UPSC Mains Answer PYQ 2023: Law Paper 1 (Section- B) | Law Optional Notes for UPSC PDF Download

Section - B

Q5: Answer the following questions in about 150 words each : (10x5=50)
(a) “Triumph of Positivism has reduced an individual to be an object of international law rather than a subject of international law.” Comment on the status of the individual under international law in the light of the above statement.   (10 Marks)
Ans: 
Introduction: The statement suggests that the dominance of legal positivism in international law has led to individuals being treated more as objects rather than active subjects in the international legal system. This reflects a historical shift in the focus of international law.

Status of the Individual:

• Historical Perspective: Traditionally, international law primarily dealt with relations between states, with limited consideration for the rights and responsibilities of individuals.

• Evolution of Human Rights: The emergence of human rights as a core component of international law has expanded the recognition of individual rights and responsibilities in the international arena.

• Individual as a Subject: Today, individuals are increasingly recognized as subjects of international law, particularly in areas like human rights, humanitarian law, and international criminal law.

• International Humanitarian Law (IHL): IHL provides specific protections to individuals during armed conflicts, recognizing them as subjects with rights to protection from violence and harm.

• International Criminal Law: The establishment of international criminal tribunals and the International Criminal Court (ICC) allows for the prosecution of individuals for crimes under international law, reinforcing their status as legal subjects.

Challenges:

• Enforcement and Implementation: While the legal framework recognizes individual rights, the enforcement and implementation of these rights at the international level can be challenging.

• State Sovereignty: The principle of state sovereignty can sometimes impede efforts to hold individuals accountable for international crimes.

Example:

• The establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) demonstrated a significant shift towards holding individuals accountable for international crimes.

Conclusion: 
While the historical dominance of state-centric legal positivism in international law may have limited the recognition of individual rights, there has been a significant evolution towards considering individuals as subjects with rights and responsibilities. This shift is particularly evident in areas like human rights, humanitarian law, and international criminal law.

(b) What do you mean by ‘Contiguous Zone’ ? Explain with reference to Indian practices on the subject.   (10 Marks)
Ans: 
Introduction: 
The contiguous zone is a concept in maritime law that extends beyond a state's territorial sea, allowing coastal states to exercise limited control for the purpose of preventing and controlling infringement of customs, fiscal, immigration, and sanitary laws.

Indian Practices:

• Definition: India's contiguous zone extends up to 24 nautical miles from its baseline.

• Jurisdiction: In this zone, India has jurisdiction over matters related to customs, immigration, and sanitation.

• Preventing Infringements: India can take necessary measures in this zone to prevent infringement of its customs, fiscal, immigration, or sanitary laws.

• Exercising Control: It allows India to exercise control over ships for the purpose of enforcing laws related to these matters.

Example:

• In 2018, the Indian Coast Guard apprehended a foreign vessel in the contiguous zone for suspected drug trafficking. This action demonstrated India's exercise of jurisdiction and control in its contiguous zone.

Conclusion: 
The establishment and enforcement of a contiguous zone by India is in line with international maritime law. It allows coastal states to protect their customs, fiscal, immigration, and sanitary interests beyond their territorial seas, ensuring compliance with relevant laws and regulations.

(c) Explain the impact of recognition on the powers and privileges of the States.   (10 Marks)
Ans: 
Introduction: 
Recognition in international law refers to the acknowledgment of a political entity as a state. It has significant implications for the powers and privileges of states.

Impact on Powers:

• Sovereignty: Recognition affirms a state's sovereignty and independence, granting it the authority to conduct international relations.

• Participation in International Organizations: Recognized states can become members of international organizations, allowing them to participate in global governance and decision-making.

• Diplomatic Relations: Recognized states can establish diplomatic relations with other states, including the exchange of ambassadors and consulates.

Impact on Privileges:

• Territorial Integrity: Recognized states are entitled to territorial integrity, meaning their borders are inviolable, and other states should not encroach upon their territory.

• Immunity from Coercion: Recognized states are protected from interference or coercion by other states in their internal affairs.

Example:

• The recognition of South Sudan as an independent state in 2011 by a significant number of countries affirmed its sovereignty and granted it access to international forums and organizations.

Conclusion: 
Recognition is a crucial aspect of statehood in international law. It not only affirms a state's sovereignty but also grants it access to the privileges and powers associated with being a member of the international community. This recognition is a fundamental aspect of a state's standing in the global arena.

(d) Explain the principle of ‘Jus cogens’ with reference to ‘Vienna Convention on Law of Treaties, 1969’.   (10 Marks)
Ans: 
Introduction: 
Jus Cogens refers to peremptory norms of international law that are considered to be of fundamental importance and from which no derogation is permitted.

Jus Cogens in Vienna Convention:

• Article 53 of the Vienna Convention: This article states that a treaty is void if it conflicts with a peremptory norm of general international law (jus cogens).

• Norms of Jus Cogens: Examples of jus cogens norms include prohibitions on genocide, slavery, and torture, as well as the right to self-determination.

• Non-Derogability: States cannot make treaties that violate jus cogens norms, and such treaties are considered void ab initio.

Example:

• The International Court of Justice (ICJ) in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (2007) affirmed the jus cogens nature of the prohibition of genocide.

Conclusion: 
The recognition of jus cogens norms in the Vienna Convention highlights the significance of these norms in international law. They represent the highest standard of legal norms and bind all states, regardless of their consent. This principle ensures that certain fundamental values are protected and respected by the international community as a whole.

(e) “International Criminal Court is more of a Eurocentric Organisation than an International Court.” Explain the jurisdiction of International Criminal Court in light of the above statement.
Ans:    (10 Marks)

Introduction: 
The International Criminal Court (ICC) is a tribunal established to prosecute individuals for the most serious international crimes, including genocide, war crimes, crimes against humanity, and the crime of aggression.

Jurisdiction of the ICC:

• Subject Matter Jurisdiction: The ICC has jurisdiction over individuals for the crimes within its mandate, regardless of their nationality or where the crimes were committed.

• Temporal Jurisdiction: The ICC can prosecute crimes committed after its establishment in July 2002.

• Territorial Jurisdiction: The ICC has jurisdiction if the crime occurred in the territory of a state party or if it was committed by a national of a state party.

• Complementarity: The ICC's jurisdiction is complementary to national courts. It can step in when national courts are unable or unwilling to prosecute.

Critique of Eurocentrism:

• Focus on African Cases: Critics argue that the ICC has predominantly focused on cases from African countries, leading to allegations of bias and Eurocentrism.

• Selective Prosecution: Some argue that powerful states, including major powers outside of Europe, have not been adequately held accountable by the ICC.

Example:

• The ICC's investigation and prosecution of individuals involved in the Darfur conflict in Sudan and the Lord's Resistance Army in Uganda have been significant cases that reflect the Court's jurisdiction.

Conclusion: 
While the ICC is designed to be an international court, it has faced criticisms of Eurocentrism, particularly in its case selection. However, its jurisdictional framework allows for the prosecution of individuals for the gravest international crimes, emphasizing the importance of accountability and justice on the global stage. Efforts are ongoing to address concerns and enhance the Court's effectiveness and credibility.

Q6:
(a) “Law must be stable, and yet it cannot stand still, as it needs to reconcile the conflicting needs of stability and change and in the fast-developing world, the stability appears to have become the casualty in international law.” Differentiate between traditional International Law and new International Law in light of the above statement.    (20 Marks)
Ans: 
Introduction: 
The statement highlights the tension in international law between the need for stability and the demand for adaptation in a rapidly changing world. This has led to the evolution of new international law, distinct from traditional international law. 
Conclusion:
The differentiation between traditional and new international law reflects the evolving nature of international relations. While traditional international law emphasizes state interests and stability, new international law expands to address global challenges and includes a more diverse set of actors and norms. 

(b) “States show considerable flexibility in the procedures, whereby they give effect to the rules of the International Law, within their territory.” Explain the acceptability of norms of International Law in India, citing relevant cases on the subject.    (15 Marks)
Ans: 
Introduction: 
India, as a member of the international community, accepts and recognizes international law norms. The acceptability of these norms within India's legal system is essential for compliance with international obligations.

Relevant Cases:

• Kesavananda Bharati v. State of Kerala (1973): In this landmark case, the Indian Supreme Court recognized that international law is part of the law of the land, and it should be given due regard in the absence of conflicting domestic law.

• Vellore Citizens Welfare Forum v. Union of India (1996): In this case, the Supreme Court referred to international agreements and conventions to interpret and apply environmental principles in domestic law, highlighting the acceptability of international norms in environmental matters.

Acceptability of Norms:

• Ratification of Treaties: India, like other nations, ratifies international treaties, making them part of domestic law. The principles and obligations in these treaties are accepted and enforceable within the country.

• Customary International Law: International customary law is accepted as binding within India's legal system. This includes general principles of law recognized by the international community.

• Judicial Pronouncements: Indian courts refer to international law principles and conventions to interpret domestic laws and ensure compliance with international obligations.

Conclusion: 
India recognizes and accepts international law norms, whether arising from treaties, customary law, or international agreements. This acceptability is essential for maintaining India's status as a responsible member of the international community and ensuring compliance with its international obligations.

(c) How do you distinguish between ‘Continental Shelf and ‘Exclusive Economic Zone’ ? Explain giving examples.    (15 Marks)
Ans: 
Introduction: 
Both the continental shelf and the exclusive economic zone (EEZ) are maritime zones under the United Nations Convention on the Law of the Sea (UNCLOS). They have distinct characteristics and purposes. 
Conclusion: 
The continental shelf and the exclusive economic zone serve different purposes and have distinct rights and responsibilities for coastal states. While the continental shelf is primarily associated with non-living resources, the exclusive economic zone focuses on both living and non-living resources, especially fisheries management. These distinctions are essential in managing and utilizing maritime resources in a sustainable and equitable manner. 

Q7:
(a) “Preamble of the UN Charter is representative of the aspirations of humanity in ensuring peace and security across the globe.” How far have these objectives been achieved by the UN ? Explain and elucidate.    (20 Marks)
Ans: 
Introduction: 
The Preamble of the UN Charter reflects the lofty goals of the organization, including the maintenance of international peace and security. Evaluating the extent to which these objectives have been achieved requires an examination of the UN's efforts over the years.

Achievements:

• Prevention of Global Conflicts: The UN has played a pivotal role in preventing major inter-state conflicts since its establishment. It acted as a forum for diplomatic negotiations during the Cold War, averting direct military confrontation between superpowers.

• Peacekeeping Operations: The UN has conducted numerous peacekeeping missions around the world to restore and maintain peace in conflict-affected regions. For instance, the UN's involvement in the Korean War and its subsequent role in maintaining the Korean Armistice Agreement contributed to stability in the region.

• Conflict Resolution and Mediation: The UN has been actively involved in mediating conflicts and facilitating peace agreements. Examples include the Camp David Accords (1978) and the Dayton Agreement (1995) that ended conflicts in the Middle East and the Balkans, respectively.

• Humanitarian Assistance: The UN has been instrumental in providing humanitarian aid to regions affected by natural disasters, conflicts, and other crises. Agencies like UNICEF, WHO, and WFP have made significant contributions to alleviate human suffering.

Challenges and Shortcomings:

• Security Council Gridlock: The veto power wielded by the permanent members of the Security Council has sometimes hindered decisive action in cases of international crises, as seen in instances related to Syria.

• Ongoing Conflicts and Humanitarian Crises: Despite UN efforts, ongoing conflicts in regions like Syria, Yemen, and parts of Africa continue to pose challenges to achieving lasting peace and security.

• Terrorism and Transnational Threats: The rise of non-state actors and terrorism present new and complex challenges that the UN struggles to address effectively.

Conclusion: 
While the UN has made significant strides in maintaining international peace and security, it faces ongoing challenges. The organization's ability to adapt and respond to evolving global threats will be crucial in achieving its ultimate objectives as outlined in its Charter's preamble.

(b) “Reservation in multilateral treaty excludes or modifies the legal effect of certain provisions of a treaty in its application to that State.” Explain the circumstances under which reservations in treaties are permissible under International Law.   (15 Marks)
Ans: 
Introduction: 
A reservation in a treaty is a unilateral statement made by a state when signing, ratifying, or acceding to a treaty, where it seeks to exclude or modify the legal effect of certain provisions of the treaty in its application to that state.

Circumstances for Permissible Reservations:

• General Rule of Permissibility: The general rule under customary international law is that reservations are permissible unless prohibited by the treaty or are incompatible with its object and purpose.

• Provisions of the Treaty: Some treaties explicitly prohibit reservations, while others may allow them in specific circumstances.

• Compatibility with Object and Purpose: A reservation is impermissible if it is incompatible with the object and purpose of the treaty. This determination is made by the other parties to the treaty.

• Not Altering Fundamental Obligations: Reservations should not alter the fundamental obligations of the treaty or undermine its essence.

Examples:

• Vienna Convention on the Law of Treaties (1969): Article 19 of the Vienna Convention provides that a reservation is permissible unless it is prohibited by the treaty or incompatible with its object and purpose.

• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Several states have made reservations to specific articles of CEDAW, which were accepted by the parties, demonstrating the flexibility of treaties in accommodating state-specific concerns.

Conclusion: 
Reservations in treaties provide flexibility for states to become party to agreements while safeguarding their specific interests or concerns. However, they must not undermine the fundamental purpose of the treaty or alter its essential obligations. The acceptance of reservations is subject to negotiation and agreement among the parties involved.

(c) Under what circumstances is recourse to ‘force’ or ‘aggression’ permissible and justifiable under International Law ?    (15 Marks)
Ans: 
Introduction: 
The use of force in international relations is regulated by principles of international law. Permissible circumstances for resorting to force are outlined under the United Nations Charter and customary international law.

Circumstances for Permissible Recourse to Force:

• Self-Defense: Article 51 of the UN Charter recognizes the inherent right of individual or collective self-defense in the event of an armed attack until the Security Council takes measures to maintain international peace and security.

• Security Council Authorization: The Security Council, under Chapter VII of the UN Charter, can authorize the use of force to maintain or restore international peace and security. This includes peacekeeping missions and enforcement actions.

• Humanitarian Intervention: While controversial, there may be instances where states or coalitions may argue that intervention is necessary to prevent or halt gross human rights violations or humanitarian crises.

• Consent of the State Concerned: States may invite or consent to the intervention of another state for various reasons, such as to assist in maintaining law and order or combating a common threat.

Examples:

• Gulf War (1990-1991): The international coalition led by the United States intervened in response to Iraq's invasion of Kuwait, with authorization from the Security Council under Resolution 678.

• Kosovo Intervention (1999): NATO's intervention in Kosovo, without Security Council authorization, was controversial but justified by some as a humanitarian intervention to stop the ethnic cleansing by Serbian forces.

Conclusion: 
Recourse to force is strictly regulated by international law to maintain global peace and security. The permissible circumstances include self-defense, Security Council authorization, humanitarian intervention, and consent of the state concerned. Adherence to these principles is essential in upholding the rule of law and preventing unilateral acts of aggression.

Q8:
(a) “WTO provides a platform for agreements amongst its members which form the legal foundation of global trade.” Critically evaluate the importance of WTO in the new international economic order.    (20 Marks)
Ans: 
Introduction: 
The World Trade Organization (WTO) plays a crucial role in shaping the global trade landscape by providing a platform for agreements among its member states. It establishes rules and regulations that govern international trade, contributing to the stability and predictability of the global economy.

Importance of WTO:

• Rule-Based System: WTO provides a rules-based system for conducting international trade, which helps in reducing uncertainty and creating a level playing field for all member states.

• Dispute Resolution Mechanism: The WTO's dispute settlement mechanism allows member states to resolve trade disputes in a transparent and impartial manner, ensuring that trade agreements are enforced effectively.

• Market Access and Non-Discrimination: WTO agreements, such as the General Agreement on Tariffs and Trade (GATT), promote market access and non-discrimination, enabling countries to export their goods and services more freely.

• Facilitation of Economic Growth: By promoting free trade and reducing trade barriers, the WTO contributes to economic growth and development, benefiting both developed and developing countries.

• Capacity Building for Developing Countries: The WTO provides technical assistance and training programs to help developing countries build their capacity to participate effectively in the global trading system.

Examples:

• Uruguay Round Agreements (1986-1994): The Uruguay Round negotiations resulted in the creation of the WTO and the establishment of new agreements covering trade in goods, services, and intellectual property.

• Doha Development Agenda (2001-2015): The Doha Round aimed to address issues of particular concern to developing countries, such as agriculture, intellectual property, and access to medicines.

Conclusion: 
The WTO plays a central role in shaping the rules and regulations of global trade. Its role in facilitating trade negotiations, resolving disputes, and promoting economic growth is vital in maintaining a stable and predictable international economic order.

(b) “Member States of the UN need to take appropriate action for protecting and improving human environment.” In light of the above statement, highlight the major steps of the UN for protecting human environment.    (15 Marks)
Ans: 
Introduction: The United Nations (UN) recognizes the importance of protecting the human environment and has taken several steps to address environmental challenges on a global scale.

Major Steps of the UN:

• Stockholm Conference on the Human Environment (1972): The Stockholm Conference, organized by the UN, marked a significant milestone in global environmental governance. It led to the establishment of the UN Environment Programme (UNEP) to coordinate international environmental efforts.

• Rio Earth Summit (1992): The United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro emphasized sustainable development and led to the adoption of Agenda 21, a comprehensive plan of action for sustainable development.

• UN Framework Convention on Climate Change (UNFCCC) (1992): The UNFCCC established a framework for addressing climate change, aiming to stabilize greenhouse gas concentrations in the atmosphere.

• Paris Agreement (2015): Under the UNFCCC, the Paris Agreement set out international commitments to limit global warming, including efforts to keep temperature increases well below 2 degrees Celsius.

• UN Sustainable Development Goals (SDGs): The SDGs, adopted in 2015, include goals related to environmental sustainability, such as ensuring access to clean water, sustainable cities, and climate action.

Examples:

• Montreal Protocol (1987): The Montreal Protocol, negotiated under the auspices of the UN, is a landmark international treaty designed to protect the ozone layer by phasing out the production and consumption of ozone-depleting substances.

• Kyoto Protocol (1997): The Kyoto Protocol, an extension of the UNFCCC, set binding emission reduction targets for developed countries to combat climate change.

Conclusion: 
The United Nations has played a pivotal role in addressing global environmental challenges. Through conferences, conventions, and agreements, the UN has worked to protect and improve the human environment, emphasizing sustainability and collective action.

(c) “International Humanitarian Law is a set of rules to limit the effects of armed conflict, whereas International Human Rights Law seeks to ensure a set of rights which are essential for survival of humans as Humans.” Distinguish between International Humanitarian Law and International Human Rights Law in terms of their contents and purposes.    (15 Marks)
Ans: 
Introduction: 
International Humanitarian Law (IHL) and International Human Rights Law (IHRL) are two distinct branches of international law that aim to protect human dignity in different contexts. 
Conclusion: 
International Humanitarian Law and International Human Rights Law serve complementary roles in safeguarding human dignity. While IHL focuses on regulating armed conflicts and protecting individuals in such contexts, IHRL provides a broader framework for upholding the rights and dignity of all individuals at all times, whether in times of peace or conflict. Both branches of law work together to ensure the fundamental rights and protections of individuals around the world.