Answer the following questions in about 150 words each : 10×5=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 int

Question

Answer the following questions in about 150 words each : 10×5=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

(b) What do you mean by 'Contiguous Zone' ? Explain with reference to Indian practices on the subject. 10

(c) Explain the impact of recognition on the powers and privileges of the States. 10

(d) Explain the principle of 'Jus cogens' with reference to 'Vienna Convention on Law of Treaties, 1969'. 10

(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. 10

UPSC Answer Check · Accepted Answer

Part (a) 
The statement is partly correct but now overstated. Classical positivism, associated with Austin and Kelsen, treated international law as law between states; the individual was an object, not a subject, because rights and duties flowed from state consent. Natural law and later human-rights thought challenged this by locating dignity and fundamental rights in the individual. Modern international law has given the individual limited subjectivity: human-rights treaties create direct obligations owed to persons, international criminal law imposes individual responsibility for genocide, crimes against humanity and war crimes, and the ICJ’s Barcelona Traction dictum recognised obligations owed to the international community as a whole. Yet the individual remains not a full subject: most rights are enforced through states, and international criminal jurisdiction is complementary. This limited subjectivity is procedural and institutional, not full state-like personality. Thus positivism’s triumph has been qualified, not reversed; the individual is now a partial subject, not merely an object.

Part (b) 
The contiguous zone is a maritime belt beyond the territorial sea, extending up to 24 nautical miles from the baselines under UNCLOS Article 33. The zone does not extend the territorial sea. It is not a zone of plenary regulatory power. Coastal-state jurisdiction is limited to preventing and punishing infringements of customs, fiscal, immigration or sanitary laws and regulations committed in its territory or territorial sea. India gives effect to this regime through the Maritime Zones Act, 1976, as amended in 2002, which defines the contiguous zone and authorises enforcement of CFIS laws. In practice, the Indian Coast Guard, Navy and Customs authorities patrol the zone and may board, inspect or detain vessels where there are reasonable grounds to suspect smuggling, fiscal evasion, illegal immigration or sanitary violations connected with India’s territory or territorial sea. The power is therefore preventive and punitive, not a general right to regulate all maritime activity.

Part (c) 
Recognition affects a state’s powers and privileges by determining whether other states treat it as a legal person in international law. Under the constitutive theory, recognition creates or confirms statehood; a newly recognised state gains practical capacity to conclude treaties, receive and send diplomatic missions, claim diplomatic immunity, seek UN membership and appear before the ICJ. Under the declaratory theory, statehood exists independently of recognition; recognition merely acknowledges facts, so legal capacity is not created by it. In practice, recognition is still important: it shapes treaty-making relations, diplomatic protection, immunity from foreign jurisdiction, Security Council recommendation for UN admission, and standing as a state party to the ICJ Statute. The Mexican Estrada doctrine contrasts with constitutive recognition by refusing explicit recognition and treating diplomatic relations as continuing, thereby avoiding the legal consequences of non-recognition while preserving state-to-state dealings. Thus recognition is both a legal and political instrument.

Part (d) 
Jus cogens, or peremptory norms, are norms accepted and recognised by the international community of states as a whole as norms from which no derogation is permitted. Article 53 of the Vienna Convention on the Law of Treaties, 1969, provides that a treaty is void if, at the time of its conclusion, it is incompatible with such a norm. The consequence is void ab initio: the treaty has no legal effect because it offends a higher norm. Article 64 adds that if a new peremptory norm emerges, any existing treaty incompatible with it becomes void and terminates. Peremptory norms are hierarchical, non-derogable and binding on all states. Accepted examples include prohibitions of genocide, slavery, torture and aggression. The doctrine thus limits treaty freedom, ensuring that state consent cannot validate conduct that the international community regards as fundamentally unlawful.

Part (e) 
The ICC’s jurisdiction is treaty-based and limited. Under Articles 5 to 12 of the Rome Statute, it is confined to genocide, crimes against humanity, war crimes and aggression, and generally requires a territorial or personal link to a state party; a non-party may accept jurisdiction ad hoc under Article 12(3). Jurisdiction is triggered in three ways: a state party may refer a situation under Article 13(a); the UN Security Council may refer a situation under Article 13(b); and the Prosecutor may initiate an investigation proprio motu under Article 13(c), subject to Pre-Trial Chamber authorisation. The complementarity principle, reflected in Article 17, means the ICC acts only when states are unable or unwilling to prosecute genuinely. The Eurocentric critique arises because early cases were concentrated in Africa, while the US, China, Russia and India are not parties, and because ASP composition and prosecutorial discretion can reflect political influence. The Court is not inherently Eurocentric, but its practice has reinforced that perception.

Answer the following questions in about 150 words each : 10×5=50 (a) "Triumph of Positivism has reduced an individual to be an…

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