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Environment and International Legal Order
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LLM · Group 6 Environment and Legal Order
2015 Examination
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LLM Group 6 Environment and Legal Order Environment and International Legal Order 2015 Question Paper with Solutions
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First published on munotes.in on 12 September 2026.
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Model answers written and edited by the munotes.in editorial desk.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2015 examination.
The law in these answers is stated as at September 2026, and five developments date every textbook on this subject. The International Court of Justice gave its Advisory Opinion on the Obligations of States in respect of Climate Change on 23 July 2025, unanimously, with ninety eight States participating, holding that obligations to protect the climate system arise under customary international law as well as under the treaties. The International Tribunal for the Law of the Sea held on 21 May 2024 that greenhouse gas emissions are pollution of the marine environment and that Article 194 of the Law of the Sea Convention imposes a stringent standard of due diligence. The BBNJ Agreement on marine biodiversity beyond national jurisdiction entered into force on 17 January 2026. The International Seabed Authority still has NO exploitation code: the two year rule triggered in June 2021 expired in 2023 and again in 2025. And the Basel Ban Amendment came into force on 5 December 2019, with the e-waste amendments effective 1 January 2025.
Contents
The questions below are the paper as the University of Mumbai set it at the 2015 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2015 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 14 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
SECTION I
QP Code 12315, REVISED COURSE, printer's form BB-Con. 6348-15, the first paper on the scan, footed Page:1
attempt any four of seven, all carry equal marks · 100 Marks
Q1)Write an essay on the historical development of International Law.[25]
Answer
For full marks, cover: this is an essay question, so it wants a narrative with a thesis and not a list of dates. The thesis that earns marks is that international law has changed WHAT IT GOVERNS and WHOM IT BINDS at least four times: from a law of war and diplomacy between Christian princes, to a law of sovereign States after Westphalia, to a law that admits organisations and individuals after 1945, to a law that regulates common spaces and future generations after 1972. Give the ancient and non European material properly, because an examiner in India expects it and most candidates omit it. Work three or four cases, and finish on the environmental turn, since this is an environmental law paper.
The claim that international law begins in 1648 is wrong, and why it matters
The textbook narrative starts at the Peace of Westphalia. It is a useful marker and a false origin, and saying so is the right opening because it frames everything after.
Treaty practice is four thousand years older. The earliest known international agreement is the boundary treaty between the city States of Lagash and Umma in Mesopotamia, from about 2100 BC, inscribed on stone and invoking the gods as guarantors. The treaty of Kadesh between Ramesses II of Egypt and Hattusili III of the Hittites, from about 1259 BC, survives in both Egyptian and Akkadian versions and provides for peace, alliance and the extradition of fugitives.
Ancient India had a developed law of inter-State relations. The Arthashastra of Kautilya treats the ambassador as inviolable and classifies envoys by their powers, and the Mahabharata and the Manusmriti restrict the means of war: the poisoned or barbed arrow is forbidden, as is striking the sleeping, the wounded, the unarmed and the surrendered. R. P. Anand's work is the standard modern argument that the received history is Eurocentric, and it is worth naming in an Indian answer.
Greek practice produced the proxenos, a citizen of one city protecting the interests of another, and arbitration between city States. Rome produced two categories that survive: the jus gentium, the law common to all peoples administered by the praetor peregrinus, and the jus fetiale, the priestly law governing the declaration of war and the conclusion of treaties, from which the modern requirement of a formal declaration descends.
The classical formation, 1500 to 1648
The medieval contribution is threefold. Canon law and the just war theory of Augustine and Aquinas supplied the criteria of just cause, right authority and right intention. The lex mercatoria supplied a transnational commercial law. The maritime codes, the Rhodian Sea Law, the Rolls of Oleron and the Consolato del Mare, supplied the law of the sea in practice long before it was codified.
The conquest of the Americas forced the theoretical question. Francisco de Vitoria, lecturing at Salamanca in 1539, argued in De Indis that the Indians were the true owners of their lands, that discovery conferred no title on lands already inhabited, and that they possessed rights under a law of nations binding on Christian and non Christian alike. Alberico Gentili, an Italian Protestant who became Regius Professor at Oxford, wrote De Jure Belli in 1598 and began the separation of the subject from theology.
Hugo Grotius completed it. Mare Liberum, published in 1609, argued that the sea cannot be appropriated because it cannot be occupied and is inexhaustible, which won the argument against Portuguese claims and became the freedom of the seas. De Jure Belli ac Pacis, published in 1625 during the Thirty Years War, grounded the law of nations in a natural law that would hold, as he famously put it, even if there were no God, and supplemented it with the law derived from the consent of nations. He is called the father of international law because he gave it a source independent of religion at the moment religion ceased to be a common authority.
The Peace of Westphalia of 1648 then supplied the political structure: territorial sovereignty, the equality of States regardless of religion, and the rejection of any superior authority. Everything about the modern system that we criticise, the absence of a legislature, of a compulsory court and of an executive, follows from that settlement.
From natural law to positivism, 1648 to 1914
The eighteenth century split the subject. Richard Zouche and Cornelius van Bynkershoek built the law from State practice, and it is Bynkershoek who produced the cannon shot rule, that a State's authority over the adjacent sea extends as far as its artillery can reach, which became the three mile territorial sea. Emmerich de Vattel's Le Droit des Gens of 1758 combined natural law with practice and was the working manual of chancelleries and of the early American republic.
The nineteenth century was the century of the multilateral conference. The Congress of Vienna of 1815 fixed diplomatic ranks, provided for free navigation of international rivers and condemned the slave trade. The Declaration of Paris of 1856 abolished privateering and settled the law of blockade. The Geneva Convention of 1864, following Henry Dunant's account of Solferino, began international humanitarian law and produced the Red Cross. The Hague Peace Conferences of 1899 and 1907 codified the law of land warfare and created the Permanent Court of Arbitration. The Berlin Conference of 1884 to 1885 regulated the partition of Africa, which is the period's indictment: the same law that was civilising Europe was licensing colonial acquisition.
The positivist theory of the period is captured by the Permanent Court of International Justice in The Case of the S.S. Lotus (France v. Turkey), Series A No. 10, judgment of 7 September 1927. A French mail steamer collided with a Turkish collier on the high seas with loss of Turkish life, and Turkey prosecuted the French officer of the watch when the ship reached Constantinople. The Court held that Turkey had not acted contrary to international law, reasoning that international law governs relations between independent States, that the rules binding upon them emanate from their own free will, and that restrictions upon the independence of States cannot therefore be presumed. That last sentence is the high water mark of consent as the sole source of obligation.
1919 to 1945: institutions, and their failure
The Covenant of the League of Nations of 1919 created the first general international organisation, and the Permanent Court of International Justice opened in 1922. The General Treaty for the Renunciation of War, the Kellogg-Briand Pact of 27 August 1928, renounced war as an instrument of national policy. Both failed to prevent the Second World War, but they supplied the legal basis on which aggressive war was prosecuted at Nuremberg in 1945 and 1946, which is the first occasion on which individuals were held personally responsible under international law.
1945 onwards: the four changes that made the modern subject
The Charter of the United Nations, signed 26 June 1945, prohibits the threat or use of force in Article 2(4) and creates a Security Council with binding powers under Chapter VII. Four structural changes follow.
First, the subjects of the law expanded beyond States. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949 page 174, held that the Organisation is an international person with the capacity to bring an international claim, because its members had clothed it with the competence required to discharge the functions entrusted to it. Individuals became bearers of rights through the human rights instruments and of duties through international criminal law.
Second, consent ceased to be the whole of obligation. Article 53 of the Vienna Convention on the Law of Treaties of 1969 recognises peremptory norms from which no derogation is permitted. In Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), ICJ Reports 1970 page 3, the Court, while rejecting Belgium's claim on behalf of its shareholders in a Canadian company, said at paragraphs 33 and 34 that an essential distinction must be drawn between the obligations of a State towards another State and its obligations towards the international community as a whole, the latter being obligations erga omnes in whose protection all States have a legal interest, and it instanced the outlawing of aggression and genocide and protection from slavery and racial discrimination.
Third, the membership changed. Decolonisation multiplied the States and with them the agenda: permanent sovereignty over natural resources in General Assembly Resolution 1803 (XVII) of 14 December 1962, and the New International Economic Order in the resolutions of 1974. The composition of custom changed with the composition of the community, which is why the Court in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), ICJ Reports 1986 page 14, had to explain that a customary rule and a treaty rule of identical content retain separate existence, so that a reservation to the treaty does not remove the custom.
Fourth, the objects of regulation changed. North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), ICJ Reports 1969 page 3, is the standing authority on how new law forms: the Court held that the equidistance rule of the 1958 Geneva Convention had not become custom, and that for custom to form there must be settled practice, including of the States whose interests are specially affected, together with opinio juris, the belief that the practice is rendered obligatory by a rule of law. The passage matters here because the whole of international environmental law had to be made in the century after 1945, and had to be made fast.
The environmental turn, and where it has now reached
Environmental obligation entered through the same door as everything else, arbitration. The Trail Smelter arbitration between the United States and Canada, in awards of 1938 and 1941, held that no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another, where the case is of serious consequence and the injury is proved by clear and convincing evidence. Corfu Channel (United Kingdom v. Albania), ICJ Reports 1949 page 4, generalised it into every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.
The Stockholm Conference of 5 to 16 June 1972 converted that into Principle 21 and created the United Nations Environment Programme. Rio in 1992 produced the Rio Declaration, Agenda 21, the Framework Convention on Climate Change and the Convention on Biological Diversity. The International Court of Justice confirmed the customary status of the obligation in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996 page 226, at paragraph 29.
The two most recent developments show how far the subject has travelled from the Lotus proposition that restrictions on States cannot be presumed. The International Tribunal for the Law of the Sea held on 21 May 2024 that greenhouse gas emissions are pollution of the marine environment and that the Law of the Sea Convention imposes a stringent due diligence obligation to control them. The International Court of Justice held unanimously on 23 July 2025, in its Advisory Opinion on the Obligations of States in respect of Climate Change, that obligations to protect the climate system arise under customary international law as well as under the treaties and are not exhausted by the Paris Agreement. Ninety eight States and thirteen international organisations appeared.
What the history shows about the subject's weaknesses
Three defects have survived every stage. There is no legislature, so law is made by treaty and by custom, which is slow and which binds unevenly. There is no compulsory jurisdiction, so the International Court hears only what States consent to submit. And enforcement runs through the Security Council, where the veto operates. The environmental field feels all three acutely: the plastics negotiation adjourned without agreement in August 2025, the Court's climate opinion is advisory and not binding, and no environmental matter has ever been treated by the Council as a threat to the peace.
Conclusion. The history of international law is a history of widening: from a law of war and diplomacy among a handful of European sovereigns to a law that binds one hundred and ninety three States, admits organisations and individuals as subjects, recognises obligations owed to the community as a whole, and now regulates the atmosphere, the deep seabed and the interests of generations not yet born. The Lotus principle that restrictions cannot be presumed states the law of 1927 and no longer states the law of today, and the clearest proof of that is an Advisory Opinion of July 2025 holding that every State owes duties in respect of a harm none of them causes alone. The defects of the Westphalian settlement, no legislature, no compulsory court and no executive, remain, and they are the reason this subject advances by conference and by opinion rather than by command.
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