Law optional – International Law

International Law comes under Section B of Paper 1 and consists of four questions out of which one is mandatory.

General Comments:

At first glance, syllabus of International Law appears slightly intimidating. There are some reasons for this. First, international law syllabus is very broad compared to the IL courses taught at most law colleges, especially the three year law course. Second, it is mostly an academic subject and is not part of the syllabus for most of the entrance examination related to law and judicial examinations. Third, this subject is peculiar as it consists of part legal philosophy, part diplomacy and part practice of actors of IL.

The good part about this section is that the material is very easily available. I referred to two books for this section: International Law by Malcolm N. Shaw fifth edition (presently the book is in its sixth edition) and International Law & Human Rights, S K Kapoor, 18th edition (presently the book is in its nineteenth edition). Together, these two books cover the entire syllabus. As in Consititutional Law, only 200-300 pages from each book are relevant for the purpose of UPSC preparation.

Internet can be used to refine certain answers. Internet is full of quality material on the subject, as google search is literally not constrained by any territorial limitations. What is subject matter of IL in India, remains for most part true for rest of the world. The questions of IL are even more predictable than Constitutional Law as IL is far less dynamic. Indeed if one is really lazy about IL, one can focus on 30-35 questions and expect couple of them to come in the mains examination.

Further, a considerable part of the syllabus of IL falls under general studies – for instance, international economic institutions, non-proliferation, protection of human environment, United Nations etc. Preparation of these topics is an extension of what one may have already studied for GS. Also except for certain topics which are conceptual like Law of the Sea and state succession and recognition, most of the remaining topics are easy to understand (and yes, easy to mug up too). The case laws (mostly ICJ judgments) which are relevant for the syllabus are limited and lay down the legal position in clear terms. There are direct questions based on case laws so it is worth one’s time to read them. The case summaries are available on internet easily and some cases are also available in DU case material (described in earlier posts). The “Dukki” of IL has limited utility as it covers only a small part of syllabus, but is useful for certain topics which I have mentioned below.

International Law

1. Nature and definition of international law: Caution, this topic is NOT confined to just nature and definition of IL. Frequently asked question are related to sources of IL (customs, general principles, treaties, etc.), on whether IL is weak law/ morality based law etc, basis of IL, subjects of IL, sanctions as a way of enforcing IL. Most of these questions are covered in early chapters of Kapoor, see pp. 24-72, sanctions (p. 548) and Shaw {pp. 1-10, 12-13, 22-41 (these 20 pages are related to historical evolution of IL and meant to develop a general understanding to subject, may be ignored if time constraints), pp.47-50, Sources of IL – pp. 65-82, 88-106, 115-117}.

2. Relationship between international law and municipal law: Direct question comes on this topic. Kapoor- pp. 101-110.  Shaw (pp. 121-150, pp. 160-161). I also read all the cases available on this topic in DU case material for IL. Dukki also has a good chapter on this topic as an annual feature of DU IL papers.

3. State recognition and state succession: A relatively difficult topic to master. Along with Law of the sea this is one area where practical questions will be asked. For instance, if country X annexes country Y and some portion of Y declares independence as Z, who inherits Y’s assets located in country ‘A’. Some probable questions are difference between de facto and de jure recognition, difference between types of State succession, theories of recognition of state and recognition of government, implications of non-recognition and case laws related to it (DU case material has case on it). Practice previous years’ practical questions on this topic, DU Dukki has similar questions (with answers) as DU also asks such questions.

Relevant pages of Kapoor are from pp. 153-178 and Shaw pp. 367-399, 404-407.

4. Law of the sea: Inland waters, territorial sea, contiguous zone, continental shelf, exclusive economic zone, high seas: Continental Shelf and its determination is the most important. One must understand this topic well as it is difficult to attempt the question on it, unless one is through with the controversy in the pre-UNCLOS 1982 world and the eventual judicial solution. Thus, it is advisable to be thorough with some seminal judgments of ICJ like North Sea Continental Shelf case and subsequent developments (DU case material has reproduced important parts of judgments but if they appear muddled use Internet). One should also go through the Indian enactment Maritime Zones Act, 1976 and observe its similarity or otherwise with the UNCLOS, 1982. A comparison of UNCLOS 1958 and 1982 is also useful to understand the evolution of most of the concepts related to Law of the sea and the birth of new terminology like EEZ. For short notes, transit passage and freedom of High Sea are important questions.

Relevant Pages of Shaw pp. 490-498, 505-511, 515-533, 541-552, 560-562. Relevant Pages of Kapoor: pp. 250-290.

5. Individuals: Nationality, statelessness; Human rights and procedures available for their enforcement: The legal position of individual under IL and the subsequent evolution of various human rights convention which vests individual with certain rights is a subject matter of many questions. Role of UN in promotion of human rights enjoyed by individuals is also a relevant topic. Perhaps, most important question is related to ICJ’s judgment on Nottebohm case which is the seminal case on Nationality and considers the role and characteristics of nationality. Shaw has brief summary of case on p. 726 and discusses the case in length.

6. Territorial jurisdiction of States, extradition and asylum: This is the most frequently invoked topic in IL. This topic sees many case laws based questions. One has to comment based on factual matrix described in the question. There are few important theoretical questions on asylum, the difference between territorial and extra-territorial asylum, territorial jurisdiction, and concept of opposability, diplomatic immunity and extradition. Familiarization with relevant sections of Extradition Act will be helpful as questions are asked on grant of asylum on different grounds and its recognition by other nations. Territorial jurisdiction on high seas/warships is another UPSC favourite. The doctrine has evolved since the days of Lotus case, take note of UNCLOS provisions. Various theories of assertion of extra-territorial jurisdiction must be understood. “Asylum ends where extradition begins” is also a question which has been frequently asked in past.

Relevant pages of Kapoor pp. 362-364, 345-352, 212-225, p. 458, p.366

Shaw- 572-575, 579-594(jurisdiction), 610(extradition), 621-25, 631-33, 638-40, 648 (immunity),

7. Treaties: Formation, application, termination and reservation: Dukki has a chapter that briefly discusses treaties and their binding nature. Some important questions are Jus cogens, rebus sic stantibus, reservation in treaty, principle of pacta sant servanda. Kapoor has a chapter on treaties from p.465 onwards; Shaw has a chapter on law of treaties from p.810 onwards.

8. United Nations: Its principal organs, powers, functions and reform: Question related to compulsory jurisdiction of ICJ is often asked. The questions related to role of UN in contemporary world order is covered through GS preparation, will mention sources separately in relevant GS post. Two relevant topics are veto system and provisions of UN charter for peace keeping, which may be studied through newspaper articles on the subject.

Shaw: p.1089 onwards, Kapoor has these topics spread over different chapters of book.

9. Peaceful settlement of disputes – different modes: An easy topic to master and attempt in exam. Briefly discussed in Kapoor, for more information on certain methods of dispute settlement like good office etc., Shaw may be referred. Relevant pages Kapoor: 704-12, Shaw- 914-950

10. Lawful recourse to force: aggression, self-defence, intervention: Not a very important topic in terms of questions asked. Lawful use of force and circumstances under which it is justified under IL is one important question. See Kapoor p. 187, 203-204, 719.

11. Fundamental principles of international humanitarian law – International conventions and contemporary developments: Left this topic.

12. Legality of the use of nuclear weapons; ban on testing of nuclear weapons; Nuclear – non proliferation treaty, CTBT: This is more a topic of GS than IL. Read few articles from the newspapers and understand India’s stand on non-proliferation at international forums. There is also an advisory of ICJ on legality of use of nuclear weapon. That case is available in DU case material.

13. International terrorism, state sponsored terrorism, hijacking, international criminal court: ICC was the only topic covered by me and that too through newspaper articles. India’s reasons for not acceding to the ICC statute may also be understood. The questions asked on other topics can be understood with general understanding of international affairs and more relevant for GS than IL.

14. New international economic order and monetary law: WTO, TRIPS, GATT, IMF, World Bank: Covered through GS preparation, will mention sources separately in relevant GS post.

15. Protection and improvement of the human environment: International efforts: Covered through GS preparation, will mention sources separately in relevant GS post.