What are the amicable means for the settlement of the International Disputes?

Q.  4: - What are the amicable means for the settlement of the International Disputes?

Answer: - For the settlement of an international dispute there are following amicable means:

1.   Negotiation: -

 The settlement of the international disputes by the disputant states themselves by negotiation is said to be settlement of the disputes by negotiation. In other words, when there a dispute arises between two or more states then to avoid the chances of war or violence they tend to conduct negotiation for the matters to be settled. The negotiation is to be taken by the political representatives of the disputant countries, without involving any third or non-concerned country.

2. Good-offices: -

The act or arrangements taken by a third party to bring disputant parties for negotiation or to settle dispute between them by any peaceful means is said to be Good-offices. In case of Good-offices the third merely renders services to bring the disputant parties to peace full means of settlement of disputes. Here the third party does not give any suggestions or take part in the meetings as to be held between the disputant parties. Shortly speaking, in case of good offices whenever the parties to dispute come to peace full of settlement of dispute the duty of the third party finishes.

3. Mediation: -

The act of participating and in the discussions and giving suggestions to settle a dispute between two parties by a third party is said to Mediation. In other words, mediation is the method to settle a dispute where any third party actively takes part in the sessions of dialogues or negotiations held between disputant party as to resolve the dispute. In case of mediation the mediator should consider the matter of compromise between the parties rather to encourage the strict letter of law.

4. Inquiry: -

The process to ascertain the facts of disputes by a commission of imperial investigators is said to inquiry. This mean is intended to find out the questions of law and mixed questions of law and fact involved in a dispute. The only function of the commission is to bring in light those facts, which are the root cause for the alleged dispute, and to investigate the question of law and mixed questions of law and fact.

5. Conciliation: -

 The process of referring a dispute to a commission; for the purpose of finding out facts and to prepare a report containing proposals for the settlement of that dispute, is called conciliation. In case of conciliation the commission is to take two tasks, at first, it shall ascertain the facts of the dispute and secondly, it shall prepare a report which shall reveal that the possible measures to settle the dispute. But the proposals prepared by the commission have no binding force upon the parties. The parties can disagree with the proposals.

6. Arbitration: -

The process of referring the dispute; by the mutual consent of the parties to a body of persons or to a tribunal for a legal decision is called as arbitration. The essential ingredient of arbitration is the consent of disputant parties to the dispute. In other words, the referring of the dispute to a Court of Arbitration is dependent on the sweet-well of the parties. International law recognizes a court for arbitration known as Permanent Court of Arbitration. But in fact it is neither permanent nor a court.

7. Judicial Settlement: -

 The process of settling a dispute; by the International Tribunal in the light of the provisions of International Law, is said to be Judicial Settlement. For Judicial Settlement there is a judicial organ in international law, known as International Court of Justice. Both the award given by the arbitration tribunal and decision given by the International Court of Justice are comes in the ambit of Judicial Settlement. Like in arbitration, in case of referring the dispute to the International Court of Justice the consent of both the parties are necessary to be given. International Court of Justice shall take its proceeding in the light of the rules of International law, and its procedure is governed by the a statute known as the Statute of International Court of Justice. International Court of Justice plays a very important rule in the settlement of international disputes.

8. Security Council: -

A dispute may be settled by a principal organ of the United Nations, known as Security Council. The Council is consisted of fifteen members. Five members are permanent while the remaining ten members are non-permanent members. Wide powers have been entrusted to the Council for the settlement of the disputes, which tend to endanger world peace and security. There is a number of measures to be taken by the Council for the settlement of the disputes.

9. General Assembly: -

General Assembly is another principal organ of the United Nations. The Assembly has no specific means to settle the dispute, rather it has general powers to settle the international dispute. It has the power to discuss and to suggest better means for the peaceful settlement of the disputes. Conclusion: - Briefly speaking, International Law intends to overcome the chances of war and violence, and believe to solve the disputes on the merits of political, diplomatic and judicial bases. To avoid the chances of breaking out of wars it provides certain measures and means. Among which above are the amicable means to settle the disputes. But international law also recognizes certain coercive or compulsive means to settle the disputes in extra-ordinary cases where the International peace and security has been endangered

Discuss composition as well as jurisdictions of International Court of Justice.

Q. 3: - Discuss composition as well as jurisdictions of International Court of Justice.

Answer: - International Court of Justice (ICJ) is the successor of the Permanent Court of International Justice. The statute of Permanent Court of Justice has been adopted for the International Court of Justice (hereinafter referred as ‘Court’). The establishment of the Court became necessary because to attain the end of International law there must be a judicial organ. So, the Court is the ‘Principle Judicial Organ’ of the International Organization. Composition: -

The composition of the Court may be explained as under:

1.   Strength: -

The Court is consisted of fifteen judges. And not more than one judge shall be elected from one state, for the Court at a given time.

2. Qualifications: -

The candidate for the office of judge in the Court shall possess the following qualifications:

a). He should be independent.

b). He should be a person of high moral character.

c). He must be qualified for the appointment of the highest judicial offices in his country.

3. Nature of the office: -

The nature of the office of judge for the Court is elective. In other words, the judges for the Court shall be elected in General Assembly and Security Council.

4. Election:-

General Assembly and Security Council shall conduct the election of the judges of the Court independently, but simultaneously. These two organs shall elect the judges from the list of nominees prepared by the national groups in the Permanent Court of Arbitration.

5. Term of office: -

The term of the office for the judge of the Court is nine years, however, five of them shall be retired after each three years and so, for such vacancies election shall also be conducted after each five years as to maintain the strength to fifteen.

6. Obligations of Judges: -

Any person who has so been elected as a judge of the Court is bound to;

a). refrain from all political and administrative functions,

b). refrain from being council, agent or advocate in any case, and

c). not participate in any case in which he has previously has taken part as agent, counsel or advocate for one of the parties.

7. Quorum of the Court: -

The quorum of the Court is fixed at nine judges.

8. President of the Court: -

After each period of three years the Court shall elect its president. The president shall preside the cases of the Court. But if in a case any party is his national he shall not be entitled to as act as president.

9. Voice-President of the Court: -

Along with the election of the president the shall also elect its voice-president. Voice president shall act as president in a case where president is not present or where president is not entitling for presidency due to one of the parties to the case is being his national.

10. Chamber: -

The Court is entitled to form a chamber, composed of not less than three members or which the Court may think fit. Different chamber may be declared by the Court to deal with different cases. The Court may constitute a chamber to deal with a particular case. The Court shall itself along with the approval of the parties to the case determine the chamber.

11. Ad hoc Judges: -

The statute of the Court reveals that ad hoc judges may be appointed in those cases where there is no national judge of the party to a case. That party can appoint a national judge in that particular case.

Jurisdiction: -

Broadly speaking there are two kinds of jurisdiction of the Court as follows;

·      

    Contentious Jurisdiction, and  Advisory Jurisdiction.

      I.                  Contentious Jurisdiction: -

That jurisdiction of the Court on the basis of which the Court decides any case with the consent of the parties to the case, is called ‘Contentious Jurisdiction.’ It is fundamental principle of international law that without the consent of any party to a case, the same shall not be referred to mediation or arbitration. The same rule is, with some restriction, is applicable to the jurisdiction of the Court. In other words, the Court is not entitled to initiate any proceeding merely because one party files a case, rather the consent of both the parties are necessary that dependent is also required to give consent to the case.

Contentious Jurisdiction is of three kinds which may be given as under:

·                   Voluntary Jurisdiction.

·                   Ad hoc Jurisdiction.

·                   Compulsory Jurisdiction.

Voluntary Jurisdiction: -

That jurisdiction which the parties by virtue of an agreement or treaty confer on Court is called Voluntary Jurisdiction. In other words, when the parties to a treaty or a contract stipulate that if any dispute arise in respect of such treaty or contract the dispute shall be referred to the Court for settlement, this type of jurisdiction of the Court is said to voluntary jurisdiction. So, in voluntary jurisdiction the parties to a dispute give their assent for the jurisdiction of the Court in advance.

Ad hoc Jurisdiction: -

That jurisdiction of the Court when the parties, after the occurrence of the dispute, confers on Court and in which the Court has no right to take up the case, is said to be Ad hoc Jurisdiction.

Compulsory Jurisdiction:

Compulsory Jurisdiction means that type of jurisdiction which the Court enjoys without the consent of the parties. In classic international law there is no concept of the Compulsory Jurisdiction of the Court, but recently it has been contended that no the time has reached to confide the Court with compulsory jurisdiction. In case of Compulsory Jurisdiction, the Court is to be empowered to take up a case without the consent of the parties like municipal Courts. But once again, the application of the Compulsory Jurisdiction at universal level, depends on the approval of the Nation States. The procedure for the Compulsory Jurisdiction of the Court has also been laid down.

Advisory Jurisdiction: -

Advisory Jurisdiction means that the jurisdiction of the Court by which it may only give an advisory opinion on a question of law. This does not require the consent of the parties to a case but when any International Institute (General Assembly or Security Council) ask the Court to give an advisory opinion on the question. This opinion is not binding on the parties. So, the case may be referred by an international organization or by any organs within the scope of their activities 

What are the sources of International law?

Q.2: - What are the sources of International law?

 Answer: - Sources of International law means those origins from where it attains its authority and coercive agency. According to the provisions of the Statute of International Court of Justice there are following sources, on the basis of which Court can decide a case:

1. Treaties: -

The term treaty may be defined as “the agreement entered into by Nation states for their relations with each other and to undertake certain duties, obligations and rights is said to be a treaty.” The statute declares that the Court shall have to decide any dispute between Nation States in accordance with the provisions of the treaty between them if existed.

2. Customs: -

 Customs are those habits and practices which the nations states commonly observe and the violation of which is considered as against the courtesy of International behavior. There are certain practices which the world community observes without any express provisions but because of practice they honour the same. So if there is no treaty between the parties to a dispute then the statute binds the Court to decide the case in the light of such international customs.

3. General Principals of Law Recognized by Civilized Nations: -

There are certain principles of law, which have been incorporated, in the domestic laws of many countries because of their universal application. So, in default of any treaty or international custom the statute reveals that the court then shall have to decide the case in the light of such general principles of law as recognized by civilized nations of the world.

4. Judicial Decisions: -

 Usually the Judicial decisions of the International Court of Justice are not binding and they have no value in the sense that they are related and binding only to that certain case for which they have given. And they cannot be cited as strict reference in any other case. But despite the fact the Statute reveals that in case of default of all the above sources the court shall resort to the prior judicial decisions.

5. Juristic Works: -

 The jurists or publicists also declares rules by legal philosophy and analogy and also by comparing different legal systems of the world and they also analyze the historical perspectives of the different legal systems of the world. So, as they have devoted their lives for the legal study, they must be deserving to consult in deciding a dispute. In other words, their opinion on a specific question of law weights because of their valuable experiments and sound study on the topic. So, the statute further reveals that if there is no treaty, legal custom and general principles of law then the Court shall resort to writings of these jurists.

6. Other Sources: -

 Beside the above sources there are also some other sources which court can resort for the decision of a case. As for example “Equity” and the resolution by the UN organization. Nowhere in the statute these sources have been declared for the Court to derive law but by practice the common and universal principles of equity have been observed by the courts while deciding cases. And also the UN organization when passes a resolution on specific subject the Court feels its moral duty to decide the case in the light of such resolution if there is no express provisions for deciding a case

Define International law and give its main kinds.

Q.1: -  Define International law and give its main kinds.

 Answer: - The term international law has been defined in a variety of ways by different jurists. Some of the definitions may be given as under:

. By Oppenheim: -

1 “Law of Nations or international law is the name for the body of customary law and conventional rules which are considered binding by civilized states in their intercourse with each other.”

 2. By Alf Ross: -

 Alf Rose defines the term international law as under: “International law is the body of legal rules binding upon states in their relations with one another.”

 3. By Lawrence: -

According to him, “international law is the rules which determines the conduct of the general body of civilized state in their mutual dealings.”

 4. Modern Definition: -

International law has always been in a continuous state of change. In modern period the term International law may rightly be defined as under; “That body of legal rules which regulates the relationship of the Nation States with each other, as well as, their relationship with other International actors.” Beside the above definitions there are at least forty well definitions of international law.

Major Kinds of International Law: - There are following two major kinds of international law;

1. Private International Law, and

 2. Public International Law.

 1. Private International Law: -

The term private International law may be defined as under: “That branch of International law which determines that which law is to be applied to a specific case containing a foreign element is called Private International law.” Explanation: - From the above definition it is evident that private international law is to regulate those cases where a foreign element involves in the matter and the difficulty arose that which law shall be applicable to the case, in other words when it becomes difficult for a domestic court that the law of which state shall be applicable to a certain case because the case contains an element of a foreign state/states law. In such a case private international law comes to help because it determines that which law shall be applicable to a certain case.

2. Public International Law: -

The term Public International Law may be defined as under: “A body of legal rules which regulates the relation of states inter se as well as their relations with other non-state entities is said to be Public International law.”

 Explanation: -

 From the above definition it may be concluded that Public International law is a set of legal rules which not only regulates the relations between the Nation States but also regulates their relations with other non-state entities. In other words, it is a body of rules which regulates the relationship of the international actors with each other. These international actors may be given as under: States, individuals, NGO’s, IGO’s, Multi-National Corporations and Movements.