Dispute Settlement Mechanisms

• UN Charter Art 2(3): all Members shall settle disputes by peaceful means; Art 33(1): parties to a dispute likely to endanger peace shall seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their choice. Principle of free choice of means.

• Earlier instruments: Hague Conventions for the Pacific Settlement of International Disputes 1899 and 1907 (created the Permanent Court of Arbitration, PCA); Covenant of the League of Nations; General Act for the Pacific Settlement of International Disputes 1928; Kellogg–Briand Pact 1928 (renunciation of war); Manila Declaration 1982 (UNGA Res 37/10) on peaceful settlement; Friendly Relations Declaration 1970 (UNGA Res 2625(XXV)).

• Classification: (A) diplomatic/non-judicial means; (B) legal means; (C) institutional/political means through international organisations; (D) coercive means short of war.

1. Negotiation: direct talks; the most common method; obligation to negotiate in good faith, not necessarily to reach agreement (North Sea Continental Shelf; Lake Lanoux).

2. Good offices: a third party brings the parties together but does not participate in the negotiations (e.g., US good offices in the Russo-Japanese war, Treaty of Portsmouth 1905).

3. Mediation: the third party participates actively and may propose terms, which are non-binding (e.g., Soviet mediation at Tashkent 1966 between India and Pakistan; US mediation in the Camp David Accords 1978).

4. Inquiry (fact-finding): impartial investigation of facts (Dogger Bank incident 1904 – Anglo-Russian Commission of Inquiry; Hague Conventions).

5. Conciliation: a commission examines facts and law and proposes terms of settlement; non-binding (VCLT Annex – conciliation under Art 66(b)).

Settlement of disputes between States by judges of their own choice on the basis of respect for law, producing a binding award (Hague Convention 1907, Art 37). Modern arbitration began with the Jay Treaty 1794 and the Alabama Claims arbitration (1872).

• Requires a compromis (special agreement) or compromissory clause; ad hoc tribunals or institutional (PCA); awards binding and final; limited grounds for nullity (excess of power, corruption, failure to state reasons). ILC Model Rules on Arbitral Procedure 1958.

• Permanent Court of Arbitration (PCA): established by the 1899 Hague Convention; seat: Peace Palace, The Hague; an administrative framework (panel of arbitrators, International Bureau) rather than a standing court; India is a member.

• Leading arbitrations: Alabama Claims (1872); Island of Palmas (1928 – territorial sovereignty and effective occupation); Trail Smelter (USA v Canada, 1938/1941 – no State may use its territory to cause injury to another; precursor to the polluter-pays and prevention principle); Lake Lanoux (France/Spain, 1957 – shared rivers, duty to negotiate); Rainbow Warrior (France/New Zealand, 1990); Rann of Kutch (India v Pakistan, 1968); Bay of Bengal Maritime Boundary (Bangladesh v India, PCA 2014); Enrica Lexie (Italy v India) – ITLOS provisional measures (2015), Annex VII arbitral award (2020: Italian marines enjoy immunity, India entitled to compensation); South China Sea Arbitration (Philippines v China, PCA 2016 – ‘nine-dash line’ has no legal basis; China rejected the award); Chagos MPA Arbitration (2015).

• Indus Waters Treaty (1960): Court of Arbitration and Neutral Expert proceedings (Kishenganga, 2013 award). India placed the treaty ‘in abeyance’ in April 2025; the Court of Arbitration in its Supplemental Award of June 2025 held that it retains competence – an important recent India-centric item.

• Investment arbitration: ICSID (Washington Convention 1965; India is not a party), UNCITRAL rules; India’s Model BIT 2016; White Industries v India (2011), Cairn Energy v India (2020 – retrospective tax), Devas v Antrix.

• ICJ (see 5.6). PCIJ (1922–1946) was the predecessor under the League.

• ITLOS (Hamburg): established by UNCLOS 1982 (Annex VI), 21 judges (9-year terms), jurisdiction in law of the sea disputes and prompt release (Art 292); Seabed Disputes Chamber; advisory opinion on climate change and the law of the sea (21 May 2024). UNCLOS Part XV: Art 287 – States may choose among ITLOS, ICJ, Annex VII arbitration (default), Annex VIII special arbitration; Art 290 – provisional measures.

• UNCLOS in brief: adopted 10 December 1982 (Montego Bay), in force 16 November 1994; internal waters; territorial sea 12 nm; contiguous zone 24 nm; EEZ 200 nm; continental shelf up to 200 nm (or up to 350 nm); high seas freedoms; innocent passage; transit passage; archipelagic sea lanes; hot pursuit (Art 111). India ratified in 1995.

• Regional/human rights courts: ECtHR (Strasbourg), Inter-American Court (San José), African Court (Arusha). The Inter-American Court delivered a climate advisory opinion (AO-32) in July 2025.

• International criminal courts: ICTY, ICTR (now IRMCT), Special Court for Sierra Leone, ICC (see Section 8).

SC (Chapters VI and VII), GA (Arts 10–14), Secretary-General (Art 99, good offices), regional organisations (OAS, AU, EU, ASEAN, OSCE – Chapter VIII).

• Retorsion: unfriendly but lawful act (recalling ambassadors, trade restrictions).

• Reprisals/countermeasures: otherwise unlawful acts in response to an internationally wrongful act; must be proportionate and temporary (Naulilaa, 1928; Air Services Agreement, 1978; Gabčíkovo-Nagymaros, 1997). Armed reprisals are prohibited by the Charter.

• Embargo, blockade (pacific blockade), intervention, boycott.

• Elements: (a) conduct attributable to the State; (b) breach of an international obligation (Art 2). Art 12 – breach regardless of origin.

• Circumstances precluding wrongfulness (Arts 20–25): consent, self-defence, countermeasures, force majeure, distress, necessity. None can preclude wrongfulness for breach of a peremptory norm (Art 26).

• Reparation (Art 31, 34–37): restitution, compensation, satisfaction (Chorzów Factory). Arts 40–41: serious breaches of peremptory norms; Art 48: invocation by non-injured States (erga omnes obligations).

• Cases: Corfu Channel, Nicaragua, Genocide (Bosnia v Serbia 2007 – ‘effective control’ test; Tadić ‘overall control’ test rejected for State responsibility), Tehran Hostages (1980).