Peaceful Settlement of International Disputes
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Peaceful Settlement of International Disputes
There is nothing more tormenting like the existence of some misunderstanding between people, governments, or even societies. The existence of these disparities may hasten prejudice, which might eventually affect negatively on the economy of the two parties. Any given idea aimed in solving a dispute in a peaceful manner is something, which has been welcomed by nations over the past years. These measures of dispute resolution have been brought about by the existence of the World Wars I and II, and the wars taught the world a lesson that there should never be war in the world again. The results of any given war or prejudice among different societies can be detrimental if not addressed. There have been a number of classical forms that have been applied in the peaceful settlement of disputes.
The major strategies in dispute resolution include negotiation, having good official-talks, mediation talks, inquiry from experts, guidance and conciliation, arbitration and the use of judicial settlement systems when there is an interstates dispute. These subjects have been treated as crucial for dispute resolution and their development is something that is historical and has been undergoing numerous evolutions, bringing numerous applications, which have proved useful in the practical implementation and resolution of international disputes. Particular, much attention has to be paid to all forms of dispute resolution methods starting from the International Court of Justice, ICJ, the United Nations and its role, peacekeeping missions and operations, the role of the well known regional organizations like the OAS, OAU, NATO, Council of Europe, among others. There have also been new forms that have emerged in Settlement of International Disputes as provided in Article 33 of the United Nations Charter.
Role Played by Different Means of Dispute Resolution
The United Nations Charter, Article 33 gives guidelines useful in addressing any given interstate conflicts or disputes. From the Charter, the entire people comprising the United Nations have been determined in saving the succeeding people and generations from any form of war or disparity, as the first and second world wars brought the greatest torment to man. The aim for this Charter by the United Nations was a fundamental affirmation of basic human rights, in the restoration of worth and dignity of the human. A person bring equal rights between men and women, bring about understanding between nations, whether large or small, and also come up with proper establishments in which respect and justice would be part of the obligations in the development of treaties and through the application of international laws. This would be useful in bringing the necessary sanity between nations and societies. This will be useful in maintaining, and promoting social progression and thereby bringing better living standards and freedom to life human life at large.
Chapter VI of the Charter specifies the Peaceful Settlement of Disputes among nations and different parties. In Article 33, ant two parties in any form of dispute, and the continuance of that dispute will most likely endanger and threaten the maintenance of the existing international security and peace. Therefore, it would be necessary for these two parties to first seek for an immediate solution to the problem through inquiry, negotiation, mediation, arbitration, conciliation, judicial settlement, then they can also resort to some regional arrangements or agencies, or eventually look for other peaceful means that are of own choice while at the very time are applicable and effective. The Security Council of the United Nations will have to call upon all the parties at disparity to come together and settle their disputes through the application of the above stated means. Therefore, coming into good terms and signing a treaty so that the disparity may never have to occur any other time in the future.
The above procedures are what the United Nations Charter advocates for in interstate dispute resolution. The aim is to come up with a long lasting solution to the existing dispute so that it may never occur again in the future. These disputes are quite harmful to peaceful co-existence between societies, states and even nations. If these disputes are not addressed in an ethical manner, they will continue to harm the existing relationships day after day, and thereafter bringing adverse effects that may eventually result in poor economic establishment within the two states or societies.
There are also some legal guidelines and procedures that have been applied in the resolution of interstate dispute. There have been the setting of International courts and Tribunals and have been flourishing over the past few years. There have been proliferations of new bodies that have been strengthening the already existing ones to bring proper legal explanations during the time of disputes. These tribunals and courts have been presenting a dimensional legalization procedure. Instead of having, disputes resolved through bargains, the states have the mandate to delegate the task by integrating a third-party player in order to apply the legal principles. These principles have stated two legal procedures in dispute resolution. There can either be transnational and interstate dispute resolution. The major differences between the two applications in these dispute resolution processes are on the legal formalities. The two have different implication on the politics behind the process of dispute resolution.
Looking at the interstate conflict resolution, it is very consistent in that it will be in accordance with public law which gives the rules and practices that govern any interstate relationships. The legal procedures with interstate resolution take place between the two states, and are referred as the ‘unitary actors’. Any state is deemed to be a subject of the international law, and thus they must have controlled access to legal proceedings during any conflict resolution ideology. These states are therefore required to come up with proper implementation of the international courts or tribunals. Therefore, intestate conflict resolution sees the two states acting as gatekeepers to the legal international processes, thus practicing these requirements at the domestic level. There have been disputes that have been existence between different states in the world over the last few years. As we have said earlier, most of these disputes and conflict will result from the existence of ideological differences occurring from some areas of interests.
Since very many countries have been engaged in conflicts, wars and disputes over the last few years, some of them have been successfully resolved while others are still being addressed. In order to understand some of the conflict resolution strategies, it would be better that we discuss about the Pakistan-India conflict that has been going on between the two states over Kashmir. There have been similar disputes that have been going in different parts of the world. For example, Argentina has been in dispute with Britain over a small island known as Falklands, which each of the two states claim to own. Therefore, we will be able to note some of these peaceful dispute resolutions structures as given in the United Nations Charter, Article 33.
Conflict between India and Pakistan over Kashmir
The founding of Pakistan and India was in 1947, making the two different states. There has been dispute over which state should have mandatory control of Kashmir. This has been among the world's long lasting and most violent conflicts ever. In the year 1999, these two states decided to come close at war over the border incursion led by the Muslim partisans farther into Kargil region. This region borders Kashmir, close to Indian border. According India, the people and armies involved in the battle were trained by Pakistan, and as well by Pakistan Government. In 1998, both the two states successfully came up with test-exploding nuclear devices which led to fears of the new nuclear arms. India has since then being claiming that it greatly needs to test its nuclear weapons to be on the safe side in case there is a possible confrontation with some nations like China and Iran. India is known to have fought a war over a border in the mid 1960s. In this conflict, there have been signs of religious involvement thus elevating the conflict to a higher level. As the conflict continues to persist, the war led by US against the Afghanistan which neighbours the states has been a cause for alarm and concerns that the tensions between India and Pakistan over Kashmir may farther be dangerous than ever before.
There have been unsuccessful attempts of applying the peaceful conflict resolution measures in the Kashmir dispute between India and Pakistan. In 2003, the Pakistan ambassador, while addressing a UN Security Council, called on the United Nations to come up with measures, which would be useful in solving the Kashmir issue, and this resolution would be based on the resolutions made by the United Nations in solving the problems faced by the states it represents. The same year, the Ambassador of Pakistan also praised the UN and its role in had played in facilitating a peace process in the Pacific island of Bougainville, hence bringing about independence of the island from Papua New Guinea. That being the case, the ambassador called for similar involvement of the United Nations to bring about a long-lasting solution to the Kashmir issue.
In 2005, a United Nations conference brought about 250 diplomats together, political experts, peace activists, and legal experts from both India and Pakistan with the aim of searching for a long-lasting resolution to fifty-eight-year old conflict that has been going between the two nations over Kashmir. Pakistan's UN Ambassador, Munir Akram, observed that there had been some popular sentiments favouring peace establishment and existence of normal relations between the two states. The Pakistani Foreign Minister, Khurshid Mahmud, also gave a statement that it was necessary to come have with peaceful measures that would see the people having progressive contacts that would facilitate peace in the region. Since then, there have been some political factors like the use of Security Council in both nations to India push the for peace process in Kashmir. The participants thus stressed it was the right time they came up with pressures from both governments to bring peace over the region.
The following year, farther meetings were held between the two countries to come up with an address for the issues that had been on the rise. During the meeting, some of the officials argued that the governments of the two states had been demonizing each other over the historical background of the conflict, thus increasing the tension. The countries had been giving the worst images of the other nation on Kashmir war, thereby increasing the barriers to peace and freedom behind Kashmir. Marking each other country to be a terrorist and the distortion of the historical information behind the conflict in books has been some of the things being seen to increase tensions. This has undermined the peace process and negatively affecting the Pakistani-Indian citizens living in Kashmir.
According to experts, the main cause for an increase in the conflict rate between these two nations has been the distrust in power, and not due to pride. This power distrust has been the main reason why there has been greater rejection of arbitration and mediation over Kashmir between India-Pakistan. The major country that has been offering great mistrust is India. There have been a number of dimensions that have been applied on this Kashmir conflict from different elite interests, cultural conflicts, and of late taking a religious dimension between the communities in Kashmir. However, what has been learned is that there were constant deceptions that were employed by the Colonial British Government in their incorporating of a territory to another, thus creating tension between the people of the land. The specter of the East India Company has been on the increase to unite the country and so as to bring a peace deal in the region. India has been suspecting that mediation led by United States and its close-allies may be conducted in way that they will primarily be aimed in serving the interests of the Americans and not the primary interests of the Asians. It is within this context that the indigenous efforts that have been put in place in the two states have been appearing to be a little bit better and successful than the international diplomacy resolutions, which have been noted to be a way of management and not just conflict resolution.
One of the major mediation processes applied is the Gurdwara Diplomacy, which had been aimed in bringing about a peace deal between the two states. It would thus be appropriate if the countries look at this Diplomacy as one of the major conflict resolution strategies as stated in United Nations Charter to come up with a peaceful Kashmir. Generally, it is well known that any form of conflict resolution strategy will always come to a success in the mediating precipitant, or the third party chairing the mediation and conciliation is non-biased and not in the interests of political power and autonomy.
The Kashmir issue is something that has been elevated by neglect, suppression and discrimination. The reason behind the continuity of this dispute is not failure by the past applied initiatives of dispute de-escalation or conflict management. The best way would be to come up with an alternative structure of peace and conflict management, which would be used to fill the gaps that have not been addressed over the past few years. The conception of any plausible solution to the dispute should be within the structures of having the state structures, have order, justice and fairness. From the historical applications of these resolution mechanisms, there has been the need to hasten the processes because the last 57 years have been seeing the people of Kashmir suffering from issues injustices, violence, insecurity, identity crisis and terrorism. New Delhi and the Islamabad, have been the major players in this conflict, and have been trying to come up with conditions for providing peace and relied to the people of Kashmir.
During 2006 and the beginning of 2007, there were two initiatives that were taken by the Pakistan President, Pervez Musharraf, and the APHC Chairman, Mirwaiz Umer Farooq. These initiatives were departed from the cultural and traditional stance to bring a lasting solution to Kashmir. In 2004, Musharraf came up with a non-traditional approach in dealing with the Kashmir affair by looking for an interim solution to solve the conflict. The country thus proposed a demilitarisation and offering of self-governance to be the best practical solution to the Kashmir issue. There were four major points behind this new approach as part of bringing a long lasting solution to Kashmir. The first process would involve systematic demilitarisation of the Kashmir and the closely associated Jammu. Then there would be the imposition of self-governance in Kashmir. After that, the countries would come up with soft-borders address to ensure that the conflict does not continue. After that, both countries would be supposed to have a joint management of Kasmhir, which would offer a long-lasting solution to the problem.
The two nations had thus proposed a joint management of Kashmir by India and Pakistan to bring a peace deal in the region. This arrangement would see both India and Pakistan having an extremely reduced sovereignty over Kashmir territory and Jamma. Later, India argued that there was already an existing full self-governance and sovereignity in the Kashmir, claiming that not almost all the people in the region ever accepted any Pakistan government operation. This means that India has been believed to be the major barrier behind freedom and peace to the territory. This is the main reason why Pakistan has been sticking on its position and is not willing to let it go until there is a mutual agreement between the states.
Following Pakistani stand, Mirwaiz’s call have no more armed struggle in Kashmir was immediately rebuked by Ali Syed Gilani, who was the head of APHC faction termed the position to a betrayal of liberty in Kashmir, thus causing a hasty act. India’s response to this Musharraf’s proposal about Kashmir is something that has not been supported by the other side. New Delhi has rejected any Pakistani proposal, which has been calling for the re-drawing of the borders or come up with measures of withdrawing forces from Kashmir. The argument has been that Musharraf has been aiming for a joint ownership, which India is not willing to accept today, or even in the future days.
In any given conflict management process, the willingness and patriotism of any two involved parties will be what unleashes the negotiations process, thus making the process vital at that initiation stage. As long as stubbornness and setting of conditions continue to be attached to the process, it would be hard to have an effective start of negotiations with a given interstate conflict. These barriers will definitely result in poor results with any conflict management and resolution.
There are a number of pitfalls and obstacles, which can be clearly identified in the Kashmir conflict resolution. One of these includes the existence unworkable state policies, which have been a barrier to the success of the talks. There have also been the marginalised roles of the civil societies, presence of hardliners and extremist groups, zero-product-sum approach, the role played by external elements, failure by the international communities to end the Kashmiri war and struggle for self-determination and freedom. There have also some missed priorities and opportunities for freedom and peace in Kashmir.
Looking at the architecture towards peace restoration and conflict resolution in Kashmir, which has still been in existence till this day, we will not that has been ignored the two realities that has to be fundamental if peace and freedom was to be realised. The has been no participation of the Kashmir people in the peace process, and also, there has been the adoption of a very flexible position concerning the real issues at hand which has stalemated and impeded a possible solution for the dispute. The problem here is that the moves have been only aimed in the maintaining of status-quo which may eventually escalate the problems being faced. This means that the moves have only been considering the major basics like political requirements, lack or proper commitment, and failure to address the major problems only.
The maximum application of peaceful conflict resolution methods will be important if a long lasting solution was to be realised in Kashmir. There are processes that can be relevant in giving an alternate architecture in bringing about peace and freedom to resolve the conflict at Kashmir. The first one would integrate the application of a dialogue process to address the key issues being faced at hand. There should also be an embracement of a constructive cooperation process in bringing peace. There should be an approach which is human-freedom based to ensure that people come at terms and together come up with a long lasting peace deal between the two states.
There should also be the process of ensuring that all the rights of the minorities are protected in the Indian-Pakistan controlled Kashmir region. There should also be the process of having regional autonomy in the both states. There should be a conciliation process, which would bring about healing of the wounds faced by the people of Kashmir and coming up with proper compensation measures. The processes of socio-economic, economic, and social factors will be effective too in uplifting the people through giving them better health facilities, proper education, jobs and employment opportunities, and any other basic needs they would require.
The processes leading to mutual tolerance should as well be encouraged in the region. There should be measures put in place to bring about neutralization of the hardliners and extremist groups. Once that has been achieved, there should be a move to bring about a peace constituency between these two states. Awareness should also be prioritized on Conflict Management practices so that future conflicts can be managed and avoided. The challenges and problems that hinder any peace deal should be addressed with some sense of immediacy to create an effective architecture for all the Conflict Resolution processes. Any profitable process in Kashmir to bring peace should take into account all the processes already mentioned above. The foremost need and requirement would the initialization of dialogue and involve India, Pakistan and the Kashmir people. Once this process has been launched with some sense of commitment, definitely it must result in a constructive cooperation between the two countries and the Kashmir people.
The vision into having a constructive conflict settlement should include the grievances raised by the residents of Kashmir. This way it will be necessary to take into account the rights of the minorities and be able to address them accordingly. Unless these minorities, whether Muslim, Hindu, or Sikh should feel secure within the region so that it can be easy for them to have better lives. Pakistan has been making it clear that it would pursue an applicable and flexible approach towards Kashmir so long as India will reciprocate. From this scenario, the biggest India’s incentive is to come up with a peace deal that ensures that the hostility has been brought to an end. The process should therefore include decentralization of all the states affairs in Kashmir. At the state level, New Delhi is supposed to move closer in restoring the autonomy of Kashmir, which has been compromised, by these two countries by their ongoing war. Most of the people have been voicing their grievances, which have not been addressed for so long now.
Presently, there have been a number of ongoing resolution processes spearheaded by United States. The past conference was held in March 2007 and was attended by the ISSI Chairman, Shah Ghulam Qadir, KIIR Chairman, and Major (Retd) Tahir Iqbal who is the Federal Minister for the Kashmir Affair. There were also a number of distinguished guests and notables. The Prime Minister, Shaukat Aziz, said that Pakistan had entered into a deal of dialogue process between India and Pakistan as the first commitment, which pointed a sincerity of hope in bringing an end of the Kashmir dispute. During the conference, the Prime Minister emphasized that all the Kashmiris has been showing steadfastness which would see them willing to participate in the talks to bring fairness in the region. This people were noted to have undergone unimaginable torture and depression, which needed to be addressed immediately.
Dignitaries and experts, participants and diplomats from civil society in Jammu and Kashmir have also been participating in these talks. There are a number of recommendations that were voiced from the first leg of the talks. Without the provision of proper justice, and address to the human rights, there could be no proper intention behind the talks. There was the recommendation to have anger subjugation and having indignity being reduced in the area to have equal opportunities being given to the people of Kashmir than having political hegemony only. It was also noted that the grievances voiced by the people could be redressed by having proper state aspirations and understanding of the needs of the people.
There were calls to have humility in the process since it could take even longer than it could be expected. There were suggestions to have repeated checking of all the youngsters living in the different camps once they had been released from jail to monitor their operations and movements. There was the need to ensure that all the draconian laws that had been applied to be repealed to bring better governance in the region. Thinking of the citizens on the ground, all the facts behind them should be highly put into consideration rather than only relying on some figures and facts, which may not always be true.
Human rights have to be ensured and all the violators of these rights will have to be severely punished and end impunity. There should initiatives being put in place by both the two states, have independent investigations on all violations done on human rights, and thus be able to give justice to the people. NGOs will also have to be given permission so that they can freely interact with the people and change their lives positively. Once that has been achieved, the people shall be given the necessary freedom of interacting with the NGOs and thus report all injustices and violations on human rights. The EU Parliament has also be required to play its role in ensuring that there is proper implementation of the necessary measures in redress of the existing violations on human rights.
Some other proposals that have been part of these negotiations to bring about peace in Kashmir are to have International Alliances being created to bring a worthy cause in the Kashmir conflict. All the Human Rights should also be dealt with based on all possible humanitarian grounds. All necessary steps should also be taken in ensuring there is respect for human rights for justice to be provided by all the authorities responsible for the problem and solutions. Civil societies will also be given the necessary space they would need to ensure that all human rights violations are reported accordingly as they happen. The civil society will comprise of religious leaders, lawyers and human rights’ activists who will be on ground to report all the straight facts concerning violations done on the people. There will also be the application of unconditional amnesty to the militants and the people who have been widowed so that they can be able to move on with their lives.
Also, it was suggested that all the military and paramilitary troops and forces will have to be entirely vacated in the region. This will ensure that the people live in peace and will not be harassed by the militants and other troops in the region. All the curbs that have been operating in the area have also been ordered to be removed. The other important thing that has been proposed in Kashmir is to have transparency on all human rights and that way be able to bring proper management of this area in dispute. All the women in the region shall have to be helped and be taken back to the society. All the problems that have been associated with unaccounted kidnappings, disappearances, custodial killings and rape shall also be addressed during the conciliation process. The International Community has also been called to force India to come to conformation with the universal discourse facing Kashmir region. Proposition are to have all the human rights improved so that all the people who have undergone any form of traumatisation can be healed and be able to live their normal lives once again.
In addition, a major group has been aiming in peace and conflict management and resolution in the area. This group, which has been holding talks regularly, has come up with a number of suggestions and recommendations. These recommendations have suggested that the people of Kashmir, including all the military groups will have to be included in the central discussion to bring future peace in the region. Their fundamental thing here is that these groups have the right of participation if the outcome of any negotiation would result in a better deal. In order to have proper establishment of the appropriate human rights, there would be the reshuffling of all the military operations and this will reduce all forms of violence in the region. The ethnic, the geographic, political and religious diversity of the Kashmir’s people should also be put into consideration. Any form of dialogue will have to be promoted within all the political and religions groups in the region.
There will also be the necessity to develop some form of national consensus within the Kashmiris. All the external and internal displacements of the people, which have been taking place since 1947, will also have to be addressed. This will be essential in the building of a better atmosphere where trust and confidence will be built on the people regarding the conflict resolution strategies. It is hence essential for the civil societies from all the sides to be given opportunities in ensuring that they can together solve the problems faced by the people. There is also the need to come up with reconciliation and healing among the people; this will be a prelude towards a final solution on the Kashmir dispute. This reconciliation process may thus be the birth to wider possibilities to a long-lasting solution.
As part of this healing process, majority of the UN rapporteurs have been retargeted to have an address on human rights, with all the international NGOs being given unhindered practice and access of all the parts of Kashmir in order to establish only the truth on abuses on human rights done on the people of the region. This conflict has not only been a local affair, but an international issue, which has attracted diverse dimensions and thoughts. This is so because it involves two countries having nuclear abilities, and therefore the people of the region may be the ones who suffer in the end. This conflict resolution strategy or process will tangibly address all the needs of the people for dignity, identity, recognition, development and security, and if these are not put into consideration, then definitely it may lead to a total failure and proliferation of human abuse in the region.
Therefore, India and Pakistan have to invite some credible institutions and figures from the international arena, and the Kashmiris for better solution should accept these dignitaries. This will serve as a hope for the people, and they will be sure that there is a possible future in the coming days when they can be able to live in peace once again. The implication here is that the process towards this goal should be put into consideration because it will justify the results. It is also necessary for the Kashmiri people to come together, take necessary initiatives by themselves, and be able to influence the process and its possible outcome. There should also be the equitable participation of the women in all the levels of the peace talks. Generally, the UN principle towards peace and dispute management has remains the only legal framework in attaining resolution in this Kashmir conflict. Any resolution process must respect the principle to bring about self-determination for the Kashmir people.
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 Ortino, Federico T. 2004. Peaceful Settlement System, 1995-2003. Oxford: Oxford University Press, 45.
Ortino, Federico T. 2004. Peaceful Settlement System, 1995-2003. Oxford: Oxford University Press 47.
 Varshney, Ashutosh. 1991. ‘India, Pakistan and Kshmir: Antinomies of Nationalism.’Asian Survey, Vol. 31, No. 11 (Nov. 1991), pp. 997.
 Orrego, Francisco. 2004. International Dispute Settlement in an Evolving Global Society. Kentucky: Oxford University Press 49.
 Orrego, Francisco. 2004. International Dispute Settlement in an Evolving Global Society. Kentucky: Oxford University Press, 33.
 Orrego, Dispute, 45.
 Ibid., 60.
 Kelsen, Hans 2001. Collective security under International Law. Oxford: Oxford University Press., 45.
 Kelsen, Hans 2001. Collective security under International Law. Oxford: Oxford University Press., 52.
 Kelsen, International Law, 53.
 Kelsen, Hans 2001. Collective security under International Law. Oxford: Oxford University Press. 67.
 Kelsen, International Law, 68.
 Ibid., 69.
 Merrills, G. 2005. International Dispute Settlement. New Jersey: Prentice Hall., 55.
 Merrills, G. 2005. International Dispute Settlement. New Jersey: Prentice Hall.., 78.
 Merrills, G. 2005. International Dispute Settlement. New Jersey: Prentice Hall.., 78.
 Davies, David. 2004. Report of a study group on the Settlement of International Disputes (4th Edition). New Jersey Prentice Hall., 63.
 Davies, David. 2004. Report of a study group on the Settlement of International Disputes (4th Edition). New Jersey Prentice Hall., 68.
 Davies, Disputes, 68.
 Ibid., 69.
 Brus, Marcel. 2001. The United Nations decade of international law: Reflections on international law. New York: Oxford University Press 86.
 Brus, Marcel. 2001. The United Nations decade of international law: Reflections on international law. New York: Oxford University Pres., 67.
 Sumit, Ganguly &Kanti, Bajabai. 1994. ‘India and the Crisis in Kashmir.’ Asian Survey, Vol. 34, No. 5 (May. 1994), pp. 401-416.
 Brus, United Nations., 59.
Ortino, Federico T. 2004. Peaceful Settlement System, 1995-2003. Oxford: Oxford University Press., 86.
 Meishan, Goh. 2007. Dispute Settlement in International Space Law: a multi-house courthouse. New York: Carroll & Graf Publishers., 102.
 Goh, Dispute, 104.
 Ibid., 104.
 Meishan, Goh. 2007. Dispute Settlement in International Space Law: a multi-house courthouse. New York: Carroll & Graf Publishers., 74.
 Collier, John. 2000. The Settlement of disputes in international law: institutions and procedures. New York: SAGE, 107.
 Collier, John. 2000. The Settlement of disputes in international law: institutions and procedures. New York: SAGE, 108.
 Collier. Settlement of disputes, 78.
 Collier, John. 2000. The Settlement of disputes in international law: institutions and procedures. New York: SAGE., 80.
Davies, David. 2004. Report of a study group on the Settlement of International Disputes (4th Edition). New Jersey Prentice Hall.. 56.
 Korbel, Josef K. ‘The Kshmir Dispute After Six Years.’ International Organization Vol. 7, No. 4 (Nov 1953), pp.498-510. 34.
 Brown, James. 2004. The Hague Court Reports: Comprising the awards. New York: Sage Books. p, 69.