Peaceful Settlement of International Dispute

An international dispute is a disagreement on the point of law or fact, a

conflict of legal views or interests between States. As per article 2 (3) of the
UN Charter, parties must peacefully settle their international disputes. Security
Council Shall determine the existence of a threat to the peace, Breach of the
peace or act of aggression. It will take measures to maintain and restore
international peace and security. Negotiation, Good Offices, Enquiry,
Mediation, Conciliation, Arbitration, Judicial Settlement, Regional
Agencies/Authorities or other peaceful means are the pacific means by
Chapter 6 of the UN Charter.
Settlement of Internal Dispute
There are 2 Methods of international dispute.
•Pacific Means- Chapter VI of the United Nations Charter:
Negotiation, Good Offices, Enquiry, Mediation, Conciliation, Arbitration, Judicial
Settlement, Regional Agencies/Authorities or other peaceful means.
•Compulsive Means – Chapter VIl of the United Nations Charter:
Complaints, Reprisal, Hostile Embargo, Blockade, Intervention, War.
Causes of Internal Dispute
1.Ideological differences
2.National integrity
3.Territorial claim
4.National prestige
5.Unlimited colonialism
6.Liberation movements
Peaceful Settlement of an Internal Dispute
As per article 2 (3) of the UN Charter, parties must peacefully settle their international
disputes. The Security Council Shall determine the existence of a threat to the peace,
Breach of the peace or act of aggression. It will take measures to maintain and restore
international peace and security.

Methods of Peaceful Settlement of an International Dispute

• Arbitration
• Conciliation
• Mediation
• Negotiation
• Good offices
• Judicial settlements
 A brief on non-pacific modes of settlement
These are also known as compulsive means for settling an international dispute. These are non-
peaceful methods.This includes the use of pressure or force on the opposing state to win a
dispute. The modes of non-peaceful settlement of dispute are

Complaints
If there is a violation of any international law by a country that is negatively affecting another
country, the country being affected can directly complain to the authorized person (of the
country violating any international law).
Thereafter the authorized person can stop the acts causing a violation if he finds the complaint
reasonable. In this method, there was the use of pressure by one state over the other.
Retorsion
If there is a violation of any treaty or any law and it causes minimal effect upon another state.
In this case, the victim state can take corresponding actions against the culprit state. The
actions to be taken can include the dissolution of treaties and agreements, breaking diplomatic
relations, closing down the embassy of that particular state, etc.
Reprisal
These are acts that are illegal in normal circumstances. But these acts become legal and are
not punishable if acted against a particular state because of the prior action of that particular
state. These are the reaction and responses to the illegal actions taken by the other state.
These illegal acts become legal because they are considered to be taken in self-defense.
Hostile embargo
It is also a kind of reprisal. An embargo means restrictions on trade with a particular
state. Thereby hostile Embargo means a total ban on trade even by the use of illegal
means. It may include confiscating the ships and fleets of a particular state. This would
finally slow down the economy of that state. And the state would kneel to the dispute.

Blockade
In case of a dispute, if a state confines or restricts and covers the boundary of another
state, then the state is applying blockade to finish the dispute. Nobody is allowed to
enter or exit the country until the dispute is resolved.

Intervention
In this case, a third party enters into the dispute voluntarily and in an uninvited way.
The third party enters into the dispute to resolve the dispute with the help of his army.
Undoubtedly the third party enters into the dispute to gain his benefit.

War
The final and cruelest way to end any dispute at the international level is to conduct a
war. If the above-stated un-peaceful means are not able to resolve a dispute, countries
are more likely to enter into a war. War should be avoided to the greatest extent
possible due to the casualties and damage it produces.
War under International Law

With so many countries in the world and the positive steps of everyone towards
globalization, the countries interact with each other on so many platforms. In this
interaction and competition, it is not possible that there can be no dispute among
the nations. For the settlement of these disputes, various ways are adopted by the
nations and these ways can be divided into peaceful and coercive means. Peaceful
means consist of negotiations, mediation, conciliation, inquiry, arbitration, judicial
settlement, etc and coercive means are retortion, reprisals, embargo, pacific
blockade, intervention. When the countries are not able to solve their disputes even
with coercive means then they may resort to war.
Definitions of War
Various jurists have given different definitions of war.
In Oppenheim’s words, “war is a contention between two or more states, through
their armed forces, for the purpose of overpowering each other and imposing such
conditions of peace as the victor pleases”.
Starke says that “war in its most generally understood sense was a contest between
two or more states primarily through their armed forces, the ultimate purpose of
each contestant or each contestant group being to vanquish the other or others and
impose its own conditions of peace”.
Animus Belligerendi
Animus Belligerendi means the intention of the parties. Whether war is going on between two states or not,
depends upon the intention of those states. When the States contest with each other then it can be said that they
are at war when they have this intention. So the animus belligerendi of the states can be obtained from the
following circumstances:

Firstly, when the states declare themselves that they are at war. It is an instance that shows the express intention
on the part of states.

Secondly, when the war is not expressly declared then if,

the states contesting with each other treat it like war or

the States adopt some ways of force or other actions amounting to war or
the third states believe that war is going on between the two states irrespective of the fact that the states in
question treat it as war or not,

then it would be treated as a war.

Declaration of War
Grotius was of the view that declaration of war is very important before its
commencement but in wars that occurred in the 18th and 19th century it was not
followed strictly.

Article I of The Second Hague Convention, 1907 says, “The contracting powers
recognize that hostilities between them must not commence without a previous and
unequivocal warning, which shall take the form either of a declaration of war, giving
reasons, or of an ultimatum with a conditional declaration of war”.

This provision was taken into account in World War I and the states commenced war
only after giving warnings. Wars between France and Germany, Austria, and Hungry are
examples of declared wars. But this practice was not followed in World War II.

For example, Germany invaded Poland and Finland in 1939, Denmark and Norway in
1940, and the Soviet Union in 1941without any prior warning. The other States too
commences hostilities without any warning.
 Legal Regulations on War
rotius introduced the concept of “just war” and imposed certain limitations on the unfettered power of the States to
age war. According to him war could be resorted provided the rights of others are not infringed, and consequently,
e use of force, which does not violate the rights of others is not unjust. Even some of the writers of the nineteenth
entury made a distinction between “just and unjust wars” and between “right and wrong wars”[2]. Woosley has
serted that war may be waged to procure good or prevent evil by force, and just war is an attempt to obtain justice
prevent injustice by force, or in other words to bring back an injuring party to a right state of mind and conduct by
e infliction of deserved evil.
War and the League of Nations: There are certain rules made by the League of Nations in order to regulate war.
rstly, According to Article 12(1) of the Covenant of the League of Nations, if any dispute arises between the member
ates of the League then the report is to be submitted to arbitration or judicial settlement. Article 12(2) says that no
ate will resort to war until three months after the award by arbitrators or judicial decisions. In case of violation of
e above provisions by any state of League that state would be deemed to have committed the act of war against the
eague of Nations.
War and the Pact of Paris: Pact of Paris, also called Renunciation of War or the Kellogg-Briand Pact, also made
ertain provisions with regard to war. This treaty was signed on August 27, 1928, in Paris. Article I of the Treaty reads,
he High Contracting Parties solemnly declare, in the names of their respective peoples, that they condemn recourse
war for the solution of international controversies and renounce it as an instrument of national policy in their
lations with one another”. In the same way, Article II contains provisions for regulating war by stating that all the
sputes among the states shall never be sought except by pacific means. But this Treaty does not prohibit war in all
stances.
International Armed Conflict and War
International Armed Conflict is a different concept than war. War is a traditional concept and nowadays, states are
involved in International Armed Conflict as they are restricted to resort to war because of the Kellogg- Briand Pact.
In International Armed Conflict, there is only “armed hostility” and it does not affect the whole state. These
hostilities may be on land, air, or in water.

The hostilities in Korea(1950-530, Indo-China( 1962), India-Pakistan(1965), and in the conflicts in and around the
Suez Canal Zone (1956) are the non-war armed conflicts.
Effects of Outbreak of War
consular Relations: Consular relations become restrained in case of Outbreak of war. According to Article 31 of the
Vienna Convention on Consular Relations of 1963, the consular property is immune from requisition.
Diplomatic Relations: Like Consular Relations, diplomatic relations also get ruptured. The Diplomatic agents go to
their States when the war is declared. Article 44 of the Vienna Convention on Diplomatic Relations of 1961 makes
provisions so that the agents can safely leave the State.
Treaties: There are no settled provisions in the matter of Treaties when war occurs. Some jurists say that it breaks
all the treaties between the contesting states but the majority of the jurists are of the opinion that war does not
annul any treaty between the states opposing each other. It also depends upon the type of treaties. The bilateral
treaties generally are annulled on the outbreak of war but treaties of recognition, boundary agreements,
commercial and administrative treaties are not annulled completely.
ffects of Outbreak of War

Enemy Property: In the 18th century, the states used to confiscate all the enemy
property, on the contrary in the 19th century this practise changed and the outbreak
of war impacted the public and private property differently. Public property is
confiscated whether it be warships or public vessels except anything engaged in
religious or hospital duties. There is no rule that private property cannot be
confiscated but it is considered as a breach of international law.
Contracts: There are two types of contracts namely, Executory contracts and executed
contracts. Executory contracts are the ones which were made before the outbreak of
war but were not performed. These contracts get annulled completely at times of war.
Executed contracts are the ones in which one part has performed the obligation but
the other is to perform. For example, a property was bought by State A from State B
and State A received the property but payment is still due. Now, because of the
outbreak of war this contract will get suspended for sometime but after the war, it
would be treated as a debt.
Belligerent Subjects on Enemy Territory: The state which is engaged in war has a
right to control the belligerents subjects so that they may not provide any assistance
or confidential information to their state and they can be detained as Prisoners of War.
However, it is a rule under International Law that non-combatants who cannot be
suspected of providing any secret information to their state should be allowed to
withdraw from the enemy state.
 Human rights and war
The Universal Declaration of Human Rights was adopted by the United Nations General
Assembly in 1948 and it specifies human rights. It is important that these human rights
are not abrogated in any circumstance, not even in the special circumstances of
warfare.The provisions under UDHR such as freedom of slavery (Article 4), freedom
from torture and degrading treatment (Article 5), ensures the rights of war victims.
The armed forces in case of war have to apply the humanitarian law while dealing
with the people of their enemy state. Similarly, the states have a duty to follow the
humanitarian law and in case of any violation, the compensation is to be paid to the
injured state by the state who has violated the IHL. It strictly prohibits reprisals
against the protected persons of an enemy state. Also, IHL makes the states
responsible for all the actions performed by its armed forces.
 ASYLUM
Asylum is a Latin word and it derives its origin from the Greek word “Asylia” meaning inviolable place.
The term asylum in common parlance means giving protection and immunity by a state to an individual
from their native country. There is no specific definition of Asylum but it can be understood as legal
protection granted to people who have fled their home countries due to warship, conflict, persecution, or
fear of persecution. It is a possibility to remain in a country either permanently or for a temporary period.
A person who seeks International asylum i.e. an asylum seeker is known as an ‘Asylee’.

In day-to-day conversation, the term asylum is used interchangeably with the term refugee, there is a
difference between the two procedurally where a person who is still overseas seeks protection from a
nation when given patronage after reaching there is given the title of a refugee whereas in the asylum the
person seeks the protection from a nation after reaching there and hence is known as an asylee or asylum
seeker.
The main purpose of asylum is to give shelter to those who have well-rounded fear in their home countries
of persecution. The Universal Declaration of Human Rights under Article 14 (1), provides that “Everyone
has the right to seek and to enjoy in other countries asylum from persecution”
History

U.S. asylum rights stem from international treaties signed after World War II to
protect those who fear or flee persecution. The first agreement, the 1951
Convention Relating to the Status of Refugees, was negotiated by the United
Nations in response to the mass immigration following World War II. The United
Nations has attempted to establish an internationally negotiated definition of
who is admitted as a refugee. Nevertheless, the 1951 Convention only applied
to those who had become refugees as a result of events prior to 1 January
1951. The United Nations adopted the refugee concept as set out in the 1951
Convention, but expanded it to include potential refugees in 1967. Protocol on
the Status of Refugees. In 1968, the United States acceded to her 1967
Protocol.
 Kinds of Asylum
1)Territorial Asylum:

It is allowed on the territory of the country granting asylum. Every sovereign state has the right
to control and maintain jurisdiction over its territory, so the decision to extradite or grant asylum
to someone is left entirely to its discretion. The state therefore has territorial sovereignty over
all its subjects and foreigners. This form of asylum is primarily granted to those accused of
political crimes such as inciting hatred, treason, and espionage in their own country. Territorial
asylum is based primarily on the domestic laws of the sovereign.
2) Extra-territorial Asylum:

This form of asylum is usually granted by a country outside its territory, usually in a place that is
not part of its physical territory. In such cases, states granting asylum to foreign countries with
embassies are called diplomatic asylum. Asylum is also granted to asylum seekers on board
warships. They are exempt from foreign jurisdictions operating in that area. Such warships are
under the auspices of flag states. This does not apply to merchant ships. Because merchant ships
are not exempt from the provisions of international law. Extraterritorial asylum is therefore
based on the framework of international legal agreements.
. Diplomatic Asylum / Asylum in Legation:

Because the granting of extraterritorial or diplomatic asylum involves the

deprivation of national sovereignty, international law generally does not recognize
the right to seek asylum in legation facilities. However, asylum may be granted at
the legation in the following exceptional cases:

1) Individuals who are physically in danger from violence.

2) Where there is well-established and binding local custom.

3) When there is a special treaty between the territorial State and the state of
Legation concern.
Asylum in consular premises –

2. Asylum on the premises of an international institution –

Though International Law does not recognize any rule regarding the
grant of asylum in the premises of an International institution, however, temporary
Asylum may be granted in case of danger of imminent violation.
3. Asylum in Warship –
There are conflicting views on to grant of asylum in warships, but it is argued that Asylum may be
granted to political offenders.

As far as an exile warship is concerned, it may be granted on humanitarian grounds if it is of

extreme danger to those seeking it. The right of asylum to warships in the case of legations is
therefore recognized in the same way and subject to the same conditions.

4. Asylum in Merchant Vessels –

Merchant ships are not exempt from local jurisdiction and therefore do not have the power to grant
asylum to local criminals. Therefore, if a person who has committed a crime on land seeks asylum
aboard a foreign merchant vessel, he or she may be sued by the local police before the vessel
leaves a port or when entering another port in the same state. I have. Therefore, the rule applies
that no asylum is granted to merchant ships. However, states can grant asylum if they enter into
corresponding agreements.
5. Asylum on the premises of international Institutions:

Whether someone taking shelter withinside the premises of an global organization or enterprise
could be granted asylum is a query that can not accept with actuality withinside the absence of any
rule on this regard and additionally due to loss of practice. However, a proper to furnish transient
shelter in an excessive case of risk from a mob can not be dominated out.

T
 What is extradition
The term ‘extradition’ originates from two Latin words- ‘ex‘ meaning ‘out’ and ‘tradium‘ meaning ‘give
up’. It is based on the Latin legal maxim “aut dedere aut judicare” meaning “either extradite or
prosecute”.

As Oppenheim defined, “extradition is the delivery of an accused or a convicted individual to the State
on whose territory he is alleged to have committed or to have been convicted of, a crime by the state on
whose territory he happens for the time to be”.
The philosophy behind extradition
The concept of extradition is based on the contention that an accused or convict can be tried or
punished with utmost efficacy at the place where the cause of action arose or the crime took place. This
is because it is much more advantageous to prosecute the offender in the country where he committed
the offence; for instance, procuring the relevant evidence is more convenient in the country where the
offence was committed than in any other country. Also, such a country has a significant amount of
interest in punishing the offender.

Moreover, the concept of state sovereignty kicks in while dealing with extradition. State sovereignty
refers to the ultimate authority of the concerned state over its own citizens and territorial jurisdiction.
So, technically speaking, no state is required or bound to hand over to another state any person (either
its own citizen or a non-citizen) currently present within its territorial jurisdiction.
 Purpose of extradition
To prevent escape from punishment
Extradition as a deterrence
To maintain peace in the territorial state
To reciprocate diplomatic kindness
To enhance international cooperation
Prerequisites for extradition
The following conditions must be satisfied to grant extradition:
Extraditable persons
The accused persons or convicts must not fall under the ambit of the following three categories to be
extraditable.
Territorial state’s own nationals
Most countries refuse to extradite their own nationals allegedly committing a crime in the requesting State;
such countries claim their right to exercise State sovereignty over their nationals, even though the offence
was committed in another country.
Political offenders
One of the most controversial aspects of extradition is that many countries refuse to extradite political
offenders.
Persons already punished
Most countries follow the principle of double jeopardy and refuse to extradite the persons tried and
punished for the same offence for which the extradition is requested.
Savarkar’s case

In 1910, Vinayak Damodar Savarkar was being brought to India from Britain via a vessel named Morea,
for his trial on a charge of treason and murder (Emperor v. Vinayak Damodar Savarkar (1910)). He
escaped to France while the vessel was harboured at Marseilles. However, a French policeman, in a
mistaken execution of his duty, caught and surrendered Savarkar to the British authorities without
following the extradition proceedings. Later, France demanded Britain hand over Savarkar to formally
carry out his extradition procedure. Britain refused France’s demand, and the case was laid before the
Permanent Court of Arbitration in Hague. The Court agreed with the happening of irregularity on the
part of the French policeman. However, France’s demand for a fresh extradition procedure was
rejected owing to the absence of international law regarding such circumstances.
Vijay Mallaya’s case

The case of Mr. Vijay Mallaya, the business tycoon and owner of Kingfisher Airlines and United
Breweries Holdings Ltd., is arguably the most well-known extradition case in India (Dr Vijay Mallya v.
State Bank Of India (2018)). He owed a whopping debt of over ₹6,000 crores to 17 Indian banks
including the State Bank of India and the Indian Overseas Bank. Fearing an impending arrest, Mallaya
fled from India to the United Kingdom in 2016. His extradition was sought by India in 2017. Mallya’s
extradition case was laid before the Westminster Magistrate’s Court in London. In 2018, the Court
ordered his extradition to India. His appeal at the High Court in London was rejected; however, he has
not been brought back to India yet due to ongoing legal procedures. It’s also worth noting that in 2019,
he was declared a ‘Fugitive Economic Offender’ under the Fugitive Economic Offenders Act, 2018.
Nirav Modi’s case

Mr Nirav Modi was a luxury diamond jewellery merchant. In 2018, the Punjab
National Bank (PNB) filed a complaint before the Central Bureau of Investigation
(CBI), alleging Nirav, along with his wife Mrs Ami Modi, of fraudulently obtaining
fake Letters of Understanding (LoU) worth ₹11,400 crores. The money was then
channelised to his fifteen overseas sham companies. Following a CBI probe, the
Enforcement Directorate (ED) confiscated Nirav’s assets in India. He fled India
and sought asylum in the United Kingdom. Interpol issued a Red Corner Notice
against him in 2018. Following an extradition request from India, a Westminster
Court issued an arrest warrant against Nirav. The Court ordered his extradition to
India in 2021.