10 Solved Problems (IRAC Method) — Public International Law

These ten problems are worked in the IRAC method — Issue, Rule, Analysis, Conclusion — the way a KSLU answer sheet expects; the full Question Bank has 40+ more.

Problem 1 — India is party to the Gleneagles Accord (a Commonwealth… (Unit 1)

Problem: India is party to the Gleneagles Accord (a Commonwealth commitment against sporting links with apartheid). The Government lets two cricketers who played in apartheid “Bantuland” tour India. An NGO sues to stop them, relying directly on the Accord. Advise. (Decoy: the Accord is an international commitment, so it feels directly enforceable at home.)

I — Issue. Can a private body enforce, as a domestic right in an Indian court, an international accord that binds India internationally but has not been enacted into Indian law by Parliament?

R — Rule. 1. India follows the dualist approach for treaties: an international agreement creates no enforceable domestic right until it is transformed into law by legislation. Article 253 confirms that Parliament must legislate to implement a treaty, agreement or international decision. 2. Article 51(c) is only a Directive Principle — the State shall “endeavour to foster respect for international law and treaty obligations”. It is directory, not enforceable, and at most lets a court read existing statutes in harmony with international law (Gramophone Co. of India v B.B. Pandey, 1984, for custom).

A — Analysis. 1. The decoy is that, because the Gleneagles Accord is an international commitment, it must be directly enforceable at home. That is the monist assumption, which is wrong for India’s dualist treaty practice. 2. The Accord binds India internationally but has not been enacted into Indian law. So the NGO cannot rely on it as a right in an Indian court. The most a court can do is use Art. 51 to interpret existing legislation; it cannot create a new enforceable obligation out of an un-transformed accord (Gramophone Co. of India v B.B. Pandey, 1984, allows custom, not an unincorporated treaty, to be read in).

C — Conclusion. Absent enabling legislation under Art. 253, the Gleneagles Accord is not directly enforceable in Indian courts. The NGO’s challenge, resting solely on the Accord, fails on that ground; its only avenue is political or through legislation, not a domestic suit on the treaty itself. — ## UNIT 2 — States as Subjects: States in General, Recognition & Territorial Sovereignty

Problem 2 — State A is a new State that satisfies every Montevideo… (Unit 2)

Problem: State A is a new State that satisfies every Montevideo element but is not yet recognised by State B. A wants to sue a company in B’s courts. Can it? Advise. (Decoy: A is undeniably a State in fact.)

I — Issue. Can State A, though it satisfies every factual element of statehood, maintain a suit in the courts of State B, which has not recognised it?

R — Rule. 1. Locus standi to sue in the recognising State’s courts is a legal effect of recognition, not of statehood in the abstract. An unrecognised State or government generally cannot sue there — City of Berne v Bank of England (1804). 2. Recognition, when granted, relates back to the entity’s inception (Luther v Sagor, 1921), curing the earlier disability.

A — Analysis. 1. The decoy is that A plainly meets every Montevideo element and so, on the declaratory theory, is already a State. That is true for A’s existence, but the right to sue in B’s courts is one of the constitutive-like effects that depend on B’s recognition. 2. Because B has not recognised A, B’s courts will not entertain A’s suit. If, however, B recognises A while the proceedings are pending, recognition relates back and A may proceed (Luther v Sagor, 1921).

C — Conclusion. A cannot sue in B’s courts until B recognises it. The moment B grants recognition, the disability disappears retroactively and the suit may go forward.

Problem 3 — State A is recognised on the express condition that it will… (Unit 2)

Problem: State A is recognised on the express condition that it will impose no religious disabilities on its subjects. A breaches the condition. Can the recognition be withdrawn? (Decoy: breach of an express condition looks as if it must void the recognition.)

I — Issue. Where recognition of State A was granted on an express condition, does A’s breach of that condition entitle the recognising State to withdraw the recognition?

R — Rule. 1. Conditional recognition is recognition granted subject to a condition (here, no religious disabilities). The dominant view is that breach of the condition does not make the recognition void. 2. Recognition, once given, is treated as final; Article 6 of the Montevideo Convention (1933) calls recognition “unconditional and irrevocable”. The condition operates as a separate international obligation, not as a term whose breach annuls the status.

A — Analysis. 1. The decoy is that, because the condition was express, its breach must automatically void the recognition. That confuses a condition of recognition with a separate promise. 2. A’s breach of the religious-freedom condition is an international wrong for which A may answer (protest, countermeasures, the ordinary consequences of breach), but it does not retrospectively unmake A’s recognised status. De jure recognition, once granted, lapses only when the government is displaced — not on breach of a collateral condition.

C — Conclusion. The recognition cannot be withdrawn merely because A breached the condition. The recognition stands; A’s breach is a distinct international wrong to be pursued on its own footing, not by annulling the recognition.

Problem 4 — State MR grants de facto recognition to State AB, then seeks… (Unit 2)

Problem: State MR grants de facto recognition to State AB, then seeks to revoke it because AB is violating international law. Is the revocation valid? (Decoy: “de facto” sounds provisional, so revocation looks automatic.)

I — Issue. May State MR withdraw the de facto recognition it granted to State AB, and if so, on what ground?

R — Rule. 1. De facto recognition is provisional: it accepts that the new authority actually controls the territory but reserves judgment on permanence. It can be withdrawn — unlike de jure recognition, which is final. 2. The proper ground for withdrawal is that the authority has failed to consolidate its control (its hold on power has not become settled). Withdrawal is not a free-floating power exercisable for any reason.

A — Analysis. 1. The decoy is that “de facto” sounds temporary, so revocation appears automatic and available for any complaint. But de facto recognition, while it lasts, produces most of the same legal effects as de jure; it is not “no recognition”. 2. MR’s stated reason is that AB is violating international law. That is a ground for protest, countermeasures or non-de-jure escalation, but the recognised legal basis for withdrawing de facto recognition is AB’s failure to establish settled, permanent control. If AB has in fact consolidated, MR’s withdrawal is not well founded on that basis.

C — Conclusion. MR may withdraw de facto recognition only if AB has failed to consolidate its control. AB’s breaches of international law are wrongs to be addressed separately; they do not, by themselves, justify revoking a de facto recognition that is otherwise supported by AB’s effective and settled control.

Problem 5 — State A claims an island because it discovered it, but has… (Unit 2)

Problem: State A claims an island because it discovered it, but has never exercised effective control; State B claims the same island on the strength of effective, continuous control for about 300 years. Who has the better title? (Decoy: “discovery” sounds like a complete root of title.)

I — Issue. As between a State claiming by discovery alone and a State in long, effective, continuous control, which holds sovereignty over the island?

R — Rule. 1. Title by occupation requires animus occupandi plus the effective, continuous and peaceful display of State authority; a bare discovery confers only an inchoate title, which must be perfected within a reasonable time. 2. Island of Palmas (1928) — “the continuous and peaceful display of territorial sovereignty is as good as a title… Discovery alone, without any subsequent act, cannot suffice.”

A — Analysis. 1. The decoy is that discovery is a complete root of title. It is not: A’s discovery, never followed by administration, remained inchoate and lapsed for want of effective occupation. 2. B has openly and peacefully administered the island for about 300 years — the very “continuous and peaceful display” that perfects title. On the Island of Palmas principle, B’s effective control decisively outweighs A’s paper claim.

C — Conclusion. The island belongs to State B. Effective, continuous, peaceful administration prevails over a bare discovery that was never perfected by occupation.

Problem 6 — State A claims island C on the ground that State X discovered… (Unit 2)

Problem: State A claims island C on the ground that State X discovered it first and then sold it to A; State B relies on 70 years of continuous peaceful possession. Decide. (Decoy: the sale (cession) looks like a clean transfer of title.)

I — Issue. Can a discoverer holding only an inchoate title pass a good title by cession (sale) to State A, against State B’s prescriptive possession?

R — Rule. 1. Cession transfers only the title the transferor actually had — nemo dat quod non habet (no one can give what he does not have). 2. A discovery confers only an inchoate title; unperfected, it is not full sovereignty capable of being sold. Prescription — long, continuous, peaceful, undisturbed possession with the former sovereign’s acquiescence — confers title (Island of Palmas, 1928).

A — Analysis. 1. The decoy is that a sale looks like a clean transfer of ownership. But X could sell only what X had, and X had merely an inchoate discovery title — never perfected by effective occupation. By nemo dat, A received no more than that. 2. Meanwhile B has held the island for 70 years of continuous, peaceful possession — a prescriptive title that has matured through B’s occupation and X’s/A’s acquiescence. B’s real, sustained control outranks A’s derivative paper title.

C — Conclusion. Island C belongs to State B. The sale gave A only X’s worthless inchoate title (nemo dat), whereas B’s long, peaceful, effective possession founds a good prescriptive title.

Problem 7 — The head of State of country A, while staying privately in… (Unit 3)

Problem: The head of State of country A, while staying privately in country B, promises to marry Ms X and then refuses. X sues him in B’s courts for breach of promise. Can she succeed? (Decoy: the promise is a private, personal act, tempting the use of contract law.)

I — Issue. Do B’s courts have jurisdiction over the head of State of A for a private promise to marry, or is he immune from the local courts?

R — Rule. 1. A foreign sovereign or head of State is immune from the territorial jurisdiction of the local courts — par in parem non habet imperium (an equal has no authority over an equal). 2. On the classic absolute rule this covers even private acts (The Parlement Belge, 1880); immunity is lost only if the sovereign’s State waives it. The restrictive doctrine (Trendtex, 1977) removes immunity only for commercial acts.

A — Analysis. 1. The decoy is that a promise to marry is a private, personal act, inviting ordinary contract law. But the defendant’s identity controls: he is a foreign sovereign, so B’s courts have no jurisdiction over him whatever the nature of the act. 2. A marriage promise is not a commercial act, so even under the restrictive doctrine no exception applies. Absent a waiver by State A, the suit cannot proceed.

C — Conclusion. X’s suit fails for want of jurisdiction. B’s courts cannot entertain a claim against a foreign sovereign for such an act; X’s only recourse is diplomatic, or a suit if the sovereign submits or A waives immunity.

Problem 8 — A, a national of State X, publishes in X an article… (Unit 3)

Problem: A, a national of State X, publishes in X an article defamatory of a citizen of State Y. A later enters Y and is arrested and prosecuted there. Is Y’s exercise of jurisdiction sustainable? (Decoy: every element of the act happened inside X’s territory.)

I — Issue. May State Y prosecute A, a foreigner, for a libel composed and published wholly within State X, where its effect was felt on Y’s citizen?

R — Rule. 1. Under the objective-territorial principle a State may claim jurisdiction over an act abroad whose effects occur on its territory; under the passive-personality principle it may claim jurisdiction because the victim was its national — but passive personality is contested. 2. The parallel is the Cutting Case (1886), where Mexico prosecuted a US national for a libel published in Texas; the US strongly objected.

A — Analysis. 1. The decoy is that every element of the act happened inside X, so only X can prosecute. But Y argues the harm to its citizen’s reputation was felt in Y (objective-territorial) and that the victim was its national (passive personality). 2. Because passive personality is contested, Y’s claim is weak unless it can show a real effect in Y. X, for its part, has territorial and active-nationality jurisdiction over its own national. This yields concurrent claims rather than a clean win for either.

C — Conclusion. Y’s prosecution is arguable but not secure: it stands only if Y can rest it on an effect felt in Y (objective-territorial), the passive-personality basis alone being contested, as Cutting shows. The correct answer flags the controversy rather than asserting Y wins outright.

Problem 9 — State T obtains S’s extradition from State R for the murder… (Unit 4)

Problem: State T obtains S’s extradition from State R for the murder of a fellow servant; once surrendered, T tries S not for murder but for causing grievous hurt. Is this lawful? (Decoy: the substituted charge is lesser, so it feels harmless.)

I — Issue. May the requesting State T try the surrendered person S for an offence (grievous hurt) different from the one (murder) for which he was extradited?

R — Rule. 1. The rule of speciality provides that the requesting State may try the surrendered person only for the offence for which he was extradited, not for any other offence committed before surrender. 2. The rule protects both the fugitive and the conditions on which the requested State agreed to surrender him.

A — Analysis. 1. The decoy is that grievous hurt is a lesser charge than murder, so trying S for it “feels harmless”. That is irrelevant — speciality is breached by trying S for any offence other than the one surrendered for, whether greater or lesser. 2. S was surrendered for murder but is now being tried for grievous hurt — an offence outside the terms of extradition. T is therefore in breach of the rule of speciality. 3. The rule protects the requested State’s conditions of surrender as much as the fugitive: R agreed to give up S for murder alone, and T cannot unilaterally widen that bargain. If T genuinely wishes to pursue the fresh charge, the proper course is to seek R’s consent to it, not to substitute the charge on its own authority.

C — Conclusion. T cannot try S for grievous hurt. It must either try him for the murder for which he was extradited, or obtain State R’s consent to the new charge; otherwise the trial breaches the rule of speciality.

Problem 10 — Spies of State E abduct Y from the territory of State P… (Unit 4)

Problem: Spies of State E abduct Y from the territory of State P without P’s knowledge or consent and bring him to E, which wants to try him for war crimes committed before E even existed. Advise. (Decoys: the irregular abduction, and that E was created only after the crimes.)

I — Issue. Does E’s illegal abduction of Y, and the fact that E did not exist when the crimes were committed, prevent E from trying him?

R — Rule. 1. Male captus bene detentus — an unlawful seizure of the accused does not oust the trial court’s jurisdiction (Eichmann, 1961–62; Savarkar, 1911), though the abduction violates P’s sovereignty and may found a separate claim by P. 2. Universal jurisdiction over war crimes and crimes against humanity allows any State to try the offender, and such grave crimes were unlawful under general international law regardless of the forum State’s later creation.

A — Analysis. 1. The first decoy is that the abduction defeats the trial. It does not: under Eichmann, E may still try Y; the illegality goes to E’s responsibility toward P, not to E’s power over Y. 2. The second decoy is that E did not exist when the crimes occurred. But war crimes were already prohibited by international law, and any State may exercise universal jurisdiction over them; E’s later creation is no bar to trying an offender for crimes that were unlawful when committed.

C — Conclusion. E may try Y for the war crimes: the abduction does not defeat jurisdiction (male captus bene detentus), and universal jurisdiction over war crimes is unaffected by E’s later creation. However, E’s violation of P’s territorial sovereignty is a separate international wrong for which P may claim.

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