLOS (even if the main dispute is going to
another tribunal)
• ITLOS deals with these applications rapidly — within days or weeks
• Example: M/V Saiga (No. 1) 1997; M/V Virginia G (Panama v Guinea-Bissau) 2014

Provisional Measures (Article 290)

• Any court or tribunal with jurisdiction under UNCLOS can prescribe provisional measures
• KEY PROVISION: Article 290(5) — If the main dispute is to be decided by an Annex VII or
VIII tribunal, but that tribunal has not yet been constituted, EITHER PARTY may apply to
ITLOS for provisional measures in the interim. ITLOS can prescribe provisional measures
even if it will not ultimately decide the merits.
• This makes ITLOS the go-to forum for urgent interim relief in law of the sea disputes
 • Examples: Southern Bluefin Tuna Cases (1999); MOX Plant Case (2001); Arctic Sunrise
(2013)

Advisory Jurisdiction (Article 138 ITLOS Rules; UNCLOS)

• ITLOS may give advisory opinions on a legal question if an international agreement related
to the purposes of UNCLOS specifically provides for a request for such an opinion
• Seabed Disputes Chamber can give advisory opinions at the request of the ISA Assembly or
Council
• Full ITLOS: Advisory opinions at the request of certain international bodies as authorised
• 2024: ITLOS gave landmark advisory opinion on obligations of states to protect and
preserve the marine environment in the context of climate change — on request by COSIS
(Commission of Small Island States on Climate Change and International Law)

7.4 The Seabed Disputes Chamber — Detailed Study

The Seabed Disputes Chamber (SDC) is a specialized chamber of ITLOS with exclusive jurisdiction
over all disputes relating to activities in the 'Area' (Article 187 UNCLOS). The 'Area' refers to the
international seabed and ocean floor and its subsoil beyond the limits of national jurisdiction —
declared the 'common heritage of mankind' under Article 136.

The International Seabed Authority (ISA)

• Established by: UNCLOS and the 1994 Implementing Agreement
• Seat: Kingston, Jamaica
• Function: Organises and controls activities in the Area — including exploration and
exploitation of manganese nodules, polymetallic sulphides, and cobalt-rich ferromanganese
crusts
• The ISA administers the common heritage principle — any exploitation benefits must be
shared with the international community, particularly developing states and landlocked
states

SDC Advisory Opinion (2011)

• On responsibilities and obligations of states sponsoring persons and entities with respect to
activities in the Area — first advisory opinion of the SDC
• Held: Sponsoring states have a due diligence obligation to ensure that sponsored entities
comply with UNCLOS and ISA regulations; failure to comply gives rise to state responsibility;
precautionary approach applies to deep seabed mining

7.5 Landmark Cases Under the Law of the Sea

M/V Saiga Case (No. 2) (1999 | ITLOS (Full Tribunal))

Facts: Guinea detained the M/V Saiga, an oil tanker registered in Saint Vincent and the
Grenadines, which was supplying gas oil to fishing vessels in Guinea's EEZ. Guinea fired on the
vessel, injuring crew members, and prosecuted the vessel for customs violations. Saint Vincent
and the Grenadines claimed Guinea violated UNCLOS.
Held / Significance: Guinea violated UNCLOS in its hot pursuit, use of excessive force against
the vessel (the standard for use of force in law enforcement at sea requires prior warning shots,
graduated escalation — not heavy gunfire), and detention. Guinea ordered to release the vessel
and pay compensation. Established the standard for use of force in maritime law enforcement.

Southern Bluefin Tuna Cases (1999 | ITLOS (Provisional Measures) → Annex VII Tribunal)
Facts: Australia and New Zealand objected to Japan's unilateral experimental fishing program
for southern bluefin tuna, which they argued exceeded the species' total allowable catch and
threatened the species. They sought provisional measures from ITLOS.
Held / Significance: ITLOS unanimously prescribed provisional measures ordering all parties to
refrain from conducting the experimental fishing program pending the constitution and decision of
the Annex VII tribunal. Established ITLOS's authority to prescribe provisional measures under
Article 290(5) urgently. (The Annex VII tribunal subsequently found it lacked jurisdiction on the
merits.)

MOX Plant Case (2001 | ITLOS (Provisional Measures) + Annex VII Tribunal)
Facts: Ireland objected to the UK's BNFL MOX nuclear fuel reprocessing plant at Sellafield (on
the Irish Sea coast), which Ireland claimed would cause radioactive contamination of the Irish
Sea. Ireland invoked UNCLOS and sought provisional measures from ITLOS.
Held / Significance: ITLOS prescribed provisional measures requiring the parties to cooperate
and exchange information on risks and effects of the plant and to monitor the Irish Sea. Important
for the application of UNCLOS environmental obligations and the precautionary principle to
radioactive pollution.

South China Sea Arbitration (Philippines v China) (2016 | Annex VII Tribunal under
UNCLOS (administered by PCA))
Facts: Philippines brought 15 submissions challenging China's expansive maritime claims (Nine-
Dash Line), China's conduct in the South China Sea including construction of artificial islands on
submerged reefs, and interference with Philippine fishing and oil exploration in areas within
200nm of the Philippines. China refused to participate.
Held / Significance: The 5-member tribunal ruled unanimously: (1) China's Nine-Dash Line
historical rights claim has no legal basis in UNCLOS; (2) Various features in the SCS are low-tide
elevations or rocks — cannot generate EEZ; China's activities on several reefs violated
Philippines' rights in its EEZ; (3) China's interference with Philippine fishermen, including
preventing traditional fishing at Scarborough Shoal, violated UNCLOS. China announced it does
not accept or recognise the award — raising major questions about compliance in international
adjudication.

Bay of Bengal Maritime Boundary (Bangladesh v Myanmar) (2012 | ITLOS (Full

Tribunal))
Facts: Bangladesh and Myanmar had overlapping EEZ and continental shelf claims in the Bay of
Bengal. Myanmar requested that ITLOS decline jurisdiction; Bangladesh requested delimitation
of the EEZ, continental shelf, and extended continental shelf.
Held / Significance: First case decided on the merits by the full ITLOS. ITLOS delimited the EEZ
boundary using the equidistance method with adjustments for relevant circumstances, and
delimited the continental shelf beyond 200nm — a novel exercise of jurisdiction. Bangladesh
received a favourable boundary significantly east of the provisional equidistance line, given the
concavity of the Bangladesh coastline.

Arctic Sunrise Case (2013 | ITLOS (Provisional Measures) + Annex VII Tribunal)
Facts: Netherlands sought release of Greenpeace's vessel 'Arctic Sunrise' and its 30 crew
members (detained by Russia after attempting to board Russia's Prirazlomnaya oil platform in
Russia's EEZ during a protest). Russia refused to appear before ITLOS.
Held / Significance: ITLOS ordered Russia to release the Arctic Sunrise and its crew upon the
posting of a bond by the Netherlands. Russia refused to comply. The Annex VII tribunal later held
jurisdiction and found Russia's detention violated UNCLOS. Important for: flag state rights over
vessels; rights of protest at sea; ITLOS authority to act even when a state refuses to participate.

Enrica Lexie Incident (Italy v India) (2020 | Annex VII Tribunal under UNCLOS)
Facts: On 15 February 2012, two Italian marines (Massimiliano Latorre and Salvatore Girone)
posted on the Italian flagged oil tanker 'Enrica Lexie' shot and killed two Indian fishermen aboard
the 'St. Antony' approximately 20.5 nm off the Kerala coast, believing the fishing boat was a
pirate vessel. India arrested and prosecuted the marines; Italy invoked UNCLOS proceedings.
Held / Significance: The Tribunal found it had jurisdiction. On the merits: India must stop all
criminal proceedings against the marines; Italy must provide appropriate reparation in the form of
compensation; The marines, as state officials performing their functions on board an Italian
warship on the high seas, enjoyed immunity from criminal jurisdiction — India could not
prosecute them. India paid compensation to the families of the fishermen; Italy provided
reparations to India. Important for immunities of state officials and UNCLOS enforcement
jurisdiction.

Advisory Opinion on Climate Change and UNCLOS (COSIS) (2024 | ITLOS (Full
Tribunal))
Facts: Commission of Small Island States on Climate Change and International Law (COSIS —
comprising Tuvalu, Palau, and other small island states) requested an advisory opinion on the
obligations of states under UNCLOS to protect and preserve the marine environment in the
context of anthropogenic greenhouse gas emissions and climate change.
Held / Significance: ITLOS gave a comprehensive advisory opinion holding: (1) Anthropogenic
GHG emissions that result in ocean warming, sea level rise, and ocean acidification constitute
'pollution of the marine environment' under UNCLOS; (2) States have specific obligations under
Part XII of UNCLOS to prevent, reduce, and control such pollution — including obligations to
reduce GHG emissions; (3) The standard of obligation is one of due diligence — states must
adopt and implement effective measures. Landmark for international environmental law and
climate litigation.
7.6 Comprehensive Quick Revision — All Units
Unit Institution/ Key Facts Must-Know Cases
Method

I— Amicable + Art. 33 UN Charter; Amicable: Non- Mavrommatis (PCIJ) —

Settleme Compulsive binding (except arb/judicial); definition of dispute; Dogger
nt Compulsive: mostly illegal now Bank 1904 — enquiry
Methods
II — PCA Permanent Est. 1899; NOT a court; Panel of Alabama Claims 1872; Island
Court of Members (up to 4/state, 6yr); Admin of Palmas 1928; Trail Smelter
Arbitration Council; International Bureau; 1941; South China Sea 2016;
Consent-based Kishenganga 2013
III — ICJ International 15 judges; 9yr terms; Art. 92-96 UN Corfu Channel 1949;
Court of Charter; Contentious + Advisory; Art. Nicaragua 1986; LaGrand
Justice 36(2) Optional Clause; Only states; 2001; Barcelona Traction 1970
No stare decisis; Provisional (erga omnes); Kulbhushan
measures BINDING (LaGrand) Jadhav 2019
IV — ICC International Rome Statute 1998; 18 judges; 4 Nuremberg 1945 (pre-ICC);
Criminal crimes: Genocide, CAH, War Crimes, Kampala Amendment 2010
Court Aggression; Complementarity; NO (aggression); Art. 27 (no
death penalty; India NOT a party; immunity); Art. 28 (command
UNSC can refer non-parties responsibility)
V — WTO DSU/DSB DSU 1995; 164 members; Negative India — Solar Cells 2016;
consensus (auto-adoption); Stages: India — Export Measures
Consultation → Panel → AB → 2019; AB crisis — USA
Adoption → Implementation; AB blocking appointments
Crisis 2019; MPIA 2020
VI — ICA ICC, LCIA, New York Convention 1958 (172 New York Convention
SIAC, ICSID, parties); Art. V — exhaustive refusal ratification 1960 (India);
PCA, MCIA grounds; Complementarity with Mediation Act 2023 (India)
national courts; India: Arb Act 1996
(2015/2019/2021 amendments);
Singapore Convention 2019
(mediation)
VII — ITLOS, ICJ, UNCLOS 1982; Part XV (Art 279- M/V Saiga 1999; Southern
UNCLOS/ Annex VII/VIII 299); Art. 287 — 4 compulsory Bluefin Tuna 1999; South
ITLOS procedures; Annex VII = DEFAULT; China Sea 2016; Bay of
ITLOS: 21 judges; Hamburg; Seabed Bengal 2012; Enrica Lexie
Disputes Chamber; Art. 290(5) — 2020; COSIS Climate Opinion
ITLOS can prescribe PMs before 2024
Annex VII tribunal constituted

All the best for your examination!

IDRB Comprehensive Notes — BBA LLB 3rd Year