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B.A. LL.B. (Five Years) Sem 7 Public International Law 2014 Jun Question Paper with Solutions - KSLU

KSLU Solved Question Papers

Public International Law

Previous Year Question Paper with Solution

B.A. LL.B. (Five Years) · Sem 7

2014 Jun Examination

munotes.in

Mumbai

First published on munotes.in on 21 October 2026.

Published by munotes.in, Mumbai.

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The Paper as Set

The questions in this volume are the questions asked at the 2014 Jun examination, reproduced as Karnataka State Law University set them, in the order it set them. Long reading passages are shortened to their first and last lines and our summary; the original paper prints them in full. Only the answers are ours. See the original question paper.

Duration 3 hours · Total marks 100 · 20 questions answered

Instructions printed on the paper

N.B. (1) Answer all the 5 Questions. (2) Figures to the right indicate marks. (3) Answer should be written in English or Kannada completely.

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Read the original question paper

Q1

Unit I

(a)Explain customs and treaties as sources of International Law.[15]

Answer

For full marks, cover: custom and treaty as the two primary sources in article 38(1) of the ICJ Statute; custom: meaning, its two elements, its importance (general law binding all, gap-filling, the base of treaty law) with Paquete Habana, North Sea Continental Shelf and Lotus, and its weaknesses; treaties: meaning (VCLT article 2), importance (precision, codification, law-making), binding force (article 26) and limits (article 34); the "harmonious blend": treaties codify custom, treaties become custom (VCLT article 38, North Sea), both apply side by side (Nicaragua; VCLT article 43), custom is limited by treaty only between parties; a table; a conclusion.

The two primary sources

Article 38(1) of the Statute of the International Court of Justice lists the law the Court applies. First come "international conventions, whether general or particular, establishing rules expressly recognized by the contesting states". Second comes "international custom, as evidence of a general practice accepted as law". General principles, judicial decisions and writers follow. Treaty and custom are the two primary sources. Most of international law comes from one or the other, and the two constantly interact.

Custom: meaning and elements

A custom is a rule that States follow because they believe the law requires it. It has two elements.

General practice. States must act in a consistent way, widely and over time.
Opinio juris. They must act from a sense of legal obligation, not mere habit or courtesy.

The leading case is the North Sea Continental Shelf Cases, ICJ Reports 1969, p. 3. The Court held that the equidistance rule in the 1958 Geneva Convention had not become custom. Practice must be extensive and virtually uniform, and accompanied by a belief that it is "rendered obligatory by a rule of law". The S.S. Lotus (France v. Turkey), PCIJ Series A, No. 10 (1927), stresses the second element. States' abstention from prosecuting collisions could be custom only if they were conscious of a duty to abstain.

The importance of custom

It binds all States. A general custom binds every State, including new ones, whether or not it has consented to it expressly. A treaty binds only its parties. A State can escape a general custom only by objecting persistently while it forms, as Norway did in the Fisheries Case.
It fills the gaps. Where no treaty applies, custom governs. In The Paquete Habana; The Lola, 175 U.S. 677 (1900), the United States navy seized two Spanish fishing boats during the war with Spain. No treaty applied. The Supreme Court traced centuries of State practice and found a customary rule exempting coastal fishing vessels from capture. It said "international law is part of our law".

It is the foundation of treaty law. The rule that treaties must be kept, pacta sunt servanda, is itself customary.
Its weaknesses. Custom is slow to form, uncertain in content and hard to prove. Disputes often turn on whether a rule exists at all. Newly independent States also objected that much classical custom had been made without them. That is one reason why codification by treaty became so important after 1945.

Treaties: meaning and importance

A treaty is "an international agreement concluded between States in written form and governed by international law", whatever its name (Vienna Convention on the Law of Treaties 1969 (VCLT), article 2(1)(a)).

Precision. A treaty states its rules in writing, so there is less room for doubt.
Speed and deliberate change. States can make new law quickly by treaty, where custom would take decades.

Codification. The great codifying conventions wrote down and developed customary law. Examples are the Vienna Conventions of 1961 and 1969 and the Law of the Sea Convention 1982.
Law-making treaties. Large multilateral treaties, such as the UN Charter, set general rules for most of the world and act almost as international legislation.

Article 26 states pacta sunt servanda: "Every treaty in force is binding upon the parties to it and must be performed by them in good faith". But under article 34, "A treaty does not create either obligations or rights for a third State without its consent." That is the main limit of treaties.

"A harmonious blend": how custom and treaty work together

International law is often described as a harmonious blend of customary and treaty law. Four links explain why.

1. Treaties codify custom. Many treaties restate existing custom, so they bind parties by treaty and everyone else by custom.

2. Treaties can become custom. Article 38 of the VCLT preserves the rule that a treaty rule may bind a third State "as a customary rule of international law". North Sea Continental Shelf explained when this happens. The treaty provision must be of a norm-creating character. Participation in the treaty must be very widespread and representative. And State practice, including that of States whose interests are specially affected, must be extensive and virtually uniform. Equidistance failed these tests.

3. Custom and treaty apply side by side. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), judgment of 27 June 1986, a United States reservation prevented the Court from applying the UN Charter and other multilateral treaties. The Court applied customary law instead. It held that even if a treaty norm and a customary norm had exactly the same content, the treaty would not deprive the customary norm "of its separate applicability". So the United States was held to have broken the customary rules on force and intervention. Article 43 of the VCLT reflects the same idea. A State that leaves a treaty remains bound by any obligation that applies to it under international law independently of the treaty.

4. Treaty may vary custom, but only between the parties. States may agree by treaty to rules different from custom, except a peremptory norm (jus cogens). Such a treaty binds only the parties. Others remain under the custom. And a local custom binds only the States between which it is proved. In the Asylum Case (Colombia v. Peru), ICJ Reports 1950, p. 266, Colombia failed to prove a regional custom allowing it to qualify Haya de la Torre's offence unilaterally. The practice showed too much contradiction and fluctuation.

Which prevails in a conflict?

Between the parties to a treaty, a later or more specific treaty rule normally prevails over custom. States may contract out of most customary rules by agreement.
For third States, the custom continues to apply, since the treaty does not bind them (VCLT article 34).
Peremptory norms prevail over both. Under article 53 of the VCLT, a treaty that conflicts with a peremptory norm of general international law, jus cogens, is void.

Custom and treaty in Indian courts

The two sources enter Indian law differently. In Gramophone Company of India Ltd v. Birendra Bahadur Pandey, AIR 1984 SC 667, pirated cassettes were passing through Calcutta to Nepal. The Supreme Court held that rules of international law are accommodated in Indian law without express legislation, unless they conflict with an Act of Parliament. Courts must interpret Indian law, wherever possible, so as to avoid conflict with international law. Treaties, by contrast, generally need legislation where they affect citizens' rights or change domestic law. Parliament may make such laws under article 253 of the Constitution.

Table

Point	Custom	Treaty
Form	Unwritten	Written
Who is bound	All States (general custom)	Parties only (VCLT art. 34)
Making	Slow, through practice and opinio juris	Fast, by agreement
Certainty	Often uncertain	Precise

Point	Custom	Treaty
Proof	Must be shown (North Sea, Paquete Habana)	The text itself
Relation	Can become treaty by codification	Can become custom (VCLT art. 38)

Conclusion. Custom and treaty are the two primary sources of international law. Custom binds all States and fills the gaps treaties leave, as The Paquete Habana shows, though it is slow and uncertain. Treaties are precise and quick to make, but bind only their parties. They are a harmonious blend. Treaties codify custom and can become custom, as North Sea Continental Shelf explains, and the two apply side by side, as Nicaragua holds. Together they supply most of the law between States.

B.A. LL.B. (Five Years) Sem 7 Public International Law 2014 Jun Question Paper with Solutions

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