KSLU Solved Question Papers
Public International Law
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 7
2019 Jun Examination
munotes.in
Mumbai
B.A. LL.B. (Five Years) Sem 7 Public International Law 2019 Jun Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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The question paper reproduced here is the paper as set by Karnataka State Law University at the 2019 Jun examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2019 Jun examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2019 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 · 13 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Q1Examine the various theories regarding the basis of international law.[16]
Answer
For full marks, cover: the question the theories answer (why sovereign States are bound) and the two hard cases any theory must explain (new States and dissenters); the theories grouped by where they place the source of obligation: above the State (natural law; Grotius, 1625), in each State's will (consent, Lotus; auto-limitation; the persistent objector, Fisheries Case; treaties bind only parties, Asylum Case), in the community's common consent (Oppenheim §§ 11 and 12), in a basic norm (Kelsen; pacta sunt servanda, VCLT article 26), in social necessity (the sociological school); the modern limits of consent (VCLT article 53; obligations erga omnes, Barcelona Traction; the Genocide opinion); a table; an evaluation; a conclusion.
The question
Every legal system must explain why its rules bind. Within a State the answer is easy: the State makes and enforces the law. Between States it is hard, because each State is sovereign and has no legal superior. The basis of international law is the reason sovereign States are nonetheless bound.
Any theory must explain two hard cases.
- New States. A State born today is bound at once by customary rules it never helped to make.
- Dissenters. Some rules bind a State even against its will, such as the ban on genocide.
A. Obligation from above the State: natural law
The naturalists held that international law is part of a higher law, discovered by reason, which binds States as it binds individuals. States do not make it. They find it.
Oppenheim describes the historical role of this view (§ 12, 1912). At the end of the Middle Ages rules of international conduct were "urgently wanted". Writers prepared the ground "by constructing certain rules on the basis of religious, moral, rational, and historical reflections". Hugo Grotius's De Jure Belli ac Pacis (1625) "offered a systematised body of rules". Those rules "recommended themselves so much to the needs and wants of the time that they became the basis of the development following".
Strength. It explains why some rules bind regardless of consent. Weakness. Reason gives different answers to different people, so it cannot settle what the law actually is.
B. Obligation from each State's own will: consent
1. The consent theory. The positivists hold that a State is bound only by what it has agreed to, expressly in treaties and tacitly in custom. The Permanent Court gave the theory its judicial form in S.S. Lotus (France v. Turkey), PCIJ Series A, No. 10 (1927). International law is a law "the basis of which is the free will of independent States". So the Court asked not what rule permitted Turkey to act, but whether any rule forbade it. Jurisdiction was admissible "unless it came into conflict with international law".
Two rules of practice fit it well.
- The persistent objector. In the Fisheries Case (United Kingdom v. Norway), ICJ Reports 1951, p. 116, the Court held that the ten-mile rule for bays "is inapplicable as against Norway inasmuch as she has always opposed its application to the Norwegian coast".
- Treaties bind only their parties. In the Asylum Case (Colombia v. Peru), ICJ Reports 1950, p. 266, Colombia relied on the Montevideo Convention of 1933. The Court held that it could not be invoked against Peru, which had not ratified it. The Vienna Convention states the rule. A treaty does not create obligations for a third State without its consent (VCLT, article 34).
2. Auto-limitation. Georg Jellinek refined the theory. A sovereign can be bound only by its own will, so international obligation is the State limiting itself.
Weakness of both. Consent cannot explain the two hard cases. A new State never consented to existing custom. And a State that may limit itself may also remove the limit, so auto-limitation gives no binding force at all.
C. Obligation from the community's common consent
Oppenheim offered a middle answer. "Common consent is the basis of all law" (§ 11). But common consent does not mean that every member must agree to every rule at every moment. It means "the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance whatever". Whether such consent exists in a given case "is not a question of theory, but of fact only".
Applied to States (§ 12), customary rules "have grown up by common consent of the States". The different States "have acted in such a manner as includes their tacit consent to these rules". New members do not grow into the community as people do. They are "received into it through express or tacit recognition", and so accept the law as they find it.
Strength. It explains new States and the occasional dissenter better than individual consent. Weakness. It still rests everything on agreement, so it struggles to explain rules that bind against the clear will of a State.
D. Obligation from a basic norm: Kelsen
Hans Kelsen said every legal norm draws its validity from a higher norm. The chain must end in a presupposed basic norm. For international law he identified that norm with pacta sunt servanda, the rule that agreements must be kept. Article 26 of the Vienna Convention on the Law of Treaties 1969 states the rule. "Every treaty in force is binding upon the parties to it and must be performed by them in good faith".
Strength. It shows the logical structure of the system. Weakness. A presupposed norm explains nothing about why States accept it.
E. Obligation from social necessity
The sociological school, associated with Duguit and Scelle, holds that law grows out of the needs of a society. States are interdependent, and their common interests produce rules. Oppenheim himself pointed to the "innumerable" interests that knit States together, through trade, navigation, posts and telegraphs (§ 7).
Strength. It explains why the law is most developed where interdependence is greatest. Weakness. It describes why rules arise but not why they bind.
F. The modern limits of consent
Modern law has moved beyond pure consent in three ways.
1. Peremptory norms. "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law" (VCLT, article 53). Such a norm is "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted". States cannot contract out of it.
2. Obligations erga omnes. In Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), ICJ Reports 1970, p. 3, the Court drew "an essential distinction" between obligations owed to another State and those owed "towards the international community as a whole". The latter are "the concern of all States", and all States have a legal interest in their protection.
3. Principles binding without a treaty. The source is Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, p. 15. The Court said the principles underlying the Genocide Convention are recognised by civilised nations "as binding on States even without any conventional obligation".
Table
| Theory | Source of obligation | Authority | Main weakness |
|---|---|---|---|
| Natural law | A higher law found by reason | Grotius (1625) | Uncertain content |
| Consent | Each State's will | Lotus; Fisheries; Asylum | New States; dissenters |
| Auto-limitation | The State limiting itself | Jellinek | A limit it can remove |
| Theory | Source of obligation | Authority | Main weakness |
|---|---|---|---|
| Common consent | The community's overwhelming consent | Oppenheim §§ 11, 12 | Still rests on agreement |
| Basic norm | Pacta sunt servanda | Kelsen; VCLT article 26 | An assumption |
| Sociological | Social interdependence | Oppenheim § 7 | Describes, does not oblige |
| Modern core | Community values beyond consent | VCLT article 53; Barcelona Traction; Genocide | Hard to identify |
Evaluation
No single theory is enough. Consent explains most of the law, since treaties and most custom rest on it, as Lotus and the persistent objector rule show. Oppenheim's common consent explains why new States are bound by custom already formed. But the modern law also has a small core that binds whatever any State wants. It includes peremptory norms, obligations owed to all, and principles like those of the Genocide Convention. The best view is a mixed one. The law rests mainly on the common consent of States, limited by a core of fundamental rules the community as a whole accepts.
Conclusion. The basis of international law is the reason sovereign States are bound by it. Natural law placed it above States, and the consent theory and auto-limitation placed it in each State's will (Lotus). Oppenheim placed it in the common consent of the community of States (§§ 11 and 12). Kelsen traced it to a basic norm, pacta sunt servanda (VCLT article 26), and the sociological school to social necessity. Modern law adds a core beyond consent: jus cogens (article 53), obligations erga omnes (Barcelona Traction) and principles binding without a treaty (Genocide opinion). The best explanation combines common consent with that core.
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