2. SOURCES OF INTERNATIONAL LAW

1. OVERVIEW OF CONTINENTAL PRACTICE ON PROMOTION OF HUMAN RIGHTS BYPROF. MUHAMMED TAWFIQ LADAN (PhD)DEPARTMENT OF PUBLIC LAW, FACULTY OF LAWAHMADU BELLO UNIVERSITY, ZARIA, KADUNA STATE, NIGERIA.Email: mtladan@ymail.com, mtladan@live.com, mtladan@gmail.comBlogsite: http://mtladan.blogspot.com/Lecture Delivered at:The PGD-JAGBC Training Workshop for Legal Officers of the Legal Service Wing, Nigerian Army School of Military Police, Zaria.Date: - 22nd August – 2nd Sept., 2011Venue: -Nigerian Army School of Military Police, Zaria.

2. 5 Traditional Sources Subsidiary (2) Principal (3) Treaty Customary Rules of International Law General Principles of Law Judicial Decisions Writings of the most highly qualified Scholars 2. SOURCES OF INTERNATIONAL LAW Today, there are 8 sources of international law divided into traditional and non-traditional sources.

3. SOURCES OF INTERNATIONAL LAW (Cont’d) 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.

4. SOURCES OF INTERNATIONAL LAW (Cont’d) • 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.

5. SOURCES OF INTERNATIONAL LAW (Cont’d) • 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, ECOWAS Court of Justice, etc.

6. 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. SOURCES OF INTERNATIONAL LAW (Cont’d)

7. 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. SOURCES OF INTERNATIONAL LAW (Cont’d)

8. 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. SOURCES OF INTERNATIONAL LAW (Cont’d)

9. INTERNATIONAL HUMAN RIGHTS LAW The scope of this lecture is restricted to the following Classification of International Human Rights 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.

10. Scope of Internationally Guaranteed Human Rights 1st Generation 2nd Generation 3rd Generation Civil & Political Rights Economic, Social & Cultural Rights Rights of Vulnerable Groups Environmental, Developmental Rights Migrants, Refugees & IDPs Women and Children Persons Living with HIV-AIDS Victims of trafficking, crime (genocide, CAH, War Crimes) and abuse of power Minorities Disabled Persons/ the Aged Ethnic, Linguistic, Cultural, Political, Religious, Racial, Sexual, indigenous people Self determination, work/employment , social security, family protection and assistance, adequate standard of living, gender equality, health (physical, mental, reproductive and sexual health), education and cultural life INTERNATIONAL HUMAN RIGHTS LAW (Cont’d)

11. INTERNATIONAL HUMAN RIGHTS LAW (Cont’d) • 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

12. Enforcement/Monitoring Mechanisms of Human Rights UN Treaty Monitoring Bodies Regional Human Rights Bodies UN Charter-based Bodies ICCPR = Committee on CCPR ICESCR = Committee on CESCR ICEDR = Committee on CERD UN CEDAW = Committee on CEDAW UN CRC = Committee on CRC UN CAT = Committee on CAT Economic and Social Council (ECOSOC) UN Commission on Human Rights UN High Commissioner for Human Rights UN Human Rights Council – Universal Peer Review (UPR) Africa Europe America African Commission on Human & Peoples’ Rights Africa Court of Human Rights European Court of Human Rights Inter-American Commission on Human Rights Inter-American Court of Human Rights INTERNATIONAL HUMAN RIGHTS LAW (Cont’d) • Enforcement and Monitoring Mechanisms: - There are 3 perspectives to this effect.

13. Domestic Implementation of International/Regional Human Rights Instruments Ratification of Human Rights Treaties Incorporation into National Law Enforcement in a Court of Law (case law: - Abacha v. Fawenhimi and Agbakoba v. DSSS) Monitoring Compliance by National Human Rights Commissions and Public Complaints Commission, Consumer Protection Councils etc INTERNATIONAL HUMAN RIGHTS LAW (Cont’d)

14. TABLE ON STATUS OF RATIFICATION OR SIGNATURE BY NIGERIA OF INTERNATIONAL AND REGIONAL LEGAL INSTRUMENTS ON HUMAN RIGHTS: AS OF JUNE 2010PREPARED BY PROF. M.T. LADAN, FACULTY OF LAW, ABU, ZARIA

18. The Table below indicates the United Nations International Legal Instruments on Human Rights that Nigeria has neither signed nor ratified: As of October 2010

21. LIST OF DOMESTICATED IHL/IHRL TREATIES/NATIONAL IMPLEMENTING LEGISLATIONS/DRAFT DOMESTICATION BILLS IN NIGERIA: - 1960 - 2009

22. WHY ARE HUMAN RIGHTS OF FUNDAMENTAL VALUES TO ECOWAS First, because all ECOWAS member states are committed to their obligations under the ECOWAS revised treaty to promote and protect community citizens’ rights guaranteed under international human rights law (including the African Human Rights regime). Hence, in July 1991, ECOWAS Heads of States adopted a Declaration of Political Principles, the preamble of which reaffirmed the need for the creation of a Stable and secure region in which peoples of West Africa can live in freedom under law and for concerted regional action to promote democracy “on the basis of political pluralism and respect for fundamental rights as embodied in universally recognized international instruments on human rights and in the African charter on Human and peoples’ Rights. In the Declaration, the ECOWAS States undertook as follows:

23. WHY ARE HUMAN RIGHTS OF FUNDAMENTAL VALUES TO ECOWAS ( Cont’d) We will respect human rights and fundamental freedoms in all their plenitude, including in particular, freedom of thought, conscience, association, religion or belief for all our peoples without distinction s to race, sex, language or creed. We will promote and encourage the full enjoyment by all our peoples of their fundamental human rights, especially their political, economic, social, cultural, and other rights inherent in the dignity of the human persons and essential to his free and progressive development. In the framework of the Revised ECOWAS Treaty, including its accompanying protocols, human rights are recognized as fundamental principles of the Community, rights in factor mobility, substantive State obligations, and as obligations enforceable by the ECOWAS Court of Justice.

24. WHY ARE HUMAN RIGHTS OF FUNDAMENTAL VALUES TO ECOWAS ( Cont’d) Second, because all ECOWAS member states are either signatories to, or both signatories and state parties to, the core African human rights treaties (African Charter on Human and Peoples’ Rights, Protocol to the African Charter on Human and Peoples’ Rights on the rights of women in Africa, Protocol on the establishment of an African Human Rights Court to the African Charter and AU Charter on the Rights and Welfare of the Child). Hence, their commitments to the African Charter on Human and Peoples’ Rights of 1981 which came into force in 1986. By recognizing the above values of International human rights standards, the African Charter provides for the following five main categories of rights and duties: • Individual civil and political rights under articles 2 – 13 including the right to free movement, seek asylum and to participate in democratic governance; • Economic, social and cultural rights under articles 14 – 18 ranging from right to own property, work, health, education, family protection, and special protection to the elderly and the disabled;

25. WHY ARE HUMAN RIGHTS OF FUNDAMENTAL VALUES TO ECOWAS ( Cont’d) • Rights of peoples’ under articles 19 – 24: self determination, socio-economic and cultural development, peace and security and a healthy and safe environment; • Duties of states under articles 1, 25 and 26: respect, promote, protect the rights: guarantee independence of the judiciary, etc. • Duties of individuals under articles 27 – 29: promote welfare/to other individuals, family, community, state for peace and security.

26. REGIONAL MECHANISMS FOR HUMAN RIGHTS PROTECTION: AFRICA, EUROPE AND AMERICA The African human rights system for long endured the lack of an effective protection mechanism for the rights guaranteed in the African Charter. The African Commission, which was charged with responsibility to promote and ensure the protection of these rights, was constrained in its protective function by the mere advisory powers given to it by the Charter. The African court was, therefore, established to complement and reinforce the protective mandate of the African Commission.

27. REGIONAL MECHANISMS FOR HUMAN RIGHTS PROTECTION: AFRICA, EUROPE AND AMERICA (Cont’d) The African Commission on Human and Peoples’ Rights was established under the African Charter on Human and Peoples’ Rights in 1987. The Commission consists of 11 part-time commissioners and is based in Banjul, The Gambia the Commission meets twice a year for up to two weeks at a time in regular sessions, either in The Gambia or in other African countries. The current Rules of Procedure of the Commission, prescribing how it functions internally, were adopted by the African commission in Praia, Cape Verde, in October 1995. With the establishment of the African Court it is foreseen that these Rules of Procedure will be revised in the near future. The ACHPR has also developed guidelines for National Periodic Reports since 1998 to monitor compliance with human rights in Africa by state parties. It has issued several concluding observations on periodic reports.

28. REGIONAL MECHANISMS FOR HUMAN RIGHTS PROTECTION: AFRICA, EUROPE AND AMERICA (Cont’d) It has decided on several human rights cases and passed the following resolutions: - • Electoral Process and Participatory Governance (1996) • Observer Status for National Human Rights Institutions (1998) • Criteria for Observer Status for NGOs (1999) • Dakar Declaration on the Right to a Fair Trial (1999) • Death Penalty (1999) • HIV/AIDS (2001) • Principles on Freedom of Expression (2002) • Robben Island Guidelines on Torture (2002) • Principles and Guidelines on the Rights to a Fair Trial (2003)

29. Resolutions (Cont’d) • Human Rights Defenders (2004) • Refugees (2004) • Special Rapporteur on Freedom of Expression (2004) • Economic, Social and Cultural Rights in Africa (2004) • Status of Women in Africa (2005) • Impunity (2005) • Terrorism (2005) • Darfur (2005)

30. REGIONAL MECHANISMS FOR HUMAN RIGHTS PROTECTION: AFRICA, EUROPE AND AMERICA (Cont’d) See sample guidelines for periodic reporting: Guideline for National Periodic Reports under the African Charter (1998) The general guidelines (adopted in 1989) for the reports for the reports that the state parties are required to submit every two years (per article 62 of the Charter) and that are considered by the African Commission are reprinted in Human Rights Law in Africa 2004 p 569 and further, and are also available on www.chr.up.ac.za. The African Commission adopted the simplified guidelines reprinted below as a supplement to the initial guidelines in 1998. • An initial report (the first report) should contain a brief history of the state, its form of government, the legal system and the relationship between the arms of government.

31. Guideline for National Periodic Reports under the African Charter (1998) (Cont’d) • The initial report should also include the basic documents – the constitution, the criminal code and procedure and landmark decisions on human rights. • The major human rights instruments to which the state is a party and the steps taken to internalize them. • How is the state party implementing the following rights protected by the Charter: • Civil and political rights; • Economic, social and cultural rights; and • Group rights?

32. Guideline for National Periodic Reports under the African Charter (1998) (Cont’d) • What is the state doing to improve the condition of the following groups mentioned in the Charter: • Women; • Children; and • The disabled? • What steps are being taken to protect the family and encourage its cohesion? • What is being done to ensure that individual duties are observed? • What are the problems encountered in implementing the Charter with regard to the political, economic or social circumstances of the state?

33. Guideline for National Periodic Reports under the African Charter (1998) (Cont’d) • How is the state carrying out its obligations under article 25 of the Charter – on human rights education? • How is the state, as an interested party, using the Charter in its international relations, particularly in ensuring respect for it? • Any other information relevant to the implementation and promotion of the Charter.

34. REGIONAL MECHANISMS FOR HUMAN RIGHTS PROTECTION: AFRICA, EUROPE AND AMERICA (Cont’d) The African Court holds great promise for the defence and advancement of human rights in Africa. Its jurisdictional and jurisprudential evolution should, therefore, be systematically tailored to ensure its effectiveness. Accordingly, this fledging continental cum judicial human rights institution would benefit, by gleaning lessons, from the example and experiences of similar continental courts like the European Court of Human Rights and the Inter-American court of Human rights. The Protocol on the establishment of African Human Rights Court was adopted on June 9, 1998 and came into force on 25 January 2004. Presently 24 out of the 53 AU member countries have ratified the Court’s Protocol. Of this number, 9 West African States have ratified the Protocol. Since 2nd July 2006 when the first eleven judges were sworn in, the African Human Rights Court obtained temporary offices for the seat of the court in Arusha, Tanzania in September 2007.

35. COMPOSITION OF THE COURT The African court consists of 11 judges of high moral character and competence, each a national of a member state of the AU but elected in an individual capacity (Art. 11 of the Protocol to the African Court). The judges are elected for six-year terms and may be re-elected once. They serve on part-time basis except for the president (art. 15). This is basically the same system as the Inter-American Court while the judges of the European Court work full time. The possible challenge here is that as the African Court proves its effectiveness over time, its caseload would grow beyond what part-time judges can handle. Also, although judicial independence is guaranteed in the same way in all three courts, judges in the African Court, unlike their counterparts in the European Court of Human Rights and the Inter American Court of Human Rights, do not sit in cases which affect a country of which they are a national (Art. 17).

36. JURISDICTION The African Court is competent to interpret and apply the African charter (Art. 3), the same way the European Court of Human Rights and the Inter American Court of Human Rights have jurisdiction to interpret and apply their respective regional instruments for the protection of human rights. For the European Court, this is an exclusive competency, while the African and Inter-American Courts share it with their respective Regional Human Rights Commissions. But the jurisdiction of the African Court is, in some respects, wider than that of the other two Courts. The African Court protects not only civil and political rights, following the example of other regional conventions, but also social, economic and cultural rights. More so, the jurisdiction of the African Court, unlike the other two courts, extends to “any other relevant human rights instruments ratified by the states concerned”.

37. ACCESS TO THE COURTS Access to the African Court is open, by right, to the African Commission, State parties and African intergovernmental organizations (Art. 5). The right of individuals and NGOs with observer status before the Commission is dependent on whether the State has made a declaration on Art. 34(6) of the Protocol accepting the competence of the Court to receive such petitions. In the Inter-American Court system only State Parties and the Inter-American Commission can submit cases to the Court. Individuals and legally recognized NGOs can only submit cases to the Commission. If the Commission so decides, it can pass the case on to the Court for a ruling. In both cases, the competency of the Court is optional and is limited to states, which have explicitly accepted its jurisdiction.

38. ACCESS TO THE COURTS (Cont’d) The system in the European Court, before the coming into force of Protocol II to the European Convention, was similar to that adopted by the African Court. However, since the ratification of Protocol II in 1998, the right of individuals or NGOs who believe that they have been victims of a human rights violation is guaranteed by the European Convention. On 23 October 2007, in the case of Colibaba v. Moldova, the European Court of Human Rights handed down a judgement reaffirming the right of individual petition to the Court. The African system could take a cue from the reforms in the European court and make provisions to enhance individual and NGO access to the Court. This would require encouraging state parties to make declarations on Art. 34(6) of the Protocol.

39. RELATIONSHIP WITH REGIONAL HUMAN RIGHTS COMMISSION By Article 2 of its Protocol, the African Court has a complementary relationship with the African Commission in its protective mandate; the promotion of human rights being the exclusively reserve of the Commission. Thus, the Court shall receive cases from the Commission (Art. 5(1)), may request the opinion of the Commission when deciding the admissibility of a case instituted under Art. 5(3) (Art. 6(1)) and may transfer cases to the Commission (Art. 6(3)). The Court shall also consult the Commission as appropriate in drawing up its rules and procedure (Art. 33). However, the Court shall not give advisory opinion to state parties on any subject matter related to a matter being examined by the Commission (Article 4).

40. Relationship with Regional Human Rights Commission (Cont’d) In the Inter-American Court, all communications must pass before the Inter-American Commission before being submitted to the Court. The Commission decides on its admissibility and prepares a report on the facts of the case and its conclusions. Only the state concerned or the Commission can decide to send the matter to the Court. This system functions badly and during the first ten years of its existence, the Inter-American court received no cases from the Commission. In the European court, a similar system existed until 1998 and the ratification of Protocol II of the European Convention. Protocol II abolished the European Human Rights Commission and enlarged the European Court, assigning to it functions and powers which were previously held by the Commission. The African Court, to be effective in the discharge of its shared protective function, must, therefore, build and maintain a good complementary relationship with the African Commission, otherwise it might repeat the first-decade experience of the Inter-American Court.

41. PROCEDURE BEFORE THE REGIONAL HUMAN RIGHTS COURTS The procedures in all three regional courts are basically the same. Hearings are held in public except in exceptional circumstances and all three Courts receive both oral and written evidence. They also all follow the adversarial principle. The African Court can interpret and review its decisions (Art. 28). The Inter-American Court can also interpret its decisions. However, the European Court is the only Court of the three where there is a possibility of appeal.

42. COURTS’ DECISIONS AND ENFORCEMENT Unlike the African Commission, the African Court can make final and binding decisions through a judgement by a majority of the judges. The African Court can also order the payment of fair compensation or reparation (Art. 27). States parties undertake to comply with and to carry out the decisions of the Court (Art. 30). This system is the same in the other two Courts. More so, compliance with the decisions of the African Court is monitored by the Council and Ministers of the AU, which follows the example of the European Court. In conclusion, the African Court, if effective, holds a guarantee of redress and remedy for the many violations of human rights within the African system. It cannot, therefore, afford to be anything less than effective in protecting the rights of the peoples of Africa. To this end, it should be optimally operated, adequately accessed, and substantially supported by state parties, civil society, individuals, and indeed all stakeholders in the African human rights system.

43. THANK YOU