RECOGNITION: The discretionary function exercised unilaterally by the govt of a state, officially acknowledging the existence of another state

or government or belligerent state is known as recognition.The sovereign entities of international community have been used to justify the existence of state even in the absence of recognition by other state. This criteria was derived from 1933 Montevideo inter America convention on rights and duties of states.In 1936 prestigious institute de droit stated, the existence of a new state with al the legal consequences attaching to this existence is not affected by the refusal of recognition by one or more states. Recognition of states is the requirement of having part of world community. The sovereign entities of international community have been used to justify the existence of state even in the absence of recognition by other state. This criteria was derived from 1933 Montevideo inter America convention on rights and duties of states. In 1936prestigious institute de droit stated, the existence of a new state with al the legal consequences attaching to this existence is not affected by the refusal of recognition by one or more states. Recognition of states is the requirement of having part of world community. ACTS OF RECOGNITION: Recognition is a matter of intention and it may be expressed or implied. So the act of recognition may be affected expressly, by formal announcement or by bilateral treaty of recognition. Also in some circumstances through an act indicating an intention to affect recognition e.g. U.K government recognized government of Burma by a treaty in 1947; they recognized them as fully independent and sovereign state. There are two theories, which have effect on the recognition of a state. 1: Constitutive theory 2: Declaratory theory CONSTITUTIVE THEORY: This theory asserts that the act of recognition by other states confer international responsibility on an entity purporting to be a state. It means if that state exists this is because of international community, as they have admitted that state into the community of nations. So we can say that a state may possess all the attributes and qualifications of state hood but unless or until recognition is accorded there will be no international personality. If we apply this theory on Israel and Palestine, for Pakistan Israel is not a state. Similarly before 1974 Bangladesh was not a state for Pakistan. DECLARATORY THEORY: The theory asserts that the existence of states depend upon the facts whether these facts meet with the criteria of statehood laid down in international law. According to this theory a state may exist without being recognized. Recognition is merely declaratory and the function of recognition is to acknowledge the fact of states political existence and the willingness of recognizing states to treat that state as an international entity. According to American law institute restatement, they accept it but also indicate that although a state is not required to accord formal recognition to any other state, but it is required to be treated as international entity that meets with the requirement of statehood. In contemporary practice it is clear that an entity meets the conditions of statehood as defined in s201 OF RESTATEMENT, can neither be denied the rights conferred on the states by international law? States like Taiwan, New Caledonia, Serbia, Western Sahara, Palestine; they still have to get the membership of UNO. POLITICAL NATURE OF RECOGNITION: This kind of recognition is based upon political expediency. Some members of international community recognize the entity and the recognition is denied by others.e.g. European community announced that it would recognize those republics that would give assurance of five points. 1: Continued respect for UN charter. 2: Guarantee for the rights of national and ethnic groups. 3: Respect for inviolability of all frontiers 4: Acceptance of international obligations. 5: Under taking to settle all questions concerning state succession and regional disputes peacefully. By accepting these rules Croatia, Bosnia and Slovenia got recognition from European community. So we can say that recognition is political tool in the hands of international community. RECOGNITION OF GOVERNMENT If a state acquires all the elements of statehood and if it is recognized by other states then occasionally states does not recognize government of state. State practice suggest that there is no legal duty upon states to extend

recognition to new government EXAMPLES: Afghanistan is recognized by many states but Taliban government was not recognized by majority of states. States may suspend the recognition of state e.g. in Pakistan in eras of 70s due to martial law many states suspended their relations with Pakistan. Similarly the relations between Libya and USA remain suspended for 24 long years. In the same way Palestinian state does not exist but Pakistan and Saudi a recognize it as a state. Other examples included non-recognition USA and allies of Costa Rica between 1917-1919, non-recognition by Britain of Russia between 1919-1921, non-recognition of USA by Britain till 1933. ESTRADE DOCTRINE If non-recognition can be expression of disapproval of new government then it can be applied where no such approval is intended. States have adopted the policy of never recognizing the government but instead of granting or withholding recognition only in respect of states. This doctrine originates in Mexico and has been adopted several states. MODES OF RECOGNITION: There are two modes of recognition: Defacto recognition Dejure recognition DEFACTO RECOGNITION: This term reflect the quality of government rather than that of act of recognition. Defacto recognition is temporary kind of recognition. When a state wants to delay the Dejure recognition of an any state it may grant Defacto recognition. The reason is that it is doubted that state going to be recognized may have all the attributes to fulfill international responsibility, or the state is willing to fulfill international obligations. As mentioned earlier that Defacto recognition is a temporary recognition and it means that state recognized possesses the essential characters of statehood and it is fit to be subject of international law. According to Oppenheim the Defacto recognition of state or government takes place when in view of recognizing state the new authority has not acquired sufficient ability (although effective power in territory is there). By recognizing that state as Defacto means that some characters are missing and now by recognizing them Defacto they are compelling that state to fulfill those requirements. According to lauterpatch Defacto recognition shows that recognizing state wants to establish its relations with the recognized state without establishing diplomatic relations. General Francos government in Spain was recognized Defacto by Britain. Similarly in 1936 United Kingdom recognized Italy sovereignty over Abyssinia. DEJURE RECOGNITION: This recognition is granted when in the opinion of recognizing state or its government the other state possesses all the characteristics and essential requirements of statehood, also it is capable of being member of international community. Dejure recognition is final and once given cannot be taken back, or with drawn. This is permanent kind of recognition. United Kingdom recognized Italys sovereignty over Abyssinia as dejure in 1938 Soviet government to United Kingdom in 1924. DIFFERENCE BETWEEN TWO RECOGNITIONS: In Defacto recognition diplomatic relations are not established formally. They are established only by granting dejure recognition. According to jurists there is hardly any difference between the two and if at all there is any difference it is political rather than legal. Prof. Keelson states that the distinction between two recognitions is not important .Any codification of international law relating to recognition can ignore it. But according to lauterpatch there are certain differences between the two, they have pointed out that in case of succession only the state, which has been granted dejure recognition will be deemed to be the successor state. Defacto recognition is provisional and Dejure is final recognition. Defacto government enjoys same immunities as a dejure state does. However diplomatic courtesies and representation are usually not accorded to Defacto government except in extraordinary circumstances occurring in times of war. There is no difference for the present purpose between a government recognized as dejure and one recognized as Defacto. LEGAL EFFECTS OF RECOGNITION: Recognition produces legal consequences affecting the rights powers privileges of recognized states or government. Recognized states have following consequences of their recognition.

Right of suing in law courts of recognized states. Recognized states may claim immunity from suit to its property or diplomatic representative. They may acquire the capacity to enter in to diplomatic relations with other states and may conclude treaties with them.

INTERVENTION: DEFINITIONS: Prof Oppenheim:--Intervention is dictatorial interference by the state in the affairs of another state for the purpose of maintaining or altering the actual condition of things. The term intervention has been used by some writers in the expression of subversive intervention to denote propaganda or other activity by one state with intention of fomenting for its own purpose, revolt or civil strike in another state. Intervention involves the unsolicited interference of one nation in the affairs of another. It may be directed against a single state, factions within that state, or interactions among a group of states. It does not necessarily take the form of military action but may involve economic or social pressure. When applied to international law, the concept can be elusive. Because many relations between states involve elements of coercion, it is difficult to determine at which point pressure becomes sufficiently coercive as to be deemed intervention. Although states always claim the right to intervene on the basis of \"vital interests,\" they never agree as to what this term involves. A group of writers prohibit intervention in all circumstances. According to their point of view when one state intervenes in the affairs of another state through force then as reaction against his violation international law permits intervention. CONCEPT OF INTERVENTION AND UNITED NATIONS CHARTER: Article 2, paragraph 4, of the Charter provides: \"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.\" The North Atlantic Treaty Organization (NATO) intervention in Kosovo in 1999 was said to be justified on the grounds of such a humanitarian crisis coupled with non-compliance by the parties with Security Council Resolutions. Similarly whatever is happening in Palestine is that not a human crises. Kinds of Intervention:--Winfield refers to three kinds of interventions:-1.Internal Intervention:-- This is intervention by a state in a civil war going on with the territory of another state. The intervening state in such case may side with insurgents or legitimate govt. the intervention of number of states in civil war in spain in 1936 was typical of internal intervention. 2. External Intervention:-- it is an intervention by a state in the foreign affairs of other states. As a general rule, an external intervention is directed against hostile relations of other states. While there is a war going on between two states, a third state can make an external intervention by entering the war on behalf of either of two states. 3. Punitive Intervention:--It is resorted to by a state when it has suffered an injury by some action state and may be stated as an act of retaliation against the state. The punitive intervention may take the form of pacific blockade. GROUNDS OF INTERVENTION: 1: SELF DEFENSE: Use of force in self defense is justified where it is necessary for self preservation. The right of self defense under article 51 is subject to following conditions: 1: There should be an armed attack. 2: Right exist until security council has taken any action. 3: It should be reported to security council. 4: The right shall not effect security councils responsibility for peace and security. 5: Right is not available for non member states. 2: INTERVENTION ON HUMANITARIAN GROUNDS: Intervention was permitted in the past on humanitarian grounds. When human rights were openly violated in a state and the people were openly persecuted then other states can intervene in the affair of such a state in order to check such persecution and violation of human rights. E.g. England, France and Russia jointly intervened in the conflict of Greece and turkey in 1827to check violation of human rights, other examples include: Bulgaria 1877 Cuba 1898 Haiti 1915 3: TO ENFORCE TREATY RIGHTS:---Intervention was also permitted in the past under international law to enforce treaty rigts. There are several examples of intervention on this ground e.g. when Germany attacked Belgium in 1831 England intervened because it had a treaty eith Belgium whereby it was commited to maintain the neutrality of Belgium. Similarly USA intervened Cuba in 1962. Now after the enforcement of united nations charter this kind of intervention is not allowed as states have undertaken not to intervene in the external or internal affairs of another state. But again question arises is that what was wrong with USA when they first intervened Afghanistan and then Iraq. 4: INTERVENTION TO PREVENT ILLEGAL INTERVENTION:---In the past there have been several cases of intervention by states in order to prevent illegal intervention by other states. It was on this ground that England helped Protugal in 1926. The united nations charter has affected this right. Intervention by one state in the affairs of another state is no more permissable.

INTERVENTION FOR PROTECTION OF PROPERTY AND PERSONS: In the past international law permited the intervention in order to protect the property and persons of a state citizens. The growth in international relations and interdependence of states neccesitated the intercourse of citizens of one state with other. So whenever there is a danger to the persons or property of citizeens it become natural for a state to to take action. During india pakistan war in 1971 America sent its 7th fleet to the bay of bengal on the ground of protection of property and persons. But united nations charter does not allow this kind of intervention. COLLECTIVE INTERVENTION: Under united nations charter colletive intervention can be made to check an agression on the breach of international peace and security. Security council has empowered to take collective action if there exist a threat or a breach of international peace. In its first stage security council take such collective measures and do not involve the use of force. Abaut if such an action does not prove to be adequate the security council is empowered to employ armed forces. The united natins took such actions in Korea 1950, congo 1961, in bosnia 1995-96 DOCTRINE ON PRINCIPLE OF NON INTERVENION: MONROE DOCTRINE: President Monroe of United States propounded this doctrine. I t was reaction of the treaty which napoleon had entered in to with European states. The European states wanted to re establish their colonies in America and wanted to help Spain. In the background of these events president Monroe made a declaration in 1923, the important points of this doctrine are as followed. 1: The states of American continent would not more be made subject to colonization in future.---2: America would not interfere in the European wars.---3: If European states interfered in the affairs of American continent then America would consider it unfriendly act. DRAGO DOCTRINE:--This doctrine was presented by drago of Argentina. According to the doctrine European states could not intervene in the affairs of states of American continent on the ground of claiming public debts. Actually European states had started using military force to enforce the claims of their citizens e.g. England, Germany and Italy had enforced blockade against Venezuela because they had failed to fulfill its financial obligations. MODREN DOCTRINE:---More recently, an alternative approach to humanitarian intervention known as \'Responsibility to protect R2P has emerged. Responsibility to Protect is the name of a report produced in 2001 by the International Commission on Intervention and State Sovereignty ICISS which was established by the Canadian government in response to the history of unsatisfactory humanitarian interventions. The report sought to establish a set of clear guidelines for determining when intervention is appropriate, what the appropriate channels for approving an intervention are and how the intervention itself should be carried out. Responsibility to protect seeks to establish a clearer code of conduct for humanitarian interventions and also advocates a greater reliance on non-military measures. The report also criticizes and attempts to change the discourse and terminology surrounding the issue of humanitarian intervention. It argues that the notion of a \'right to intervene\' is problematic and should be replaced with the \'responsibility to protect\'. Under Responsibility to Protect doctrine, rather than having a right to intervene in the conduct of other states, states are said to have a responsibility to intervene and protect the citizens of another state where that other state has failed in its obligation to protect its own citizens. LIMITATIONS: There are few limitations on intervention which are:

1.

When implemented, an intervention mission can contravene the fundamental objectives of the United Nations, such as maintaining peace, and it contravenes Article 2.7 of the Charter of the United Nations whenever a recognized state is subject to an intervention: \"Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state\". However, the UN Charter also justifies interventions under Chapters VI and VII. Advocates of interventions argue that the creation of a new right is not necessary, but rather the simple application of rights which already exist.

2.

More fundamentally than this legal problem are the contradictions inherent in the concept of humanitarian intervention, which are primarily due to the confusion created by the blurring of the right and the duty to interfere. It is difficult, when such confusion occurs, to separate the humanitarian motives from the political motives and be assured that the powers intervening are entirely disinterested.

3.

Even though it is called universal, the declaration of human rights is strongly influenced by the work of Western philosophers from the Enlightenment and more generally by a Judeo-Christian tradition. Intervention has often been an action directed by Northern states toward Southern states. It is thus unlikely that a Rwandan contingent might one day be assigned a peacekeeping mission in Northern Ireland, or that the Lebanese might intervene in Basque country.

4.

In reality, the powerful nation-states run little risk of becoming the target of a humanitarian intervention action. For example, the Chechen population is probably in as much danger as of 2005 as the Kosovos were in previous years, but Russia is significantly more powerful in the realm of international relations than Serbia, and so an international action into Chechnya is much less likely.

Explain the relationship between International Law and Municipal Law.

International Law is the law which governs the Relations of sovereign independent States inter se Municipal law or State law or national law is the law of a State or a country and in that respect is opposed to International Law which consists of rules which civilized States consider as binding upon them in their mutual relations. Kelsen observes that national law regulates the behavior of individuals International law the behavior of States or as it is put whereas national law is concerned with the international relations the so called domestic affairs of the State. International Law is concerned with the external relations of the State its foreign affairs. Legislature and court systems are different on the international and municipal levels. Where the municipal level uses a legislature to help enforce and test the laws, the international court system relies on a series of treaties without a legislature which, in essence, makes all countries equal. Enforcement is a major difference between municipal and international law. The municipal courts have a law enforcement arm which helps require those it determines to follow the rules, and if they do not they are required to attend court. The international court system has no enforcement and must rely on the cooperation of other countries for enforcement. There is a divergence of opinion on the question as to whether International Law and Municipal Law on the various national laws can be said to form a unity being manifestations of a single conception of law or whether International Law constitutes an independent system of law essentially different from the Municipal Law. The former theory is called monistic and the latter dualistic. Monistic Theory: Monists assume that the internal and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. In most monist states, a distinction between international law in the form of treaties, and other international law, e.g. jus cogens is made. International law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to their ratification. In its most pure form, monism dictates that national law that contradicts international law is null and void, even if it predates international law, and even if it is the constitution.It maintains that the subject of the two systems of law namely, International Law and Municipal Law are essentially one in as much as the former regulates the conduct of States, while the latter of individuals. According to this view law is essentially a command binding upon the subjects of the law independent of their will which is one case is the States and in the other individuals. According to it International Law and Municipal Law are two phases of one and the same thing. The former although directly addressed to the States as corporate bodies is as well applicable to individuals for States are only groups of individuals.

Dualistic theory: Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law. According to the dualist view the systems of International Law and Municipal Law are separate and self contained to the extent to which rules of the one are not expressly or tacitly received into the other system. In the first place they differ as regards their sources. The sources of Municipal Law are customs grown up within the boundaries of the State concerned and statutes enacted therein while the sources of International Law are customs grown up within the Family of Nations and law making treaties concluded by its members. In the second place Municipal Laws regulates relations between the individuals under the sway of a State or between the individuals and the State while International Law regulates relations between the member States of the Family of Nations. Lastly there is a difference with regard to the substance of the law in as much as Municipal Law is a law of the sovereign over individuals while International Law is a law between sovereign State which is arrived at an agreement among them. The latter is therefore a weak law. Besides the above two theories, Starke makes reference to two other theories namely, the Transformation Theory and Delegation Theory. Transformation Theory: According to this theory it is the transformation of the treaty into national legislation which alone validates the extension to individuals of the rules set out in international agreements. The transformation is not merely a formal but a substantial requirement. International Law according to this theory cannot find place in the national or Municipal Law unless the latter allows its machinery to be used for that purpose. This theory is fallacious in several respects. In the first place its premise that International Law and Municipal Law are two distinct systems is incorrect. In the second place the second premise that International Law binds States only whereas municipal law applies to individuals is also incorrect for International Law is the sum of the rules which have been accepted by civilized states as determining their conduct towards each other and towards each others subjects. In the third place the theory regards the transformation of treaties into national law for their enforcement. This is not true in all cases for the practice of transforming treaties into national legislation is not uniform in all the countries. And this is certainly not true in the case of law making treaties. Delegation Theory: According to this theory there is the delegation of a right to every State to decide for itself when the provisions of a treaty or convention are to come into effect and in what manner they are to be incorporated in the law of the land or municipal law. There is no need of transformation of a treaty into national law but the act is merely an extension of one single act. The delegation theory is incomplete for it does not satisfactorily meet the main argument of the transformation theory. It assumes the primacy of international legal order but fails to explain the relations existing between municipal and international laws. It is settled by the leading English and American decisions that International Law forms part of the municipal law of those countries. The United States has unambiguously applied the doctrine that International Law is part of the law of the land. All international conventions ratified by the USA and such customary International Law as has received the assent of the United States are binding upon American Courts even if they may be contrary to the statutory provisions. There is a presumption in cases of conflict that the United States Congress did not intend to overrule International Law. Position in India In India, SC has held in several cases such as Vishakha vs State of Rajasthan, Randhir vs Union of India, Unnikrishnan vs State of Karnataka, that domestic laws of India, including the constitution are not to be read as derogatory to International law. An effort must be made to read the domestic law as being in harmony with the international law in case of any ambiguity. At the same time, the constitution is still the supreme law of the land and in case of any directly conflict the constitution will prevail.

Q. What are the peaceful means of settlement of international disputes? Describe the constitution, function, and jurisdiction of International Court of Justice. How does it differ from permanent court of Arbitration and Permanent court of International Justice? Evaluate the role of ICJ in establishment of World Peace. What is Advisory Jurisdiction of ICJ?.
The General Obligation On 15th Nov. 1982, the General Assembly of UNO after reaffirming the need to exert utmost efforts in order to settle any conflicts and disputes between States exclusively by peaceful means and to avoid any military action and hostilities, which can only make more difficult the solution of those conflicts and disputes, approved the Manila Declaration on the Peaceful Settlement of International Disputes. This created a general obligation on the member states to adopt ways to resolve international disputes peacefully. In particular, it obligated that States parties to a dispute shall continue to observe in their mutual relations their obligations under the fundamental principles of international law concerning the sovereignty, independence and territorial integrity of States, as well as other generally recognized principles and rules of contemporary international law. It obligates the States to seek in good faith and in a spirit of co-operation an early and equitable settlement of their international disputes by any of the following means: negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements or agencies or other peaceful means of their own choice, including good offices. In seeking such a settlement, the parties shall agree on such peaceful means as may be appropriate to the circumstances and the nature of their dispute.

Thus, the following are peaceful means of settlement of international disputes.

1.

Non-Judicial Methods of Settlement 1. Mediation: It is a non-binding procedure in which a neutral intermediary assist the parties in reaching a negotiated settlement of the dispute. In a growing number of cases parties agree to first try to settle their dispute through mediation, and to resort to arbitration only if the dispute has not been settled with a certain period of time. While both arbitration and mediation are usually private dispute resolution procedures based on a party agreement they differ in a number of important aspects. Arbitration is an adjudicative procedure and in this respect resembles court litigation. Once the parties have submitted a dispute to arbitration, neither party can opt out unilaterally, and any decision rendered by the arbitral tribunal will be binding on both parties. Mediation in contrast, is a voluntary process which depends on the continuing cooperation of both parties since either party can withdraw at any time. Employed over the years in diplomatic matters, recently parties have begun using mediation to resolve transnational business disputes prior to binding dispute settlement alternatives or litigation.1 This alternative is particularly popular among Asian cultures. The mediation mechanism may be generally defined as the intervention of an unbiased third party in a dispute so as to facilitate party resolution of differences on a voluntary basis. The process differs from conciliation and arbitration with respect to the involvement and powers of the third party. Notwithstanding this definition, currently no consensus exists about the specifics of transnational mediation or its procedures, thus further complicating matters when it is employed as the only contractual means of dispute settlement. More specifically, when international parties use mediation exclusively, there is

no guarantee of a binding or definitive outcome at all. International dispute resolution organizations offer procedural rules for mediation. Since mediation has only recently come to the forefront, however, these rules remain vague in many areas. For example, the mediator's duties are not detailed specifically. The International Chamber of Commerce Rules of Optional Conciliation merely state that the mediator has discretion to conduct the proceedings as he or she sees fit. The only restriction imposed on the mediator by many of these rules is that the mediator operate under the principles of impartiality, equity and justice. Mediators are left to determine the contents of these principles. Given the lack of rule specificity and the discretion granted to the mediator, the success of the mediation often depends on the talents and temperament of the mediator. His or her ability to get the disputants to negotiate and work towards compromise is of utmost importance.Ultimately, if these techniques fail and the parties are not satisfied with the settlement, they can pursue other methods of dispute resolution, such as traditional litigation or arbitration. Conciliation - In conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure who is responsible for the figuring out the best solution for the parties. The conciliator, not the parties, often develops and proposes the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions about proposals made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of fault and a mediator does not assume sole responsibility for generating solutions. Instead, a mediator works together with the parties as a partner to assist them in finding the best solution to further their interests. A mediators priority is to facilitate the parties own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other parties. The parties come to mediator seeking help in finding their own best solution. Also the role of the attorneys is different in mediation. Attorneys are more active in mediation in generating and developing innovative solutions for settlement. In conciliation, they generally offer advice and guidance to clients about proposals made by conciliators. Conciliation and mediation both look to maintain an existing business relationship and to rekindle a lost balance of power between two parties. These concepts are sometimes used as synonyms, but they do indeed vary substantially in their procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms depending on the case. Conciliation is used almost preventively, as soon as a dispute or misunderstanding surfaces: a conciliator pushes to stop a substantial conflict from developing. Mediation is closer to arbitration in the respect that it intervenes in a substantial dispute that has already surfaced that is very difficult to resolve without "professional" assistance. The parties approach mediation as an alternative method to resolve their dispute, due to the fact that they both recognize that the conflict has grown potentially serious enough for litigation. Mediation may be used, however, any time after the emergence of a dispute, including the early stages.

2.

2.

Settlement by The International Court of Justice - The International Court of Justice was established by the Charter of the United Nations, which provides that all Member States of the United Nations are ipso facto parties to the Court's Statute. The composition and functioning of the Court are organized by this Statute, and by the Rules of the Court which are drawn up by the Court itself. The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by states and to give advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly. Composition of ICJ - The ICJ is composed of fifteen judges elected to nine year terms by the UN General Assembly and the UN Security Council from a list of persons nominated by the national groups in the Permanent Court of Arbitration. The election process is set out in Articles 4 12 of the ICJ statute. Judges

serve for nine year terms and may be re-elected for up to two further terms. Elections take place every three years, with one-third of the judges retiring (and possibly standing for re-election) each time, in order to ensure continuity within the court. Should a judge die in office, the practice has generally been to elect a judge of the same nationality to complete the term. No two may be nationals of the same country. According to Article 9, the membership of the Court is supposed to represent the "main forms of civilization and of the principal legal systems of the world". Essentially, this has meant common law, civil law and socialist law (now post-communist law). Differences with Permanent Court of International Justice - The Permanent Court of International Justice, sometimes called the World Court, was the international court of the League of Nations, established in 1923. Between 1922 and 1940 the Court dealt with 66 contentious cases between States and delivered 27 advisory opinions. It was replaced in 1946 by the International Court of Justice when the United Nations was organized. Differences with PCA - Unlike the ICJ, the PCA is not just open to states but also to other parties. The PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties. The PCA administers cases arising out of international treaties (including bilateral and multilateral investment treaties), and other agreements to arbitrate. The cases conducted by the PCA span a wide range of legal issues, including disputes over territorial and maritime boundaries, sovereignty, human rights, international investment (investor-state arbitrations), and matters concerning international and regional trade. Hearings are rarely open to the public and sometimes even the decision itself is kept confidential at the request of the parties. Many decisions and related documents are available on the PCA website. Jurisdiction of ICJ As stated in Article 93 of the UN Charter, all 192 UN members are automatically parties to the Court's statute. Non-UN members may also become parties to the Court's statute under the Article 93(2) procedure. For example, before becoming a UN member state, Switzerland used this procedure in 1948 to become a party. And Nauru became a party in 1988. Once a state is a party to the Court's statute, it is entitled to participate in cases before the Court. However, being a party to the statute does not automatically give the Court jurisdiction over disputes involving those parties. The issue of jurisdiction is considered in the two types of ICJ cases: contentious issues and advisory opinions. The International Court of Justice acts as a world court. The Court has a dual jurisdiction : it decides, in accordance with international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request (advisory jurisdiction). 1. Contentious Issues - In contentious cases (adversarial proceedings seeking to settle a dispute), the ICJ produces a binding ruling between states that agree to submit to the ruling of the court. Only states may be parties in contentious cases. Individuals, corporations, parts of a federal state, NGOs, UN organs and self-determination groups are excluded from direct participation in cases. The key principle is that the ICJ has jurisdiction only on the basis of consent. Article 36 outlines four bases on which the Court's jurisdiction may be founded. First, 36(1) provides that parties may refer cases to the Court (jurisdiction founded on "special agreement" or "compromise"). This method is based on explicit consent rather than true compulsory jurisdiction. It is, perhaps, the most effective basis for the Court's jurisdiction because the parties concerned have a desire for the dispute to be resolved by the Court and are thus more likely to comply with the Court's judgment. Second, 36(1) also gives the Court jurisdiction over "matters specifically provided for ... in treaties and conventions in force". Most modern treaties will contain a compromissory clause, providing for dispute resolution by the ICJ. Cases founded on compromissory clauses have not been as effective as cases founded on special agreement, since a state may have no interest in having the matter examined by the Court and may refuse to comply with a judgment. For example, during the Iran hostage crisis, Iran refused to participate in a case brought by the US based on a compromissory clause contained in the Vienna Convention on Diplomatic Relations, nor did it comply with the judgment. Since the 1970s, the use of such clauses has declined. Many modern treaties set out their own dispute resolution regime, often based on forms of arbitration.

Third, Article 36(2) allows states to make optional clause declarations accepting the Court's jurisdiction. The label "compulsory" which is sometimes placed on Article 36(2) jurisdiction is misleading since declarations by states are voluntary. Furthermore, many declarations contain reservations, such as exclusion from jurisdiction certain types of disputes ("ratione materia"). The principle of reciprocity may further limit jurisdiction. Of the permanent Security Council members, only the United Kingdom has a declaration. In the Court's early years, most declarations were made by industrialised countries. Since the Nicaragua Case, declarations made by developing countries have increased, reflecting a growing confidence in the Court since the 1980s. Industrialised countries however have sometimes increased exclusions or removed their declarations in recent years. Examples include the USA, as mentioned previously and Australia who modified their declaration in 2002 to exclude disputes on maritime boundaries (most likely to prevent an impending challenge from East Timor who gained their independence two months later). Finally, 36(5) provides for jurisdiction on the basis of declarations made under the Permanent Court of International Justice's statute. Article 37 of the Statute similarly transfers jurisdiction under any compromissory clause in a treaty that gave jurisdiction to the PCIJ. In addition, the Court may have jurisdiction on the basis of tacit consent (forum prorogatum). In the absence of clear jurisdiction under Article 36, jurisdiction will be established if the respondent accepts ICJ jurisdiction explicitly or simply pleads on the merits. The notion arose in the Corfu Channel Case (UK v Albania) (1949) in which the Court held that a letter from Albania stating that it submitted to the jurisdiction of the ICJ was sufficient to grant the court jurisdiction. Examples of contentious cases include: A complaint by the United States in 1980 that Iran was detaining American diplomats in Tehran in violation of international law. A dispute between Tunisia and Libya over the delimitation of the continental shelf between them. Advisory Jurisdiction - An advisory opinion is a function of the Court open only to specified United Nations bodies and agencies. On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity to present written or oral statements. Advisory Opinions were intended as a means by which UN agencies could seek the Court's help in deciding complex legal issues that might fall under their respective mandates. In principle, the Court's advisory opinions are only consultative in character, though they are influential and widely respected. Whilst certain instruments or regulations can provide in advance that the advisory opinion shall be specifically binding on particular agencies or states, they are inherently non-binding under the Statute of the Court. This non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. An advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.

2.

3.

Advisory Opinions have often been controversial, either because the questions asked are controversial, or because the case was pursued as an indirect "backdoor" way of bringing what is really a contentious case before the Court. Examples of advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article. One such wellknown advisory opinion is the Nuclear Weapons Case. International Arbitration: The Hague Peace System -International arbitration is the process of resolving disputes between or among transnational parties through the use of one or more arbitrators rather than through the courts. It requires the agreement of the parties, which is usually given via an arbitration clause that is inserted into the contract or business agreement. The decision is usually binding. Arbitration is today most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions (International Commercial Arbitration). It is also used in some countries to resolve other types of disputes, such as labour disputes, consumer disputes, and for the resolution of certain disputes between states and between investors and states. As the number of international disputes mushrooms, so too does the use of arbitration to resolve them. There are essentially two kinds of arbitration, ad hoc and institutional. An institutional arbitration is one that is entrusted to one of the major arbitration institutions to handle, while an ad hoc one is conducted independently without such an organization and according to the rules specified by the parties and their attorneys. The following are various avenues for International Arbitration.

Permanent Court of Arbitration (PCA) - The Permanent Court of Arbitration (PCA), is an international organization based in The Hague in the Netherlands. It was established in 1899 as one of the acts of the first Hague Peace Conference, which makes it the oldest institution for international dispute resolution. The creation of the PCA is set out under Articles 20 to 29 of the 1899 Hague Convention for the specific settlement of international disputes which was a result of the first Hague Peace Conference. At the second Hague Peace Conference in 1907, the earlier Convention was revised and improved by the 1907 Convention for the Pacific Settlement of International Disputes. 2. International Commercial Arbitration (ICA) 3. International Centre of Settlement of Investment Disputes (ICSID) 4. WIPO Arbitration and Mediation Center (World Intellectual Property Organization) 5. WTO Dispute Settlement System 6. Court of Arbitration for Sport (CAC) 7. Society of Maritime Arbitrators (SMA) 4. Ad Hoc Inter-State Arbitration 5. The Iran-US Claims Tribunal 6. The International Centre for Settlement of Investment Disputes 7. Settling Disputes about Human Rights 8. Dispute Settlement in the Law of the Sea 9. Settlement of International Economic Disputes 10. Reg

1.