Title: 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
1INTRODUCTION 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
2INTRODUCTION
- 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.
31. 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.
4MEANING, 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.
5MEANING, 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.
6MEANING, 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.
7MEANING, 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.
8MEANING, 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.
9MEANING, 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.
102. SOURCES OF INTERNATIONAL LAW
- Today, there are 8 sources of international law
divided into traditional and non-traditional
sources.
11SOURCES 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.
12SOURCES 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.
13SOURCES 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.
14SOURCES 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.
15SOURCES 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
16SOURCES 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.
17SOURCES 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.
18SOURCES 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.
19SOURCES 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.
203. 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.
21RELATIONSHIP 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.
224. 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
23CONCEPT 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.
24CONCEPT 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
25CONCEPT 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.
265. BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
27BRANCHES 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.
28BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)
29BRANCHES 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
30BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)
- Enforcement and Monitoring Mechanisms - There
are 3 perspectives to this effect.
31BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW
(Contd)
32BRANCHES 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.
33BRANCHES 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.
34BRANCHES 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).
35BRANCHES 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.
363. 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
37INTERNATIONAL 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.
38INTERNATIONAL 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.
39INTERNATIONAL 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.
40INTERNATIONAL 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.
41INTERNATIONAL 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.
424. 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.
43LAW 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.
44LAW 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.
45LAW 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.
46LAW 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.
47LAW 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.
48LAW 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.
49LAW 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.
50LAW 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.
51LAW 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.
52LAW 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.
53LAW 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.
54LAW 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.
55LAW 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.
56LAW 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.
57LAW 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.
58LAW 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