BLS LLB 5 Years Sem 9 Public International Law and Human Rights 2024-25 Question Paper with Solutions

A land-locked State is a State which has no sea coast: Article 124(1)(a) of the United Nations Convention on the Law of the Sea, 1982. There are about forty-four such States, among them Nepal, Bhutan, Afghanistan, Switzerland, Austria, Bolivia, Paraguay, Zambia and Uganda.

Under Part X of UNCLOS, Articles 124 to 132, it 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, on terms agreed by bilateral, subregional or regional agreement, and traffic in transit is exempt from customs duties and transit dues except charges for services rendered.

A vassal State is a State under the suzerainty of another: it manages its own internal affairs, but its external sovereignty is wholly or almost wholly vested in the suzerain State, which conducts its foreign relations and represents it in international dealings. It is therefore a part-sovereign State and not a full subject of international law.

Historical examples are the States under Ottoman suzerainty, such as Bulgaria before 1908 and Egypt before 1914.

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

Its purpose, under Article I of its Constitution, is to contribute to peace and security by promoting collaboration among the nations through education, science and culture, in order to further universal respect for justice, the rule of law and human rights. 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."

ICCPR is the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966 and in force from 23 March 1976. With the ICESCR and the Universal Declaration it forms the International Bill of Human Rights.

It contains 53 articles in six parts and guarantees the rights to self-determination (Article 1), life (6), freedom from torture (7), freedom from slavery (8), liberty and security of person (9), humane treatment in detention (10), fair trial (14), no retrospective punishment (15), privacy (17), thought, conscience and religion (18), expression (19), assembly and association (21 and 22), the family (23), the child (24), participation in public affairs (25), equality before the law (26) and the rights of minorities (27).

The functional or realistic modern theory, that both States and individuals are subjects, though not to the same extent: individuals possess international personality to the degree that international law confers rights on them or imposes duties on them directly. This is the accepted view, and the evidence for it is the practice of the last eighty years.

II. The evidence: duties imposed directly on individuals

Piracy is the oldest instance: a pirate is hostis humani generis, and by Articles 100 to 107 of UNCLOS 1982 every State may seize a pirate ship and try the persons on board, which is universal jurisdiction over an individual.

War crimes and crimes against humanity. The Nuremberg Tribunal (1946) stated the principle in the sentence that changed the subject: "crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." The Tokyo Tribunal followed; then the tribunals for the former Yugoslavia (1993) and Rwanda (1994); and finally the International Criminal Court under the Rome Statute, 1998, in force 2002, with jurisdiction under Article 5 over genocide, crimes against humanity, war crimes and the crime of aggression. India is not a party to the Rome Statute.

Investment law goes further: bilateral investment treaties and the ICSID Convention, 1965 allow an investor to sue a State directly before an international tribunal, without the intervention of his own government.

IV. The limits

The individual is a subject to a limited extent, and an accurate answer says where the limits are. He cannot make treaties; he cannot be a party before the International Court of Justice, since Article 34(1) of the Statute provides that only States may be parties; he has no vote and no representation in international organisations; his access to international remedies depends on his State having accepted the relevant optional procedure, which is why no individual in India can petition the Human Rights Committee; and diplomatic protection remains a right of the State, which may decline to exercise it.

For full marks, cover: the governing principle, the international instruments, the constitutional basis, the specific rights with cases, the remedies including public law compensation, what a convict does not have, and a conclusion.

I. The governing principle

A convict does not cease to be a person or to hold fundamental rights. Charles Sobraj v. Superintendent, Central Jail, Tihar (1978): imprisonment does not spell farewell to fundamental rights. Sunil Batra v. Delhi Administration (No. 2) (1980) held that the writ of the Court runs inside the prison walls, and T. V. Vatheeswaran v. State of Tamil Nadu (1983) that the rights in Articles 14, 19 and 21 are available to prisoners as well as to free persons, subject only to the restrictions that are the necessary incidents of lawful custody.

II. International instruments

Against torture and inhuman treatment. Sunil Batra (No. 1) (1978) read down section 30(2) of the Prisons Act, 1894, so that a prisoner under sentence of death may not be kept in solitary confinement merely because of the sentence, and section 56 on bar fetters, which may not be imposed without recorded reasons and a hearing. Prem Shankar Shukla v. Delhi Administration (1980): handcuffing is prima facie inhuman and permissible only on a clear and present danger of escape, recorded in writing.

To free legal aid. M. H. Hoskot v. State of Maharashtra (1978), a free copy of the judgment and a lawyer for the appeal; Khatri (II) v. State of Bihar (1981), the right arises at the first appearance before the Magistrate. Statutorily, section 12 of the Legal Services Authorities Act, 1987 and section 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

To a speedy trial. Hussainara Khatoon v. State of Bihar (1979), which ordered the release of undertrials held longer than the maximum sentence for the offence charged.

To dignity and the bare necessaries of life. Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981), which also secured the right to meet family, friends and counsel.

To health and medical treatment. Parmanand Katara v. Union of India (1989).

No fundamental right to vote: section 62(5) of the Representation of the People Act, 1951, upheld in Anukul Chandra Pradhan v. Union of India (1997). No unrestricted freedom of movement, association or occupation, those being inconsistent with incarceration. Conjugal rights remain unsettled at the level of the Supreme Court, though Jasvir Singh v. State of Punjab (2014, Punjab and Haryana High Court) recognised a right to conjugal visits and to artificial insemination in appropriate cases.

Conclusion. The Indian position on the rights of convicts is doctrinally generous and administratively poor. The rule is that a prisoner retains every right except those necessarily lost by lawful confinement, torture is a violation of Article 21 for which compensation is payable with no defence of sovereign immunity, and a postcard will begin the proceedings. The gap is in the prisons themselves: occupancy well above capacity, and roughly three quarters of the prison population being undertrials, which is a continuing failure of the very right that Hussainara Khatoon established in 1979. The unratified Convention against Torture and the absence of a distinct offence of custodial torture are the other side of the same picture.

(a) States are juridically equal; (b) each State enjoys the rights inherent in full sovereignty; (c) each State has the duty to respect the personality of other States; (d) the territorial integrity and political independence of the State are inviolable; (e) each State has the right freely to choose and develop its political, social, economic and cultural systems; and (f) each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

III. The consequences that flow from it

One State, one vote in the General Assembly. Article 18(1) of the Charter: each Member shall have one vote, whatever its size or contribution.

Non-intervention. No State may intervene in matters within the domestic jurisdiction of another, a corollary stated in Article 2(7) as against the Organization and in Resolution 2625 as against States; Nicaragua v. United States (1986) held the principle to be part of customary international law.

Prohibition of the threat or use of force, Article 2(4), which protects the territorial integrity and political independence of every State equally.

Weighted voting elsewhere. The International Monetary Fund and the World Bank allocate votes by quota, so equality of States does not extend to the financial institutions.

Human rights. Since the Vienna Declaration, 1993, the treatment by a State of its own nationals is a legitimate concern of the international community, which narrows the domestic jurisdiction clause considerably.

Jus cogens binds a State whether or not it consented, and Article 103 subordinates all other treaty obligations to the Charter.

Inequality of fact. The formal equality of a State of ten thousand people and one of a billion does not translate into equality of influence, which is why developing States pressed for the common heritage of mankind in Part XI of UNCLOS and for common but differentiated responsibilities in environmental law, both of which are attempts to give substantive content to formal equality.

For full marks, cover: what an NGO is and its recognition in law, the functions it performs in India with the leading cases, its statutory roles, the regulation of funding, the criticisms, and a conclusion.

I. What they are and how they are recognised

A non-governmental organisation is a voluntary, non-profit body independent of government, formed to pursue a public purpose. In India it is registered as a society under the Societies Registration Act, 1860, as a public trust under State legislation such as the Maharashtra Public Trusts Act, 1950, or as a section 8 company under the Companies Act, 2013.

Internationally, Article 71 of the Charter authorises the Economic and Social Council to make arrangements for consultation with non-governmental organisations, and Indian organisations hold consultative status and submit shadow reports to the treaty bodies and to the Universal Periodic Review.

II. What they do: public interest litigation

M. C. Mehta v. Union of India, the whole line of environmental cases from the oleum gas leak (1987) to the Taj trapezium (1996); and Common Cause v. Union of India (2018) on passive euthanasia and the living will.

III. Their other functions

Service delivery: shelters and one-stop centres, rescue and rehabilitation of trafficked and bonded persons, bridge schools, disaster relief.

Legal aid: clinics and paralegal work in partnership with the National Legal Services Authority under the Legal Services Authorities Act, 1987.

Economic empowerment: the Self Employed Women's Association, founded by Ela Bhatt at Ahmedabad in 1972 and registered as a trade union, which organised informal sector women and pioneered micro-credit; and the self-help group movement working with the National Rural Livelihoods Mission.

Awareness, research and monitoring: legal literacy, documentation of custodial deaths and encounters, and shadow reports.

IV. Statutory roles

The standing criticisms are dependence on foreign funds and the accountability that follows; uneven quality and duplication; urban and middle class bias in the choice of causes; and the argument that advocacy can displace the State's own responsibility rather than compel it. Against that stands the constitutional objection to the regulation itself, that the FCRA regime bears on the freedom of association under Article 19(1)(c) and the freedom of speech under Article 19(1)(a).

Conclusion. The distinctive achievement of the Indian NGO has been to convert unenforceable international standards 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. That sequence, from campaign to petition to guideline to statute, is what these bodies do in India, which is why an answer to this question is properly a list of cases and statutes rather than a list of organisations. The open question is the balance struck by the FCRA between legitimate regulation of foreign money and the freedom of association on which the whole activity rests.

(b) Give suggestions to improve the conditions of the migrant workers and their family members.

(a) The rights violated.

The right to livelihood and to live with human dignity, Article 21. Olga Tellis v. Bombay Municipal Corporation (1985) held that the right to life includes the right to livelihood; Bandhua Mukti Morcha v. Union of India (1984) held that it includes the right to live with human dignity, which for a workman means protection of health and strength, just and humane conditions of work and relief against sickness and disablement, deriving that content from Articles 39(e), 41 and 42.

Statutory rights. Formerly under the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, which required registration of establishments, licensing of contractors, a displacement allowance, a journey allowance, suitable residential accommodation, medical facilities and protective clothing; the Minimum Wages Act, 1948; the Factories Act, 1948; and the Contract Labour (Regulation and Abolition) Act, 1970. All four are now subsumed in the labour codes brought into force on 21 November 2025: the Occupational Safety, Health and Working Conditions Code, 2020, which carries forward the inter-State migrant worker provisions and, importantly, redefines an inter-State migrant worker to include a worker who comes on his own and not only one brought by a contractor; the Code on Wages, 2019, which makes a statutory floor wage and timely payment enforceable for all workers; and the Code on Social Security, 2020, which extends provident fund, insurance and maternity benefit and brings unorganised, gig and platform workers within a statutory scheme.

Wages and social security. Payment through bank transfer with digital wage records; provident fund and employees' state insurance coverage; and the displacement and journey allowances that the Code carries forward from the Act of 1979.

Safety and health. Compulsory personal protective equipment, safety committees, periodical medical examination, and free treatment for occupational disease on the Consumer Education and Research Centre model.

Housing, education and family. Decent employer-provided or subsidised accommodation, creches, and admission of migrant children to local schools under section 4 of the Right to Education Act, 2009, which entitles a child to admission at any time in an age-appropriate class.

Legal remedies. A writ petition under Article 32 or 226 in the public interest; a complaint to the National or State Human Rights Commission, which may inquire suo motu under section 12(a) and recommend interim relief under section 18(c); and free legal aid, to which he is entitled under section 12 of the Legal Services Authorities Act, 1987 if his income is below the prescribed limit.

(a) The role of the Security Council.

Its primary responsibility. Article 24(1) confers on the Security Council primary responsibility for the maintenance of international peace and security, and Members agree that in carrying out its duties under that responsibility the Council acts on their behalf. Article 25 obliges Members to accept and carry out its decisions, and Article 103 gives Charter obligations priority over any other agreement.

Article 41. Measures not involving the use of armed force: complete or partial interruption of economic relations, of communications, and severance of diplomatic relations. In practice: arms embargoes, targeted sanctions on individuals and entities, travel bans, asset freezes, and sanctions committees with panels of experts.

Accountability measures under Article 41. The Council has used the same power to create the International Criminal Tribunal for the former Yugoslavia (Resolution 827, 1993) and for Rwanda (Resolution 955, 1994), and to refer a situation to the International Criminal Court under Article 13(b) of the Rome Statute, as it did for Darfur in 2005 (Resolution 1593) and Libya in 2011 (Resolution 1970). That is the direct answer to widespread human rights violations, because it reaches the individuals responsible.

Article 42. Action by air, sea or land forces as may be necessary. In modern practice the Council does not command forces itself, because the Article 43 agreements were never concluded and the Article 47 Military Staff Committee has never functioned; instead it authorises Member States or a regional arrangement to use "all necessary measures", as in Resolution 1973 (2011) on Libya.

What it is. Article 27(3): decisions of the Security Council on all matters other than procedural shall be made by an affirmative vote of nine members including the concurring votes of the permanent members. By long practice, confirmed by the International Court in the Namibia advisory opinion (1971), an abstention is not a veto.

The case for it. It reflects the reality of power: an enforcement decision that the great powers oppose cannot be carried out, and a Council that ordered what could not be enforced would destroy its own authority. It was the price of the United Nations existing at all, since none of the five would have joined without it, and it is why the Organization did not go the way of the League. It prevents the Organization from being used by a majority as an instrument against a great power, which would risk a direct confrontation between them. And Article 27(3) itself contains a limit: a party to a dispute shall abstain from voting in decisions under Chapter VI.

Conclusion. The Security Council has ample legal power to deal with the civil war described: it may determine a threat to the peace under Article 39, impose an arms embargo and targeted sanctions under Article 41, refer the situation to the International Criminal Court, authorise a peacekeeping or protection mandate, and in the last resort authorise force under Article 42. Whether it does any of these depends entirely on the veto, and that is my view of the veto's utility: it was defensible in 1945 as the price of a universal organisation and it remains a realistic recognition that enforcement without great power agreement is impossible, but its use to shield allies from accountability in mass atrocity situations is indefensible. Since abolition is impossible, because Article 108 gives each permanent member a veto over its own removal, the practical course is the one now being taken: restraint by voluntary code in atrocity cases, and the automatic General Assembly debate under Resolution 76/262, which converts an unexplained veto into a public accounting.

The sanction, and its limits. Article 102(2) provides that no party to any such treaty or international agreement which has not been registered may invoke that treaty or agreement before any organ of the United Nations. That is the only consequence the Charter attaches. It does not say that an unregistered treaty is void, or that it does not bind the parties. An unregistered treaty is therefore perfectly valid and binding between the parties under pacta sunt servanda, Article 26 of the Vienna Convention; it suffers a procedural disability, not an invalidity.

The history explains the rule. It is aimed at secret treaties, which were widely blamed for the alliance system that produced the First World War. Article 18 of the Covenant of the League of Nations, 1919 went further and provided that no treaty should be binding until registered, following President Wilson's first of the Fourteen Points, which called for open covenants of peace openly arrived at. The drafters of the Charter deliberately softened that rule, because making validity depend on registration produced absurd results between the parties themselves; so Article 102(2) substituted unenforceability before United Nations organs for invalidity.

It defeats the object of publicity and revives the evil of secret diplomacy. A treaty that is not registered is not published in the United Nations Treaty Series, so third States, the organs of the Organization and the public do not know of it. That is precisely the mischief Article 102 exists to prevent, and it makes the assessment of a State's obligations by others impossible.

It creates uncertainty and evidentiary difficulty for the parties themselves. Registration and publication produce an authoritative, dated, official text, which is the best evidence of the terms of the agreement and of the date of its entry into force. Without it, a party seeking to prove the terms in later proceedings, whether before an international or a national tribunal, must rely on its own copies, and disputes about the authentic text and about whether the instrument was intended to be binding at all become far harder to resolve. It also deprives the treaty of the interpretative assistance that a registered and published series provides, and it complicates depositary functions, notification of reservations and succession.

(a) The human rights violated.

The right to life with human dignity, Article 21. Rape is not merely an offence against the person; it is a violation of the fundamental right to life under Article 21. Bodhisattwa Gautam v. Subhra Chakraborty (1996) said so expressly: rape is a crime against basic human rights and a violation of the victim's most cherished fundamental right, the right to life contained in Article 21. Chairman, Railway Board v. Chandrima Das (2000) repeated it and awarded compensation in a writ petition. Francis Coralie Mullin (1981) supplies the content of dignity.

The right against inhuman treatment, part of Article 21, and Article 5 of the Universal Declaration and Article 7 of the ICCPR, which prohibit torture and cruel, inhuman or degrading treatment.

The right to a remedy and to compensation. Article 8 of the Universal Declaration and Article 2(3) of the ICCPR; and in domestic law compensation in public law under Articles 32 and 226 (Nilabati Behera, 1993) and the statutory victim compensation scheme under section 396 of the Sanhita of 2023, formerly section 357A of the Code, on which the Supreme Court laid down directions in Nipun Saxena v. Union of India (2018) approving the NALSA Compensation Scheme for Women Victims of Sexual Assault.

The international instruments. Articles 1, 3, 5, 7 and 8 of the Universal Declaration; Articles 6, 7, 9 and 26 of the ICCPR; CEDAW with General Recommendations 19 and 35; and the Declaration on the Elimination of Violence against Women, 1993, which defines violence against women to include physical, sexual and psychological violence occurring in the family and in the community.

The criminal law engaged. Section 70 of the Bharatiya Nyaya Sanhita, 2023 punishes gang rape with rigorous imprisonment of not less than twenty years, extendable to imprisonment for life meaning the remainder of natural life, with fine to be paid to the victim, and provides the death penalty where the victim is under eighteen. These provisions descend from the Criminal Law (Amendment) Act, 2013, enacted on the report of the Justice J. S. Verma Committee after the Delhi case of December 2012, and the amendment of 2018.

Institutional measures. One-stop centres and Fast Track Special Courts for offences under the Sanhita and the POCSO Act; adequate numbers of women police and of forensic laboratories; the Investigation Tracking System for Sexual Offences and the national database of sexual offenders; the 112 helpline and the 181 women's helpline; and the Nirbhaya Fund.

Compensation and rehabilitation under the NALSA scheme and section 396 of the Sanhita, with interim compensation ordered at an early stage.

Prevention. Public awareness and legal literacy; gender sensitisation of the police, the prosecution and the judiciary, which the Supreme Court directed in Aparna Bhat v. State of Madhya Pradesh (2021) while deprecating bail conditions requiring an accused to be tied by rakhi to the victim; sensitisation modules in the curriculum; village level vigilance and functioning Mahila Panchayats; street lighting, transport and policing in rural areas; and functioning Internal Committees under the Sexual Harassment of Women at Workplace Act, 2013 where the workplace is involved.

Treaties are the leading source today: they are written, precise and founded on express consent, and there are now many tens of thousands of them.

Law-making treaties (traites-lois) lay down general rules for a large number of States: the Charter, the Geneva Conventions of 1949, the Vienna Convention on the Law of Treaties, UNCLOS 1982. Treaty-contracts (traites-contrats) settle a particular matter between two or a few States and create law only between them.

Their binding force rests on pacta sunt servanda, Article 26 of the Vienna Convention: every treaty in force is binding upon the parties and must be performed in good faith; Article 27 adds 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, and Article 38 preserves the possibility that a rule set out in a treaty becomes binding on third States as customary international law.

III. Article 38(1)(b): international custom

Custom has two elements.

Custom may be regional or bilateral. Asylum (Colombia v. Peru) (1950) accepted regional custom in principle; Right of Passage over Indian Territory (Portugal v. India) (1960) accepted a bilateral custom, holding that a practice continued between two States over more than 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).

IV. Article 38(1)(c): general principles of law

Subsidiary means only. They do not create law; they prove it. Article 59 provides that a decision of the Court has no binding force except between the parties and in respect of that particular case, so there is no doctrine of precedent, though the Court follows its own reasoning closely and departs from it only with reasons. "Judicial decisions" includes the judgments of the Permanent Court, arbitral awards such as Island of Palmas (1928) and the Alabama Claims (1872), decisions of other international tribunals, and decisions of national courts as evidence of State practice. The writings of Grotius, Vattel, Oppenheim, Brierly and Starke were formative when there was little decided law; today the Court relies far more on the International Law Commission, whose Articles on State Responsibility (2001) are treated as very strong evidence although no treaty has been adopted.

VI. Article 38(2)

The Court may decide ex aequo et bono if the parties agree; no case has ever been so decided. It must be distinguished from equity within the law, which the Court applies regularly, notably in maritime and boundary delimitation where it seeks an equitable result.

VII. The sources Article 38 does not name

The order in Article 38 is an order of resort and not of validity, except that clause (c) is residual and clause (d) is expressly subsidiary. Between treaty and custom of equal standing, lex posterior derogat priori and lex specialis derogat generali apply, subject to two overrides: Article 103 of the Charter and jus cogens.

Conclusion. International law has no legislature, so its sources are the only two processes by which States can make law for themselves: express agreement, which produces treaties, and settled practice accepted as law, which produces custom. General principles fill the gaps so that no case is undecidable, and judicial decisions and juristic writings prove what has been made rather than making it. Article 38 states that scheme accurately for 1920 and incompletely for today, because a century of practice has added binding decisions of organs, resolutions capable of declaring custom, and unilateral undertakings; and it has added jus cogens, a class of norms from which no State may contract out, which is the point at which the system ceased to rest wholly on consent.

II. The procedural innovations that made it usable

The machinery existed from 1950 and reached almost nobody until the Court changed the procedure.

Public interest litigation: the relaxation of locus standi, so that any public spirited person or organisation may move the Court on behalf of those who by reason of poverty, disability or a socially or economically disadvantaged position cannot approach it: 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 treated as a 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.

Investigative machinery: commissions, district judges and amicus curiae appointed to find facts, because a petitioner who cannot reach the court cannot lead evidence either.

Continuing mandamus: retention of the case and successive directions until compliance, as in Vineet Narain v. Union of India (1998), T. N. Godavarman Thirumulpad on forests, and the right to food case.

III. The substantive expansion of Article 21

India is dualist as to treaties: Article 253 requires legislation to implement a treaty, and Jolly George Varghese v. Bank of Cochin (1980) held that the ICCPR does not automatically become part of the corpus juris of India. The courts have therefore developed three routes.

Custom is incorporated. Customary international law not inconsistent with municipal law is deemed part of Indian law: Gramophone Company of India v. Birendra Bahadur Pandey (1984); Vellore Citizens Welfare Forum (1996), receiving the precautionary and polluter pays principles.

Conventions are used to construe the fundamental rights. Relying on Article 51(c), the Court holds that an international convention consistent with the fundamental rights and in harmony with their spirit must be read into them to enlarge their meaning and content: Vishaka v. State of Rajasthan (1997), which used CEDAW to lay down binding guidelines on sexual harassment in the absence of legislation; Apparel Export Promotion Council v. A. K. Chopra (1999); Chairman, Railway Board v. Chandrima Das (2000), applying the Universal Declaration to a foreign national.

Where legislation exists it is construed consistently with the treaty, on the presumption that Parliament does not intend to legislate contrary to India's international obligations.

The National Human Rights Commission and the State Commissions under the Protection of Human Rights Act, 1993, which inquire with civil court powers under section 13 and may under section 18(b) approach the Supreme Court or a High Court for directions, orders or writs, as the Commission itself did in NHRC v. State of Arunachal Pradesh (1996), obtaining protection for the Chakma refugees and a holding that Article 21 protects non-citizens. Human Rights Courts under section 30, the National Commissions for Women, Minorities, Scheduled Castes, Scheduled Tribes and Protection of Child Rights, and the legal services authorities under the Act of 1987 complete the structure.

VII. The limits

Enforcement. A declaration is not implementation; many orders remain unexecuted for want of any machinery to supervise them.

Delay. The right to a speedy trial was declared in 1979 and roughly three quarters of the prison population are still undertrials, which is the sharpest single indictment of the system.

Institutional competence and separation of powers. Polycentric questions of policy are not well decided in an adversarial forum on affidavits, and directions on administration have attracted the charge of judicial overreach.

For full marks, cover: the history and character of the Convention, then feature by feature: the maritime zones with their breadths and the nature of the rights in each, straits and archipelagic States, the Area and the common heritage of mankind, the environmental part, the institutions, compulsory dispute settlement, and India's position.

I. History and character

The United Nations Convention on the Law of the Sea was adopted at Montego Bay, Jamaica on 10 December 1982, at the close of the Third United Nations Conference on the Law of the Sea which had sat since 1973, and entered into force on 16 November 1994. It has 320 articles and nine annexes and is called the constitution for the oceans. It replaced the four Geneva Conventions of 1958, which had failed to fix the breadth of the territorial sea and had defined the continental shelf by an exploitability test capable of indefinite expansion. Part XI was modified by the Implementation Agreement of 1994 to bring in the industrialised States; the United States has still not ratified. It is a package deal: reservations are prohibited by Article 309.

Contiguous zone, up to 24 nautical miles (Article 33): control necessary to prevent and punish infringement of customs, fiscal, immigration and sanitary laws.

Exclusive economic zone, up to 200 nautical miles (Articles 55 to 75): sovereign rights to explore, exploit, conserve and manage the natural resources, living and non-living, of the waters, seabed and subsoil, and jurisdiction over artificial islands, marine scientific research and the environment (Article 56); other States retain the freedoms of navigation, overflight and cable laying (Article 58); and the coastal State must give access to any surplus of the allowable catch (Article 62), preferring land-locked and geographically disadvantaged States of the region (Articles 69 and 70).

Continental shelf (Articles 76 to 85): the seabed and subsoil throughout the natural prolongation of the land territory to the outer edge of the continental margin, or to 200 nautical miles, and in no case beyond 350 nautical miles or 100 nautical miles from the 2,500 metre isobath. The rights are exclusive and exist independently of occupation or express proclamation (Article 77), cover minerals and sedentary species, and do not affect the status of the waters above (Article 78). Article 82 requires payments to the International Seabed Authority for exploitation beyond 200 miles.

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

IV. The Area and the common heritage of mankind

Part XI: the Area, the seabed and ocean floor and subsoil beyond the limits of national jurisdiction, 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; activities are carried out for the benefit of mankind as a whole with particular consideration for the interests of developing States; and the Area is to be used exclusively for peaceful purposes. This is the Convention's single most original feature.

V. The environment, research and technology

Part XII, Articles 192 to 237: a general obligation on all States to protect and preserve the marine environment, with detailed provisions on pollution from land-based sources, seabed activities, dumping, vessels and the atmosphere, and on enforcement by flag, port and coastal States. Part XIII on marine scientific research, and Part XIV on the development and transfer of marine technology.

India signed in 1982 and ratified on 29 June 1995. Its domestic law is the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, which had already declared a 12 mile territorial sea, a 24 mile contiguous zone and a 200 mile exclusive economic zone. India settled its maritime boundary with Bangladesh in the Bay of Bengal by an Annex VII arbitral award of 7 July 2014 and accepted it.

Conclusion. The salient feature of the Convention, from which all the others follow, is the package deal it embodies: coastal States obtained a twelve mile territorial sea and resource rights out to two hundred miles, and in exchange the maritime States obtained transit passage through straits, freedom of navigation and overflight in the exclusive economic zone and the preservation of the high seas freedoms; and the developing States obtained the deep seabed as the common heritage of mankind. That bargain replaced a century of competing unilateral claims with an agreed and graduated scheme of rights, and made dispute settlement compulsory for the first time in a general multilateral treaty. Its limits are equally clear: the largest naval power is not a party, and the exclusions in Articles 297 and 298 keep the most sensitive disputes outside the machinery.

Two theories explain what recognition does. The constitutive theory (Hegel, Anzilotti, Holland) holds that recognition creates the State; the declaratory theory (Hall, Brierly, Fisher) holds that statehood is a question of fact which recognition merely acknowledges, and Article 3 of the Montevideo Convention supports it: the political existence of the State is independent of recognition by the other States. The prevailing view is intermediate: recognition is declaratory of the fact of statehood and constitutive of the legal relationship between the recognising and the recognised State. The distinction between de facto and de jure recognition is meaningful only on that intermediate view, because it presupposes that recognition does something.

II. De facto recognition

Definition. A provisional and revocable acknowledgment that a new State or authority possesses, in fact, the attributes of statehood or of governmental power, granted where it has effective control but where its permanence, stability, or willingness and ability to discharge international obligations are in doubt.

Revocability. De facto recognition may be withdrawn at any time if control is lost or the doubts are resolved against the entity; de jure recognition, on the better view, cannot be expressly withdrawn and ends only when the entity ceases to exist or another is recognised in its place.

Sequence. De facto recognition is commonly the first step and is followed by de jure recognition once doubts are resolved. Britain recognised the Soviet Government de facto in 1921 and de jure in 1924, and the Italian conquest of Abyssinia de facto in 1936 and de jure in 1938.

Number. A State may recognise only one government de jure, but may recognise one de jure and another de facto in different parts of the same territory during a civil war.

V. The effect on the diplomatic status of a newly declared State

Full diplomatic relations follow de jure recognition, not de facto. Under the Vienna Convention on Diplomatic Relations, 1961, Article 2, the establishment of diplomatic relations takes place by mutual consent, and States in practice exchange ambassadors only after de jure recognition. A de facto recognised authority is dealt with through agents, trade missions or consular officers rather than through an accredited ambassador.

Sovereign immunity. A recognised State and its property are immune from the jurisdiction of the courts of the recognising State. The Arantzazu Mendi [1939] AC 256 holds that a de facto recognised authority in control of territory is entitled to sovereign immunity in respect of a ship registered there, and that the executive certificate on recognition is conclusive on the court.

Effect given to its legislative and executive acts. Luther v. Sagor [1921] 3 K.B. 532: once the Soviet Government was recognised de jure, the English courts gave effect to its nationalisation decrees, and the recognition operated retroactively to 1917. Bank of Ethiopia v. National Bank of Egypt and Liguori [1937] Ch 513: for the purpose of giving effect to the acts of a recognised authority, de facto recognition has substantially the same effect as de jure. So on this, the most important head of all, the two forms converge.

Succession to property and to State assets located in the recognising State ordinarily follows de jure recognition; a de facto recognised authority cannot as a rule claim the predecessor's assets abroad.

Conclusion. De facto and de jure recognition differ in their conditions, their finality and their revocability, and the difference has real consequences for a newly declared State. On the diplomatic plane the difference is large: only de jure recognition brings an exchange of ambassadors, diplomatic privileges and the ordinary conduct of treaty relations, so a State recognised only de facto exists internationally in a diminished form. On the legal plane the difference is smaller than the terminology suggests, because the courts are concerned with whose acts are effective in the territory: on the authority of Bank of Ethiopia and The Arantzazu Mendi, a de facto recognised authority obtains immunity and has its acts given effect much as a de jure one does. The two heads on which de jure recognition is decisive are the claim to assets abroad and the retroactive validation of everything done before recognition, as Luther v. Sagor and Civil Air Transport show. And behind all of it stands the declaratory principle in Article 3 of the Montevideo Convention: whatever other States say, an entity that satisfies the conditions of statehood exists in fact, and is bound by international law whether it is recognised or not.