BLS LLB 5 Years Sem 9 Public International Law and Human Rights 2018-19 Question Paper with Solutions

Pacta sunt servanda, "agreements must be kept", is the fundamental rule of the law of treaties, stated in Article 26 of the Vienna Convention on the Law of Treaties, 1969: every treaty in force is binding upon the parties to it and must be performed by them in good faith.

It is reinforced by Article 27, which provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty, and it appears in the Preamble to the Charter of the United Nations, in Article 2(2) of the Charter and in the Declaration on Friendly Relations, 1970.

The S.S. Lotus (France v. Turkey), Permanent Court of International Justice, 1927, arose from a collision on the high seas between the French steamer Lotus and the Turkish collier Boz-Kourt in which eight Turkish nationals died; Turkey tried and convicted the French officer of the watch when the Lotus reached Constantinople. The two issues were:

(1) Whether Turkey had acted in conflict with the principles of international law by exercising criminal jurisdiction over a French national for an act done on board a French ship on the high seas, and if so which principles.

(2) If so, what pecuniary reparation was due to Lieutenant Demons.

The objects, called Purposes, are in Article 1 of the Charter of the United Nations, signed at San Francisco on 26 June 1945 and in force from 24 October 1945. They are four:

(1) To maintain international peace and security, and to that end to take effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes.

(2) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.

(3) To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

(4) To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Human rights are the rights inherent in every human being by virtue of being human, which cannot be taken away, and which are essential to a life of dignity, freedom and equality, irrespective of nationality, race, sex, language, religion or any other status.

In Indian law the definition is statutory. Section 2(1)(d) of the Protection of Human Rights Act, 1993 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" meaning the ICCPR and the ICESCR of 1966.

Two rights of prisoners recognised in Indian law are:

The right not to be subjected to torture or to cruel, inhuman or degrading treatment, and to be treated with human dignity, under Article 21. A prisoner does not cease to be a person: Sunil Batra v. Delhi Administration (1978) held that solitary confinement may not be imposed merely because a prisoner is under sentence of death, and that bar fetters may not be used routinely; Prem Shankar Shukla v. Delhi Administration (1980) held that handcuffing is prima facie inhuman and may be used only where there is clear and present danger of escape, recorded in writing.

The right to free legal aid and to a speedy trial, under Article 21 read with Article 39A: M. H. Hoskot v. State of Maharashtra (1978) and Hussainara Khatoon v. State of Bihar (1979), which secured the release of thousands of undertrial prisoners who had been in custody longer than the maximum sentence for the offence charged.

Good offices: a third party brings the disputants together and provides a channel, without joining the negotiations. Example: the Treaty of Portsmouth, 1905.

Mediation: the third party joins the negotiations and offers its own proposals, which do not bind. Article 3 of the Hague Convention, 1907 provides that the offer is never to be regarded as an unfriendly act, and Article 6 that it has exclusively the character of advice. Examples: Tashkent, 1966; the Indus Waters Treaty, 1960.

Enquiry: a commission ascertains the disputed facts without pronouncing on liability, as in the Dogger Bank incident, 1904.

Conciliation: a commission examines the whole dispute and reports proposed terms of settlement, which the parties may accept or reject. Provided for in Annex V of UNCLOS.

Legal methods.

The Charter machinery. Under Chapter VI the Security Council may call on the parties to settle their dispute, investigate under Article 34, and recommend procedures or terms under Articles 36 and 37; under Chapter VII it may decide sanctions or authorise force. The General Assembly may recommend under Articles 10 to 14 and, under Uniting for Peace, Resolution 377(V) of 1950, may act when the Council is blocked; since Resolution 76/262 of 26 April 2022 it debates automatically within ten working days of any veto. The Secretary-General may bring a threatening matter to the Council under Article 99. Chapter VIII encourages settlement through regional arrangements first.

Conclusion. The Charter creates an obligation to settle peacefully but leaves the choice of means free, and that freedom is both the strength and the weakness of the system: the diplomatic methods can be used without anyone's consent to jurisdiction but bind nobody, and the judicial methods bind but cannot begin without consent. In practice negotiation settles most disputes, and adjudication matters less for the number of cases decided than for the fact that a State which refuses it must explain itself.

Albania was responsible and liable in damages. It was not proved that Albania laid the mines. Liability rested on knowledge and failure to warn: the minefield could not have been laid without Albania's knowledge, Albania kept a close watch on those waters, and it neither notified shipping nor warned the approaching warships. The duty flowed from "certain general and well recognised principles", namely elementary considerations of humanity, even more exacting in peace than in war, 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 passage of 22 October was innocent. In peacetime States may send warships through straits used for international navigation connecting two parts of the high seas without the previous authorisation of the coastal State, provided the passage is innocent; the coastal State may regulate but not prohibit it.

Operation Retail violated Albanian sovereignty. The Court rejected the plea of self-help: the alleged right of intervention is the manifestation of a policy of force which has given rise to the most serious abuses and cannot find a place in international law. The declaration to that effect was itself the satisfaction awarded.

For full marks, cover: the founding and the Preamble's definition of health, the objective and functions, the organs, the principal instruments, the link to the right to health, and the ICJ advisory opinion it did not get.

The World Health Organization was created by a Constitution adopted at the International Health Conference, New York, 22 July 1946, in force from 7 April 1948, now observed as World Health Day. It is a specialised agency of the United Nations with headquarters at Geneva and six regional offices, India belonging to the South-East Asia Region with its office at New Delhi. It has 194 member States.

The Preamble contains the two sentences the Organization is known for: health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity; and the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition. That is the first statement of a right to health in an international instrument, and it is the source of Article 12 of the ICESCR and of Article 25 of the Universal Declaration.

Principal instruments: the International Health Regulations (2005), binding on States and the legal basis for the declaration of a public health emergency of international concern; and the WHO Framework Convention on Tobacco Control, 2003, the first treaty negotiated under Article 19 of the Constitution, which India ratified in 2004 and implements through the Cigarettes and Other Tobacco Products Act, 2003.

Achievements: the eradication of smallpox, certified in 1980, the near eradication of poliomyelitis, with India certified polio free in 2014, the Expanded Programme on Immunization, and the Alma-Ata Declaration of 1978 on primary health care.

Conclusion. For a human rights paper the importance of the Organization is that its Constitution, three years before the Universal Declaration, declared health a fundamental right and defined it broadly enough to include social well-being, and that definition is what allows the right to health to be argued as more than a right to medical treatment. In India that right is enforced through Article 21: Consumer Education and Research Centre v. Union of India (1995) held that the right to health of a worker is a fundamental right, and Parmanand Katara v. Union of India (1989) that every doctor has a duty to give immediate medical aid to an injured person.

Methods. Independent fact finding missions and research; the annual report on the state of human rights, which is a standard reference; urgent action appeals, letter writing campaigns by its members on behalf of individuals, which is the technique it invented; public campaigns, such as those against the death penalty and for the Arms Trade Treaty; lobbying of governments and of United Nations bodies; and human rights education.

Standing. It holds consultative status with the Economic and Social Council under Article 71 of the Charter, and with UNESCO, the Council of Europe and the African Union, and it submits information to the treaty bodies and to the Universal Periodic Review of the Human Rights Council.

Recognition. It received the Nobel Peace Prize in 1977 for its campaign against torture and the United Nations Prize in the Field of Human Rights in 1978. Its work contributed to the adoption of the Convention against Torture, 1984 and to the establishment of the International Criminal Court.

Independence. It accepts no funding from governments for its research and campaigning, relying on membership dues and public donations, which is the source of its credibility.

For full marks, cover: the name and dates, the definition in Article 1, the substantive scheme, the Committee and the Optional Protocol, India's ratification with its declarations, and the Vishaka link.

The Convention on the Elimination of All Forms of Discrimination against Women was adopted by the General Assembly on 18 December 1979 and entered into force on 3 September 1981. It has 30 articles and is called 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 any field. The words "effect or purpose" bring indirect discrimination within the Convention.

India signed on 30 July 1980 and ratified on 9 July 1993, with declarations 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 a community without its initiative and consent; a declaration on Article 16(2) that compulsory registration of marriages is not practicable given India's size and diversity; and a reservation to Article 29(1), refusing reference of disputes to the International Court of Justice.

Conclusion. The Convention's practical importance in India is as an aid to the construction of the Constitution rather than as an enforceable code. In Vishaka v. State of Rajasthan (1997) the Supreme Court, finding no legislation on sexual harassment at the workplace, read CEDAW into Articles 14, 15, 19(1)(g) and 21 through Article 51(c), and laid down guidelines that governed for sixteen years until the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. That is the model: the treaty supplies the standard, Article 21 supplies the enforceability.

10(1)(a), to investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws, and to report annually to the Central Government on their working, with recommendations for effective implementation.

10(1)(c) and (d), to make recommendations for the effective implementation of those safeguards, and to review from time to time the existing provisions of the Constitution and other laws affecting women and to recommend amendments to meet any inadequacy or deficiency.

10(1)(e), to take up cases of violation of the provisions of the Constitution and of other laws with the appropriate authorities.

10(1)(f), to look into complaints and take suo motu notice of matters relating to deprivation of women's rights, non-implementation of laws enacted to protect women, and non-compliance of policy decisions and instructions aimed at mitigating hardship and ensuring welfare, and to take up the issues with the appropriate authorities.

10(1)(g), to call for special studies or investigations into specific problems arising out of discrimination and atrocities against women.

Conclusion. The Commission's structural weakness is the same as the National Human Rights Commission's and is worth stating plainly: it may investigate with the powers of a civil court, but its conclusions issue as recommendations which bind nobody, and its members are nominated by the Government whose conduct it is often examining. The demand for constitutional status, and for the power to summon compliance rather than to request it, is the standing reform proposal, and it is what a complete answer says at the end.

Give reason. (b) Enumerate the modes of acquisition and loss of territory by State.

(a) Will the Company succeed?

No, on these facts as the leading case decided them. The problem is West Rand Central Gold Mining Company Ltd. v. The King [1905] 2 K.B. 391. Gold belonging to the company was seized by the South African Republic shortly before the outbreak of the Boer War in 1899; the Republic was conquered and annexed by the British Crown in 1900; and the company petitioned of right to recover the gold or its value, arguing that a conquering State succeeds to the obligations of the conquered.

The King's Bench Division held that the company could not succeed. The reasoning has two limbs.

The modern law is not identical, and a complete answer says so. The Vienna Convention on Succession of States in respect of Treaties, 1978 and the Vienna Convention on Succession of States in respect of State Property, Archives and Debts, 1983 now govern, though the second is not in force; the modern tendency, and the practice on decolonisation, is to distinguish localised or "real" obligations attached to the territory, which pass, from personal obligations of the extinguished State, which do not. Acquisition of territory by conquest is itself now unlawful under Article 2(4) of the Charter and the Declaration on Friendly Relations, 1970, so the premise of West Rand could not lawfully recur.

(b) Modes of acquisition and loss of territory.

Acquisition is traditionally listed under five heads.

Occupation: the appropriation by a State of territory which is terra nullius, belonging to no one; it must be effective, that is, accompanied by the continuous and peaceful display of State authority, not merely by discovery. Island of Palmas (1928), Eastern Greenland (1933), Clipperton Island (1931).

Loss corresponds to acquisition: cession, conquest (historically), operation of nature or erosion, revolt or secession resulting in a new State, prescription, dereliction or abandonment, which requires both the physical abandonment and the intention to abandon, and grant of independence, which is the mode by which almost all the territory lost in the twentieth century was lost.

Conclusion. On the facts the company fails, because a State which annexes another by conquest does not automatically inherit its contractual liabilities, and because the rule contended for was not so widely accepted as to be part of English law. The wider lesson of West Rand is the one the case is set for: State succession is not a single rule but a set of distinctions, between treaties and debts, between localised and personal obligations, and between the modes by which the territory changed hands; and the mode on which the case turned, conquest, has itself since been outlawed.

Article 21, the right to life with human dignity, which in Bandhua Mukti Morcha v. Union of India (1984) was held to include for a child protection of health and strength and opportunities to develop in a healthy manner and in conditions of freedom and dignity.

Article 23, which prohibits begar and other similar forms of forced labour: the Court held that payment of less than the minimum wage amounts to forced labour, because a person driven by hunger and want has no real choice, and that a complaint of a breach of Article 23 may be made against the private contractor as well as the State, Article 23 being one of the few fundamental rights available against private persons.

Article 32 and standing: the Court confirmed the maintainability of a petition by an organisation acting pro bono publico on behalf of persons unable to approach the Court themselves, and held that a violation of a labour welfare statute in these circumstances gives rise to a fundamental rights claim.

Directive Principles: Article 39(e) and (f), that the tender age of children is not abused and that children are given opportunities to develop in conditions of freedom and dignity, and Article 45, now Article 21A, on education.

Public interest litigation is the principal contribution, made possible by relaxed standing under Articles 32 and 226: PUDR itself; Bandhua Mukti Morcha v. Union of India (1984 and 1997) on bonded labour and on the carpet industry; M. C. Mehta v. State of Tamil Nadu (1996), the Sivakasi match and fireworks case, in which the Court directed a Child Labour Rehabilitation-cum-Welfare Fund with a contribution of twenty thousand rupees from every offending employer and five thousand from the appropriate Government where an adult is not provided a job; Sheela Barse v. Union of India (1986) on children in jails; and Independent Thought v. Union of India (2017), which read down the marital rape exception in respect of a wife between fifteen and eighteen.

Rescue, rehabilitation and education, through bridge schools, shelters and repatriation of trafficked and bonded children, often with the district administration.

Legislative advocacy, which produced the Right to Education Act, 2009, the Protection of Children from Sexual Offences Act, 2012 and the amendment of 2016 to the child labour law.

(a) The landmark case.

The case referred to is Sunil Batra v. Delhi Administration (No. 2), (1980) 3 SCC 488. A convict in Tihar Jail wrote a letter to Justice Krishna Iyer complaining that a fellow prisoner, Prem Chand, had been tortured by a Head Warder who had driven a rod into his anus to extort money from his visiting relations. The Court treated the letter as a writ petition, converting it into habeas corpus proceedings, and this is the case which established that a letter from a prisoner may be entertained under Article 32 and that epistolary jurisdiction is available to those who cannot reach the court.

D. K. Basu v. State of West Bengal (1997), which laid down eleven requirements for arrest and detention, including a memo of arrest attested by a witness, information to a relative, medical examination every forty-eight hours in custody and the right to meet a lawyer during interrogation, and held that custodial torture is a naked violation of human dignity, with compensation payable under public law.

(b) Two rights of prisoners.

The right not to be tortured or subjected to cruel, inhuman or degrading treatment, and to be treated with dignity, under Article 21, with Article 10(1) of the ICCPR as its international counterpart. Prem Shankar Shukla v. Delhi Administration (1980) held that handcuffing is prima facie inhuman and may be resorted to only where there is clear and present danger of escape, to be recorded in writing.

The conditions are those in Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933: a permanent population, a defined territory, a government, and the capacity to enter into relations with other States. Modern practice adds a fifth in some contexts, the observance of human rights and the rule of law, which appeared in the European Community Guidelines on Recognition of 1991.

II. The theories

(1) The constitutive theory. Recognition creates statehood. Until it is recognised, an entity is not a subject of international law, whatever its factual attributes. Exponents: Hegel, Anzilotti, Holland and, in his earlier editions, Oppenheim.

Criticisms. If recognition creates the State, an unrecognised entity has no obligations either, which no State has ever accepted. It produces relativity of statehood, an entity being a State for some and not for others. It is contradicted by practice, since the United States dealt with the Soviet Union between 1917 and 1933 and with the People's Republic of China between 1949 and 1979 without recognising either as being outside the law. And Article 3 of the Montevideo Convention contradicts it in terms: the political existence of the State is independent of recognition by the other States.

Express and implied. Express recognition is by declaration, note or treaty. Implied recognition is inferred from conduct: the establishment of diplomatic relations, the issue of an exequatur to a consul, or the conclusion of a bilateral treaty. It is not implied by common membership of a multilateral treaty or of the United Nations, and States frequently say so expressly.

De facto and de jure. De facto recognition is provisional and revocable, given where an authority has effective control but its permanence or its willingness to honour international obligations is doubted. De jure recognition is full and final. Britain recognised the Soviet Government de facto in 1921 and de jure in 1924. In Luther v. Sagor (1921) the English Court of Appeal gave effect to Soviet nationalisation decrees once de jure recognition had been granted, and Bank of Ethiopia v. National Bank of Egypt (1937) held that for the purpose of giving effect to the acts of the recognised authority, de facto recognition has the same effect as de jure.

Conditional recognition, subject to an undertaking, as at the Congress of Berlin, 1878. Collective recognition, through admission to an international organisation. Premature recognition of a seceding entity while the parent State still contests it is an unlawful intervention.

IV. Legal effects

A State survives a change of government, so a revolution raises a question about the government, not the State. The tests are effective control over most of the territory with the habitual obedience of the bulk of the population, a reasonable prospect of permanence, and the willingness and capacity to discharge international obligations. Many States have abandoned the practice: the Estrada doctrine (Mexico, 1930) and the British statement of policy in 1980 hold that recognition of governments implies approval, and that States should simply decide whether to deal with a new regime.

There is a duty not to recognise situations produced by the unlawful use of force. The Stimson doctrine of 1932 was applied to Manchukuo; it is now Article 41(2) of the Articles on State Responsibility, obliging States not to recognise as lawful a situation created by a serious breach of a peremptory norm, and the International Court applied it in the Namibia advisory opinion (1971) and in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004).

For full marks, cover: the history and the character of the Convention, then each maritime zone with its breadth and the rights in it, the regime of the Area, the institutions, dispute settlement, and India's position.

I. History and character

The United Nations Convention on the Law of the Sea was adopted at Montego Bay, Jamaica on 10 December 1982 at the close of the Third United Nations Conference on the Law of the Sea, which had sat from 1973, and entered into force on 16 November 1994. It has 320 articles and nine annexes and is called the constitution for the oceans. It replaced the four Geneva Conventions of 1958, which had failed to agree the breadth of the territorial sea. Part XI on the deep seabed was modified by the Implementation Agreement of 1994 to secure the participation of the industrialised States; the United States has still not ratified.

II. The zones

Contiguous zone, Article 33: up to 24 nautical miles from the baseline, in which the coastal State may exercise the control necessary to prevent and punish infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea.

Exclusive economic zone, Articles 55 to 75: up to 200 nautical miles. The coastal State has sovereign rights for exploring, exploiting, conserving and managing the natural resources, living and non-living, of the waters, seabed and subsoil, and jurisdiction over artificial islands, marine scientific research and protection of the environment. Other States retain the freedoms of navigation, overflight and the laying of cables and pipelines. Article 62 obliges the coastal State to give other States access to any surplus of the allowable catch, with Articles 69 and 70 preferring land-locked and geographically disadvantaged States of the region.

High seas, Articles 86 to 120: all parts of the sea not included in the exclusive economic zone, the territorial sea, internal waters or archipelagic waters. No State may subject any part of them to its sovereignty (Article 89). The freedoms in Article 87 are navigation, overflight, laying of cables and pipelines, construction of artificial islands, fishing and scientific research, to be exercised with due regard for the interests of others. The order rests on Article 92, exclusive flag State jurisdiction, with a genuine link required by Article 91. The exceptions are piracy (Articles 100 to 107), the right of visit (Article 110), hot pursuit (Article 111), the slave trade (99), drug traffic (108) and unauthorised broadcasting (109), and the duty to render assistance (98). Article 97 gives penal jurisdiction over a collision exclusively to the flag State or the State of nationality, reversing the Lotus case.

Straits used for international navigation, Articles 34 to 45: the regime of transit passage, which unlike innocent passage cannot be suspended and permits submerged transit by submarines and overflight by aircraft.

Archipelagic States, Articles 46 to 54: may draw archipelagic baselines joining the outermost points of the outermost islands, subject to a water to land ratio between 1:1 and 9:1; within the archipelagic waters other States have the right of archipelagic sea lanes passage.

Settlement is compulsory and produces a binding decision. Under Article 287 a State chooses among the International Tribunal for the Law of the Sea at Hamburg, the International Court of Justice, arbitration under Annex VII or special arbitration under Annex VIII; where the parties have not chosen the same forum, Annex VII arbitration is the default. Article 297 and 298 exclude or allow States to exclude certain categories, including maritime boundary delimitation, military activities and law enforcement in the exclusive economic zone. The Tribunal also has an exclusive jurisdiction over prompt release of vessels and crews under Article 292.

VI. India

India signed in 1982 and ratified on 29 June 1995. Its domestic legislation is the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, which had already declared a 12 mile territorial sea, a 24 mile contiguous zone and a 200 mile exclusive economic zone. India settled its maritime boundary with Bangladesh in the Bay of Bengal by arbitration under Annex VII in 2014 and accepted the award, which is a useful example of the dispute settlement machinery working.

For full marks, cover: the meaning of a source and the formal and material distinction, Article 38(1) clause by clause with authority, Article 38(2), the sources not named in the Statute, and hierarchy.

I. Meaning

A formal source is the process which makes a rule binding; a material source is the evidence of the content of the rule. The authoritative statement of the formal sources is Article 38(1) of the Statute of the International Court of Justice, which directs the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, to apply four things.

II. Article 38(1)

(a) International conventions, whether general or particular, establishing rules expressly recognised by the contesting States.

The material element, State practice: the conduct of States in their diplomatic correspondence, policy statements, legislation, executive practice, decisions of national courts and votes in international organisations. It must be general, consistent and uniform, though the North Sea Continental Shelf cases (1969) held that no particular period of time is required if the practice is extensive and virtually uniform and includes that of the States whose interests are specially affected. In Asylum (Colombia v. Peru) (1950) the Court accepted that custom may be regional, and in Right of Passage over Indian Territory (Portugal v. India) (1960) that a practice between only two States, continued over a long period and accepted as regulating their relations, can create a rule binding between them.

The psychological element, opinio juris sive necessitatis, the conviction that the practice is legally required. The Lotus case (1927) is the classic statement: abstention proves nothing unless it is based on the States being conscious of a duty to abstain. Nicaragua (1986) shows how it is proved, from resolutions accepted by States, official statements and the absence of protest.

The persistent objector: a State which has objected from the outset and consistently is not bound, Anglo-Norwegian Fisheries (1951).

Subsidiary and evidentiary only. Article 59 provides that a decision has no binding force except between the parties and in respect of that particular case, so there is no doctrine of precedent, though in practice the Court follows itself closely. "Judicial decisions" includes arbitral awards (Island of Palmas, 1928; Alabama Claims, 1872) and decisions of national courts as evidence of practice. The writings of Grotius, Vattel, Oppenheim, Brierly and Starke were formative and are now of reduced weight; the Court relies far more on the International Law Commission.

III. Article 38(2)

The Court may decide ex aequo et bono if the parties agree. No case has ever been so decided. It is different from equity within the law, which the Court applies regularly in maritime delimitation.

IV. What Article 38 does not name

Resolutions of the General Assembly, which are recommendations under Article 10 but may declare, crystallise or generate custom when adopted with near unanimity and treated as law: Resolution 1514 (1960) on decolonisation, Resolution 2625 (1970) on friendly relations, Resolution 1962 (1963) on outer space.

Conclusion. International law is made without a legislature, so its sources are the only two ways in which States can bind themselves, express agreement and settled practice accepted as law, with general principles to prevent a gap and judicial decisions and writings to prove what has been made. Article 38 was drafted in 1920 and describes that accurately, but it is no longer complete: binding decisions of organs, declaratory resolutions and unilateral undertakings all now produce obligation, and jus cogens has placed a small class of norms above the consent on which everything else depends.

The two documents were drafted at the same moment and the Constituent Assembly had the draft Declaration before it; Dr Ambedkar and others referred to it in debate.

II. The structural correspondence

The Declaration keeps civil and political rights and economic and social rights in one instrument, of equal status. The Constitution divides them: the civil and political rights of the Declaration appear as enforceable Fundamental Rights in Part III, and the economic, social and cultural rights of Articles 22 to 27 of the Declaration appear as unenforceable Directive Principles in Part IV. That single fact is the heart of the comparison.

III. Civil and political rights: Declaration and Part III

IV. Economic, social and cultural rights: Declaration and Part IV

V. Differences

What the Declaration has and the Constitution has not, as enforceable rights: the right to asylum (Article 14), the right to a nationality (Article 15), the right to social security and to an adequate standard of living (Articles 22 and 25) and the right to work (Article 23), all of which in India are either directive principles or nothing.

VI. The judicial bridge

The gap has been closed to a large extent by construction. Article 51(c) directs the State to foster respect for international law and treaty obligations, and the Supreme Court has held that an international convention consistent with the fundamental rights may be read into them where there is no contrary domestic law: Vishaka v. State of Rajasthan (1997), Apparel Export Promotion Council v. A. K. Chopra (1999). The Court has relied on the Declaration in Kesavananda Bharati (1973), Chairman, Railway Board v. Chandrima Das (2000), where it said the Declaration has the international recognition of a "Moral Code of Conduct" and applied Article 21 to a Bangladeshi national, and in the whole line of Article 21 cases from Maneka Gandhi v. Union of India (1978), which read into "procedure established by law" the requirement that it be right, just and fair, thereby importing due process in substance.

For full marks, cover: the statute, the definition it works with, composition after the 2019 amendment, appointment, tenure and removal, functions, powers of inquiry, the steps after inquiry, the two limitations, the State Commissions and Human Rights Courts, and an assessment.

I. The statute

The Protection of Human Rights Act, 1993, Act 10 of 1994, deemed to have come into force on 28 September 1993, constitutes the National Human Rights Commission by section 3. It was enacted in the light of the Paris Principles relating to the Status of National Institutions, endorsed by the General Assembly in 1993.

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; section 2(1)(f) defines "International Covenants" as the ICCPR and the ICESCR.

II. Composition, section 3, as amended in 2019

The Commission consists of:

Section 4: appointment by the President by warrant under his hand and seal on the recommendation of a committee consisting of the Prime Minister as Chairperson, the Speaker of the House of the People, the Minister in charge of the Ministry of Home Affairs, the Leader of the Opposition in the House of the People, the Leader of the Opposition in the Council of States and the Deputy Chairman of the Council of States. A sitting Judge of the Supreme Court or a sitting Chief Justice of a High Court may be appointed only after consultation with the Chief Justice of India.

Section 6, as amended in 2019: the term is three years from the date of entering office or until the age of seventy, whichever is earlier, with eligibility for reappointment. On ceasing to hold office, the Chairperson or a Member is ineligible for further employment under the Government of India or any State Government.

Section 5: removal by the President only on the ground of proved misbehaviour or incapacity, after a reference to the Supreme Court and an inquiry by it; and summarily on the grounds of insolvency, paid employment outside the duties of the office, unsoundness of mind or conviction of an offence involving moral turpitude.

IV. Functions, section 12

Section 13: while inquiring, the Commission has all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, in respect of summoning and enforcing attendance and examining on oath, discovery and production of documents, receiving evidence on affidavits, requisitioning any public record from any court or office, and issuing commissions for the examination of witnesses or documents. It may require information from any Government, and may enter any building to seize documents after recording reasons. Every proceeding is a judicial proceeding within the meaning of the provisions on false evidence.

Section 14: it may use the services of any officer or investigation agency of the Central or a State Government. Section 17: procedure on complaints, including calling for information from the Government within a stated time.

VI. Steps during and after inquiry, section 18

Section 21: a State Government may constitute a State Human Rights Commission, consisting since the amendment of a Chairperson who has been Chief Justice or a Judge of a High Court, one Member who is or has been a Judge of a High Court or a District Judge with at least seven years' experience as District Judge, and one Member with knowledge or practical experience of human rights. It may inquire only into matters relatable to entries in List II and List III of the Seventh Schedule. Section 30: the State Government, with the concurrence of the Chief Justice of the High Court, may specify a Court of Session in each district as a Human Rights Court for the speedy trial of offences arising out of violation of human rights, with a Special Public Prosecutor under section 31.

For full marks, cover: the international origin, the constitutional provisions and the amendment that inserted them, the construction of Article 21 with the leading cases, the principles received into Indian law, the great continuing cases, the institutions, and the climate judgment of 2024.

I. International origin

Principle 1 of the Stockholm Declaration, 1972: man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being. Principle 21 adds the duty not to cause damage to the environment of other States or of areas beyond national jurisdiction, a rule confirmed as customary in the Nuclear Weapons advisory opinion (1996). The Rio Declaration, 1992 restated both and added the precautionary approach (Principle 15) and the polluter pays principle (Principle 16). The right was recognised expressly by the Human Rights Council in Resolution 48/13 of 8 October 2021 and by the General Assembly in Resolution 76/300 of 28 July 2022, as the human right to a clean, healthy and sustainable environment.

Subhash Kumar v. State of Bihar (1991) is the case for the proposition: the right to life includes the right of enjoyment of pollution free water and air, and a citizen may move the Court under Article 32 to remove the pollution.

Virender Gaur v. State of Haryana (1995): Article 21 protects the right to a hygienic environment, Articles 48A and 51A(g) being read into it.

M. C. Mehta v. Union of India (1987), the oleum gas leak case, laid down absolute liability: an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community, is liable for the harm resulting from the activity with none of the exceptions to Rylands v. Fletcher, and the damages must be correlated to the magnitude and capacity of the enterprise so as to have a deterrent effect.

IV. The principles received

Vellore Citizens Welfare Forum v. Union of India (1996), on tanneries in Tamil Nadu, held that sustainable development, the precautionary principle and the polluter pays principle are part of the environmental law of India, and that customary international law not contrary to municipal law is deemed incorporated into domestic law. Under the precautionary principle the onus is on the developer to show that his action is environmentally benign.

The demand for specialised adjudication produced the National Environment Tribunal Act, 1995, the National Environment Appellate Authority Act, 1997 and the National Green Tribunal Act, 2010, whose section 20 requires the Tribunal to apply sustainable development, the precautionary principle and the polluter pays principle, so that judge-made doctrine is now statute. The rule in the oleum gas leak case was given statutory form in the Public Liability Insurance Act, 1991.

VII. The climate right

M. K. Ranjitsinh v. Union of India, 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 restriction on overhead transmission lines in the Great Indian Bustard's habitat. It is the furthest reach of the doctrine and connects the Indian position to General Assembly Resolution 76/300.

Law-making treaties (traites-lois) are multilateral treaties which lay down general rules of conduct for a large number of States, and which are therefore a direct source of international law; examples are the Charter of the United Nations, the Geneva Conventions of 1949, the Vienna Convention on the Law of Treaties, 1969 and UNCLOS 1982.

Treaty-contracts (traites-contrats) are agreements, usually bilateral, by which two or a few States settle a particular matter between themselves; they create rights and obligations only for the parties and are not in themselves a source of general law. Examples are an extradition treaty, a boundary agreement or a trade agreement.

Pacta sunt servanda, "agreements must be kept", is stated in Article 26 of the Vienna Convention on the Law of Treaties, 1969: every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27 completes it: a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. The principle also appears in the Preamble and in Article 2(2) of the Charter of the United Nations.

Justice K. S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, was decided by a bench of nine judges on 24 August 2017. Two issues decided in it are:

(1) Whether the right to privacy is a fundamental right. The Court held unanimously that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III, and it overruled M. P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1962) to the extent that they held there was no such right.

(2) What test governs an invasion of privacy. The Court laid down the three-fold requirement: there must be legality, that is, the existence of a law; a legitimate State aim; and proportionality, a rational nexus between the object and the means adopted to achieve it. A fourth element, procedural safeguards against abuse, was added in the later Aadhaar judgment.

Magna Carta, granted by King John at Runnymede on 15 June 1215, is important because it is the first written instrument to place a legal limit on the power of a sovereign, and so is treated as the historical origin of the rule of law, of constitutionalism and of the modern idea of human rights.

Its two operative clauses are clause 39, that no free man shall be taken, imprisoned, disseised, outlawed, 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.

A land-locked State is a State which has no sea coast, as defined by Article 124(1)(a) of UNCLOS 1982. There are about forty-four such States, including Nepal, Bhutan, Afghanistan, Switzerland, Austria, Bolivia, Paraguay, Zambia and Uganda.

Under Part X of UNCLOS, Articles 124 to 132, a land-locked State has the right of access to and from the sea and freedom of transit through the territory of transit States by all means of transport, the terms and modalities being agreed by bilateral, subregional or regional agreement; traffic in transit is not subject to customs duties or transit dues other than charges for services rendered.

For full marks, cover: the obligation, the definition of a dispute, the amicable methods each with an example, arbitration and judicial settlement with the basis of jurisdiction, and the Charter machinery.

The obligation. Article 2(3) of the Charter requires 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) lists the means: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. The list is not a hierarchy. The Hague Conventions of 1899 and 1907 and the Manila Declaration, 1982 are the other instruments.

A dispute, in Mavrommatis Palestine Concessions (1924), is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.

Amicable methods.

Negotiation, direct discussion, which settles most disputes and is often a precondition of the rest.

Judicial settlement: the International Court of Justice, fifteen judges elected for nine years by the General Assembly and the Security Council voting separately, sitting at The Hague. Only States may be parties (Article 34), and jurisdiction rests on consent given in one of three ways: a special agreement; a compromissory clause in a treaty; or a declaration under the optional clause, Article 36(2), operating on reciprocity and commonly subject to reservations. Judgments are final and without appeal (Article 60) and bind only the parties (Article 59); Article 94 obliges compliance and permits recourse to the Security Council.

Charter machinery. Under Chapter VI the Security Council may call on the parties to settle their dispute (Article 33(2)), investigate (Article 34) and recommend procedures or terms (Articles 36 and 37); under Chapter VII it may impose measures or authorise force. The General Assembly may recommend under Articles 10 to 14, and under Uniting for Peace, Resolution 377(V) of 1950, may act when the Council is deadlocked; Resolution 76/262 of 26 April 2022 requires the Assembly to meet within ten working days whenever a veto is cast. The Secretary-General may act under Article 99. Chapter VIII encourages regional settlement first.

For full marks, cover: name and dates, Article 1, the substantive scheme with the affirmative action article, the Committee and the Optional Protocol, India's ratification with its declarations, and the Vishaka consequence.

The Convention on the Elimination of All Forms of Discrimination against Women was adopted on 18 December 1979 and came into force on 3 September 1981; 30 articles; called 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" bring indirect discrimination within it.

India signed on 30 July 1980 and ratified on 9 July 1993, with declarations 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; and a reservation to Article 29(1) on reference of disputes to the International Court of Justice.

Conclusion. In India the Convention operates as an aid to construction rather than as an enforceable code, and the case that shows how is Vishaka v. State of Rajasthan (1997): finding no law on sexual harassment at the workplace, the Supreme Court read CEDAW into Articles 14, 15, 19(1)(g) and 21 through Article 51(c) and issued binding guidelines, which governed until the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted. The treaty supplies the standard; Article 21 supplies the enforceability.

Three organs. The International Labour Conference, meeting annually, which adopts instruments and the budget; the Governing Body, of 56 members in the same proportion, ten government seats being held permanently by States of chief industrial importance, India among them; and the International Labour Office, the secretariat under a Director-General.

Its instruments. Conventions bind the States that ratify them; recommendations are guidance only. Article 19(5) of the ILO Constitution obliges every member to place a newly adopted convention before its competent national authority within twelve, or at most eighteen, months, whether or not it intends to ratify, and to report on the position even if it does not.

The eight fundamental conventions, identified in the Declaration on Fundamental Principles and Rights at Work, 1998, under four heads: freedom of association and the right to collective bargaining (Nos. 87 and 98); the elimination of forced or compulsory labour (Nos. 29 and 105); the effective abolition of child labour (Nos. 138 and 182); and the elimination of discrimination in employment and occupation (Nos. 100 and 111). In 2022 the Conference added a fifth category, a safe and healthy working environment (Nos. 155 and 187).

For full marks, cover: the statute and dates, who is a notified minority, the composition, the functions in section 9, the powers, the constitutional context, and the criticisms.

The National Commission for Minorities was constituted under the National Commission for Minorities Act, 1992, which came into force on 17 May 1993; the Commission itself was set up in that year, replacing a non-statutory Minorities Commission that had existed since 1978.

Who is a minority. Section 2(c) provides that "minority" means a community notified as such by the Central Government. Five communities were notified in 1993: Muslims, Christians, Sikhs, Buddhists and Parsis (Zoroastrians); Jains were added on 27 January 2014. Notification is thus an executive act, and the Act does not itself define minority status.

Composition, section 3. A Chairperson, a Vice-Chairperson and five Members, nominated by the Central Government from amongst persons of eminence, ability and integrity, of whom five, including the Chairperson, shall be from amongst the minority communities. The term is three years.

Powers, section 9(4). While performing the functions in clauses (a), (b) and (d), the Commission has all the powers of a civil court trying a suit: summoning and enforcing attendance and examining on oath, discovery and production of documents, receiving evidence on affidavits, requisitioning any public record and issuing commissions for the examination of witnesses and documents. Its reports, with a memorandum of action taken, are laid before each House of Parliament under section 13.

The constitutional context. Article 29 protects the right of any section of citizens having a distinct language, script or culture to conserve it, and forbids denial of admission to State-aided institutions on grounds of religion, race, caste or language; Article 30 gives all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice, and protects them in the matter of aid and of compulsory acquisition of their property. Article 350B provides for a Special Officer for Linguistic Minorities.

For full marks, cover: the fundamental rights that protect children, Article 21A, the directive principles, the leading cases and the statutes that implement them, and the international instruments behind them.

Fundamental Rights, Part III.

Article 14, 15(1) and 15(3): equality before the law, no discrimination on grounds of religion, race, caste, sex or place of birth, and the enabling power of Article 15(3) to make special provision for women and children, under which most protective legislation for children is made.

Article 21: the right to life and personal liberty, which the Court has held for a child to include protection of health and strength, and opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity: Bandhua Mukti Morcha v. Union of India (1984).

Article 39(e), that the tender age of children is not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; Article 39(f), that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment; Article 45, as substituted in 2002, early childhood care and education for all children until they complete the age of six years; and Article 47 on nutrition and public health.

The cases. M. C. Mehta v. State of Tamil Nadu (1996), the Sivakasi fireworks case, directing a Child Labour Rehabilitation-cum-Welfare Fund with twenty thousand rupees from every offending employer; Unni Krishnan v. State of Andhra Pradesh (1993), which held that the right to education up to fourteen flows from Article 21 and led to the 86th Amendment; Sheela Barse v. Union of India (1986) on children in jails; and Independent Thought v. Union of India (2017), which read down the exception permitting intercourse with a wife between fifteen and eighteen.

For full marks, cover: the parties, the arbitrator and the date, the facts, the two competing claims, the holding, and the three principles the award established.

The Island of Palmas (or Miangas) case (United States of America v. The Netherlands) was decided by the Permanent Court of Arbitration at The Hague on 4 April 1928 by a sole arbitrator, Max Huber, the Swiss jurist, who was President of the Permanent Court of International Justice when the parties named him. The parties had referred the dispute by a special agreement of 23 January 1925.

Facts. The Island of Palmas is a small island lying between the Philippines and what was then the Netherlands East Indies. The United States claimed it as successor to Spain, which had ceded the Philippines by the Treaty of Paris, 10 December 1898, on the footing that Spain had acquired title by discovery in the sixteenth century and that the island lay within the boundaries described in the Treaty; it also relied on contiguity to the Philippines. The Netherlands claimed on the basis of the continuous and peaceful display of State authority over the island since 1677, exercised through treaties of suzerainty with the native princes of the Sangi States.

(3) Inter-temporal law. A juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled; but the existence of a right, that is, its continued manifestation, must follow the conditions required by the evolution of the law. This is the doctrine of inter-temporal law, and it is Huber's most quoted sentence.

The arbitrator also rejected contiguity as a basis of title, saying that it has no foundation in international law, and applied the rule that a cession cannot transfer more rights than the ceding State possessed, nemo dat quod non habet.

Conclusion. The award is the leading authority on the acquisition of territory by occupation, and its practical lesson is that international law prefers facts on the ground to paper titles: a State that discovers and then does nothing loses to a State that administers, however modestly, for two hundred and fifty years. The doctrine of inter-temporal law is the second half of that lesson, because it stops a State relying on an ancient act while ignoring the conditions the law has since attached to keeping the right alive.

(2) Explain with case laws if any fundamental rights are available to foreign citizens.

(1) Is there a breach of fundamental rights?

Yes. The right to life and personal liberty under Article 21 has been violated, and it is available to the Russian tourist although she is a foreign national.

The problem is Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465. A Bangladeshi national, Hanuffa Khatoon, was gang raped by railway employees at the Yatri Niwas at Howrah station; an advocate of the Calcutta High Court filed a public interest petition under Article 226 and obtained compensation of ten lakh rupees, which the Supreme Court upheld. The reasoning is directly applicable.

A public interest petition on her behalf is maintainable. The Court held that where the victim is a foreigner who has left the country and is not in a position to move the court herself, a petition by another person under Article 226 is maintainable.

International instruments support the conclusion: the Universal Declaration, described by the Court as having the international recognition of a Moral Code of Conduct, Articles 1, 3, 5 and 7; the ICCPR, Articles 6, 7 and 9; and CEDAW with General Recommendation No. 19 (1992), treating gender based violence as discrimination.

Remedies. Compensation under Article 32 or 226 as a public law remedy; prosecution under section 70 of the Bharatiya Nyaya Sanhita, 2023, which replaced section 376D of the Indian Penal Code on gang rape from 1 July 2024; and the statutory victim compensation scheme under section 396 of the Bharatiya Nagarik Suraksha Sanhita, 2023, together with the Supreme Court's directions in Nipun Saxena v. Union of India (2018) approving the NALSA compensation scheme.

(2) Fundamental rights available to foreign citizens, with case law.

Louis De Raedt v. Union of India (1991): a foreigner enjoys the right under Article 21, but has no fundamental right to reside and settle in India, that right being confined to citizens by Article 19(1)(e); the power of the Government to expel a foreigner is absolute, subject to the requirements of Article 21.

Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta (1955) is to the same effect on expulsion.

Ktaer Abbas Habib Al Qutaifi v. Union of India (1999), Gujarat High Court: the principle of non-refoulement is encompassed in Article 21 so long as the presence of the refugee is not prejudicial to national security.

Conclusion. There is a clear breach of Article 21, because that Article protects every person and not only every citizen, and rape has been held to be a violation of it and not merely an offence. The victim's nationality and her departure from India are irrelevant: on the authority of Chandrima Das a petition may be brought on her behalf, the State is liable in public law for the acts of its employees, and sovereign immunity is not a defence to a claim founded on the infringement of a fundamental right.

A special agreement, or compromis, under Article 36(1), by which the two States jointly refer an existing dispute and define the question. This is the appropriate route on these facts, and it is how most boundary disputes reach the Court; the case is then instituted by notification of the special agreement to the Registrar under Article 40(1).

A compromissory clause in a treaty in force between them, under Article 36(1), by which they have agreed in advance to refer disputes about that treaty to the Court.

Declarations under the optional clause, Article 36(2), by which each recognises as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in legal disputes concerning the interpretation of a treaty, any question of international law, the existence of a fact which if established would constitute a breach of an international obligation, and the nature or extent of the reparation to be made. It operates on reciprocity and may be made subject to reservations; where jurisdiction rests on it, proceedings are begun by a written application under Article 40(1). Under Article 36(6), in the event of a dispute as to whether the Court has jurisdiction, the matter is settled by the decision of the Court.

A note on the composition, which the parties should know: the Court consists of fifteen judges elected for nine years by the General Assembly and the Security Council voting separately and independently, no two of whom may be nationals of the same State; and under Article 31 a party which has no judge of its nationality on the bench may choose a judge ad hoc, which each of Bondana and Pacika would be entitled to do.

(2) Two famous cases decided by the Court.

Corfu Channel case (United Kingdom v. Albania) (1949), the Court's first contentious case. British destroyers struck mines in Albanian territorial waters in the North Corfu Channel. The Court held Albania responsible in damages for knowing of the minefield and failing to warn, resting the duty on elementary considerations of humanity and on every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States; it upheld the right of innocent passage of warships through an international strait; and it condemned the British minesweeping operation as a manifestation of a policy of force which cannot find a place in international law.

Conclusion. On these facts Bondana and Pacika should conclude a special agreement defining the question and notify it to the Registrar; that is the cleanest basis of jurisdiction, because it removes any argument about reservations to an optional clause declaration, and it lets the parties frame the question themselves. They should also expect the Court to decide the boundary by reference to any treaty between them first, then to the conduct of the parties and acquiescence, as in Preah Vihear, and only then to general principles such as uti possidetis.

Principle 21, the most influential sentence in the Declaration: States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. It was restated as Principle 2 of the Rio Declaration, 1992 and confirmed as customary international law in the Legality of the Threat or Use of Nuclear Weapons advisory opinion (1996).

The creation of a permanent international institution for the environment. On the Conference's recommendation, the General Assembly by Resolution 2997 (XXVII) of 15 December 1972 established the United Nations Environment Programme, with its headquarters at Nairobi, and an Environment Fund and Environment Coordination Board.

The same amendment transferred forests and the protection of wild animals and birds from the State List to the Concurrent List, as entries 17A and 17B, enabling Parliament to legislate for the whole country, which produced the Forest (Conservation) Act, 1980.

Conclusion. Stockholm's effect on India was legislative first and constitutional and judicial afterwards. Parliament enacted the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and, using Article 253 expressly to implement the decisions taken at Stockholm, the Environment (Protection) Act, 1986. Articles 48A and 51A(g) are not enforceable by themselves, but the Supreme Court has read both into Article 21, so that the right to a wholesome environment is today a fundamental right: Subhash Kumar v. State of Bihar (1991), Virender Gaur v. State of Haryana (1995), and most recently M. K. Ranjitsinh v. Union of India (21 March 2024), which recognised a right to be free from the adverse effects of climate change.

For full marks, cover: two or three definitions with criticism, the Austinian objection and the answer to it, then Article 38(1) clause by clause with cases, Article 38(2), the sources the Statute omits, and hierarchy.

I. Definition

Oppenheim: "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 objections: it confines the subject to States, and the word "civilised" is indefensible.

J. G. Starke meets both: international law is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore do commonly observe, in their relations with each other, and which includes the rules relating to the functioning of international institutions and their relations with States and individuals, and certain rules relating to individuals and non-State entities so far as their rights and duties are the concern of the international community.

(a) International conventions, general or particular, establishing rules expressly recognised by the contesting States. Treaties are the leading source, being written and consensual. Law-making treaties (Charter, Geneva Conventions, UNCLOS) create general rules; treaty-contracts bind only the parties. Obligation rests on Article 26 of the Vienna Convention, pacta sunt servanda, and Article 34 provides that a treaty binds no third State without its consent, though Article 38 preserves the passage of a treaty rule into custom.

(b) International custom, as evidence of a general practice accepted as law.

State practice, the material element: diplomatic correspondence, policy statements, national legislation, executive practice, decisions of municipal courts, conduct in international organisations. It must be general, uniform and consistent; the North Sea Continental Shelf cases (1969) held that no particular duration is required if practice is extensive and virtually uniform and includes the States specially affected.

Opinio juris sive necessitatis, the psychological element: the belief that the practice is legally obligatory. Lotus (1927) is the classic statement, Nicaragua (1986) the modern one.

(d) Judicial decisions and the teachings of the most highly qualified publicists, as subsidiary means, subject to Article 59. Subsidiary and evidentiary only. Article 59: a decision has no binding force except between the parties and in respect of that particular case, so there is no precedent, though the Court in fact follows itself. "Judicial decisions" includes arbitral awards (Island of Palmas, 1928; Alabama Claims, 1872) and decisions of national courts as evidence of practice. Writers such as Grotius, Vattel, Oppenheim and Starke were formative and now carry less weight than the International Law Commission.

III. Article 38(2)

The Court may decide ex aequo et bono if the parties agree; no case has ever been so decided. It is distinct from equity within the law, which the Court applies constantly, especially in maritime delimitation.

IV. Sources not named in Article 38

Resolutions of the General Assembly: recommendations under Article 10, but capable of declaring, crystallising or generating custom where adopted with near unanimity and treated as law, as Resolutions 1514 (1960), 2625 (1970) and 1962 (1963) were.

Conclusion. International law is the body of rules which States and the other subjects of the international community accept as binding in their mutual relations; Austin's denial fails because it mistakes the absence of a sovereign for the absence of law. Its sources are the two consensual processes of treaty and custom, with general principles to fill the gaps and judicial decisions and juristic writing to prove the content. The century since Article 38 was drafted has added binding decisions of organs, declaratory resolutions and unilateral undertakings, and above all jus cogens, which is the point at which the system ceased to rest wholly on consent.

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 East Indies trade, that the sea cannot be owned because it is inexhaustible and incapable of occupation, and that navigation and trade are open to all. John Selden replied in Mare Clausum (1635) for the English claim to the narrow seas. By the eighteenth century Grotius had prevailed, and Bynkershoek's cannon shot rule fixed the narrow belt of territorial sea that the coastal State could hold.

III. The freedoms: Article 87

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

(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, subject to Section 2 of Part VII; and (f) freedom of scientific research.

The words inter alia show that the list is not exhaustive. The freedoms must be exercised with due regard for the interests of other States in their exercise of the same freedoms and for the rights relating to activities in the Area.

Hot pursuit, Article 111, which must begin while the foreign ship is within the internal waters, territorial sea, contiguous zone or exclusive economic zone; must be preceded by a visual or auditory signal to stop given at a distance enabling it to be seen or heard; must be continuous and uninterrupted; and ceases as soon as the ship enters the territorial sea of its own or a third State: I'm Alone (1935), M/V Saiga (No. 2) (1999).

Slave trade, Article 99; illicit traffic in narcotic drugs, Article 108; unauthorised broadcasting, Article 109; duty to render assistance, Article 98.

Conservation of living resources, Articles 116 to 120, and the Straddling Fish Stocks Agreement, 1995.

Protection of the marine environment, Part XII, and intervention after a maritime casualty under the Intervention Convention, 1969, made after the Torrey Canyon disaster.

Article 97, which gives penal jurisdiction over a collision on the high seas exclusively to the flag State or the State of nationality of the accused, reversing Lotus.

Enforcement of Security Council measures under Chapter VII and the right of self-defence under Article 51. Nuclear testing is prohibited by the Partial Test Ban Treaty, 1963.

Science and environmental knowledge. The freedom of scientific research under Article 87(f) is what permits oceanographic and climate research on which the environmental treaties depend.

Peace and security. Article 88 reserves the high seas for peaceful purposes, and the combination of freedom of navigation with universal jurisdiction over piracy has allowed cooperative action against threats which no single State could suppress, as the naval coalitions off Somalia showed, with Indian Navy participation, under Security Council resolutions from 2008.

Conclusion. The freedom of the high seas is not freedom from law but freedom from the sovereignty of any one State, and its organising rule is exclusive flag State jurisdiction. Its usefulness is that it keeps the two thirds of the planet that no State owns available for the trade, communication, research and food supply of all States, including those with no coast at all. The direction of change since 1982 is towards more regulation, not less, because the freedoms of fishing and of navigation have turned out to be capable of exhausting the resource and polluting the medium; the BBNJ Agreement of 19 June 2023 on marine biodiversity beyond national jurisdiction is the newest expression of that trend.

Article 5 of the Universal Declaration and Article 7 of the ICCPR, prohibiting torture and cruel, inhuman or degrading treatment; Article 10(1) of the ICCPR, that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person; the Standard Minimum Rules for the Treatment of Prisoners, 1955, revised and adopted in 2015 as the Nelson Mandela Rules; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 1988; and the Convention against Torture, 1984, which India signed on 14 October 1997 and has not ratified, so that a domestic law against torture is still awaited.

III. Constitutional provisions

Article 14, against arbitrary classification of prisoners; Article 19, whose freedoms survive to the extent compatible with incarceration; Article 20(1) and (2), against ex post facto punishment and double jeopardy, and 20(3) against self-incrimination; Article 21, the principal source, requiring that deprivation of life or personal liberty be by a fair, just and reasonable procedure, Maneka Gandhi v. Union of India (1978); Article 22, on arrest and detention; and Article 39A on free legal aid.

IV. The rights, each with its authority

Right to a speedy trial. Hussainara Khatoon v. State of Bihar (1979): speedy trial is an essential ingredient of the reasonable, fair and just procedure required by Article 21, and undertrials detained longer than the maximum sentence must be released. Abdul Rehman Antulay v. R. S. Nayak (1992) laid down guidelines.

Right to bail and against unnecessary detention. Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 entitles an undertrial who has served one third of the maximum sentence, in the case of a first-time offender, to release on bond, and one half otherwise, and casts a duty on the jail superintendent to apply.

Right to a fair procedure in prison punishment. Sunil Batra (No. 2) (1980): natural justice applies to disciplinary action within the prison.

Right to meet family, friends and counsel, Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981), which also held that the right to life includes the right to live with human dignity and the bare necessaries of life.

Right to health and medical treatment, Parmanand Katara v. Union of India (1989) and Consumer Education and Research Centre v. Union of India (1995).

Writ petitions under Articles 32 and 226, including epistolary jurisdiction: a letter from a prisoner may be treated as a petition, which is what happened in Sunil Batra (No. 2).

Public law compensation, a remedy distinct from a civil suit: Rudul Sah (1983), Nilabati Behera v. State of Orissa (1993), which held that sovereign immunity is no defence to a claim for compensation for violation of a fundamental right, and D. K. Basu (1997).

The National Human Rights Commission under section 12(c) of the Protection of Human Rights Act, 1993, which may visit any jail and make recommendations, and under section 18 may recommend compensation or prosecution or move a constitutional court; every custodial death must be reported to it within twenty-four hours.

VI. The statutory framework today

The Prisons Act, 1894 is being replaced by the Model Prisons and Correctional Services Act, 2023 as States adopt it; the Code of Criminal Procedure by the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024; and the Model Prison Manual, 2016 governs administration. Prisons are a State subject, entry 4 of List II, which is why reform is uneven.

For full marks, cover: the definition including the Indian statutory one, the characteristics and the three generations, then the historical development in stages from natural law to the Charter, the post-1945 development, the regional systems, and the Indian reception.

I. What human rights are

Human rights are the rights which belong to every human being by virtue of being human, irrespective of race, colour, sex, language, religion, nationality or other status, and which are necessary to a life of dignity, liberty and equality.

Section 2(1)(d) of the Protection of Human Rights Act, 1993, gives the Indian statutory definition: 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.

(2) Natural law. The Stoics and later Thomas Aquinas held that there is a law above the law of the State, discoverable by reason, and that an unjust law is not law. This is the intellectual root of the whole subject.

(3) The English constitutional documents. Magna Carta, 1215, clause 39, that no free man shall be taken or imprisoned except by the lawful judgment of his peers or by the law of the land; the Petition of Right, 1628; the Habeas Corpus Act, 1679; and the Bill of Rights, 1689.

(4) The social contract and the age of revolutions. Hobbes, Locke and Rousseau transformed natural law into natural rights; Locke's life, liberty and property is the formula that passed into the American Declaration of Independence, 1776 and the Virginia Bill of Rights, 1776, and into the French Declaration of the Rights of Man and of the Citizen, 1789, whose Article 1 declares that men are born and remain free and equal in rights. Thomas Paine's Rights of Man (1791) gave the term its currency.

(5) The nineteenth century. Abolition of the slave trade and of slavery, the Geneva Convention of 1864 founding international humanitarian law after Solferino and the work of Henri Dunant and the Red Cross, the Hague Conventions of 1899 and 1907, and the beginnings of humanitarian intervention.

(9) The specialised treaties. Genocide Convention, 1948; Refugee Convention, 1951 and its Protocol of 1967; ICERD, 1965; CEDAW, 1979; Convention against Torture, 1984; Convention on the Rights of the Child, 1989; Convention on the Rights of Persons with Disabilities, 2006; and the Convention on Enforced Disappearance, 2006.

(10) The regional systems. The European Convention, 1950, with the Court at Strasbourg and, since Protocol No. 11 (1998), direct individual access; the American Convention, 1969, with the Commission at Washington and the Court at San Jose; and the African Charter on Human and Peoples' Rights, 1981, which adds peoples' rights and duties of the individual. Asia has no regional convention.

(11) The institutional development since 1990. The Vienna Conference, 1993, which declared human rights universal, indivisible, interdependent and interrelated and a legitimate concern of the international community, and produced the High Commissioner for Human Rights; the ad hoc tribunals for the former Yugoslavia (1993) and Rwanda (1994); the International Criminal Court under the Rome Statute, 1998, in force 2002; and the Human Rights Council in 2006 with the Universal Periodic Review.

III. The Indian reception

For full marks, cover: for the first, the Council of Europe, the Convention and its rights, the Court and the transformation made by Protocol No. 11, the other Council instruments and the European Union layer; for the second, the adoption, structure, legal status and influence. Divide the time equally.

PART ONE: EUROPEAN HUMAN RIGHTS ARRANGEMENTS

I. The Council of Europe and the Convention

The Council of Europe was founded by the Statute of London on 5 May 1949, with membership conditional on acceptance of the rule of law and of human rights, and now has 46 member States; it is entirely separate from the European Union. Under its auspices the European Convention for the Protection of Human Rights and Fundamental Freedoms was signed at Rome on 4 November 1950 and came into force on 3 September 1953. It was the first international treaty to create an enforceable system of individual human rights protection.

II. Rights guaranteed

Originally there were three organs: the European Commission of Human Rights, which filtered applications and attempted friendly settlement; the European Court of Human Rights, established in 1959; and the Committee of Ministers, which decided cases not referred to the Court. The right of individual petition and the jurisdiction of the Court were optional, depending on separate declarations by each State.

Protocol No. 11, in force 1 November 1998, restructured the system. It abolished the Commission, created a single permanent Court sitting at Strasbourg with one judge for each contracting party, and made both the right of individual application and the jurisdiction of the Court compulsory for every party. This is the single most important fact about the European system and the reason it is stronger than any other.

The European Social Charter, 1961, revised in 1996, on economic and social rights, supervised by the European Committee of Social Rights with a collective complaints procedure; the European Convention for the Prevention of Torture, 1987, whose Committee makes preventive visits to places of detention; and the Framework Convention for the Protection of National Minorities, 1995.

Separately, within the European Union, the Charter of Fundamental Rights, 2000 became legally binding with the Treaty of Lisbon on 1 December 2009, and is applied by the Court of Justice of the European Union at Luxembourg. The two courts and the two instruments must not be confused.

PART TWO: THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

I. Adoption

Adopted by the United Nations General Assembly at Paris on 10 December 1948 by Resolution 217A (III), with 48 votes in favour, none against and 8 abstentions, the abstaining States being the Soviet bloc, Saudi Arabia and South Africa. The drafting committee was chaired by Eleanor Roosevelt, with Rene Cassin as principal draftsman, and the day is observed as Human Rights Day.

II. Structure: a preamble and 30 articles

The Declaration was adopted as a resolution of the General Assembly and was therefore not binding as such. Its status has changed by use: most of its provisions are now regarded as customary international law, and it is referred to in the constitutions of a great many States, in the preambles of most later human rights treaties and in the judgments of national and international courts. With the ICCPR and the ICESCR of 1966 it forms the International Bill of Human Rights.

IV. Influence and Indian reception

The Declaration is the model for every later human rights instrument and for the bills of rights of the States that became independent after 1948. In India the correspondence is close: its civil and political articles appear as Fundamental Rights in Part III and its economic and social articles as Directive Principles in Part IV. The Supreme Court has relied on it in Kesavananda Bharati v. State of Kerala (1973), in Chairman, Railway Board v. Chandrima Das (2000), where it said the Declaration has the international recognition of a Moral Code of Conduct and applied Article 21 to a foreign national, and in Vishaka v. State of Rajasthan (1997).

For full marks, cover: the statute and the definition, composition and appointment as amended in 2019, the functions in section 12, the powers of inquiry in sections 13 to 17, the steps after inquiry in section 18, the two limitations, the State Commissions and Human Rights Courts, the record, and an assessment.

I. The statute

The National Human Rights Commission is constituted by section 3 of the Protection of Human Rights Act, 1993, Act 10 of 1994, deemed to have come into force on 28 September 1993, enacted in the light of the Paris Principles on 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; section 2(1)(f) defines the Covenants as the ICCPR and the ICESCR.

II. Composition and appointment, as amended in 2019

Ten clauses: (a) inquiry, suo motu, on petition or on the direction of a court, into violation of human rights or negligence in preventing it by a public servant; (b) intervention in proceedings before a court with its approval; (c) visits to jails and other institutions where persons are detained, to study living conditions and make recommendations; (d) review of constitutional and statutory safeguards; (e) review of the factors, including acts of terrorism, that inhibit the enjoyment of human rights; (f) study of treaties and other international instruments and recommendations for their effective implementation; (g) research; (h) spreading human rights literacy; (i) encouraging the efforts of non-governmental organisations; and (j) such other functions as it considers necessary for the promotion of human rights.

IV. Powers

Section 13(1): while inquiring into complaints, the Commission has all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, in respect of: summoning and enforcing the attendance of witnesses and examining them on oath; discovery and production of any document; receiving evidence on affidavits; requisitioning any public record or copy from any court or office; issuing commissions for the examination of witnesses or documents; and any other matter prescribed.

V. Steps during and after inquiry, section 18

Where the inquiry discloses violation or negligence, the Commission may recommend to the Government or authority concerned: payment of compensation or damages to the complainant, the victim or his family; the initiation of proceedings for prosecution or other suitable action; and such further action as it thinks fit. It may approach the Supreme Court or the High Court concerned for such directions, orders or writs as that Court may deem necessary. It may recommend immediate interim relief at any stage. It must forward a copy of the inquiry report with its recommendations to the Government, which must within one month forward its comments and the action taken; and it must publish the report with those comments.

Section 20: annual and special reports to the Central and State Governments, which must be laid before Parliament or the State Legislature with a memorandum of action taken and the reasons for non-acceptance of any recommendation.

VI. The two limitations

Section 21: a State Government may constitute a State Human Rights Commission, consisting of a Chairperson who has been Chief Justice or a Judge of a High Court, one Member who is or has been a Judge of a High Court or a District Judge with at least seven years as District Judge, and one Member with knowledge or practical experience of human rights. It may inquire only into matters relatable to List II and List III. Section 30: the State Government, with the concurrence of the Chief Justice of the High Court, may specify a Court of Session in each district as a Human Rights Court, with a Special Public Prosecutor under section 31.

VIII. Record

The Commission has required custodial deaths to be reported to it within twenty-four hours, has issued guidelines on encounter deaths and on videography of post mortems, has acted on starvation deaths, manual scavenging and mental health institutions, and in NHRC v. State of Arunachal Pradesh (1996) it used its power under section 18(b) to petition the Supreme Court itself, obtaining a direction that the State protect the Chakma refugees, the Court holding that Article 21 protects non-citizens.