BLS LLB 5 Years Sem 9 Public International Law and Human Rights 2025-26 Question Paper with Solutions

In Part III, the Fundamental Rights: Article 15(3), enabling the State to make special provision for children; Article 21, the right to life with dignity, which for a child includes protection of health and strength and opportunities to develop in conditions of freedom and dignity; Article 21A, inserted by the 86th Amendment, 2002, free and compulsory education for all children of six to fourteen; Article 23, prohibiting traffic in human beings 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.

In Part IV, the Directive Principles: Article 39(e), that the tender age of children is not abused; Article 39(f), that children are given opportunities to develop in a healthy manner and in conditions of freedom and dignity and are protected against exploitation and moral and material abandonment; Article 45, early childhood care and education until the age of six; and Article 47 on nutrition.

The flag State of a ship is the State whose nationality the ship possesses and whose flag it is entitled to fly. Article 91 of UNCLOS 1982 provides that every State shall fix the conditions for the grant of its nationality to ships, for registration and for the right to fly its flag, and that there must exist a genuine link between the State and the ship.

Its importance is Article 92: a ship shall sail under the flag of one State only and, save in exceptional cases expressly provided for, shall be subject to its exclusive jurisdiction on the high seas. That rule of exclusive flag State jurisdiction is what maintains order on the high seas, where no State has sovereignty.

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

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.

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, a specialised agency of the United Nations with headquarters at Paris.

Its purpose under Article I 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."

Advisory jurisdiction, Article 64, which is the widest of any human rights court: any member State of the Organization of American States and its principal organs may request an opinion on the interpretation of the Convention or of other treaties concerning the protection of human rights in the American States, and a member State may ask for an opinion on the compatibility of its own domestic laws with those instruments.

Under section 12(a) of the Protection of Human Rights Act, 1993, the National Human Rights Commission may inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, or on a direction or order of any court, into a complaint of:

(i) violation of human rights or abetment thereof; or

(ii) negligence in the prevention of such violation, by a public servant.

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

The statute. 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 1993, 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. Minority status is thus fixed by an executive notification and not by any statutory test.

Composition, section 3. A Chairperson, a Vice-Chairperson and five Members, nominated by the Central Government from among persons of eminence, ability and integrity, of whom five, including the Chairperson, shall be from among the minority communities. The term of office 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. Under section 13 its annual report, with a memorandum of action taken and the reasons for non-acceptance of any recommendation, is laid before each House of Parliament.

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 grant of aid and in compulsory acquisition of their property. Article 350B provides for a Special Officer for Linguistic Minorities.

For full marks, cover: who an alien is, the two competing standards of treatment, admission and expulsion, the rights an alien has and does not have, expropriation, diplomatic protection with its two conditions, and the Indian position.

Who is an alien. An alien is a person present in the territory of a State of which he is not a national. International law leaves the admission of aliens to the discretion of the territorial State, but once admitted they are entitled to a certain standard of treatment, and the State becomes internationally responsible if it falls below it.

The two standards of treatment.

The national treatment standard, urged by Latin American States and expressed in the Calvo doctrine, is that an alien is entitled only to the treatment accorded to nationals, and must accept the local law and the local courts; the Calvo clause in a concession contract is an undertaking by the foreign investor not to seek the diplomatic protection of his own State.

The rights an alien has. Equality before the law and access to the courts; protection of life, liberty and property; freedom from arbitrary arrest and from torture; freedom of religion; the right to be informed of his right to consular access under Article 36 of the Vienna Convention on Consular Relations, 1963, a right the International Court enforced in LaGrand (2001), Avena (2004) and Jadhav (India v. Pakistan) (2019); and, where he is a refugee, the rights in the Convention of 1951.

The rights he does not have. Political rights, the franchise, and eligibility for public office; freedom to enter and to reside as of right; and, ordinarily, the exercise of certain professions and the ownership of certain kinds of property. Correspondingly he owes temporary allegiance and must obey local law, and may be liable to local taxation, though not ordinarily to compulsory military service.

Expropriation of alien property is lawful only if it is for a public purpose, non-discriminatory and accompanied by compensation. The measure of compensation is contested between the Hull formula, prompt, adequate and effective, and the "appropriate compensation" of General Assembly Resolution 1803 (XVII) of 1962 on permanent sovereignty over natural resources and of the Charter of Economic Rights and Duties of States, 1974.

For full marks, cover: the definition and its elements, the classifications by function, by number of parties and by subject, the stages in outline, reservations, and termination.

Definition. Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969, in force 27 January 1980, defines a treaty as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

Four elements follow: parties with treaty-making capacity; writing; an intention to create rights and obligations governed by international law; and the irrelevance of the name, so that convention, covenant, charter, protocol, pact, act, declaration, exchange of notes and concordat are all treaties if the other elements are present. Article 3 preserves the legal force of oral agreements and of agreements with other subjects of international law, and the parallel Vienna Convention of 1986 covers treaties involving international organisations.

Kinds of treaty.

By subject matter: political treaties, such as treaties of alliance, peace and neutrality; commercial treaties; treaties of extradition; constitutional treaties, which found international organisations; treaties of cession; and human rights and humanitarian treaties, which are distinctive because the obligations are owed to individuals rather than exchanged between States.

By duration: treaties for a fixed term, treaties of indefinite duration, and dispositive or "executed" treaties such as treaties of cession, which are performed once and create a permanent state of affairs.

The stages, in outline. Accrediting of representatives with full powers (Article 7, though Heads of State and Government and Foreign Ministers need none); negotiation and adoption of the text, by two thirds at a conference (Article 9); authentication (Article 10); signature; ratification, acceptance, approval or accession (Articles 14 to 16); entry into force (Article 24); and registration with the Secretariat under Article 102 of the Charter, failing which the treaty is valid but may not be invoked before any organ of the United Nations.

Conclusion. The treaty is the principal source of modern international law because it is the only means by which States can create precise obligations by express consent, and every rule about it follows from that. The distinction between law-making treaties and treaty-contracts matters because only the first can generate rules binding on States that never signed; the rules on reservations exist so that a State may accept most of a treaty without accepting all of it; and the rules on termination are drafted narrowly because pacta sunt servanda, Article 26, is the rule and everything else is the exception.

What it is not. The zone is not territory and not territorial sea. The coastal State has sovereign rights for specified purposes, not sovereignty, and it has no general legislative competence there.

What other States retain, Article 58. All States, coastal and land-locked, enjoy in the zone the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to those freedoms, subject to a duty to have due regard to the rights and duties of the coastal State.

The duties. Article 61 requires the coastal State to determine the allowable catch and to ensure through proper conservation and management measures that the living resources are not endangered by over-exploitation. Article 62 requires it to promote the objective of optimum utilisation and, where it cannot harvest the entire allowable catch, to give other States access to the surplus, with Articles 69 and 70 preferring land-locked and geographically disadvantaged States of the same subregion or region.

Conclusion. The exclusive economic zone is the central compromise of the Convention and should be described as such. Coastal States, particularly the newly independent and developing States, obtained exclusive rights over the fisheries and hydrocarbons off their own coasts, which they had been claiming unilaterally since the Truman Proclamation of 1945 and the Latin American declarations of the 1950s; and the maritime powers obtained in exchange the express preservation of navigation, overflight and cable laying throughout the zone. Neither side could have taken the whole, and the zone is the line on which they settled.

(1) The case and its facts.

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

First, discovery gives only an inchoate title. Discovery unaccompanied by any subsequent act creates at most an inchoate title, a claim which must be completed within a reasonable period by the effective occupation of the region claimed. It cannot prevail against a definite title founded on the continuous and peaceful display of sovereignty by another State. Spain had never effectively occupied Palmas, so its title had never been perfected, and by nemo dat quod non habet the United States could take by cession no more than Spain possessed.

Second, the continuous and peaceful display of territorial sovereignty is as good as title. Sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of that portion in the territory of any particular State, and the continuous and peaceful display of it, in relation to other States, is as good as a title. The display need only be appropriate to the character of the territory, so that in a remote and thinly peopled island the exercise proved by the Netherlands, though modest, was sufficient, and it had been open, uninterrupted and unchallenged for two and a half centuries.

(1) Is it a human rights violation?

Yes. It is a violation of the right to life and personal liberty under Article 21, and of Article 9 of the ICCPR.

Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law, and after Maneka Gandhi v. Union of India (1978) that procedure must be right, just and fair. After an acquittal there is no law and no procedure whatever authorising custody; every day of the detention is therefore a deprivation of personal liberty wholly without authority of law, and it is a continuing violation.

Article 22 and the corresponding provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 require production before a Magistrate and preclude detention beyond the period authorised; here there was no authority at all.

(2) The remedies available.

The writ of habeas corpus under Article 32 before the Supreme Court or Article 226 before the High Court, directing the detaining authority to produce him and to justify the detention; if no lawful justification is shown, the court orders immediate release. The petition may be presented by Mr X or by any person on his behalf, and even a letter or postcard may be treated as a petition: Sunil Batra v. Delhi Administration (No. 2) (1980).

Compensation in public law, in the same proceeding. This is the practical heart of the answer, because release alone is an empty remedy for a man who has already lost two years. Rudul Sah (1983) established it; Bhim Singh v. State of Jammu and Kashmir (1985) awarded fifty thousand rupees to a legislator unlawfully prevented from attending the Assembly; and Nilabati Behera (1993) settled that the remedy is a public law remedy under Articles 32 and 226, distinct from and in addition to a private law action, based on strict liability, to which sovereign immunity is no answer, and the Court relied expressly on Article 9(5) of the ICCPR.

A civil suit for damages for false imprisonment, which remains available in addition.

Conclusion. The detention is a plain violation of Article 21, because after acquittal no procedure established by law authorises custody at all, and it is equally a violation of Article 9 of the ICCPR. The effective remedy is habeas corpus under Article 32 or 226 together with compensation awarded in the same proceeding, on the authority of Rudul Sah; the State cannot escape by pleading the negligence of its officers or sovereign immunity, because Nilabati Behera settled that a claim founded on the breach of a fundamental right is a public law claim to which that defence has no application.

Article 39A, a Directive Principle inserted by the 42nd Amendment, 1976, directs the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and in particular to provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 22(1) guarantees the right of an arrested person to consult and to be defended by a legal practitioner of his choice; and Article 14 is engaged, because a system in which the outcome depends on the ability to pay is not equality before the law.

The statutory provisions. Section 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced section 304 of the Code of Criminal Procedure from 1 July 2024, requires the court, where the accused is not represented by a pleader in a trial before the Court of Session and it appears that he has not sufficient means to engage one, to assign a pleader for his defence at the expense of the State. Section 12 of the Legal Services Authorities Act, 1987 entitles a person whose annual income is below the prescribed limit, and every woman, child, member of a Scheduled Caste or Scheduled Tribe and person in custody, to free legal services.

Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 98, the undertrial prisoners case from Bihar. The Court held that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and is implicit in the guarantee of Article 21; the State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence, and that obligation cannot be discharged by the mere fact that the accused did not ask for it. In the same litigation the Court held that a speedy trial is also an ingredient of Article 21, and ordered the release of thousands of undertrials who had been in custody longer than the maximum sentence for the offences charged.

Khatri (II) v. State of Bihar, (1981) 1 SCC 627, the Bhagalpur blinding case, carried it further: the right to free legal aid arises when the accused is first produced before the Magistrate, and not merely at the stage of trial, and the Magistrate or Sessions Judge is under an obligation to inform the accused of his right; the State cannot avoid the obligation on grounds of financial or administrative inability.

(1) Recognise the famous case relating to similar circumstances as the above situation and write the name of the court which delivered the judgment. (2) Elaborate the judgment in the above case.

(1) The case and the court.

The case is The S.S. Lotus (France v. Turkey), and the court which delivered the judgment is the Permanent Court of International Justice, the predecessor of the present International Court of Justice, sitting at The Hague; judgment was delivered on 7 September 1927.

The reasoning, which is the reason the case is famous, is the Lotus principle. International law governs the relations between independent States, and the rules of law binding upon States therefore emanate from their own free will, expressed in conventions or in usages generally accepted as expressing principles of law. Consequently, restrictions upon the independence of States cannot be presumed. It followed that France had to point to a prohibitive rule forbidding Turkey to exercise jurisdiction, and could not; jurisdiction was permissive unless prohibited.

The jurisdictional basis accepted was the objective territorial principle, sometimes called the effects doctrine. A State may not exercise its power in the territory of another, but it may exercise jurisdiction in its own territory in respect of an act committed abroad whose effects are felt within it. The Boz-Kourt was assimilated to Turkish territory, so the effects of the negligent navigation were produced on Turkish territory, and the case was one of concurrent jurisdiction between the flag State of the offending vessel and the flag State of the victim vessel.

Conclusion. The judgment answers the problem twice over, and both halves must be given, because its result has been reversed while its principle survives. The result was reversed by treaty: first by the Brussels Convention of 1952, then by Article 11 of the Geneva Convention on the High Seas, 1958, and now by Article 97 of UNCLOS 1982, under which in the event of a collision or any other incident of navigation concerning a ship on the high seas involving the penal responsibility of the master or any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against him except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national, and no arrest or detention of the ship may be ordered by any authority other than those of the flag State. On the facts of this problem, therefore, Turkey could not prosecute today; the French officer would be triable only in France, as the flag State and as the State of his nationality. What survives is the Lotus principle itself, that what is not prohibited to a State is permitted, which was invoked as recently as the Kosovo advisory opinion (2010).

For full marks, cover: what an NGO is and its status in international law, its functions at the international level, its functions in India with the leading cases, the statutory roles it occupies, the regulation of foreign funding and the criticisms, and a conclusion.

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, since Article 34(1) of the Statute confines parties to States, but its place in the system is expressly 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.

Participation in the Human Rights Council. They contribute to the Universal Periodic Review through stakeholder submissions, brief the special procedures, and speak under the Article 71 arrangements.

Standard setting. The Convention against Torture, 1984 owes much to Amnesty's campaign against torture, for which it received the Nobel Peace Prize in 1977; the Rome Statute, 1998 was promoted by a coalition of some eight hundred organisations; and the Ottawa Convention on landmines, 1997 was driven by the International Campaign to Ban Landmines, itself a Nobel laureate that year.

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

III. Their functions in India

Public interest litigation is the principal contribution, made possible by the relaxation of locus standi under Articles 32 and 226, so that a body with no personal grievance may sue for those who cannot: S. P. Gupta v. Union of India (1981).

M. C. Mehta v. Union of India, the environmental line from the oleum gas leak (1987) through the Ganga pollution cases to the Taj trapezium (1996); Sheela Barse v. Union of India (1986) on children in jails; Laxmi v. Union of India (2014) on acid attacks; Independent Thought v. Union of India (2017); and Common Cause v. Union of India (2018) on passive euthanasia.

Service delivery, legal aid and empowerment. Shelters, one-stop centres, rescue and rehabilitation of trafficked and bonded persons, bridge schools; legal aid clinics with the National Legal Services Authority under the Act of 1987; and economic organisation, of which the Self Employed Women's Association, founded by Ela Bhatt at Ahmedabad in 1972 and registered as a trade union, is the outstanding example.

Monitoring and advocacy. Documentation of custodial deaths and encounters; shadow reports to the treaty bodies; and legislative campaigns which produced the Protection of Women from Domestic Violence Act, 2005, drafted with the Lawyers Collective, and the Criminal Law (Amendment) Act, 2013, which followed the Justice J. S. Verma Committee report and its eighty thousand submissions.

IV. Statutory recognition in India

The standing criticisms are dependence on foreign funds and the accountability that follows; uneven quality, duplication and urban bias; and the argument that advocacy may displace rather than compel the State's own responsibility. Against them stands the constitutional objection 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. At the international level the NGO supplies what the machinery of supervision cannot supply for itself, namely facts, 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 with very little enforcement, the effective sanction is documented publicity. In India the contribution has been different and larger: these bodies have converted unenforceable international standards into enforceable domestic law through the courts. Vishaka is the model, and the sequence it illustrates, from campaign to petition under Article 32, to guidelines binding under Article 141, to legislation, is what an answer to this question should describe. The open question is the balance struck by the Foreign Contribution (Regulation) Act between the legitimate regulation of foreign money and the freedom of association on which the whole activity rests.

Part III, Articles 12 to 35, contains the Fundamental Rights, which are enforceable: Article 32 makes the right to move the Supreme Court for their enforcement itself a fundamental right, which Dr Ambedkar called the heart and soul of the Constitution, and Article 13 makes any law inconsistent with them void to the extent of the inconsistency. They operate principally as limitations on State power.

Part IV, Articles 36 to 51, contains the Directive Principles, which Article 37 declares not enforceable by any court, but fundamental in the governance of the country, and which it shall be the duty of the State to apply in making laws. They operate as positive obligations of policy.

Part IVA, Article 51A, added by the 42nd Amendment, 1976, contains the Fundamental Duties, also unenforceable in themselves.

III. The content

Part IV. Article 38, a social order in which justice, social, economic and political, shall inform all the institutions of national life; Article 39, adequate means of livelihood, distribution of material resources for the common good, equal pay for equal work, and protection of the health and strength of workers and of children; Article 39A, equal justice and free legal aid; Article 41, the right to work, to education and to public assistance in unemployment, old age, sickness and disablement; Article 42, just and humane conditions of work and maternity relief; Article 43, a living wage; Article 45, early childhood care and education below six; Article 46, promotion of the educational and economic interests of the weaker sections; Article 47, nutrition and public health; Article 48A, protection of the environment; and Article 51, promotion of international peace and security and fostering respect for international law and treaty obligations.

IV. The history of the relationship

The relationship between the two Parts has passed through three phases, and stating them is what "significance" in the question calls for.

Since Maneka Gandhi v. Union of India (1978), which held that the procedure under Article 21 must be right, just and fair and that Articles 14, 19 and 21 must be read together, the Court has filled the content of Article 21 from Part IV. The result is that unenforceable directives have become enforceable rights:

Livelihood, Olga Tellis v. Bombay Municipal Corporation (1985), from Articles 39(a) and 41; food, People's Union for Civil Liberties (2001 onwards), from Article 47, producing the National Food Security Act, 2013; health, Consumer Education and Research Centre v. Union of India (1995), from Articles 39(e) and 47; education, Unni Krishnan v. State of Andhra Pradesh (1993), from Article 45, producing Article 21A and the Act of 2009; free legal aid and speedy trial, M. H. Hoskot (1978) and Hussainara Khatoon (1979), from Article 39A; just and humane conditions of work, Bandhua Mukti Morcha (1984), from Article 42; maternity benefit for daily wage workers, Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000), from Article 42 read with CEDAW; a clean environment, Subhash Kumar (1991) and Vellore Citizens (1996), from Articles 48A and 51A(g); and freedom from the adverse effects of climate change, M. K. Ranjitsinh v. Union of India (21 March 2024), from Articles 14 and 21.

Part IV remains unenforceable in terms, and what the Court has done through Article 21 is selective and case by case rather than systematic. Enforcement is weak: the right to a speedy trial was declared in 1979 and roughly three quarters of the prison population are still undertrials. Fundamental rights bind the State, defined in Article 13, and reach private conduct only through Articles 15(2), 17, 23 and 24. Emergency: Articles 358 and 359 permit suspension, though since the 44th Amendment, 1978 Articles 20 and 21 can never be suspended, a change made because of ADM Jabalpur v. Shivkant Shukla (1976), which was expressly overruled in Puttaswamy (2017). And two rights of the Universal Declaration have no Indian counterpart at all: asylum and nationality; while the right to property ceased to be a fundamental right with the 44th Amendment and is now a constitutional right under Article 300A.

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

I. What is meant by a source

A formal source is the process by which a rule acquires binding force; a material source is the evidence of the content of the rule. A resolution of the General Assembly, a draft of the International Law Commission or a treatise may be powerful material evidence of a rule whose formal source is custom.

The authoritative enumeration is Article 38(1) of the Statute of the International Court of Justice. In form it directs the Court, whose function is to decide in accordance with international law such disputes as are submitted to it; but because the Statute is annexed to the Charter and every Member of the United Nations is a party to it, the Article is universally treated as the statement of the sources of international law generally.

II. International conventions, Article 38(1)(a)

The material element, State practice, evidenced by diplomatic correspondence, policy statements, opinions of legal advisers, national legislation, executive practice, decisions of municipal courts and conduct in international organisations. It must be general, uniform and consistent. North Sea Continental Shelf (1969) held that the passage of only a short period is not necessarily a bar, provided practice within that period, including that of States whose interests are specially affected, is extensive and virtually uniform. Absolute uniformity is not required: Nicaragua (1986) held that conduct inconsistent with a rule, defended by the actor as an exception, confirms rather than weakens the rule.

The psychological element, opinio juris sive necessitatis, the conviction that the practice is legally obligatory. Lotus (1927): abstention would prove nothing unless States were conscious of a duty to abstain.

Custom may be regional or bilateral: Asylum (Colombia v. Peru) (1950) and Right of Passage over Indian Territory (Portugal v. India) (1960), where a practice continued for over a century between the two States gave a right of passage for private persons, civil officials and goods in general, but not for armed forces, armed police, arms and ammunition.

Subsidiary means only: they do not create law, they prove it. Article 59 provides that a decision has no binding force except between the parties and in respect of that particular case, so there is no doctrine of precedent, though the Court follows its own reasoning closely. "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 and now carry less weight than the International Law Commission, whose Articles on State Responsibility (2001) are treated as very strong evidence of the law though 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 is distinct from equity within the law, which the Court applies regularly in maritime and boundary delimitation.

VII. Sources the Statute does not name

The order in Article 38 is an order of resort, not of validity, except that clause (c) is residual and clause (d) subsidiary. Between treaty and custom of equal standing, lex posterior and lex specialis apply, subject to Article 103 of the Charter and to jus cogens, which prevails over everything.

Conclusion. International law is made without a legislature, so its sources are the only two ways in which States can bind themselves: express agreement, which produces treaties, and settled practice accepted as law, which produces custom. General principles prevent a gap, and judicial decisions and juristic writings prove what has been made rather than making it. Article 38 describes that scheme accurately for 1920 and incompletely for today, because the century since has added binding decisions of organs, resolutions capable of declaring custom, and unilateral undertakings; and above all 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.

Discrimination against women means 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.

Three features of that definition do the work. The words "effect or purpose" bring indirect discrimination within it, so a facially neutral rule that disadvantages women in practice is caught. The words "irrespective of their marital status" were inserted deliberately, because much discrimination against women is discrimination against wives. And the fields listed are exhaustive of every sphere of life, private as well as public.

III. The general obligations, Articles 2 to 5

Article 5(a) requires States to modify the social and cultural patterns of conduct of men and women, with a view to eliminating prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles; and 5(b) to ensure that family education includes a proper understanding of maternity as a social function and of the common responsibility of men and women in the upbringing of children.

IV. The substantive articles, field by field

Article 6, suppression of traffic in women and exploitation of prostitution. Article 7, elimination of discrimination in political and public life: the right to vote, to be eligible for election, to participate in the formulation of government policy and to hold public office. Article 8, opportunity to represent the government internationally. Article 9, equal rights with respect to nationality, including that neither marriage to an alien nor a change of nationality by the husband shall automatically change the wife's nationality, and equal rights with respect to the nationality of children.

Article 13, economic and social life, including family benefits, bank loans, mortgages and other forms of financial credit. Article 14, rural women, and the particular problems they face and their role in the economic survival of their families, including access to agricultural credit, land reform and self-help groups.

Article 15, equality before the law, including a legal capacity identical to that of men, and the declaration that all contracts and private instruments restricting the legal capacity of women shall be deemed null and void; and the same rights as to the movement of persons and the freedom to choose residence and domicile.

Article 16, marriage and family relations: the same right to enter into marriage, to free and full consent, the same rights and responsibilities during marriage and at its dissolution, as parents, to decide freely on the number and spacing of children, in guardianship and adoption, in the choice of family name, profession and occupation, and in the ownership and disposition of property. Article 16(2) provides that the betrothal and marriage of a child shall have no legal effect and requires States to specify a minimum age for marriage and to make registration compulsory.

V. Machinery, Articles 17 to 22

On ratification India made three statements:

A declaration on Articles 5(a) and 16(1), that it will abide by and ensure these provisions 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 though it fully supports the principle of compulsory registration of marriages, it is not practicable in a vast country like India with its variety of customs, religions and levels of literacy.

A reservation to Article 29(1), that it does not consider itself bound by the provision for the reference of disputes about the interpretation or application of the Convention to arbitration and to the International Court of Justice.

PART THREE: SUBSTANTIATION, WHAT INDIA HAS DONE

In the courts. Because India is dualist as to treaties, the Convention is not directly enforceable; Article 253 would require legislation. The courts have instead used it as an aid to the construction of the fundamental rights, relying on Article 51(c).

In legislation. The Protection of Women from Domestic Violence Act, 2005; the Sexual Harassment of Women at Workplace Act, 2013; the Criminal Law (Amendment) Act, 2013, following the Justice J. S. Verma Committee, and that of 2018; the Prohibition of Child Marriage Act, 2006, which answers Article 16(2); the Hindu Succession (Amendment) Act, 2005, making a daughter a coparcener by birth, which answers Article 16(1)(h); the Maternity Benefit (Amendment) Act, 2017, raising paid leave to twenty-six weeks, which answers Article 11(2); the Equal Remuneration Act, 1976, now Chapter II of the Code on Wages, 2019; and the Constitution (106th Amendment) Act, 2023, reserving one third of seats for women in the House of the People and the State Legislative Assemblies, which answers Article 7.

Conclusion. CEDAW protects women by three techniques that no earlier instrument combined: it defines discrimination by its effect as well as its purpose, so that indirect discrimination is caught; it reaches private conduct and cultural practice, obliging States under Articles 2(e) and 5(a) to act against discrimination by any person or organisation and to modify social patterns founded on the inferiority of either sex; and it authorises temporary special measures which are expressly not discrimination. India has ratified it, on 9 July 1993, but with declarations on Articles 5(a), 16(1) and 16(2) and a reservation to Article 29(1), and without the Optional Protocol. The substantiation is therefore mixed and should be stated that way: India has legislated extensively in the areas the Convention covers, and its courts have used the Convention to create rights where Parliament was silent, as Vishaka shows; but the declarations shield personal law from the very article, Article 5(a), that was drafted to reach it, and the absence of the Optional Protocol means that an Indian woman has no international remedy at all.