• Subject: International Law

• Teacher: Agha Shahriyar Khan (CSS 2019 Qualifier)

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• Lecture: 8 and 9
• Time Limit: 180min

Topics for Today’s class

• International Humanitarian Law. International and Non-International Armed Conflicts, Non-

International Armed Conflict, ‘Combatant’ and ‘Protected Persons’, Protection of Wounded, Sick
and Ship-Wrecked Persons, POWs, Civilians, Limitations on the Conduct of War, Limits on the
Choice of Methods and Means of Warfare./ Geneva Conventions (1,2, 3, 4)
• Settlement of International Disputes: Negotiation, Mediation and Good Offices, Inquiry,
Settlement by the United Nations, Conciliation, Arbitration, The International Court of Justice.
• ICJ

International humanitarian law (IHL) (jus in bello) (law seeks to regulate the conduct of hostilities)

is the law that regulates the conduct of war (jus in bello). "It comprises a set of rules, established by
treaty or custom, that seeks to protect persons and property/objects that are (or may be) affected by
armed conflict and limits the rights of parties to a conflict to use methods and means of warfare of their
choice".[1] It includes "the Geneva Conventions and the Hague Conventions, as well as subsequent
treaties, case law, and customary international law".[2]

Serious violations of international humanitarian law are called war crimes. International humanitarian
law, jus in bello, regulates the conduct of forces when engaged in war or armed conflict. It is distinct
from jus ad bellum which regulates the conduct of engaging in war or armed conflict and includes crimes
against peace and of war of aggression. Together the jus ad bellum and just in bello comprise the two
strands of the laws of war governing all aspects of international armed conflicts.

Development: Two historical streams: The Law of Geneva and The Law of The Hague[edit]

Modern international humanitarian law is made up of two historical streams:

• The law of The Hague, referred to in the past as the law of war proper; and
• The law of Geneva, or humanitarian law.[7]

The two streams take their names from a number of international conferences which drew up treaties
relating to war and conflict, in particular the Hague Conventions of 1899 and 1907, and the Geneva
Conventions, the first which was drawn up in 1863

The Law of The Hague, or the laws of war proper, "determines the rights and duties of belligerents in the
conduct of operations and limits the choice of means in doing harm".[9] In particular, it concerns itself
with
 • the definition of combatants;

• establishes rules relating to the means and methods of warfare;

• and examines the issue of military objectives.[10]

The Geneva Conventions are the result of a process that developed in a number of stages between 1864
and 1949. It focused on the protection of civilians and those who can no longer fight in an armed conflict

• The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field was adopted in 1864. It was significantly revised and replaced by the 1906
version,[24] the 1929 version, and later the First Geneva Convention of 1949.[25]

• The Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea was adopted in 1906.[26] It was significantly revised and
replaced by the Second Geneva Convention of 1949.

• The Geneva Convention relative to the Treatment of Prisoners of War was adopted in 1929. It
was significantly revised and replaced by the Third Geneva Convention of 1949.

• The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War was
adopted in 1949.

There are three additional amendment protocols to the Geneva Convention: Protection of Victims of
International and Armed non international Conflicts and Adoption of an Additional Distinctive Emblem

Basic rules of IHL[edit]

1. Persons who are hors de combat (outside of combat), and those who are not taking part in
hostilities in situation of armed conflict (e.g., neutral nationals), shall be protected in all
circumstances.

2. The wounded and the sick shall be cared for and protected by the party to the conflict which has
them in its power. The emblem of the "Red Cross", or of the "Red Crescent," shall be required to
be respected as the sign of protection.

3. Captured persons must be protected against acts of violence and reprisals. They shall have the
right to correspond with their families and to receive relief.

4. No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or

punishment.

5. Parties to a conflict do not have an unlimited choice of methods and means of warfare.

6. Parties to a conflict shall at all times distinguish between combatants and non-combatants.
Attacks shall be directed solely against legitimate military targets.[

IHL provisions and principles

Principle of distinction[edit]
The principle of distinction protects civilian population and civilian objects from the effects of military
operations. It requires parties to an armed conflict to distinguish at all times, and under all
circumstances, between combatants and military objectives on the one hand, and civilians and
civilian objects on the other; and only to target the former. It also provides that civilians lose such
protection should they take a direct part in hostilities.[42]
Necessity and proportionality[edit]
Necessity and proportionality are established principles in humanitarian law. Under IHL, a belligerent
may apply only the amount and kind of force necessary to defeat the enemy. Further, attacks on
military objects must not cause loss of civilian life considered excessive in relation to the direct
military advantage anticipated.[44] Every feasible precaution must be taken by commanders to avoid
civilian casualties.[45] The principle of proportionality has also been found by the ICRC( International
Committee of the Red Cross) to form part of customary international law in international and non-
international armed conflicts.[46]
Principle of humane treatment[edit]
The principle of humane treatment requires that civilians be treated humanely at all
times.[47] Common Article 3 of the GCs prohibits violence to life and person (including cruel treatment
and torture), the taking of hostages, humiliating and degrading treatment, and execution without
regular trial against non-combatants, including persons hors de combat(wounded, sick and
shipwrecked). Civilians are entitled to respect for their physical and mental integrity, their honour,
family rights, religious convictions and practices, and their manners and customs.[48] This principle of
humane treatment has been affirmed by the ICRC as a norm of customary international law,
applicable in both international and non-international armed conflicts.[49]
Principle of non-discrimination[edit]
The principle of non-discrimination is a core principle of IHL. Adverse distinction based on race, sex,
nationality, religious belief or political opinion is prohibited in the treatment of prisoners of
war,[50] civilians,[51] and persons hors de combat.[52] All protected persons shall be treated with the
same consideration by parties to the conflict, without distinction based on race, religion, sex or
political opinion.[53] Each and every person affected by armed conflict is entitled to his fundamental
rights and guarantees, without discrimination.[54]The prohibition against adverse distinction is also
considered by the ICRC to form part of customary international law in international and non-
international armed conflict.[55]
Women and children[edit]
Women and children are granted preferential treatment, respect and protection. Women must be
protected from rape and from any form of indecent assault. Children under the age of eighteen must
not be permitted to take part in hostilities.[56]
INTERNATIONAL ARMED CONFLICT

Common Article 2 to the Geneva Conventions of 1949 states that: "In addition to the provisions which
shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or
of any other armed conflict which may arise between two or more of the High Contracting Parties,
even if the state of war is not recognized by one of them. “According to this provision, IACs are those
which oppose "High Contracting Parties", meaning States.

The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed a general definition of
international armed conflict. In the Tadic case, the Tribunal stated that "an armed conflict exists
whenever there is a resort to armed force between States". 5 This definition has been adopted by
other international bodies since then.

NON-INTERNATIONAL ARMED CONFLICT

Common Article 3 applies to "armed conflicts not of an international character occurring in the
territory of one of the High Contracting Parties"

the ICTY went on to determine the existence of a NIAC "whenever there is […] protracted armed
violence between governmental authorities and organised armed groups or between such groups
within a State"

Furthermore, two requirements are necessary for such situations to be classified as non international
armed conflicts:

1. The hostilities must reach a minimum level of intensity. This may be the case, for example,
when the hostilities are of a collective character or when the government is obliged to use
military force against the insurgents, instead of mere police forces.
2. Non-governmental groups involved in the conflict must be considered as "parties to the
conflict", meaning that they possess organized armed forces. This means for example that these
forces have to be under a certain command structure and have the capacity to sustain military
operations.

Additional Protocol II to the Geneva Convention of 12 August 1949 develops and supplements
common Article 3 without modifying its existing conditions of application, by introducing a
requirement of territorial control. It provides that non-governmental parties must exercise such
territorial control "as to enable them to carry out sustained and concerted military operations and
to implement this Protocol".

The scope of protection under the Geneva Conventions system

Common article 2 of all four Geneva conventions provides that the Conventions 'shall apply to all cases
of declared war or of any other armed conflict which may arise between two or more of the High
Contracting Parties even if the state of war is not recognised by them.. . [and] to all cases of partial or
total occupation of the territory of a High Contracting Party, even if the said occupation meets with no
armed resistance'

protection of the Wounded and Sick

• The First Geneva Convention concerns the Wounded and Sick on Land and emphasises that
members of the armed forces and organised militias, including those accompanying them where
duly authorised," 'shall be respected and protected in all circumstances'. They are to be treated
humanely by the party to the conflict
• Torture or biological experimentation is forbidden, nor are such persons to be wilfully left
without medical assistance and care.
• The wounded and sick of a belligerent who fall into enemy hands are also to be treated as
prisoners of war
• The parties to the conflict are to record as soon as possible the details of any wounded, sick or
dead persons of the adversary party and to transmit them to the other side through particular
means."
• This Convention also includes provisions as to medical units and establishment, noting in
particular that these should not be attacked,'' and deals with the recognised emblems (i.e. the
Red Cross and Red Crescent).
The Second Geneva Convention concerns the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea and is very similar to the First Convention

The Convention also provides that hospital ships may in no circumstances be attacked or captured but
respected and protected.1

Third Geneva Convention: protection of Prisoners of War

Prisoners of War

1. Introduction:
The rules of treatment of the prisoner of war are governed by the Geneva convention 1949.
this convention is regarded most important convention on the protection of the prisoners of
war.
2. Prisoner of war:
Prisoner of war is a status which is given to a person captured by a belligerent during a war
or in an armed conflict all the persons captured by the belligerents do not acquire this
status.
3. Persons treated as prisoner of war:
Article 4 of the Geneva convention enummerat that certain categories of persons who have
fallen into the hands of enemy shall be called as prisoner of war which are following.
(i) Member of armed forces of a party to the conflict.
(ii) Members of militias and member of volunteer corps, which also fulfil the following
conditions.
(a) That of being commanded by a person responsible for his subordinates.
(b) That they have a distinctive sign which can be recognized from distance.
(d) That they carry arms.
(e) That they obscure the laws and custom of war.
(iii) Members of the armed forces who profess allegiance to a govt. or an authority not
recognized by the detaining power.
(iv) Persons who accompany the armed forces without actually being member of armed
forces.
(v) Inhabitants of a non- occupied territory who take up arm to resist the invading forces
without having had time themselves into regular armed units.

Article 5 also provides that where there is any doubt as to the status of any person committing a
belligerent act and falling into the hands of the enemy, 'such person shall enjoy the protection of the
present Convention until such time as their status has been determined by a competent tribunal

4. Sir Robert Phillimore's views:

According to Sir Robert Phillimore following classes of person have no claim to the
treatment of the prisoners of war.
(a) Bands of marauders(robbers), acting without the authority of the sovereign or the order
of the military commander.
(b) Deserters, captured among the enemy troops.
(c) Spies, even if they belong to regular army.
5. Fundamental principles relating to prisoners of war:
The Third Geneva Convention of 1949 is concerned with prisoners of war, and consists of a
comprehensive code centred upon the requirement of humane treatment in all circ~mstanc
(i) Human treatment of prisoners:
Article 13 provides that prisoners of war must at all times be humanely treated and must at all times be
protected, particularly against acts of violence or intimidation and against 'insults and public curiosity'.
(ii) Prohibition as to any act harmful for health:
Any unlawful act or omission by the detaining power causing death or seriously endangering
the health of the prisoners of war is prohibited.
(iii) No physical multilation:
No prisoner of war may be subjected to physical multilation or to medical or scientific
experiments of any kinds which are not justified by the medical, dental or hospital
treatment of the prisoners.
(iv) Protection against act of violation:
Prisoners of war at, all times be protected, particularly against acts of violation.
(v) Right to respect of their persons and their honour:
Article 14 provides that prisoners of war are entitled in all circumstances to respect for their persons
and their honour.25
(vi) Maintenance of prisoners:
The detaining power shall be bound to provide free of charge for maintenance for medical
attention required by their state of health.
(vii) Equality of treatment:
The detaining power should teat prisoners equally without any distinction based on
nationality religious belief or politically.
(viii) No physical and mental torture:
Article 17 No physical or mental torture no any other form of coercion may be inflicted on
prisoners of war to secure from them information of any kind whatever. prisoner of war who
refuse to answer may not be threatened, insulted or exposed to unpleasant or
disadvantageous treatment of any kind.
(ix) Right to possession of articles of personal use:
All effects and articles of personal use except arms, horse, military equipment and military
documents shall remain in their possession likewise their metal helmet's and gas masks,
like article issued for their personal protection.
(x) Quarter facilities:
Prisoners shall be provided quarter facilities similar as to those of the detaining power. the
premises should be protected from dampness. they should be adequately heated and
lighted. all precautions must be taken against the danger of their life. the detaining power
should provide separate dormitories to woman prisoners. the detaining power shall also be
bound to take all sanitary measures necessary to ensure the cleanliness of camp and to
prevent epidemic.

6 while article 23 stipulates that 'no prisoner of war may at any time be sent to, or detained in, areas
where he may be exposed to the fire of the combat zone, nor may his presence be used to render
certain points or areas immune from military operations'."
(xi) Identity documents:
At no time prisoners of war be without identity documents. the detaining power shall supply
such documents to the prisoners of war who possess none.

(x) Release of prisoner of warArticle 118 provides that prisoners of war shall be released and
repatriated without delay after the cessation of hostilities
6. Present position regarding geneva convention of P. O. W:
Presently powerful states have ignored the geneva convention regarding P. O. W. or
example U. S. A violated these refuges in Afgan and Iran war. P. O. W. were treated and
are being treated in humanly and tortured in Gunatanamo.
7. Conclusion:
To conclude it can be said that international law protects all prisoners of war from
punishment for their hostile acts committed prior to capture. the detaining power is not free
to enforce its own municipal law except permitted by international law.

PROTECTION OF CIVILIANS:

Forth Geneva Convention, Geneva Convention relative to the Protection of Civilian Persons in Time of
War.

Article 4 defines who is a protected person:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever,
find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying
Power of which they are not nationals.

They include medical personnel and others carrying out humanitarian work, the sick or wounded,
shipwrecked persons not taking part in hostilities, prisoners of war and other detained persons, and
civilians, who are all regarded as non-combatants under international humanitarian law.

Definition of Civilian

Under article 50(1) of Protocol I, 1977, a civilian is defined as any person not a Combatant,~~ and in
cases of doubt a person is to be considered a civilian

The Fourth Geneva Convention is concerned with the protection of civilians in time ~fwa

Article 32: Prohibition of corporal punishment, torture, etc

This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or
scientific experiments not necessitated by the medical treatment"

Article 33: Individual responsibility, collective penalties, pillage, reprisals[edit]

No protected person may be punished for an offense he or she has not personally committed. Collective
penalties and likewise all measures of intimidation or of terrorism are prohibited.

Pillage(plunder) is prohibited.

Reprisals against protected persons and their property are prohibited."

Deportations, transfers, evacuations: Article 49. Individual or mass forcible transfers, as well as
deportations of protected persons from occupied territory to the territory of the Occupying Power or to
that of any other country, occupied or not, are prohibited, regardless of their motive

Article 50: Children[edit]

Article 50. The Occupying Power shall, with the cooperation of the national and local authorities,
facilitate the proper working of all institutions devoted to the care and education of children.

Article 56: Hygiene and public health[edit]

Article 56 describes the medical obligations the occupying power has in the occupied territory:
To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and
maintaining, with the cooperation of national and local authorities, the medical and hospital
establishments and services, public health and hygiene in the occupied territory, with particular
reference to the adoption and application of the prophylactic and preventive measures necessary to
combat the spread of contagious diseases and epidemics. Medical personnel of all categories shall be
allowed to carry out their duties.

Other provisions refer to the prohibition of forced work or conscription of protected persons, the
destruction of real or personal property, or any alteration of the status of public or judicial officials.42

Article 70 provides that protected persons shall not be arrested, prosecuted or convicted for acts
committed or opinions expressed before the occupation apart from breaches of the laws of war

Methods of warfare/conduct of Hostilities

The right of the parties to an armed conflict to choose methods of warfare is not unconstrained. Article
22 of the Hague Regulations points out that the 'right of belligerents to adopt means of injuring the
enemy is not unlimited',j6 while article 23(e) stipulates that it is especially prohibited to 'employ arms,
projectiles or material calculated to cause unnecessary suffering

it is prohibited to cause unnecessary suffering to combatants; it is accordingly prohibited to use

wedpons causing them such harm or uselessly aggravating their sufferin

The International Court in its Advisory Opinion on the Legality of the Threat or Use of Nuclear weapons
analysed state practice and concluded that nuclear weapons were not prohibited either specifically or
by express provision. ~' Nor were they prohibited by analogy with poisoned gases prohibited under the
Second Hague Declaration of 1899, article 23(a) of the Hague Regulations of 1907 and the Geneva
Protocol of 1925. it does seem clear that the possession of nuclear weapons and their use in extremis
and in strict accordance with the criteria governing the right to self-defence are not prohibited under
international law.72

A number of specific bans on particular weapons has been imposed. Examples would include

• small projectiles under the St Petersburg formula of 1868, dum-dum bullets under the Hague
Declaration of 1899 and
• asphyxiating and deleterious gases under the Hague Declaration of 1899 and the 1925 Geneva
~rotocol.~~ Under the 1980 Conventional Weapons Treaty,75 Protocol I, it is prohibited to use
weapons that cannot be detected by X-rays,
• while Protocol I1 (minimally amended in 1996) prohibits the use of mines and booby-traps
against civilians, Protocol I11 the use of incendiary devices against civilians
• , and Protocol IV the use of blinding laser weapons.

Article 35(3) ofAdditiona1 Protocol I to the 1949 Conventions provides that it is prohibited to employ
methods or means of warfare which are intended, or may be expected, to cause widespread, long-term
and severe damage to the natural environment

violations of the laws and customs of war

 Article 3 of the Statute of the Yugoslav War Crimes Tribunal provides that violations of the laws and
customs of war include: (a) employment of poisonous weapons or other weapons calculated to cause
unnecessary suffering; (b) wanton destruction of cities, towns or villages, or devastation not justified by
military necessity; (c) attack, or bombardment, by whatever means, of undefended towns, villages,
dwellings, or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to
religion, charity and education, the arts and sciences, historic monuments and works of art and science;
and (e) plunder of public or private property

Enforcement of humanitarian law1''

A variety of enforcement methods also exist, although the use of reprisals has been prohibited

concept of the Protecting Power

One of the means of implementation is the concept of the Protecting Power, appointed to look after the
interests of nationals of one party to a conflict under the control of the other, whether as prisoners of
war or occupied civilians.I2' Sweden and Switzerland performed this role during the Second World War.
Such a Power must ensure that compliance with the relevant provisions has been effected and that the
system acts as a form of guarantee for the protected person as well as a channel of communication for
him with the state of which he is a national. The drawback of this system is its dependence upon the
consent of the parties involved

This has occurred on a number of occasions, for example the Chinese refusal to consent to the
appointment of a Protecting Power with regard to its conflict with India in 1962, and the Indian refusal,
of 1971 and subsequently, with regard to Pakistani prisoners of war in its charge

International Fact-Finding Commission

Protocol I also provides for an International Fact-Finding Commission for competence to inquire into
grave breaches12%f the Geneva Conventions and that Protocol or other serious violations, and to
facilitate through its good offices the 'restoration of an attitude of respect' for these instrument^.'^ The
parties to a conflict may themselves, of course, establish an ad hoc inquiry into alleged violations of
humanitarian law

International Committee of the Red Cross (ICRC)

The ICRC is the most active body and has a wide-ranging series of functions to perform, including
working for the application of the Geneva Conventions and acting in natural and man-made disasters. It
has operated in a large number of states, visiting prisoners of war13' and otherwise functioning to
ensure the implementation of humanitarian law.

war crimes

Article 6 of the Charter of the Nuremberg Tribunal, 1945 includes as examples of war crimes for which
there is to be individual responsibility the murder, ill-treatment or deportation to slave labour of the
civilian population of an occupied territory; the ill-treatment of prisoners of war; the killing of hostages
and the wanton destruction of cities, towns and villages.

.
 Settlement of disputes by peaceful means

Dispute

The definition of a dispute has been the subject of some consideration by the International Court,'' but
the reference by the Permanent Court in the Mavrommatis Palestine Concessions (Jurisdiction) case" to
'a disagreement over a point of law or fact, a conflict of legal views or of interests between two persons'
constitutes an authoritative indication.

Diplomatic methods of dispute settlement

Article 2(3) of UN Charter

[all1 members shall settle their international disputes by peaceful means in such a manner that
international peace and security and justice are not endangered.

Article 33(1) of UN charter

The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.

Negotiation

It consists basically of discussions between the interested parties with a view to reconciling divergent
opinions, or at least understanding the different positions maintained. It does not involve any third
party, at least at that stage, and so differs from the other forms of dispute management. In certain
circumstances there may exist a duty to enter into negotiations arising out ofparticular bilateral or
multilateral agreement.

Where there is an obligation to negotiate, this would imply also an obligation to pursue such
negotiations as far as possible with a view to concluding agreements.25 The Court held in the North Sea
Continental Shelfcases that: the parties are under an obligation to enter into negotiations with a view to
arriving at an agreement, and not merely to go through a formal process of negotiation as a sort of prior
condition

Good offices and mediation ''

The employment of the procedures of good offices and mediation involves the use of a third party,
whether an individual or individuals, a state or group of states or an international organisation, to
encourage the contending parties to come to a settlement. Unlike the techniques of arbitration and
adjudication, the process aims at persuading the parties to a dispute to reach satisfactory terms for its
termination by themselves. Provisions for settling the dispute are not prescribed

Difference between the two: Technically, good offices are involved where a third party attempts to
influence the opposing sides to enter into negotiations, whereas mediation implies the active
participation in the negotiating process of the third party itself. In fact, the dividing line between the two
approaches is often difficult to maintain as they tend to merge into one another, depending upon the
circumstances.
One example of the good offices method is the role played by the US President in 1906 in concluding
the Russian-Japanese war," or the function performed by the USSR in assisting in the peaceful
settlement of the India-Pakistan dispute in 1965

The Hague Conventions of 1899 and 1907 laid down many of the rules governing these two processes.
It was also explained that such procedures were not binding

Inquiry

Where differences of opinion on factual matters underlie a dispute between parties, the logical solution
is often to institute a commission of inquiry to be conducted by reputable observers to ascertain
precisely the facts in contention. ^^ Provisions for such inquiries were first elaborated in the 1899 Hague
Conference as a possible alternative to the use of arbitration. However, the technique is limited in that it
can only have relevance in the case of international disputes, involving neither the honour nor the vital
interests of the parties, where the conflict centres around a genuine disagreement as to particular facts
which can be resolved by recourse to an impartial and conscientious investigation.

Example: Inquiry was most successfully used in the Dogger Bank incident of 1904 where Russian naval
ships fired on British fishing boats in the belief that they were hostile Japanese torpedo craft. The Hague
provisions were put into effect47 and the report of the international inquiry commission contributed to
a peaceful settlement of the issue.

Conciliation = Inquiry+Mediation

The process of conciliation involves a third-party investigation of the basis of the dispute and the
submission of a report embodying suggestions for a settlement. As such it involves elements of both
inquiry and mediation, and in fact the process of conciliation emerged from treaties providing for
permanent inquiry commissions. Conciliation reports are only proposals and as such do not constitute
binding decisions. They are thus different from arbitration awards.

Rules of Conciliation: The rules dealing with conciliation were elaborated in the 1928 General Act on the
Pacific Settlement of International Disputes (revised in 1949). The function of the commissions was
defined to include inquiries and mediation techniques. Such commissions were to be composed of five
persons, one appointed by each opposing side and the other three to be appointed by agreement from
amongst the citizens of third states. The proceedings were to be concluded within six months and were
not to be held in public. The conciliation procedure was intended to deal with mixed legal-factual
situations and to operate quickly and informally

Example: The conciliation procedure was used in the Iceland-Norway dispute over the continentalshelf
delimitation between Iceland and Jan Mayen island.

Arbitration

International arbitration was held to be the most effective and equitable manner of dispute settlement,
where diplomacy had failed. The 1899 Hague Convention for the Pacific Settlement of Disputes included
a number of provisions on international arbitration, the object of which was deemed to be under article
15 the settlement of differences between states by judges of their own choice and on the basis of
respect for law:
In addition, a Permanent Court of Arbitration was established. It is not really a court since it is not
composed of a fixed body of judges. It consists of a panel of persons, nominated by the contracting
statesI3 (each one nominating a maximum of four), comprising individuals 'of known competency in
questions of international law, of the highest moral reputation and disposed to accept the duties of an
arbitrator'.The International Law Commission itself formulated a set of Model Rules on Arbitral
Procedure, which was adopted by the General Assembly in 1958 while in 1992, PCA itself adopted
Operational Rules for Arbitrating Disputes between Two States.

Arbitration procedure

Under the PCA system, and in the absence of agreement to the contrary, each party selects two
arbitrators from the panel, only one of whom may be a national of the state. These arbitrators then
choose an umpire, but if they fail to do so, this task will be left to a third party, nominated by
agreement. If this also fails to produce a result, a complicated process then ensues culminating in the
drawing of lots.

States are not obliged to submit a dispute to the procedure of arbitration, in the absence of their
consent." This consent may be expressed in arbitration treaties, in which the contracting states agree to
submit certain kinds of disputes that may arise between them to arbitration

It is characteristic of arbitration that the tribunal is competent to determine its own jurisdiction and
therefore interpret the relevant instruments determining that jurisdiction. ~~ Once an arbitral award
has been made, it is final and binding upon the parties,40 but in certain circumstances the award itself
may be regarded as a nullity. There is disagreement amongst lawyers as to the grounds on which such a
decision may be taken. It is, however, fairly generally accepted that where a tribunal exceeds its powers
under the cornpromis, its award may be treated as a nullity, although this is not a common occurrence.

The main example of the nullity is the North-Eastern Boundary case42 between Canada and the United
States, where the arbitrator, after being asked to decide which of two lines constituted the frontier, in
fact chose a third line

Article 35 of the Model Rules on Arbitral Procedure drawn up by the International Law Commission, for
example, provides for a successful plea of nullity in three cases: excess of power, corruption of a tribunal
member or serious departure from a fundamental rule of procedure, including failure to state the
reasons for the award.45 'Essential error' has also been suggested as a ground of nullity, but the
definition of this is far from unambiguous.4

Examples of Arbitration

The Rann of Kutch case, the Anglo-French Continental Shelf case, the Beagle Channel case and the Taba
casej6 were all the subject of arbitral awards, usually successfully

Other Mechanisms

The International Centre for Settlement of Investment Disputes was established under the auspices of
the World Bank by the Convention on the Settlement of Investment Disputes Between States and the
Nationals of Other States, 1965 and administers ad hoc arbitration^. It constitutes a framework within
which conciliation and arbitration takes place and provides an autonomous system free from municipal
law in which states and non-state investors (from member states) may settle disputes.
The jurisdiction of the Centre extends to 'any legal dispute arising directly out of an investment,
between a contracting state. . . and a national of another contracting state, which the parties to the
dispute consent in writing to submit to the centre'

ICJ (Judicial Settlement)

1. Introduction:
International court of justice is the principal judicial organ of the united nations. the
permanent court of international justices established by the League of nation 1920. after
the establishment of united nation this court was named international court of international
justice. only states may be parties before international court of justice. the rules and charter
do not permit the individual to file petitions in the court. non members of the united nation
may also become parties before the court. it is fact that international court of justice suffer
from a number of defects.
2. Structure and composition of international court of justice:
Number of judges:
International court of judges consist of 15 judges. Article 9 of statue of ICJ.
Period of appointment:
The judges are appointed for the period of 9 years.
Official language of the court:
English and French.
Permanent headquarter of the court:
Hague is the permanent headquarater of the court.
Appointing authority of the judges:
Judges are appointed by the general assembly as well as security council.
Qurum of the Court:
Qurum for full bench of the court is nine judges.
Restriction:
No two judges can be national of the same state.
Re- election of judges:
Judges of the court can be re- elected.
Qualification for judges:
(i) Highly moral character.
(ii) Capable for appointment to the highest judicial official officers or.
(iii) Jurists consuls of recognized competence in the international law.
Retirement:
One third of total judges are retired after every three years.
3. States which are eligible to apply the court:
(i) Member states of the united nations. Article 93(1), article 94(2)
(ii) Non- members of united nations.
4. Procedure for filing case in the court:
The states which are parties to the statue and other states who accepts the jurisdiction of
the court submit a declaration to the registrar of the court that they will comply the decision
of the court.
5. Jurisdiction of the court of international justice:
Following are types of the jurisdiction of international court of justice.
I. Voluntary jurisdiction:
Voluntary jurisdiction is such jurisdiction in which parties refer to the court by agreement.
for decision of an international dispute. the dispute may be referred by one party or both
the parties.
II. Obligatory jurisdiction:
Article 32(2) confers that the states who are parties to the present statute, may at any time
declare that they recognize as compulsory IPSO facto and without special agreement, in
relation to any other state accepting the same obligation.
Modes of declaration:
(i) Conditional.
(ii) Unconditional.
Matters regarding which dispute can be referred:
The parties to the statute may confer compulsory jurisdiction on the following matters:
(i) The international of a treaty.
(ii) Any question of international law.
(iii) The existence of any fact which if established would constitute a breach of an
international obligation.
(iv) The nature or extent of the reparation to be made for the breach of ab international
obligation.
III.Advisory jurisdiction:
International court of justice may give an advisory opinion on any legal question any body
which has been authorized in accordance with the charter of the united nations or in
accordance with the statute. international court of justice also act as an adviser on point
referred to it by the general assembly or security council. the other organs of unity national
and specialized agencies may also request to the court to give an advisory opinion on any
legal question. the power to give advisory opinion conferred upon to the court is
discretionary.
Eastern carelia case PCLJ series B:
The permanent court of the international justice declined to give an opinion on the ground
that answering the question would be substanitally equivalent to deciding the dispute
between the parties.
(i) Nature of advisory jurisdiction:
The advisory opinion given by the international court of justice is not binding upon the
parties.
6. Law applied by the court:
According to article 38(1) of statute lays down that the international court of justice whose
function is to decide in accordance with international law such disputes as are submitted to
it shall apply.
(i) International conventions, whether general or particular, establishing rules expressly
recognized by the civilized nations.
(ii) International custom as evidence of a general practice accepted as law.
(iii) General principles of law recognized by the civilized nations.
(iv) Subject to the provisions of article 59 of the statue, judicial decisions and the teaching
of the most highly qualified publicists of the various nations, as subsidery means for
determination of rules of law.
7. Main object of the establishment of international court of justice:
The main object of the establishment of international court of justice is to settler
international disputes which might lead to breach of peace.
8. Inherent powers of ICJ:
The international court of justice has inherent powers. the jurisdiction of ICJ is based upon
the consent of the parties. all members of U. N are IPSO facto parties to the stateute of the
court.
9. Role of international court of justice in the development of international law:
In the rapid development of international law of this era, the vital role of the international
court of justice can not be denied. it has made pronouncements on territorial disputes and
also on such diverse matters as on Asylum, nationality, trustship, law of sea, the status of
foreign investment and sovereignty.
10. Conclusion:
To conclude it can be said that international court of justice has important role in the
maintenance of international peace and also in the development of international law. this
court is an important organ of the united nations, unfortunately the statute of the court
makes no position for enforcement of its judicial decision.