BLS LLB 5 Years Sem 9 Public International Law and Human Rights 2024-25 - ATKT 60/40 Question Paper with Solutions

Sovereignty is the supreme legal authority of a State: internally, the exclusive power to make and enforce law within its territory over all persons and things; externally, independence of any other State in the conduct of its affairs, which is the capacity referred to in Article 1(d) of the Montevideo Convention, 1933, to enter into relations with other States.

Max Huber stated the classical definition in Island of Palmas (1928): sovereignty in the relations between States signifies independence, and independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.

The Human Rights Council is a subsidiary organ of the General Assembly, created by Resolution 60/251 of 15 March 2006 to replace the Commission on Human Rights, with 47 members elected by the Assembly for three years, and sitting at Geneva.

Its role is to be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms, to address situations of violations, including gross and systematic violations, and make recommendations, and to promote the effective coordination and mainstreaming of human rights within the United Nations system. Its principal instruments are the Universal Periodic Review, the special procedures and the complaint procedure.

The International Court of Justice is the principal judicial organ of the United Nations under Article 92 of the Charter, sitting at The Hague, with fifteen judges elected for nine years by the General Assembly and the Security Council voting separately. Its role is twofold.

Contentious jurisdiction: to decide, in accordance with international law, disputes submitted to it by States, which alone may be parties (Article 34(1)); its judgment is final and without appeal (Article 60) and binds only the parties in that case (Article 59), and Article 94 obliges Members to comply.

Advisory jurisdiction under Article 96 of the Charter: to give advisory opinions on legal questions at the request of the General Assembly or the Security Council, or of other authorised organs and specialised agencies on questions arising within the scope of their activities; such opinions are not binding but carry great authority.

Jus ad bellum is the law governing the resort to force, that is, when a State may lawfully use armed force at all. It is contained in Article 2(4) of the Charter, which prohibits the threat or use of force, and in the two exceptions: self-defence against an armed attack under Article 51, and enforcement action authorised by the Security Council under Chapter VII.

Jus in bello, or international humanitarian law, is the law governing the conduct of hostilities once force is being used, whoever began it. It is contained in the four Geneva Conventions of 1949 and their Additional Protocols of 1977, and in the Hague Regulations, and rests on the principles of distinction, proportionality, military necessity and humanity.

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

The formal and the material. A formal source is the process which makes a rule binding; a material source is the evidence of its content, such as a General Assembly resolution, a draft of the International Law Commission or a treatise. The authoritative enumeration is Article 38(1) of the Statute of the International Court of Justice.

(a) International conventions. Treaties are the leading source today. Law-making treaties (traites-lois) lay down general rules for many States, such as the Charter, the Geneva Conventions and UNCLOS; treaty-contracts (traites-contrats) bind only the parties. Their force rests on pacta sunt servanda, Article 26 of the Vienna Convention, 1969, 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.

(d) Judicial decisions and juristic writings, as subsidiary means, subject to Article 59, under which a decision has no binding force except between the parties and in respect of that particular case, so there is no precedent. "Judicial decisions" includes arbitral awards such as Island of Palmas (1928) and decisions of national courts as evidence of practice.

Article 38(2) allows the Court to decide ex aequo et bono if the parties agree; no case has ever been so decided.

What Article 38 omits. Resolutions of the General Assembly, which are recommendations but may declare or crystallise custom, as Resolutions 1514 (1960) and 2625 (1970) did; binding decisions of organs, chiefly Security Council decisions under Chapter VII, which Article 25 obliges Members to carry out and Article 103 ranks above other agreements; unilateral declarations intended to bind (Nuclear Tests, 1974); jus cogens, a rank rather than a source, under Articles 53 and 64 of the Vienna Convention; and soft law.

Hierarchy. The order is one of resort, not of validity, except that clause (c) is residual and clause (d) subsidiary; lex posterior and lex specialis resolve conflicts between treaty and custom, subject to Article 103 and to jus cogens.

For full marks, cover: what the Peace of Westphalia was, its historical context, its terms, the principles it is credited with establishing, its place as the beginning of modern international law, and the modern criticism of that account.

What it was. The Peace of Westphalia, 1648 is the name given to two treaties signed on 24 October 1648, the Treaty of Osnabruck between the Holy Roman Emperor and Sweden with their allies, and the Treaty of Munster between the Emperor and France with theirs. Together they ended the Thirty Years War (1618 to 1648) in the Empire and, with the separate Peace of Munster of January 1648, the Eighty Years War between Spain and the Dutch Republic.

The context. The Thirty Years War began as a war of religion between Catholic and Protestant princes within the Holy Roman Empire and became a general European war. Its devastation, and the failure of both the universal claims of the Papacy and of the Empire, produced a settlement founded on the territorial State instead.

Non-intervention in the internal affairs of another State, and in particular in its religious arrangements, which is the ancestor of Article 2(7).

Diplomacy and the treaty as the ordinary means of ordering relations, the negotiations at Osnabruck and Munster being the first great multilateral congress in European history and the model for Utrecht, Vienna, Paris and San Francisco.

The rejection of the universal authority of the Pope and the Emperor over temporal rulers.

Its place in the subject. For that reason the Peace is conventionally treated as the beginning of modern international law, and the system of States it inaugurated is still called the Westphalian system. Hugo Grotius, whose De Jure Belli ac Pacis was published in 1625, in the middle of the war and generally regarded as the founding work of the discipline, supplied the theory for which Westphalia supplied the practice.

For full marks, cover: the Court's place and composition, the basis of jurisdiction in consent with the three routes, the procedure and provisional measures, the effect and enforcement of a judgment, the advisory function, the contribution to the development of the law, and the limits.

Its place and composition. The International Court of Justice is the principal judicial organ of the United Nations (Article 92 of the Charter), successor to the Permanent Court of International Justice, sitting at the Peace Palace, The Hague. It has fifteen judges of different nationalities elected for nine years by the General Assembly and the Security Council voting separately and independently, representing the main forms of civilisation and the principal legal systems of the world; a party with no judge of its nationality on the bench may appoint a judge ad hoc under Article 31.

Jurisdiction rests on consent, and is given in three ways.

The judgment. Decided by a majority, the President having a casting vote (Article 55); reasons stated and separate and dissenting opinions permitted (Article 57); final and without appeal (Article 60), subject to interpretation and to revision within ten years on a decisive new fact (Article 61); and binding only between the parties and in respect of that case (Article 59). Article 94 of the Charter obliges every Member to comply with the decision in a case to which it is a party, and permits the other party, in the event of non-compliance, to have recourse to the Security Council, which may make recommendations or decide upon measures to give effect to the judgment.

The advisory function. Under Article 96 the General Assembly and the Security Council may request an advisory opinion on any legal question, and other authorised organs and specialised agencies on questions arising within the scope of their activities. Opinions do not bind but carry great authority, and several have settled important questions: Reparation for Injuries (1949) on the personality of the United Nations, Reservations to the Genocide Convention (1951), Namibia (1971), Nuclear Weapons (1996) and the Wall opinion (2004).

For full marks, cover: the two families and their instruments, the differences of content, of the obligation imposed, of enforcement machinery and of justiciability, the Indian position, and the modern rejection of a rigid divide.

I. The two families and their instruments

Civil and political rights are the "first generation" rights of liberty, contained in Articles 3 to 21 of the Universal Declaration and in the International Covenant on Civil and Political Rights, 1966: life, liberty and security of person, freedom from torture and slavery, fair trial, freedom from arbitrary arrest, privacy, freedom of thought, conscience and religion, expression, assembly and association, participation in government and the right to vote, equality before the law and the rights of minorities.

So civil and political rights are immediate, and economic and social rights are subject to progressive realisation and to resources.

III. The difference in the character of the duty

Civil and political rights are often described as negative, requiring the State to abstain from interference; economic and social rights as positive, requiring the State to act and to spend.

The distinction is real but overstated, and saying so improves the answer. A fair trial requires courts, judges, prosecutors and legal aid, all of which cost money; and the right to health includes a negative duty not to obstruct access to health care. The modern analysis, adopted by the Committee on Economic, Social and Cultural Rights, is that every right imposes three levels of obligation: to respect, to protect and to fulfil, and both families contain all three.

IV. The difference in machinery

Civil and political rights are supervised by the Human Rights Committee through State reports under Article 40; individual communications are available under the First Optional Protocol, 1966, and inter-State complaints under Article 41 by separate declaration.

The Constitution reproduces the divide exactly: the civil and political rights are Fundamental Rights in Part III, enforceable under Article 32, and the economic, social and cultural rights are Directive Principles in Part IV, declared by Article 37 to be fundamental in the governance of the country but not enforceable by any court.

The Supreme Court has largely closed the gap by reading the directives into Article 21: the right to livelihood (Olga Tellis, 1985), food (PUCL, 2001), health (Consumer Education and Research Centre, 1995), education (Unni Krishnan, 1993, leading to Article 21A), shelter and a clean environment (Subhash Kumar, 1991) are today claimed as fundamental rights.

Freedom of speech and expression, Article 19(1)(a). Criticism of the government's handling of a protest is protected political speech. Sedition may be restricted only within Article 19(2), that is, in the interests of the sovereignty and integrity of India, the security of the State or public order, and the restriction must be reasonable. Kedar Nath Singh v. State of Bihar (1962) upheld section 124A of the Indian Penal Code only by reading it down: the offence is committed only where the words have a tendency to incite violence or to create public disorder, and strong criticism of the government, however vigorous, is not sedition. Balwant Singh v. State of Punjab (1995) acquitted on that principle, and Vinod Dua v. Union of India (2021) quashed a sedition FIR against a journalist expressly on Kedar Nath.

The right to personal liberty and against arbitrary detention, Article 21 and Article 22, and Article 9 of the ICCPR. Bail is the rule and jail the exception: State of Rajasthan v. Balchand (1977), Gudikanti Narasimhulu v. Public Prosecutor (1978), Arnesh Kumar v. State of Bihar (2014) and Satender Kumar Antil v. CBI (2022). Denial of bail on a charge that is not made out on the material is itself a deprivation of liberty otherwise than by a fair, just and reasonable procedure: Maneka Gandhi v. Union of India (1978).

The right against inhuman treatment: solitary confinement. Sunil Batra v. Delhi Administration (No. 1) (1978) read down section 30(2) of the Prisons Act, 1894 and held that solitary confinement is a substantive punishment which may be imposed only by a court after conviction and in accordance with law, and not by the prison administration at its discretion; it cannot be imposed on an undertrial at all. Rule 43 of the Nelson Mandela Rules (2015) prohibits indefinite and prolonged solitary confinement, defined as more than fifteen consecutive days, and its use on persons in pre-trial detention. Articles 7 and 10(1) of the ICCPR are engaged.

A complaint to the National or State Human Rights Commission under section 12(a) of the Protection of Human Rights Act, 1993, which may inquire with civil court powers, visit the jail under section 12(c), and recommend interim relief and prosecution under section 18, or itself move a constitutional court under section 18(b), subject to the one year limitation in section 36(2).

Free legal aid under Article 39A and section 12 of the Legal Services Authorities Act, 1987, and the right to consult counsel under Article 22(1).

International steps. He cannot petition the Human Rights Committee, because India has ratified the ICCPR but not the First Optional Protocol. He may, however, submit information to the special procedures of the Human Rights Council, in particular the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and the Working Group on Arbitrary Detention, which issue communications and opinions; and to the Universal Periodic Review through a stakeholder submission.

(i) What obligations do the Brazilian authorities have towards Maria and her community under international human rights law? (ii) How can the ICC intervene in this situation and what steps must be taken to bring these officials to justice?

(i) Brazil's obligations under international human rights law.

The United Nations Declaration on the Rights of Indigenous Peoples, 2007, is not binding but states the standard: Article 10, no forcible removal without free, prior and informed consent and without agreement on just and fair compensation; Articles 26 to 28, rights to lands, territories and resources traditionally owned or used, and to redress including restitution or just, fair and equitable compensation; Article 32, consultation to obtain free and informed consent before the approval of any project affecting their lands, particularly in connection with the development or exploitation of mineral resources.

The regional obligations, which are the strongest here. Brazil is a party to the American Convention on Human Rights, 1969 and has accepted the jurisdiction of the Inter-American Court. That Court has developed the leading jurisprudence on this exact question: Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001) held that Article 21, the right to property, protects communal indigenous property based on traditional occupation rather than on a title deed; Saramaka People v. Suriname (2007) required, before a large-scale development project on indigenous territory, effective participation, a reasonable benefit share and a prior environmental and social impact assessment, and held that a large-scale project requires consent, not merely consultation; Sawhoyamaxa and Xakmok Kasek v. Paraguay are to the same effect.

Her obligations as a woman are additional. CEDAW Article 14 on rural women, and General Recommendation No. 39 (2022) on the rights of indigenous women and girls.

So Brazil is obliged to consult and obtain free, prior and informed consent; conduct an independent impact assessment; refrain from eviction save as an exceptional measure; provide restitution of the land or lands of equal quality, and full compensation; guarantee a benefit share; and provide an effective remedy under Article 25 of the American Convention.

But the conduct must fit a crime. Forcible eviction can amount to the crime against humanity of "deportation or forcible transfer of population" under Article 7(1)(d), or of "persecution" under Article 7(1)(h) on racial or ethnic grounds, or of "other inhumane acts" under Article 7(1)(k); but only where it is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, pursuant to or in furtherance of a State or organisational policy (Article 7(2)(a)). A single eviction for a mining project, however unlawful, does not meet that threshold. In 2016 the Office of the Prosecutor announced that it would give particular consideration to crimes involving the destruction of the environment, the illegal exploitation of natural resources and the illegal dispossession of land, but only where they constitute one of the existing crimes.

Complementarity. Even if the threshold were met, Article 17 makes a case inadmissible where it is being genuinely investigated or prosecuted by a State which has jurisdiction, unless that State is unwilling or unable genuinely to carry out the proceedings. The ICC is a court of last resort.

Conclusion. Brazil's obligations are clear and specific: free, prior and informed consent under ILO Convention No. 169, which it has ratified, no removal save as an exceptional measure with consent, restitution or equivalent lands, compensation and a benefit share, and an effective remedy. The International Criminal Court is the wrong forum, because forcible eviction for a mining project will not ordinarily satisfy the widespread or systematic attack threshold in Article 7, and because complementarity requires the failure of the national system first. The effective route is the Inter-American Commission and Court, where the Awas Tingni and Saramaka line of authority is directly in point and produces binding orders.

Article 3: the right to life, liberty and security of person, which the threatened death penalty directly engages.

Article 5: no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6: recognition everywhere as a person before the law; Article 7: equality before the law and equal protection without any discrimination; Article 8: an effective remedy; Article 9: no arbitrary arrest, detention or exile.

Articles 10 and 11: a fair and public hearing by an independent and impartial tribunal, the presumption of innocence, and no conviction for an act which did not constitute a penal offence, under national or international law, at the time it was committed.

Article 12: no arbitrary interference with privacy, family, home or correspondence, which is the article on which the decriminalisation jurisprudence rests.

Articles 18, 19 and 20: freedom of thought and conscience, of opinion and expression, and of peaceful assembly and association.

The special procedures: the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, a country mandate; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on torture; the Working Group on Arbitrary Detention, which issues Opinions declaring a detention arbitrary; and the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, created by Human Rights Council Resolution 32/2 of 2016. These experts send communications and urgent appeals to governments, conduct visits and report publicly.

The complaint procedure of the Council, successor to the 1503 procedure, for consistent patterns of gross and reliably attested violations. And the Council may establish a fact-finding mission or commission of inquiry, as it has for Iran.

Treaty based bodies. The Human Rights Committee under the ICCPR, through State reports under Article 40 and concluding observations; individual communications are possible only under the First Optional Protocol, which Iran has not ratified, so Amir cannot petition it. The Committee against Torture and the other treaty bodies operate similarly for their own treaties.

Conclusion. Amir's freedoms under the Universal Declaration are those in Articles 1, 2, 3, 5, 7, 9, 10, 11 and 12, and the words "or other status" in Article 2 are what bring sexual orientation within them, as Toonen v. Australia (1994) held for the identical language of the ICCPR. The role of international bodies is one of monitoring, reporting and pressure rather than adjudication: there is no court that can quash his conviction, and because Iran has not ratified the First Optional Protocol he cannot even complain to the Human Rights Committee. The instruments that can actually be used are the special procedures, in particular the Working Group on Arbitrary Detention and the country and thematic rapporteurs, the Universal Periodic Review, publicity through non-governmental organisations, and diplomatic protest, together with asylum and non-refoulement if he can leave.

For full marks, cover: the background and adoption, the drafting, the structure article by group, the legal status then and now, the significance internationally, the significance in India, the criticisms, and a conclusion.

I. Background and adoption

The Second World War and the Holocaust destroyed the argument that a State's treatment of its own nationals was a matter of domestic jurisdiction. The Charter of the United Nations, 1945 made the promotion of human rights a purpose of the Organization under Article 1(3) and imposed duties of cooperation under Articles 55 and 56, but it did not define the rights. The Commission on Human Rights, established by ECOSOC under Article 68, was charged with preparing an International Bill of Rights, and decided to produce first a declaration, then a binding covenant, then measures of implementation.

Articles 3 to 21, civil and political rights. Life, liberty and security of person (3); freedom from slavery (4); freedom from torture and cruel, inhuman or degrading treatment (5); recognition as a person before the law (6); equality before the law (7); an effective remedy (8); freedom from arbitrary arrest, detention or exile (9); a fair and public hearing by an independent and impartial tribunal (10); presumption of innocence and no retrospective punishment (11); privacy (12); freedom of movement and residence (13); asylum (14); nationality (15); marriage and family (16); property (17); freedom of thought, conscience and religion (18); opinion and expression (19); peaceful assembly and association (20); and participation in government, with periodic and genuine elections by universal and equal suffrage (21).

Articles 22 to 27, economic, social and cultural rights. Social security (22); work, free choice of employment, just and favourable conditions, equal pay for equal work and the right to form and join trade unions (23); rest and leisure (24); an adequate standard of living including food, clothing, housing and medical care, and special care for motherhood and childhood (25); education, free and compulsory at the elementary stage (26); and participation in cultural life and protection of authorship (27).

Its status has changed with use. Most of its provisions are today regarded as customary international law, either declaratory of custom or having generated it: the prohibitions of slavery, torture, arbitrary detention and racial discrimination are certainly customary and several are jus cogens. It has been incorporated into the constitutions and the bills of rights of a great many States, invoked in the preambles of almost every later human rights treaty, and applied by national and international courts. The Proclamation of Teheran, 1968 declared that it constitutes an obligation for the members of the international community.

With the ICCPR and the ICESCR, both adopted 16 December 1966 and in force in 1976, it forms the International Bill of Human Rights.

V. Significance internationally

It is the parent of the entire modern human rights system: the two Covenants, the nine core treaties (ICERD 1965, CEDAW 1979, CAT 1984, CRC 1989, CRPD 2006 and the others), the regional conventions of Europe (1950), the Americas (1969) and Africa (1981), and the institutions from the treaty bodies to the Human Rights Council and the High Commissioner.

Its binding form has been accepted: India ratified both Covenants on 10 April 1979, though it has ratified neither Optional Protocol to the ICCPR.

VII. Criticisms

It is not binding and creates no remedy, which is the standing complaint and the reason the Covenants took eighteen years.

The charge of cultural imperialism: that it reflects Western liberal individualism. Saudi Arabia abstained in 1948 over Article 16 on equal rights in marriage and Article 18 on the freedom to change one's religion; the Bangkok Declaration, 1993 advanced the "Asian values" argument that rights must be seen in the context of national and regional particularities. The Vienna Declaration answered it in the same year: while such particularities must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights. The counter-argument is that the drafting itself was not Western: Chang, Malik, Hansa Mehta and Latin American delegations shaped it substantially.

The Soviet objection, that it gave too little weight to economic and social rights and interfered in domestic affairs; and South Africa's, that it was incompatible with apartheid.

For full marks, cover: the meaning and the source of the modern law, the two elements of an internationally wrongful act, attribution, breach, the circumstances precluding wrongfulness, the consequences and forms of reparation, invocation including erga omnes and countermeasures, the rules on the treatment of aliens with the two conditions of diplomatic protection, and a conclusion.

I. Meaning and source

State responsibility is the body of rules which determines when a State is answerable in international law for a wrong, and what follows from it. The classic statement is in Chorzow Factory (Germany v. Poland) (1928): it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation, and reparation is the indispensable complement of a failure to apply a convention.

Article 4: the conduct of any State organ, whether legislative, executive or judicial, whatever its position in the organisation of the State and whether central or territorial, is attributable to the State.

Article 5: conduct of persons or entities empowered by the law of that State to exercise elements of governmental authority.

Article 6: conduct of an organ placed at the disposal of a State by another State.

Article 7: conduct of an organ or an empowered person is attributable even if it exceeds authority or contravenes instructions, the ultra vires rule.

Article 8: conduct of persons acting on the instructions of, or under the direction or control of, the State. The test is disputed: the International Court in Nicaragua (1986) and Bosnia v. Serbia (2007) requires effective control over the specific operations, while the ICTY in Tadic (1999) applied a lower test of overall control for the different purpose of classifying a conflict.

Article 9: conduct in the absence or default of the official authorities.

Article 10: conduct of an insurrectional movement which becomes the new government, which is then attributed retrospectively to the State.

Consent (20), validly given in advance; self-defence in conformity with the Charter (21); countermeasures taken in accordance with Articles 49 to 54 (22); force majeure, an irresistible force or unforeseen event making performance materially impossible (23); distress, where the author has no other reasonable way of saving his own life or those in his care (24); and necessity, which by Article 25 is available only where the act is the only way to safeguard an essential interest against a grave and imminent peril and does not seriously impair an essential interest of the other State or of the international community. Necessity was pleaded and rejected on the facts in Gabcikovo-Nagymaros Project (Hungary v. Slovakia) (1997), which confirmed that the conditions are cumulative and strictly applied. Article 26 provides that no circumstance precludes the wrongfulness of an act conflicting with a peremptory norm.

VI. Consequences: Articles 28 to 39

The responsible State is under an obligation of cessation and, if circumstances require, assurances and guarantees of non-repetition (30), and of full reparation for the injury caused, which includes any damage, material or moral (31). It may not rely on its internal law as justification for failure to comply (32).

Where the breach is serious, that is, gross or systematic, and of an obligation arising under a peremptory norm, States must cooperate to bring it to an end and shall not recognise as lawful the situation created, nor render aid or assistance in maintaining it. That is the modern form of the Stimson doctrine, applied by the International Court in Namibia (1971) and in the Wall advisory opinion (2004).

VIII. Invocation and countermeasures: Articles 42 to 54

An injured State may invoke responsibility (42). Article 48 allows a State other than an injured State to invoke responsibility where the obligation is owed to a group of States and established for the protection of a collective interest, or is owed to the international community as a whole, that is, an obligation erga omnes, the concept recognised in Barcelona Traction (1970) and applied in Belgium v. Senegal (2012) on the Torture Convention.

Expropriation of alien property is lawful only if 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 the Charter of Economic Rights and Duties of States, 1974.

Denial of justice by the courts, and failure to protect aliens from private violence, are the standard heads of claim.

Diplomatic protection is the mechanism, and it has two conditions. Nationality of the claim, continuous from the injury to the presentation of the claim, on which Nottebohm (Liechtenstein v. Guatemala) (1955) required a genuine link between the individual and the State of nationality, and Barcelona Traction (1970) held that the right to protect a company belongs to the State of incorporation, not to the States of the shareholders. And the exhaustion of local remedies, Interhandel (1959) and Elettronica Sicula (ELSI) (1989). Note that under Mavrommatis Palestine Concessions (1924) the State, in taking up its national's case, is asserting its own right, so the claim is the State's and it may waive or compromise it.

For full marks, cover: why special protection is needed, the general principle of non-discrimination and the concept of substantive equality, then group by group with the governing instrument and the Indian counterpart, and a conclusion.

I. Why special protection

The general human rights instruments guarantee rights to everyone without distinction, and formal equality has proved insufficient. Groups which are marginalised by history, prejudice or dependence require specific instruments because the general ones do not reach the particular ways in which their rights are denied, and because equal treatment of unequals perpetuates inequality. International law has therefore developed a body of group-specific treaties alongside the general ones.

Minorities as such are protected by Article 27 of the ICCPR, the right of persons belonging to ethnic, religious or linguistic minorities, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, and to use their own language; and by the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, 1992. In India, Articles 29 and 30 and the National Commission for Minorities Act, 1992.

III. Women

CEDAW, 1979, in force 1981, thirty articles, the international bill of rights for women. Article 1 defines discrimination by its effect or purpose, catching indirect discrimination; Article 2 requires the modification or abolition of discriminatory laws, customs and practices; Article 4 permits temporary special measures; Article 5(a) requires modification of social and cultural patterns founded on the idea of the inferiority of either sex. General Recommendation No. 19 (1992) brought gender-based violence within the definition of discrimination, and the Declaration on the Elimination of Violence against Women, 1993 followed. India ratified on 9 July 1993 with declarations and a reservation to Article 29(1); Vishaka (1997) is its Indian expression.

IV. Children

The Convention on the Rights of Persons with Disabilities, 2006, in force 2008, which effected a shift from a medical and welfare model to a social and rights model: disability results from the interaction between persons with impairments and attitudinal and environmental barriers. Its principles (Article 3) include dignity, autonomy, non-discrimination, participation, accessibility and equality; Article 5 requires reasonable accommodation, the denial of which is itself discrimination; Article 9 accessibility; Article 12 equal recognition before the law, replacing substituted with supported decision-making; Article 24 inclusive education; and Article 27 work. India ratified on 1 October 2007 and enacted the Rights of Persons with Disabilities Act, 2016, which recognises twenty-one disabilities and provides four per cent reservation in government employment.

VI. Refugees and stateless persons

ILO Convention No. 169, 1989, binding on its parties, requiring consultation (Article 6), protection of rights over the lands they occupy (Articles 13 to 15) and no removal without free and informed consent (Article 16); and the United Nations Declaration on the Rights of Indigenous Peoples, 2007, which is not binding but states the standard of free, prior and informed consent (Articles 10, 19 and 32). The Inter-American Court has built the leading jurisprudence: Awas Tingni v. Nicaragua (2001) and Saramaka People v. Suriname (2007). India has ratified the older Convention No. 107 of 1957 but not No. 169; domestically the protection is in the Fifth and Sixth Schedules, Articles 244 and 244A, the Panchayats (Extension to the Scheduled Areas) Act, 1996 and the Forest Rights Act, 2006.

VIII. Migrant workers

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990, in force 2003, which protects both documented and undocumented migrant workers. It has few ratifications, none from the major receiving States, and India is not a party.

IX. Other groups

Conclusion. International law protects marginalised and vulnerable groups by two complementary techniques. The first is the guarantee of non-discrimination in the general instruments, in Articles 2 and 7 of the Universal Declaration and Articles 2 and 26 of the ICCPR, whose open words "or other status" have been used to bring within them groups the drafters never named. The second is the group-specific treaty, which does what the general guarantee cannot: it identifies the particular ways in which a group's rights are denied and imposes tailored positive duties, and it authorises special measures which are expressly not discrimination. India's position across the field is uneven and should be stated honestly: it has ratified ICERD, CEDAW, the CRC and the CRPD, and has legislated extensively; it has not ratified the Refugee Convention, ILO Convention No. 169, the Migrant Workers Convention, the Convention against Torture or the Convention on Enforced Disappearance, and it has accepted no individual complaint procedure at all, so the protection of these groups in India rests on domestic legislation and on Article 21.

A dispute is, in Mavrommatis Palestine Concessions (1924), a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. The older distinction between justiciable or legal disputes, capable of decision by the application of legal rules, and non-justiciable or political disputes is still used, but its real content is the willingness of a State to submit: almost any dispute can be framed legally, and a State that does not wish to litigate will call it political.

II. The amicable or diplomatic methods

Negotiation. Direct discussion between the parties, with no third party. It is the commonest method, settles the great majority of disputes, and is frequently a precondition required by a compromissory clause before other machinery can be used. Example: the Ganga Waters Agreement at Farakka, 5 November 1977, and the Treaty of 1996.

Good offices. A third State, an individual or an organisation brings the parties together and provides a channel of communication, then stands aside once negotiations begin; it does not participate and makes no proposal. Example: President Theodore Roosevelt's good offices producing the Treaty of Portsmouth, 1905 between Russia and Japan.

Conciliation. A commission examines the dispute as a whole and reports proposed terms of settlement, combining the fact-finding of enquiry with the proposal-making of mediation; the report does not bind. Provided for in Annex V of UNCLOS and in Article 66 of the Vienna Convention on the Law of Treaties. The Timor Sea conciliation between Timor-Leste and Australia (2018) is the modern success.

III. Compulsive methods short of war

These stand between the amicable and the forcible and should be mentioned for completeness: retorsion, a lawful but unfriendly act such as the withdrawal of diplomatic privileges or of trade concessions; reprisal, an otherwise unlawful act in response to a prior wrong, now lawful only as a non-forcible countermeasure under Articles 49 to 54 of the Articles on State Responsibility, subject to proportionality and to the exclusions in Article 50; embargo; and pacific blockade. Armed reprisals are unlawful under Article 2(4), and Corfu Channel (1949) rejected forcible self-help as "the manifestation of a policy of force".

IV. Arbitration

Modern examples. The Rann of Kutch award between India and Pakistan (1968); the Indus Waters Kishenganga arbitration (2013); and the Bay of Bengal maritime boundary between India and Bangladesh, decided under Annex VII of UNCLOS on 7 July 2014 and accepted by India.

V. Judicial settlement

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

Jurisdiction rests on consent, given in three ways: a special agreement; a compromissory clause in a treaty; or a declaration under the optional clause, Article 36(2), which operates on reciprocity and is commonly heavily reserved. Only States may be parties (Article 34(1)), and under Article 36(6) a dispute about jurisdiction is settled by the Court.

The Security Council, under Chapter VI, may call on the parties to settle their dispute by the means in Article 33, investigate any dispute under Article 34, and recommend appropriate procedures or actual terms of settlement under Articles 36 and 37; under Chapter VII it may impose measures or authorise force.

The General Assembly may discuss and recommend under Articles 10 to 14, and under Uniting for Peace, Resolution 377(V) of 1950, may act where the Council is paralysed by the veto; since Resolution 76/262 of 26 April 2022 it convenes automatically within ten working days of any veto.

The Secretary-General may bring to the Council's attention any matter which may threaten international peace and security (Article 99), and in practice conducts quiet diplomacy through special envoys.

Chapter VIII, Articles 52 to 54, encourages settlement through regional arrangements before reference to the Council: the African Union, the Organization of American States, the European Union and ASEAN.