KSLU Solved Question Papers
Public International Law
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 7
2020 Nov Examination
munotes.in
Mumbai
B.A. LL.B. (Five Years) Sem 7 Public International Law 2020 Nov Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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Contents
The questions below are the paper as Karnataka State Law University set it at the 2020 Nov examination, in the order it was set.
MarksPage
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2020 Nov 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.
Q1Discuss whether international law is a true law or not.[16]
Answer
For full marks, cover: why the question arises; the negative view (Austin, 1832: commands of a sovereign, "positive international morality"); a definition of law that does not depend on a State (Oppenheim § 5, 1912: community, rules, common consent to external enforcement); the three conditions tested against today's law: a community of States (the United Nations, Charter articles 1 and 2), a body of rules (ICJ Statute article 38; VCLT article 26), consent to external enforcement (Chapter VII, resolutions 661 and 678; courts and awards, Corfu Channel, Trail Smelter); recognition in practice (Oppenheim § 10; Nicaragua; national courts, Paquete Habana, Gramophone); the real weaknesses (consent jurisdiction, the veto, the 1986 Nicaragua draft); Hart's view; a table; a conclusion.
Why the question arises
International law has no world parliament, no court with compulsory jurisdiction over every State, and no world police. Within a State, those three institutions are what we usually mean by law. So the question is whether the rules between States are law in the true sense, or only rules of morality and courtesy.
The negative view: Austin
John Austin gave the classic negative answer in The Province of Jurisprudence Determined (1832). "Laws proper or properly so called, are commands". Every positive law "is set by a sovereign person, or a sovereign body of persons" to persons in subjection to it. Between nations there is no such sovereign. So "the law obtaining between nations is not positive law". It is "law (improperly so called) set by general opinion", and its duties "are enforced by moral sanctions". He called it "positive international morality".
Austin's view stands or falls with his definition. If law means only the command of a superior, international law is not law. The real question is whether that definition is right.
A definition that does not depend on a State
L. Oppenheim answered Austin with a wider definition (§ 5, second edition, 1912). "Law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power". So the existence of law has three conditions. There must be a community, and a body of rules for conduct within it. And there must be a common consent that those rules shall be enforced by external power.
Oppenheim added that it is not essential "that there should be a law-making authority or a law-administering court within the community concerned". His example was the Canon Law of the Roman Catholic Church. It has no sovereign political authority behind it, yet it is enforced by external penalties with the consent of its community. So "Municipal Law is law, but not every law is Municipal Law" (§ 6). Each condition can now be tested.
Condition 1: a community
Oppenheim found a community of States bound together by "innumerable" common interests: trade, navigation, posts and telegraphs, envoys and consuls (§ 7). Today that community is organised. The United Nations has 193 Members, and the Charter sets common purposes, including "friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples" (article 1(2)). Its Members accept common principles, among them sovereign equality and the ban on force (article 2). The first condition is plainly met.
Condition 2: a body of rules
Oppenheim noted that rules for States' conduct had grown for centuries, partly as custom and partly by treaty (§ 8). Today the sources are set out in article 38(1) of the ICJ Statute: treaties, custom "as evidence of a general practice accepted as law", and general principles of law. The binding force of treaties is itself a rule. "Every treaty in force is binding upon the parties to it and must be performed by them in good faith" (VCLT, article 26). The second condition is met as well.
Condition 3: consent to external enforcement
This is where Austin's attack bites. Oppenheim's answer was that States consent to enforcement of these rules, unlike rules of courtesy, even without a central authority. "Self-help and intervention on the part of other States" were the means of enforcement in his day (§ 9). Modern law has added institutions.
- The Security Council. Under Chapter VII, the Council can bind all Members. By resolution 661 of 6 August 1990 it imposed mandatory sanctions on Iraq. By resolution 678 of 29 November 1990 it authorised Member States co-operating with Kuwait to use "all necessary means" unless Iraq complied by 15 January 1991.
- Courts. Under article 94(1) of the Charter, each Member "undertakes to comply with the decision of the International Court of Justice" in any case to which it is a party. In the Corfu Channel Case (United Kingdom v. Albania), ICJ Reports 1949, p. 4, two British destroyers struck mines in Albanian waters on 22 October 1946. Forty-five British officers and sailors were killed. The Court held Albania responsible, and on 15 December 1949 fixed compensation at 843,947 pounds.
- Arbitration. In the Trail Smelter Arbitration (United States v. Canada), 3 RIAA 1905 (1938 and 1941), fumes from a smelter in British Columbia damaged land in Washington State. The tribunal held that "no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes" in another's territory. The rule applies "when the case is of serious consequence and the injury is established by clear and convincing evidence". Canada was held responsible and placed under a prescribed regime.
So there is external enforcement, though it is decentralised and uneven. Oppenheim's conclusion was frank: "a weak law is nevertheless still law".
Recognition in practice
Oppenheim also pointed out that "theorists only are divided" on the question. "In practice International Law is constantly recognised as law" (§ 10). Governments consider themselves "legally, not morally only, bound".
Modern practice confirms this. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), judgment of 27 June 1986, the United States did not deny the ban on force. It argued that its acts were collective self-defence, and the Court rejected the plea. National courts apply international law as law. In The Paquete Habana; The Lola, 175 U.S. 677 (1900), the United States Supreme Court said: "International law is part of our law". In Gramophone Company of India Ltd v. Birendra Bahadur Pandey, AIR 1984 SC 667, the Supreme Court of India held that rules of international law are accommodated in Indian law unless they conflict with an Act of Parliament.
The real weaknesses
- Consent jurisdiction. No State can be sued in the International Court without its consent.
- The veto. After the Nicaragua judgment, Nicaragua asked the Security Council to act under article 94. A draft calling for compliance (S/18428) received 11 votes to 1, with 3 abstentions. It failed because of the negative vote of a permanent member, the United States itself.
- Uneven enforcement. Sanctions and force are used against some States and not others.
These are faults in enforcement, not proof that the rules are not law. Municipal law also goes unenforced at times.
Hart's view
H. L. A. Hart, in The Concept of Law (1961, chapter X), offered a middle view. International law resembles a society with primary rules of obligation only, lacking secondary rules such as a rule of recognition. On that view it is law, but of a simple, less developed kind.
Table
| Test | Austin's answer | The answer from practice |
|---|---|---|
| Is there a sovereign commanding? | No, so not law | Not needed (Oppenheim § 5) |
| Is there a community? | Not considered | Yes: 193 UN Members (Charter articles 1, 2) |
| Are there rules? | "Positive international morality" | Treaties and custom (article 38; VCLT article 26) |
| Is there enforcement? | Moral sanctions only | Chapter VII; ICJ judgments (article 94); awards |
| Do States treat it as law? | Not considered | Yes (Nicaragua; Paquete Habana; Gramophone) |
Conclusion. International law is true law, though a weaker and less centralised law than municipal law. Austin denied it the name because it lacks a sovereign issuing commands. But Oppenheim showed that law needs only a community, a body of rules and common consent to external enforcement (§ 5), and all three exist. States make rules by treaty and custom, courts and tribunals apply them (Corfu Channel, Trail Smelter), and the Security Council can enforce them. Its weaknesses, consent jurisdiction and the veto, make it "a weak law", but "a weak law is nevertheless still law".
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