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Public International Law
Previous Year Question Paper with Solution
LL.B. (Three Years) · Sem 4
2021 Oct Examination
munotes.in
Mumbai
LL.B. (Three Years) Sem 4 Public International Law 2021 Oct Question Paper with Solutions
First published on munotes.in on 23 October 2025.
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The question paper reproduced here is the paper as set by Karnataka State Law University at the 2021 Oct examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2021 Oct examination, in the order it was set.
MarksPage
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2021 Oct 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 · 15 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.
Q1Define international law and discuss custom as a source of international law.[16]
Answer
For full marks, cover: a definition of international law (Oppenheim, 1912; Lotus; a modern definition); custom in article 38(1)(b) of the ICJ Statute and its two elements; the first element, general practice, as the Court tested it: uniformity (Asylum Case), generality, specially affected States and time (North Sea Continental Shelf), a custom between two States (Right of Passage); the second element, acceptance as law (Lotus, North Sea, Nicaragua); how fast a custom can form (the Truman Proclamation of 1945); who is bound, and the persistent objector (Fisheries Case); custom and treaty (North Sea, Nicaragua); custom in national courts (Paquete Habana, Gramophone); an assessment; a table of cases; a conclusion.
Defining international law
L. Oppenheim gave the classical definition (§ 1, second edition, 1912). "Law of Nations or International Law ... is the name for the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other". The definition names the two great sources, custom first.
The Permanent Court took the same view in S.S. Lotus (France v. Turkey), PCIJ Series A, No. 10 (1927). It described international law as a law "the basis of which is the free will of independent States". That will is expressed in two ways: by treaty, and by practice accepted as law.
A modern definition is wider. International law is the body of rules and principles that governs the relations of States with each other. It also governs their relations with international organisations and, in defined respects, with individuals. It comes from treaties, custom and general principles of law. Custom remains the source that binds every State, whether or not it has signed a treaty.
Custom in article 38(1)(b)
The Court applies "international custom, as evidence of a general practice accepted as law" (ICJ Statute, article 38(1)(b)). The words contain two elements.
- A general practice of States, the material element.
- Acceptance of that practice as law, the psychological element, called opinio juris.
A practice without the sense of obligation is only a usage, such as a ceremonial salute at sea. It becomes custom when States follow it because they believe the law requires it. The Court's cases show how each element is tested.
The first element: a general practice
1. Uniformity: the Asylum Case. In the Asylum Case (Colombia v. Peru), ICJ Reports 1950, p. 266, Haya de la Torre was prosecuted for a military rebellion in Peru in October 1948. On 3 January 1949 the Colombian Embassy in Lima granted him asylum. Colombia claimed that, by an American regional custom, the State of refuge could qualify the offence as political, unilaterally and with binding effect. The Court rejected the claim. Colombia had not proved "a constant and uniform practice" of unilateral qualification. The facts disclosed too much contradiction and fluctuation to show a usage accepted as law.
2. Generality, specially affected States and time: North Sea. The leading case is the North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports 1969, p. 3. Denmark and the Netherlands argued that the equidistance method had become custom, binding Germany. The Court set out three tests. The passage of only a short period of time is not necessarily a bar. But State practice, "including that of States whose interests were specially affected", must be extensive and virtually uniform. It must also show a general recognition that a rule of law is involved.
3. Even two States: Right of Passage. In Right of Passage over Indian Territory (Portugal v. India), judgment of 12 April 1960, Portugal claimed passage between Daman and its enclaves of Dadra and Nagar-Aveli. India objected that no local custom could arise between only two States. The Court found it difficult to see why the number must be larger than two. It found "a constant and uniform practice allowing free passage" for private persons, civil officials and goods. That practice had been "accepted as law by the Parties". There was no such practice for armed forces, armed police or arms, which had always needed permission.
The second element: acceptance as law
1. Lotus: abstention is not enough. In Lotus, the French steamer Lotus collided on the high seas with the Turkish collier Boz-Kourt on 2 August 1926, and eight Turkish nationals drowned. Turkey tried the French officer of the watch. France argued that States had often refrained from such prosecutions, so a custom of flag-State jurisdiction existed. The Permanent Court disagreed. Even if such abstention were an established fact, it could be custom only if it were due to States "being conscious of a duty to abstain". That had not been proved.
2. North Sea: frequency is not enough. Denmark and the Netherlands cited some fifteen cases in which States had drawn boundaries by equidistance. The Court found no evidence that they had done so because they felt legally compelled by a rule of customary law. The cases were inconclusive and insufficient evidence of a settled practice.
3. Nicaragua: where opinio juris can be found. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), judgment of 27 June 1986, the Court looked for opinio juris on the ban on force. It found it partly in the attitude of States to General Assembly resolutions, especially resolution 2625 (XXV), the Friendly Relations Declaration.
How fast a custom can form
Custom need not be ancient. The United States issued the Truman Proclamation on 28 September 1945. In North Sea, the Court said it could be regarded as a starting point of the positive law on the continental shelf. Its chief doctrine was that the coastal State has an original, natural and exclusive right to the shelf off its shores. That doctrine came to prevail over all others and was reflected in the 1958 Geneva Convention. So a rule can become custom within years, if practice is wide and consistent.
Who is bound
- General custom binds all States, including new States that took no part in forming it.
- Regional custom binds the States of a region, if proved, as Colombia failed to do in the Asylum Case.
- Local custom may bind only two States, as in Right of Passage.
The persistent objector. In the Fisheries Case (United Kingdom v. Norway), ICJ Reports 1951, p. 116, Norway's Decree of 12 July 1935 drew straight baselines along its deeply indented coast to reserve fisheries for its nationals. The United Kingdom relied on a ten-mile rule for closing bays. The Court held that some States had adopted the ten-mile rule but others had adopted a different length. So the rule had not acquired the authority of a general rule. In any event, it was "inapplicable as against Norway inasmuch as she has always opposed its application to the Norwegian coast".
Custom and treaty
North Sea shows the three ways in which a treaty rule can stand to custom. The Court asked three questions about the 1958 Convention's equidistance article. Was it declaratory of custom at its origin? Had it since generated custom? Had later practice created it? The answer to all three was no. A treaty rule passes into custom only if it is "at all events potentially, of a norm-creating character", with very widespread and representative participation.
Once custom exists, it survives beside a treaty. In Nicaragua, the Court said that even if a treaty norm and a customary norm had exactly the same content, the treaty process would not "deprive the customary norm of its separate applicability". So a State that cannot be held to a treaty rule may still be bound by the same rule as custom.
Custom in national courts
In The Paquete Habana; The Lola, 175 U.S. 677 (1900), two Spanish fishing smacks from Havana were captured by the United States blockading squadron in the war with Spain. The Supreme Court traced centuries of practice, orders and treaties. It held that coast fishing vessels were exempt from capture as prize of war by an established rule of international law. It said: "International law is part of our law".
In India, the Supreme Court took the same course in Gramophone Company of India Ltd v. Birendra Bahadur Pandey, AIR 1984 SC 667. Rules of international law are accommodated in municipal law, even without express legislation, unless they conflict with an Act of Parliament.
Assessment
Strengths. Custom binds all States, so it fills gaps no treaty covers. It reflects what States actually do. It can bind new States and States outside a treaty.
Weaknesses. Its content is often uncertain until a court declares it, as Asylum and North Sea show. Proof is hard, because practice is scattered across many States and years. A powerful State's practice may count for more than a weak State's. This is why so much custom has been codified into treaties.
Table of cases
| Case | Point decided |
|---|---|
| Asylum Case (1950) | Practice must be constant and uniform |
| North Sea (1969) | Extensive and virtually uniform practice, including specially affected States; time no bar; frequency alone not enough |
| Right of Passage (1960) | A local custom can bind two States |
| Lotus (1927) | Abstention counts only if done from a sense of duty |
| Case | Point decided |
|---|---|
| Nicaragua (1986) | Opinio juris from resolutions; custom survives beside treaty |
| Fisheries (1951) | The persistent objector is not bound |
| Paquete Habana (1900), Gramophone (1984) | National courts apply custom |
Conclusion. International law is the body of customary and conventional rules binding States in their relations with each other. It now extends to organisations and, in part, individuals. Custom is "evidence of a general practice accepted as law" under article 38(1)(b). The practice must be constant and uniform (Asylum) and extensive, including specially affected States (North Sea). It may bind only two States (Right of Passage). It must be followed from a sense of legal duty (Lotus). A persistent objector is not bound (Fisheries), and custom survives beside treaty (Nicaragua).
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