1. Nicaragua v.

United States of America, 1986 ICJ

Involved military and paramilitary activities carried out by US against
Nicaragua from 1981 to 1984.
FACTS- In 1909, the United States of America’s military and marine rule deposed
the President of Nicaragua and established their rule by occupying the territory of
Nicaragua. The treaties between the two states gave exclusive rights and privileges of
trade, transport, commerce, and access of Nicaragua to the United States. This led to a
rebellion in Nicaragua between 1927 to 1934 which resulted in forcing the United
States to leave Nicaragua while withdrawing the marines.
After the earthquake in Nicaragua occurred the Sandinista (FSNL) Movement rose,
the purpose was to provide support to the affected people. This Movement later ended
up transcending to a rebellion against the Somoza governed dictatorship rule of the
Country.
This threatened the control of the United States over Nicaragua. As a consequence,
the United States stopped its aid to Nicaragua around April 1981, and later in
September 1981, Nicaragua claimed that the United States decides to plan and
undertake activities directed against the country. This was followed by armed
activities being conducted against the government which was formed in Nicaragua.
Later they resorted to the formation of Contras. Contras was a rebel group formed for
the purpose of suppressing the Sandinista (FSLN) Movement and continuing with the
dictatorship rule.
The USA supported the Contras in their rebellion against the Sandinistas and by
mining Nicaragua’s harbours. Contras lost and the involvement of the United States
by way of supporting the organization led to the violation of the sovereignty of
Nicaraguan, the government of Nicaraguan filed a claim before the International
Court of Justice against the United States.

ISSUE
1. Whether the US violate its customary international law obligation not to
intervene in the affairs of another State, by supporting the Contras by giving
them financial aid and supporting the activities against Nicaragua?
2. Whether the US violate its customary international law obligation not to use
force against another State, when it directly attacked Nicaragua in 1983, 1984?
3. Whether the military and paramilitary activities undertaken against Nicaragua
be justified as collective self- defence?
4. Whether it can amount to US breaching its customary international law
obligation by interfering with the sovereignty of another state, when it directed
its aircrafts to fly over the territory, interrupt peaceful maritime commerce,
when it laid minutes in the internal waters of Nicaragua and the activities done
against it?

CONTENTIONS RAISED BY THE US

The US claimed that the International Court of Justice had no jurisdiction to try and
adjourn the matter as the UN Charter and the Charter on the Organization of the
American States are multi-lateral treaties and an essential element to try a case as such
is that all members of the treaty are parties to the case. Given the absence of other
members, the United States claimed that the International Court of Justice doesn’t
have jurisdiction in the present matter. The United States also claimed that the
provisions invoked by Nicaragua have been reserved by them and so the International
Court of Justice is not competent to pass any judgment based on them.
The United States also pleaded self-defence to surpass the accusation of violating
Article 18 of the Charter on the Organization of the American States.

NICARAGUA
Nicaragua argued that the US determined the timing of offensives against Nicaragua
when providing funds to the contras.
Nicaragua argued that the role that the United States played by giving rise to Contras
and assisting them directly to suppress the Sandinista (FSLN) Movement was a clear
intervention in the internal affairs of the country and hence in violation of the
Convention on the Rights and Duties of the States.
Nicaragua also claimed that the attacks done by the United States by way of land, air,
and sea where a violation of the International Laws of Land and Seas. It was an act of
aerial trespass which violated several international laws and treaties
The argument raised by Nicaragua was that the United States had recruited, trained,
and equipped the recruits with arms to cause disruptions and stir up violence in
Nicaragua. This was a clear violation of Article 2(4) of the U.N. Charter as the
members were refrained to use force against the political independence and territorial
integrity of any State. The United States government had taken unauthorized military
actions against Nicaragua and since this was not an act of self-defence, it was a clear
violation of Articles 18 and 20 of the Charter on the Organization of the American
States.

JUDGEMENT

The arguments put forth by the United States regarding multilateral treaty reservations
were valid. This made it difficult for the Court to depend upon the UN Charter. So,
the court ended up developing a significant jurisprudence on customary international
law

The court held that the prohibition on the use of force is found both in Article 2(4) of
the UN Charter and in customary law. The court classified the use of force as: most
grave forms of the use of force (armed attack), other less grave forms of the use of the
force (instigating, when the acts referred to involve a threat or use of force, but not
amounting to an armed attack)

The US violated the customary international law prohibition on the use of force
when it laid mines in Nicaraguan ports and attacked the ports. US justified this
action on the basis of collective self- defence.

The US violated its customary international law when it assisted the contras by
encouraging the organization of irregular forces for incursion into the territory of
another state and participated in activities of civil strife in another state, acts involved
the threat or use of force.

The Court held further that the arming and training of the contras and the supply of
funds, in itself, only amounted to acts of intervention in the internal affairs of
 Nicaragua and did not violate the prohibition on the use of force. The Court held that
the US violated its customary international law obligation not to use force against
another State when it directly attacked Nicaragua in 1983 and 1984.

The Court held that an armed attack included- action by regular armed forces across
an international border and the sending by or on behalf of a State of armed bands,
groups, irregulars, which carry out acts of armed force against another State of such
gravity as to amount to an actual armed attack conducted by regular forces, or its
substantial involvement therein.

The court further held that mere frontier incidents will not be considered as armed
attacks, unless, because of its scale and effects, it would have been classified as an
armed attack had it been carried out by regular forces, assistance to rebels by
providing weapons or logistical support did not constitute an armed attack. Instead, it
can be regarded as a threat or use of force or an intervention in the internal or external
affairs of other States.

Article 51 of the UN Charter – self-defense is only available against a use of force

that amounts to an armed attack. The Court held that the US could not justify its
military and paramilitary activities on the basis of collective self- defence.

The Court held that:

Customary international law allows for exceptions to the prohibition on the use of
force, which includes the right to individual or collective self-defense. The United
States, at an earlier stage of the proceedings, had also agreed that the UN Charter
acknowledges the existence of this customary international law right when it talks of
the “inherent” right under Article 51 of the Charter

When a State claims that it used force in collective self-defense, the Court would
examine the following:

i. Whether the circumstances required for the exercise of self-defense existed;

and
ii. Whether the steps taken by the State, which was acting in self-defense,
corresponds to the requirements of international law.

Under international law, several requirements must be met for a State to exercise the right
of individual or collective self-defense: a State must have been the victim of an armed attack;
declare itself a victim of an armed attack, the victim State must request for assistance.

The Court held that “there is no rule permitting the exercise of collective self-defense in the
absence of a request by the State which regards itself as the victim of an armed attack”; a
State that is attacked, does not, under customary international law, have the same obligation
as under Article 51 of the UN Charter to report to the Security Council that an armed attack
happened, but the Court held that “the absence of a report may be one of the factors
indicating whether the State in question was itself convinced that it was acting in self-
defense”.
The Court held that the US breached its Customary international law obligation not to
intervene in the affairs of the other State, when it trained, armed, equipped and
financed the contra forces or encouraged, supported and aided the military and
paramilitary activities against Nicaragua.

The Court held that:

• The principle of non-intervention requires that every State has a right to conduct its
affairs without outside interference. In other words, the principle “forbids States or
groups of States to intervene directly or indirectly in internal or external affairs of
other States.” This is a corollary of the principle of sovereign equality of States.
• Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua, to substantially damage the economy and to weaken the
political system with the aim to coerce the Government of Nicaragua to accept
various political demands of the United States.
• The financial support, training, supply of weapons, intelligence and logistic support
given by the United States to the contras violated the principle of non-interference. No
such general right of intervention, in support of an opposition within another State,
exists in customary international law, even if such a request for assistance is made by
an opposition group of that State.

The United States violated its customary international law obligation not to violate the
sovereignty of another State, when it directed or authorized its aircrafts to fly over
Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its
territorial sea.

The Court examined evidence and found that in early 1984 mines were laid in or close to
ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting on
the instructions” of the United States and acting under its supervision with its logistical
support. The United States did not issue any warning on the location or existence of mines
and this resulted in injuries and increases in maritime insurance rates.

The Court found that the United States also carried out high-altitude reconnaissance flights
over Nicaraguan territory and certain low-altitude flights, complained of as causing sonic
booms. It held that a state’s sovereignty extends to its internal waters, its territorial sea, and
the airspace above its territory. The United States violated customary international law when
it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out
unauthorized overflights over Nicaraguan airspace by aircrafts that belong to or was under
the control of the United States.

Jurisdiction
The court upheld that it had jurisdiction to entertain the application filed by Nicaragua.

CONCLUSION
This is considered to be a major achievement for the court because it was able to surpass the
pressure to deliver an unbiased decision. This case also highlights the weakness of
international law as after the judgment was passed by the United States refused to pay the
reparations to Nicaragua and withdrew its declaration of compulsory jurisdiction. The United
States also blocked Nicaragua’s appeal to the UN Security Council. On 18 January 1985, the
United States even announced that it had no intention to participate in any further
proceedings relating to this case.

2. KHULBHUSHAN JADHAV CASE (INDIA V. PAKISTAN)

FACTS
On 03.03.2016, Kulbhushan Jadhav was arrested by Pakistan and on 24.03.2016, the military
establishments and law enforcement agencies of Pakistan accused Jadhav of being a spy,
having crossed over from Iran and was caught in southern Pakistan, i.e., Baluchistan. In the
meanwhile, Pakistan also shared a video, wherein Jadhav was seen confessing to the
allegations levelled against him.
On 23.01.2017, The external affairs minister of Pakistan sent a “Letter of Assistance for
Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav” to the High
Commission of India in Islamabad but no response was received. On 29.03.2016, India
claimed all the allegations levelled against Jadhav to be baseless as he is a retired naval
officer and was illegally kidnapped by the Pakistani authorities from Iran. In addition to this,
the Indian government sought Consular access for Kulbhushan Jadhav from Islamabad
which was denied. On 10.04.2017, the Pakistani Military Court sentenced Kulbhushan
Jadhav to death on account of “Espionage and Terrorism.”
The Indian government demanded an authentic copy of the charge – sheet and verdict of the
military court of Pakistan which sentenced Jadhav to death and further requested Consular
access for Jadhav. On 08.05.2017, aggrieved by the stance taken by Pakistan and lack of
cooperation shown by them, in granting Consular access to Kulbhushan Jadhav, India
approached the International Court of Justice at the Hague Netherlands against the decision
of Pakistan’s Military Court that awarded a death Sentence to Mr. Jadhav. On the very next
day, the ICJ stayed Jadhav’s execution.
After much deliberations and negotiations, Pakistan allowed the visit of Mr. Jadhav’s wife on
‘humanitarian grounds ‘and further extended the offer for his mother as well, it also assured
India of the safety of the visitors and their free movement.
ISSUES
 Whether Pakistan has violated the standards laid down by the Vienna Convention on
Consular Relations (VCCR) and International Covenant on Civil & Political Rights
(ICCPR) by not granting Consular access to Kulbhushan Jadhav?
 Whether the Vienna Convention on Consular Relations were implicitly inapplicable in
cases of terrorism or espionage?
 Whether Pakistan’s demand is correct that India should assist in the investigations of
the case concerning Jadhav which will serve as a precondition to granting consular
access to India pursuant to Article 36 acceptable or is the obligation under Article 36”
unconditional?
 Whether the 2008 bilateral agreement entered into between India and Pakistan
supersede the already existing Vienna Convention on Consular Relations?
 Whether the rights enshrined in the bilateral agreement limit the applicability of
VCCR?
 Whether ICJ has jurisdiction in the present matter under Article 1 of the Options
Protocol?
Arguments by Pakistan- Pakistan argued that Article 36 of the Vienna Convention on
Consular Relations does not apply in prima facie cases of espionage. The customary
international law governs cases of espionage in consular relations and allows States to make
exceptions to the provisions on consular access in Art. 36. Moreover, a 2008 Agreement on
consular relations between Pakistan and India regulates access in the present case rather than
the 1963 Vienna Convention.
Argument by India- India argues that Pakistan breached its obligations under At. 36 of 1963
Convection by not informing India, without delay, of the detention of Jadhav, by not
informing Jadhav of his rights under 1963 Convention, by denying India consular access to
Jadhav.

JUDGEMENT- 15:1
ICJ does not have jurisdiction to hear cases wherein the detainees in question are guilty of
offences related to espionage and terrorism, explained in VCCR Article 36, when read in its
“context and in light of the object and purpose of the Convention,” did not exclude from its
scope “certain categories of persons, such as those suspected of espionage. The court had
observed that the jurisdiction of the case comes about from Article 1 of the “Optional
Protocol” and does not breach any of the international treaties’ asides from VCCR. Therefore,
it has legitimate jurisdiction under Article 1 of the Optional Protocol as alleged by the State
of India regarding the violation of VCCR.
Though 1963 Convention does not refer to espionage once, neither does it exclude espionage
from the scope. The Convention envisages to promote and contribute to the development of
friendly relations between nations. It also has the purpose of facilitating consular relations
between nations and it would run counter to the purpose of the Convention if the rights it
provides are disregarded on allegations of espionage. Hence, Art. 36 does not exclude those
suspected of espionage. Even the “travaux preparatories” doesn’t exclude those suspected of
espionage from application of the convention.
Further, the Convention states that it does not govern the matters not expressly stated in it,
they are governed by customary international law. However, the present case is governed by
the convention since Art. 36 expressly relates to the dispute at hand.
Further the 2008 Agreement was only intended to, as is given under Art. 73 of the 1963
Convention, confirm, supplement, extend or amplify the Vienna Convention. The 2008
Agreement does not displace 1963 Convention.
Further Pakistan breached its obligation under Art. 36(1) to inform Jadhav of his rights under
the provision. Pakistan also failed to inform India’s consular post of arrest and detention of
Jadhav on accordance with Art. 36 para 1(b), 1(c) implies the rights of consular office to visit,
converse and correspond with the arrested and detained national.
Though Pakistan informed India about arrest and detention of Jadhav on 25 th March, 2016
and though ‘without delay’ as mentioned in para 1(b) of Art. 36 doesn’t mean immediately
upon arrest and before interrogation, in the present case, the delay was too long.
Thus, Pakistan breached para 1(b), 1(c) of Art. 36 of VCCR by denying consular access to
India. An appropriate reparation by Pakistan in this case would be to reconsider the
conviction and sentence of Jadhav.
 3. BOLIVIA V. CHILE, 2018 ICJ, 507
24 April 2013- the plurinational state of Bolivia instituted proceedings against the Republic
of the Chile before the court, on the subject dispute in relation to “Chile’s obligation to
negotiate in good faith and effectively with Bolivia in order to reach an agreement granting
Bolivia a fully sovereign access to the pacific- ocean.” Bolivia states that Chile should act in
accordance with this obligation.
Bolivia, in its application, as the basis for the jurisdiction of the court invoked article XXXI
of the American Treaty on pacific settlement (Pact of Bogota) of 30 April 1948.
The Court came to the decision that none of those bases established an obligation for Chile to
negotiate Bolivia’s sovereign access to the Pacific Ocean. Further it was added on that its
finding should not be understood as precluding the Parties from continuing their dialogue and
exchanges, in a spirit of good neighbourliness, to address the issues relating to the landlocked
situation of Bolivia, the solution to which both had acknowledged to be a matter of bilateral
interest. With the readiness of both the parties, negotiation can be taken into considered.
ISSUES
 Whether there was an obligation on Chile to negotiate in good faith and effectively
with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access
to the Pacific Ocean?
The Alleged Legal Bases of an Obligation to Negotiate Bolivia’s Sovereign Access to The
Pacific Ocean
• In international law, the existence of an obligation to negotiate has to be ascertained in
the same way as that of any other legal obligation. Negotiation is part of the usual
practice of states in their bilateral and multilateral relations.
• This intention in the absence of express terms indicating the existence of a legal
commitment, may be established on the basis of an objective examination of all the
evidence.
• Bolivia invokes a variety of legal bases on which an obligation for Chile to negotiate
Bolivia’s sovereign access to the Pacific Ocean allegedly rests.
JUDGEMENT
The court asserted that, in order to determine the legal effect of a statement by a person
representing the state, one must examine its actual content as well as the circumstances in
which it was made.
The Court notes that Chile’s declarations and other unilateral acts on which Bolivia relies are
expressed, not in terms of undertaking a legal obligation, but of willingness to enter into
negotiations on the issue,
With regard to the circumstances of Chile’s declarations and statements, the court further
observes that there is no evidence of an intention on the part of Chile to assume an obligation
to negotiate. The court therefore concludes that an obligation to negotiate Bolivia’s sovereign
access to the Pacific Ocean cannot rest on any of Chile’s unilateral acts referred to by Bolivia.
The court observes that the statement by Bolivia, when signing UNCLOS, that referred to
negotiations on the restoration to Bolivia, did not imply the allegation of the existence of any
obligation for Chile in that regard.
The court finds that in the present case the essential conditions required for estoppel are not
fulfilled, although there have been repeated representations by Chile of its willingness to
negotiate Bolivia’s access, such representations do not point to an obligation to negotiate.
Estoppel cannot provide a legal basis for Chile’s obligation to negotiate Bolivia’s access.
The court recalls that, according to Article 2(3) of the Charter sets forth a general duty to
settle disputes in a manner that preserves international peace and security and justice, but
there is no MA of settlement, such as negotiation.
The court notes that none of the relevant resolutions of the General Assembly of the OAS
indicates that Chile is under an obligation to negotiate Bolivia’s sovereign access to the
Pacific Ocean. These resolutions merely recommend to Bolivia and Chile that they enter into
negotiations over the issue.
DECISION- The Court concluded that none of those bases established an obligation for Chile
to negotiate Bolivia’s sovereign access to the Pacific Ocean. It added that its finding should
not be understood “as precluding the Parties from continuing their dialogue and exchanges, in
a spirit of good neighborliness, to address the issues relating to the landlocked situation of
Bolivia, the solution to which both had recognized to be a matter of mutual interest. With
willingness on the part of the Parties, meaningful negotiations could be undertaken. An
obligation to negotiate does not imply an obligation to reach an agreement.

4. MARITIME DELIMITATION- DENMARK V. NORWAY- 14:1

FACTS- The dispute involved the portion of the Atlantic Ocean lying between the eastern
coast of Greenland (Danish territory) and the remote island of Jan Mayen (Norwegian
territory), which are located approximately 250 nautical miles (nm) from one another. Within
these waters, these two states sought a maritime delimitation between their respective
continental shelves and fishing zones. Regarding the maritime dispute, Denmark requested a
single line of delimitation between Greenland and Jan Mayen, to be measured 200 nm from
Greenland’s baseline. In response, Norway sought a median line between Greenland and Jan
Mayen.
On 16 August 1988, the Government of Denmark filed in the Registry an Application
instituting proceedings against Norway, by which it seized the Court of a dispute concerning
the delimitation of Denmark’s and Norway’s fishing zones and continental shelf areas in the
waters between the east coast of Greenland and the Norwegian island of Jan Mayen, where
both Parties laid claim to an area of some 72,000 square kilometres. On 14 June 1993, the
Court delivered its judgment. Denmark had asked the Court to draw a single line of
delimitation of those areas at a distance of 200 nautical miles measured from Greenland’s
baseline, or, if the Court did not find it possible to draw such a line, in accordance with
international law. Norway, for its part, had asked the Court to find that the median line
constituted the two lines of separation for the purpose of the delimitation of the two relevant
areas, on the understanding that those lines would then coincide, but that the delimitations
would remain conceptually distinct. A principal contention of Norway was that a delimitation
had already been established between Jan Mayen and Greenland, by the effect of treaties in
force between the Parties — a bilateral Agreement of 1965 and the 1958 Geneva Convention
on the Continental Shelf — as both instruments provide for the drawing of a median line.
This case was not decided under the legal regime reflected in the 1982 United Nations
Convention on the Law of the Sea (UNCLOS). Denmark initiated this case in August 1988,
and the ICJ issued its judgment on the matter in June 1993. But the UNCLOS did not come
into force for any state-party until November 1994. Norway did not become a party to the
UNCLOS until June 1996, while Denmark acceded in November 2004. Hence, the court
referred occasionally to the text of the UNCLOS in its judgment, but it reached all legal
conclusions in this matter based upon application of the treaty and customary law that
preceded the UNCLOS.
PROCEDURAL HISTORY- During the late 1970s and early 1980s, these two states
established maritime claims in the water space between eastern Greenland and Jan Mayen
through national legal instruments. Subsequent to these respective national actions, the two
states attempted to negotiate a resolution to their boundary dispute but encountered incidents
that aggravated the situation. In November 1980, the two governments started negotiations.
But in the middle of 1981, Norway’s maritime law enforcement authorities inspected a
number of Danish-flagged fishing vessels in the disputed area. In August 1981, Denmark
issued a supplementary order. Thereafter, the two states maintained provisional arrangements
about either state inspecting fishing vessels of the other state in the disputed area.
During the 1980s, the two states attempted to resolve the maritime dispute through non-
judicial means. In 1981, Denmark proposed to resolve the dispute through arbitration, but
Norway expressed a preference to resolve the dispute through bilateral negotiations.
Therefore, the two states continued to negotiate. In April 1988, Denmark renewed its efforts
to resolve the dispute through arbitration. But after several bilateral meetings, “it became
clear” to the two governments that “no arbitration agreement would be concluded in
foreseeable future.” Consequently, several months later, on August 16, 1988, Denmark filed
an application with the ICJ Registry to institute proceedings against Norway. As an aside,
after these proceedings were initiated before the ICJ in 1988, but before the court rendered its
judgment in 1993, Denmark and Norway also concluded a bilateral agreement concerning
“mutual fishery relations.”
JUDGEMENT-
The Court noted, in the first place, that the 1965 Agreement covered areas different from the
continental shelf between the two countries, and that that Agreement did not place on record
any intention of the Parties to undertake to apply the median line for any of the subsequent
delimitations of that continental shelf. The Court then found that the force of Norway’s
argument relating to the 1958 Convention depended in the circumstances of the case upon the
existence of “special circumstances” as envisaged by the Convention. It subsequently rejected
the argument of Norway according to which the Parties, by their “conjoint conduct” had long
recognized the applicability of a median line delimitation in their mutual relations. The Court
examined separately the two strands of the applicable law: the effect of Article 6 of the 1958
Convention, applicable to the delimitation of the continental shelf boundary, and then the
effect of the customary law which governed the fishery zone. After examining the case law in
this field and the provisions of the 1982 United Nations Convention on the Law of the Sea,
the Court noted that the statement (in those provisions) of an “equitable solution” as the aim
of any delimitation process reflected the requirements of customary law as regards the
delimitation both of the continental shelf and of exclusive economic zones. It appeared to the
Court that, both for the continental shelf and for the fishery zones in the instant case, it was
proper to begin the process of delimitation by a median line provisionally drawn, and it then
observed that it was called upon to examine every particular factor in the case which might
suggest an adjustment or shifting of the median line provisionally drawn. The 1958
Convention required the investigation of any “special circumstances”; the customary law
based upon equitable principles for its part required the investigation of the “relevant
circumstances”.
The Court found that, although it was a matter of categories which were different in origin
and in name, there was inevitably a tendency towards assimilation between the two types of
circumstances. The Court then turned to the question whether the circumstances of the instant
case required adjustment or shifting of the median line. To that end it considered a number of
factors. With regard to the disparity or disproportion between the lengths of the “relevant
coasts”, alleged by Denmark, the Court concluded that the striking difference in lengths of
the relevant coasts constituted a special circumstance within the meaning of Article 6,
paragraph 1, of the 1958 Convention. Similarly, as regards the fishery zones, the Court was of
the opinion that the application of the median line led to manifestly inequitable results. The
Court concluded therefrom that the median line should be adjusted or shifted in such a way as
to affect a delimitation closer to the coast of Jan Mayen.
The Court then considered certain circumstances that might also affect the position of the
boundary line, i.e., access to resources, essentially fishery resources (capelin), particularly
with regard to the presence of ice; population and economy; questions of security; conduct of
the Parties. Among those factors, the Court only retained the one relating to access to
resources, considering that the median line was too far to the west for Denmark to be assured
of equitable access to the capelin stock. It concluded that, for that reason also, the median line
had to be adjusted or shifted eastwards. Lastly, the Court proceeded to define the single line
of delimitation as being the line M-N-O-A marked on the sketch-map reproduced on page 80
of the Judgment.
The settled international jurisprudence to adjudicate maritime delimitations for continental
shelf boundaries and fishery zones, the court applied the “equidistance-special
circumstances” rule to this maritime dispute. First, the court drew the median line as a
provisional line. Second, it evaluated several “juridically relevant” factors and adjusted that
provisional line accordingly for equitable reasons. Ultimately, the court delimited a boundary
line between Greenland and Jan Mayen that was located between the median line (Norway’s
preference) and the 200-nm line measured from the baselines of eastern Greenland
(Denmark’s preference). Additionally, for the water space lying between the median line and
the 200-nm line, the court identified three “zones” and declared “equitable access” for both
states to the “fishing resources” in those zones.

5. US V. IRAN
FACTS –
The case was brought before the Court by Application by the United States following the
occupation of its Embassy in Tehran by Iranian militants on 4 November 1979, and the
capture and holding as hostages of its diplomatic and consular staff.
On November 4, 1979, the Muslim Student Followers of the Imam’s Policy (militants)
invaded the United States embassy in Tehran and took the American diplomatic and consular
staff hostage. The militants damaged the embassy and destroyed embassy documents. The
invasion lasted for hours, but despite repeated requests, Iranian military forces did not arrive
until later.
Once on scene, the Iranian military did not attempt to free the hostages. After the active
invasion ended, the Iranian government claimed that the U.S. was responsible for the events,
and announced that the hostages would remain until the U.S. returned the former Shah of Iran
for trial.
On November 29, 1979, the U.S. filed a claim against Iran in the International Court of
Justice (ICJ), alleging violations of the Vienna Convention on Consular Relations of 1961
and 1963, and the Treaty of Amity, Economic Relations, and Consular Rights of 1955.
The Vienna Conventions required signatories to “take all appropriate steps” to protect
diplomatic and consular staff in foreign embassies, as well as embassy facilities and archives.
Iran declined to submit formal documents or otherwise participate in the proceedings, except
for two letters in which it stated that the ICJ should not hear the case because the hostage
situation resulted from years of American interference with and oppression against Iran.
The U.S.A. arranged to meet with Iranian authorities to discuss the release of the hostages,
but Ayatollah Khomeini (leader of the Iranian Revolution) forbade officials to meet them.
The U.S.A. ceased relations with Iran, stopped US exports, oil imports and Iranian assets
were blocked.
ISSUE before ICJ - Whether the militants and the students were agents of the Iranian
government and therefore, acting on their behalf?
JUDGEMENT –
In its decision on the merits of the case, at a time when the situation complained of still
persisted, the Court, in its Judgment of 24 May 1980, found that Iran had violated and was
still violating obligations owed by it to the United States under conventions in force between
the two countries and rules of general international law, that the violation of these obligations
engaged its responsibility, and that the Iranian Government was bound to secure the
immediate release of the hostages, to restore the Embassy premises, and to make reparation
for the injury caused to the United States Government.
The Court reaffirmed the cardinal importance of the principles of international law
governing diplomatic and consular relations. It pointed out that while, during the events of
4 November 1979, the conduct of militants could not be directly attributed to the Iranian State
— for lack of sufficient information — that State had however done nothing to prevent the
attack, stop it before it reached its completion or oblige the militants to withdraw from the
premises and release the hostages.
The Court noted that, after 4 November 1979, certain organs of the Iranian State had
endorsed the acts complained of and decided to perpetuate them, so that those acts were
transformed into acts of the Iranian State.
ICJ further stated that they were agents of the Iranian Government because the latter had
approved and perpetuated their actions, translating the occupation of the embassy and
detention of the hostages into official acts of the state, of which the perpetrators, while
initially acting in private capacities, were rendered agents of the Iranian sate.
The Court gave judgment, notwithstanding the absence of the Iranian Government and after
rejecting the reasons put forward by Iran in two communications addressed to the Court in
support of its assertion that the Court could not and should not entertain the case. The Court
was not called upon to deliver a further judgment on the reparation for the injury caused to
the United States Government since, by Order of 12 May 1981, the case was removed from
the List following discontinuance.

6. INDIA V. PAKISTAN (INDUS WATER TREATY)

Concept- Mediation

FACTS
The Indus Water Treaty (IWT) is a water-distribution treaty between India and Pakistan, arranged and
negotiated by the World Bank, to use the water available in the Indus River and its tributaries.
The Indus Waters Treaty was signed in 1960 after nine years of negotiations between India and
Pakistan with the help of the World Bank, which is also a signatory. The negotiations were the
initiative of former World Bank President Eugene Black. It has provided a framework for irrigation
and hydropower development for more than half a century. The Treaty allocates the Western Rivers
(Indus, Jhelum, Chenab) to Pakistan and the Eastern Rivers (Ravi, Beas, Sutlej) to India. At the same
time, the Treaty allows each country certain uses on the rivers allocated to the other.

The Treaty sets out a mechanism for cooperation and information exchange between the two countries
regarding their use of the rivers, known as the Permanent Indus Commission, which has a
commissioner from each country. The Treaty also sets forth distinct procedures to handle issues which
may arise: “questions” are handled by the Commission; “differences” are to be resolved by a Neutral
Expert; and “disputes” are to be referred to an ad hoc arbitral tribunal called the “Court of
Arbitration.”

DISPUTE RESOLUTION MECHANISM UNDER THE TREATY

 The dispute redressal mechanism provided under Article IX of the IWT is a graded
mechanism. It’s a 3-level mechanism:
o First Commissioner: Whenever India plans to start a project, under the Indus Water
Treaty, it has to inform Pakistan that it is planning to build a project.
 Pakistan might oppose it and ask for more details. That would mean there is
a question that question has to be clarified between the two sides at the
level of the Indus Commissioners.
o Neutral Expert: If that difference is not resolved by them, then the level is raised.
The question then becomes a difference. That difference is to be resolved by
another set mechanism, which is the Neutral Expert.
 It is at this stage that the World Bank comes into the picture.
o The Court of Arbitration: In case the Neutral Expert says that they are not able to
resolve the difference, or that the issue needs an interpretation of the Treaty, then that
difference becomes a dispute. It then goes to the third stage — the Court of
Arbitration.
DISPUTE

Pakistan had earlier objected to the Salal dam project in 1970 over design concerns, negotiations for
which ended in 1978. This was followed by the neighboring country’s opposition to the 900 MW
Baglihar Hydropower project, which involved the construction of a 150m tall dam on Chenab. The
construction for the project started in 1999, but Pakistan raised objections soon after, finally
threatening to invoke the arbitration provision in IWT to refer the matter to a Neutral Expert. The
recent disagreement between India and Pakistan concerns the design features of the Kishenganga (330
megawatts) and Ratle (850 megawatts) hydroelectric power plants. The former was inaugurated in
2018 while the latter, based on information available, is under construction. The World Bank is not
financing either project.

The two countries disagree over whether the technical design features of these two hydroelectric
plants contravene the Treaty. The plants are located in India on tributaries of the Jhelum and the
Chenab Rivers. The Treaty designates these two rivers, as well as the Indus, as the “Western Rivers”
to which Pakistan has unrestricted use with some exceptions. Under the Treaty, India is permitted to
construct hydroelectric power facilities on these rivers, subject to constraints including design
specifications.

World Bank’s role

As a signatory to the Treaty, the World Bank’s role is limited and procedural. In particular, its role in
relation to “differences” and “disputes” is limited to the designation of individuals to fulfill certain
roles in the context of Neutral Expert or Court of Arbitration proceedings when requested by either or
both of the Parties.

In 2016, Pakistan asked the World Bank to facilitate the setting up of an ad hoc Court of Arbitration to
look into its concerns about the designs of the two hydroelectric power projects. India asked for the
appointment of a Neutral Expert for the same purpose. These requests came after the Permanent Indus
Commission had been engaged in discussions on the matter for a while.

The Treaty does not empower the World Bank to decide whether one procedure should take
precedence over the other. The World Bank sought to fulfill its procedural obligations with respect to
both the Court of Arbitration and the Neutral Expert. At the same time, the World Bank actively
encouraged both countries to agree amicably on a mechanism to address the issues.
Mediation by world bank

On December 12, 2016, the then World Bank Group President Jim Yong Kim announced that the
World Bank would pause before taking further steps in each of the two processes requested by the
Parties. The announcement by the Bank was taken in order to provide both countries time to explore
an amicable solution.

The World Bank then worked diligently with both countries to seek a mutually acceptable outcome.
Multiple high-level meetings were convened, and a variety of proposals were discussed. However,
five years of joint efforts did not yield a solution. On March 31, 2022, the World Bank decided to
resume the process of appointing a Neutral Expert and a Chairman for the Court of Arbitration.

On November 21, 2022, the World Bank held two separate hand-over meetings with the Neutral
Expert and the Chairman of the Court of Arbitration. The meetings followed the appointments made
pursuant to the Treaty by the World Bank in October 2022 of Mr. Michel Lino, as the Neutral Expert,
and Prof. Sean Murphy, as Chairman of the Court of Arbitration.

The two mechanisms are independent. The Treaty vests the authority in both mechanisms to
determine their own jurisdiction and competence as well as the power to decide on their rules of
procedure. The World Bank remains engaged solely to reimburse the remuneration and expenses of
the Neutral Expert from amounts that are paid by India and Pakistan and held in a trust by the Bank,
in accordance with the Treaty.

The World Bank remains committed to act in good faith and with complete impartiality and
transparency while continuing to assist the countries and fulfilling its responsibilities under the Treaty.

The Neutral Expert determines the procedures under which to operate in line with the provisions of
the Treaty, which requires that s/he shall afford each Party an adequate hearing and that in making
his/her decision, s/he shall be governed by the provisions of the Treaty. The Neutral Expert shall, as
soon as possible, render a decision on the question or questions referred to her/him. The decision is
binding. The duration of the Neutral Expert process cannot be predicted, as every case is different.
The Neutral Expert process in the Baglihar case, which was decided in 2007, took about one and half
years.

Court of arbitration process

Subject to the provisions of the Treaty, the Court of Arbitration determines its procedure, including the
time within which each Party must present and conclude arguments. These decisions are taken by
majority of those present and voting. Each arbitrator, including the Chairman, have one vote. In the
event of a tie of votes, the Chairman has the casting vote. The duration of the Court of Arbitration
process cannot be predicted since every case is different. The Court of Arbitration process in the
Kishenganga case, which was decided in 2013, took around 3 years.

7. ARGENTINA V. CHILE

Concept- Mediation

INTRODUCTION

In 1984, Argentina and Chile signed the so called Treaty of Peace and Friendship. This Treaty ended a
decades-long dispute over the sovereignty of the southernmost islands and waters of Latin-America. It
was elaborated and controlled through papal mediation, achieved what earlier intents did not: a
definite ceasing of military and diplomatic threat and a clear definition of the course of the border that
divides both national territories. Since that day, relations between both countries gradually eased,
making way to new diplomatic perspectives while democracy was reestablished.

FACTS

The Beagle conflict was a border dispute between Chile and Argentina over the possession of Picton,
Lennox and Nueva islands and the scope of the maritime jurisdiction associated with those islands
that brought the countries to the brink of war in 1978. After refusing to abide by a binding
international award giving the islands to Chile, the Argentine junta advanced the nation to war in 1978
in order to produce a boundary consistent with Argentine claims. The increasing significance of the
region led to various incidents and confrontations between Chile and Argentina around transit and
fishing rights, which potentially could lead to full-scale war. The two nations had been involved in a
long-term dispute over the Beagle Channel; several countries had attempted to mediate the dispute in
the past, but were unsuccessful.

MEDIATION PROCESS BETWEEN THE COUNTRIES

In 1971 Chile and Argentina signed an agreement formally submitting the Beagle Channel issue to
binding arbitration under auspices of the UK's Queen Elizabeth II. The court that was to decide the
controversy was composed of five judges selected by Chile and Argentina from the International
Court of Justice at The Hague. The court of arbitration's final decision would be submitted to the
British Crown, which was then to recommend acceptance or rejection of the award of the court but
not to modify it. The court ruled that the islands and all adjacent formations belonged to Chile.
Argentina rejected the ruling, and attempted via military force to challenge the Chilean commitment
to defend the territory, and to coerce Chile into negotiating a division of the islands that would
produce a boundary consistent with Argentine claims.

Direct negotiations between Chile and Argentina began after the announcement of the binding
arbitration ruling, and ended with the Act of Montevideo, Uruguay, where both countries accepted
papal mediation after Argentina aborted Operation Soberanía.

Argentina initiated Operation Soberanía, an attempt via military force to occupy the islands around
Cape Horn, intending to judge from Chile's response whether to advance further. However, the
operation was aborted within a few hours. Instead of renewing the operation at the next window of
opportunity, the junta in Buenos Aires decided to allow the Pope to mediate the dispute through the
offices of Cardinal Antonio Samoré, his special envoy.

In 1979, the Act of Montevideo requested Papal intervention and mediation. As a result of the Pope's
mediation efforts, Argentina and Chile signed a Joint Declaration of Peace and Friendship in 1984. By
using peaceful methods to settle the dispute, Chile granted Argentina certain rights to navigation, and
both parties agreed to allow third-state vessels to pass through without any obstacles.

CONCLUSION

Factors that contributed to the success of this mediation were Argentina's predominantly Catholic
population and the moral authority of the Pope in predominantly Catholic countries.

8. THE RED CRUSADER INQUIRY

Concept- Inquiry and conciliation

FACTS
The inquiry set up by Britain and Denmark to investigate the Red Crusader incident in 1961. On 29
May 1961, the Danish fisheries protection vessel Niels Ebbesen encountered the British trawler Red
Crusader close to the Faroe Islands and with its fishing gear in the water. Accusing the trawler of
illegal fishing, the Danish commander forced it to stop and effected an arrest by putting two members
of his crew on board. While en route for a port in the Faroes, the crew of the Red Crusader succeeded
in incapacitating their guards and reversed course. Pursued by the Danish vessel, the trawler was fired
at with solid shot and suffered damage to its prow, masts, wireless aerials and radar installation. A
British frigate came on the scene, and after the abducted Danes had been returned to their ship, all
three vessels headed for Aberdeen.

In the diplomatic exchanges which followed it was clear that the Danish government took a serious
view of the incident, not least because the Danish boarding party had been unarmed in accordance
with a previous request from the British government that this step would reduce tension when British
trawlers had to be arrested. With a view to settling the dispute Britain and Denmark, after some
negotiation, eventually agreed to establish a commission of inquiry to investigate the incident. The
three-member Commission was composed of distinguished international lawyers from Belgium and
France and the Netherlands Inspector General of Shipping.

The Commission received written submissions from Britain and Denmark and held oral hearings at
The Hague. Commission set out a detailed description of the events which comprised the incident and
drew the following main conclusions:

FINDINGS OF COMMISSION

1. There was no proof that the Red Crusader had been fishing within the forbidden area,
although the vessel was within the area with her gear not stowed.
2. The Red Crusader was arrested, but the skipper having changed his mind ‘attempted to escape
and to evade the jurisdiction of an authority which he had at first, rightly, accepted’.
3. In opening fire after the escape the Danish commander ‘exceeded legitimate use of armed
force’ because the circumstances did not ‘justify such violent action’.
4. The British naval officers ‘made every effort to avoid any recourse to violence’ between the
Danish vessel and the Red Crusader, and exhibited an attitude and conduct that were
‘impeccable’
The report of the commission of inquiry facilitated the settlement of the dispute, though on this
occasion only after some delay since it was nearly a year from the delivery of the Commission’s
report to the announcement that Britain and Denmark had agreed to settle the issue by a mutual
waiver of their claims. If inquiries under the Hague Conventions had shown how the desire of states
for highly specific types of third-party settlement could be accommodated by investing the procedure
of pure inquiry with overtones of arbitration, the Red Crusader inquiry displays the process of
assimilation taken a good deal further. For in respect of its composition, its procedure and its findings
the Red Crusader Commission was a fundamentally judicial operation.

A majority of the Commission were jurists and had the tribunal been a court of arbitration its blend of
legal and non-legal expertise would have been in no way unusual. Moreover, like many arbitral
tribunals, but unlike any of the previous commissions of inquiry, no member of the tribunal was a
national of either of the parties to the dispute.

The Red Crusader proceedings were divided into a written and an oral stage. But an important
innovation in the latter was that, as in an arbitration, the principal examination of the witnesses was
conducted by the representatives of the parties instead of by the members of the Commission.
Scarcely less significant was the parties’ decision that the report of the Commission should not be
published automatically, as had been the case with the reports of previous commissions of inquiry,
but, like an arbitral award, should be published only with the consent of the two governments.

DIFFERENCE BETWEEN RED CRUSADER INQUIRY AND AN ARBITRATION

First, by creating a tribunal whose primary concern was to establish the facts, the parties were able to
avoid debating the full legal implications of the case. Of course legal issues of immediate
significance, such as the lawfulness of the shooting, had to be considered. Had the matter been dealt
with by arbitration, however, it is likely that the legality of the Faroese fishery limits would also have
been the subject of argument, because this issue was currently the subject of a clear difference of
opinion between Britain and Denmark. Thus by handling the matter by means of a commission of
inquiry rather than by arbitration, the two states were able to obtain a solution to the immediate
problem without the delay and precedential implications of a more broadly based adjudication.

Secondly, because the proceedings were in the form of an inquiry the outcome was a report rather
than an award. Despite the Commission’s findings of fault on both sides, the question of the effect to
be given to the report remained in the hands of the parties. The fact that it then took them almost a
year to agree upon a settlement suggests that in this respect a binding arbitration award, specifying
damages or some other remedy, might have provided a more expeditious solution. The delay is,
however, also a reminder of the importance which governments attach to freedom of action even in
relatively minor disputes, and as a corollary, the usefulness of the inquiry procedure as a means of
accommodating this demand.
 9. DIPLOMATIC BACK-CHANNELS SWITZERLAND REPRESENTS
INTERESTS OF US IN IRAN

Concept: Diplomatic Back Channels

Diplomatic back channels are unofficial, often confidential, communication channels that
exist between countries. These channels are typically used when formal diplomatic relations
are either non-existent or strained. They provide a means for dialogue and negotiation, often
leading to resolution of disputes and improvement of relations.

Introduction: Switzerland’s Role in US-Iran Relations

Switzerland has been representing US interests in Iran since 1980. This arrangement came
into effect after the US severed diplomatic ties with Iran following the Iran hostage crisis.
Switzerland’s role as a diplomatic back channel has been crucial in facilitating
communication between the two nations.

Facts: The US-Iran Hostage Crisis

The Iran hostage crisis, which occurred from 1979 to 1981, was a significant event that
strained US-Iran relations. During this crisis, 52 American diplomats and citizens were held
hostage at the U.S. Embassy in Tehran for 444 days. This event led to the severance of US-
Iran diplomatic relations and highlighted the importance of diplomatic back channels.

Very recently in 2020, the U.S. killing of senior Iranian military commander Qassem
Soleimani was a significant event that once again highlighted the role of Switzerland as a
diplomatic back channel between the US and Iran.

Following the killing, Iran registered its protest with the Swiss Embassy in Tehran. A Swiss
diplomat delivered a message from the United States to Iran over the incident. This incident
underscores the critical role that Switzerland plays in facilitating communication between the
two countries. Despite the absence of formal diplomatic relations between the U.S. and Iran,
Switzerland’s role as a “Protecting Power” allows for diplomatic dialogue to continue. This is
particularly important during times of heightened tensions, such as in the aftermath of
Soleimani’s killing.
The concept of a “Protecting Power” is provided for under the 1961 and 1963 Vienna
Conventions on Diplomatic Relations. In this arrangement, Switzerland represents the
interests of the U.S. in Iran because the U.S. does not have an embassy there. Conversely,
Iran’s interests in the United States are represented by the Pakistan Embassy in Washington.
This incident serves as a reminder of the importance of diplomatic back channels in
maintaining dialogue and negotiation between nations, even in times of crisis.

International Treaties and Conventions

The Vienna Convention on Diplomatic Relations of 1961 is an international treaty that

provides a framework for diplomatic relations between countries. It codifies the principle of
diplomatic immunity, which grants diplomats certain privileges and protections to enable
them to perform their duties without fear of coercion or harassment by the host country. The
concept of use of back channels is provided in the treaty. It is almost universally ratified and
provides a legal framework for diplomatic interactions.

Alternative Dispute Resolution: The Algiers Accords and Back - channel negotiations.

The resolution of the Iran hostage crisis involved an alternative dispute resolution method
facilitated by Algerian diplomats acting as intermediaries. The hostages were released on
January 20, 1981, as part of an agreement known as the Algiers Accords. This agreement also
established an arbitration process based in The Hague, where the US and Iran have since
negotiated solutions to various commercial disputes arising from the revolution.

Diplomatic back channels serve as a crucial negotiating method in international relations,

particularly when formal diplomatic ties are strained or non-existent. The confidentiality and
informality of back channels provide a platform for potential compromises and solutions
without the pressure of public scrutiny or political.

Conclusion

Despite the absence of formal diplomatic relations, nations can communicate and negotiate
resolutions to disputes through these unofficial avenues. The success of such negotiations
often hinges on adherence to international treaties and conventions like the Vienna
Convention on Diplomatic Relations.

10. THE CYPRUS CONFLICT

Introduction

The Cyprus conflict, also known as the Cyprus problem, issue, dispute, or question, is an
ongoing dispute between the leadership of the Greek Cypriot community in the southern
portion of Cyprus, and that of the Turkish Cypriot community, situated in the north. The
conflict began with the occupation of the island by the British Empire from the Ottoman
Empire in 1878 and subsequent annexation in 1914.

Historical Background

The conflict entered its current phase in the aftermath of the 1974 Turkish invasion of
Cyprus, occupying the northern third of Cyprus. Although the invasion was triggered by the
1974 Cypriot coup, Turkish forces refused to depart after the legitimate government was
restored. The Turkish Cypriot leadership later declared independence as the Turkish Republic
of Northern Cyprus, although only Turkey has considered the move legal.

Principles or Concepts Involved

The principles involved in this conflict are primarily related to sovereignty and territorial
integrity. The conflict revolves around competing claims of sovereignty over the island by
Greek and Turkish Cypriots.

Alternative Methods of Dispute Resolution

There are two major approaches to resolve the Cyprus dispute:

 The reunification of Cyprus into a single state

 The two-state solution, which would legalize the current status quo

In recent years, arbitration and mediation have become highly used methods for resolving
disputes in Cyprus. Specialized institutions and centres have been established to encourage
their use.

The peace efforts had begun around the time of the 1974 Turkish invasion of Cyprus. A
ceasefire has been in place ever since, but a permanent solution has not been agreed to, and
UN peacekeepers still operate a buffer zone between the two regions.

Relevant Conventions/Treaties in International Law

The international complications of this dispute stretch beyond the boundaries of the island
itself and involve guarantor powers under the Zürich and London Agreement (namely Greece
and Turkey, and to a lesser extent the United Kingdom), the United Nations, and now the
European Union as well. The United Nations Security Council Resolution 550 of 1984 calls
for members of the United Nations to not recognize the Turkish Republic of Northern
Cyprus…

Current Status

The current status of the Cyprus conflict is complex and remains unresolved. The United
Nations-led talks failed to resuscitate negotiations to reunify Cyprus. The Turkish Cypriot
foreign minister has stated that the UN process is dead. Turkish Cypriots declared Northern
Cyprus a Turkish republic in 1983, but the UN Security Council immediately denounced it as
“invalid” and “incompatible with the 1960 Treaty” that established Cyprus’ independence
from Britain. As a result, only Turkey recognizes it.

However, internationally recognized Republic of Cyprus and United States regard status quo
on Cyprus as unacceptable and support efforts to reach a comprehensive settlement to reunify
island as bizonal bicommunal federation.

11. Alabama case

 Facts of the case

1. American Civil war in 1861- When this happened the president Lincoln
declared a blockade of all ports in seceding states. These conferdate states
were in need of ships to break this blockade, they approached Europe for it
2. Many ships were acquired in Europe, two ships- Oreto and Enrica (changed to
Alabama) — despite the attempted disguise the American spies appreciated
that the ships were intended for the confederate’s service, however the same
was reported to US minister in London who made urgent representations to
British for these two vessels to be detained.
 3. This representation was denied becasue Oreto - they did not have enough
evidence and the second vessel actually sailed before the detention was fixed.
4. Very shortly after war began they made a proclamation that these confederates
as belligerent and declared British neutrality. Statute — Foreign enlistment act
of 1819 of United kingdoms (used to proclaim)
5. The provisions they used were:

a. It was made an offence to enlist in naval or military forces of a foreign state without
leave.

b. By section 7 of the statute- made an offence to equip or arm any vessel to be used
by any foreign state in hostilities against a foreign state. (Does not explicitly state the
building of a vessel not equipped or armed for war and there was doubt that this
was covered)

6. Confederates argued that these ships werent intended to be used as war ships.
It was also insisted that this act should be amended to detain vessels such as
Alabama but the same wasnt done before 1870.
7. After war ended there were diplomatic attempts to resolve the alabam claims
and other disputes between uk and usa. The american minister in london,
insisted on signing a convention for resolving claims in Britain but the same
was rejected by USA senator. The same senator went ahead and claimed on a
public platform that UK needs to pay USA damages. Valued the damage as 2
billion dollars. These werent claimed in court

Treaty of Washington

8. An agreement was reached to begin resolving of claims between UK and

USA- called treaty of Washington
9. A 5 bench tribunal was agreed upon.
10. Article 6 of the treaty laid down the rules of international law by which
the British liabilty was judged.
11. These rules were
 a. Use due diligence to prevent Fitting out, arming or equipping within its
jurisdiction of any vessel which intended to carry on war with the country it was
at peace with and also to prevent it from stepping out the boundaries of the
same.

b. Not letting your own ports be used as base for operations against another
country

c. It is your responsibility to prevent first two rules from being violated.

 Issues in the case

1. Whether Britain violated the said neutrality
 Ratio
1. Britain did not consent on the arbitral considering the claims of the senator in
the public. Tribunal is saying that while concluding on the award our award is
not based on those indirect claims by the senator in public. USA agreed that
those were not claims to be judged upon

12. Iran v. usa

The Iran-United States Claims Tribunal, an international arbitral tribunal, was

established as part of a negotiated solution to aspects of a crisis in relations between the two
countries that arose in the wake of Iran's Islamic Revolution. In January 1979, the Shah left
Iran, and in February 1979, the revolution claimed complete victory. Travelling to the United
States in October of that year, the Shah sought entry to obtain medical treatment. However,
his reception there was seen in Iran as an act of provocation. In November 1979, a group
of militant students seized a number of diplomatic, consular and administrative personnel of
the US embassy in Tehran as hostages and demanded the return of the Shah in exchange
for their release.
In response, the United States:
1. froze billions of dollars of Iranian assets.
2. authorized the judicial attachment of Iranian assets in the United States.
3. imposed sweeping sanctions on transactions with Iran, including the prohibition
of imports, urging its allies to do the same.
Negotiations followed with support of the UN. In December 1979, the UN Security Council
unanimously called for the release of the hostages. In January 1980, a proposal to apply
mandatory economic sanctions against Iran was opposed by a permanent member, and thus,
was naot adopted. On application made by the US, the ICJ found that Iran had violated
obligations owed by it to the US under international law to protect US diplomatic and
consular personnel, called for the immediate termination of the unlawful detention of those
personnel, and for reparation to be made to the US for injury caused to it by these events. Iran
took no part in these proceedings.
In September 1980, the leader of the Islamic Revolution, the Ayatollah Khomeini, listed
four conditions for bringing about the release of the hostages:
1. return to Iran of the wealth of the former Shah.
2. cancellation of the US claims against Iran.
3. lifting by the US of the freeze on Iranian assets.
4. guarantees by the US that it would not interfere in the internal affairs of Iran.
In November 1980, the Iranian Majlis (Parliament) officially endorsed the four
conditions, and in the same month, the United States confirmed its acceptance of these
four conditions as a basis for resolution of the crisis.
The essential framework for a settlement was thus established and the two principal parties
had to work out the details, in which the Algerian Government played an essential role in
explaining each side's opinion to the other, and bringing about the agreement that resolved the
crisis. Despite intense diplomatic activity and one abortive military episode aimed at rescuing
the hostages, it took the death of the Shah in 1980 and the mediation by the Algerian
Government, to end the captivity of the hostages, 444 days after it began.
 Establishment of the Tribunal: The Algiers Declarations
1. The principal terms of the final settlement were contained in two
complementary declarations made by the Government of Algeria. The
provisions of this settlement were negotiated through Algerian intermediaries
(between representatives of Iran and the US) and adhered to by them in
January 1981.
2. First Declaration: Sets forth certain general principles and the basic
commitments each party was willing to make in order to resolve the crisis. It
was given the short title ‘General Declaration’.
3. Second Declaration: Concerns the settlement of claims by the Governments
of Iran and the US and their nationals. It is often called the ‘Claims
Settlement Declaration’.
4. It establishes the Iran-United States Claims Tribunal (IUSCT) and
determines its composition, competence and procedure.
5. The details of financial arrangements between the two governments and other
central banks with agreed roles in the settlement are set out in other written
undertakings and agreements which deal with the implementation of the two
declarations.
6. The General Declaration records the central commitments of the parties.
In exchange for Iran's bringing about the release of the hostages, the US
would, within the framework of the Algiers Declarations, restore the
 financial position of Iran, as far as possible, to the state it was in before
the US President's freeze order.
7. However, restoration of the financial position of Iran was no longer just a
matter of revoking the order freezing the assets. Following the freeze order,
some 450 claims had been filed in US courts and a substantial portion of Iran's
frozen assets had been attached in judicial proceedings by US claimants
against Iran.
8. As restoration of the financial position of Iran would involve the transfer of
assets, and seeing that transfer of assets now required nullification of judicial
attachments and ending court proceedings, in addition to the lifting of the
freeze order, it became necessary (as part of the settlement) to provide
alternative means for adjudication of pending commercial claims by US
nationals against Iran and its state enterprises.
9. Accordingly, the General Declaration provided for the performance of the
above-mentioned acts, and to prohibit all further litigation based on such
claims, and terminate such claims through binding arbitration.
10. The Tribunal Rules of Procedure in states in Article 1(3) that the Claims
Settlement Declaration is an agreement in writing between Iran and the US,
submitting to Arbitration within the framework of the Algiers Declaration. The
Claims Settlement Declaration established the Tribunal as the mechanism for
bringing about binding third-party arbitration as per Article I. It declared that
these claims would be considered excluded from the jurisdiction of the courts
of Iran, the US, or of any other court, as per Article VII (2).
11. The financial arrangements for implementing the Algiers Declarations were
contained in several inter-related technical agreements between the Federal
Reserve Bank of New York as fiscal agent of the US, and the Central Banks of
Iran, Algeria, the United Kingdom and the Netherlands. It is convenient to see
these arrangements as established by two series of such agreements.
12. One series provided for the transfer of amounts ($7.955 bn) held by the
Federal Reserve Bank of New York and in overseas branches of US banks to
an escrow account held by the Banque Centrale d'Algerie in the Bank of
England. Immediately upon transfer of these funds, Iran would bring about the
release of the hostages. When the aircraft carrying the hostages left Iran, the
Banque Centrale d'Algerie was obliged to transfer back to the Federal Reserve
Bank of New York certain amount ($3.667 bn) for payment of agreed debts to
certain banks, retaining some amount ($1.418 bn) in the escrow account for
payment of amounts claimed but disputed by US or Iranian banks, and
transferring the balance ($2.87 bn) to Iran.
13. The second series of technical agreements provided for the transfer of deposits
in US branches of US banks to the escrow account of the Banque Centrale
d'Algerie within six months of the signing of the agreement. A portion of this
was to be transferred to Iran, the other portion ($1 bn) to be placed in a special
Security Account held in escrow by the Banque Centrale d'Algerie in the
 Settlement Bank of the Netherlands, a subsidiary of the Central Bank of the
Netherlands, and earmarked for payment of awards to US claimants rendered
by the Tribunal. Iran agreed to replenish the account so as to maintain a
minimum of US$500 million in the Security Account until satisfaction of all
awards made in proceedings before the Tribunal.
 General Jurisdiction
The Tribunal's general jurisdiction or competence is strictly defined and limited by the
Algiers Declarations, and the Tribunal is required to satisfy itself proprio motu (on one’s own
initiative) that it has jurisdiction in each case even if no objection is raised by a respondent.
The Limitations to Jurisdiction are as follows:
Ratione Personae: There is the limitation as to persons who may make or respond to claims,
i.e., ratione personae. The declarations allow recourse to the Tribunal only to nationals of
Iran and nationals of the US, and to each government. However, a national of Iran may only
claim against the Government of the US, and a US national may only claim against the
Government of Iran. The Tribunal would have no jurisdiction over a claim brought by a
national of one country against the national of the other. Where corporate claimants were
concerned, the Tribunal held admissible the claims of companies incorporated in third
countries if they satisfy the control test of nationality, i.e., a claim by a company with the
nationality of a third country having been incorporated there, would nevertheless be admitted
if the majority of its shares were owned by nationals of Iran or the US. The Tribunal would
have no jurisdiction over a claim by one government against a national of the other, except
where it is made as a counterclaim.
1. Ratione Temporis: The Tribunal's jurisdiction is limited in time. Its
jurisdiction is limited to claims (and counterclaims) that arose prior to the date
on which the Algiers Declarations entered into force, were outstanding on that
date or were filed with the Tribunal within one year from that date. Claims by
one government against the other in connection with the interpretation or
application of the Algiers Declarations are not subject to these
limitations ratione temporis.
2. Ratione Materiae: The Tribunal's jurisdiction is limited as to the subject-
matter of the claims that may be arbitrated by it. Its jurisdiction is limited to
claims of nationals that ‘arise out of debts, contracts, expropriation or other
measures affecting property rights’ as well as to any counterclaim which arises
out of the same. It was agreed that claims of US$250,000 or more should be
presented by the claimants themselves. Claims of less than that amount were
to be presented by the claimants' government.
3. ****The Algiers Declarations expressly exclude seven categories of claims
from the Tribunal's jurisdiction:
a) claims relating to the seizure of US personnel as hostages;
b) claims relating to their subsequent detention;
c) claims for injury to the property of the US or of US nationals within the US Embassy
compound after 3 November 1979;
d) claims for injury to US nationals or their property as the result of ‘popular movements in
the course of the Islamic Revolution of Iran which were not an act of the Government of
Iran’;
e) claims arising out of the actions of the US in response to the conduct described;
f) claims arising under a binding contract between the Parties specifically providing that any
disputes thereunder shall be within the sole jurisdiction of the competent Iranian courts, in
response to the Majli'sposition; and
g) late-filed claims.
 Rules of Procedure
1. The rules of procedure applied by the Tribunal are the Tribunal Rules which
consist of the Arbitration Rules of the United Nations Commission on
International Trade Law (UNCITRAL Rules). The Tribunal Rules comprise of:
2. an Introduction, which provides for the incorporation of procedural rules
which were issued by the Tribunal through four Administrative Directives
prior to the adoption of the Tribunal Rules, and definitions of terms used; and
3. several elucidatory Notes to the Arbitral Rules.
4. All modifications of the UNCITRAL Rules were directed at facilitating the
practical application of the rules to multiple claims, all being arbitrated while
relations between the two governments remained less than cordial. Essential
modifications were related to:
5. maintaining the integrity of the composition of the Tribunal,
6. detailed provisions for the languages of the arbitration (English and Persian),
the forms of statements of claim and defence, and time limits for their
presentation,
7. directions to the Tribunal concerning the applicable law,
8. the examination of witnesses and recording of proceedings, and
9. the apportionment and payment of the costs of the arbitration, and of the fees
and expenses of the Tribunal.
10. Article 15 of the Tribunal Rules adopts Article 15 of the UNCITRAL Rules
without any change. It states the general procedural principle of international
arbitration, stating that the arbitral tribunal may conduct the arbitration in such
manner as it considers appropriate, provided that the parties are treated with
equality and that at any stage of the proceedings each party is given a full
opportunity of presenting their case.
11. Article 24 of the Tribunal Rules adopts Article 24 of the UNICITRAL Rules
without any changes. It states the fundamental rule that each party shall have
the burden of proving the facts relied on to support their claim or defense and
goes on to empower the Tribunal to require a party to deliver a summary of the
 documents, exhibits and other evidence intended to be produced in support of
the statement of claim or statement of defense to the Tribunal as well as the
other party. Although the fundamental rule is one that is generally accepted by
courts and tribunals, the circumstances surrounding the claims brought before
the Tribunal, like the disappearance or destruction of documents during the
Iran-Iraq war or the inability or unwillingness of witnesses to testify required
the Tribunal to consider modifying its application in the cases before it. The
Tribunal has held that, in cases where forgery is alleged, such an allegation
required application of a standard of proof greater than the customary civil
standard of ‘preponderance of evidence’, and that the minimum quantum of
evidence that would be required to satisfy the Tribunal may be described as
‘clear and convincing’ evidence.
 Applicable Law
1. Article 33(1) of the Tribunal Rules, incorporating Article V of the Claims
Settlement Declaration, gives the Tribunal a wide discretion as to the law it
will apply in deciding cases before it. The Tribunal is first directed to ‘decide
all cases on the basis of respect for law’. In its present context, the directive
stands in contrast to Article 33(2) of the Tribunal Rules, which permits the
Tribunal to decide ex aequo et bono (from equity and good conscience) only if
the arbitrating parties have expressly and in writing authorized it to do so.
2. Having required the application of ‘law’ to resolve the disputes before the
Tribunal, the Tribunal Rules proceed to confer a wide discretion on the
Tribunal, authorizing it:
3. to apply such choice of law rules and principles of commercial and
international law as it determines to be applicable; and in doing so,
4. to take into account ‘relevant usages of the trade, contract provisions and
changed circumstances’.
5. Thus, the Tribunal has been guided by general choice of law principles in
deciding to apply several national legal systems, including those of Iran, the
US, and Switzerland. It has applied treaty law and other rules of public
international law in dealing with private claims as well as in cases between
Iran and the US. It has also applied general principles of law, including force
majeure (unforeseeable circumstances that prevent a person from performing a
contract) and changed circumstances.
 Functioning of the Tribunal (many things considered; read and remember)
1. Having notified the two governments and private claimants through four
Administrative Directives of the basic requirements for the presentation of
claims, even before the adoption of the Tribunal Rules, the Tribunal's Registry
received and filed claims, and served them on respondent parties. [A total of
some 3816 claims were filed: (965 claims of $250,000 or more-individuals or
corporations against a government; 2782 claims of less than $250,000-
presented by a government on behalf of individual claimants; 69 official
 contractual claims- one government against the other. After a reclassification
of claims, the total number of claims filed as of March 2013 was 3953.]
2. As stated under Claims Settlement Declaration, three panels or ‘Chambers’ of
three members (one Iranian, one American and one from a third-country, with
the last being designated chairman) were constituted. All claims were then
allocated by lot in the Registry for arbitration by each chamber, an award by
the chamber being deemed to be the award of the Tribunal.
3. Disputes between the two governments and any issue of importance referred
to the Full Tribunal by a chamber were reserved for arbitration by the Full
Tribunal of nine members. There was no concept of specialization, and each
chamber had the authority to deal with any and all issues before it. In practice,
because the Tribunal now has only claims by one government against the other
to dispose of, the Tribunal sits only as the Full Tribunal.
4. Arbitration has proceeded generally by way of two exchanges of pleadings
between the parties: a Statement of Claim, a Statement of Defense; a Reply
and a Rejoinder. The Tribunal may determine, in a particular case, what
further written statements or documents might be necessary. An exchange of
written pleadings is followed by a hearing on the case unless the chamber
decides that the documents before it provide sufficient basis for decision. The
chamber's deliberations are to remain secret. Decision by majority vote is
followed by the drafting and filing of the award in both official languages with
the Registry, which then effects service on the parties. Dissenting votes and
the reasons may be recorded.
 Awards and Their Implementation (load of garbage; has to be read)
1. All decisions and awards of the Tribunal are final and binding under (Article
IV (1) of Claims Settlement Declaration; Article 32 (2) Tribunal Rules), and
any award the Tribunal may render against either government shall be
enforceable against such government in the courts of any nation in accordance
with its laws (Article IV (3) of Claims Settlement Declaration).
2. The award shall be in writing and signed by the arbitrators. If one arbitrator
fails to sign, the award must state the reason for the absence of the signature.
3. The Tribunal Rules provide for interpretation of an award, correction of an
award and the rendering of an additional award by a chamber, but not for
revision of an award.
4. An area of uncertainty frequently encountered in international arbitration
arrangements concerns the carrying out or implementation of the award, which
may need to take place across territorial boundaries without reliance upon the
fiscal enforcement mechanisms of any State. Under the Algiers Declarations
such uncertainties were avoided, at least in respect of US claimants. Under
General Declaration, Iran agreed to establish a Security Account of US$1
billion ‘to be used for the sole purpose of securing payment of, and paying,
claims against Iran in accordance with the Claims Settlement Declaration’,
 always maintaining a minimum balance of U.S.$500 million in the Account.
However, no special mechanism for automatic payment of awards to Iranian
parties was provided for in the Algiers Declarations. Awards made to Iranian
parties have been satisfied by the US following negotiation between the two
governments in each case.
5. The Tribunal, interpreting the Algiers Declarations in light of the two
governments’ obligations to fulfil their commitments in good faith and with
due regard to their object and purpose, declared that each State Party had an
obligation to provide some procedure or mechanism whereby enforcement
may be obtained within its national jurisdiction.
6. Although the final and binding nature of Tribunal awards is plain from the
wording of the Algiers Declarations, the Tribunal has, from the outset, ex
abundanti cautela (out of an abundance of caution), followed a practice of
registering its awards with the District Court of the Hague.
 Publication of the Tribunal's Awards
1. Under Article 32 (5) of the Tribunal Rules, all awards and other decisions
should be made available to the public. However, upon the request of one or
more Arbitrating Parties, the arbitral tribunal may determine that it will not
make the entire award or other decision public, but only portions with parties’
names and secrets redacted.
2. The Tribunal's basic documents, as well as complete and fully indexed reports
of its awards and other decisions are published by the Lauterpacht Research
Centre for International Law of the University of Cambridge in the Iran-
United States Claims Tribunal Reports.
3.
4. Issues Arising in the Course of Arbitration
5. Over a quarter of a century since the first claims were filed, the Tribunal has
dealt with a full range of legal issues. In several cases, an award or other
decision by the majority was accompanied by a lengthy and meticulously
argued dissenting or separate opinion.
6. The scope of the Tribunal's jurisdiction ratione personae raised several issues:
for example, as to individuals, the issue of whether a person with both Iranian
nationality and US nationality could bring a claim against Iran before the
Tribunal; and as to corporations, whether a company which had been
incorporated in a country other than Iran and the US, and thus, can be said to
have the nationality of that third country, could bring a claim before the
Tribunal.
7. The delicate issue of the *multiple nationality*of an individual claimant was
referred to the Full Tribunal, which resolved it by reference to the principles of
public international law as interpreted by the ICJ in the Nottebohm Case. The
Tribunal applied ‘the rule that flows from the dictum of Nottebohm, the rule of
 real and effective nationality, and the search for stronger factual ties between
the person concerned and one of the States whose nationality is involved’. In
order to determine the dominant and effective nationality of the claimant, the
Tribunal considered all relevant factors, including habitual residence, centre of
interests, family ties, participation in public life and other evidence of
attachment. To this conclusion the Tribunal added an important caveat: in
cases where the Tribunal finds jurisdiction based on a dominant and effective
nationality of the claimant, the claimant's other nationality may remain
relevant to the merits of the claim.
8. The Tribunal has also been called upon to interpret Article VII (2) of Claims
Settlement Declarationin determining whether a claim by a company
incorporated in a third country fell within its jurisdiction. Applying the control
test based on capital stock ownership by US nationals in that provision, the
Tribunal has held to be within its jurisdiction claims of companies
incorporated in a range of countries, including Liberia, Venezuela, and
Switzerland.

9. Many of the substantive issues raised before the Tribunal concerned the non-
fulfillment of contractual obligations that had been entered into before the
Islamic Revolution and had been disrupted as a result of it. In dealing with the
many contract law issues before it, the Tribunal applied general choice of law
principles relating to the formation and interpretation of contracts and to the
termination of contracts on such grounds as force majeureand changed
circumstances. Other cases concerned banking and monetary law, and raised
issues connected with letters of credit and bank guarantees, Iran's foreign
exchange regulations in light of its membership in the International Monetary
Fund and the terms of the Treaty of Amity, Economic Relations, and Consular
Rights between the United States of America and Iran; the applicable
rial/dollar conversion rate, and damages.

10. The Tribunal has held that general rules governing the award of interest are to
be applied by the chamber deciding a case. However, it should be noted that
the Tribunal's practice as to the award of interest has not been uniform.
11. A basic issue in many claims was whether, as maintained by claimants, the
standard of compensation was that specified in Article IV of Treaty of Amity
of 1955 as being lex specialis. Further, whether that standard was applicable
by virtue of being set out in a bilateral treaty which the ICJ had held to be
binding upon the parties. Or, as maintained by respondents, whether partial
compensation was the applicable standard by virtue of the adoption and
 interpretation of that term in arbitral awards and other public documents.
In American International Group, Inc v Islamic Republic of Iranwhere
claimants presented their claims under both the Treaty of Amity and
customary international law, the Tribunal held that, by either standard,
claimants were entitled to payment of just compensation equal to the full value
of their interest in the company nationalized, as of the date of nationalization.
12. In deciding cases of expropriation the Tribunal did not always adopt identical
approaches. However, since it found the standard of compensation in
customary international law to be substantially the same as that prescribed in
the Treaty of Amity, its conclusions were generally consistent, although the
preceding rhetoric was not, in all cases, the same.
13. In Amoco International Finance Corp v Islamic Republic of Iran, the Tribunal
did expound a distinction between the standard of compensation due to a
claimant in respect of a lawful expropriation, and that due where the
expropriation had been unlawful. The Tribunal explained how the ‘restitution’
required would vary in either case in the following terms: “The difference is
that if the taking is lawful the value of the undertaking at the time of the
dispossession is the measure and the limit of the compensation, while if it is
unlawful, this value is, or may be, only a part of the reparation to be paid. In
any event, even in case of unlawful expropriation the damage actually
sustained is the measure of the reparation, and there is no indication that
‘punitive damages’ could be considered.” Deciding the case before it under the
Treaty of Amity, the majority of the Tribunal found that the claimant was
entitled to just compensation which it equated to damnum emergensand as
excluding lucrum cessans or lost profits.
14. Where, pursuant to the Treaty of Amity the Tribunal awarded ‘just
compensation’ representing the ‘full equivalent of the property taken’, the
Tribunal declared that that standard applied whether the taking was lawful or
unlawful. In general, the Tribunal's approach to the valuation of expropriated
corporate interests is best exemplified by that taken by Chamber One in INA
Corp v Iranwhere it held that compensation should be equal to ‘fair market
value’, defining that term as follows:
15. “‘Fair market value’ may be stated as the amount which a willing buyer would
have paid a willing seller for the shares of a going concern, disregarding any
diminution of value due to the nationalization itself or the anticipation thereof,
and excluding consideration of events thereafter that might have increased or
decreased [the claim accordingly].”
16. While the respondent usually argued that the proper valuation of corporate
property was its net book value, the majority of the Tribunal took the view
that, in principle, the value of a going concern comprised not only the net book
value of its assets, but also elements such as goodwill and future profits based
upon assumptions as to the company's performance had it been allowed to
continue under its former management. Where the property taken could not be
 considered a going concern, the Tribunal awarded as compensation its
dissolution value, or the net value of its assets, less its liabilities.

Kulbhushan jadhav case

FACTS
1. On 03.03.2016, Kulbushan Jadhav was arrested by Pakistan and on 24.03.2016, the
military establishments and law enforcement agencies of Pakistan accused Jadhav of
being a spy, having crossed over from Iran and was caught in southern Pakistan, i.e.
Balochistan. In the meanwhile, Pakistan also shared a video, wherein Jadhav is seen
confessing to the allegations leveled against him.
2. On 23.01.2017, The external affairs minister of Pakistan sent a “Letter of Assistance
for Criminal Investigation against Indian National Kulbhushan Sudhair Jadhav” to the
High Commission of India in Islamabad but no response was received. On
29.03.2016, India claimed all the allegations leveled against Jadhav to be baseless as
he is a retired naval officer and was illegally kidnapped by the Pakistani authorities
from Iran. In addition to this, the Indian government sought Consular access for
Kulbushan Jadhav from Islamabad which was denied. As many as 16 requests from
New Delhi were turned down by Pakistan over the course of 1 year. On 10.04.2017,
the Pakistani Military Court sentenced Kulbushan Jadhav to death on account of
“Espionage and Terrorism”.
3. On 14.04.2017, the Indian government demanded an authentic copy of the charge –
sheet and verdict of the military court of Pakistan which sentenced Jadhav to death
and further requested Consular access for Jadhav. On 08.05.2017, aggrieved by the
stance taken by Pakistan and lack of cooperation shown by them, in granting Consular
access to Kulbushan Jadhav, India approached the International Court of Justice at the
Hague Netherlands against the decision of Pakistan’s Military Court that awarded a
death Sentence to Mr. Jadhav. On the very next day, the ICJ stayed Jadhav’s
execution.
4. After much deliberations and negotiations between New Delhi and Islamabad, on
10.11.2017, Pakistan allowed the visit of Mr. Jadhav’s wife on ‘humanitarian grounds
‘and further extended the offer for his mother as well, it also assured India of the
safety of the visitors and their free movement. In nutshell, Kulbhushan “Sudhir
Jadhav was a 50-year-old retired Indian Navy Officer who was sentenced to capital
punishment by the Military Court of Pakistan. The charges against Jadhav for which
he was being sentenced to death was ‘Espionage and Terrorism.’
ISSUES
Whether Pakistan has violated the standards laid down by the Vienna Convention on
Consular Relations (VCCR) and International Covenant on Civil & Political Rights (ICCPR)
by not granting Consular access to Kulbushan Jadhav?
HELD
The ICJ delivered the judgment with an overwhelming majority of 15:1 ratio. The judgment
delivered by the majority pointed out mainly with the question of violation of article 36 of
VCCR. As per the court’s observation, the main dispute between both countries is about
‘consular assistance’ of arrest, detention, trial, and sentencing of Kulbhushan Jadhav. Both
the countries besides being the members of VCCR are also members of “Optional Protocol
to the Vienna Convention on Consular Relations concerning the Compulsory Settlement
of Disputes” without any reservations or declarations. The court had observed that the
jurisdiction of the case comes about from Article 1 of the “Optional Protocol” and does
not breach any of the international treaties’ asides from VCCR. Therefore, it has
legitimate jurisdiction under Article 1 of the Optional Protocol as alleged by the State of India
regarding the violation of VCCR.
The“three objections raised by the State of Pakistan regarding the abuse of power, abuse of
rights and unlawful conduct by the State of India were dismissed and India’s application
was admissible. Further, the court also held that Pakistan has acted in breach of the
agreement and failed to fulfill its obligations as per Article 36 of VCCR. The State of
Pakistan had failed to inform Kulbhushan Jadhav about his rights which he had under
Article 36(1)(b), by not informing India about the arrest and detention of Jadhav and
lastly by denying the access of Jadhav by the Consular Officers of India. These were all
part of the VCCR agreement which Pakistan had agreed without any reservations or
declarations. Hence, the court has found Pakistan to be in violation of international laws.”
ICJ SUMMARY
1. On 8 May 2017, India filed an Application instituting proceedings against Pakistan in
respect of a dispute concerning alleged violations of the Vienna Convention on
Consular Relations of 24 April 1963 “in the matter of the detention and trial of an
Indian national, Mr. Kulbhushan Sudhir Jadhav”, who had been sentenced to death by
a military court in Pakistan in April 2017.
2. India claimed that Pakistan had failed to inform it, without delay, of the arrest
and detention of its national. It further contended that Mr. Jadhav had not been
informed of his rights under Article 36 of the Vienna Convention on Consular
Relations, and that India’s consular officers had been denied access to Mr.
Jadhav while he was in custody, detention and prison, and had been unable to
converse and correspond with him, or arrange for his legal representation. As
basis for the Court’s jurisdiction, India referred in its Application to Article 36,
paragraph 1, of the Statute of the Court and Article I of the Optional Protocol to
the Vienna Convention on Consular Relations concerning the Compulsory
Settlement of Disputes.
3. On the same day, India also filed a Request for the indication of provisional measures,
requesting the Court to direct Pakistan to “take all measures necessary to ensure
that Mr. Kulbhushan Sudhir Jadhav is not executed” and to “ensure that no
action is taken that might prejudice the rights of the Republic of India or
Mr. Kulbhushan Sudhir Jadhav with respect to any decision th[e] Court may
render on the merits of the case”.
4. By an Order dated 18 May 2017, the Court directed Pakistan to “take all measures at
its disposal” to ensure that Mr. Jadhav would not be executed pending a final decision
in the case, and to inform the Court of all the measures taken in implementation of
that Order. It also decided that, until the Court had given its final decision, it would
remain seised of the matters which formed the subject matter of the Order.
5. Public hearings on the merits of the case were held from 18 to 21 February 2019. In
its Judgment of 17 July 2019, the Court first outlined the background of the dispute,
before concluding that it had jurisdiction to entertain India’s claims based on alleged
violations of the Vienna Convention. The Court next addressed the three
objections to admissibility raised by Pakistan, which were based on India’s
alleged abuse of process, abuse of rights and unlawful conduct. The Court
concluded that India’s Application was admissible.
6. Turning to the merits of the case, the Court examined in turn each of Pakistan’s three
contentions concerning the applicability of the Vienna Convention. Having found that
none of the arguments raised by Pakistan could be upheld, the Court concluded that
the Vienna Convention was applicable in the case, “regardless of the allegations
that Mr. Jadhav was engaged in espionage activities”.
7. Next, the Court examined India’s claim that Pakistan had acted in violation of its
obligations under Article 36 of the Vienna Convention, by failing to inform India,
without delay, of Mr. Jadhav’s detention. The Court observed that Pakistan did not
contest India’s assertion that Mr. Jadhav had not been informed of his rights
under Article 36, paragraph 1 (b), of the Convention, and thus concluded that
Pakistan had breached its obligation under that provision.
8. As regards Pakistan’s alleged breach of its obligation to inform India, without delay,
of the arrest and detention of Mr. Jadhav, as provided for in Article 36,
paragraph 1 (b), of the Vienna Convention, the Court found that since Pakistan had
failed to inform Mr. Jadhav of his rights, it was under an obligation to inform India’s
consular post of his arrest and detention, that obligation also being implied by the
rights of consular officers, under Article 36, paragraph 1 (c) of the Convention, to
visit the national, “to converse and correspond with him and to arrange for his legal
representation”. The Court then pointed out that Pakistan had notified India of
Mr. Jadhav’s arrest and detention on 25 March 2016, some three weeks after his
arrest; taking account of the particular circumstances of the case, the Court considered
that Pakistan had thus breached its obligation to inform the consular post “without
delay”, as required by Article 36, paragraph 1 (b), of the Vienna Convention.
9. The Court then turned to India’s third claim concerning Pakistan’s alleged failure to
allow Indian consular officers to communicate with Mr. Jadhav, recalling in this
regard that “Article 36, paragraph 1, creates individual rights, which, by virtue of
Article I of the Optional Protocol, may be invoked in this Court by the national State
of the detained person”. It being undisputed that Pakistan had not granted any Indian
consular officer access to Mr. Jadhav, the Court was of the view that India’s alleged
failure to co-operate in the investigation process in Pakistan did not relieve Pakistan
of its obligation to grant consular access, and did not justify Pakistan’s denial of
access to Mr. Jadhav by consular officers of India. Further, Mr. Jadhav’s choice to be
 represented by a defending officer qualified for legal representation did not dispense
with the consular officers’ right to arrange for his legal representation. The Court
therefore concluded that Pakistan had breached the obligations incumbent on it
under Article 36, paragraph 1 (a) and (c), of the Vienna Convention, by denying
India’s consular officers access to Mr. Jadhav, contrary to their right to visit him,
converse and correspond with him, and arrange for his legal representation.
10. With regard to India’s contention that it was entitled to restitutio in integrum, its
request for the Court to annul the decision of the military court and restrain Pakistan
from giving effect to the sentence or conviction, and its further request for the Court
to direct Pakistan to take steps to annul the decision of the military court, release
Mr. Jadhav and facilitate his safe passage to India, the Court found that the
submissions made by India could not be upheld. The Court also found, however, that
Pakistan was under an obligation to provide, by means of its own choosing, effective
review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to
ensure that full weight was given to the effect of the violation of the rights set forth in
Article 36 of the Vienna Convention.

13. Dogger bank inquiry case

 Facts of the case

1. This was during Russia- japan war, the russia baltic sea fleet was on its way to
deployment to ruso japan war. On their way they encountered 30 trollers
fishing in the North Sea of Hull in the Dogger Bank area. Then Commander-
in-Chief Admiral Rozhdestvensky suspected that the 30 trawlers by torpedo
boats and that russia was being attacked. Then he open fired. This open fire
lasted for 10 mins and two british fishermen dead and 6 injured.
2. After this, the russian ship went its way without helping the victims or
informing the british.
3. According to Russia, there were two unidentified vessels which were hiding
amongst these boats and displayed no lights. British said there were no hiding
vessels, and ships were following the light norms—- British saw this as an
attack on neutral power.
4. They asked for full apology, reparation and punishment of those responsible
for it.
Commission for inquiry-
1. Russian Tsar gave an apology and agreed to compensate when incidents were clarified
but British wanted a full fledged inquiry and pushnishment,
2. Prompted by the good offices of france, both parties agreed upon the international
inquiry provided under article 9 to 14 of the Hague Convention 1899 for the pacific
settlement of international dispute.
3. Subsequent negotiations centered on whether the commission of inquiry would decide
on the individual responsibility of officers. Russia objected that this was contrary to
task of Commission of Inquiry under Hague Convention.
 4. However on British insistence the parties agreed in a declaration to details of inquiry
and commission’s terms of reference.
Inquiry Report
1. The COI found that the admiral was responsible for firing, because the reason of them
being torpedoes (possibly) is not justifiable for an open fire.
2. Admiral had nevertheless taken utmost care to prevent trawlers recognized as such
from being fired upon and that it was reasonable for the fleet to continue under this
pretext.
3. The majority deplored the fact that the competent authorities were not informed
following the incident.
4. The report was accepted by both parties and, given the finding of Russia’s
responsibility and the consequential obligation to make reparations, Russia paid
£65,000 in compensation to the UK, which no longer requested punishment of the
responsible officers.
 Evaluation
o The inquiry represented the first use of the international inquiry mechanism
provided for in the 1899 Hague Convention I as a true innovation. It managed
to settle successfully a sensitive international dispute—which might have lead
to much greater repercussions in view of British threats to go to war—by
establishing the facts and factual aspects of responsibility and thereby easing
considerable tension and public indignation. The report proved to be
acceptable for both parties and thus provided a durable basis for a peaceful
settlement of the conflict arising from the incident.