B.A. LL.B. (Five Years) Sem 7 Public International Law 2022 Mar Question Paper with Solutions

For full marks, cover: why the question arises (no legislature, no compulsory court, no police); the case against: Austin's command theory and "positive international morality"; the reply in five points: Austin's test is too narrow (Oppenheim § 4, custom), States treat it as law, courts apply it (Charter article 94, Corfu Channel), national courts apply it (Paquete Habana, Gramophone), sanctions exist (Chapter VII, self-defence, countermeasures); Hart's middle view; its real weaknesses; a table; a conclusion.

Why the question arises

Within a State, law is made by a legislature, applied by courts with compulsory jurisdiction, and enforced by the police. International law has none of these in the same form. There is no world parliament. The International Court of Justice hears a State only with its consent. There is no world police force. So it is asked whether international law is law at all, or only a code of good conduct between States.

2. States treat it as law. Governments do not claim to be free of international law. When accused of a breach, they deny the facts or argue that the law allowed what they did. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), judgment of 27 June 1986, the United States defended its support of the contras in legal terms. It argued collective self-defence, and the Court rejected the plea. A State that argues about what the law permits accepts that the law binds it.

3. Courts decide by it, and their judgments bind. Under article 94(1) of the UN Charter, "Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party". Under article 94(2), if a party fails to comply, the other party may have recourse to the Security Council. 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, and forty-five British officers and sailors were killed. The Court held Albania responsible. By its judgment of 15 December 1949, it fixed the compensation at 843,947 pounds.

5. Sanctions exist. Austin was wrong that the only sanction is opinion. The Security Council may impose economic measures under article 41 of the Charter and use force under article 42. A State may use force in self-defence against an armed attack (article 51). An injured State may take lawful countermeasures. Enforcement is decentralised and uneven, but it is not absent. In any case, law is obeyed mainly by habit and interest, not by fear of punishment. That is true within States too.

A middle view: Hart

H. L. A. Hart, in The Concept of Law (1961, chapter X), saw international law as law, but of a simpler kind. It resembles a society of primary rules of obligation only. It lacks the secondary rules that a developed legal system has, such as a rule of recognition. On this view it is law in an early stage of growth, not mere morality.

The real weaknesses

1. No legislature. New rules need the consent of States, which is slow.
2. Consent-based courts. No State can be taken to the International Court without its consent.

Conclusion. International law is true law, though a weaker and less developed system than municipal law. Austin denied it the name because it has no sovereign issuing commands backed by sanctions. But his definition is too narrow, as Oppenheim showed. States accept international law as binding and argue in its terms. Courts apply it, the Charter makes ICJ judgments binding (article 94), and national courts treat it as part of their law (Paquete Habana, Gramophone). Its weakness lies in enforcement, not in its legal character.