PAPER SET :- ____1____

Shri Vile Parle Kelavani Mandal’s

PRAVIN GANDHI COLLEGE OF LAW
[Affiliated to University of Mumbai]

FIFTH YEAR LL.B./B.L.S. ONLINE EXAMINATION – DECEMBER, 2021

[Subject: Public International Law & Human Rights] [Semester – IX]

[Date of Examination: 04/12/2021] [Time : 1 Hour] [Marks : 30]

[Seat No. 818]

NB: 1. Please check whether you have got the right question paper.
2. All questions are compulsory.

1. State Rights of Children under Convention on rights of Child.

Ans 1. Answer 1 - In 1959, the General Assembly of the UN adopted the Declaration
of the Rights of the Child, which was the first major international consensus on the
fundamental principles of children's rights. The most important provisions of CRC are
summarised below –

1. State Parties recognise that every child has the inherent right to life.

2. State Parties shall ensure, to the maximum extent possible, the survival and
development of the child.

3. States Parties shall respect and ensure the rights set forth in the Convention to every
child within their jurisdiction without discrimination of any kind, irrespective of the child's
or his or her parents or legal guardian's race, colour, sex, language. religion, political or
other opinion, national, ethnic or social origin, property, disability, birth or other status

4. States Parties shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status, activities,
expressed an opinions, or beliefs of the child's parents, legal guardians, or family
members.
5. In all actions concerning children, whether undertaken by pubic or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.

6. State Parties undertake to ensure the child and care as is necessary such protection
tor his or herwell-being, taking into account the rights and duties of his or her parents,
guardians, or other legal individuals legally responsible her, and, to this end, for him or
shall take all appropriate legislative administrative measures.

7. State Parties shall ensure that the institutions, services facilities responsible and for
the care or protection of children shall conform with the standards established by
competent authorities, particularly in the areas of safety, health, in the number and
suitability of their staff, as well as competent supervision.

8. State Parties shall undertake all appropriate legislative, administrative and other
measures for the implementation of the rights recognised in the Convention.

9. The child shall be registered immediately after birth and shall have the right from
birth to a name and the right to acquire a nationality. The child shall have the right to
freedom of expression, including the freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the fom of
art, or through any other media of the child's choice.

10. State Parties that recognise or permit the system of adoption shall ensure that the
best interests of the child shall be the paramount consideration, and they shall recognise
the right of every child to a standard of living adequate for the child's physical, mental,
spiritual, moral and social development.

11. State Parties undertake to protect the child from all forms of sexual exploitation and
sexual abuse.

12. State Parties shall ensure that no child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment. Neither capital punishment nor life
imprisonment without possibility of release shall be imposed for offences committed by
persons below eighteen years of age.
2. Explain Judicial Activism with reference to Human Rights in India..
Ans 2. The human rights guaranteed by the Constitution of India in the form of
fundamental rights, the right to enforce fundamental rights is itself a fundamental right
under Art. 32 of the Constitution.
However, all such rights would remain "paper rights" unless there is an active judiciary to
protect and enforce these rights. It is here that judicial activism of the Suprenme Court and
the High Courts is seen at its best.
The judiciary has always stepped in to fill the lacuna left by the legislature
and the executive, and has come to the aid of the common man when
the other two organs of the government have failed to provide any relief.
In all cases where human rights have been sought to be enforced, the courts have relaxed
the requirement of locus standi, allowing any
public-spirited individual or organisation to file a writ petition.
In case of Charles Shobraj v. Superintendent Central Jail, Tihar, the Supreme Court
observed that handcuffing of a prisoner, unless absolutely necessary, is prima faice
inhuman and repugnant to Art. 21 of the Constitution. As
observed by Justice Krishna lyer in that case, "Imprisonment does
not spell farewell to human rights.”
Despite a Magistrate's directions not to produce a
prisoner in court in handcuffs unless absolutely necessary, he was
nevertheless produced handcuffed on every occasion. He,
therefore, addressed a telegram to the Judges of the Supreme
Court, who converted it into a habeas corpus petition, and granted
the necessary relief to the prisoner. (Prem Shankar Shukla v. Delhi
Administation)
freedom of the press is not specifically mentioned in Part Ill of the Constltution. The
Supreme Court has however ruled, time and again, that the freedom of speech and
expression includes the freedom of the press, and is therefore available to the same extent
and is subject to the same restrictions. (Romesh Thappar v. State of Madras,)

3. Amnesty International
Ans 3. Amnesty International is an international nongovernmental organization (NGO)
founded in London on May 28, 1961 which campaigns for the protection of human rights
all over the world. It promotes respect for all the human rights in the Universal Declaration
of Human Rights. It believes that human rights are interdependent and indivisible. It
 prepares and publishes reports on human rights. Government are not always happy with
these reports since major focus of Amesty is the misconduct of the government authorities,
Nevertheless, these reports play an important role in research and advocacy on human
rights. In 1977 AI was awarded the Nobel Prize for Peace. In the early 21st century the
organization consisted of national sections, or offices, in more than 50 countries and some
three million individual members, donors, and affiliated activists in more than 150
countries and territories. The organization was founded through the principal efforts of the
British attorney Peter Benenson, who had defended political prisoners in Hungary, South
Africa, and Spain and who sought to establish a collective agency for the advancement of
human rights.

4. Protection against arbitrary arrest and detention under Indian Constitution..

Ans 4. Article 22 provides both citizens and non-citizens with protection against arrest and
detention. Detention is classified into two types: punitive detention and preventive
detention. Pinnately, tension is used to punish a person for what he has already done,
whereas the goal of preventive detention is to keep him from doing it if there is a
reasonable suspicion that his actions will cause harm to society or endanger the
government's security.

Article 22 clauses (1) and (2) provide rights or safeguards for people arrested under
ordinary laws and held in punitive detention. They have the following rights:

The right to be informed of the grounds for arrest or detention as soon as possible.

The right to consult with and be represented by a legal practitioner of his choice.

The right to appear in front of the nearest magistrate within 24 hours of arrest.

The right not to be detained in custody for more than 24 hours without the authorisation of
a magistrate.

Article 22 clause (3) discusses preventive detention, and Article 22 clauses (4) to (7)
discuss the rights available to those detained under preventive detention laws.
 The case of DK Basu v. State of West Bengal is one of the landmark authorities which
enumerate guidelines and requirements for arrests and detentions provided by the Supreme
Court.

5. Role of NGO and Human Rights.

Ans 5. A Non-Governmental Organisation (NGO) is a non-profit voluntary organisation
of community persons, volunteers, civilians and citizens. NGO’s are registered under the
relevant laws of the country, but are managed by its members and associated persons,
independently from government control. NGOS work to improve the policies, enhance the
work pattern, improve and implement the welfare and development schemes of
Government and causes for human welfare. NGOs serve as organisations to advocate,
promote and monitor human right issues, education, health, environment and other welfare
and development aims, objects and issues.

Some Non- Governmental Organizations in India are:

a) The Centre for Development and Human Rights: The Centre for Development and
Human Rights (CDHR) is a non- partisan NGO based in New Delhi. It is registered under
the Societies Registration Act, 1860, and aims to promote social and global justice through
human rights. It seeks to strengthen the field of all human rights developing the tools for
achieving their respect, protection and fulfilment.

b) Vigil India: Vigil India Movement (or Vigil India) is a non-governmental

organisation based in Bangalore that aims to protect and promote human rights in India.
Founded in 1977, it is one of the country's leading human rights organisations focusing on
the rights of Dalits, tribal, children and Women.

Some Non- Governmental Organizations outside India are:

a) The Human Rights Action Centre

b) Human Rights Watch

6. Do you agree with the view that "International Law is merely a positive morality" ?
Discuss the nature of International Law.
 Ans 6. According to Austin, law is the command of a superior Sovereign, enacted by a
determinant Sovereign authority, breach of which makes the offender liable for
punishment. According to Austin, international law cannot be called as a true law, because
of the following reasons-
a) International law is not enacted by a Sovereign legislative authority.
b) It does not have the sanction of any Sovereign legislative authority.
c)There is no agency for the enforcement of international law.
Thus, according to Austin, international law is just a positive international morality.
International law is, therefore, not a legal system.

However, there are few criticism too which are as follow –

1) Austin has taken into account only those laws which are enacted by Sovereign
legislative authority and has ignored the customary and unwritten laws.
2) The communities were ruled by customs and usage, which had the force of law, even
before the enacted law governed the conduct of the communities.
3) In addition to written law, customary laws are in the existence everywhere.
4) According to Austin, laws are observed because of fear behind it, but in many
communities laws were observed because of inner morality, habit of mind and community
practices.
5) Austin's definition has failed to explain why states considers the international law to be
binding upon them.

Thus, it can be said that the definition given by Austin is not adequate. The conclusion of
Austin, that the international law is not a law and it is just a positive morality, is not
correct.

7. X was a terrorist. He caused two explosions in a Café in Sri Lanka. After committing the
offence X fled to England. Sri Lanka demands extradition of X. X contends that the nature
of his crime was political and therefore, he could not be extradited. Discuss the validity of
the claim of X, referring to the principle of non-extradition for political crimes and the
exceptions thereto.
Ans 7. One of the basic accepted Principle in international law is that the Political
Offences may not give rise to extradition. Under existing extradition treaties, as
well as in most-systems of municipal laws, extradition shall not be granted if the
offence for which extradition requested is regarded by the requested state as a
Political Offence or as an, offence connected with Political Offence.

The United Nations Model Treaty on Extradition (1990), arranges it as a

mandatory ground for refusal by the requested state as compared with the optional
ground for refusal.2 Article 3(a) of the treaty states as under: “Extradition shall not be
granted if the offence for which extradition is requested is regarded by the requested
state as an offence of a political nature”.

However, over the years the romantic image of the political descendents
fighting for democracy has been tarnished by the political terrorists fanatically
determined to overthrow the regime of another state by all means, including hostage
taking, hijacking and more recently bombings. As a result the political offence exception,
has become highly controversial and courts have sought to define the political offence in
such a way that it excludes the political terrorist but does not abandon the protection of a
genuine political descendent.

International terrorism presents a particular problem for extradition as most

transnational acts of terror are politically motivated and fall with in the tests
traditionally laid down for political offender. Extradition treaties play a
particularly important role in the cooperative efforts to combat terrorism.

Hence, X’s claim is not valid as terrorism is an exception to this principle. Yet the
effectiveness has been hampered by the fact that the political exception contained in all
extradition treaties, protects from extradition of political offenders of all types, non-
violent, violent alike, including terrorist.
One of the most controversial issues relating to extradition is the exception for most
political offenses, a standard clause in most extradition laws and treaties that provides the
requested state with the right to refuse extradition for political crimes. Although this
exception arguably has acquired the status of a general principle of law, its practical
application is far from settled. The evolution of international law and the development of a
nearly universal consensus condemning certain forms of criminal conduct have restricted
the principle’s scope so that it now excludes the most heinous of international crimes—
e.g., genocide, war crimes, and crimes against humanity. Apart from these and a few other
 cases, however, there is very little agreement on what constitutes a political crime, and
states can thus exercise considerable discretion in applying the political offense exception.

8. Write principle of Sovereign equality.

Ans 8. Principles of Sovereign Equality of states
As the members of international community, in principle, all states are equal. This equality
is due to their international personality being dissimilar in respect of the territories,
population, power, civilization, prosperity, etc. all states as international persons are equal.
According to Oppenhcim following are the consequences of legal equality.
When any question is to be decided by consent, each state is entitled to have one vote, but
there are exceptions to this rule, such as the veto of the permanent member of the Security
Council;Legally importance of votes of the weak, as well as, strong nation is the same;
No state can exercise jurisdiction over another state. This rule has been applied by the
Courts many times;Generally, the Courts of a state cannot challenge the validity of the
official acts of another state, as these acts are related to the jurisdiction of that state.
The common interest of state, thus, requires the transformation of state sovereignty into a
general,universal principle of international relations mutually binding obligation to respect
one another's sovereignty. This obligation has been created by International Law, as the
inter-state agreements does not restrict sovereignty. It establishes the limits of a state's
freedom of action with due respect for the sovereignties of other state.
Sovereignty in international relations means that the state is independent in international
affairs as long as it keeps within the bounds of the mutually binding rules of International
Law. Draft Declaration on rights and duties of states has regarded that it is one of the
duties of the state to conduct relations with other states. Article 14 of the Declaration states
that every state has the duty to conduct relations with other states in accordance with
International Law and with the principle that the sovereignty of each state is subject to the
supremacy of International Law. Thus, a state has absolute freedom of action except as it
has agreed to rules restricting to that freedom. There is a close link between state
sovereignty and International Law.
9. World Health Organisation.
Ans 9. World Health Organization (WHO), the United Nations’ specialized agency for
Health was founded in 1948.Its headquarters are situated in Geneva, Switzerland. There
are 194 Member States, 150 country offices, six regional offices. It is an inter-
governmental organization and works in collaboration with its member states usually
through the Ministries of Health. The WHO provides leadership on global health matters,
 shaping the health research agenda, setting norms and standards, articulating evidence-
based policy options, providing technical support to countries and monitoring and
assessing health trends. It began functioning on April 7, 1948, a date now being celebrated
every year as World Health Day.

Objectives of WHO are:

a) To act as the directing and coordinating authority on international health work.

b) To establish and maintain effective collaboration with the United Nations,
specialized agencies, governmental health administrations, professional groups and such
other organizations as may be deemed appropriate.
c) To provide assistance to the Governments, upon request, in strengthening health
services.
d) To promote cooperation among scientific and professional groups which contribute
to the advancement of health.

10. " Custom and treaties are the two principal sources of international law."
Ans 10. International Custom
Custom was considered to be almost the sole source of International law for quite a long
time.
The large part of international law consists of customary rules. Customary rules are the
rules which are practiced by most of the nations, since the ancient time. The customary
rules are obligatory due to the consent which has been obtained due to the following over a
sufficient period of time. Though the terms custom and usage are often used to mean the
same thing, there is a fine distinction between them. Usage is a prior state in the
development of custom. When a usage crystallizes inter itself, it becomes a custom.
Custom begins where usage ends. Usages may be conflicting. These usages become
custom when they become unified and self- consistent. Thus, custom is an important
source of law.

The following are illustrations of customary rules crystallizing from usages or practices:
(a) Diplomatic Relations between States State practices, declarations by statesmen,
bilateral treaties have crystallized usages into custom in this branch of international
(b) Practices of International Organs etc. law
There are two kinds of treaties:
a) The law-making treaties - which lay down general rules binding on the majority of
States;
Although custom was originally the main source of international law, recently, treaties
have also become a very important source of international law. As the rules of customary
international law were inadequate to meet the needs of the dynamic world, the law-making
treaties have come into existence increasingly from the middle of the 19th century. This is
considered to be a form of international legislation.
(b) Treaty-contracts-which deal with special agreements between parties to the treaty. The
law-making treaties are a direct source of international law whereas treaty-contracts are
not generally sources of international law, as they are intended to create special rights and
duties only between the parties to the treaty. A series of treaty-contracts or repetition of the
same rule in several treaty-contracts might produce a principle of custom, and thus become
a source of law. For example, a series of bilateral extradition treaties entered into during
the 19th century became a pattern of general rules of international law regarding
extradition. Originally, treaty-contracts may be entered into between a limited number of
States, but subsequently if several States accept or imitate them, then such treaty-contracts
may develop into customary rules of international law.