UPSC Mains Answer PYQ 2022: Law Paper 1 (Section- B) | Law Optional Notes for UPSC PDF Download

Evolution of International Law:

1. Historical Context:

   • International Law emerged primarily in the context of state sovereignty, dating back to the Treaty of Westphalia in 1648.
   • Early International Law focused on state relations and diplomacy.

2. Expanding Scope:

   • Contemporary International Law has expanded beyond state-centric approaches to include non-state actors like international organizations, multinational corporations, and individuals.
   • Transnational issues like climate change, human rights, and cyber warfare have gained prominence.

3. Customary and Treaty Law:

   • Classical International Law relied heavily on customary law and bilateral treaties.
   • Today, there is a proliferation of multilateral treaties and conventions, making treaty law a significant source of International Law.

4. Emergence of International Courts:

   • The establishment of international courts and tribunals such as the International Court of Justice (ICJ) and the International Criminal Court (ICC) underscores the shift towards a more institutionalized legal system.

5. Human Rights and Humanitarian Law:

   • The development of human rights law and humanitarian law has reshaped the landscape of International Law, prioritizing individual rights and protection.

The Classical Definition: The classical definition of International Law pertains to a body of rules and principles governing the conduct of sovereign states in their interactions with one another. It is often associated with the idea that states are the sole subjects of International Law and that their consent is a prerequisite for its application.

Reasons for Redundancy:

1. Non-State Actors:

   • The classical definition does not adequately address the involvement of non-state actors, which have become crucial in contemporary international relations.
   • Example: Multinational corporations influencing environmental policies.

2. Global Issues:

   • Transnational issues like climate change and cybersecurity necessitate cooperation beyond traditional state boundaries.
   • Example: The Paris Agreement on climate change involving numerous state and non-state actors.

3. Human Rights Emphasis:

   • The modern emphasis on human rights challenges the traditional state-centric approach.
   • Example: International criminal tribunals prosecuting individuals for human rights violations.

4. Supranational Courts:

   • The establishment of international courts and tribunals bypasses the need for state consent in dispute resolution.
   • Example: The ICJ hearing cases involving states without their explicit consent.

Conclusion: In the contemporary era, the classical definition of International Law has become increasingly redundant. The evolution of International Law, the growing influence of non-state actors, the emergence of global issues, and the emphasis on human rights have all contributed to a more complex and dynamic landscape. To remain relevant, International Law must continue to adapt and incorporate these changes, reflecting the evolving nature of international relations.

Q2: Distinguish between ‘De-facto’ and ‘De-jure’ Recognition.  
Ans:
Introduction: In the realm of international relations and international law, the concepts of 'de-facto' and 'de-jure' recognition are fundamental in understanding how states interact and establish diplomatic relations with one another. This essay will differentiate between 'de-facto' and 'de-jure' recognition, providing a clear understanding of these terms along with relevant examples.

Definition:

• De-facto Recognition: This type of recognition is based on the practical or factual existence of a state or government, regardless of its legal status. It implies that a state or government exercises control over a territory or population, even if it may not have international legal recognition.

• De-jure Recognition: De-jure recognition is formal recognition by a state of the legal status of another state or government. It signifies that a state recognizes another as a legitimate sovereign entity in accordance with international law.

Examples:

1. De-facto Recognition Example: Several countries, such as the United States, maintain unofficial diplomatic relations with Taiwan. While Taiwan functions as a sovereign entity with its own government, it lacks UN membership due to objections from the People's Republic of China. This recognition is primarily based on practical considerations, including economic and security interests.

2. De-jure Recognition Example: Israel's de-jure recognition is a complex case. While it initially faced resistance from many Arab states, over time, a growing number of countries have formally recognized Israel as a sovereign state in accordance with international law. This recognition carries legal obligations, including respecting Israel's territorial integrity and sovereignty.

Conclusion: In summary, 'de-facto' recognition is based on practical existence and may not adhere to international legal norms, while 'de-jure' recognition is formal and signifies adherence to international law. The choice to extend one type of recognition over the other depends on various political, economic, and diplomatic factors. Understanding the distinction between these concepts is essential for comprehending the dynamics of international relations and state interactions.

Q3: What are Territorial Asylum and Extraterritorial Asylum ? Explain.
Ans:
Introduction: Territorial asylum and extraterritorial asylum are two distinct concepts in international law, each dealing with the protection and refuge offered to individuals seeking safety from persecution or harm. This essay aims to explain the differences between territorial and extraterritorial asylum, providing a clear understanding of these crucial principles.

Territorial Asylum:

1. Definition: Territorial asylum refers to the protection granted to individuals within the physical boundaries of a state who fear persecution in their home country. It is based on the principle of non-refoulement, which prohibits the return of asylum seekers to a place where their life or freedom would be in danger.

2. Key Features:

   • Granted within the sovereign territory of a state.
   • Asylum seekers physically enter the country seeking protection.
   • Typically subject to the domestic laws and regulations of the granting state.

3. Example: Germany's acceptance of Syrian refugees during the Syrian civil war is an example of territorial asylum. Asylum seekers crossed into Germany's borders and were granted refuge within German territory.

Extraterritorial Asylum:

1. Definition: Extraterritorial asylum, also known as diplomatic asylum, is protection granted by a state within its embassies or consulates located in foreign territories. It allows individuals to seek refuge without physically entering the territory of the granting state.

2. Key Features:

   • Granted within the diplomatic premises (embassies or consulates) of a state in a foreign country.
   • Asylum seekers do not enter the territory of the granting state.
   • Often invoked for political or diplomatic reasons.

3. Example: In 2019, the Venezuelan opposition leader, Juan Guaidó, sought extraterritorial asylum at the Spanish embassy in Caracas, Venezuela, during a political crisis. He remained within the embassy's premises to avoid arrest.

Conclusion: Territorial asylum and extraterritorial asylum serve as critical mechanisms for providing protection and refuge to individuals facing persecution or danger. While territorial asylum involves granting asylum within the physical boundaries of a state, extraterritorial asylum allows individuals to seek refuge within diplomatic premises abroad. These concepts are rooted in international law and are essential tools for upholding human rights and ensuring the safety of those in need. Understanding the differences between these two forms of asylum is crucial in the context of international humanitarian and diplomatic efforts.

Q4: What are the various Rights of States over ‘territorial-waters’ ?
Ans:
Introduction: Territorial waters are a critical component of a state's maritime jurisdiction, and understanding the rights that states have over these waters is crucial in international law. This essay outlines the various rights of states over their territorial waters, elucidating their significance and limitations.

Rights of States Over Territorial Waters:

1. Sovereignty: States have full sovereignty over their territorial waters, meaning they exercise complete authority, including the right to regulate and enforce laws within this maritime zone.

2. Security: States have the right to take measures necessary for their security within their territorial waters. This includes the deployment of military forces and the establishment of security zones.

3. Customs and Immigration: States can enforce customs and immigration regulations in their territorial waters, controlling the movement of goods and people across their maritime borders.

4. Resource Exploitation: States have the exclusive right to exploit and manage the natural resources within their territorial waters, including fishing, mineral resources, and energy reserves.

5. Environmental Protection: States are responsible for environmental protection and conservation within their territorial waters, ensuring that activities do not harm the marine environment.

6. Innocent Passage: While states have sovereignty over their territorial waters, they must allow for the innocent passage of foreign ships and aircraft, as long as they do not engage in harmful activities or threaten security.

7. Customs Duties: States can impose customs duties on vessels entering their territorial waters, subject to international agreements and conventions.

8. Legal Jurisdiction: States can exercise legal jurisdiction over crimes and offenses committed within their territorial waters, applying their own legal system to those found in violation.

Limitations and International Agreements:

1. Innocent Passage: The right to innocent passage places limitations on a state's control over its territorial waters, ensuring that peaceful navigation remains unhindered.

2. International Treaties: States often enter into international agreements that may restrict certain rights over their territorial waters. For example, the United Nations Convention on the Law of the Sea (UNCLOS) sets out specific provisions regarding territorial waters and maritime boundaries.

Case Study - South China Sea Dispute: The South China Sea dispute involves competing territorial claims by multiple states, including China, Taiwan, the Philippines, and Vietnam. These countries assert various rights over the waters and features in the South China Sea, including territorial waters. The dispute has led to tensions and conflicts, highlighting the complex interplay of rights and territorial claims in international waters.

Conclusion: The rights of states over their territorial waters are grounded in the principles of sovereignty and international law. While states enjoy a range of rights within their territorial waters, they are also subject to international agreements and conventions, especially in cases involving shared or disputed maritime areas. Understanding these rights is essential for maintaining peaceful relations among states and ensuring the sustainable use of marine resources.

Q5: Distinguish between Arbitration and Judicial settlement as methods of peaceful settlement of disputes in International Law.
Ans:
Introduction: In international law, peaceful settlement of disputes is crucial for maintaining global stability and cooperation. Two primary methods for achieving this are arbitration and judicial settlement. This essay provides a detailed differentiation between arbitration and judicial settlement, including examples and their respective roles in international dispute resolution.

Arbitration:

1. Definition: Arbitration is a method of dispute resolution where parties agree to submit their dispute to an impartial third party, the arbitrator or arbitral tribunal. The decision reached is binding on the parties.

2. Voluntary Process: Arbitration is typically a voluntary process, where both parties agree to participate. States or entities can choose arbitrators from a list or appoint them through mutual agreement.

3. Customization: Parties have flexibility in selecting procedural rules and can tailor the arbitration process to their specific needs, ensuring a degree of informality.

4. Binding Decision: The arbitration process concludes with a binding decision that parties are obligated to accept and enforce.

5. Examples: The Permanent Court of Arbitration (PCA) in The Hague is a well-known institution for international arbitration. An example is the arbitration between the Philippines and China over the South China Sea, where the PCA ruled on maritime entitlements.

Judicial Settlement:

1. Definition: Judicial settlement involves the resolution of disputes by international courts or tribunals, such as the International Court of Justice (ICJ). These courts are permanent and derive their authority from international agreements.

2. Compulsory Process: Judicial settlement is often compulsory when states agree to subject themselves to the jurisdiction of a particular international court through treaties or conventions.

3. Adherence to Established Rules: Judicial settlement follows established procedures and rules, ensuring a standardized and formalized process.

4. Binding Judgment: The judgment or decision issued by an international court is legally binding on the parties involved, and states are expected to comply with it.

5. Examples: The ICJ, also known as the World Court, is a prominent example of a judicial settlement mechanism. Notable cases include the Nicaragua vs. United States case, where the ICJ ruled on U.S. support for Contra rebels in Nicaragua.

Conclusion: Arbitration and judicial settlement are both valuable mechanisms for peacefully resolving international disputes. The choice between them depends on factors such as the consent of the parties, the nature of the dispute, and the desire for customization. While arbitration offers flexibility and informality, judicial settlement provides a standardized and compulsory process with the backing of established international courts. Understanding the differences between these methods is crucial for effective international dispute resolution and the maintenance of global peace and stability.

Q6: Critically examine various theories relating to the relationship between International Law and Municipal Law.
Ans:
Introduction: The relationship between international law (IL) and municipal law (ML), which refers to the domestic legal systems of individual states, has been a subject of debate among legal scholars and practitioners. Various theories have emerged over time to explain and examine this complex relationship. This essay critically examines some of these theories and their implications.

1. Monism:

• Theory: Monism posits that IL and ML are part of a single, unified legal system. International norms automatically become part of a state's legal system, and any conflict between IL and ML is resolved in favor of IL.
• Implication: In monist states, international treaties are directly applicable in domestic courts without the need for specific implementing legislation.
• Example: Germany's Basic Law (Grundgesetz) incorporates the European Convention on Human Rights (ECHR) into its domestic legal system, allowing German courts to apply ECHR provisions.

2. Dualism:

• Theory: Dualism asserts that IL and ML are separate legal systems, each with its own sources, principles, and rules. International norms must be transformed into domestic law through the legislative process to become binding.
• Implication: In dualist states, international treaties are not directly enforceable in domestic courts without specific legislation.
• Example: In the United Kingdom, the Human Rights Act 1998 was enacted to give effect to the European Convention on Human Rights (ECHR) in domestic law.

3. Transformationalism (Modified Dualism):

• Theory: Transformationalism takes a middle ground approach. International norms are recognized as part of the domestic legal system upon ratification, but they require legislative incorporation to be directly enforceable in domestic courts.
• Implication: International treaties have legal significance upon ratification, but their enforcement may require domestic legislation.
• Example: Sweden follows a transformationalist approach by considering international treaties as part of domestic law, but specific legislation may be needed for full enforcement.

4. Fragmentation Theory:

• Theory: The fragmentation theory acknowledges that IL and ML are separate but closely related. It argues that states pick and choose which international norms to incorporate into their domestic legal systems.
• Implication: States may selectively adopt international norms, and the incorporation process can vary.
• Example: In the United States, the Alien Tort Statute has been used to allow foreign nationals to bring human rights claims in U.S. courts, even though the U.S. has not ratified certain human rights treaties.

Conclusion: The relationship between IL and ML is complex, and the theories mentioned above offer different perspectives on how these two legal systems interact. The choice between monism, dualism, transformationalism, or fragmentation depends on a state's legal and political framework and its approach to international law. In practice, many states adopt a mixed approach, combining elements of different theories to accommodate the complexities of international and domestic legal relations.

Q7: Elaborate various theories of State succession.
Ans:
Introduction: State succession refers to the process by which one state replaces another as the subject of international law over a particular territory. It often arises due to events such as decolonization, dissolution of states, or the creation of new states. Various theories and principles have been developed to address the complexities of state succession in international law. This essay elaborates on some of the key theories of state succession.

1. Universal Continuity Theory:

• Theory: This theory posits that a newly emerged state continues the existence of its predecessor without any interruption in its rights and obligations under international law.
• Implication: The successor state assumes all rights and responsibilities of the predecessor state in both treaty obligations and customary international law.
• Example: When South Sudan gained independence from Sudan in 2011, it succeeded to Sudan's international treaty obligations and responsibilities.

2. Doctrine of Tabula Rasa:

• Theory: Tabula rasa means "clean slate" in Latin. This theory suggests that a new state emerges without inheriting any of the predecessor state's rights or obligations.
• Implication: The newly formed state is not bound by the treaties, debts, or commitments of its predecessor.
• Example: Following the dissolution of the Soviet Union in 1991, the newly independent states, including Russia, did not consider themselves bound by the treaties entered into by the Soviet Union.

3. Declarative Theory:

• Theory: This theory asserts that state succession is a matter of recognition by other states. The successor state's status depends on whether it is recognized as such by the international community.
• Implication: The legal status and rights of the successor state are determined by the willingness of other states to recognize it.
• Example: Kosovo's declaration of independence from Serbia in 2008 was not universally recognized, reflecting the declarative theory's influence.

4. Substitution Theory:

• Theory: The substitution theory holds that the successor state steps into the shoes of its predecessor only for the purpose of specific international treaties or obligations that it chooses to adopt.
• Implication: The successor state can selectively choose which obligations and rights it wishes to assume from the predecessor state.
• Example: Germany, upon reunification in 1990, assumed certain obligations of the former East Germany while rejecting others.

Conclusion: The theories of state succession play a crucial role in determining the rights and obligations of newly emerging states. Each theory has distinct implications and is applied in different contexts, often influenced by political and diplomatic factors. The choice of theory can have significant consequences for the international legal status of a state and its interactions with the global community. As such, state succession remains a complex and evolving area of international law.

Q8: Discuss various modes of acquisition and loss of Nationality.
Ans:
Introduction: Nationality or citizenship is the legal bond between an individual and a state, conferring certain rights and responsibilities. Acquisition and loss of nationality are fundamental aspects of international and domestic law. This essay explores various modes of acquiring and losing nationality.

Modes of Acquisition of Nationality:

1. Birth: A person may acquire nationality by being born within the territory of a state, known as jus soli, or by descent from citizens, known as jus sanguinis. For example, in the United States, a person born on U.S. soil is automatically a U.S. citizen.

2. Descent: A person may acquire nationality based on their parent's citizenship. This can occur through one or both parents, depending on the laws of the state. For instance, if both parents are French citizens, their child is usually a French citizen, regardless of where they are born.

3. Marriage: Some countries grant nationality to individuals who marry a citizen of that country. The spouse must typically meet certain residency and other requirements. For example, in Germany, a foreign spouse can apply for German nationality after several years of marriage.

4. Naturalization: Naturalization is the process by which a foreign national becomes a citizen of a host country. This usually involves meeting specific residency, language, and integration requirements. For instance, Switzerland grants citizenship through naturalization after a long period of residence and compliance with integration criteria.

5. Adoption: In some countries, adopted children can acquire the nationality of their adoptive parents. For example, if a child is adopted by U.S. citizens, they can acquire U.S. citizenship through the adoption process.

Modes of Loss of Nationality:

1. Renunciation: An individual can voluntarily renounce their nationality by applying to the relevant authorities. For example, if a U.S. citizen wishes to renounce their citizenship, they must go through a formal process and may be required to pay an exit tax.

2. Deprivation or Revocation: States may revoke an individual's nationality under specific circumstances, such as fraud in obtaining citizenship or acts contrary to national security. For example, the United Kingdom may revoke citizenship from individuals engaged in terrorism-related activities.

3. Automatically Through Acquisition of Another Nationality: Some countries have laws that automatically lead to the loss of nationality when an individual acquires another nationality. For instance, Japan generally requires its citizens to renounce their Japanese citizenship when they naturalize in another country.

Conclusion: Nationality is a complex and multifaceted concept with various modes of acquisition and loss. The rules and procedures for acquiring and losing nationality vary significantly from one country to another, reflecting the diversity of legal systems and policy considerations. Understanding these modes is crucial for individuals navigating immigration and citizenship matters and for states seeking to manage their national populations effectively.

Q9: Describe the various powers and functions of the General Assembly.
Ans:
Introduction: The United Nations General Assembly (UNGA) is one of the principal organs of the United Nations (UN) and serves as a forum for member states to discuss and coordinate international affairs. It plays a vital role in shaping global policies and addressing various issues. This essay elaborates on the powers and functions of the UNGA.

Powers and Functions of the UNGA:

1. Deliberative Body:

   • The UNGA serves as a platform for member states to engage in open and inclusive discussions on global issues.
   • It allows nations to voice their concerns and opinions, fostering dialogue and diplomacy.

2. Adoption of Resolutions:

   • The UNGA can adopt resolutions on a wide range of topics, including peace and security, development, human rights, and international law.
   • Resolutions are not legally binding, but they carry significant political weight and influence international opinion.

3. Approval of Budget:

   • The UNGA has the authority to approve the UN budget, ensuring financial transparency and accountability.
   • It reviews and allocates funds for various UN programs and activities.

4. Election of Non-Permanent Members to the Security Council:

   • The UNGA elects non-permanent members to the UN Security Council, which holds a significant role in maintaining international peace and security.
   • Member states campaign for these seats and are elected for two-year terms.

5. Appointment of the Secretary-General:

   • The UNGA, upon recommendation from the Security Council, appoints the UN Secretary-General, who serves as the chief administrative officer of the organization.
   • The Secretary-General's role is pivotal in coordinating UN activities and initiatives.

6. Establishment of Subsidiary Bodies:

   • The UNGA can create subsidiary bodies, committees, and special sessions to address specific issues, such as disarmament, human rights, and sustainable development.
   • These bodies facilitate in-depth examination and policy development.

7. Coordination of Development Activities:

   • The UNGA promotes international cooperation and coordination in development efforts, including the implementation of the Sustainable Development Goals (SDGs).
   • It provides a platform for member states to share best practices and discuss challenges in development.

Examples:

1. Universal Declaration of Human Rights: In 1948, the UNGA adopted the Universal Declaration of Human Rights, a landmark document that sets out fundamental human rights and freedoms. While not legally binding, it has become a foundational text in international human rights law.

2. Sustainable Development Goals (SDGs): In 2015, the UNGA adopted the 2030 Agenda for Sustainable Development, which includes 17 SDGs aimed at addressing global challenges such as poverty, inequality, and climate change. Member states work together through the UNGA to advance these goals.

Conclusion: The UNGA serves as the primary deliberative, policymaking, and representative body of the UN, allowing member states to collaborate on critical global issues. Its powers and functions encompass a wide range of activities that contribute to international peace, security, development, and human rights. While its resolutions are not legally binding, they carry significant political weight and reflect the collective will of the international community.

Q10: Explain the maxim “Pacta Tertiis Nec Nocent Nec Prosunt” with relevant case laws.
Ans:
Introduction: The maxim "Pacta Tertiis Nec Nocent Nec Prosunt" is a Latin phrase that translates to "agreements do not harm or benefit third parties." It encapsulates the principle that international agreements (treaties) are binding only upon the parties that have consented to them and do not create rights or obligations for non-parties. In other words, third parties cannot be held liable for violations of a treaty, nor can they claim benefits under it. This principle is a fundamental aspect of international law.

Explanation of the Maxim:

1. No Harm to Third Parties: The maxim emphasizes that the rights and obligations arising from a treaty are limited to the contracting parties. Non-parties to the treaty are not bound by its terms and cannot be held responsible for any violations.

2. No Benefits to Third Parties: Similarly, third parties cannot claim benefits or advantages under a treaty to which they are not parties. They have no legal standing to demand the fulfillment of treaty obligations from the contracting parties.

Relevant Case Laws and Examples:

1. Case of Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), 1970:

   • In this case before the International Court of Justice (ICJ), Belgium brought a claim against Spain on behalf of a Canadian company, Barcelona Traction, which was a Belgian company with Canadian shareholders.
   • The ICJ ruled that Belgium could not claim violations of its own rights under the treaty between Belgium and Spain on behalf of a third-party company (Barcelona Traction) because the company was not a party to the treaty.

2. Nicaragua v. United States, 1986:

   • In this contentious case, Nicaragua brought a suit against the United States for alleged violations of international law.
   • The ICJ found that the United States had violated certain international obligations but also noted that Nicaragua had breached its obligations under other treaties.
   • The principle of "Pacta Tertiis Nec Nocent Nec Prosunt" was implicitly reaffirmed as the ICJ's judgment focused on the obligations and violations of the actual parties to the treaties in question.

Conclusion: The maxim "Pacta Tertiis Nec Nocent Nec Prosunt" underscores the principle of privity in international agreements. It ensures that the rights and obligations arising from treaties are binding only upon the contracting parties, preserving the sovereignty and independence of non-parties. While there may be cases where third-party interests are indirectly affected by treaty obligations, the core principle remains that non-parties cannot be held liable for violations or claim benefits under treaties to which they are not parties. This principle helps maintain clarity and predictability in the realm of international law.

Q11: Does the Right to Self-Defence under International Law include Right to take Pre-emptive Action ?
Ans:
Introduction: The right to self-defense is a fundamental principle of international law enshrined in Article 51 of the United Nations Charter. It allows states to use force to defend themselves against an armed attack. However, the question of whether the right to self-defense includes the right to take preemptive action, i.e., using force to prevent a potential future attack, is a matter of debate and controversy in international law.

Arguments in Favor of Preemptive Action:

1. Imminent Threat: Some argue that preemptive action is permissible when a state faces an imminent threat that is clear and evident. In such cases, waiting for an actual attack may not be practical or justifiable.

2. Customary International Law: Supporters of preemptive action claim that state practice and opinio juris (belief that an action is legally required) have evolved to recognize the right to use force in self-defense when the threat is imminent.

3. Case of Israel: Israel has cited the doctrine of preemptive self-defense to justify its airstrikes on nuclear facilities in Iraq (1981) and Syria (2007). Israel argued that these actions were necessary to prevent the development of weapons of mass destruction that posed a potential future threat.

Arguments Against Preemptive Action:

1. Imminence Requirement: Many scholars and states argue that preemptive action is only permissible when the threat is imminent, immediate, and unavoidable. Preemptive action based on speculative threats does not meet this standard.

2. UN Charter: The UN Charter restricts the use of force to cases of self-defense against an actual or ongoing armed attack. Article 51 requires that states report any measures taken to the UN Security Council immediately.

3. Controversial Preemptive Wars: The 2003 invasion of Iraq by the United States, justified on preemptive grounds, was widely criticized by the international community and sparked debates about the legitimacy of preemptive action.

Case Study - Iraq 2003: The 2003 invasion of Iraq by the United States and its coalition allies is a prominent example of the controversy surrounding preemptive action. The U.S. administration, under President George W. Bush, argued that preemptive action was necessary to prevent Iraq from acquiring weapons of mass destruction. However, the invasion was not supported by the UN Security Council and led to extensive debate on the legality of preemptive self-defense under international law.

Conclusion: The question of whether the right to self-defense under international law includes the right to take preemptive action remains a subject of debate and interpretation. While some argue that preemptive action is justified in the face of imminent threats, others emphasize the need for a clear and immediate danger before invoking self-defense. Ultimately, the legitimacy of preemptive action is subject to interpretation and the evolving norms of international law. States must carefully consider their justifications and adhere to the principles of necessity and proportionality when contemplating preemptive measures.

Q12: When is an aircraft considered to be ‘in flight’ for the purposes of the Convention for the Suppression of Unlawful Seizure of Aircraft ? Delineate the obligations the said convention imposes on the State parties.
Ans:
Introduction: The Convention for the Suppression of Unlawful Seizure of Aircraft, commonly known as the Hague Convention, is an international treaty that aims to prevent and combat the unlawful seizure of aircraft. It defines when an aircraft is considered to be 'in flight' and imposes specific obligations on state parties to ensure the safety and security of civil aviation.

Definition of 'In Flight': According to Article 1(2) of the Convention, an aircraft is considered to be 'in flight' from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation. This definition clarifies the period during which the Convention's provisions apply and when unlawful seizure is a criminal offense.

Obligations Imposed by the Convention on State Parties:

1. Criminalization of Unlawful Seizure: State parties are obligated to establish under their domestic laws that the unlawful seizure of aircraft is a criminal offense. They must make hijacking a punishable act and ensure that perpetrators can be prosecuted and extradited.

2. Extradition: The Convention requires state parties to extradite individuals accused of unlawful seizure of aircraft, provided that the offense is included in the list of extraditable offenses in the relevant extradition treaties or arrangements.

3. Jurisdiction: State parties are required to assert jurisdiction over the offense of unlawful seizure of aircraft in cases where the alleged offender is present in their territory and not extradited to another state with jurisdiction.

4. Aircraft Registration: The Convention obligates state parties to include certain provisions in their aircraft registration certificates to indicate that the Convention applies to the aircraft.

5. Assistance to Victims: State parties must provide assistance to victims of unlawful seizure, including the return of the aircraft and its cargo and the return of seized assets.

6. Cooperation and Communication: The Convention encourages state parties to cooperate and communicate with each other to prevent and combat unlawful seizure effectively. This includes sharing information and intelligence related to potential threats.

Example:

Case of Ethiopian Airlines Flight hijacking, 1996:

• In 1996, an Ethiopian Airlines flight, en route from Addis Ababa to Nairobi, was hijacked by three Ethiopian nationals seeking asylum in Australia.
• After a stopover in the Comoros Islands, the hijackers demanded asylum in Australia but were eventually arrested and brought to justice.
• This case highlighted the importance of international cooperation and adherence to the Convention for the Suppression of Unlawful Seizure of Aircraft in responding to such incidents.

Conclusion: The Convention for the Suppression of Unlawful Seizure of Aircraft sets forth clear obligations on state parties to combat and prevent unlawful seizure of aircraft. By defining when an aircraft is considered 'in flight' and imposing obligations related to criminalization, extradition, jurisdiction, and cooperation, the Convention enhances the safety and security of civil aviation globally. States must ensure that their domestic laws and practices are in line with the Convention's provisions to effectively deter and respond to hijacking incidents.

Q13: What is the most favoured means of decision-making at World Trade Organisation ? Under what circumstances can decisions be taken by majority votes ? Which decisions require super majority votes ? Is there a need to reform the decision-making process ? Discuss.
Ans:
Introduction: The World Trade Organization (WTO) is an international organization that deals with the global rules of trade among nations. Decision-making within the WTO is a crucial aspect of its functioning, and it follows certain principles and procedures for reaching consensus and making decisions.

Decision-Making at the WTO:

1. Most Favored Nation (MFN) Principle: The MFN principle is a fundamental aspect of WTO decision-making. It ensures that any trade advantage granted to one member must be extended to all members, promoting non-discrimination in trade relations.

2. Consensus-Based Decision-Making: The WTO generally operates on a consensus-based decision-making process, where all member states must agree to a proposed decision. This principle reflects the inclusive nature of the organization and aims to prevent decisions from being imposed on unwilling members.

Circumstances for Majority Votes:

1. Waivers: Some decisions, such as granting waivers to member states, can be made by a simple majority vote. Waivers allow members to deviate from their obligations temporarily.

2. Accession of New Members: The accession of new members to the WTO requires a two-thirds majority vote of the General Council.

Decisions Requiring Super Majority Votes:

1. Amendments to WTO Agreements: Amendments to the agreements forming part of the WTO require a two-thirds majority vote of the General Council.

2. Admission of New Members: While the accession process starts with a two-thirds majority vote, it eventually requires the approval of all existing members.

Need for Reform in Decision-Making:

1. Inclusivity and Equity: Some argue that the consensus-based decision-making process can be slow and may unduly favor larger economies. Smaller and developing countries may find it challenging to exert their influence.

2. Blocking by a Single Member: Under the consensus system, a single member can effectively block a decision. This can lead to gridlock, as seen in the WTO's struggle to reach a global trade agreement following the Doha Round.

3. Transparency: Critics argue that the decision-making process lacks transparency and may not adequately involve stakeholders such as civil society and non-governmental organizations.

4. Necessity for Flexibility: The WTO's decision-making process may need to adapt to address current challenges, such as the increasing role of digital trade and the need for reforms to address trade-distorting practices.

Conclusion: The WTO's consensus-based decision-making process is rooted in the principle of inclusivity and equality among member states. However, it has faced criticism for its potential to slow down decision-making and impede progress on global trade issues. As the world's trade landscape evolves, there may be a need for reforms that balance the principles of consensus and efficiency, ensuring that the WTO remains an effective forum for addressing contemporary trade challenges. Reform discussions are ongoing, and finding a consensus on changes to the decision-making process will be a crucial aspect of the WTO's future.