BLS LLB 5 Years Sem 9 Public International Law and Human Rights 2017-18 Question Paper with Solutions

Monism holds that international law and municipal law are two branches of one single legal system, not two systems, so a rule of international law is part of the law of the land without any act of transformation and can be applied directly by domestic courts.

Its principal exponents are Kelsen, Hersch Lauterpacht and Wright. Kelsen derived the unity from a single grundnorm and treated international law as the higher order, so that in the event of a conflict international law prevails.

Innocent passage is the right of ships of all States, coastal or land-locked, to navigate through the territorial sea of another State without entering its internal waters, for the purpose of traversing that sea or of proceeding to or from internal waters. It is governed by Articles 17 to 32 of the United Nations Convention on the Law of the Sea, 1982.

Article 19 makes passage innocent so long as it is not prejudicial to the peace, good order or security of the coastal State, and then lists twelve activities that render it non-innocent, including any threat or use of force, weapons practice, spying, propaganda, fishing, research and wilful pollution.

Two of the functions listed in section 12 of the Protection of Human Rights Act, 1993 are:

Section 12(a), to inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, or on a direction or order of any court, into a complaint of violation of human rights or abetment thereof, or of negligence in the prevention of such violation by a public servant.

Section 12(c), to visit any jail or other institution under the control of the State Government where persons are detained or lodged for purposes of treatment, reformation or protection, to study the living conditions of the inmates and make recommendations thereon, notwithstanding anything in any other law.

Jus cogens, or a peremptory norm of general international law, is defined by Article 53 of the Vienna Convention on the Law of Treaties, 1969 as a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

A treaty that conflicts with such a norm at the time of its conclusion is void, and by Article 64 an existing treaty that conflicts with a new peremptory norm becomes void and terminates.

UNCLOS is the United Nations Convention on the Law of the Sea, 1982, adopted at Montego Bay, Jamaica on 10 December 1982 at the close of the Third United Nations Conference on the Law of the Sea and in force from 16 November 1994. It is a comprehensive code of 320 articles and nine annexes, often called the constitution for the oceans.

It fixes the maritime zones, namely internal waters, territorial sea of 12 nautical miles, contiguous zone of 24, exclusive economic zone of 200 and the continental shelf, declares the deep seabed beyond national jurisdiction the common heritage of mankind, and sets up three institutions: the International Seabed Authority, the International Tribunal for the Law of the Sea at Hamburg and the Commission on the Limits of the Continental Shelf.

For full marks, cover: the place of mediation in Article 33(1) of the Charter, the definition, the difference from good offices and from conciliation, the non-binding character of the proposal, and one or two real examples.

Mediation is an amicable or extra-judicial method of settling an international dispute in which a third State, a group of States, an individual or an international organisation actively participates in the negotiations between the parties and puts forward its own proposals for a settlement.

It is one of the methods named in Article 33(1) of the United Nations Charter, which requires parties to a dispute likely to endanger international peace and security to seek a solution first by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

Its essential features are four:

The mediator takes part in the negotiations and is not a mere channel of communication.

Examples. The Soviet Union mediated between India and Pakistan at Tashkent in 1966. The World Bank mediated the Indus Waters Treaty of 1960 between India and Pakistan and remains named in it. The Pope mediated the Beagle Channel dispute between Argentina and Chile, producing the Treaty of Peace and Friendship of 1984. The Secretary-General of the United Nations mediates under Article 99 and through special envoys.

Conclusion. Mediation is the most flexible of the political methods of settlement: it costs the parties no sovereignty, because the proposal binds nobody, and it costs the mediator no more than the risk of failure. That is precisely why it succeeds where adjudication cannot even begin, in disputes which are political rather than legal and in which neither side will accept a judgment against it.

Albania was internationally responsible for the explosions and liable in damages, not because it had laid the mines, which was never proved, but because the minefield could not have been laid without its knowledge and it had failed to warn the approaching warships. The Court founded the duty on "certain general and well recognised principles", namely elementary considerations of humanity, the principle of the freedom of maritime communication, and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.

The United Kingdom had a right of innocent passage through an international strait used for international navigation, even by warships and even in peacetime, without Albania's prior authorisation. The passage of 22 October was innocent.

Operation Retail was unlawful. The Court rejected the plea of self-help and self-protection in words that are always quoted: the alleged right of intervention is the manifestation of a policy of force which has in the past given rise to the most serious abuses and cannot find a place in international law. The declaration that the sweep violated Albanian sovereignty was itself treated as appropriate satisfaction.

For full marks, cover: the full name and dates, the definition of discrimination in Article 1, the scheme of the substantive articles, the Committee and the reporting and complaint machinery, and India's ratification with its declarations.

CEDAW is the Convention on the Elimination of All Forms of Discrimination against Women, adopted by the United Nations General Assembly on 18 December 1979 and in force from 3 September 1981. It has 30 articles and is often described as the international bill of rights for women.

Article 1 defines discrimination against women as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. The words "effect or purpose" are important: indirect discrimination is caught.

India signed on 30 July 1980 and ratified on 9 July 1993, with declaratory statements on Articles 5(a) and 16(1), that it will abide by them in conformity with its policy of non-interference in the personal affairs of any community without its initiative and consent, a declaration on Article 16(2) that compulsory registration of marriages is not practicable in a country of India's size and diversity, and a reservation to Article 29(1), refusing reference of disputes to the International Court of Justice.

Conclusion. The importance of the Convention in Indian law is not that it is directly enforceable, because it is not, but that it supplies the content of Article 15 when the statute book is silent. Vishaka v. State of Rajasthan (1997) laid down binding guidelines on sexual harassment at the workplace by reading CEDAW into Articles 14, 15, 19(1)(g) and 21, and those guidelines held the field until Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Article 21 has been read to include the right to livelihood in Olga Tellis v. Bombay Municipal Corporation (1985), and the right to live with human dignity, including just and humane conditions of work, in Bandhua Mukti Morcha v. Union of India (1984).

Article 23 prohibits traffic in human beings and begar and other similar forms of forced labour. In People's Union for Democratic Rights v. Union of India (1982), the Asiad workers case, the Supreme Court held that payment of less than the minimum wage is forced labour within Article 23, because a person who works for less than the minimum is working under the force of economic circumstances.

Article 24 prohibits the employment of a child below fourteen years in any factory or mine or in any other hazardous employment.

For full marks, cover: the name and dates, the place of the Convention in the inter-American system, the rights it guarantees, the two organs and how a case travels between them, the protocols, and which States stand outside it.

The American Convention on Human Rights was adopted at San Jose, Costa Rica on 22 November 1969 and came into force on 18 July 1978. It is often called the Pact of San Jose and is the treaty at the centre of the regional human rights system of the Organization of American States.

Rights guaranteed. Part I, Chapter II, Articles 3 to 25, guarantees civil and political rights: juridical personality, life, humane treatment, freedom from slavery, personal liberty, a fair trial, freedom from ex post facto laws, compensation, privacy, conscience and religion, thought and expression, reply, assembly, association, the family, a name, the rights of the child, nationality, property, movement and residence, participation in government, equal protection and judicial protection, which is the amparo remedy. Chapter III, Article 26, deals with economic, social and cultural rights only by way of progressive development.

Conclusion. The inter-American system is the regional arrangement that has done the most with the least, because it grew up alongside military dictatorships and disappearances. Velasquez Rodriguez v. Honduras (1988), its first contested judgment, is the foundation of the modern doctrine of State responsibility for failing to prevent, investigate and punish violations committed even by private persons, and it has been cited far outside the Americas.

Articles 3 to 21 contain civil and political rights: life, liberty and security, freedom from slavery and torture, recognition as a person before the law, equality before the law, effective remedy, freedom from arbitrary arrest, fair trial, presumption of innocence, privacy, movement, asylum, nationality, marriage, property, thought and religion, opinion and expression, assembly and association, and participation in government.

Articles 22 to 27 contain economic, social and cultural rights: social security, work and equal pay, rest and leisure, an adequate standard of living, education and participation in cultural life.

Articles 28 to 30 are the closing provisions, including the duties of the individual to the community and the rule that nothing in the Declaration may be read as a right to destroy the rights it declares.

Legal status. The Declaration was adopted as a resolution of the General Assembly and was therefore not binding in itself. Its provisions are today very widely regarded as customary international law, or at least the core of them, and it is the document to which almost every later human rights treaty, and many constitutions, refer.

Her right to equality under Articles 14 and 15. Conduct founded on the idea that a wife from a village is an embarrassment, so that she may be excluded from social life and abused, is discrimination on the ground of sex read with social origin. Article 15(3) empowers the State to make special provision for women, and the legislation below is made under it.

Her statutory rights under the Protection of Women from Domestic Violence Act, 2005. Section 3 defines domestic violence to include physical abuse and verbal and emotional abuse, and expressly names insults, ridicule and humiliation as verbal and emotional abuse. Sarita is an "aggrieved person" under section 2(a), living in a shared household with a respondent to whom she is related by marriage.

Her rights under international instruments which India has accepted: Articles 1, 3, 5 and 12 of the UDHR, Article 7 of the ICCPR, and CEDAW, ratified by India on 9 July 1993, whose Article 5(a) requires States to modify social and cultural patterns founded on the idea of the inferiority of either sex. The Declaration on the Elimination of Violence against Women, 1993 and General Recommendation No. 19 of the CEDAW Committee treat gender-based violence as discrimination.

Conclusion. Sarita's case is a violation of Article 21 read with Articles 14 and 15, and of section 3 of the Act of 2005, and she is entitled to protection, residence and monetary orders from a Magistrate without having to seek a divorce first. The design of the 2005 Act is what decides the problem: Parliament deliberately made the primary remedy civil and immediate rather than criminal, so that a woman in Sarita's position can obtain a protection order in weeks while the marriage subsists.

It engages the international responsibility of the State. Under the Articles on Responsibility of States for Internationally Wrongful Acts, 2001, an act is wrongful when it is attributable to the State and constitutes a breach of an international obligation (Article 2). Conduct of the armed forces is attributable to the State under Article 4 even when the unit exceeds its authority (Article 7). The consequences are cessation and assurances of non-repetition (Article 30) and full reparation, by restitution, compensation or satisfaction (Articles 31 and 34).

It breaches Article 2(4) of the Charter, which prohibits the threat or use of force against the territorial integrity or political independence of any State, a rule of jus cogens confirmed in Nicaragua v. United States (1986).

The killing of civilians engages international humanitarian law. Common Article 3 of the Geneva Conventions of 1949, to which both India and Pakistan are parties, and the customary principles of distinction, proportionality and precaution forbid attacks directed at civilians or civilian objects. Deliberate attacks on civilians are war crimes under Article 8 of the Rome Statute, though neither India nor Pakistan is a party to it.

The right to seek peaceful settlement under Article 33, by negotiation, enquiry, mediation, conciliation, arbitration or judicial settlement, though jurisdiction of the International Court of Justice is limited here: India's declaration under Article 36(2) excludes disputes with Commonwealth States and disputes relating to hostilities and self-defence, which is why the Court dismissed the Aerial Incident of 10 August 1999 (Pakistan v. India) for want of jurisdiction in 2000.

Conclusion. A ceasefire violation is a breach of a bilateral agreement, of Article 2(4) of the Charter and, where civilians die, of international humanitarian law, and it makes the offending State responsible in international law. The affected State's remedies are graduated: protest and demand for reparation first, non-forcible countermeasures next, and armed force only within the strict limits of Article 51, because self-defence answers an armed attack and does not license retaliation.

The right to food, also under Article 21. People's Union for Civil Liberties v. Union of India, the right to food case begun in 2001, produced a series of orders converting the food schemes into entitlements, and the National Food Security Act, 2013 now makes subsidised grain a legal right. Starvation deaths are the clearest possible violation of Article 21: Kishen Pattnayak v. State of Orissa (1989), on starvation in Kalahandi, is the early authority.

The right to live with human dignity and to just and humane conditions of work, Article 21 read with Articles 39(a), 39(e), 41, 42, 43 and 47 of the Directive Principles: Bandhua Mukti Morcha v. Union of India (1984).

The right to health, Article 21 read with Article 47: Consumer Education and Research Centre v. Union of India (1995) held that the right to health and medical care of a worker is a fundamental right.

Recovery of what is owed. Arrears of wages, provident fund and gratuity, with the workers' claims given priority.

Employment. Guaranteed wage employment under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005, one hundred days per household as of right, and inclusion of the closed estates in the Special Plantation Package so that abandoned gardens can be taken over or run by workers' cooperatives.

Enforcement. Prosecution of defaulting managements, and use of the provisions on closure that require prior permission, so that an estate cannot simply be abandoned.

Legal action. A writ petition under Article 32 or 226 in the public interest, and a complaint to the NHRC or the State Human Rights Commission, which may inquire suo motu under section 12(a).

Conclusion. The starvation deaths in a closed tea garden are not a misfortune but a violation of the right to life, because the right to livelihood and the right to food have both been read into Article 21 and both are enforceable against the State. The answer to the second half is therefore not charity but enforcement: food entitlements under the Act of 2013, wage employment under the Act of 2005, recovery of arrears under the Code on Wages, and a writ or an NHRC inquiry to compel them.

For full marks, cover: two or three definitions with their authors, the criticism that international law is not law and the answer to it, then Article 38(1) of the Statute of the International Court of Justice taken clause by clause, the distinction between formal and material sources, and the modern additions the Article does not mention.

I. Definition

Oppenheim's classical definition: "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." Two criticisms of it are standard: it confines international law to States, whereas international organisations and individuals now have personality; and the word "civilised" is indefensible.

Is it law at all? John Austin said it was not: law properly so called is the command of a sovereign backed by a sanction, and international law has no sovereign legislature, no court of compulsory jurisdiction and no executive to enforce it, so it is "positive international morality". The answer, given by Oppenheim, Starke and Hall, is that Austin's own theory of law is too narrow: customary law and constitutional law are law without a command; States themselves treat international law as binding and plead it rather than deny it; sanctions do exist in the form of Security Council enforcement, countermeasures, denial of membership and adverse world opinion; and the Charter of the United Nations, Article 92, and the practice of every foreign office proceed on the footing that it binds. The better view is that international law is a weak legal system, not a moral code.

II. Sources: Article 38(1) of the Statute of the International Court of Justice

Article 38(1) directs the Court to apply:

(c) the general principles of law recognised by civilised nations. These are principles common to the major municipal systems, imported to fill gaps so that the Court is not forced to declare non liquet. Examples applied in practice are good faith, res judicata, estoppel (Temple of Preah Vihear, 1962), prescription, the duty to make reparation for a wrong (Chorzow Factory, 1928), unjust enrichment, circumstantial evidence (Corfu Channel, 1949) and the rule that no one may be judge in his own cause.

(d) subject to Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. These are subsidiary and evidence of law, not law itself. Article 59 provides that a decision of the Court has no binding force except between the parties and in respect of that particular case, so there is no doctrine of precedent in international law; in practice the Court follows its own decisions closely. "Judicial decisions" includes arbitral awards, such as the Island of Palmas (1928) and the Alabama Claims (1872), and decisions of municipal courts as evidence of State practice.

Article 38(2) adds that the Court may decide a case ex aequo et bono if the parties agree, that is, on grounds of fairness rather than law. No case has yet been decided on that basis.

Conclusion. International law is the body of rules which States and other subjects of the international community accept as legally binding in their mutual relations; it is a legal system, though a decentralised one, and Austin's objection mistakes the absence of a sovereign for the absence of law. Its sources are those listed in Article 38(1) of the Statute, of which treaties and custom are the two that create law and general principles fill the gaps, while judicial decisions and juristic writings only prove what the law is. The Article is not exhaustive: the practice of the last century has added binding decisions of organs, declaratory resolutions and unilateral undertakings, and has placed jus cogens above them all.

The Committee on the Rights of the Child treats four articles as the principles through which all the others are read.

Article 2, non-discrimination. The rights are secured to each child without discrimination of any kind, and the child is protected against discrimination on the ground of the status or activities of his parents.

Article 3, the best interests of the child. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 6, the right to life, survival and development. States recognise that every child has the inherent right to life and shall ensure to the maximum extent possible the survival and development of the child.

Article 12, respect for the views of the child. A child capable of forming his own views has the right to express them freely in all matters affecting him, those views being given due weight in accordance with age and maturity, and in particular the child shall be heard in any judicial or administrative proceeding affecting him.

III. The substantive rights, in four groups

Protection rights. Protection from all forms of physical or mental violence, injury, abuse, neglect and exploitation while in the care of parents or others (19); special protection for children deprived of a family environment (20); safeguards on adoption, with the best interests of the child as the paramount consideration (21); refugee children (22); children with disabilities (23); protection from economic exploitation and hazardous work (32); narcotic drugs (33); sexual exploitation and sexual abuse (34); abduction, sale and traffic (35); torture, and the prohibition of capital punishment and life imprisonment without possibility of release for offences committed by persons below eighteen (37); and recovery and reintegration of victims (39).

Participation rights. Articles 12 to 17 above, and Article 40, the rights of a child accused of an offence, which requires a minimum age of criminal responsibility, treatment consistent with the child's sense of dignity, the presumption of innocence, prompt information of charges, legal assistance and a determination without delay, and calls for measures that avoid resort to judicial proceedings.

Article 38 deals with armed conflict and set the age for recruitment and direct participation at fifteen.

IV. The three Optional Protocols

Conclusion. The Convention's contribution is that it stopped treating the child as an object of protection and made him the holder of rights, and the article that does the work is Article 12, the right to be heard. For an Indian answer the practical importance is that the Convention is not directly enforceable, but its four principles have been legislated: the best interests of the child in section 3 of the Juvenile Justice Act, 2015, the right to be heard in the same section, and the right to education in Article 21A. Where legislation is silent, the courts use the Convention to fill the gap, as they did in Sheela Barse v. Union of India and in the line of cases on child labour beginning with M. C. Mehta v. State of Tamil Nadu (1996).

The Supreme Court supplied what was missing by reading the environment into Article 21. In Subhash Kumar v. State of Bihar (1991) the Court held that the right to life includes the right to enjoyment of pollution free water and air, and in Virender Gaur v. State of Haryana (1995) that Article 21 protects the right to a hygienic environment, Articles 48A and 51A(g) being read into it.

II. Access to the Court

The instrument was public interest litigation. By relaxing locus standi so that any public spirited person could move the Court under Article 32, and by treating a letter as a petition, the Court opened the door to environmental claims that no individual had the means to bring. Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh (1985), the Dehradun limestone quarries case, was the first environmental public interest case and led to the closure of quarries in the Mussoorie hills; the Court expressly balanced the hardship to the lessees against the damage to the ecology and to the safety of the population.

III. The principles absorbed from international law

M. C. Mehta v. Union of India (1987), the oleum gas leak case, laid down the rule of absolute liability: an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, and is liable for harm without any of the exceptions to the rule in Rylands v. Fletcher, the measure of damages being correlated to the magnitude and capacity of the enterprise. The rule was given statutory form in the Public Liability Insurance Act, 1991 and in the National Green Tribunal Act, 2010.

V. The great continuing mandamus cases

M. C. Mehta v. Union of India produced a series of decisions rather than one: the Ganga pollution cases (1987 and 1988), which closed tanneries at Jajmau and required municipalities to treat sewage; the Taj trapezium case (1996), which ordered 292 industries around the Taj Mahal to switch to natural gas or relocate; and the vehicular pollution cases, which converted the entire public transport fleet of Delhi to compressed natural gas by 2001 and later drove the leap to Bharat Stage VI fuel from April 2020.

Conclusion. The Supreme Court has done four things for the right to a healthy environment: it made an unenforceable directive principle enforceable by reading Articles 48A and 51A(g) into Article 21; it opened the courthouse door through public interest litigation and the continuing mandamus; it imported the precautionary principle, the polluter pays principle, the public trust doctrine and absolute liability, and so wrote a body of environmental law that Parliament had not written; and it pushed Parliament into creating the National Green Tribunal. The criticism, which a good answer records, is that the Court has often legislated and administered rather than adjudicated. The reply is that in M. K. Ranjitsinh the Court has now framed the question in the language of rights again, which is where it belongs.

(1) The constitutive theory. Recognition creates the State. An entity becomes a subject of international law and acquires rights and duties only when the existing States recognise it; before that, however complete its factual attributes, it is a legal nullity. Its exponents are Hegel, Anzilotti, Holland and, in a qualified form, Oppenheim in the early editions.

Criticism. It is objectionable in principle and unworkable in practice. It would mean that an unrecognised State has no obligations either, and so may attack its neighbours or ill-treat their nationals with impunity. It produces the absurdity of an entity that is a State for the twenty countries that recognise it and not a State for the rest. And it is contradicted by practice: the United States did not recognise the Soviet Union until 1933 and Communist China until 1979, yet nobody treated either as being outside international law in the meantime. Article 3 of the Montevideo Convention rejects it in terms: "The political existence of the State is independent of recognition by the other States."

III. Modes and kinds

Express and implied. Recognition is express when it is stated in a formal declaration, note or treaty. It is implied when it is to be inferred from conduct such as the establishment of diplomatic relations, the issue of a consular exequatur, or the conclusion of a bilateral treaty. Not every dealing implies recognition: membership of the same multilateral treaty or of the United Nations does not by itself amount to recognition by every other member, and India and Pakistan have made express reservations of that kind.

De facto and de jure. De facto recognition is provisional, granted where the new authority has effective control but its permanence, or its willingness to observe international obligations, is in doubt; it is revocable. De jure recognition is final, granted when the entity satisfies the conditions of statehood and is expected to continue, and it is not revocable. The United Kingdom recognised the Soviet Government de facto in 1921 and de jure in 1924. In Luther v. Sagor (1921) and Bank of Ethiopia v. National Bank of Egypt (1937) the English courts held that for the purposes of giving effect to the acts of the recognised authority, de facto recognition has substantially the same effect as de jure.

A recognised State may sue in the courts of the recognising State; its legislative and executive acts are given effect there; it is entitled to sovereign immunity for itself and its property; it may claim property situated in the recognising State; and it may enter into diplomatic relations and conclude treaties with it. Recognition is retroactive to the date on which the recognised authority established itself, which is the effect stated in Civil Air Transport Inc. v. Central Air Transport Corporation (1953): recognition operates retroactively not to invalidate the acts of a former government, but to validate the acts of a de facto government which has become the new de jure government.

Conclusion. The declaratory theory states the better law: statehood is a matter of fact and Article 3 of the Montevideo Convention says so, and the constitutive theory produces consequences no legal system could accept, above all an entity bound by no obligations at all. But the declaratory theory is not the whole truth, because until an entity is recognised it cannot sue, cannot claim immunity and cannot maintain diplomatic relations in the courts and chanceries of the non-recognising State. The intermediate view is therefore the answer to give: recognition declares the fact of statehood and constitutes the legal relationship between the two States.

The principle comes from Hugo Grotius, whose Mare Liberum (1609) argued, for the Dutch East India Company against the Portuguese claim to a monopoly of the Indian Ocean, that the sea cannot be appropriated because it is inexhaustible and incapable of occupation. John Selden replied in Mare Clausum (1635) for the English claim to the narrow seas. Grotius won, and by the eighteenth century the freedom of the seas was settled law.

III. The freedoms: Article 87

The high seas are open to all States, coastal and land-locked, and the freedom comprises, inter alia, six freedoms:

(a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines; (d) freedom to construct artificial islands and other installations permitted under international law; (e) freedom of fishing; and (f) freedom of scientific research.

The list is not exhaustive, being introduced by "inter alia". The freedoms must be exercised with due regard for the interests of other States in their exercise of the same freedoms, and with due regard for the rights in respect of activities in the Area. Article 88 reserves the high seas for peaceful purposes.

IV. Exclusive flag State jurisdiction

(2) The right of visit, Article 110. A warship which encounters a foreign ship on the high seas may board it where there is reasonable ground for suspecting that the ship is engaged in piracy, the slave trade or unauthorised broadcasting, or is without nationality, or is in reality of the same nationality as the warship though flying a foreign flag.

(3) The right of hot pursuit, Article 111. Pursuit may be undertaken when the competent authorities of the coastal State have good reason to believe that a foreign ship has violated its laws; it must begin while the ship is within the internal waters, territorial sea, contiguous zone or exclusive economic zone of the pursuing State, must be preceded by a visual or auditory signal to stop given from a distance enabling it to be seen or heard, must be continuous and uninterrupted, and ceases as soon as the ship pursued enters the territorial sea of its own State or of a third State. The classic authority is the I'm Alone case (1935) and, more recently, M/V Saiga (No. 2) (1999).

(4) Suppression of the slave trade, Article 99, and of the illicit traffic in narcotic drugs, Article 108, on which States are to cooperate, and unauthorised broadcasting, Article 109, over which several States have jurisdiction.

(10) Nuclear tests and weapons. The Partial Test Ban Treaty, 1963 prohibits nuclear tests in the atmosphere, in outer space and under water, and the Seabed Arms Control Treaty, 1971 prohibits emplacing nuclear weapons on the seabed beyond twelve miles.

Conclusion. The freedom of the high seas is not a freedom from law, it is a freedom from the sovereignty of any single State, and its regulating principle is exclusive flag State jurisdiction. The exceptions are of two kinds and they should be presented that way: those which allow another State to act against a ship, namely piracy, visit, hot pursuit, slave trade, drugs, unauthorised broadcasting and Chapter VII enforcement; and those which limit what any State may do at all, namely the reservation for peaceful purposes, conservation of fisheries and protection of the marine environment. The trend since 1982 has been to enlarge the second kind, because the assumption on which Grotius built, that the sea is inexhaustible, has turned out to be false.

The Second Optional Protocol to the ICCPR, adopted 15 December 1989 and in force 11 July 1991, aims at the abolition of the death penalty. India has not ratified it. The regional counterparts are Protocol No. 6 (1983) and Protocol No. 13 (2002) to the European Convention, the latter abolishing it in all circumstances, and the Protocol to the American Convention, 1990.

The Economic and Social Council Safeguards of 1984 (Resolution 1984/50) restrict it to intentional crimes with lethal or other extremely grave consequences, and require the benefit of a lighter penalty if the law is changed after the offence.

The General Assembly has adopted a series of resolutions calling for a moratorium, beginning with Resolution 62/149 of 18 December 2007, each with a larger majority; India has voted against them. Some 113 States have abolished the death penalty for all crimes and about 145 are abolitionist in law or practice.

II. The Indian constitutional position

Machhi Singh v. State of Punjab (1983) restated the doctrine in five categories, manner of commission, motive, socially abhorrent nature, magnitude, and personality of the victim, and added the balance sheet test.

Mithu v. State of Punjab (1983) struck down section 303 of the Indian Penal Code, which made death mandatory for murder by a life convict, as violating Articles 14 and 21, because it left the court no discretion. On the same principle mandatory death sentences in other statutes have been struck down.

III. The safeguards built round it

For retention: deterrence of the gravest crimes; retribution and the demand of society for proportionate punishment; incapacitation of the incorrigible; the will of a democratically elected Parliament, which has extended the penalty as recently as the Criminal Law (Amendment) Act, 2018 and the Protection of Children from Sexual Offences (Amendment) Act, 2019.

Against abolition being deferred: the Law Commission of India's 262nd Report (2015) recommended abolition for all offences other than terrorism related offences and waging war, finding no evidence that the death penalty deters more effectively than life imprisonment; the penalty is irrevocable, and Santosh Kumar Bariyar v. State of Maharashtra (2009) itself recorded that several earlier decisions had been rendered per incuriam; its application is arbitrary and falls disproportionately on the poor and the illiterate, as the Death Penalty India Report (2016) documented; and the mercy jurisdiction has proved slow and opaque.

Rebus sic stantibus, the doctrine of a fundamental change of circumstances, is the rule that a treaty may be terminated or withdrawn from when circumstances that existed at the time of its conclusion have changed fundamentally. It is codified, in a deliberately narrow form, by Article 62 of the Vienna Convention on the Law of Treaties, 1969.

A change may be invoked only if two conditions are both satisfied: the existence of those circumstances constituted an essential basis of the consent of the parties to be bound, and the effect of the change is radically to transform the extent of obligations still to be performed.

Opinio juris sive necessitatis is the psychological or subjective element of custom: the conviction of States that a given practice is followed because it is legally obligatory, and not merely out of courtesy, comity, convenience or habit. With the material element of general practice, it makes a custom a rule of law within Article 38(1)(b) of the Statute of the International Court of Justice.

Stare decisis et non quieta movere, "to stand by decisions and not to disturb settled points", is the common law doctrine of binding precedent, under which a court is bound by the earlier decisions of superior courts and, generally, by its own.

It does not apply in international law. Article 59 of the Statute of the International Court of Justice provides that the decision of the Court has no binding force except between the parties and in respect of that particular case, and Article 38(1)(d) treats judicial decisions as no more than a subsidiary means for the determination of rules of law.

Magna Carta, the Great Charter, was granted by King John of England at Runnymede on 15 June 1215 under compulsion from his barons. It is regarded as the first written document limiting the power of a sovereign and as the historical starting point of the modern rule of law and of human rights.

Its most famous provisions are clause 39, that no free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way destroyed except by the lawful judgment of his peers or by the law of the land, and clause 40, that to no one will we sell, to no one will we deny or delay, right or justice.

Two rights available at the time of arrest are:

The right to be informed of the grounds of arrest and to consult and be defended by a legal practitioner of his choice, guaranteed by Article 22(1) of the Constitution and by sections 47 and 38 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced sections 50 and 41D of the Code of Criminal Procedure with effect from 1 July 2024. Section 48 requires the police to give information of the arrest to a relative or friend or other person nominated by the arrested person.

The right to be produced before the nearest Magistrate within twenty-four hours of the arrest, excluding the time necessary for the journey, and not to be detained beyond that period without the authority of a Magistrate: Article 22(2) and sections 58 and 187 of the Sanhita of 2023.

For full marks, cover: the parent convention, the dates, the targets and the principle behind them, the three flexibility mechanisms, the compliance record and the two commitment periods, and what has replaced it.

The Kyoto Protocol was adopted at Kyoto, Japan on 11 December 1997 and entered into force on 16 February 2005, after ratification by Russia brought it past the threshold of 55 parties accounting for 55 per cent of the developed world's 1990 carbon dioxide emissions. It is a protocol to the United Nations Framework Convention on Climate Change, 1992, agreed at the Rio Earth Summit.

What it did. It was the first instrument to impose legally binding emission reduction targets. The developed States listed in Annex I undertook to reduce their aggregate emissions of six greenhouse gases (carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulphur hexafluoride) by at least 5 per cent below 1990 levels over the first commitment period, 2008 to 2012. Developing countries, including India and China, took on no binding targets.

Its record and its end. The United States signed but never ratified; Canada withdrew in 2012. The Doha Amendment of 2012 created a second commitment period from 2013 to 2020 with an 18 per cent reduction target, but it covered a small fraction of world emissions and entered into force only on 31 December 2020, the day before the period it governed expired. The Protocol has been succeeded by the Paris Agreement, adopted on 12 December 2015 and in force from 4 November 2016, under which every party, developed and developing, submits nationally determined contributions, with the goal of holding the increase in global average temperature to well below 2 degrees Celsius above pre-industrial levels and pursuing efforts to limit it to 1.5.

Conclusion. Kyoto's importance is structural rather than numerical: it proved that binding targets and a market in emission reductions could be negotiated, and it is the origin of carbon trading. Its failure was equally instructive, because a treaty that binds only the developed States cannot solve a problem to which the developing States are now the largest contributors, and that is the reason the Paris Agreement abandoned the Annex I approach for nationally determined contributions.

Survival: life (6); name and nationality and the right to know and be cared for by parents (7); preservation of identity (8); health and health services (24); social security (26); adequate standard of living (27).

Development: free and compulsory primary education (28); the aims of education (29); minority and indigenous children (30); rest, leisure and play (31); freedom of expression (13), religion (14), association (15), privacy (16) and access to information (17).

Protection: from violence, abuse and neglect (19); children without a family (20); adoption, where the best interests of the child are the paramount consideration (21); refugee children (22); children with disabilities (23); economic exploitation and hazardous work (32); drugs (33); sexual exploitation (34); sale and trafficking (35); torture and the prohibition of capital punishment and of life imprisonment without release for offences committed under eighteen (37); armed conflict (38); recovery and reintegration (39).

Participation: Articles 12 to 17, and Article 40, the rights of a child in conflict with the law, including a minimum age of criminal responsibility, the presumption of innocence, legal assistance and disposal without delay.

For full marks, cover: the statute and the date, the definition of human rights it works with, composition after the 2019 amendment, appointment and removal, functions, powers, the two limitations, and the standing criticism.

The National Human Rights Commission was constituted under the Protection of Human Rights Act, 1993, which is deemed to have come into force on 28 September 1993. The Act was passed in the light of the Paris Principles adopted by the General Assembly in 1993 for national human rights institutions.

Section 2(1)(d) defines human rights as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. "International Covenants" means the ICCPR and the ICESCR.

Functions, section 12. Inquiry, suo motu or on petition or on the direction of a court, into violation of human rights or negligence in preventing it by a public servant; intervention in proceedings before a court with its approval; visits to jails and other institutions of detention; review of constitutional and legal safeguards; review of the factors, including terrorism, that inhibit the enjoyment of rights; study of treaties; research; human rights literacy; and encouragement of non-governmental organisations.

Powers, section 13. While inquiring, the Commission has all the powers of a civil court trying a suit in respect of summoning and enforcing attendance, discovery and production of documents, receiving evidence on affidavits, requisitioning public records and issuing commissions; every proceeding is a judicial proceeding within sections 193 and 228 of the Indian Penal Code, now sections 229 and 267 of the Bharatiya Nyaya Sanhita.

Steps after inquiry, section 18. It may recommend payment of compensation or damages, the initiation of prosecution or other action against the public servant, and interim relief at any stage, and it may approach the Supreme Court or the High Court for such directions, orders or writs as that Court may deem necessary.

For full marks, cover: the facts and dates, the three holdings, the phrase the case is famous for, and its later influence.

Corfu Channel case (United Kingdom v. Albania) (1949) was the first contentious case decided by the International Court of Justice.

Facts. On 22 October 1946 two British destroyers, HMS Saumarez and HMS Volage, struck mines while passing through the North Corfu Channel in Albanian territorial waters. Forty-four sailors were killed and forty-two injured. On 12 and 13 November 1946 the Royal Navy swept the channel without Albania's consent, in Operation Retail, and recovered German-made moored contact mines.

Three holdings.

Conclusion. The case matters far outside the law of the sea. Its statement that a State must not knowingly allow its territory to be used for acts contrary to the rights of other States became the foundation of transboundary environmental responsibility, taken up in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration; and its refusal of forcible self-help anticipated the settled reading of Article 2(4) of the Charter. Albania paid the assessed damages of 843,947 pounds only in 1996, forty-seven years later.

Article 4 is distinctive: the right to life is protected "in general, from the moment of conception", and the death penalty is heavily restricted, being unavailable for political offences, for persons under eighteen or over seventy or for pregnant women, and incapable of being re-established once abolished.

Two organs. The Inter-American Commission on Human Rights, seven members, at Washington D.C.: under Article 44 any person, group of persons or non-governmental entity legally recognised in a member State may lodge a petition, which is wider standing than any other system allows. The Commission examines admissibility, seeks a friendly settlement and reports. The Inter-American Court of Human Rights, seven judges, at San Jose: it has contentious jurisdiction only over States that have accepted it and a case reaches it only on reference by the Commission or by a State party, never directly from the individual (Article 61). It also has a wide advisory jurisdiction under Article 64.

Protocols. The Protocol of San Salvador, 1988, on economic, social and cultural rights, and the Protocol of 1990 on the abolition of the death penalty.

For full marks, cover: the founding and the constitutional documents, the tripartite structure, the three organs, the instruments and the eight fundamental conventions, the supervisory machinery, and India's position.

The International Labour Organization was created in 1919 by Part XIII of the Treaty of Versailles as an autonomous body associated with the League of Nations, and became the first specialised agency of the United Nations in 1946. Its headquarters are at Geneva. Its purposes were restated in the Declaration of Philadelphia, 1944, now annexed to its Constitution, whose first principle is that labour is not a commodity and whose Preamble states that universal and lasting peace can be established only if it is based upon social justice. It received the Nobel Peace Prize in 1969.

Its distinguishing feature is tripartism. It is the only United Nations agency in which governments, employers and workers are all represented as of right, in the ratio 2:1:1. Each member State sends four delegates to the Conference, two from government, one from employers and one from workers, and each votes independently.

Supervision is by the Committee of Experts on the Application of Conventions and Recommendations, which examines the reports States must file under Article 22, and by two complaint procedures: representations by an industrial association under Article 24 and complaints by a member State or a Conference delegate under Article 26, which may lead to a Commission of Inquiry.

India is a founder member and has ratified six of the ten fundamental conventions, including Nos. 29 and 105 on forced labour, Nos. 100 and 111 on equal remuneration and discrimination, and, in 2017, Nos. 138 and 182 on child labour. It has not ratified Nos. 87 and 98 on freedom of association and collective bargaining, because of restrictions on the unionisation of government servants.

Conclusion. The ILO's importance to a human rights paper is that it built the machinery of international supervision a generation before the human rights treaties did, and that its subject matter, work, is where economic and social rights are actually enforced. Its influence on Indian law is direct and continuing: Convention No. 100 on equal remuneration produced the Equal Remuneration Act, 1976, now Chapter II of the Code on Wages, 2019, and the four labour codes that came into force on 21 November 2025 are drafted with the ILO standards in view.

(2) What are your suggestions to improve the condition of laborers.

(1) The rights violated.

The right to livelihood, Article 21. Olga Tellis v. Bombay Municipal Corporation (1985): the right to life includes the right to livelihood, because if the right to livelihood is not treated as part of the right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood.

The right to food, Article 21. People's Union for Civil Liberties v. Union of India, the right to food case, converted the food schemes into enforceable entitlements from 2001 onwards, and the National Food Security Act, 2013 now gives a legal right to subsidised foodgrain to priority households. Deaths from starvation are the plainest breach of Article 21 there can be: Kishen Pattnayak v. State of Orissa (1989).

Immediate relief: priority household ration cards and free grain under the National Food Security Act; supplementary nutrition through the Integrated Child Development Services and midday meals; and interim relief recommended by the National Human Rights Commission under section 18(c) of the Protection of Human Rights Act, 1993, which the Commission has in fact done for closed tea gardens.

Recovery of dues: attachment and sale of the estate's assets to pay wages, provident fund and gratuity, workers' claims ranking as preferential.

Employment: one hundred days of guaranteed wage employment per household under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005; skill training and alternative work; and takeover or lease of abandoned gardens for management by workers' cooperatives or by the State, which is what Assam and West Bengal have done in practice.

Regulation: strict enforcement of the requirement of prior permission for closure, prosecution of managements which abandon estates, and regular inspection of housing, water and medical facilities.

Legal remedies: a public interest petition under Article 32 or 226, and a complaint to the NHRC or the State Human Rights Commission, which may act suo motu under section 12(a).

(1) The results under international law.

Breach of a binding agreement. The line of control rests on the Karachi Agreement, 27 July 1949, the Simla Agreement, 2 July 1972, whose paragraph 4(ii) obliges both sides to respect the line of control, and the ceasefire understanding of 25 November 2003, reaffirmed in the joint statement of the Directors General of Military Operations of 25 February 2021. A ceasefire agreement is a treaty or an international engagement and pacta sunt servanda applies.

Self-defence under Article 51 of the Charter if an armed attack occurs, subject to necessity, proportionality and immediacy and to the duty to report immediately to the Security Council. The Caroline formula of 1837 supplies the classical test.

Cessation, assurances of non-repetition and reparation under the law of State responsibility, and countermeasures under Articles 49 to 54, which must be proportionate, temporary, reversible so far as possible and not involve the use of force.

Diplomatic protest, a demarche, summoning of the High Commissioner, and use of the DGMO hotline and the flag meeting mechanism.

Reference to the Security Council under Article 35, or to the General Assembly.

Peaceful settlement under Article 33, though the judicial route is closed in practice: India's declaration under Article 36(2) of the Statute excludes disputes with Commonwealth States and disputes relating to hostilities, self-defence and matters within domestic jurisdiction, and the Court accordingly held it had no jurisdiction in the Aerial Incident of 10 August 1999 (Pakistan v. India) (2000).

(2) Write any two provisions which were inserted in the Indian constitution as an impact of Stockholm conference.

(1) Two major suggestions of the Stockholm Conference.

The United Nations Conference on the Human Environment met at Stockholm from 5 to 16 June 1972, the first world conference on the environment; 5 June is now World Environment Day. It adopted a Declaration of 26 Principles, an Action Plan of 109 recommendations and a resolution on institutional and financial arrangements. Two of its major suggestions are:

(2) Two provisions inserted in the Constitution as an impact of Stockholm.

Both were inserted by the Constitution (Forty-second Amendment) Act, 1976.

Article 48A, a Directive Principle: the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.

Article 51A(g), a Fundamental Duty: it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

The same amendment moved forests and protection of wild animals and birds from the State List to the Concurrent List, entries 17A and 17B, which enabled Parliament to legislate for the whole country.

Classification. Law-making treaties (traites-lois), multilateral and general in effect, such as the Charter, the Geneva Conventions and UNCLOS; and treaty-contracts (traites-contrats), bilateral bargains binding only the parties. By the number of parties, bilateral, plurilateral and multilateral. The binding force of all of them rests on Article 26, pacta sunt servanda: every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 27 adds that a party may not invoke the provisions of its internal law as justification for its failure to perform.

II. Reservations

Article 2(1)(d) defines a reservation as a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.

The rule, Article 19. A State may formulate a reservation unless the treaty prohibits reservations, or permits only specified reservations which do not include the one in question, or the reservation is incompatible with the object and purpose of the treaty.

Distinguish an interpretative declaration, which states how the declaring State understands a provision without purporting to exclude or modify its effect. India's statements on Articles 5(a) and 16(1) of CEDAW are declarations; its statement on Article 29(1) is a reservation.

III. The stages of a treaty

(1) Accrediting of representatives and full powers. Article 7: a person is considered as representing a State if he produces appropriate full powers, or if the practice of the States concerned shows such an intention. Heads of State, Heads of Government and Ministers for Foreign Affairs need no full powers for any act relating to the conclusion of a treaty; heads of diplomatic missions and accredited representatives to a conference need none for adopting the text.

(2) Negotiation and adoption of the text. Article 9: adoption at an international conference takes place by the vote of two thirds of the States present and voting, unless they decide otherwise by the same majority.

(3) Authentication. Article 10: by the procedure provided in the text or agreed, or failing that by signature, signature ad referendum or initialling of the text or of the final act of the conference.

(7) Registration and publication. Article 102 of the Charter requires every treaty entered into by a member to be registered with the Secretariat and published by it, and provides that a party to an unregistered treaty may not invoke it before any organ of the United Nations, which includes the International Court. Article 80 of the Vienna Convention says the same.

(8) Incorporation into national law, where the constitution requires it. India is dualist for treaties: Article 253 empowers Parliament to make any law for implementing any treaty or international convention, and until it does, a treaty is not enforceable by a court, though the executive may conclude it under Article 73.

Termination and invalidity, in outline. A treaty ends in accordance with its own provisions or by consent (Articles 54 and 57); by material breach (Article 60); by supervening impossibility of performance (Article 61); by fundamental change of circumstances, rebus sic stantibus (Article 62); or by the emergence of a new peremptory norm (Article 64). It is void for coercion of a representative or of a State (Articles 51 and 52), for conflict with jus cogens (Article 53), and voidable for error, fraud or corruption (Articles 48 to 50).

For full marks, cover: the obligation and its sources, the division into amicable and compulsive or judicial methods, each method defined with an example, the machinery of the United Nations, and a closing assessment.

I. The obligation

Article 2(3) of the Charter obliges all Members to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Article 33(1) requires the parties to any dispute the continuance of which is likely to endanger international peace and security first of all to seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The Hague Conventions for the Pacific Settlement of International Disputes, 1899 and 1907, and the Manila Declaration, 1982, are the other principal instruments.

Mediation. The third party takes part in the negotiations and puts forward its own proposals, which are advisory only. Article 3 of the Hague Convention of 1907 provides that the offer of good offices or mediation is never to be regarded as an unfriendly act, and Article 6 that it has exclusively the character of advice. The Soviet Union mediated at Tashkent in 1966 between India and Pakistan, and the World Bank mediated the Indus Waters Treaty, 1960.

Enquiry or fact-finding. A commission of enquiry ascertains the disputed facts, without pronouncing on liability, in the hope that agreement on the facts will produce agreement on the dispute. The Dogger Bank incident of 1904 between Britain and Russia is the classic instance.

Conciliation. A commission examines the dispute as a whole and proposes terms of settlement in a formal report; the parties are free to accept or reject it. It combines enquiry and mediation and is provided for in Annex V of UNCLOS and in Article 66 of the Vienna Convention on the Law of Treaties.

Settlement under the auspices of the United Nations or of regional agencies, dealt with below.

Judicial settlement. Decision by a permanent court applying international law. The principal organ is the International Court of Justice, established by the Charter as the principal judicial organ of the United Nations, with fifteen judges elected for nine years by the General Assembly and the Security Council voting separately, sitting at the Peace Palace, The Hague.

Its contentious jurisdiction rests entirely on consent, expressed in three ways: a special agreement referring an existing dispute; a compromissory clause in a treaty; or a declaration under the optional clause, Article 36(2), accepting the jurisdiction as compulsory in relation to any other State accepting the same obligation, which operates on the basis of reciprocity and may be made subject to reservations. Only States may be parties (Article 34). Judgments are final and without appeal (Article 60) and bind only the parties and only in that case (Article 59); Article 94 of the Charter obliges each Member to comply, and allows the other party to have recourse to the Security Council.

The Security Council may under Chapter VI call on the parties to settle their dispute by the means in Article 33, may investigate any dispute under Article 34, and may recommend appropriate procedures or terms of settlement under Articles 36 and 37. Under Chapter VII it may, having determined the existence of a threat to the peace, decide on measures not involving the use of armed force (Article 41) or authorise force (Article 42). The General Assembly may discuss and recommend under Articles 10 to 14, and under the Uniting for Peace resolution, 377(V) of 1950, may act where the Council is paralysed by the veto; since Resolution 76/262 of 26 April 2022 the Assembly meets automatically within ten working days whenever a veto is cast. The Secretary-General may under Article 99 bring to the Council's attention any matter which in his opinion may threaten international peace and security, and in practice conducts quiet diplomacy. Chapter VIII, Articles 52 to 54, encourages settlement through regional arrangements, such as the African Union, the Organization of American States and the European Union, before reference to the Council.

For full marks, cover: what an NGO is and its recognition in international law, the specific functions it performs for women in India, the litigation route with the leading cases, the legislation NGOs have produced, the statutory roles they now occupy, the criticisms and regulation, and a conclusion.

I. What an NGO is, and its place in international law

A non-governmental organisation is a voluntary, non-profit body independent of government, formed to pursue a public purpose. Article 71 of the Charter authorises the Economic and Social Council to make suitable arrangements for consultation with non-governmental organisations, which is the foundation of their formal status in the United Nations system; over five thousand hold consultative status. They have no standing before the International Court, but the Inter-American Commission accepts petitions from any non-governmental entity under Article 44 of the American Convention, and the CEDAW Committee receives shadow reports from NGOs alongside the official State reports.

II. What they do for women in India

Other examples: Sheela Barse v. State of Maharashtra (1983), on the custodial treatment of women prisoners, brought by a journalist and activist; Gaurav Jain v. Union of India (1997), on the children of prostitutes; Laxmi v. Union of India (2014), on acid attacks, which produced the regulation of the sale of acid and a compensation scheme; Independent Thought v. Union of India (2017), brought by a child rights NGO, which read down the marital rape exception so far as it applied to a wife between fifteen and eighteen; and Joseph Shine v. Union of India (2018) and Indian Young Lawyers Association v. State of Kerala (2018) on adultery and on Sabarimala.

Legislative advocacy. The Protection of Women from Domestic Violence Act, 2005 was drafted after years of campaigning by the Lawyers Collective and women's organisations, and the definition in section 3 reflects that drafting. The Criminal Law (Amendment) Act, 2013 followed the report of the Justice J. S. Verma Committee, which received some eighty thousand submissions, most of them channelled through civil society. The campaign against dowry produced the amendments of 1983 and 1986 introducing section 498A and section 304B of the Indian Penal Code, now sections 85 and 80 of the Bharatiya Nyaya Sanhita, 2023.

Statutory roles. NGOs are written into the law: section 10 of the Protection of Women from Domestic Violence Act, 2005, allows a service provider registered under section 10 to record a domestic incident report and assist the aggrieved person; the Juvenile Justice Act, 2015 relies on registered institutions; the Immoral Traffic (Prevention) Act, 1956 and the anti-trafficking machinery involve them in rescue; and section 12(i) of the Protection of Human Rights Act, 1993 makes it a function of the NHRC to encourage the efforts of non-governmental organisations working in the field of human rights.

III. Criticism and regulation

The standing criticisms are dependence on foreign funding and the accountability that follows from it, uneven quality, urban concentration, duplication of effort and, in some cases, the substitution of advocacy for the State's own responsibility. Regulation is by the Foreign Contribution (Regulation) Act, 2010, tightened by amendment in 2020, which requires registration, prohibits sub-granting and caps administrative expenditure; several organisations have lost registration under it, and the balance between regulation and the freedom of association under Article 19(1)(c) is contested.

For full marks, cover: the definition with the statutory Indian definition, the characteristics and the three generations, then the Charter provisions, the International Bill of Rights, the treaty bodies, the Charter based organs including the Human Rights Council and its mechanisms, the High Commissioner, the specialised agencies and enforcement, and a candid assessment.

I. What human rights are

Definition. Human rights are those rights which belong to every human being by virtue of being human, irrespective of race, colour, sex, language, religion, nationality, birth or other status, and which are considered essential to life with dignity. D. D. Basu: human rights are those minimal rights which every individual must have against the State or other public authority by virtue of his being a member of the human family, irrespective of any other consideration.

(1) The Charter, 1945. The Preamble reaffirms faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women. Article 1(3) makes it a purpose of the Organization to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction. Articles 13(1)(b), 55 and 56 oblige Members to take joint and separate action for that purpose, Article 62(2) empowers ECOSOC to make recommendations, Article 68 required it to set up a commission for the promotion of human rights, and Article 76 deals with the trusteeship system. Against these stands Article 2(7), the domestic jurisdiction clause, which was the great obstacle in the early years and which has been steadily narrowed.

(2) The International Bill of Human Rights. The Universal Declaration, 10 December 1948, adopted 48 to nil with 8 abstentions, 30 articles, not binding as such but now largely customary; the ICCPR and the ICESCR, both adopted 16 December 1966 and in force in 1976, with the First Optional Protocol to the ICCPR providing an individual complaint procedure and the Second aiming at abolition of the death penalty. India ratified both Covenants on 10 April 1979 and has ratified neither Optional Protocol to the ICCPR, so an individual in India cannot complain to the Human Rights Committee.

(5) The Office of the High Commissioner for Human Rights, created by General Assembly Resolution 48/141 of 20 December 1993 on the recommendation of the Vienna Conference, is the principal official with responsibility for human rights across the system.

(6) The General Assembly and the Security Council. The Assembly adopts the treaties and declarations and may discuss and recommend. The Security Council has increasingly treated gross violations as a threat to international peace and security under Chapter VII, imposing sanctions (Rhodesia, South Africa), establishing the ad hoc tribunals for the former Yugoslavia (1993) and Rwanda (1994), referring situations to the International Criminal Court (Darfur in 2005, Libya in 2011), and authorising force to protect civilians. The responsibility to protect, endorsed in the 2005 World Summit Outcome, is the doctrinal expression of this.

(7) Specialised agencies and other bodies. The ILO for labour rights, UNESCO for education and culture, the WHO for health, UNICEF for children, UNHCR for refugees, UN Women, and the International Court of Justice, which has decided human rights questions in Genocide Convention (1951 and 2007), Barcelona Traction (1970) on obligations erga omnes, Namibia (1971) and the Wall advisory opinion (2004).

For full marks, cover: what a source is and the formal and material distinction, Article 38(1) clause by clause with cases, Article 38(2), then the sources the Statute does not name, and the question of hierarchy.

I. What is meant by a source

A source is the process by which a rule becomes legally binding. It is distinguished from the material source, which is the place where the content of the rule is found or the evidence of it, such as a resolution of the General Assembly, a draft of the International Law Commission, a treatise or a diplomatic correspondence. A resolution can therefore be material evidence of a rule whose formal source is custom.

The accepted statement of the sources is Article 38(1) of the Statute of the International Court of Justice, which is not in terms a list of sources but a direction to the Court on the law it is to apply; it is universally treated as authoritative because the Statute is annexed to the Charter and every member of the United Nations is a party to it.

II. Article 38(1), clause by clause

Two elements. The material element, State practice, must be general, uniform and consistent; the practice includes diplomatic correspondence, policy statements, legislation, decisions of national courts and the conduct of States in international organisations. The North Sea Continental Shelf cases (1969) held that no particular duration is required if practice is extensive and virtually uniform and includes that of the States whose interests are specially affected. In Asylum (1950) and the Right of Passage over Indian Territory (1960) the Court accepted that a custom may be regional or even bilateral, though in the first it found the alleged Latin American custom too uncertain.

The psychological element, opinio juris sive necessitatis, is the belief that the practice is legally obligatory: the Lotus case (1927), North Sea Continental Shelf (1969), Nicaragua (1986).

The persistent objector rule, from the Anglo-Norwegian Fisheries case (1951), is that a State which has objected consistently from the formative stage of the rule is not bound by it.

(c) The general principles of law recognised by civilised nations.

These are subsidiary and evidentiary, not law-creating. Article 59 provides that a decision of the Court has no binding force except between the parties and in respect of that particular case, so there is no doctrine of stare decisis, though the Court follows its own reasoning closely in practice. "Judicial decisions" covers arbitral awards, such as Island of Palmas (1928) and the Alabama Claims (1872), decisions of other international tribunals, and decisions of national courts as evidence of State practice. The writings of jurists such as Grotius, Vattel, Oppenheim and Starke were of the first importance when the law was young and are now of diminished but real weight; the Court cites the International Law Commission far more often than any individual author.

III. Article 38(2)

The Article does not prejudice the power of the Court to decide a case ex aequo et bono if the parties agree, that is, according to what is fair and good rather than according to law. No case has ever been decided on that basis, and it is not to be confused with equity within the law, which the Court applies regularly, as in the delimitation cases where it seeks an equitable result.

IV. Sources the Statute does not name

The order in Article 38 is the order in which the Court looks, but it is not a strict hierarchy of validity, except that general principles are residual, filling gaps left by treaty and custom, and (d) is expressly subsidiary. Between treaty and custom of equal rank, the ordinary maxims apply, lex posterior derogat priori and lex specialis derogat generali, subject to two overrides: Article 103 of the Charter, and jus cogens, which prevails over everything.

Conclusion. International law has no legislature, so its sources are the two ways in which States can make law for themselves, agreement and practice, with general principles to fill the gaps and judicial decisions and writings to prove what the law is. Article 38(1) states that scheme accurately for 1920 and incompletely for today, because the century since has added binding decisions of organs, declaratory resolutions and unilateral undertakings, and has placed a category of peremptory norms above the consent on which the whole system otherwise rests. That last development is the most important, because it is the point at which international law ceased to be purely consensual.

The right has since been recognised expressly: the Human Rights Council in Resolution 48/13 of 8 October 2021 and the General Assembly in Resolution 76/300 of 28 July 2022 recognised the human right to a clean, healthy and sustainable environment. The African Charter, Article 24, and the Protocol of San Salvador, Article 11, had already contained it.

II. The constitutional provisions

The Constitution as enacted was silent. The Forty-second Amendment, 1976, passed in the wake of Stockholm, inserted Article 48A, directing the State to protect and improve the environment and to safeguard the forests and wild life of the country, and Article 51A(g), making it the fundamental duty of every citizen to protect and improve the natural environment and to have compassion for living creatures. Neither is enforceable of itself, Article 48A being a Directive Principle governed by Article 37 and Article 51A being unenforceable directly.

Parliament legislated: the Water Act, 1974, the Air Act, 1981 and the Environment (Protection) Act, 1986, the last expressly made under Article 253 to implement the decisions taken at Stockholm.

III. The construction of Article 21

Vellore Citizens Welfare Forum v. Union of India (1996) is the leading case. On the discharge of untreated effluent by tanneries in Tamil Nadu, the Court held that sustainable development, the precautionary principle and the polluter pays principle are part of the environmental law of the country, and that customary international law not contrary to municipal law is deemed incorporated into domestic law. The precautionary principle as stated there has three limbs, including that the onus of proof is on the actor or the developer to show that his action is environmentally benign.

Indian Council for Enviro-Legal Action v. Union of India (1996), the Bichhri case, applied polluter pays to make the polluting units bear the cost of remediation.

M. C. Mehta v. Kamal Nath (1997) applied the public trust doctrine: the State is the trustee of natural resources meant for public use, and cannot convert them to private ownership.

M. C. Mehta v. Union of India (1987), the oleum gas leak, laid down absolute liability, an absolute and non-delegable duty on an enterprise carrying on a hazardous activity, subject to none of the exceptions to Rylands v. Fletcher, with damages correlated to the magnitude and capacity of the enterprise.

V. The great continuing cases

In M. K. Ranjitsinh v. Union of India, decided 21 March 2024, the Supreme Court recognised a right to be free from the adverse effects of climate change, located in Articles 14 and 21, while modifying its earlier order restricting overhead transmission lines in the habitat of the Great Indian Bustard. It is the furthest extension of the right so far and links the Indian jurisprudence to Resolution 76/300 of the General Assembly.

Conclusion. The right to a healthy environment in India is a judicial creation built on three foundations: an unenforceable directive principle and fundamental duty, an enforceable right to life, and a procedural revolution in standing that let anyone bring the case. Its content is now settled, being clean air and water, a hygienic environment and, since 2024, protection from the adverse effects of climate change, and its principles are statutory in section 20 of the National Green Tribunal Act. The criticism, which a complete answer records, is that the Court has often gone beyond adjudication into administration, and that closure orders impose their heaviest costs on the workers of the industries closed. The reply is that Parliament and the executive were inactive for two decades, and that the Court has since transferred much of the work to a specialist tribunal.