BLS LLB 5 Years Sem 9 Public International Law and Human Rights 2019-20 Question Paper with Solutions

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.

Recognition is the formal acknowledgment by an existing State that a political entity possesses the attributes of statehood, and the indication of its willingness to treat that entity as a member of the international community. Oppenheim: in recognising a State as a member of the international community, the existing States declare that in their opinion the new State fulfils the conditions of statehood required by international law.

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.

A bilateral treaty is a treaty concluded between two States, which creates rights and obligations only between those two parties. Examples are an extradition treaty, a boundary agreement, a treaty of transit or an agreement for the avoidance of double taxation; the Indus Waters Treaty, 1960 between India and Pakistan and the India Nepal Treaty of Transit are Indian examples.

Bilateral treaties are usually treaty-contracts (traites-contrats), settling a particular matter between the parties, as opposed to multilateral law-making treaties (traites-lois) such as the Charter or UNCLOS which lay down general rules for many States.

Disintegration, or dismemberment, is the breaking up of an existing State into two or more new States, the predecessor ceasing to exist altogether. It is a mode of State succession, to be distinguished from secession, where a part breaks away and the predecessor survives.

The standard examples are the dissolution of the Union of Soviet Socialist Republics in December 1991 into fifteen successor States, the dissolution of the Socialist Federal Republic of Yugoslavia between 1991 and 1992, and the separation of Czechoslovakia into the Czech Republic and Slovakia on 1 January 1993.

The European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 under the auspices of the Council of Europe and in force from 3 September 1953, is concerned chiefly with civil and political rights.

Articles 2 to 14 guarantee the right to life; freedom from torture and inhuman or degrading treatment; freedom from slavery and forced labour; liberty and security of person; a fair trial; no punishment without law; respect for private and family life; freedom of thought, conscience and religion; freedom of expression; freedom of assembly and association; the right to marry; an effective remedy; and the prohibition of discrimination in the enjoyment of Convention rights.

PUCL is the People's Union for Civil Liberties, a non-governmental civil liberties and human rights organisation founded in 1976 by Jayaprakash Narayan, during the Emergency, as the People's Union for Civil Liberties and Democratic Rights; it took its present name in 1980. It works by fact finding, reporting and, above all, by public interest litigation.

In law reports the abbreviation stands for a series of leading Supreme Court cases brought by it, including the telephone tapping case, the right to food case and the NOTA case.

For full marks, cover: the definition, when it is granted, the differences from de jure recognition set out point by point, the legal effects with cases, and the position on withdrawal.

De facto recognition is the provisional and revocable acknowledgment by an existing State that a new State or government possesses, in fact, the attributes of statehood or of governmental authority, granted where the entity has effective control but where there is doubt about its permanence, its stability, or its willingness and ability to discharge international obligations.

When it is granted. It is the natural step where a revolutionary government has seized power and is in control but the outcome is not yet settled, or where a new State has emerged but its viability is uncertain. It is a statement of fact rather than of approval, and it allows the recognising State to conduct necessary business without committing itself.

Difference from de jure recognition, point by point.

Nature. De facto is provisional and conditional; de jure is final and unconditional.

Bank of Ethiopia v. National Bank of Egypt and Liguori [1937] Ch 513: the Italian Government having been recognised de facto as the government of Abyssinia, its decrees were given effect; for the purpose of giving validity to the acts of the recognised authority, de facto recognition has substantially the same effect as de jure.

The Arantzazu Mendi [1939] AC 256: a de facto recognised authority in control of a territory is entitled to sovereign immunity in respect of a ship registered there, and the executive certificate on recognition is conclusive on the court.

Civil Air Transport Inc. v. Central Air Transport Corporation [1953] AC 70: 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; and the retroactive effect does not disturb acts already done under the authority of the former recognised government within the recognising State.

For full marks, cover: the name, the founding and the famous sentence from the Constitution, the purpose, the functions and fields of work, the organs, the principal conventions, India's membership, and the standing controversies.

UNESCO is the United Nations Educational, Scientific and Cultural Organization, established by a Constitution signed in London on 16 November 1945 and in force from 4 November 1946; it is a specialised agency of the United Nations with headquarters at Paris.

Its Constitution contains the sentence for which it is known: "Since wars begin in the minds of men, it is in the minds of men that the defences of peace must be constructed." That states its premise, which is that peace founded solely on political and economic arrangements is not enough and must be founded upon the intellectual and moral solidarity of mankind.

Principal instruments: the Convention against Discrimination in Education, 1960; the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954; the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970, which is the basis on which States recover stolen antiquities; the World Heritage Convention, 1972; the Universal Declaration on the Human Genome and Human Rights, 1997; the Convention for the Safeguarding of the Intangible Cultural Heritage, 2003; and the Recommendation on the Ethics of Artificial Intelligence, 2021.

Organs: the General Conference of all member States, meeting every two years; the Executive Board of 58 members; and the Secretariat under a Director-General.

India is a founder member and has been continuously involved; it has a large number of properties on the World Heritage List, and Indian entries such as Yoga and Kumbh Mela are on the intangible heritage list.

For full marks, cover: the constitution and seat, composition and election, contentious jurisdiction with the three routes to consent, the effect of a judgment, advisory jurisdiction, and one or two leading cases.

The International Court of Justice is the principal judicial organ of the United Nations under Article 92 of the Charter, established in 1945 and functioning from April 1946 as the successor to the Permanent Court of International Justice (1922 to 1946). It sits at the Peace Palace, The Hague, and its Statute is annexed to and forms an integral part of the Charter, so that every Member of the United Nations is ipso facto a party to it (Article 93(1)).

Contentious jurisdiction. Only States may be parties (Article 34(1)). Jurisdiction rests entirely on consent, given in three ways: a special agreement (compromis) referring an existing dispute; a compromissory clause in a treaty; or a declaration under the optional clause, Article 36(2), recognising the jurisdiction as compulsory in relation to any other State accepting the same obligation, in legal disputes concerning the interpretation of a treaty, any question of international law, the existence of a fact constituting a breach, and the nature or extent of reparation. Declarations operate on reciprocity and are commonly subject to reservations. Article 36(6): a dispute about jurisdiction is settled by the decision of the Court.

The law applied is Article 38(1): conventions, custom, general principles, and judicial decisions and juristic writings as subsidiary means; and ex aequo et bono under Article 38(2) if the parties agree, which has never happened.

Conclusion. The Court's strength is the quality and finality of its judgments and the fact that it is the only standing tribunal of general jurisdiction in international law; its weakness is that it cannot reach a dispute unless both States have consented, and that compliance rests on Article 94 and therefore, in the last resort, on a Security Council in which five States hold a veto. That is why the number of judgments is small in relation to the number of international disputes, and why its influence works chiefly through the authority of its reasoning rather than through enforcement.

Public interest litigation. From the late 1970s the Court relaxed locus standi so that any public spirited person or organisation may move it on behalf of those unable to come themselves: S. P. Gupta v. Union of India (1981), People's Union for Democratic Rights v. Union of India (1982).

Epistolary jurisdiction: a letter or postcard may be treated as a writ petition, as in Sunil Batra v. Delhi Administration (No. 2) (1980), where a prisoner's letter about the torture of a fellow inmate became a habeas corpus proceeding.

Continuing mandamus: the Court keeps a case on its board and issues successive directions, as in Vineet Narain v. Union of India (1998), T. N. Godavarman and the right to food case.

Commissions and amicus curiae to gather facts where the petitioner cannot.

III. The substantive expansion of Article 21

Maneka Gandhi v. Union of India (1978) is the turning point: the procedure under Article 21 must be right, just and fair, and Articles 14, 19 and 21 are to be read together, which imported substantive due process in effect and reversed the narrow reading of A. K. Gopalan (1950).

Compensation in public law for violation of fundamental rights, distinct from a suit in tort and immune from the defence of sovereign immunity: Rudul Sah v. State of Bihar (1983), Nilabati Behera v. State of Orissa (1993), D. K. Basu v. State of West Bengal (1997).

Guidelines with the force of law under Article 141 pending legislation: Vishaka, D. K. Basu, and the guidelines on encounter deaths in PUCL v. State of Maharashtra (2014).

Conclusion. The Supreme Court has been the principal instrument of human rights protection in India, and the reason is structural rather than rhetorical: Article 32 makes the remedy a right, Article 141 makes a judgment general law, and the Court's own relaxation of standing gave the remedy to people who could not have used it. The criticisms are equally real and belong in the answer: the Court has been accused of legislating and of administering, orders have sometimes been unenforced for years, and its record in emergencies has not been consistent, ADM Jabalpur v. Shivkant Shukla (1976) being the low point, though it was expressly overruled in Puttaswamy (2017).

"Subject to Article 59": the decision of the Court has no binding force except between the parties and in respect of that particular case. There is therefore no doctrine of stare decisis in international law. The reason is jurisdictional: the Court's authority rests on the consent of the parties before it, and a decision cannot bind a State which never consented to the proceedings.

"Judicial decisions" is wider than the judgments of the Court itself. It includes the judgments of the Permanent Court of International Justice, arbitral awards such as Island of Palmas (1928) and the Alabama Claims (1872), decisions of other international tribunals such as the International Tribunal for the Law of the Sea and the ad hoc criminal tribunals, and decisions of municipal courts, which are used both as evidence of State practice for the purpose of proving custom and as illustrations of general principles of law.

For full marks, cover: the definition in Article 76, the outer limits, the rights and their character under Article 77, the limits on those rights, delimitation with the leading case, the Commission on the Limits of the Continental Shelf, and India's position.

Definition, Article 76(1) of UNCLOS 1982. The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines where the outer edge of the continental margin does not extend up to that distance.

Outer limits. Where the margin extends beyond 200 nautical miles, the outer limit is fixed by the formulae in Article 76(4), and in no case may it exceed 350 nautical miles from the baselines or 100 nautical miles from the 2,500 metre isobath, whichever the coastal State elects. A State claiming beyond 200 miles must submit particulars to the Commission on the Limits of the Continental Shelf, and limits established on the basis of its recommendations are final and binding (Article 76(8)).

Limits on those rights. Article 78: the rights do not affect the legal status of the superjacent waters or of the air space above, and must not infringe or unjustifiably interfere with navigation or the other rights and freedoms of other States. Article 79: all States are entitled to lay submarine cables and pipelines on the shelf, subject to the coastal State's reasonable measures. Article 82: a coastal State exploiting non-living resources beyond 200 nautical miles must make payments or contributions in kind to the International Seabed Authority, at rates rising from one per cent in the sixth year to seven per cent in the twelfth and thereafter, for distribution to States Parties.

Delimitation, Article 83. Delimitation between States with opposite or adjacent coasts is to be effected by agreement on the basis of international law as referred to in Article 38 of the Statute, in order to achieve an equitable solution. The leading case is North Sea Continental Shelf (1969), where the Court held that the equidistance rule in Article 6 of the Geneva Convention on the Continental Shelf, 1958 was neither binding on Germany as a treaty nor customary law, and that delimitation must be effected by agreement in accordance with equitable principles, taking account of all the relevant circumstances, so as to leave each party as much as possible of the natural prolongation of its land territory.

Facts. The Island of Palmas is a small, sparsely populated island lying roughly midway between Mindanao in the Philippines and the northernmost island of the then Netherlands East Indies. In 1906 an American officer, General Leonard Wood, visited the island and found the Netherlands flag flying, which produced the dispute.

The United States claimed as successor to Spain. By the Treaty of Paris of 10 December 1898 Spain ceded the Philippines to the United States, and Palmas lay within the boundary lines described in Article III of that Treaty. The American title therefore rested on Spanish discovery in the sixteenth century, on contiguity to the Philippine archipelago, and on the cession.

The Netherlands claimed by long possession. It asserted the continuous and peaceful display of State authority over the island since 1677, exercised indirectly through treaties of suzerainty with the native princes of the Sangi States, whose vassals included the chief of the island, and evidenced by the levying of taxes, the appointment of chiefs and the flying of the Netherlands flag.

The award. The arbitrator held that the Island of Palmas formed in its entirety a part of Netherlands territory.

(b) The principles adopted by the arbitrator.

(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 the right, that is, its continued manifestation, must follow the conditions required by the evolution of the law. So Spanish discovery had to be judged by sixteenth century law, but the maintenance of the right had to satisfy the requirements of effective occupation as the law had come to demand them.

(4) Contiguity is not a basis of title. The arbitrator rejected the argument that the island belonged to the United States because it lay nearer to the Philippines, saying that the title of contiguity has no foundation in international law.

Conclusion. The award decides the problem in favour of the Netherlands, and the reason is the one that decides most territorial disputes: international law prefers the facts of administration to the paper title. A State which discovers and does nothing loses to a State which governs, however modestly, for two hundred and fifty years; and inter-temporal law prevents the first State from relying on an ancient act while ignoring what the law has since required for keeping the right alive.

The international provisions. Article 3 of the Universal Declaration (life, liberty and security of person) and Article 9, freedom from arbitrary arrest and detention; Article 9 of the ICCPR, ratified by India on 10 April 1979, whose Article 9(5) provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation; and Article 10(1), that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

The decisive authority is Rudul Sah v. State of Bihar, (1983) 4 SCC 141, whose facts are the problem: Rudul Sah was acquitted in 1968 and kept in jail until 1982, fourteen years after his acquittal, on the plea that he was of unsound mind, for which no material was produced. The Supreme Court held the detention wholly unjustified and awarded compensation of thirty-five thousand rupees in the habeas corpus proceeding itself, in addition to his right to sue for damages.

Negligence of the jail authorities is no answer. The State is answerable for the acts and omissions of its officers, and the defence of sovereign immunity is not available to a claim for compensation for the infringement of a fundamental right: Nilabati Behera v. State of Orissa (1993), N. Nagendra Rao v. State of Andhra Pradesh (1994) and D. K. Basu v. State of West Bengal (1997).

Other remedies available in addition: a civil suit for damages for false imprisonment; a complaint to the National or State Human Rights Commission, which may recommend compensation and prosecution under section 18 of the Protection of Human Rights Act, 1993, subject to the one year limitation in section 36(2), which is measured from the act complained of and which a continuing detention will satisfy; and prosecution of the responsible officers for wrongful confinement, sections 127 and following of the Bharatiya Nyaya Sanhita, 2023, replacing sections 340 and following of the Indian Penal Code.

Conclusion. The detention is a plain violation of Article 21, because after an acquittal no procedure established by law authorises custody at all, and the remedy is habeas corpus under Article 32 or 226 together with compensation in the same proceeding on the authority of Rudul Sah. The State cannot escape by pleading the negligence of its officers or sovereign immunity; Nilabati Behera settled that a claim for compensation for breach of a fundamental right is a public law remedy to which that defence has no application.

Right of access to and from the sea, and freedom of transit, Article 125. Land-locked States have the right of access to and from the sea for the purpose of exercising the rights provided for in the Convention, including those relating to the freedom of the high seas and the common heritage of mankind, and enjoy freedom of transit through the territory of transit States by all means of transport. The terms and modalities are to be agreed by bilateral, subregional or regional agreements. Article 125(3) preserves the right of transit States to take all measures necessary to ensure that the rights and facilities do not in any way infringe their legitimate interests.

Exemption from customs duties and transit dues, Article 127. Traffic in transit is not subject to any customs duties, taxes or other charges except charges levied for specific services rendered in connection with such traffic, and means of transport in transit are not subject to taxes or charges higher than those levied for the use of means of transport of the transit State.

Free zones and other customs facilities, Article 128. For the convenience of traffic in transit, free zones or other customs facilities may be provided at the ports of entry and exit in the transit States, by agreement.

Rights in the Area. As parties to the Convention, land-locked States share in the common heritage of mankind under Article 136 and participate in the International Seabed Authority; Article 148 requires the effective participation of developing States, and Article 161 reserves seats on the Council for them.

Conclusion. UNCLOS gives Nepal a right of access to and from the sea and freedom of transit through India, the transit State, together with exemption from transit dues, equal treatment in Indian ports, the right to sail ships under the Nepalese flag on the high seas, and a claim to an equitable share of any surplus in India's exclusive economic zone. But the right is not self-executing: Article 125(2) requires the terms and modalities to be agreed with the transit State, and Article 125(3) preserves that State's legitimate interests, so in practice the right is worth what the bilateral treaty makes it. Between India and Nepal that instrument is the Treaty of Transit, first concluded in 1978 and periodically renewed, with the associated Rail Services Agreement and the transit facilities at Kolkata, Haldia and Visakhapatnam.

For full marks, cover: what an NGO is and its status in international law, the functions it performs at the international level, the same at the national level in India with the leading cases, the statutory roles it now occupies, the regulation and the criticisms, and a closing assessment.

I. What an NGO is, and its status

A non-governmental organisation is a voluntary, non-profit association, independent of government, formed to pursue a public purpose. It is not a subject of international law and has no standing before the International Court of Justice, but its place in the system is recognised.

Article 71 of the Charter authorises the Economic and Social Council to make suitable arrangements for consultation with non-governmental organisations concerned with matters within its competence; several thousand hold consultative status in general, special or roster categories.

Standard setting. The Convention against Torture, 1984 owes much to Amnesty's campaign; the Rome Statute, 1998 was promoted by a coalition of some eight hundred organisations; the Ottawa Convention on landmines, 1997 was driven by the International Campaign to Ban Landmines, which received the Nobel Peace Prize that year.

Humanitarian work. The International Committee of the Red Cross occupies a special position, having a mandate under the Geneva Conventions of 1949 themselves, with a right to visit prisoners of war and to act as a neutral intermediary; it works confidentially, which is the opposite of the publicity method.

III. What they do in India

Public interest litigation, made possible by the relaxation of locus standi under Articles 32 and 226, is the principal contribution.

People's Union for Democratic Rights v. Union of India (1982), the Asiad workers case: held that construction is a hazardous employment for Article 24 and that payment below the minimum wage is forced labour under Article 23.

Service delivery and legal aid: shelters, one-stop centres, rescue and rehabilitation of trafficked and bonded persons, legal aid clinics in partnership with the National Legal Services Authority under the Legal Services Authorities Act, 1987.

Awareness and education, and monitoring of custodial deaths, encounters and prison conditions.

IV. Statutory recognition

NGOs are written into Indian statutes. 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. Section 10 of the Protection of Women from Domestic Violence Act, 2005 allows a registered service provider to record a domestic incident report and to assist the aggrieved person. The Juvenile Justice Act, 2015 works through registered child care institutions, and the anti-trafficking machinery through rescue partners.

V. Regulation and criticism

Conclusion. The distinctive contribution of the NGO in India has been to convert an unenforceable international standard into enforceable domestic law through the courts, and Vishaka is the model of it: an organisation with no personal grievance petitioned under Article 32, the Court used a ratified convention to fill a legislative vacuum, and Parliament enacted the guidelines sixteen years later. Internationally the contribution is different but complementary: the organisations supply the facts that the supervisory machinery cannot gather for itself, so that a State appearing before a treaty body or the Universal Periodic Review must answer an account it did not write. In a field where there is very little enforcement, the effective sanction is documented publicity, and that is what these bodies produce.

Article 15(1), prohibition of discrimination on grounds only of religion, race, caste, sex or place of birth, and Article 15(3), the enabling provision that nothing in Article 15 shall prevent the State from making any special provision for women and children. Article 15(3) is the constitutional basis of the whole body of protective legislation, and it has been held to be an exception in favour of, and not a derogation from, equality: Government of Andhra Pradesh v. P. B. Vijayakumar (1995).

Article 16, equality of opportunity in public employment, from which the doctrine of equal pay for equal work was enforced in Randhir Singh v. Union of India (1982).

Article 19(1)(g), the right to practise any profession, on which Vishaka v. State of Rajasthan (1997) was partly founded, sexual harassment being a violation of a woman's right to work.

Article 21, the right to life with human dignity: Francis Coralie Mullin (1981), Vishaka (1997), Chairman, Railway Board v. Chandrima Das (2000), and Justice K. S. Puttaswamy v. Union of India (2017), which located decisional autonomy in privacy.

Article 23, prohibition of traffic in human beings and forced labour, which is the constitutional foundation of the anti-trafficking law and is enforceable against private persons.

Article 15(3), special provision for children; Article 21, which for a child includes protection of health and strength and opportunities to develop in conditions of freedom and dignity, Bandhua Mukti Morcha v. Union of India (1984); Article 21A, inserted by the 86th Amendment, 2002, free and compulsory education for children of six to fourteen; Article 23, trafficking and forced labour; and Article 24, that no child below fourteen shall be employed in any factory or mine or engaged in any other hazardous employment, which People's Union for Democratic Rights v. Union of India (1982) applied to construction work.

V. Directive Principles for children

Article 39(e), that the tender age of children is not abused and that citizens are not forced by economic necessity into 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; Article 47 on nutrition; and Article 51A(k), the duty of a parent to provide opportunities for education to his child between six and fourteen.

CEDAW, ratified by India on 9 July 1993, and the Convention on the Rights of the Child, acceded to on 11 December 1992; ILO Conventions Nos. 100, 111, 138 and 182; and Articles 10 and 12 of the ICESCR. Article 51(c) of the Constitution is the bridge by which the courts use them.

Conclusion. The significance of Parts III and IV for women and children is that between them they supply both the standard and the remedy, but not in the same place. The enforceable protections are few and specific: Articles 14, 15(3), 21, 23, 24 and 21A. The substantive programme, equal pay, maternity relief, humane conditions of work, nutrition, early childhood care, is in Part IV and is unenforceable by its own terms. What has bridged the gap is the judicial technique of reading the Directive Principles into Article 21, so that maternity benefit for a daily wage worker, a minimum wage, education up to fourteen and freedom from bonded labour have all been claimed as fundamental rights. Article 15(3) is the second half of the answer, because it is the provision that allows Parliament to legislate specially for women and children without offending equality, and almost every statute listed above rests on it.

Baselines. The normal baseline is the low-water line along the coast as marked on large scale charts officially recognised by the coastal State (Article 5). Where the coastline is deeply indented and cut into, or where there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed (Article 7), a method approved by the International Court in the Anglo-Norwegian Fisheries case (1951). Waters on the landward side of the baseline are internal waters (Article 8).

The nature of the right, Article 2. The sovereignty of a coastal State extends beyond its land territory and internal waters to the territorial sea, and to the air space over it as well as to its bed and subsoil. It is sovereignty, not merely sovereign rights, but it is subject to the Convention and to other rules of international law, and in particular to the right of innocent passage.

Innocent passage, Articles 17 to 32. Ships of all States, coastal or land-locked, enjoy the right of innocent passage through the territorial sea. Passage means navigation for the purpose of traversing the sea without entering internal waters, or of proceeding to or from internal waters, and it must be continuous and expeditious, stopping and anchoring being permitted only as incidental to ordinary navigation or by reason of force majeure or distress or to render assistance (Article 18).

The coastal State's powers. It may adopt laws on safety of navigation, cables and pipelines, conservation, fisheries, pollution, research, customs, fiscal, immigration and sanitary matters (Article 21); it may require tankers and nuclear-powered ships to use sea lanes (Article 22); it must not hamper innocent passage and must give appropriate publicity to dangers (Article 24); it may take steps to prevent passage which is not innocent and may suspend passage temporarily in specified areas where essential for its security, without discrimination (Article 25); it may not levy charges except for services rendered (Article 26). Article 27 limits its criminal jurisdiction over a foreign ship passing through to four cases, and Article 28 limits civil jurisdiction.

Straits. Where the territorial sea covers a strait used for international navigation, the regime is transit passage under Articles 37 to 44, which cannot be suspended and which permits submerged transit and overflight. The customary right of passage through international straits was established in Corfu Channel (1949).

India claims a 12 nautical mile territorial sea under section 3 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.

PART TWO: THE FREEDOMS OF THE HIGH SEAS

(c) Freedom to lay submarine cables and pipelines, subject to Part VI on the continental shelf. Example: the fibre optic cables that carry almost all international data traffic, and cross-border gas pipelines; Articles 112 to 115 make the breaking or injury of a cable by a ship flying a State's flag a punishable offence in its law.

(d) Freedom to construct artificial islands and other installations permitted under international law, subject to Part VI. Example: research platforms and, in the exclusive economic zone, structures for resource exploitation under Article 60.

(e) Freedom of fishing, subject to Section 2 of Part VII, that is, to the conservation duties in Articles 116 to 120. Example: distant water fishing fleets on the high seas, now regulated through regional fisheries management organisations such as the Indian Ocean Tuna Commission, and by the Straddling Fish Stocks Agreement, 1995.

(f) Freedom of scientific research, subject to Parts VI and XIII. Example: oceanographic survey vessels and the deployment of Argo floats for climate research.

The list is introduced by "inter alia" and is therefore not exhaustive, and all the freedoms are to 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.

Conclusion. The two regimes are the two ends of the Convention's graduated scheme. In the territorial sea the coastal State has sovereignty, qualified by a right of innocent passage which it may regulate but not prohibit; on the high seas no State has sovereignty at all, and order is maintained instead by the exclusive jurisdiction of the flag State, subject to a short list of exceptions in which any State may act. The direction of change since 1982 has been to add duties to the freedoms rather than to remove them, because the freedoms of fishing and of navigation proved capable of exhausting the resource and polluting the medium, and the BBNJ Agreement of 19 June 2023 on marine biodiversity beyond national jurisdiction is the newest step.

Territory comprises the land, including the subsoil; the internal waters and the territorial sea up to twelve nautical miles, with their bed and subsoil; and the air space above the land and the territorial sea, which Article 1 of the Chicago Convention on International Civil Aviation, 1944 confirms is subject to the complete and exclusive sovereignty of the State. Outer space is not territory: the Outer Space Treaty, 1967 declares it not subject to national appropriation.

There is no minimum size; Nauru, Monaco and the Vatican are States. The boundaries need not be finally settled, as the North Sea Continental Shelf cases observed, so long as there is a stable core of territory.

II. Modes of acquisition

(3) Cession. Transfer of territory by agreement, whether by sale, exchange, gift or as part of a peace settlement. Examples: the sale of Alaska by Russia to the United States in 1867; the cession of the French settlements of Chandernagore (1952) and Pondicherry, Karaikal, Mahe and Yanam (Treaty of Cession, 1956, ratified 1962) to India. The rule nemo dat quod non habet applies: the ceding State transfers no better title than it had, which is why the United States failed in Island of Palmas.

(4) Conquest and subjugation (annexation). Acquisition by the use of force followed by a formal act of annexation and the complete subjugation of the defeated State. This is no longer a lawful mode. The Stimson doctrine of 1932, applied to Manchukuo; Article 2(4) of the Charter; the Declaration on Friendly Relations, 1970, that no territorial acquisition resulting from the threat or use of force shall be recognised as legal; and Article 41(2) of the Articles on State Responsibility, 2001, obliging States not to recognise as lawful a situation created by a serious breach of a peremptory norm. Applied by the International Court in Namibia (1971) and in the Wall advisory opinion (2004).

Loss corresponds broadly to acquisition. Cession, by agreement. Operation of nature, by erosion or submergence, a question of growing importance for low-lying island States as sea levels rise. Subjugation, historically. Prescription, by another State. Revolt or secession, resulting in the creation of a new State, as with Bangladesh in 1971 and South Sudan in 2011. Dereliction or abandonment, which requires both the physical abandonment of the territory and the intention to abandon it, and which is not to be presumed lightly. Grant of independence, by which nearly all the territory lost in the twentieth century was lost.

IV. Two rules that decide most modern disputes

Uti possidetis juris: a newly independent State inherits the administrative boundaries which existed at the moment of independence. Frontier Dispute (Burkina Faso v. Mali) (1986) held it to be a general principle logically connected with decolonisation and applicable beyond Latin America and Africa; the Badinter Commission applied it to the republics of the former Yugoslavia.

For full marks, cover: the history and structure of the Convention, the zones and the balance each strikes, the Area and the common heritage of mankind, the institutions, the compulsory dispute settlement machinery, and then a separate section on significance for peace, which is the second half of the question.

I. History and structure

The United Nations Convention on the Law of the Sea was adopted at Montego Bay on 10 December 1982 at the close of the Third United Nations Conference on the Law of the Sea, which sat from 1973 to 1982, and entered into force on 16 November 1994. It has 320 articles and nine annexes and is described as the constitution for the oceans. It replaced the four Geneva Conventions of 1958, whose failure to fix the breadth of the territorial sea, and whose continental shelf definition based on exploitability, had left the law unstable. Part XI was modified by the Implementation Agreement of 1994 so that the industrialised States could join. India signed in 1982 and ratified on 29 June 1995.

High seas: open to all States, coastal and land-locked, with the six freedoms of Article 87 and the rule of exclusive flag State jurisdiction in Article 92.

Straits used for international navigation: the non-suspendable regime of transit passage (Articles 37 to 44), which was the price the maritime powers exacted for accepting a twelve mile territorial sea, since a wider territorial sea would otherwise have closed more than a hundred straits.

Archipelagic States: archipelagic baselines and archipelagic sea lanes passage (Articles 46 to 54).

III. The Area

Part XI: the seabed beyond national jurisdiction, the Area, and its resources are by Article 136 the common heritage of mankind; no State may claim or exercise sovereignty over any part of it, no appropriation is valid, all rights are vested in mankind as a whole, and activities are to be carried out for the benefit of mankind as a whole with particular consideration for the interests of developing States. The International Seabed Authority at Kingston organises and controls activities, with an Assembly, a Council and the Enterprise.

IV. Institutions and dispute settlement

It preserved the freedom of navigation. The transit passage regime, and the retention of navigation and overflight in the exclusive economic zone, meant that the enormous extension of coastal State rights did not close the sea lanes on which world trade and naval mobility depend. That bargain, resource rights for the coastal State against passage rights for everyone, is the central compromise of the Convention.

It gave every State a peaceful route to settle boundaries. Compulsory dispute settlement has produced settlements that would otherwise have festered. The India and Bangladesh Bay of Bengal award of 7 July 2014 under Annex VII is the example an Indian answer must give: India accepted an award that gave Bangladesh a large part of the disputed area, and the two States implemented it. The Tribunal's Bangladesh v. Myanmar judgment (2012) did the same.

It declared the deep seabed the common heritage of mankind, so that the resources beyond national jurisdiction are not available to be seized by whichever State first has the technology to reach them. That is a deliberate rejection of a first-come rule that would have been a standing source of conflict.

Conclusion. The Convention's contribution to peace is not rhetorical but structural. It converted the sea from a field of competing unilateral assertions into a set of agreed zones with defined rights, it kept the routes of world commerce open while giving coastal States the resources off their own shores, it put the seabed beyond national jurisdiction outside the reach of any State, and it made the settlement of disputes compulsory rather than optional. Its limits should be stated honestly: the largest naval power is not a party; the exclusions in Articles 297 and 298 keep the most sensitive disputes out of the machinery; and an award binds only those willing to be bound, as the South China Sea arbitration of 2016 showed. But India's acceptance of the 2014 award is the counter-example, and it is the strongest evidence that the system works when States choose to use it.

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

Treaties are the leading source today, being written, precise and the product of express consent. Law-making treaties (traites-lois) lay down general rules for many States: the Charter, the Geneva Conventions of 1949, the Vienna Convention on the Law of Treaties, UNCLOS. Treaty-contracts (traites-contrats) settle a particular matter between two or a few States. Obligation rests on Article 26 of the Vienna Convention, pacta sunt servanda, reinforced by Article 27, that internal law is no justification for non-performance. Article 34 provides that a treaty creates neither obligations nor rights for a third State without its consent, but Article 38 preserves the possibility that a treaty rule becomes binding on third States as custom.

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

Regional and bilateral custom. Asylum (Colombia v. Peru) (1950) accepted that a regional custom may exist though the alleged Latin American custom was not proved; Right of Passage over Indian Territory (Portugal v. India) (1960) accepted a bilateral custom between two States, holding that a practice continued for over a century and accepted as regulating their relations gave Portugal a right of passage for private persons, civil officials and goods in general, but not for armed forces, armed police, arms and ammunition.

The persistent objector. A State which has objected from the formative stage and consistently thereafter is not bound: Anglo-Norwegian Fisheries (1951).

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

Subsidiary and evidential only: they prove the law, they do not make it. Article 59: a decision has no binding force except between the parties and in respect of that particular case, so there is no stare decisis, though the Court follows itself closely in practice. "Judicial decisions" includes arbitral awards (Island of Palmas, 1928; Alabama Claims, 1872), decisions of other international tribunals, and decisions of municipal courts as evidence of State practice. The writings of Grotius, Vattel, Oppenheim, Brierly and Starke were of the first importance when the case law was thin; today the Court relies far more on the International Law Commission, whose Articles on State Responsibility (2001) are treated as very strong evidence of the law although no treaty has been adopted.

III. Article 38(2)

The Court may decide a case ex aequo et bono if the parties agree. No case has ever been so decided. It is not to be confused with equity within the law, which the Court applies regularly, particularly in maritime and boundary delimitation, where it seeks an equitable result.

IV. Sources Article 38 does not name

V. Hierarchy

The order in Article 38 is an order of resort, not of validity, except that clause (c) is residual and clause (d) is expressly subsidiary. Between treaty and custom of equal standing the maxims lex posterior derogat priori and lex specialis derogat generali apply, 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 only two processes by which States can make law for themselves, express agreement and settled practice accepted as law, supplemented by general principles borrowed from municipal systems to prevent a gap, and by decisions and writings which prove rather than create. Article 38 states that scheme faithfully for 1920. What a modern answer must add is that the century since has produced three things the Article does not mention, binding decisions of organs, resolutions capable of declaring custom, and unilateral undertakings, and one thing that changes the character of the system altogether: jus cogens, a class of norms from which no State may contract out, which is the point at which international law ceased to rest wholly on consent.