INTRODUCTION

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

2. INTRODUCTION International law is divided into two broad types: - Public and Private International Law. For the purpose of today’s 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.

3. 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.

4. MEANING, SUBJECTS AND DEVELOPMENT OF INTERNATIONAL LAW (Cont’d) • 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.

5. MEANING, SUBJECTS AND DEVELOPMENT OF INTERNATIONAL LAW (Cont’d) • Beyond the traditional definition and today’s 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/institutions 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.

6. MEANING, SUBJECTS AND DEVELOPMENT OF INTERNATIONAL LAW (Cont’d) • 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.

7. MEANING, SUBJECTS AND DEVELOPMENT OF INTERNATIONAL LAW (Cont’d) • 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.

8. MEANING, SUBJECTS AND DEVELOPMENT OF INTERNATIONAL LAW (Cont’d) • 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.

9. MEANING, SUBJECTS AND DEVELOPMENT OF INTERNATIONAL LAW (Cont’d) 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.

10. 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.

11. 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.

12. 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.

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

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

15. 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. • 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…”

16. 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)

17. 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)

18. 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 Assembly’s establishment of UNEP. SOURCES OF INTERNATIONAL LAW (Cont’d)

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

20. 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.

21. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW (Cont’d) • 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.

22. 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;

23. CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW (Cont’d) • 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.

24. CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW (Cont’d) • 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;

25. CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW (Cont’d) • 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 country’s 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.

26. Branches or Fields of Public International Law International Human Rights Law (IHRL) International Humanitarian Law (IHL) (Law of Armed Conflict) International Criminal Law International Environmental Law International Economic/Monetary Law International Maritime Law International Law of the Sea International Trade Law International Labour Law International Law relating to Space International Refugee Law International Law relating to disarmament International Law of Public International Organizations/ Institutions 5. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW

27. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d) 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.

28. Scope of Internationally Guaranteed Human Rights 1st Generation 2nd Generation 3rd Generation Civil & Political Rights Economic, Social & Cultural Rights Rights of Vulnerable Group Environmental, Developmental Rights Refugees & IDPs Women Persons Living with HIV-AIDS Children Minorities Disabled Persons Ethnic, Linguistic, Cultural, Political, Religious, Racial, Sexual BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d)

29. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL 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

30. 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 Human Rights Council UN High Commissioner for Human Rights 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 BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d) • Enforcement and Monitoring Mechanisms: - There are 3 perspectives to this effect.

31. 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 BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d)

32. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d) 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.

33. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d) • 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.

34. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d) • 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).

35. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d) • 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.

36. 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. ICC’s 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;

37. INTERNATIONAL CRIMINAL LAW (ICL) (Cont’d) • 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. • ICC’s 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 Party’s 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) (Cont’d) • 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.

39. INTERNATIONAL CRIMINAL LAW (ICL) (Cont’d) • 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.

40. INTERNATIONAL CRIMINAL LAW (ICL) (Cont’d) • Trigger Mechanism/Activation of ICC’s 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.

41. INTERNATIONAL CRIMINAL LAW (ICL) (Cont’d) • International Crimes Under the ICC’s 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.

42. 4. LAW OF THE SEA (LOS)/NIGERIA’S 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 World’s 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)/NIGERIA’S OCEAN POLICY (Cont’d) 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, seamen’s 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; seamen’s welfare and international shipping.

44. LAW OF THE SEA (LOS)/NIGERIA’S OCEAN POLICY (Cont’d) 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 Nigeria’s 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)/NIGERIA’S OCEAN POLICY (Cont’d) 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)/NIGERIA’S OCEAN POLICY (Cont’d) 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)/NIGERIA’S OCEAN POLICY (Cont’d) • 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)/NIGERIA’S OCEAN POLICY (Cont’d) • 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)/NIGERIA’S OCEAN POLICY (Cont’d) • 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)/NIGERIA’S OCEAN POLICY (Cont’d) 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 Nigeria’s 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 Nigerian’s 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 Nigeria’s coastal baselines would continue to be subject to the laws in force in Nigeria: - public law as well as private law.