INTRODUCTION TO INTERNATIONAL LAW BY PROF. MUHAMMED TAWFIQ LADAN (PhD) DEPARTMENT OF PUBLIC LAW, FACULTY OF LAW AHMADU BELLO UNIVERSITY, ZARIA, KADUNA STATE, NIGERIA. BEING A PAPER PRESENTED: TO THE PARTICIPANTS OF THE NATIONAL DEFENCE COLLEGE, COURSE

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INTRODUCTION TO INTERNATIONAL LAWBYPROF.
MUHAMMED TAWFIQ LADAN (PhD)DEPARTMENT OF PUBLIC
LAW, FACULTY OF LAWAHMADU BELLO UNIVERSITY,
ZARIA, KADUNA STATE, NIGERIA.BEING A PAPER
PRESENTEDTO THE PARTICIPANTS OF THE NATIONAL
DEFENCE COLLEGE, COURSE 18ORGANIZED
BYNATIONAL DEFENCE COLLEGE, ABUJA -
NIGERIAVENUE - NATIONAL DEFENCE COLLEGE
AUDITORIUM, ABUJADATE - 16th FEBRUARY, 2011
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INTRODUCTION

• International law is divided into two broad
  types - Public and Private International Law.
• For the purpose of todays lecture gathered
  from the areas of focus assigned to me by the
  college, our emphasis is going to be on public
  international law. Except for the discussion on
  the meaning, subjects, development, and sources
  of international law the relationship between
  international law and municipal law.

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1. MEANING, SUBJECTS AND DEVELOPMENT OF
INTERNATIONAL LAW

• Traditional definition of International Law - as
  a body of rules and principles governing the
  relations between states.
• Criticisms levelled against this definition -
  denied the quality of law proper for lacking the
  following characteristics of municipal law -
  punitive sanctions, enforcement machinery, and
  functional legislative body.

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MEANING, SUBJECTS AND DEVELOPMENT OF
INTERNATIONAL LAW (Contd)

• How valid is the criticism today?
• From the mid-20th Century to date, International
  law never lacked sanctioning strategies/methods
  - the UN Charter of 1945 mandated the UN Security
  Council through a resolution and for the
  maintenance of international peace and security,
  to impose various forms of sanctions that are
  necessary and expedient in each and every
  circumstance - blockades, diplomatic sanctions,
  indictments, condemnation/shame etc
• The 1945 UN Charter also mandated the Security
  Council to authorise the use of force in order to
  maintain peace and security and compliance with
  rules of international law
• Various UN Charter and Treaty based bodies are
  equally empowered to ensure compliance with
  various rules and principles of international
  law.

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MEANING, SUBJECTS AND DEVELOPMENT OF
INTERNATIONAL LAW (Contd)

• Beyond the traditional definition and todays
  practical reality - Due to the following reasons
  largely based on the development of international
  law post 1945, the traditional definition of
  international law cannot hold water -
• International law today is also about a body of
  rules of international human rights and
  humanitarian laws that aim at protecting the
  rights of individuals and groups in both peace
  and armed conflict situations against violations
  by states, non-state actors, and other legal
  entities. Thereby governing the relations between
  individuals and states.
• Further, international law today is about a body
  of rules governing the relations between states
  and public international organisations/institution
  s on the one h and, and with non-state actors
  (otherwise known as Transnational corporations)
  for all developmental and security purpose or in
  so far their rights and obligations/duties are
  matters of concern to international law.

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MEANING, SUBJECTS AND DEVELOPMENT OF
INTERNATIONAL LAW (Contd)

• Furthermore, international law today is about a
  body of rules concerning the land, sea and space
  territorial rights and obligations of states in
  their relationship with other states and in the
  course of exploitation, exploration and
  utilization of natural resources, trade or
  business relations as well as the protection and
  management of the environment.
• Finally, it is a body of rules, principles,
  concepts and doctrines that regulate the conduct
  of warfare and the use of force in the internal
  affairs of sovereign states for collective
  security, peace and stability.

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MEANING, SUBJECTS AND DEVELOPMENT OF
INTERNATIONAL LAW (Contd)

• Hence today there are 5 subjects of international
  law conferred with legal personality as opposed
  to the traditional one being the state only.
  These are states, individuals, public
  international organizations/institutions,
  Transnational/Multinational Corporations and
  special entities like Palestine and Vatican City.
• 4 reasons why the character of legal personality
  is needed for an entity in international law -
• for legal competence to act in international law
  and assert itself in international life
• for enjoyment of rights, privileges, benefits and
  immunities
• for discharge of corresponding duties/obligations
  
• for the purpose of determining liabilities both
  civil and criminal.

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MEANING, SUBJECTS AND DEVELOPMENT OF
INTERNATIONAL LAW (Contd)

• Development - Certain rules of different
  branches of international law have existed since
  time immemorial, especially with the Indian,
  Chinese, Roman, Greek and Arab/Islamic empires
  before western Europe. In terms of the
  development of international law, it is true that
  contemporary rules of international law were
  fashioned out by the European nations (or the
  so-called 1st World) in the 19th and early part
  of the 20th Centuries, especially the general
  principles and the old legal doctrines.
• In the course of its development especially in
  the mid-20th Century/post 2nd World War when the
  newly independent African, Asian and Latin
  American states started coming on board of
  international life, they have no option but to
  start challenging some of the principles and
  concepts or rules of international law which
  never took their political, economic, social and
  developmental interests into consideration. This
  was simply because they were then colonial
  territories of the 1st World.

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MEANING, SUBJECTS AND DEVELOPMENT OF
INTERNATIONAL LAW (Contd)

• Hence in their contributions, these newly
  independent states fought for the recognition of
  the concept of equality of states related to the
  doctrine of sovereignty reviewed the rules of 3
  and 12 nautical miles territorial limits of
  states and extended it to 200 nautical miles
  ensured the rapid development of the protection
  of the environment for sustainable development
  and for the rules of international law in the
  resolution of conflict between free trade and
  environmental protection.

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2. SOURCES OF INTERNATIONAL LAW

• Today, there are 8 sources of international law
  divided into traditional and non-traditional
  sources.

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SOURCES OF INTERNATIONAL LAW (Contd)

• According to Article 38(1) of the Statute of
  the ICJ the five traditional sources recognized
  under international law are as follows -
• Treaty - means an international agreement
  concluded between states or parties may be
  bilateral /multilateral and may be called any of
  the following names/types - charter, convention,
  covenant, Protocol.
• Effect of ratification of a treaty.
• Effect of domestication of a treaty into national
  law - See Agbakoba v. director of SSS (1994) 6
  NWLR (pt.351) 475 Abacha v. Fawehinmi (2000)6
  NWLR (pt. 660) 228.

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SOURCES OF INTERNATIONAL LAW (Contd)

• Custom - is evidence of a general practice
  accepted as law. This can be established by the
  existence of bilateral/multilateral relations
  between states based on the belief of the
  existence of a legal obligation (i.e. opinion
  juris-legal belief or state practice). E.g., the
  4 Geneva Conventions and the Hague Conventions
  (on conduct of war, treatment of prisoners of war
  etc) and the entire provisions of the Universal
  Declaration of Human Rights of 1948.
• General Principles of Law - Are principles of
  equity and rules emanating from justice and
  considerations of public policy.

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SOURCES OF INTERNATIONAL LAW (Contd)

• Examples of General Principles of Law
• The principle of good faith (Pacta Sunt
  Servanda). This is found expressed in Article 26
  of the 1969 Vienna Convention on the Law of
  Treaties (which came into force on 27 January
  1980) and is to the effect that every treaty in
  force is binding upon the parts to it and must
  be performed by them in good faith. As such a
  party may not unilaterally free itself from the
  engagements of a treaty, or modify the
  stipulations thereof, except by the consent of
  the contracting parties, through a friendly
  understanding.

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SOURCES OF INTERNATIONAL LAW (Contd)

• The principle of abuse of rights - is to the
  effect that states must exercise their rights in
  a manner compatible with their various
  obligations arising either from treaties or from
  the general law. This principle can be
  illustrated in the Corfu channel case (ICJ
  Report, 1949, p. 22) where the ICJ concluded
  that No state may utilize its territory
  contrary to the rights of other states. The
  principle has been further restated in principle
  21 of the UN Conference Declaration on the Human
  Environment, Stockholm, (Sweden) 1972, and in
  principle 2 of the Rio Declaration on Environment
  and Development, Rio de Janeiro, (Brazil) 1992.
  The latter states - states, have, in accordance
  with the UNC and the principles of international
  law, the sovereign right to exploit their own
  resources pursuant to their own environmental and
  developmental policies and the responsibilities
  to ensure that activities within their
  jurisdiction or control do not cause damage to
  the environment of other states or of areas
  beyond the limits of national jurisdiction.

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SOURCES OF INTERNATIONAL LAW (Contd)

• Judicial Decisions - of international courts and
  tribunals such as the ICJ, ICC, ICTY, ICTR, UN
  Special Court for Sierra-Leone, European Court of
  Justice, European Court of Human Rights, African
  Court of Human Rights, Inter-American Court of
  Human Rights.
• Examples of Judicial Decisions
• The Trial smelter case 11 March 1941 Arbitral
  judgement is considered as having laid the
  foundations for international environmental law,
  at least regarding trans-border pollution. In its
  conclusion, the Arbitral Tribunal stated that -
  No state has the right to use or permit the use
  of its territory in such manner as to cause
  injury by fumes in or to the territory of
  another

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SOURCES OF INTERNATIONAL LAW (Contd)

• Writings of Scholars/Jurists/Commentators - of
  long standing research and experience rooted in
  their fields of specialization are relied upon
  for trustworthy evidence of what the law really
  is and not what it ought to be.

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SOURCES OF INTERNATIONAL LAW (Contd)

• The three non-traditional sources of
  international law are -
• Pre-emptory Norms - are final/absolute/mandatory
  norms recognized and accepted by the
  international community as a whole from which no
  derogation is allowed by any treaty or municipal
  law, else void.
• Also known as Rules of Jus Cogens.
• E.g., the absolute prohibition of torture and
  slavery or the general norm prohibiting the use
  of force in the internal affairs of a sovereign
  state or the promotion and protection of the
  right to life.
• Resolutions of public international
  Organisations/ Institutions - UN, AU, EU, ECOWAS
  etc resolutions on given subject matters
  constitute a source of international law with
  respect to the matters in question.

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SOURCES OF INTERNATIONAL LAW (Contd)

• Non-binding standards (Soft law) - Are those
  rules of conduct, statements, principles,
  policies not intended to be legally binding but
  are expressions of intent by the international or
  regional community in a given topical/critical
  issue of interest to all.
• Examples of Non-Binding Standards
• The 1972 Stockholm Declaration on the Human
  Environment resulted from the UN Conference on
  the Environment designed to deal with questions
  surrounding the management and protection of the
  environment and its relationship with humans. 130
  states participated at the conference where the
  recommendation for institutional arrangement
  resulted in the UN General Assemblys
  establishment of UNEP.

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SOURCES OF INTERNATIONAL LAW (Contd)

• The Rio Declaration on Environment and
  Development was adopted in 1992 by the UN
  Conference on Environment and Development
  (UNCED). It contains 27 principles to guide
  activities in relation to the environment of
  nations and individuals. It builds on the
  Stockholm Declaration of 1972, and it introduces
  the mandate of sustainable development as the
  basis for global, national and local action.

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3. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW

• This relationship is of practical and
  theoretical significance in international law and
  can be appreciated from 3 perspectives -
  Dualism, Monism and Nihilism.
• Dualist doctrine States belonging to the dualist
  school of thought hold the view that
  international and municipal laws are 2 different
  laws in character and scope. Hence international
  law rules and principles cannot apply directly in
  the municipal courts of a dualist state without
  first undergoing the process of specific adoption
  by or incorporation into national law.
• All common law countries are dualist states.
• Section 12 of the Nigerian Constitution requires
  some kind of domestication/transformation process
  of a treaty before it can be enforced in Nigeria.

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RELATIONSHIP BETWEEN INTERNATIONAL LAW AND
MUNICIPAL LAW (Contd)

• Monism - Protagonists of this doctrine assert
  the superiority of international law over
  municipal law even within the sphere of national
  law itself. Hence upon ratification of a treaty,
  it becomes operative and enforceable nationally.
• Largely embraced by civil law jurisdictions
• E.g., all French-speaking States.
• Nihilism - Protagonists of this doctrine assert
  the absolute supremacy of municipal law over
  international law in the event of any conflict on
  a given subject matter.
• The USA is a typical example.

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4. CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW

• Sovereignty as a concept in international law is
  constitutive of the following -
• an expression of statehood - having possessed
  all the characteristics and being so recognized
  as an independent state by others
• an indication of preservation of national
  identity and hard won independence
• an expression of self-determination covering 2
  aspects - internal and external
• internal self-determination is about the right of
  people to choose their socio-political and
  economic systems and the extent of their
  political participation in government
• it is largely against colonialism,
  neo-colonialism, apartheid and for sovereignty
  over their territory, linguistic, socio-cultural,
  ethnic and religious interests

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CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW
(Contd)

• External self-determination is about a right
  against foreign economic exploitation of natural
  resources - it is a right to exploit, dispose
  of, utilize or deal with natural resources in any
  way the state feels necessary for the common good
  of all.
• The above are expressly covered by the 1960 UN
  Declaration on the granting of independence to
  colonized countries Article 55 UN Charter, 1945
  emphasises the importance of economic
  self-determination to remove oppression,
  injustice, inequity and to promote peace,
  stability and development Article 1 of the same
  charter seeks to promote friendly relations and
  socio-economic and cultural development of
  nations Article 1 of both the ICCPR and ICESCR
  of 1966 re-echoed the right to self-determination
  as a fundamental right of a people Articles 2,
  21-24 of the African Charter on Human and
  Peoples Rights provide for norms to eradicate
  all forms of colonialism and the promotion of
  internal and external self-determination as a
  developmental right of African peoples.
• About assumption of state responsibility in
  international life because liability exists for
  failure to observe/discharge obligations imposed
  by rules of international law (especially treaty
  obligations).
• Is about non-intervention in the internal affairs
  of sovereign states as generally prohibited by
  international law except in self-defence and on
  the authorization of the UN Security council for
  the maintenance of international peace and
  security.

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CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW
(Contd)

• However, in international law and practice today,
  the claim of sovereignty is not absolute due to
  the following acknowledged exceptions to the
  general rule prohibiting non-intervention in
  internal affairs of sovereign states
• For collective security - doctrine that emerged
  in the late 1980s after the end of the cold war
  and when the perception of security changed from
  military and political issues to socio-economic,
  developmental, environmental, human rights and
  humanitarian issues as well as gender
• Hence intervention by the use of force is allowed
  for collective security in a sovereign state on
  the following grounds -
• Where a regional or ethnic or political conflict
  or conflict over scarce resources are deemed
  potentially destabilizing on a sub-regional,
  regional or global scale

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CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW
(Contd)

• Where the conflict is capable of endangering the
  lives of civilians and non-combatant population
• Where the conflict results in massive
  displacement of civilian population either as
  IDPs or refugees
• Where the conflict results in gross or massive
  human rights violations constituting genocide or
  crimes against humanity or in order to protect
  human rights
• Where a countrys government is universally
  recognized to have collapsed leading to
  lawlessness and possible loss or injury to human
  lives and property
• Intervention is also allowed on humanitarian
  grounds in order to assist the victims of
  humanitarian crises
• In order to enforce a treaty/ in defence of
  democracy/ in the fight against terrorism
• The Liberian, Sierra-Leonean, Rwandan, Bosnian,
  Kosovan conflicts and those of the Sudan-Darfur,
  Somalia, and Congo etc are typical examples of
  the above justification.

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5. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)

• The scope of this lecture is restricted to the
  following branches of public International Law.
• 1. International Human Rights Law (IHRL)
• Meaning and Scope - IHRL is that branch of
  public international law that aims at protecting
  the internationally guaranteed rights of
  individuals and groups against violations by
  state etc.

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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)
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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)

• Development and Impact - The post 1945
  phenomenon led to the emergence of this branch of
  international law resulting into the coming into
  force of the UN Charter of 1945, the Universal
  Declaration of Human Rights of December 10, 1948,
  the 1966 International Covenants on Civil and
  Political Rights and on Economic, Social and
  Cultural Rights among others, the regional human
  rights instruments in Africa, Europe and America
  - i.e. the African Charter on Human and Peoples
  Rights, the European Convention of Human Rights,
  the Inter-American Convention on Human Rights
  etc.
• IHRL is said to have impacted on the concept of
  legal personality in international law which
  pre-2nd World War excluded individual human
  beings. This was done by explicitly recognizing
  individual human beings as legal persons
  deserving protection of their human rights
  against the state. Also IHRL rejected the claim
  of states under the concept of sovereignty of
  exclusive domestic jurisdiction in human rights
  violations

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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)

• Enforcement and Monitoring Mechanisms - There
  are 3 perspectives to this effect.

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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)
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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)

• 2. International Humanitarian Law (IHL)/ Law of
  Armed Conflict
• IHL is a branch of public international law
  that aims at regulating the conduct of warfare
  by -
• Providing a code of conduct and behaviour for
  armed forces of a state or party to a conflict
• Prohibiting certain means of warfare -
• Means of combat must be chosen to avoid civilian
  casualties and damage by distinguishing between
  combatants and civilian objects
• Use of weapons to cause widespread, long term and
  severe damage to the natural environment etc
• Use of specific weapons that are poisonous, of
  mass destruction (WMD), land mines etc.

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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)

• Prohibiting certain methods of warfare -
• Starvation of civilian population by
  attacking/destroying any object that is
  indispensable for their survival
• Rape of women and girls of the enemy state
• Threats of violence to civilian population
• To order that there will be no survivors.
• Improper user of signs, and emblems of the Red
  Cross/crescent
• Prohibiting 2 things in the organisation of
  armed forces -
• Recruitment of under 15 years
• Compelling enemy nationals to fight against their
  own state.

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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)

• Providing for the protection of human rights of
  individuals and groups that are civil in nature
  and relevant to human life and dignity in armed
  conflict situation -
• By the 4 Geneva Conventions, the 1977 Additional
  Protocols and the Hague Convention prohibiting
  the killing or violence to the life of all
  protected persons such as prisoners of war, the
  wounded, sick, shipwrecked, civilian persons,
  surrendered or disarmed or defenceless enemy
  soldier
• By prohibiting indiscriminate attacks, torture,
  inhuman and degrading treatment or punishment of
  all protected persons in their lawful custody
  etc.
• Providing measures for the prevention and control
  of armed conflict as well as post-conflict
  measures (such as search for the wounded, sick,
  dead repatriation of prisoners of war to
  neutralized zones disciplinary measures/penal
  sanctions for breaches of IHL).

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BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)

• Hence IHL is of 3 types and purposes -
• The Geneva type law ( the 4 Geneva Conventions)
  is purely humanitarian in nature and protective
  of war victims in purpose
• The Hague type law (Hague Conventions) is
  basically about legal regulation of conduct of
  hostilities
• The mixed type law (Additional Protocols to the
  G.C., 1977) deals with both the protection of
  victims of war and operational code of conduct.
• Finally, the message of IHL is very clear that
  even in armed conflict situations there must be
  respect for legal restraints and the need to
  balance the military necessity to attack with the
  protection of non-combatants/victims of war.

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3. INTERNATIONAL CRIMINAL LAW (ICL)

• ICL is that branch of Public International Law
  that deals with the administration of
  international criminal justice by providing for
  penal consequences for committing international
  crimes and guaranteeing procedural safeguards to
  all accused persons.
• In addition to a body of existing treaties and
  case law developed by the Nuremberg and Tokyo
  Tribunals, the International Criminal Tribunals
  for the former Yugoslavia and Rwanda, and the UN
  special Court for Sierra-Leone, the international
  community reached an historic milestone on 17
  July 1998, when 120 states adopted the Rome
  Statute as the legal basis for establishing the
  permanent International Criminal Court. The Rome
  Statute entered into force on 1st July 2002.
  ICCs seat is at The Hague in the Netherlands.
• Why the International Criminal Court (ICC)?
• The international community has long needed a
  treaty-based, representative, permanent, and
  independent court, not part of the UN system

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INTERNATIONAL CRIMINAL LAW (ICL) (Contd)

• In order to achieve the following -
• To administer international criminal law and
  justice
• To end the culture of impunity by perpetrators of
  serious international crimes
• To effectively protect human rights and
  efficiently uphold the rule of law.
• ICCs Jurisdiction under Rome Statute -
• Over serious international crimes clearly defined
  in the Rome Statute and other relevant
  instruments namely, genocide, crimes against
  humanity and war crimes.
• Over persons (not states or governments) where
  such crimes were committed on a State Partys
  territory or by one of its nationals
• The 2 conditions under item ii above do not apply
  if a situation is referred to the prosecutor by
  the UN Security Council, whose resolutions are
  binding on all UN Member States, and if a state
  makes a declaration accepting the jurisdiction of
  the ICC.
• ICC will also have jurisdiction over the crime of
  aggression once a consensus definition is arrived
  at by the Assembly of States Parties.

38
INTERNATIONAL CRIMINAL LAW (ICL) (Contd)

• Fundamental Principles of the Rome Statute -
• Complementarity principle - The Court is
  intended to complement, not to replace, national
  criminal justice system. It can prosecute cases
  only if national criminal justice systems do not
  carry out proceedings or when they claim to do so
  but in reality are unwilling or unable to carry
  out such proceedings genuinely.
• Cooperation Principle - States Parties (now 105)
  are obliged to cooperate with the ICC in the
  investigation and prosecution of crimes,
  including the arrest and surrender of suspects.
• No immunity from arrest, investigation,
  prosecution, criminal responsibility to any Head
  of State, or government official or any public
  officer acting in an official capacity.
• NB - Cases of Pinochet and Charles Taylor,
  Ethiopian Court convicted ex-dictator Mengistu
  H.M of genocide and faces death sentence while in
  exile in Zimbabwe Senegalese Court charged
  ex-dictator/warlord, Hisne Habre of Chad in exile
  of war crimes ex-Rwandan Prime Minister found
  guilty of genocide and crimes against humanity
  etc More recently, President Paul Kagame of
  Rwanda being investigated for war crimes.

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INTERNATIONAL CRIMINAL LAW (ICL) (Contd)

• Similarly, Superiors or military commanders may
  be held responsible for criminal offences
  committed by persons under their effective
  command and control or effective
  authority/control. However, under 18 cannot be
  prosecuted by the ICCV at the time a crime was
  allegedly committed.
• States Parties are obligated to promote these
  fundamental principles by providing for
  implementing national legislations/domesticating
  the Rome Statute/reviewing existing nationals
  laws to be in conformity with the Rome Statute.
• Rights of victims and accused -
• For the first time in the history of
  international criminal justice, victims, may not
  only testify as witnesses but have the right to
  participate in proceedings and request
  reparations. They are entitled to legal
  representation and legal aid.
• The Court may order restitution, rehabilitation
  and compensation as reparation for victims.
• Protecting the rights of the accused is essential
  to ensure a fair trial and effective justice.
  This includes legal and financial aid.

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INTERNATIONAL CRIMINAL LAW (ICL) (Contd)

• Trigger Mechanism/Activation of ICCs
  Jurisdiction -
• The Prosecutor can initiate an investigation or
  prosecution in three different ways -
• States Parties to the Rome Statute can refer
  situations to the ICC
• The UN Security Council can request the
  prosecutor to conduct an investigation
• The prosecutor may initiate investigations on the
  basis of information received from a reliable
  public source subject to prior authorization from
  the ICC Pre-Trial Chamber of 3 independent
  judges.
• Situations referred and cases before the ICC -
• Three States Parties have referred situations to
  the prosecutor - Situation in the DR Congo (the
  case of the prosecutor v. Thomas Lubanga Dyilo)
  situation in Uganda (the case of Prosecutor v.
  Joseph Konny and others) situation in Central
  African Republic
• The UN Security Council referred the situation in
  Dafur, Sudan (the case of Prosecutor v. Ahmad
  Harun and Ali Kushayb).
• The ICC is only hosting the trial of Charles
  Taylor v. Prosecutor under the exclusive
  jurisdiction of the UN Special Court for
  Sierra-Leone.

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INTERNATIONAL CRIMINAL LAW (ICL) (Contd)

• International Crimes Under the ICCs
  Jurisdiction -
• Crimes against humanity - attack against
  civilians in peace or war time need not be
  committed against a particular group sharing
  certain characteristics such as nationality,
  ethnicity, religion etc.
• Genocide - Systematic act/attack aimed at
  destroying a national, ethnic, racial or
  religious group, by killing them.
• Torture covers acts that are purposeless or
  merely sadistic committed by persons with or
  without connection to the state.
• War Crimes - are 26 enumerated acts against
  protected persons and property constituting grave
  violations of the 4 Geneva Conventions.
• Etc. Etc. Etc. Etc.

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4. LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY

• Law of the Sea is that branch of public
  international law that contains a body of treaty
  and customary rules relating to the seas and
  oceans regarded as the Worlds largest expanse of
  common space, freely used for navigation,
  exploitation of their natural resources,
  extraction of mineral wealth, and as a disposal
  area for nuclear/toxic/hazardous wastes products
  of industries, domestic life, and war.
• Development of the Law of the Sea - Prior to the
  United Nations Conferences (UNCLOS I-III) or the
  Hague Codification Conference of 1930, more than
  60 international conferences on various uses of
  the sea were held. These conferences produced 64
  multilateral treaties dealing with specific and
  technical aspects of marine affairs ranging from
  the protection of submarine cables to salvage at
  sea. By 1983 a total of 162 multilateral
  conventions and protocols (36 between 1884 and
  1944, 28 between 1946 and 1957, 36 between 1958
  and 1966, and 62 between 1967 and 1983) were
  adopted.

43
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• However, a major development in the law of the
  sea was the 1930 Hague Codification Conference of
  International Law. The importance of the
  conference was that it was the first most
  organized multilateral conference which addressed
  the question of the age-long territorial sea
  among the other two subjects of law (nationality
  and state responsibility) that were discussed at
  the conference.
• After the Hague conference, more multilateral
  agreements were made to the extent that by the
  end of the 2nd World War to the eve of 1958, a
  total of 28 multilateral negotiations we
  concluded on fisheries conservation and
  management, seamens welfare, sanitary
  regulation, oil pollution. And by 1958 and 1960
  when UNCLOS I and II, respectively, were held, it
  had become clear that the major international
  concerns were fisheries conservation and
  management, including regional fishery
  organisations seamens welfare and international
  shipping.

44
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• Prominent among the multilateral agreements
  concluded at that time were the 1946 Convention
  for the Regulation of Whaling (the Netherlands,
  Norway, United States, United Kingdom and the
  defunct Soviet Union) the Tripartite Fisheries
  Conference of Tokyo known as the Convention for
  the High Seas Fisheries of the North pacific
  Ocean the Brussels Convention on the Liability
  of Operation of Nuclear Ship (1962) and the 1963
  Vienna Convention on Liability for Nuclear
  Damage. Similarly, by the time the seabed debate
  began in the United Nations General Assembly in
  the mid 1960s, more international conferences
  were convened to address the new problems of
  exploration and exploitation of the seabed and a
  host of other issues of concern to coastal
  states. While fisheries concerns dominated the
  discussions, marine environment protection and
  pollution of the sea by oil (transboundary
  pollutants) issues influenced the conclusion of
  not less than 24 international conventions. Of
  equal importance (for Nigerias marine policy),
  the period coincided with concern for disposal of
  nuclear waste and placement of nuclear weapons on
  the seabed. Two international conventions were
  concluded on prohibition of emplacement of
  nuclear weapons on the seabed and civil liability
  in the field of maritime carriage of nuclear
  materials in 1971.

45
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• The failure of UNCLOS I and II to agree on the
  breadth of the territorial sea and contiguous
  zone meant that unilateral claims over fishing
  grounds and other resources of the sea were the
  order of the day. This led to tensions and what
  Wang described as a simplistic and chauvinistic
  solutions to global problems that demanded
  international cooperation. Thus, the issue of
  territorial sea came to be linked with the desire
  of the maritime powers to secure uninterrupted
  transit through focal points crucial to
  international navigation. At the same time there
  was bitter concern about the exercise of naval
  power as national claims over territorial seas
  expanded from 3 to 6 to 12 ad then to 200
  nautical miles (by some Latin American States).
• The 1982 UNCLOS - New Legal Regime - The 1982
  UN Convention on the Law of the Sea was intended
  to be a comprehensive restatement of almost all
  aspects of the Law of the Sea. Its basic
  objective is to establish -
• a legal order for the Seas and Oceans which
  will facilitate international Communication, and
  will promote the peaceful uses of the seas and
  oceans, the equitable and efficient utilization
  of their resources, the conservation of their
  living resources, and the study, protection and
  preservation of the marine environment.

46
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• By 1958, attempts were made at the United
  Nations first conference on Law of the Sea to
  resolve these issues. The conference yielded four
  Conventions on Different areas of the open sea.
  These were the Convention on the Territorial Sea
  and the Contiguous Zone (CZ), the Convention on
  the High Seas, the Convention on Fishing and
  Conservation of the Living Resources of the High
  Seas and the Convention on the Continental Shelf
  (CS). Although the Convention were largely a
  success, some key issues were not resolved
  namely
• the precise breadth of the TS
• the extent of the right of the coastal States
  over resources of the CS and beyond and
• the concurrent right of all States to exploit the
  resources of the abysmal floor based on the
  exploitability criterion.
• These outstanding issues were the core issues
  which the LOS set out to resolve. We would then
  examine the relevant LOS provision in outline.

47
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• The TS
• The TS was defined as an area of 12 nautical
  miles measured from the coastal baselines of the
  coastal sea. It assimilates this area to the land
  territory of the coastal State, which brings it
  under the sovereignty of such State. The coastal
  State, therefore, has as much jurisdiction over
  the TS as it has over its land territory.
• The CZ
• The CZ is an area of 24 nautical miles measured
  from the same coastal baseline as TS. This
  effectively means 12 nautical miles from the
  outer limit of the TS. It vests in the coastal
  State, jurisdiction over the CZ only to such
  extent necessary to prevent infringement of
  customs, fiscal, immigration and sanitary laws
  and legislation within its land territory or TS.
  Jurisdiction is also vested in the coastal State
  to punish infringement of Laws made in this
  regard.

48
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• The EEZ
• The LOS created the EEZ. This area extends to a
  maximum of 200 nautical miles from the baselines
  of the coastal State. The LOS vests in the
  coastal State sovereign rights for the purpose of
  exploiting and managing the resources of this
  area. The coastal State also possesses
  jurisdiction, with due regard to the rights of
  other States, with respect of the establishment
  and use of artificial island and structures,
  marine scientific research, and the protection of
  the marine environment. The coastal State may
  also take such measures as boarding, inspection,
  arrest and judicial proceedings as may be
  necessary to ensure compliance with its laws and
  regulations, provided such laws and regulations
  are made in conformity with the rights of
  navigation, overflight and laying of submarine
  cables and pipelines with regard to the EEZ.

49
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• The CS
• The LOS describes the CS as the area comprising
  the seabed and subsoil of the submarine areas
  which extend beyond the TS throughout the natural
  prolongation of the land territory to the outer
  edge of the continental margin, on to a distance
  of 200 nautical miles from the coastal baselines.
  The CS may, however, be extended to a total area
  not exceeding 350 nautical miles to accommodate
  the natural formation of the area. With regard to
  this zone, the coastal State is vested with
  sovereign rights for the purpose of exploring and
  exploiting its natural resources. These rights
  are exclusive in the sense that if the coastal
  State does not explore these resources, no one
  else can undertake these activities except with
  the express consent of the coastal State. Thus,
  the coastal State has exclusive right to
  authorize and regulate drilling on the CS for all
  purposes. Other States retain the rights with
  regard to the CS as they possess over the EEZ.

50
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• Regulation of Petroleum Exploration and
  Production Offshore Nigeria
• The delimitation of the TS under the LOS is
  different from the delimitation of the TS under
  Nigerias Territorial Waters Act (TWA). While the
  LOS Situates the TS within 12 nautical miles of
  the coastal baseline, the TWA stretches the TS to
  30 nautical miles from the coastal baselines.
  However until the LOS is re-enacted as a local
  statute in Nigeria, its provisions lack the force
  of law in Nigeria. It would therefore, seem that
  while the 12 nautical miles delimitation of the
  TS under the LOS would be opposable against
  Nigeria at the level of public international law,
  a private person or entity cannot directly
  enforce this delimitation against Nigeria. The
  practical effect of this state of affairs is
  that, a company operating 30 nautical miles of
  Nigerians coastal baseline cannot directly
  resist the assertion of jurisdiction by any
  Nigerian government agency over its activities.
  We would therefore conclude that until the LOS is
  re-enacted as part of local law in Nigeria,
  activities falling within 30 nautical miles of
  Nigerias coastal baselines would continue to be
  subject to the laws in force in Nigeria - public
  law as well as private law.

51
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• Nigerias Ocean Policy and the Law of the Sea -
  Ocean or marine policy is a branch of public
  policy that deals with the relations between
  government and the ocean environment or coastal
  zone.
• In considering Nigerias maritime sectors and
  policy within the purview of ocean law, it is
  pertinent to note that Nigeria, as a former
  British Colony, like all newly emergent states,
  came into the stream of law of the sea just at
  independence in 1960. During the colonial period
  the British government had legislated and made
  policies related to the sea to protect British
  colonial interests in Nigeria. At independence,
  however, Nigeria automatically became a party to
  three of the four Geneva Conventions (Convention
  on territorial Sea and Contiguous Zone,
  Convention on the High Seas and Convention on
  Fishing and Conversation of Living Resources of
  the (High Seas), as successor to British
  treaties, by virtue of the instrument of exchange
  of notes between Nigeria and Britain on
  independence day, regarding succession of
  treaties.

52
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• In exercise of her sovereign right as
  independence state Nigeria ratified the
  Convention on Continental Shelf on May 28, 1971,
  because the British Government did not ratify
  that convention at the time of exchange of notes.
  But soon after independence, Nigeria and most
  Third world Nations, began to realize that the
  provisions of UNCLOS I Conventions did not
  reflect the maritime interests of the new and
  developing nations of the international system.
  They then realized that
• it was the sea-farming capabilities of the big
  maritime powers coupled with their possession of
  marine technology for the exploitation of living
  resources of the sea that made them keep the
  jurisdictional zones of coastal states as minimum
  as possible so that their naval powers and
  commercial lets could dominate the world ocean
  resources.

53
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• It was against this background that Nigeria
  teamed up with other African and developing
  countries in the Group of 77 to press for a new
  international order when the seabed debate and
  UNCLOS III negotiations began in the late 1960s
  and early 1970s, respectively. Nigeria thus
  coalesced with other nations to pursue specific
  ocean interests and issues affecting African
  Group of 77 and coastal states, with the aim of
  achieving a comprehensive treaty based on equity
  and justice to defend political, economic and
  legal interests in the use of the sea. It is
  believed that Nigerias contribution at UNCLOS
  III negotiations was immensely felt as evidence
  by her proposal on direct relevant issues of
  national interest and Nigerias draft articles on
  the EEZ, transfer of technology and the limit of
  the territorial sea. Her proposal reflected in
  the adopted articles on the EEZ which deal with
  various rights and freedoms and rights of other
  states in the zone. Nigerias most impressive
  contribution at the conference was her proposal
  which introduced the concept of joint venture.

54
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• The proposal was intended to break the deadlock
  between developed and developing counties on the
  role of states and private companies in the
  exploration of the deep seabed. Part of this
  proposal also deals with the issue of transfer of
  technology in respect of exploration and
  exploitation of EEZ resources.
• However, since the outcome of the conference
  was generally a result of balance of
  compromise, Nigeria had to accept all the
  provisions of the convention. That is why she
  signed it when it was first open for signature in
  1982 and ratified it on August 14, 1986. After
  the New York Agreement of 1994, Nigeria indicated
  her consent to be bound by the agreement on
  November 23, 1994. This means that this
  convention is in full force as far as Nigeria is
  concerned. What remains, therefore, is that
  Nigeria needs conscientious efforts at
  implementing the provisions of the Convention so
  as to maximize or achieve optimum utilization of
  her ocean space. These conscientious efforts at
  implementing the LOS and any other actions to
  achieve our national interests in connection with
  any activity related to the sea constitute the
  national ocean policy.

55
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• Nigerias Ocean/Marine Interests - Nigerias
  Ocean interests as a costal and developing state
  cover a variety of strategic needs including -
• Exploration and exploitation of the resources of
  the sea
• Transport and communication
• Military and strategic interests
• Marine scientific research and transfer of marine
  technology
• Waste disposal, marine environment preservation
  and management
• Coastal zone management and
• Tourism and Recreation.
• The LOS provides exclusive jurisdiction over
  resources of the EEZ and Continental shelf. With
  a land area of 923,768km2, Nigeria, lies between
  latitude 4016 13052N and longitude 2049
  14037 East of the Equator. A coastline of about
  850km (15 nautical miles) bordering the Gulf of
  Guinea and an Exclusive Economic Zone of 200
  nautical miles covers marine area of
  approximately 210,900km2 within which Nigeria
  exercises sovereign rights for exploring,
  exploiting, conserving and managing with regards
  to installations, structures marine scientific
  research and protection of the marine
  environment. Nigeria has a continental shelf
  which narrows in the west to between 8 25
  nautical miles but relatively widens off the
  Niger Delta to the eastern flank to about 43
  nautical miles.

56
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• With a shelf break of 200 metres contour line
  marking the outer edge, the total surface area of
  the shelf is about 41,000km2. The Geomorphic
  features of this continental shelf are the Avon,
  Mahin and Calabar canyons as well as sand banks
  in the inner shelf off the river banks and the
  deep seated faults Romanche chain and charcot
  fracture zones that originate in the Mid-Atlantic
  ridge. Exploration and exploitation of both the
  living and non-living resources of this area have
  vast implication for the countrys economic and
  military strategy.
• Need for an Integrated National Ocean Policy in
  Nigeria
• Nigerias ocean/marine affairs are handled by a
  number of different agencies such that there is
  no one government agency that overseas ocean
  activities. Decisions are consequently taken on
  the basis of particular needs without due
  consideration to other responsibilities.

57
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• For example, the Nigerian Navy patrols the
  territorial sea and performs defence related
  matters the marine police and customs check
  crimes and fiscal regulations in ports and
  harbours the Federal Department of Fisheries
  regulates fishing activities the NNPC regulates
  development, exploration, exploitation and
  marketing of petroleum related products the
  Ministry of Science and Technology and the
  National Institute for Oceanographic and Marine
  Research are concerned with marine technology
  acquisition and research related matters the
  newly established National Maritime
  Administration and Safety Agency is responsible
  for the promotion of Maritime safety and
  security, protection of the marine environment,
  shipping registration and commercial shipping,
  and maritime labour while the newly established
  National Environmental Standards and Regulations
  Enforcement Agency (NESREA) is responsible for
  the protection and development of the environment
  and natural resources, enforcement of laws,
  rules, standards relating to the
  environment/treaties on environment including
  marine and wildlife, biodiversity conservation,
  environmental pollution and hazardous wastes
  disposal etc.

58
LAW OF THE SEA (LOS)/NIGERIAS OCEAN POLICY
(Contd)

• Jurisdictional powers of these agencies are
  backed by a number of legislations such as the
  Sea Fisheries Act, Territorial Waters Act, the
  National Maritime Administration and Safety Act,
  2006, the Coastal and Inland Shipping (cabotage)
  Act, 2003, and the NESREA Act, 2007 etc.
  promulgated at different times.
• Both the abolished and existing agencies and
  legislations may have been relatively effective
  in their functions but they are constrained by
  inadequate marine technology and lack of central
  coordinating body to enhance integrated ocean
  management and policy coordination.
• Integration of ocean policy supplements rather
  than replace a sectoral approach.

59

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