Judge Neeru Chadha, Judicial Restraint and the Development of the Law of the Sea – Indian Blog of International Law
Arunava Banerjee
Introduction
On 30 September 2026, Her Excellency Judge Neeru Chadha’s term at the International Tribunal for the Law of the Sea (ITLOS or the Tribunal) came to an end. Her nine-years-long tenure (2017-2026) saw her on the bench for several significant decisions concerning the interpretation and development of the law of the sea (see, e.g., here, here, and here). Despite that, during her time at the Tribunal, she articulated her distinct judicial position only once through a joint declaration. This post does not see the lack of additional opinions (separate opinions, dissents, or declarations) as diminishing Judge Chadha’s contribution to the Tribunal. It, however, asks whether Judge Chadha’s lack of individual opinions reflects a form of judicial restraint that privileges the collective authority of ITLOS, and whether that restraint becomes jurisprudentially consequential when the Tribunal confronts unsettled questions that could shape the future law of the sea.
As this post will argue, there is an inherent Janus-like tension between the individual and the ‘disembodied, collective voice’ through which the Tribunal speaks. Judge Chadha’s record, therefore, presents an interesting contrast that this post understands as a possible form of judicial restraint; not as a means of deference or avoidance of adjudication, but more narrowly as a restraint in the public articulation of individual judicial positions. It is from this tension and a possibility of jurisprudential marginality that this post situates Judge Chadha’s tenure at the ITLOS. To trace that tension, the post revisits three decisions. It begins with the M/T San Padre Pio (Nigeria v. Switzerland), the only instance in which Judge Chadha spoke separately, enquiring into the role and positionality of her joint declaration. It then turns to the Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v. Russia) (Ukrainian Naval Vessels) and the Commission of Small Island States on Climate Change and International Law Advisory Opinion (COSIS AO) to examine the role individual judges ought to play when the Tribunal confronts contested or developing questions on the law of the sea.
San Padre Pio: When Judge Chadha Spoke
M/T San Padre Pio remains the only occasion on which Judge Chadha had separately pronounced during her nine-years-long tenure at the ITLOS, although it is unclear who is the author of the decision, as it is signed by Judge Cabello and Judge Chadha both. In a nutshell, the dispute arose from Nigeria’s detention of the Swiss-flagged M/T San Padre Pio, its crew and cargo, after which Switzerland sought provisional measures from the Tribunal. In its order, the majority considered Switzerland’s undertaking to assist Nigeria with the criminal proceedings sufficient and ordered the release of the master and officers. Judges Cabello and Chadha accepted the Tribunal’s intervention and agreed with the Tribunal on the prima facie jurisdiction, urgency, the risk of irreparable prejudice, and the need to prescribe provisional measures.
However, for them, the provisional measures were meant to preserve the rights of both parties, and Switzerland’s undertaking to assist Nigeria did not sufficiently protect Nigeria’s ability to enforce its criminal law. Their declaration, thus, supplemented the collective decision and addressed the potential for prejudice against Nigeria arising from its ability to enforce criminal law. Moreover, it highlights the distributive consequences of an otherwise ‘neutral’ judicial outcome upon a Global South State. The declaration, therefore, shows how an individual judicial voice can stir up and complicate an apparently settled collective outcome, ensuring that the competing legal interests are heard.
When Restraint Becomes Jurisprudentially Consequential
If Judge Chadha’s declaration in M/T San Padre Pio demonstrates the role of the individual voice in supplementing the majority’s reasoning, the significance of her judicial restraint becomes more difficult to ignore in cases where the ITLOS was confronted with a jurisprudentially unsettled and consequential question of law. As Song and Ma observe, additional opinions may become influential in matters of legal development, particularly when: a) judges are divided over the interpretation of legal rules and b) the relevant norms are new, developing or rarely adjudicated. Both the cases of the Ukrainian Naval Vessels and the COSIS AO, in which Judge Chadha joined the Tribunal’s collective decision, illustrate these two conditions in different ways.
In Ukrainian Naval Vessels, the Tribunal, in its provisional measures, weighing to the military nature of Ukrainian warships, considered whether the dispute concerning their activities was excluded from the compulsory dispute settlement by Russia’s declaration under Article 298 (1) of the United Nations Convention on the Law of the Sea (UNCLOS). In its order (19-1) for Ukraine, it charecterised the events as ‘law enforcement activity’ rather than ‘military activities’ and ordered the release of the Ukrainian naval personnel and servicemen. Nevertheless, the order had a fractured doctrinal picture that the prima facie voting outcomes failed to highlight. In the additional opinions, Judges chose several doctrinal routes. For instance, Judge Gao questioned whether the dispute had a mix of both ‘military and law enforcement’ activities and whether it was ‘law enforcement’ which afforded jurisdiction (para 51). Judge Jesus observed that the nature of ‘military activities’ is insufficiently examined and rather emphasised the conduct of the Ukrainian vessels in his additional opinion (para 2). And Judge Kittichaisaree saw the majority’s treatment of the service members’ immunity as limited and chose to develop another argument under Article 293(1) of UNCLOS and general international law (paras 22-29).
This is precisely why the distinction between the collective and individual judicial voice becomes significant. As seen in the case of the Ukrainian Naval Vessels, the prima facie voting indicates a strong judicial outcome. Nonetheless, the additional opinions show how such a judicial harmony is often a product of ‘false consensus’, which does not consider the several different combinations through which the results were reached. It is from this very position that Judge Chadha voted with the majority. And such a position did not, however, reveal whether she subscribed to the majority’s characterisation of military activities, its treatment of immunity, or the other possibilities developed by her colleagues. Her restraint leaves no publicly attributable position to the questions that, in many senses, divided the Tribunal’s reasoning and eventually becomes consequential when those unsettled questions may later be contested or developed.
The importance of such a restraint becomes even more significant when the Tribunal decides a case like the COSIS AO, in which it addresses questions of international law that are new or developing. It is for the same reason that, even after a unanimous AO of the Tribunal that anthropogenic greenhouse gas emissions constitute marine pollution under the UNCLOS, the State parties are required to take all necessary measures with due diligence, informed by the best available science. Yet, a unanimous AO did not exhaust the jurisprudential possibilities it opened. Judge Jesus offered a different reading of Article 194(2) of UNCLOS and its relationship with due diligence (paras 5-17). Moreover, in their respective declarations, Judges Infante Caffi and Kittichaisaree explored the relevance of human rights in shaping environmental obligations; likewise, Judge Pawlak argued towards greater engagement with climate justice alongside human rights in his declaration. In contrast, Judge Kulyk, while supporting the majority’s conclusion, argued in his declaration that further analysis of the counterarguments is necessary for a more comprehensive assessment to ensure that sovereign rights over natural resources and differences in States’ capabilities are protected.
These additional opinions, while not rejecting the Tribunal’s conclusion, opened new avenues for interpreting and broadening the legal discourse that the Tribunal is itself developing. Furthermore, additional opinions have historically enabled judges, epistemically marginal to the mainstream of the discipline, to craft opinions that would otherwise be unfavourable. This is evident in Judge Kulyk’s declaration, which, even after supporting the majority’s conclusion, advances a competing interpretation which upholds the sovereign rights and differentiated responsibility. Such a position, even though unfavourable, becomes imperative when one tries to (with, however, much caution) relate to the emotional, geographic and epistemic location of a judge from a war-torn Ukraine, holding on to its sovereignty under the shadows of the Russian military operation. While Mistry cautions against such direct attribution, it is nonetheless evident from her own work that diversity within the international judiciary continues to be shaped by divergent political thought and social action. And for this author, divergent political thought and social action cannot be devoid of one’s geographic and epistemic truth.
It is from this positionality, or rather the lack of, that Judge Chadha’s restraint becomes consequential. In M/T San Padre Pio, where, under comparatively lower stakes, Judge Cabello and Judge Chadha made visible a legal consideration that the collective Order did not. By contrast, Judge Chadha’s decision to remain within the Tribunal’s disembodied collective voice in the Ukrainian Naval Vessels and COSIS AO carried greater jurisprudential stakes. Even more so, where additional opinions developed competing interpretations with significant epistemic stakes, bringing alternative perspectives from beyond the historically dominant centres of international law into the development of the law itself. It is, thus, not her failure to opine that this post mourns. Rather, it is the lost possibility of an individually attributable judicial voice, shaped by a distinct emotional, geographical, and epistemic reality. One hopes that such a voice could contribute from otherwise peripheral locations to the contested and developing questions through which the future of the law of the sea will be argued.
Conclusion
The purpose of this post has been to trace Judge Chadha’s tenure at ITLOS through additional opinions, or lack thereof, and to consider what that reveals about the relationship between individual judicial voice, geographic and epistemic positionality, and the development of the law of the sea. Her tenure illustrates a tension between the Tribunal’s collective authority and the promise of competing perspectives within additional opinions. The consequence of such tension lies not in whether a judge speaks separately, but in the loss of the possibility of a distinct legal perspective beyond the Tribunal’s collective voice. That loss matters most when the law itself is in flux, and the absence eventually curtails alternative imaginations of the law that could have shaped independent judicial expressions challenging and influencing its future development. It is that absence that this post speaks to, keeping alive the space for peripheral voices, deliberations, disagreements and possibilities that might otherwise remain unheard.
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