Pos 551

COURSE MANUAL
Principles of International Law

POS551
University of Ibadan Distance Learning Centre

Open and Distance Learning Course Series Development
Version 1.0 ev1
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ISBN: _
General Editor: Prof. Bayo Okunade
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Vice-Chancellor’s Message
The Distance Learning Centre is building on a solid tradition of over two decades of service in
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and beyond. The Distance Learning mode to which we are committed is providing access to
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It is our hope that you will put these course materials to the best use.
Prof. Isaac Adewole

Vice-Chancellor
Foreword
As part of its vision of providing education for ―Liberty and Development‖ for Nigerians and
the International Community, the University of Ibadan, Distance Learning Centre has recently
embarked on a vigorous repositioning agenda which aimed at embracing a holistic and all
encompassing approach to the delivery of its Open Distance Learning (ODL) programmes.
Thus we are committed to global best practices in distance learning provision. Apart from
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without an up-to-date, learner-friendly and distance learning compliant course materials, there
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availability of appropriate course materials in multiple formats is the hub of any distance
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We would like to thank all our authors, reviewers and production staff for the high quality of
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Best wishes.
Professor Bayo Okunade

Director
Course Development Team
Course Writer Olubukola S. Adesina Ph.D.
Content Editor Prof. Remi Raji-Oyelade

Production Editor Dr. Gloria O. Adedoja
Learning Design & Technologist Folajimi Olambo Fakoya
Managing Editor Ogunmefun Oladele Abiodun
General Editor Prof. Bayo Okunade
Contents
About this course manual 9
How this course manual is structured .................................................................................................................... 9
Course Overview 11
Welcome to Principles of International Law POS551 ................................................................................... 11
Course outcomes ........................................................................................................................................................... 11
Timeframe........................................................................................................................................................................ 12
How to be successful in this course ...................................................................................................................... 13
Need help?........................................................................................................................................................................ 14
Academic Support......................................................................................................................................................... 14
Activities ........................................................................................................................................................................... 14
Assessments .................................................................................................................................................................... 15
Bibliography .................................................................................................................................................................... 15
Getting around this course manual 16

Margin icons .................................................................................................................................................................... 16
Study Session 1 17
Nature of International Law ..................................................................................................................................... 17
Introduction ....................................................................................................................................................... 17
1.1 Understanding International Law ..................................................................................................... 17
1.1.1 Definition of International Law ......................................................................................... 17
1.1.2 Branches of International Law .......................................................................................... 20
1.2 Purpose and Scope of International Law ....................................................................................... 21
1.3 Difference between International Law and Domestic Law .................................................... 22
1.3.1 The Law-Making Process ..................................................................................................... 22
1.3.2 Enforcement .............................................................................................................................. 22
1.4 How International and Domestic Law Interact ........................................................................... 23
1.4.1 Monism ........................................................................................................................................ 23
1.4.2 Dualism ........................................................................................................................................ 24
1.4.3 Harmonization of Monism and Dualism ........................................................................ 24
1.5 Foundation of International Law ....................................................................................................... 25
1.5.1 Jus Gentium ................................................................................................................................ 25
1.5.2 Jus Inter Gentes ........................................................................................................................ 25
Study Session Summary ............................................................................................................................................. 25
Assessment ...................................................................................................................................................................... 26
Bibliography .................................................................................................................................................................... 26
Study Session 2 27
Sources of International Law ................................................................................................................................... 27
Introduction ....................................................................................................................................................... 27
2.1 Sources of International Law .............................................................................................................. 27
2.1.1 Treaties ........................................................................................................................................ 28
Contents ii
Characteristics of Treaty ...................................................................................................... 29

2.1.2 Customary International Law ............................................................................................ 30
2.1.3 General Principles of Law .................................................................................................... 31
2.1.4 Judicial Decisions and Writings of Publicists............................................................... 32
2.1.4 Other Sources of International Law................................................................................. 33
Assessment ...................................................................................................................................................................... 34
Bibliography .................................................................................................................................................................... 34
Study Session 3 35
Subjects of International Law .................................................................................................................................. 35
Introduction ....................................................................................................................................................... 35
3.1 Subjects of International Law ............................................................................................................. 36
3.2 States ............................................................................................................................................................. 37
3.2.1 Fundamental Rights of the State ....................................................................................... 37
Sovereignty ................................................................................................................................ 37
Equality ....................................................................................................................................... 38
Political Independence and Territorial Integrity ...................................................... 38
3.2.2 Recognition of a State ............................................................................................................ 38
Declaratory Theory of Recognition ................................................................................. 38
Constitutive Theory of Recognition ................................................................................ 38
3.2.3 Recognition of Government ................................................................................................ 38
3.3 International Organizations................................................................................................................. 39
3.3.1 The United Nations ................................................................................................................. 39
Brief history of the UN .......................................................................................................... 39
Membership............................................................................................................................... 40
The UN Charter ........................................................................................................................ 40
Organs of the United Nation ............................................................................................... 41
3.4 Insurgents .................................................................................................................................................... 41
3.5 National Liberation Movements ........................................................................................................ 42
Elements of NLMs ............................................................................................................................... 42
3.6 Individuals ................................................................................................................................................... 42
3.6.1 Individuals as Subject of International Law................................................................. 43
Customary rules imposing obligations on individuals............................................ 43
Rights of Individuals under International Law .......................................................... 43
Treaty Provisions Conferring Rights on Individuals................................................ 43
3.7 Sui Generis Entities................................................................................................................................... 44
3.7.1 The Holy See .............................................................................................................................. 44
3.7.2 The Sovereign Order of Malta ............................................................................................ 45
3.7.3 The International Committee of the Red Cross (ICRC) ........................................... 45
Assessment ...................................................................................................................................................................... 45
Bibliography .................................................................................................................................................................... 46
Study Session 4 46
Jurisdictions and Immunities................................................................................................................................... 46
Introduction ....................................................................................................................................................... 46
4.1 Jurisdiction in International Law....................................................................................................... 46
4.2 Immunities from Jurisdiction .............................................................................................................. 47
Assessment ...................................................................................................................................................................... 49
Bibliography .................................................................................................................................................................... 49
Study Session 5 50
International Responsibility .................................................................................................................................... 50
Introduction ....................................................................................................................................................... 50
5.1 Responsibilities of States under International Law .................................................................. 50
5.2 Conditions for Violation of International Law ............................................................................. 50
5.3 To Whom is a State Responsible? ...................................................................................................... 51
5.4 For Whose Actions is the State Responsible? ............................................................................... 52
5.4.1 State Criminal Responsibility ............................................................................................. 52
Acts of State Organs ............................................................................................................... 52
Acts of Armed Forces............................................................................................................. 52
Acts of Persons that have Some Government Authority ........................................ 52
Acting in Private Capacity ................................................................................................... 53
5.4.2 Individual Criminal Responsibility .................................................................................. 53
5.5 Consequences of State Violation of International Law............................................................. 53
5.5.1 Forms of Reparations ............................................................................................................ 53
Restitution.................................................................................................................................. 53
Compensation ........................................................................................................................... 54
Rehabilitation ........................................................................................................................... 54
Satisfaction................................................................................................................................. 54
5.5.2 Enforcement of Reparations ............................................................................................... 54
Assessment ...................................................................................................................................................................... 55
Bibliography .................................................................................................................................................................... 55
Study Session 6 55
The Law of the Sea ........................................................................................................................................................ 55
Introduction ....................................................................................................................................................... 55
6.1 Law of the Sea Convention ................................................................................................................... 56
6.1.1 History of the Law of the Sea Convention ..................................................................... 57
6.2 Fundamental Principles of the Law of the Sea ............................................................................. 57
6.3 Settlement of Disputes ........................................................................................................................... 59
Assessment ...................................................................................................................................................................... 61
Bibliography .................................................................................................................................................................... 61
Study Session 7 63
International Humanitarian Law ........................................................................................................................... 63
Introduction ....................................................................................................................................................... 63
7.1 International Humanitarian Law ....................................................................................................... 63
7.2 Sources of International Humanitarian Law ................................................................................ 64
7.2.1 The First Additional Protocol to the Geneva Conventions..................................... 65
7.2.2 The Second Additional Protocol to the Geneva Conventions ............................... 65
7.3 Basic Principles of International Humanitarian Law ................................................................ 66
7.3.1 The Principle of Distinction between Civilians and Combatants ........................ 66
7.3.2 The Principle of Proportionality ....................................................................................... 66
Contents iv
7.3.3 The Principle of Precaution in Attack ............................................................................. 66

7.4 Weapons Prohibited under International Humanitarian Law.............................................. 67
7.4.1 Weapons that cause Superfluous Injury or Unnecessary Suffering ................... 67
7.4.2 Biological and Chemical Weapons ................................................................................... 67
7.5 Breaches of the Geneva Conventions ............................................................................................... 68
7.6 The Geneva Conventions Today ......................................................................................................... 68
Assessment ...................................................................................................................................................................... 70
Bibliography .................................................................................................................................................................... 70
Study Session 8 70
International Human Rights Law ........................................................................................................................... 70
Introduction ....................................................................................................................................................... 70
8.1 What are Human Rights? ...................................................................................................................... 71
8.2 Principles of Human Rights.................................................................................................................. 71
8.2.1 Universal and Inalienable .................................................................................................... 71
8.2.2 Interdependent and Indivisible ......................................................................................... 72
8.2.3 Equal and Non-discriminatory .......................................................................................... 72
8.2.4 Rights and Obligations .......................................................................................................... 72
8.3 International Human Rights Law ...................................................................................................... 72
8.3.1 Violations of International Human Rights Law .......................................................... 73
8.4 Sources of International Human Rights Law ................................................................................ 74
Assessment ...................................................................................................................................................................... 75
Bibliography .................................................................................................................................................................... 76
Study Session 9 76
Asylum and Refugee Laws ........................................................................................................................................ 76
Introduction ....................................................................................................................................................... 76
9.1 Who is a Refugee?..................................................................................................................................... 77
9.2 Reasons for Persecution ........................................................................................................................ 77
9.3 Solutions to Refugee Situation ............................................................................................................ 78
9.3.1 Voluntary Repatriation ......................................................................................................... 78
9.3.2 Local Integration...................................................................................................................... 78
9.3.3 Resettlement in a third Country........................................................................................ 78
9.4 Principle of Nonrefoulement ................................................................................................................ 79
9.5 Principal Assistance Agencies ............................................................................................................. 80
9.5.1 United Nations High Commissioner for Refugees ..................................................... 80
9.5.2 International Committee of the Red Cross ................................................................... 80
9.5.3 The International Organization of Migration (IOM) ................................................. 81
9.6 National Protection and Service Agencies ..................................................................................... 81
Assessment ...................................................................................................................................................................... 82
Bibliography .................................................................................................................................................................... 82
Study Session 10 83
International Criminal Law ...................................................................................................................................... 83
Introduction ....................................................................................................................................................... 83
10.1 International Criminal Law ............................................................................................................... 83
10.2 International Mechanisms of Implementation ......................................................................... 84
10.3 International Crimes ............................................................................................................................ 84
10.4 Transitional Justice ............................................................................................................................... 85
Assessment ...................................................................................................................................................................... 86
Bibliography .................................................................................................................................................................... 86
Study Session 11 87
Terrorism ......................................................................................................................................................................... 87
Introduction ....................................................................................................................................................... 87
11.1 Meaning of Terrorism .......................................................................................................................... 87
11.2 Types of Terrorist Incidents ............................................................................................................. 88
11.2.1 Bombings.................................................................................................................................. 88
11.2.2 Kidnappings and Hostage-Takings................................................................................ 89
11.2.3 Armed Attacks and Assassinations ............................................................................... 89
11.2.4 Arsons and Fire bombings ................................................................................................ 89
11.2.5 Hijackings and Skyjackings............................................................................................... 89
11.2.6 Cyber terrorism ..................................................................................................................... 89
11.3 International Conventions against Terrorism .......................................................................... 90
11.4 Obligations Established by International Treaties against Terrorism ........................... 91
Assessment ...................................................................................................................................................................... 93
Bibliography .................................................................................................................................................................... 94
Study Session 12 94
International Trade Law ............................................................................................................................................ 94
Introduction ....................................................................................................................................................... 94
12.1 International Trade Law ..................................................................................................................... 95
12.1.1 The World Trade Organization ....................................................................................... 95
12.1.2 The United Nations Commission on International Trade (UNCITRAL) ........ 97
12.3 Sources of International Trade Law .............................................................................................. 97
Assessment ...................................................................................................................................................................... 98
Bibliography .................................................................................................................................................................... 98
Study Session 13 99
International Environmental Law ......................................................................................................................... 99
Introduction ....................................................................................................................................................... 99
13.1 International Environmental Law ............................................................................................... 100
13.2 Established Norms of International Environmental Law.................................................. 102
13.2.1 Principle 21 of the 1972 Stockholm Declaration on the Human
Environment ...................................................................................................................................... 102
13.2.2 The Duty of a State to Notify and Consult................................................................ 102
13.2.3 The Duty of a State to Monitor and Assess Environmental Conditions ...... 102
13.2.4 Citizens’ Right to a Decent and Healthy Environment ....................................... 102
13.2.5 The Polluter Pays Principle ........................................................................................... 103
13.2.6 The Precautionary Principle ......................................................................................... 103
13.2.7 Environmental Impact Assessment ........................................................................... 103
Contents vi
13.2.8 Inviting the Input of Nongovernmental Organizations (NGOs) ..................... 103

13.2.9 Principle of Sustainable Development...................................................................... 103
13.2.10 Intergenerational Equity.............................................................................................. 104
13.2.11 the Principle of Common Heritage of Humanity ................................................ 104
13.2.12 the Principle of Common but Differentiated Responsibilities ..................... 104
13.3 Environmental Dispute Resolution ............................................................................................. 104
13.3.1 Panels of Environmental Experts................................................................................ 105
13.3.2 Multilateral Environmental Agreements ................................................................. 105
Study Session Summary .......................................................................................................................................... 105
Assessment ................................................................................................................................................................... 106
Bibliography ................................................................................................................................................................. 106
Study Session 14 106

Enforcement of International Law ..................................................................................................................... 106
Introduction .................................................................................................................................................... 106
14.1 Implementation and Enforcement of International Law ................................................... 107
14.1.1 Enforcement Tactics ......................................................................................................... 108
Reciprocity .............................................................................................................................. 108
Collective Action ................................................................................................................... 108
Shaming .................................................................................................................................... 108
14.2 Dispute Resolution ............................................................................................................................. 108
14.2.1 Negotiation ........................................................................................................................... 108
14.2.2 Inquiry .................................................................................................................................... 109
14.2.3 Mediation and conciliation ............................................................................................ 109
14.2.4 Arbitration ............................................................................................................................ 109
14.2.5 Judicial Settlement ............................................................................................................ 109
14.2.6 Binding Mechanisms ........................................................................................................ 110
14.2.7 Non-Binding Mechanisms .............................................................................................. 110
Reporting ................................................................................................................................. 110
State Complaints................................................................................................................... 110
Individual Complaints ........................................................................................................ 110
Independent Monitoring of Compliance .................................................................... 110
14.3 Use of Force ........................................................................................................................................... 111
14.3.1 Unilateral Use of Force .................................................................................................... 111
14.3.2 Collective Use of Force..................................................................................................... 111
14.4 Peacekeeping Operation .................................................................................................................. 113
Assessment ................................................................................................................................................................... 114
Bibliography ................................................................................................................................................................. 114
Study Session 15 115

International Law in Nigeria ................................................................................................................................. 115
Introduction .................................................................................................................................................... 115
15.1 Nigeria in the World .......................................................................................................................... 115
15.2 International Law in Nigeria’s Domestic Law ........................................................................ 116
15.3 Implementation of International Law in Nigeria .................................................................. 116
15.3.1 Domestic Implementation of International Human Rights ............................. 117
15.3.2 Nigeria’s Compliance with International Humanitarian Law Standards ... 117
15.3.3 Domestic Implementation of International Criminal Law ............................... 118
Assessment ................................................................................................................................................................... 119
Bibliography ................................................................................................................................................................. 119
References 120
About this course manual
About this course manual

Principles of International Law POS551 has been produced by University
of Ibadan Distance Learning Centre. All course manuals produced by
University of Ibadan Distance Learning Centreare structured in the same
way, as outlined below.
How this course manual is

structured
The course overview
The course overview gives you a general introduction to the course.
Information contained in the course overview will help you determine:
 If the course is suitable for you.
 What you will already need to know.
 What you can expect from the course.
 How much time you will need to invest to complete the course.
The overview also provides guidance on:
 Study skills.
 Where to get help.
 Course assignments and assessments.
 Margin icons.
We strongly recommend that you read the overview carefully before

starting your study.
The course content

The course is broken down into Study Sessions. Each Study Session
comprises:
 An introduction to the Study Session content.
 Study Session outcomes.
 Core content of the Study Session with a variety of learning activities.
 A Study Session summary.
 Assignments and/or assessments, as applicable.
 Bibliography
9
POS551 Principles of International Law
Your comments
After completing Principles of International Law we would appreciate it
if you would take a few moments to give us your feedback on any aspect
of this course. Your feedback might include comments on:
 Course content and structure.
 Course reading materials and resources.
 Course assignments.
 Course assessments.
 Course duration.
 Course support (assigned tutors, technical help, etc.)
Your constructive feedback will help us to improve and enhance this
course.
To offer comment, visit UIDLC Open and Distance Learning Course
Manuals page on Facebook or click here.
10
Course Overview
Course Overview
Welcome to Principles of
International Law POS551
POS551 is a three unit elective course that exposes learners to
fundamental principles of international law and the historical
development of these laws. International law today is more complex and
more interesting than at any time in history. Conflicts in Iraq,
Afghanistan, Syria, Liberia and the broader fight against global terrorism
involve many areas of international law covered in this course, including
the laws of war; war crimes and tribunals; the UN Charter; and the
concept of universal jurisdiction. More generally, this course serves as a
basic introduction to the rules, procedures, institutions and actors that are
involved in the development, enforcement and adjudication of public
international law. We will cover the nature and sources of international
law; the role and influence of states, non-governmental organizations and
international organizations; the law of treaties; customary international
law; jurisdiction and immunities; the interpretation of international law
by Nigerian courts; the law governing the use of force; international
dispute resolution; and the role of the United Nations and of international
judicial bodies. The course will also offer a brief survey of specific fields
within international law -- for example, human rights, law of the sea,
international trade law, international criminal law and international
environmental law -- with an emphasis on such current challenges as
international terrorism, the global financial crisis and climate change.
Course outcomes
Upon completion of Principles of International Law POS551 you will be
able to:
 discuss how international law has developed over time.
 Point out issues that international law seeks to resolve.
 discuss the difficulties in enforcement of international law.
Outcomes  analyze how power and politics influence the formation, application,
and enforcement of international law.
 evaluate the effectiveness of international law in resolving
transnational disputes.
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Timeframe
This is a 15 week course. It requires a formal study time of 45 hours. The
formal study times are scheduled around online discussions / chats with
your course facilitator / academic advisor to facilitate your learning.
Kindly see course calendar on your course website for scheduled dates.
You will still require independent/personal study time particularly in
How long? studying your course materials.
12
Course Overview
How to be successful in this

course
As an open and distance learner your approach to learning will be
different to that from your school days, where you had onsite education.
You will now choose what you want to study, you will have professional
and/or personal motivation for doing so and you will most likely be
fitting your study activities around other professional or domestic
responsibilities.
Essentially you will be taking control of your learning environment. As a
consequence, you will need to consider performance issues related to
time management, goal setting, stress management, etc. Perhaps you will
also need to reacquaint yourself in areas such as essay planning, coping
with exams and using the web as a learning resource.
We recommend that you take time now—before starting your self-
study—to familiarize yourself with these issues. There are a number of
excellent resources on the web. A few suggested links are:
 http://www.dlc.ui.edu.ng/resources/studyskill.pdf
This is a resource of the UIDLC pilot course module. You will find
sections on building study skills, time scheduling, basic concentration
techniques, control of the study environment, note taking, how to read
essays for analysis and memory skills (―remembering‖).
 http://www.ivywise.com/newsletter_march13_how_to_self_study.htm
l
This site provides how to master self-studying, with bias to emerging
technologies.
 http://www.howtostudy.org/resources.php
Another ―How to study‖ web site with useful links to time
management, efficient reading, questioning/listening/observing skills,
getting the most out of doing (―hands-on‖ learning), memory building,
tips for staying motivated, developing a learning plan.
The above links are our suggestions to start you on your way. At the time
of writing these web links were active. If you want to look for more, go to
www.google.com and type ―self-study basics‖, ―self-study tips‖, ―self-
study skills‖ or similar phrases.
13
Need help?
As earlier noted, this course manual complements and supplements
POS551at UI Mobile Class as an online course, which is domiciled at
www.dlc.ui.edu.ng/mc.
Help You may contact any of the following units for information, learning
resources and library services.
Distance Learning Centre (DLC) Head Office

University of Ibadan, Nigeria Morohundiya Complex, Ibadan-
Ilorin Expressway, Idi-Ose,
Tel: (+234) 08077593551 – 55
Ibadan.
(Student Support Officers)
Email: ssu@dlc.ui.edu.ng
Information Centre Lagos Office

20 Awolowo Road, Bodija, Speedwriting House, No. 16
Ajanaku Street, Off Salvation
Ibadan.
Bus Stop, Awuse Estate, Opebi,
Ikeja, Lagos.
For technical issues (computer problems, web access, and etcetera),

please visit: www.learnersupport.dlc.ui.edu.ng for live support; or send
mail to webmaster@dlc.ui.edu.ng.
Academic Support
A course facilitator is commissioned for this course. You have also been
assigned an academic advisor to provide learning support. The contacts of
your course facilitator and academic advisor for this course are available
at the course website: www.dlc.ui.edu.ng/mc
Help
Activities
This manual features ―Activities,‖ which may present material that is
NOT extensively covered in the Study Sessions. When completing these
activities, you will demonstrate your understanding of basic material (by
answering questions) before you learn more advanced concepts. You will
Activities be provided with answers to every activity question. Therefore, your
emphasis when working the activities should be on understanding your
answers. It is more important that you understand why every answer is
correct.
14
Course Overview
Assessments
There are three basic forms of assessment in this course: in-text questions
(ITQs) and self-assessment questions (SAQs), and tutor marked
assessment (TMAs). This manual is essentially filled with ITQs and
Assessments SAQs. Feedbacks to the ITQs are placed immediately after the questions,
while the feedbacks to SAQs are at the back of manual. You will receive
your TMAs as part of online class activities at the UI Mobile Class.
Feedbacks to TMAs will be provided by your tutor in not more than 2
weeks expected duration.
Schedule dates for submitting assignments and engaging in course / class
activities is available on the course website. Kindly visit your course
website often for updates.
Bibliography
For those interested in learning more on this subject, we provide you with
a list of additional resources at the end of each Study Session; these may
be books, articles or websites.
Reading
15
Getting around this course manual

Margin icons
While working through this course manual you will notice the frequent
use of margin icons. These icons serve to ―signpost‖ a particular piece of
text, a new task or change in activity; they have been included to help you
to find your way around this course manual.
A complete icon set is shown below. We suggest that you familiarize
yourself with the icons and their meaning before starting your study.
Activity Assessment Assignment Case study
Discussion Group Activity Help Outcomes
Note Reflection Reading Study skills
Summary Terminology Time Tip
16
Study Session 1 Nature of International Law
Study Session 1
Nature of International Law
Introduction
This study session gives you a general overview of international law. We
will examine its meaning, functions and purposes, characteristics,
evolution, as well as the differences between international and domestic
laws. This will lay a foundation for all we shall learn in this course.
Learning Outcomes
When you have studied this session, you should be able to:
1.1 discuss the concept of international law.
1.2 describe the scope of international law.
1.3 differentiate between domestic and international laws.
1.4 explain how domestic law and international law interact.
1.5 explain the elements of international law.
1.1 Understanding International Law

1.1.1 Definition of International Law
Global village The whole We live in a large and complex world. It is a world in which what one
world considered as a single
community served by electronic
country does affects another. You may even be surprised to know that
media and information what you do as an individual may affects many others in the world. The
technology. world today as we see it is a global village where what affects one affects
many others. This section examines the concept of international law.
Can you imagine a society without laws and rules guiding it? Law and
International Law The order is essential in any society whether national or international.
principles, rules, and standards
that govern nations and other
participants in international Let us begin by explaining what law is. Law is a system of rules a
affairs in their relations with one
another.
society sets to maintain order and protect harm to persons and property. It
is a set of rules created by state institutions which make legal rules (laws)
through the authority of the state. The legal rules have sanctions which
Law and order The stability are recognized by the state and enforced by state authorized bodies. Law
created by the observance and is something that touches our lives on a daily basis, it governs what we
enforcement of the law within a
state. can and cannot do. It is used to settle disputes, to punish and to govern. It
forbids certain ways of behaving, for instance stealing, killing or
exceeding speed limits. There are laws which are widely accepted and
laws which generate controversy.
Laws play a central role in social, political and economic life. Without
laws, there is lawlessness, which often leads to a breakdown in society.
Law is therefore a formal mechanism of social control. For example,
there is a saying that a place where there is no law, then there is no
transgression or sin. In other words, if there is no law in a certain place
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that prohibits certain actions, then one cannot be accused of breaking a

law or get punished for it.
Another point you should note is that law is not the same everywhere. For
instance, what is considered an offence in one city may not be so in
another city. But once there is a laid down law about the offence in that
city, it becomes an offence. Another point to note is that law is not static.
It changes with change in society. Functions and purpose of law have
been changing with time and place. They depend on the nature of the
state. However, at present in a welfare and democratic state, there are
several important functions of law. In fact, the state interacts with and
protects its citizens throughout their lives, with the help of law.
According to Jeremy Bentham, the purpose of law is the maximisation of

the happiness of the greatest number of members of the community. And
to Salmond, the purpose of law is justice. Law is those principles which
are applied by the State in the administration of justice.
There are many categories of law. These include contract law, property
law, trust law, tort law, criminal law, constitutional law, administrative
law, and international law. Each of these sets the rules for a distinct area
of human activity.
In essence, therefore, law is a general set of principles imposed and

enforced on a given collectivity with the aim of regulating orderly and
peaceful co-existence. It is legally binding, obligatory, and any breach
could be punished.
 Law is something that touches our lives on a daily basis, it governs what we
can and cannot do. It is used to settle disputes, to punish and to govern.
 Law is not the same everywhere. For instance, what is considered an
offence in one city may not be so in another city.
Note
Now that we understand what law is, let us now examine international
International Organization law. International law is a system of rules, principles, and concepts that
A membership group that governs relations among states and, increasingly, international
operates across national borders organizations, individuals, and other actors in world politics. It also sets
for specific purposes.
out rules on many issues that states have agreed are of international
importance. International law covers a lot of things including Human
Rights, International peace and security, International trade, International
Crimes (Genocide, Crimes Against Humanity, War Crimes), The Law of
War (also known as International Humanitarian Law), Diplomatic
relations, Extradition, Investment treaties, Economic development,
Climate change, International dispute settlement, International monetary
affairs and so on. From this we can see that international law facilitates
the functioning of the international community, of which we are all a part
and on which we all depend. However, that is not all. Modern
international law also seeks to control states by inhibiting or directing
their conduct both in their relations with other states (e.g. the law
prohibiting the use of armed force to settle disputes) and in relation to
individuals, both individuals of other states (e.g. issues concerning the
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exercise of criminal jurisdiction) and its own nationals (e.g. the law of
human rights). It is the evolution of international law from a system that
was concerned primarily with facilitating international cooperation
among its subjects (states), to a system that is now much more engaged in
the control of its subjects that is the pre-eminent feature of the history of
international law
A major point you need to understand has to do with the structure of law
at the domestic and international levels. At the state level, law is
hierarchical. There are established structures for both making law and
enforcing law. People and groups living within the state are bound by
law. Because people believe that there is a need to maintain order within
the society, there is widespread compliance with the law. But if they fail
to comply with the law, the state authorities have the power to bring them
to justice and even sentence them to prison.
However, we need to note that there is an absence of higher governing

authority in the international community. Thus, although the idea and
functions of law are comparable with those at the state level, at the
international level, the characteristics of the system are different. In the
international system, there is no international executive, no international
legislature and no judiciary. There is no world government or
international police force to compel states to uphold their legal
obligations. The closest we have come to this is through the
establishment in 1945 of the United Nations, which is endowed, at least
in theory, with certain supranational powers, and through its principal
judicial organ, the International Court of Justice (ICJ). However, the ICJ
has no enforcement powers, and even the UN Security Council, which
has the ability to impose military and economic sanctions, possesses no
independent mechanism for ensuring compliance with its resolutions,
even though its decisions are technically binding on all UN members.
International law is thus ‗soft‘ law rather than ‗hard‘ law.
I am sure you are wondering how then law is maintained in the

international community. Interestingly, levels of compliance with
international law are very high, even by domestic standards. This is
sometimes referred to as the paradox of international law, as it reflects the
extent to which a system of international law can operate effectively
despite the absence of conventional compliance mechanisms. Although
there are variety of reasons, the main reason why states comply with
international law is that it is in their interests to do so. States do not need
to be forced to comply with the rules that they have, in the main, either
made themselves or explicitly consented to. This is sometimes called
utilitarian compliance, because states abide by laws because they
calculate that in the long run doing so will bring benefit or reduce harm.
Although the term ‗international law‘ came into common use only in the
nineteenth century, the idea of international law is much older and can be
traced back at least as far as to ancient Rome. Nevertheless, the origins of
international law as an institution are usually located in sixteenth- and
seventeenth-century Europe and the passage of a series of treaties that, in
establishing the rules of the emerging state-system, laid down the
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foundations of international public law. These treaties included the

following:
• The Peace of Augsburg, 1555 – this consisted of a series of treaties that,
amongst other things, reaffirmed the independence of German principali-
ties from the Holy Roman Empire, and allowed them to choose their own
religion.
• The Peace of Westphalia, 1648 – consisting of the Treaties of
Osnabrück and Münster, this initiated a new political order in central
Europe based on the principle of state sovereignty and the right of
monarchs to maintain standing armies, build fortifications and levy taxes.
• The Treaties of Utrecht, 1713 – these established the Peace of Utrecht,
which consolidated the principle of sovereignty by linking sovereign
authority to a fixed territorial boundary.
Hugo Grotius is generally considered the father of international law. His
work titled De Jure Belli ac Pacis, generally translated as The Law of
War and also Peace, is a very eclectic work. He mixes ideas of natural
law and positivism. The central theme of all conceptions of natural law is
the idea that law should conform to a set of prior ethical standards,
implying that the purpose of law is to enforce morality. However, the
idea of positive law sought to free the understanding of law from moral,
religious and mystical assumptions.
1.1.2 Branches of International Law

There are two branches of international law, private and public. Private
international law (also referred to as ‗conflict of laws‘) has to do with the
rights and duties of individuals as they are affected by overlapping
jurisdictions. It deals with controversies between private persons, natural
or juridical, arising out of situations having significant relationship to
more than one nation. That is, private international law means those rules
and principles according to which cases having foreign element are
decided. Private international law applies to individuals and not to States.
Moreover, the rules and principles of private international law vary from
State to State and there is no uniformity. Public international law, which
is the main concern of this course, consists of the rules, principles,
customs, and agreements that nation-states and other international entities
accept (or consent to) having the force of law in their relations. It
means body of rules which governs the conduct and relations of the states
with each other.
There is an absence of higher governing authority in the international

community. In the international system, there is no international executive, no
international legislature and no judiciary.
Note
Public international law covers relations between states in all their
numerous forms, from war to satellites, and regulates the operations of
the many international institutions. It may be universal or general, in
which case the stipulated rules bind all the states (or practically all
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depending upon the nature of the rule), or regional, whereby a group of

states linked geographically or ideologically may recognize special rules
applying only to them. International law is thus distinct from private
international law, which regulates dealings between individuals and
juridical persons from different nations.
Essentially, international law, often referred to as public international

law, is the universal system of rules and principles governing the
relations between sovereign states, and relations between states and
international organizations such as the United Nations. Although
international law is mostly made between states or in relation to states, its
effects are broader and can also affect other entities. Sometimes these are
called ‗non-State actors‘ and include individuals, corporations, armed
militant groups, groups that wish to secede or break away from a State,
and other collective groups of people, such as minorities (ethnic,
religious, linguistic) and Indigenous peoples.
Public international law covers relations between states in all their numerous
Hint forms, from war to satellites, and regulates the operations of the many
international institutions
In recent years, the line between public and private international law have
become increasingly uncertain. Issues of private international law may
also implicate issues of public international law, and many matters of
Treaty A formal contract or
agreement negotiated between private international law have substantial significance for the
countries or other political international community of nations.
entities and governed by
international law.
The law that seeks to make international law enforceable in Nigeria is
section 12 of the Constitution of the Federal Republic of Nigeria, 1999. It
provides that no treaty between the Federation and any other country
shall have the force of law except to the extent to which any such treaty
has been enacted into law by the National Assembly.
The line between public and private international law have became
increasingly uncertain. Issues of private international law may also implicate
issues of public international law, and many matters of private international
law have substantial significance for the international community of nations
Tip
1.2 Purpose and Scope of International Law

An important aspect of international law is resolving international
disputes, but it is only one part. Like any legal system, international law
is designed to regulate and shape behaviour, to prevent violations, and to
provide remedies for violations when they occur. Generally, international
law covers a wide range of matters and covers the following areas:
a) telecommunications, postal services and transportation (such as
Extradition The surrender of
an individual accused or carriage of goods and passengers);
convicted of a crime by the state b) international economic law (including trade, intellectual property
within whose territory he is and foreign investment);
found to the state under whose
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laws he is alleged to have c) international crimes and extradition;

committed or to have been
convicted of the crime. d) human rights and refugee protection;
e) the use of armed force by States and non-State actors;
f) terrorism and counter-terrorism regulation;
g) nuclear technology;
h) protection of the environment; and
i) use of the sea, outer space and so on.
Like any legal system, international law is designed to regulate and shape
behaviour, to prevent violations, and to provide remedies for violations
when they occur.
Tip
1.3 Difference between International Law and

Domestic Law
International law is concerned with the rights and duties of States in their
relations with each other and with international organizations. Domestic
(local or national) law, the law within a State, is concerned with the rights
and duties of legal persons within the State. International law differs from
domestic law in two central respects:
1.3.1 The Law-Making Process
There is no supreme law-making body in international law. Treaties are
negotiated between States on an ad hoc basis and only bind States which
are parties to a treaty. The General Assembly of the United Nations, for
instance, is not a law-making body, and so its resolutions are not legally
binding. However, UN Security Council resolutions to take action with
respect to threats to peace, breaches of the peace, and acts of aggression,
are binding on the 193 member States.
1.3.2 Enforcement
International law has no international police force to oversee obedience to
the international legal standards to which States agree or that develop as
international standards of behaviour. Similarly, there is no compulsory
enforcement mechanism for the settlement of disputes. However, there
are an increasing number of specialized courts, tribunals and treaty
monitoring bodies as well as an International Court of Justice (we shall
discuss this extensively in another unit).
Charter A formal written National laws and courts are often an important means through which
statement of the aims, principles,
and procedures of an
international law is implemented in practice. In some instances, the
organization. Security Council can authorize the use of coercive economic sanctions or
even armed force. For example, in 1990 – 91 when Iraq invaded and
occupied Kuwait the international community used armed force to
enforce international law (resolutions of the Security Council).
Subsequent controversy about the use of armed force against Iraq
highlights how difficult it can be to obtain the necessary authorization
from the Security Council under the United Nations Charter. In
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international law, that is the only legitimate way that collective armed
force can be used.
International law has no international police force to oversee obedience to the

international legal standards to which States agree … there is no compulsory
enforcement mechanism for the settlement of disputes. However, there are an
increasing number of specialized courts, tribunals and treaty monitoring bodies
Note as well as an International Court of Justice.
In general, international law is enforced through methods such as national

implementation, diplomatic negotiation or public pressure, mediation,
conciliation, arbitration (a process of resolving disputes other than by
agreement), judicial settlement (including specialized tribunals).
1.4 How International and Domestic Law Interact

It is important to understand how international law principles become
part of domestic law, and to explain what happens if the rules conflict.
The theories of monism and dualism are the two main theories that
explain the relationship between international and domestic law.
1.4.1 Monism
In this theory, all law is part of a universal legal order and regulates the
conduct of the individual State. The difference in the international sphere
is that the consequences are generally attributed to the State. Since all law
is part of the same legal order, international law is automatically
incorporated into the domestic legal order. Some monist theorists
consider that international law prevails over domestic law if they are in
conflict; others, that conflicting domestic law have some operation within
the domestic legal system. In essence, this theory characterizes
international and domestic law as a single legal system with domestic law
subordinate to international law.
In other words, monism stipulates that international and domestic law co-
exist in the national legal order. In monist legal orders the state's legal
system is considered to include international treaties without the need for
separate, domestic-level action. In this regard, the legal principles, rules
and norms in a national system include those of domestic law alongside
those derived from international law. In the monist school, the basic
position is that national and international law harmoniously coexist in the
national legal order.
Some proponents of monism posit that there is a hierarchical arrangement
of law involving international and domestic laws within the same legal
system. Some in this school of thought posit that international law is
superior to national law while others oppose this view. The monist view
that international is superior to domestic law requires that international
law will prevail in any conflict with domestic law, including domestic
law of a constitutional character. Naturally, the opponents accept the
concept of hierarchical arrangement of national and international laws in
the same legal system. Their point of departure is in their view that
national law is superior to international law. What remains constant in the
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monist approach is that international law is deemed to be automatically

incorporated into each nation's legal system.
Other proponents of monism argue that domestic and international law
are interwoven in such a manner that there is no hierarchical relationship
between the two. Argument has been made that international law should
invalidate inconsistent national law. Examples of States with a monistic
system are Belgium, France, Germany and the Netherlands.
1.4.2 Dualism
This theory holds that international law and domestic law are separate
bodies of law, operating independently of each other. Under dualism,
rules and principles of international law cannot operate directly in
domestic law, and must be transformed or incorporated into domestic law
before they can affect individual rights and obligations. In other words,
international legal norms bind the states, but they are applied by the
domestic authorities and may be invoked before domestic courts only
after they have been transformed into national law, either by a rule of
national law having that effect or by the adoption of legislation
containing the rights and/or obligations laid down in the international
legal rule concerned. The main differences between international and
domestic law are thought to be the sources of law, its subjects, and
subject matter. International law derives from the collective will of
States, its subjects are the States themselves, and its subject matter is the
relations between States. Domestic law derives from the will of the
sovereign or the State, its subjects are the individuals within the State,
and its subject matter is the relations of individuals with each other and
with government. Thus, the dualists maintain that international and
municipal have a separate and parallel existence. To the dualists,
domestic law regulates the relationship between persons and entities
within the territory of the state while international law regulates the
relationships of members of the international community which includes
states and international organisations. Examples of States with a dualistic
system are Britain, Sweden and Nigeria.
 Monist states are those where international law is automatically part of the
domestic legal framework. However, their exact status — whether above or
on par with a state’s constitution or domestic law — varies.
 Dualist states are those where international treaty obligations only
become domestic law once they have been enacted by the legislature. Until
this has happened, courts are not expected to comply with these obligations
in a domestic case, although there are states wherein some parts of
international law may be automatically applied or used as a tool to interpret
domestic law.
1.4.3 Harmonization of Monism and Dualism

How then do we harmonize the two theories? Neither monism nor
dualism can adequately explain the relationship between international and
domestic law. One of the main critiques of both theories is that no state‘s
system is strictly monist or dualist. Instead, international law may be
treated in a variety of ways by the different institutions of a state. For
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example, courts may use international law in ways that a parliament does
not. Or a state may allow for the direct incorporation of customary
international law, but require international treaties to be transformed into
domestic legislation before they can have direct effect within a state.
Some states see international law as having a harmonization role. If there
is a conflict, domestic law is applied within the domestic legal system,
leaving the State responsible at the international level for any breach of
its international law obligations. Some countries like, South Africa for
example, make provisions for the two approaches.
1.5 Foundation of International Law

1.5.1 Jus Gentium
Jus gentium (―law common to all men‖) was originally part of Roman
law that the Romans applied to its dealings with foreigners, especially
provincial subjects. Presently, it is used to refer to the natural or common
law among nations considered as States within a larger human society,
especially governing the rules of peace and war, national boundaries,
diplomatic exchanges, and extradition. Together with jus inter gentes, jus
gentium makes up Public International Law.
1.5.2 Jus Inter Gentes
Jus inter gentes (which literarily means ―laws between the peoples‖)
consists of agreements between nations and includes the body of treaties,
UN conventions, international agreements, and internationally recognized
human rights.
Thus far, will you consider international law as real

law?
Discussion
Activity Post your response on Study Session One forum page on course website.
You may see schedule date on course blog.
Study Session Summary

In this Study Session, we discussed that laws play a central role in social,
political and economic life. Without laws, there is lawlessness, which
often leads to a breakdown in society. Law is therefore a formal
Summary mechanism of social control. International law, often referred to as
public international law, is the universal system of rules and principles
25
governing the relations between sovereign states, and relations between

states and international organizations such as the United Nations.
Whereas, international law is concerned with the rights and duties of
states in their relations with each other and with international
organizations, domestic (local or national) law, the law within a State, is
concerned with the rights and duties of legal persons within the State.
The theories of monism and dualism are the two main theories that
explain the relationship between international and domestic law.
Basically, the dualist theory holds international law and domestic law to
be two distinct and separate laws. The monist theory considers
international law and municipal law to constitute only one system of
law.
Assessment
1. What is the fundamental premise of monist theory?
2. How does international law differ from domestic law?
Assessment 3. Why is it in the interest of states to obey international law?
4. What is the significance of Hugo Grotius to the development of international
law?
Bibliography
Cassese, A. (2005) International Law. Oxford: Oxford University Press.
(second edition).
Dixon, M. (2005) Textbook on International Law. Oxford: Oxford
University Press (fifth edition).
Reading
Kaczorowska, A. (2005) Public International Law. London: Old Bailey
Press (third edition).
Brownlie, I. (2019). Principles of Public International Law. (7th ed.).
Oxford: Oxford University Press.
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Study Session 2 Sources of International Law
Study Session 2
Sources of International Law
Introduction
In the last Study Session, we took a cursory look at international law. We
examined its meaning, functions and purposes, evolution, as well as the
differences between international and domestic laws. In this Study
Session, we will explore the sources of international law.
Learning Outcomes
2.1 explain the various sources of international law.
2.2 discuss the general principles of law.
2.1 Sources of International Law

International law is derived from various sources. The generally
recognized authoritative statement on the sources of international law is
the Statute of the International Court of Justice (ICJ) (or ―World Court‖)
which is the principal judicial organ of the United Nations (UN), located
in The Peace Palace in The Hague, the Netherlands. The Statute of the
International Court of Justice is a treaty setting out the powers and
functions of the ICJ. Article 38(1) of the Statute specifies that the Court,
in deciding disputes, shall apply:
 international conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
 international custom, as evidence of a general practice accepted as
law;
 the general principles of law recognized by civilized nations;
 subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
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In relations to Article 59 of the Statute of the International Court of Justice, a

decision of the ICJ has no binding force except between parties and in respect
of that particular case.
Note
The first three of these – treaties, custom, and principles of law – are
sometimes referred to as ―primary sources‖ of international law. The last
two – judicial decisions and the teachings of publicists – are sometimes
referred to as ―secondary sources‖ or evidence of international law rules.
The International Court of Justice (ICJ), which is the principal judicial
organ of the United Nations, is authorized to consider these sources when
deciding disputes. However, in relations to Article 59 of the Statute of the
International Court of Justice, a decision of the ICJ has no binding force
except between parties and in respect of that particular case. Now let us
examine each of these sources.
2.1.1 Treaties
International Relations The The primary source of international law today is treaties, also known as
study and practice of political
relationships among the world’s
conventions. They play a major role in international relations. Evans &
nations, especially their Newnham (1998) defines a treaty as ―a written contract or agreement
governments. between two or more parties which is considered binding in international
law‖.
The law of treaties is now set out in the 1969 Vienna Convention on the
Law of Treaties which contains the basic principles of treaty law, the
procedures for how treaties becoming binding and enter into force, the
consequences of a breach of treaty, and principles for interpreting treaties.
The Vienna Convention on the Law of Treaties was adopted in 1969, and
entered into force on 27 January 1980 after ratification by 35 countries.
Article 2.1(a) of the 1969 Vienna Convention defines a treaty as: ―an
international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular
designation.‖ The Vienna convention thus deals with the conclusion of
treaties, the termination of treaty relationships, and the effect of breach of
treaty obligations. It does not deal with treaties between States and non-
State organizations; questions of State succession; or the effect of war on
treaty obligations and relationships.
Treaties are referred to by different names including convention,
agreement, pact, protocol, charter, statute, covenant, engagement, accord,
exchange of notes, modus vivendi, and memorandum of understanding.
The basic principle underlying the law of treaties is pacta sunt servanda
which means every treaty in force is binding upon the parties to it and
must be performed by them in good faith (i.e. all parties are to deal
honestly and fairly with each other). The other important principle is that
treaties are binding only on States parties. They are not binding on third
States without their consent.
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The Vienna convention deals with the conclusion of treaties, the

termination of treaty relationships, and the effect of breach of treaty
Hint obligations. It does not deal with treaties between States and non-State
organizations; questions of State succession; or the effect of war on
treaty obligations and relationships.
Treaties are therefore, agreements between states, between states and

international organizations, or between international organizations. They
spell out privileges and obligations in their relations among each
other. Treaties may be between as few as two states or as many as the
entire number of states in the world. Treaties can be bilateral,
multilateral, regional and global. A bilateral treaty is an agreement
between two parties, while multilateral treaties are agreements signed
by more than two states like the 1968 Nuclear Non-Proliferation Treaty
(NPT).
A treaty is based on consent. Such consent may be expressed by one of
the accepted methods (signature, ratification, accession, etc.). Once a
treaty has entered into force, it is binding on the parties to it. In other
word, treaties are entered into freely by the consenting parties. It is within
the discretion of each state to participate in the negotiation of, or to sign
or ratify, any international treaty.
The basic principle underlying the law of treaties is pacta sunt servanda
which means every treaty in force is binding upon the parties to it and must
be performed by them in good faith (i.e. all parties are to deal honestly and
Reflection fairly with each other).
Nigeria followed the practice of the United Kingdom in treaty-making

practice for a very long time until 1979 when the power of treaty –
making became vested in the Executive. In terms of ratification and
implementation of treaties, the power vests with both the Executive and
the Legislature. For a treaty validly concluded between Nigeria and
another country to have the force of law in Nigeria, it must be enacted
into law by the National Assembly. Such a treaty requires an enabling act
of the country‘s legislative body.
There are thousands of treaties. Some of the most important are the
Charter of the United Nations, the International Covenant on Civil and
Political Rights, and the Charter of the European Union. Treaties range
from those defining the status of territory, such as the 1984 Agreement on
the future of Hong Kong between the UK and China, to those dealing
with the rights or obligations of individuals such as the International
Covenant on Civil and Political Rights 1966 and the Statute of the
International Criminal Court 1998, to those multilateral treaties instituting
specific legal regimes such as the 1959 Antarctic Treaty and the 1961
Vienna Convention on Diplomatic Relations.
Characteristics of Treaty
There are two important points I want you to take note of about treaties:
Treaties are Binding
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The principle of pacta sunt servanda (the principle that all agreements
and treaties which are in force should be observed in good faith) asserts
that:
 when treaties are properly concluded, they are binding on
the parties, and must be performed by them in good faith;
 the obligations created by a treaty are binding in respect
of a State‘s entire territory;
 a State cannot use inconsistency with domestic law as an
excuse for failing to comply with the terms of a treaty.
Reservations to Treaties
Once a treaty comes into force, a State cannot decide which parts of a
treaty it chooses to be bound by. However, upon signing a treaty, a State
may lodge a formal reservation to it which may modify the scope of the
legal obligation owed by that State under the treaty. A reservation is a
unilateral statement, however phrased or named, made by a State when
signing, ratifying, accepting, approving or acceding to a treaty, whereby
it purports to exclude or to modify the legal effect of certain provisions of
the treaty in their application to the State. A reservation cannot be made if
the terms of the treaty exclude reservations, or if the reservation is
incompatible with the object and purpose of the treaty; and other parties
to the treaty can also object to a reservation. A party objecting to a
reservation may either not enter into a treaty relationship with the
reserving State, or may enter into a treaty relationship, but not enjoy the
provision to which the reservation relates.
According to Article 19 of the Vienna Convention on the Law of
Treaties, generally, States may make reservations. EXCEPT WHEN:
(1) Reservation is prohibited by the treaty
(2) The treaty provides for only specified reservations
(3) When the reservation would be contrary to the object and purpose of
the treaty
A treaty enters into force on the date the parties agreed to. If there is no
such agreement, then the treaty enters into force on the date of consent. A
treaty may be provisionally applied when the treaty itself provides, or
when the negotiating parties so agree.
2.1.2 Customary International Law
The second most important source of international law is customary
international law or what is simply called ‗customs‘. They are unwritten
and are derives from the actual practices of nations over time. To be
accepted as law, the custom must be long-standing, widespread, and
practiced in a uniform and consistent way among nations. Before treaties
became as important as they are today, customary international law was
the leading source of international law. Customary international law
stems from the common practice of states in their dealings with each
other.
30
Customs are unwritten and are derives from the actual practices of nations
over time. To be accepted as law, the custom must be long-standing,
widespread, and practiced in a uniform and consistent way among nations.
Tip
Rules of customary international law bind all States. The State alleging
the existence of a rule of customary law has the burden of proving its
existence by showing a consistent and virtually uniform practice among
States, including those States specially affected by the rule or having the
greatest interest in the matter. In other words, the task of identifying or
describing customary international law, involves consideration of the
following elements:
a) the degree of consistency and uniformity of the practice;
b) the generality and duration of the practice;
c) the interests of specially affected States; and
d) the degree to which the States who adopt the practice do so from
a recognition that the practice is required by, or consistent with
prevailing international law.
Genocide The systematic Some examples of rules of customary law are (a) giving foreign
killing of all the people from a
national, ethnic, or religious
diplomats criminal immunity; (b) treating foreign diplomatic premises as
group, or an attempt to do this. inviolable; (c) recognizing the right of innocent passage of foreign ships
in the territorial sea; (d) recognizing the exclusive jurisdiction of the flag
State on the high seas; (5) ordering military authorities to respect the
territorial boundaries of neighbouring States; and (6) protecting non-
combatants such as civilians and sick or wounded soldiers during
international armed conflict.
Note that there are some principles of international law, however, that
have become so widely accepted that they are now considered to be
fundamental principles and rules that may not be altered or broken. Such
principles currently include the prohibitions against slavery and torture,
genocide, the use of armed force, and piracy on the high seas; and more
positively, the principle of racial non-discrimination; and, the right to
self-determination. These principles of international law are known as jus
cogens. In Latin this means ‗compelling law‘ and refers to ‗peremptory
norms‘ of general international law. Rules of jus cogens are rules of
customary international law that are so fundamental that they cannot be
modified by treaty. In time, new principles may become part of the jus
cogens.
2.1.3 General Principles of Law

Included in the list of sources of international law in Article 38 of the
International Court of Justice Statute are ―general principles of law
recognized by civilized nations‖ (i.e. general principles of fairness and
justice which are applied universally in legal systems around the world).
These are general principles that apply in all major legal systems. These
principles essentially provide a mechanism to address international issues
not already subject either to treaty provisions or to binding customary
31
rules. Such general principles may arise either through municipal law or
through international law, and many are in fact procedural or evidential
principles or those that deal with the machinery of the judicial process.
International tribunals rely on these principles when they cannot find
authority in other sources of international law.
General principles of law therefore provide a source of law, ensuring that
there is no gap in the law. They are usually used when no treaty provision
or clear rule of customary law exists. The phrase refers not to the rules of
law themselves but to the general propositions underlying the various
rules of law, such as the principle that no one should be the judge in his
own cause. Another example is the principle that persons who
intentionally harm others should have to pay compensation or make
reparation. Other examples of these general principles of law include
pacta sunt servanda (good faith), res judicata (a case already decided in
court cannot be tried again), and the impartiality of judges.
2.1.4 Judicial Decisions and Writings of Publicists
Article 38 lists only two subsidiary means - judicial decisions and the
teachings of the most highly qualified publicists of the various nations.
Traditionally, judicial decisions and writing of publicists do not
themselves form a source of international law, but help the Court to
identify the scope of customary law, proper interpretation of a treaty, or
existence of general principles.
Principles of international law have become so widely accepted and may not
be altered or broken. Such principles currently include the prohibitions
Hint against slavery and torture, genocide, the use of armed force, and piracy on
the high seas; and more positively, the principle of racial non-discrimination;
and, the right to self-determination.
The International Court of Justice (ICJ) is the main court of the UN and
its decisions identify and articulate international law rules based on
treaty, custom, general principles of law, judicial decisions of
international and national courts and tribunals, and the writings of jurists.
The long standing dispute between Nigeria and Cameroun over the
ownership of the Bakassi Peninsula, which was apparently laid to rest by
the ruling of the International Court of Justice, provides an example of
judicial arbitration at the international level. The ownership of the
Bakassi Peninsula, and other territories on the Nigeria-Cameroun border,
was a protracted dispute that involved several attempts by leaders and
representatives of both countries to resolve, although without success.
However, both countries agreed to the adjudication of the International
Court of Justice which was in favour of Cameroon.
In essence, judicial decisions are rulings and judgments of the
International Court of Justice (ICJ), and other international bodies
(including arbitration panels, specialist tribunals and regional courts such
as the European Court of Justice and the European Court of Human
Rights), which can be used to enhance or understand what international
law says about a particular case. In addition to the Permanent Court and
the International Court of Justice, the phrase 'judicial decisions' also
encompasses international arbitral awards and the rulings of national
32
courts. There have been many international arbitral tribunals, such as the
Permanent Court of Arbitration created by The Hague Conferences of
1899 and 1907 and the various mixed claims tribunals, including the Iran-
US Claims Tribunal, and, although they differ from the international
courts in some ways, many of their decisions have been extremely
significant in the development of international law. This can be seen in
the existence and number of the Reports of International Arbitral Awards
published since 1948 by the United Nations.
Writings by publicists are another subsidiary means. A publicist is an
expert, usually a professor of international law or someone who has had
extensive foreign-office experience, who has achieved status as a result of
objective researches into area of international law. The ―teachings of the
most highly qualified publicists‖ include both the views of individual
scholars and experts and, more importantly, opinions from internationally
renowned bodies such as the International Law Commission (ILC). An
opinion of an international body such as the ILC or of a highly respected
private institution comprised of respected lawyers from many different
legal systems would be accorded greater weight than a national judicial
decision or an individual academic view on a point of international law
2.1.4 Other Sources of International Law
Other sources treated similarly to the writings of eminent publicists, and
at least as authoritative are:
 the reports, research and draft articles produced by the
International Law Commission (a subsidiary organ of the UN
General Assembly responsible for the progressive development
and codification of international law: UN Charter, Article
13(1)(a));
 resolutions and working papers of expert bodies; and
 the workings of secretariats providing the legal basis for
conferences and working groups such as the Hague Codification
Conference.
Look up the Alabama Claims arbitration, which marked the opening of a new
era in the peaceful settlement of international disputes, in which increasing use
was made of judicial and arbitration methods in resolving conflicts.
What was the significance of the Alabama claims arbitration?
Visit the link below or copy into your browser:
Reading Activity Link: https://history.state.gov/milestones/1861-

1865/alabama#:~:text=The%20arbitration%20commission%2C%20which%20i
15 minutes ssued,compensation%20for%20the%20Alabama%20claims
How will you consider the ruling of the International Court of Justice on the
long standing dispute between Nigeria and Cameroun over the ownership of
the Bakassi Peninsula.
33
Discussion Post your response on Study Session Two forum page on

Activity course website. You may see schedule date on course
blog.

In this Study Session, we explored various sources of international law
as contained in Article 38 of the Statute of the International Court of
Justice. These include treaties, custom, and principles of law ―primary
Summary sources‖, judicial decisions and the teachings of publicists ―secondary
sources‖.
We also discussed the general principles of law, which are principles of
domestic law that are common to the legal systems of the world.
International tribunals must have recourse to rules typically found in
domestic courts and domestic legal systems in order to address
procedural and other issues. Other sources are: judicial decisions (rulings
and judgments of the International Court of Justice (ICJ), and other
international bodies) and writings by experts in international law.
Assessment
1. Where does international law come from?
2. Did Article 38 of the Statute of the International Court of Justice
comprehensively define the sources of international law?
Assessment
3. What functions do treaties perform in international relations?
4. What is pacta sunt servanda?
5. What makes customary international law important?
Bibliography
Cassese, A. International Law (Oxford: Oxford University Press, 2005)
second edition.
Statute of the International Court of Justice. Available at:
https://www.icj-cij.org/statute
Reading
Vienna Convention on the Law of Treaties available online at
http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_196
9.pdf
Thirlway, H. (2014) The Sources of International Law (Oxford: Oxford
34
Subjects of International Law
University Press).
Study Session 3
Subjects of International Law
Introduction
In this study session, we shall examine the subjects of international law.
Is it only states that have rights and responsibilities under international
law? What are the criteria that a state must fulfill for it to even be called
one? These and many more issues will be discussed in this Study Session
35
Learning Outcomes
3.1 point out the subjects of international law.
3.2 discuss the importance of ‗recognition‘ on statehood.
3.3 evaluate the roles of international organizations as subjects of
international law.
3.4 explain characteristics of insurgents as subject of international law.
3.5 discuss the elements of National Liberation Movements..
3.6 highlight the reasons for the individual as subject of international law.
3.7 discuss the characteristics of Sui Generis Entities under international
law.
3.1 Subjects of International Law

Subjects of International Law can be described as those persons or
entities that possess international personality. Throughout the 19th
century, only States qualified as subjects of international law. After, the
Second World War, more and more new actors emerged in the
international legal arena such as the intergovernmental organizations
created by States, Non-Governmental Organizations (NGOs) created by
individuals, multinationals and even natural persons (i.e. individuals). A
subject of international law is thus an entity that has rights and
responsibilities under that law. It has an international personality that it
can directly assert rights and be held directly responsible under the law of
nations.
The main capacities of an international legal entity are, first, the ability to
make claims before international (and national) tribunals in order to
vindicate rights given by international law. Secondly, to be subject to
some or all of the obligations imposed by international law. Thirdly, to
have the power to make valid international agreements binding in
international law. Fourthly, to enjoy some or all of the immunities from
the jurisdiction of the national courts of other states, this being an
attribute of an international legal person that is not available to the
subjects of each state‘s national legal system.
Insurgents The people who As mentioned earlier, generally, states are the subjects of international
rebels against authority or
leadership, especially belonging
law, having rights and obligations directly under international law. As
to a group involved in uprising. international law evolved, however, the following have become
recognized as subjects of international law:
1. International Organizations
2. Insurgents
3. National Liberation Movements
4. Individuals
Transnational Corporation
(TNC) The business that However, you need to note that the list is NOT exclusive. There are other
produces or distributes products recognized subjects of international law recognized to have international
or services in one or more legal personality, namely:
foreign countries by establishing
a branch or affiliate there. They - International Committee of the Red Cross
are often called multinational
36
Study Session 3 Subjects of International Law
corporation (MNC) or - Holy See

international corporation.
- International Public Companies
- Transnational Corporations
Thus, apart from states, other subjects of international law will have
personality in such measure and for such purposes as is necessary for
the achievement of their roles within the international legal system and
as is recognised by the system of international law.
3.2 States
From our discussion so far, you would have seen that the state is a very
important entity in the international system. So, what do we mean by a
state? A state may be defined as a group of people living together in a
defined territory under an independent government organized for political
ends and capable of entering into international relations. In other words,
according to the Montevideo Convention of 1933, a State as an
international person should possess the following characteristics:
1) Defined territory – there is no minimum requirement as to the
amount of territory. It is not necessary for all boundaries to be
defined and settled, so long as there is a consistent, coherent area of
territory over which the State exercises sovereignty (that is,
administrative or governmental control).
2) Permanent population – there is no minimum requirement as to
population. A population may be nomadic, yet be regarded as
sufficiently linked with the territory to be regarded as its population.
3) Government – a State must have an effective government, or some
coherent political structure able to exercise control over the
permanent population within the State‘s territory.
4) Independence – sometimes expressed as the capacity to enter into
relations with other States. A State must be able to deal with other
States on a basis of equality. Actual, as well as formal, independence
is required.
A State must have an effective government, or some coherent political

structure able to exercise control over the permanent population within her
territory.
Reflection
3.2.1 Fundamental Rights of the State

From the characteristics of a state highlighted above, we can draw out
three fundamental rights of States. These are: sovereignty, equality and
political independence/territorial Integrity.
Sovereignty
A State is entitled to exercise political control within its territory, and in
relation to its citizens. States have a corresponding duty not to intervene
in the internal affairs of other States.
37
Equality
All States have equal rights and duties and are equal members of the
international community. In the General Assembly of the UN each State
has one vote, irrespective of the realities of power.
Political Independence and Territorial Integrity
Article 2(4) of the UN Charter requires States to refrain in their
international relations from the threat of use of force against the political
independence and territorial integrity of any State.
3.2.2 Recognition of a State
A state has to be recognized as one in the international community.
Recognition of state means the act of acknowledging the capacity of an
entity to exercise rights belonging to statehood. Who gets to decide
whether the above conditions are met? There are two main theories on
recognition:
Declaratory Theory of Recognition
An entity is a state once the conditions of statehood are met regardless of
the attitude of other states towards the new entity. For instance, Article 3
of the Montevideo Convention states: ―The political existence of the state
is independent of recognition by the other states. Even before recognition
the state has the right to defend its integrity and independence, to provide
for its conservation and prosperity, and consequently to organize itself as
it sees fit, to legislate upon its interests, administer its services, and to
define the jurisdiction and competence of its courts. The exercise of these
rights has no other limitation than the exercise of the rights of other states
according to international law.‖
Constitutive Theory of Recognition
Only when other states decide that the above conditions are met, and
consequently acknowledge the legal capacity of the new state, is the new
state actually created. The constitutive theory has been criticized that: it
contradicts the principle of effectiveness; it is inconsistent with the
principle of sovereign equality of states; it is logically unsound since it
would allow an entity to be a state with respect to those states that have
recognized it, while lacking legal personality with respect to those that
have withheld recognition.
Recognition testifies to the will of recognizing states to undertake
international dealings with the new state, it shows that the recognizing
states consider the conditions of statehood met. The recognition or non-
recognition by one state is not binding on other states, but has a certain
amount of weight. Recognition is also legally relevant because it creates
estoppel, which prevents the recognizing party from later contesting or
denying the legal personality of the new state.
3.2.3 Recognition of Government
Recognition of government is the act of acknowledging the capacity of an
entity to exercise powers of government of a state. The recognition of
states is decided mainly on the basis of political considerations. Where a
38
new government is established through normal, constitutional processes,

there is no question regarding the recognition of that government. The
new government is entitled to all the rights and obligations under
international law. By contrast, when an entity comes to power through
non-constitutional means (for instance, though coup d‘état), it is not
automatically accorded such rights and obligations. The key issue for a
State when deciding whether to recognize a new government is whether
that government is in de facto control of its state.
3.3 International Organizations

As we mentioned earlier international organizations are now recognized
as subjects of international law. What is an international organization? An
international organization is a group with an international membership,
scope, or presence. International Organizations are established by States
through international agreements and their powers are limited to those
conferred on them in their constituent document.
International Organizations are established by States through international

agreements and their powers are limited to those conferred on them in their
constituent document.
Tip
There are two main types: international nongovernmental organizations

(INGOs) and international governmental organizations (IGOs). An INGO
is typically a voluntary, humanitarian, or charitable organization, but they
can also be a private foundation or business enterprise. An IGO is
typically made up of sovereign states, with notable examples being the
United Nations (UN), European Union (EU), or World Trade
Organization (WTO). Let us examine the UN which is the main
international organization that binds all countries together.
3.3.1 The United Nations
It is a body which possesses juridical and international personality and is
vested with prerogatives normally granted only to sovereign states. While
not a state, the UN has such powers as to enable it to send and receive
diplomatic agents, conclude treaties and govern territories.
Brief history of the UN
In the Moscow Declaration of General Security on November 1, 1943,
the UK, US, Soviet Union and China recognized the necessity of
establishing a general international organization based on principles of
sovereign equality of States for the maintenance of international peace
and security.
The initial blueprint of the organization was the Dumbarton Oaks
Proposals which contained the tentative proposals for a General
International Organization. The U.N Charter was signed on June 26, 1945
and upon ratification by the five permanent members of the Security
Council, came into force on October 25, 1945.
39
Membership
There are 2 kinds of members in the UN:
Original or Charter Members
Those states which having participated in the UN Conference on
International Organization or having previously signed the Declaration by
the United Nations, signed and ratified the Charter. Note: The
Philippines, Lebanon and Syria were included as original members
although they were not yet states at the time.
Elective Members
Other members may be admitted to the UN through the discretion of the
General Assembly upon a favourable recommendation by the Security
Council.
Qualifications to be Eligible for Elective Membership
(1) It must be a state
(2) It must be peace-loving
(3) It must accept, be willing, and be able to carry out the obligations
of the Charter
The UN Charter
It consists of 111 articles besides the Preamble and concluding
provisions. It also includes the Statute of the International Court of
Justice, which is an integral part of it. May be considered a treaty because
it derives it binding force from the agreement of the parties to it.
It is intended to apply not only to the members of the Organization but
also to non-Member states so far as may be necessary for the
maintenance of peace and security.
Purpose of the UN (Article 1 of the UN Charter)
 To maintain peace and security by taking collective measures to
suppress acts of aggression, and by bringing about peaceful
settlement of disputes.
 To develop friendly relations based on respect for the principle of
equal rights and self-determination of peoples.
 To achieve cooperation in solving international problems of an
economic, social, cultural and humanitarian character, and in
promoting respect for human rights and fundamental freedoms.
 To be a center for harmonizing the actions of nations in the
attainment of these common ends.
Seven Cardinal Principle of UN (Article 2, UN Charter)
Sovereign Equality
Based on one of the fundamental rights of states (i.e. the right to equality)
Good Faith
The UN Charter partakes in the nature of a treaty, and must be complied
with in good faith in accordance with the principle of pacta sunt
servanda..
40
Peaceful Settlement of Disputes

The most common amicable methods of settlement of disputes include
the active participation of the ICJ and Security Council. Efforts to settle
disputes must not endanger international peace, security and justice.
Prohibition on Threat and the Use of Force
This principle prohibits threat or force upon the territorial integrity or
political independence of states with certain exceptions. This categorical
outlaw of war is the most important principle.
Mutual Assistance
The efficacy of the UN will depend upon the cooperation extended to it
by the member-states.
Inclusion of Non-Members into the UN Charter Coverage
Domestic Jurisdiction Clause
The rule is, as long as the matter remains internal, it cannot be the subject
of intervention by the United Nations.
However, there are certain exceptions:
1. where the international conflict aggravates into a threat or to
an actual breach of international peace and security
2. where parties voluntarily invoke and submit to the
jurisdiction of the UN for the settlement of the dispute.
Organs of the United Nation
UN Charter established six main organs namely:
1. Security Council
2. General Assembly
3. International Court of Justice
4. Secretariat
5. Trusteeship Council
6. Economic and Social Council.
3.4 Insurgents
Insurgents or rebels become subjects of international law particularly in
instances where a non-international armed conflict exists. Insurgents may
enter into valid arrangements in certain instances but this would depend
on the administration of specific territory. And in order for insurgents to
be considered as being part of a non-international conflict, the ‗material
field of application‘ must be met: First, the armed dissidents have armed
command; Second, there has to be control over a part of its territory as to
enable them to carry out sustained and concerted military operations.
What happens when these prerequisites are met? First, the insurgents will
be recognized of belligerent status and second, they are seen as having
treaty-making capacity. Belligerency exists:
 when a sizeable portion of the territory is under the effective
control of an insurgent community seeking to establish a separate
government and,
41
 the insurgents are in de facto control of a portion of a territory

and population, have a political organization, are able to maintain
such control, and conduct themselves according to the laws of
war.
Political and military resistance within a sovereign state often brings
about civil strife. Sometimes, rebels manage to control a certain portion
of a sovereign state‘s territory and begin to claim status as international
subjects. Generally, States are very hostile to grant insurgents status as
international subjects for the following reasons:
a) States prefer stability and preservation of the status quo.
b) States prefer to treat insurgents as a domestic occurrence.
c) International support of insurgents bolsters their claims and
aggravates the conflict.
State‘s reluctance to recognize insurgents is even more pronounced
recently because of:
a) rapid spread of ethnic feuds (especially in developing countries in
Africa), and
b) growing influence of religious and nationalist groups (especially
in states resulting from recent breakups e.g. USSR, Yugoslavia).
If the civil strife is widespread and protracted in time and results in
insurgents controlling a territory, third States may grant recognition of
belligerency.
3.5 National Liberation Movements

National Liberation Movements (NLMs) are organized groups fighting
against colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination.
Elements of NLMs
The elements of NLMs are:
They are based on
a) territories which they are seeking to liberate and
b) a goal of self-determination.
3.6 Individuals
Traditionally, individuals did not have the status of international law
subjects. This had two major consequences: individually may only be
protected by their national states and it leaves nationals open to abuse by
their own state. Today, individuals may also incur international liability
when they offend certain fundamental values of the international
community.
Under modern international law, individuals have come to acquire legal

Hint
status, which has made them holders of internationally material rights.
42
3.6.1 Individuals as Subject of International Law

Customary rules imposing obligations on individuals
Individuals are under many international obligations, some solely relating
to armed conflict (such rules provide that should individuals be engaged
in an armed conflict and break the rules of warfare, they are criminally
liable regardless of their official position as state agents; also liability for
international crimes (crimes against humanity, genocide), other relate to
peacetime. These obligations are imposed on all individuals and if they
breach them, they will be accountable internationally, regardless of
whether they may also be liable for breach of similar rules on the national
level. These obligations are incumbent on individuals both when they act
in an official capacity as well as – under certain conditions- when they
engage in acts in their individual capacity. Individuals who are in breach
can be brought to justice in any country of the world.
Rights of Individuals under International Law
There are two main views on whether international law confers rights to
individuals directly:
a) Individuals may only be entitled to seek enforcement of those
obligations at the international level through their States, who
have the power to pursue those allegedly responsible for breaches
before international tribunals.
b) It can be claimed that the rules seeking to promote international
values are so extensive as to give individuals a right to enforce
the obligations to fully respect some fundamental values.
It is important to distinguish general rules from treaty provisions on human

rights. Treaties confer substantive rights and oblige states to grant rights and
impose obligations on individuals in their respective national systems. Under
the general rules, the rights and obligations are directly conferred on
individuals by international rules and there is no need for their national
Note implementation.
Treaty Provisions Conferring Rights on Individuals

What about agreements that States conclude granting human rights to
individuals within their national jurisdiction? Do such rights have only a
national dimension (can be vindicated on the national level) or are they
international in scope? It is apparent from international treaties on human
rights that the substantive rights they lay down may only be exercised by
individuals within the domestic systems. As to the right to bring a
complaint with an international body established by a treaty, such rights
are granted to individuals directly by international rules and exist
regardless of the content of national legislations. Such right is an
international right proper.
Limitations to Treaty Provisions on Individual’s Right
This right however has limitations:
43
1) Individuals are given only a procedural right, which right is in

turn limited to forwarding a complaint and the complainant is not
allowed to participate in international proceedings
2) Individuals have no right to enforce or promote the enforcement
of any international decision favourable to them; reparation for
damages will be in the hands of the accused state
3) The right in question is only granted by treaties; consequently, it
exists only with respect to some specific matters (e.g. labour
rights).
4) Not all states that are parties to the treaties accept being made
accountable to individuals (exception: European Convention on
Human Rights). Most treaties have a clause regarding the
individuals‘ rights to petition international bodies and only states
signatory to the treaty, which have also accepted that clause
explicitly, submit to the control mechanisms.
5) Procedures before international bodies are different from those
before the national instances (the international bodies in
questions are generally not judicial in character; international
proceedings are often rudimentary (gathering of evidence is
problematic); the outcome of the procedure is not a judgment
proper, but, instead, a non-legally binding recommendation
(European and American Conventions on human rights are
exceptions).
6) These rights are limited in scope and vanish as soon as a state
decide to terminate the treaty or as soon as a state withdraws its
acceptance of the international bodies‘ authority to deal with
complaints from individuals.
7) Important advance is that individuals are granted the right to
petition international organs irrespective of their nationality (even
stateless persons can do so)
States have generally accepted the authority of international bodies. In
essence, individuals possess legal status in international law, though, they
have limited capacity. They have few obligations deriving from
customary law.
3.7 Sui Generis Entities

Some international subjects are unique and have the following
characteristics:
1) they have come to acquire a legal status on account of specific
historic circumstances
2) they do not possess any distinct territory or, if they do use a
territory, it belongs to another entity
3) they have a very limited international personality.
These include: the Holy See, the Sovereign Ordder of Malta and the
International Committee of Red Cross.
3.7.1 The Holy See
- Constitutes what is now called the Vatican State.
44
- Can enter into international agreements (concordats)

- Enjoys immunity from foreign jurisdiction.
3.7.2 The Sovereign Order of Malta
- It runs hospitals, casualty units, charitable institutions, and relief
organizations in various countries
- Its presence in the international community is due to historical
reasons linked to its humanitarian role
- Its legal personality is purely functional in character in that it
operates exclusively so that the Order may attain its institutional
goals of health and hospital assistance.
3.7.3 The International Committee of the Red Cross
(ICRC)
- Born as a private entity, has gradually come to possess
international personality essentially for historical reasons
- was granted special functions under the 1949 Geneva Red Cross
Conventions
- Has no territory of its own, the ICRC premises in Switzerland are
however inviolable.
Kosovo is a partially recognized state. Examine the circumstances and the

current status of Kosovo under international law.
Note your findings in your journal.
Activity

In this Study Session, we examined the subjects of international law,
which include those persons or entities that possess international
personality and have rights and responsibilities under the law.
Summary Before World War II, only states were qualified as subjects of
international law, but later, non-state actors became recognized as
subjects of international law. The non-state actors include international
organizations, insurgents, national liberation movements, individuals and
sui generis entities (the Holy See, the Sovereign Order of Malta, the
International Committee of the Red Cross).
Assessment
1. Define the term subjects of International Law.
2. Identify and explain the entities that are subjects of International Law.
Assessment
45
Bibliography
Dixon, M. Textbook on International Law (Oxford: Oxford University
Press, 2005) fifth edition.
Shaw, Malcolm N.: International Law. 6th edn. Cambridge University
Press, Cambridge 2008.
Reading
http://ruwanthikagunaratne.wordpress.com/2011/03/26/1-2-an-
introduction-to-subjects-of-international-law/ retrieved February 2023.
Study Session 4
Jurisdictions and Immunities
Introduction
In this Study Session, we will examine the scope as well as the
immunities in international law.
Learning Outcomes
4.1 discuss the term jurisdiction.
4.2 explain the purpose of immunities from jurisdiction.
4.1 Jurisdiction in International Law

Jurisdiction The authority What do we mean by jurisdiction? Jurisdiction concerns the power of the
of a state to affect people,
property and circumstances
state under international law to regulate or otherwise impact upon people,
within its territory. property and circumstances and reﬂects the basic principles of state
sovereignty, equality of states and non-interference in domestic affairs. It
can be defined as ‗the power of the state under international law to
regulate or otherwise impact upon people, property and circumstances‘
(Shaw, 2008: 645). Jurisdiction is a central feature of state sovereignty as
it involves the authority of a state to affect people, property and
circumstances within its territory. However, the fact that international law
permits the exercise of jurisdiction in any particular case is only the ﬁrst
46
Study Session 4 Jurisdictions and Immunities
stage. The state in question must also have adopted the domestic
measures required actually to exercise such jurisdiction in the relevant
circumstances.
A concept related to that in international law is universal jurisdiction.
Universal jurisdiction is used in international law to refer to the ability of
a court to decide a criminal matter even though it may not be within its
borders, based upon the concept that the crime is one against humanity as
a whole. It is the principle that certain crimes are so heinous and so
universally recognized and abhorred, that a state is entitled or even
obliged to undertake legal proceedings without regard to where the crime
was committed or the nationality of the perpetrators or the victims. It
applies to the most serious crimes under international law: slavery, war
crimes, crimes against humanity, torture, and some others. Therefore, the
prosecution is brought on behalf of the world, rather than the people of a
particular state or nation. Universal jurisdiction is based upon the idea of
jus cogens – that certain international law obligations are binding on all
states and cannot be altered by treaty.
If two or more States have jurisdiction over a particular offence, they are
said to have concurrent jurisdiction. In such cases the State which is
most likely to prosecute the offender is the State which has custody over
him. No State may exercise jurisdiction within the territorial sovereignty
of another State. The police of State A cannot enter the territory of State
B to arrest a person who has committed a crime in State A. Also, if a
crime takes place in the territorial sea of a coastal State, no State other
than the coastal State my intercept and arrest the ship carrying the
offenders. States enter into bilateral treaties to provide for the extradition
of alleged offenders. Sending an alleged criminal to another State for
investigation or prosecution in the absence of an extradition treaty is
referred to as rendition.
The high seas and outer space are outside the territorial jurisdiction of
any State. The general principle of jurisdiction in these common areas is
that ships, aircraft and spacecraft are subject to the jurisdiction of the
―flag State‖, or State of registration. The general principle is that ships on
the high seas are subject to the exclusive jurisdiction of the flag State, and
cannot be boarded without its express consent. The most notable
exception is piracy. All States have a right to board pirate ships on the
high seas without the consent of the flag State.
4.2 Immunities from Jurisdiction

Under international law, states and other international legal persons enjoy
certain immunities from the exercise of jurisdiction. In addition, such
immunities may be granted by national law. The principle of sovereign
equality of States requires that the official representatives of one State
should not be subject to the jurisdiction of another State. For example, the
law of the sea provides that warships are subject only to the jurisdiction
of the flag State. Even if warships commit acts contrary to the right of
innocent passage or the laws and regulations of the coastal State, the
coastal State‘s only remedy is to escort the offending warship out of the
territorial sea.
47
The principle of State immunity or sovereign immunity provides that

foreign sovereigns enjoy immunity from the jurisdiction of other States.
The principle of diplomatic immunity provides that the diplomatic agents
of the sending State have complete immunity from the criminal
jurisdiction of the receiving State. Immunity is granted to diplomatic
representatives to uphold their dignity as representatives of their
respective states and to allow them free and unhampered exercise of their
functions. Since this immunity belongs to the sending State and not to the
diplomat, it can be waived by the sending State. Also, the receiving State
has the right to expel any diplomatic agent from its country by declaring
them persona non grata. The premises of an embassy or diplomatic
mission as well as its records and archives are also sacred. The authorities
of the receiving State cannot enter a foreign embassy without the express
permission of the head of mission, even in the case of an emergency.
Under international law, states and other international legal persons enjoy
certain immunities from the exercise of jurisdiction. In addition, such
immunities may be granted by national law. The principle of sovereign
equality of States requires that the official representatives of one State
Tip should not be subject to the jurisdiction of another State.
Examine the recognition of Kosovo in 2008 using appropriate theory(ies).

Post your response on Study Session Four forum page on course website. You may
Discussion see schedule date on course blog
Activity

In this Study Session, you learnt that jurisdiction is the power of the state
under international law to regulate or otherwise impact upon people,
property and circumstances. It is the authority of a state to affect people,
Summary property and circumstances within its territory.
 Universal jurisdiction is based upon the idea of jus cogens – that
certain international law obligations are binding on all states and
can‘t be altered by treaty.
 Concurrent jurisdiction occurs if two or more States have jurisdiction
over a particular offence, and the State most likely to prosecute the
offender is the State which has custody over him.
 Diplomatic immunity provides that the diplomatic agents of the
sending State have complete immunity from the criminal jurisdiction
of the receiving State. It is granted to diplomatic representatives to
uphold their dignity as representatives of their respective states and
to allow them free and unhampered exercise of their functions.
48
Study Session 4 Jurisdictions and Immunities
Assessment
1. What does jurisdiction mean under international law?
2. Differentiate between universal jurisdiction and concurrent jurisdiction.
Assessment
Bibliography
Brownlie, Ian, Principles of Public International Law (6th edn., Oxford:
Oxford University Press, 2003), 297-318
Reading
Ryngaert C., (2015) Jurisdiction in International Law, 2nd edn,
(Oxford: Oxford University Press)
Evans, Malcolm D. (ed.), International Law (Oxford: Oxford University
Press, 2003).
Shaw, Malcolm N.: International Law. 6th edn. Cambridge University
49
Study Session 5
International Responsibility
Introduction
Since there is no international police, states at times act as if they are
above the law. The question then is: under what legal principles can a
state or non-state actors be held responsible for breaching international
law, and what are the consequences of these breaches? This Study
Session therefore exposes you to responsibilities of state under
international law.
Learning Outcomes
5.1 explain the concept of international responsibility.
5.2 highlight conditions for an internationally wrongful act.
5.3 point out those that States are responsible to.
5.4 discuss the wrong acts that States responsible for under international
law.
5.5 discuss the forms of reparation in international law.
5.1 Responsibilities of States under International

Law
The basic principle of ―state responsibility‖ in international law provides
that any state that violates its international obligations must be held
accountable for its acts. More concretely, the notion of state
responsibility means that states, which do not respect their international
duties, are responsible to immediately stop their illegal actions, and make
reparations to the injured. This is a fundamental principle, which forms
part of international customary law, and is binding upon all states.
The rules on ―state responsibility‖ do not specify the content of a state‘s
obligations under international law, for example that torture is forbidden,
or that a state must provide medical services to the civilian population.
These obligations are specified in numerous international law treaties and
in international customary law. The rules on state responsibility merely
identify when a state can be held responsible for violating those
obligations, and what are the consequences if it fails to fulfill its
responsibility.
5.2 Conditions for Violation of International Law

A state violates international law when it commits an ―internationally
wrongful act‖, which breaches an international obligation that the state
50
Study Session 5 International Responsibility
was bound by at the time when the act took place. A state is bound to act
according to international treaties it signed.
One of the major legal instruments referred to in the context of state
responsibility is the International Law Commission‘s (ILC) Draft Articles
on State Responsibility for Internationally Wrongful Acts. According to
the Draft Articles, an internationally wrongful act must:
 be attributable to the state under international law; and
 constitute a breach of an international obligation of the state.
The articles intend to complement existing obligations in other sources of
international law such as the Four Geneva Conventions, and they provide
a general supplementary framework for the concept of state
responsibility. They answer the questions - when does a state violate
international law, and what is its responsibility if it does?
After five decades of revision and negotiation, the Draft Articles were
finally adopted by the ILC in 2001 (the International Law Commission
(ILC) is a body of independent legal experts, which operate under the
General Assembly). Later the same year, the UN General Assembly
adopted a resolution which ―commend(ed the articles) to the attention of
Governments without prejudice to the question of their future adoption or
other appropriate action‖. Although they do not constitute a legally
binding convention that states must follow, many of the principles
correspond to existing international law. The Draft Articles are followed
by commentaries that provide a tool for their interpretation.
You may wonder that a state is not an individual or a person, so how can
it commit a wrongful act? States cannot physically commit a crime, and
therefore any violation of a state‘s international obligations is, by nature,
committed by an individual or group of individuals.
A state can only be considered having committed a violation if an action by an

individual can be attributable (connected) to the state. For example, a state can
be held responsible if its prison guards use torture as an interrogation method.
In addition, the prison guards can also be held responsible as individuals.
Note
5.3 To Whom is a State Responsible?

States have legal responsibilities both towards states and individuals
according to different sources of international law. States, other
international entities and individuals enjoy rights and duties given to
them by international law. When states violate their international
obligations they may cause harm both to other states and to individuals.
Therefore states have responsibilities:
1) Towards their own citizens, and people under their jurisdiction,
based on human rights law.
2) Towards civilians, including occupied people, as well as
combatants of the other party, during armed conflicts under
international humanitarian law (IHL).
51
3) Towards other states, or international organizations (e.g. UN),

based on general principles of international law, as well as specific
bilateral and multilateral conventions that they have signed and
ratified, including human rights and IHL treaties.
4) Towards the international community as a whole when it comes to
very important rules, such as the prohibitions on genocide and
torture.
5.4 For Whose Actions is the State Responsible?

As we have discussed earlier, states are accountable for their actions in
the international community. But can they or should they be held
responsible for everything? Should a state be held responsible if its
soldiers during wartime commit rape or other sexual assaults even when
they are off duty? When may a state be responsible for terrorist groups
operating from its territory? Should a state be responsible for violations
committed by private security firms?
Not all acts of individuals engage the responsibility of a state. In order for
a state to be held responsible, the violation which has been committed
must be attributable (connected) to that state. In other words, the state
must be answerable for the person who committed the violation. If this
criterion fails, only individual criminal responsibility is at stake. Before a
state can be held responsible for any action, it is necessary to prove a
causal connection between the injury and an official act or omission
attributable to the state alleged to be in breach of its obligations.
5.4.1 State Criminal Responsibility
Acts of State Organs
The acts of state organs - organizations or institutions belonging to the
state - are clearly attributable to the state no matter whether the organ
exercises legislative, executive, judicial or any other functions
(parliament, police, court etc.).
Acts of Armed Forces
The acts of the armed forces, and persons who accompany them, are
directly linked to the state, and therefore the state is responsible for their
actions no matter whether they operate in the home country or abroad.
According to international humanitarian law (IHL), a party to the conflict
―shall be responsible for all acts by persons forming part of its armed
forces‖ (article 3 Hague Regulation IV, article 91 IAP). This clearly
indicates that the state is responsible also for private actions of armed
forces. In other words, during war time, members of the armed forces are
always on duty and can never act in private capacity. For example, sexual
crimes of a certain gravity committed by a soldier during leave will
therefore result in a violation of his or her state's international obligations
(in parallel to individual criminal responsibility).
Acts of Persons that have Some Government Authority
Likewise, the acts of persons or entities exercising elements of
governmental authority are attributable to the state. This rule would, for
52
Study Session 5 International Responsibility
example, cover private corporations, which are authorised by the state to

exercise certain public functions in prisons, checkpoints etc.
According to international humanitarian law (IHL), a party to the

Hint conflict ―shall be responsible for all acts by persons forming part of its
armed forces‖.
Acting in Private Capacity

In general, a violation is only attributable to the state if the organ or
person, from the categories above, acts in his or her formal public
capacity. However, attribution can be made even if the person or organ
exceeds its authority or does not follow instructions.
5.4.2 Individual Criminal Responsibility
The responsibility of a state is different from the responsibility of an
individual. Physically, violations can only be committed by individuals –
a state as such cannot hold a weapon.
An individual perpetrator may be held responsible for his or her actions

either under national laws or under international law. However, if the
individual acted criminally in the name of the state, it is no longer his or
her responsibility alone that is activated, but the state must also be held
Note responsible when it comes to certain serious crimes.
5.5 Consequences of State Violation of International

Law
Reparation The payments The international law of State responsibility determines the consequences
that a victorious power seeks
from the defeated side to
that ensue when a State commits an internationally wrongful act. This law
compensate for costs or damages is largely codified in the International Law Commission (ILC) Articles on
incurred during a war. State Responsibility, drafted over decades by the ILC and accepted by the
United Nations (UN) General Assembly in 2001. If a state violates
international law it is responsible to immediately cease the unlawful
conduct, and offer appropriate guarantees that it will not repeat the illegal
actions in the future. The state also has a responsibility to make full
reparations for the injury caused, which include both material and moral
damage. The right to reparations is part of the right of victims to remedy
for violations of their rights.
5.5.1 Forms of Reparations

The various forms of reparation are explained in Principles 19 through 23
of the ILC Articles on State Responsibility. Reparations can take the form
of restitution, compensation, rehabilitation or satisfaction.
Restitution
To re-establish the situation which existed before the violation was
committed, as long as it is not materially impossible or involves a
disproportional burden either by returning the material or if this is not
53
possible, by paying the value of it. Restitution can include restoration of

liberty, enjoyment of human rights, identity, family life and citizenship,
return to one's place of residence, restoration of employment and return
of property. Examples: releasing persons who have been illegally
detained, return property that was illegally seized.
Compensation
Financial compensation for the damages caused (in addition to the value
of material that could not be restituted). It includes compensation for
material damages that can be valued in money, such as loss of income
and treatment for physical harm; or non-material damages, such as lost
opportunities of education, as well as mental harm etc.
Rehabilitation
As money can never undo psychological harm and trauma caused by
violations of international humanitarian law (IHL) and human rights,
rehabilitation shall be offered for the victims‘ healing process.
Rehabilitation should include medical and psychological care as well as
legal and social services.
Satisfaction
Pursuant to Article 37(1) of the ILC Articles on State Responsibility, a
State is obliged to give satisfaction for such an injury ―insofar as it cannot
be made good by restitution or compensation.‖ It is an ―exceptional‖
remedy, as in most cases full reparation can be achieved by restitution
and/or compensation. Satisfaction may take a variety of forms. Article
37(2) of the ILC Articles sets out an indicative list of modalities,
including ―an acknowledgement of the breach, an expression of regret, a
formal apology or another appropriate modality‖, but does not claim to be
exhaustive. The most commonly awarded forms of satisfaction in the
inter-State context are a declaration of wrongfulness issued by a
competent court or tribunal or an apology issued by an authorised State
official.
5.5.2 Enforcement of Reparations
Since there is no international police that can make sure that states
provide reparations, and the international community rarely forces such
remedies on the violating state, the rights of victims depend mostly on
mobilizing political will - nationally and internationally - to ensure rights
are protected. A state who refuses to provide remedies risks losing its
reputation and good will in the international community.
Were Charles Taylor’s charges for crime against human

persons, state crime or individual crime?
Activity
Post your response on Study Session Five assignment page on course website.
54
Study Session 6 The Law of the Sea

In this Study Session, you were exposed to the principle of ―state
responsibility‖ in international law. A state violates international law
when it commits an ―internationally wrongful act‖, which breaches an
Summary international obligation that the state was bound by at the time when the
act took place. The State is held responsible for acts of state organs, acts
of armed forces, acts of persons that have some government authority,
even if they are acting in private capacity. If a state violates international
law it is responsible to immediately cease the unlawful conduct, and
offer appropriate guarantees that it will not repeat the illegal actions in
the future. It also has the responsibility of making full reparations for the
injury caused. Reparations can take the form of restitution,
compensation, rehabilitation or satisfaction.
Assessment
1. What is the importance of state responsibility in international law?
2. What forms can the obligation of reparation take?
Assessment 3. Examine ―internationally wrongful act‖.
Bibliography
International Law Commission, Draft Articles on Responsibility of
States for Internationally Wrongful Acts, 2001. UN Doc A/56/10 (2001).
Reading
Kolb, R. (2017) The International Law of State Responsibility: An
Introduction. (Cheltenham: Edward Elgar Publishing)
Study Session 6
The Law of the Sea
Introduction
This study session focus on the modern international law of the sea. We
will explore the contemporary challenges in the regulation of the seas and
oceans. We will also consider the role of judicial dispute settlement in the
law of the sea regime.
55
Learning Outcomes
6.1 explain the development of the law of the sea.
6.2 discuss the fundamental principles of the international law of the sea.
6.3 discuss the role that judicial dispute settlement plays in the law of the sea
regime.
6.1 Law of the Sea Convention

Three-quarters of the earth‘s surface is ocean. These vast waters have
been a means of international travel and a major communal source of
food for millennia. As a consequence, societies developed norms for
international behaviour on the ocean long before norms for international
behaviour on land. Recent technological changes and growing
populations have created new uses and exerted new pressures on the
world‘s ocean resources. The law of the sea, therefore, is an old body of
law in a period of rapid evolution.
Law of the Sea is the branch of international law concerned with public
order at sea. Much of this law is codified in the United Nations
Convention on the Law of the Sea, signed December 10, 1982. The
convention, described as a ―constitution for the oceans,‖ represents an
attempt to codify international law regarding territorial waters, sea-lanes,
and ocean resources. The Law of the Sea Convention defines the rights
and responsibilities of nations in their use of the world‘s oceans,
establishing guidelines for businesses, the environment, and the
management of marine natural resources. The main functions of the
Convention are to promote the peaceful use of the seas, regulate the use
of marine resources and promote the conservation of living resources and
the preservation of the marine environment.
The Convention came into force on 16 November 1994 after it had been
ratified by the requisite 60 countries. As of 2023, it has been ratified by
168 countries. These include 164 United Nations Member States, a
United Nations Observer State (Palestine), the European Union, the Cook
Islands and Niue. An additional 14 United Nations Member States have
signed UNCLOS but have not ratified it. Nigeria ratified the convention
on August 14, 1986 as the 29th country to do so. One of the most
significant State that has neither signed nor ratified UNCLOS is the
United States of America. Relying on objections to certain UNCLOS‘
provisions concerning the seabed and ocean floor, which it considered
against its economic and security interests, the United States did not
become a party to the Convention.
The Convention establishes a comprehensive legal framework to regulate
all ocean space, its uses and resources. It contains, among other things,
provisions relating to the territorial sea, the contiguous zone, the
continental shelf, the exclusive economic zone and the high seas. It also
provides for the protection and preservation of the marine environment,
for marine scientific research and for the development and transfer of
marine technology. One of the most important parts of the Convention
56
concerns the exploration for and exploitation of the resources of the

seabed and ocean floor and subsoil thereof, beyond the limits of national
jurisdiction (the Area). The Convention declares the Area and its
resources to be ―the common heritage of mankind‖. The International
Seabed Authority, established by the Convention, administers the
resources of the Area.
6.1.1 History of the Law of the Sea Convention

The origins of the Law of the Sea Treaty date back to late 1945 when
President Harry Truman claimed the natural resources of the continental
shelf beyond the territorial sea of the United States. At that time,
America‘s position was that coastal state sovereignty ended at the three
mile limit.
The United Nations Convention on the Law of the Sea lays down a
Hint comprehensive regime of law and order in the world's oceans and seas,
establishing rules governing all uses of the oceans and their resources.
Three years later, Peru, Chile and Ecuador claimed 200 mile limits even
though they all have essentially no continental shelf. They seized U.S.
tuna boats that were inside their 20 mile limit. This led to tuna, cod and
shrimp wars. The Truman Administration responded by claiming rights
out to 200 miles on the seabed for offshore oil and natural gas drilling
purposes, but other nations went further by claiming both the water and
air space rights.
The disputes about navigation and airspace rights led to the first United
Nations Law of the Sea Convention. Initially it was known as the Geneva
Convention on the Territorial Sea. The original agreement primarily
addressed fishing and mineral rights. A second Law of the Sea
Convention in 1960 expanded to address navigation rights, however an
agreement was not reached.
The United Nations General Assembly in December of 1969 passed a
resolution barring the exploration of the ocean floor beyond a nation‘s
territorial limits. The Nixon Administration reacted to this in May of
1970 by proposing a third round of negotiations on the Law of the Sea. It
was President Nixon who called the oceans ―a common heritage of
mankind.‖ The talks began in 1972, and they resulted in what is today
referred to as the UNCLOS Treaty.
6.2 Fundamental Principles of the Law of the Sea

Three fundamental principles pervade the Law of the Sea Convention.
1) The first principle is that States have some sovereign rights to some
portion of the sea adjacent to their sea coastline.
2) The second principle limits the first; it says that some portion of the
sea, the seafloor and the sea-bed are shared as part of the ‗common
heritage of mankind‖.
57
3) The final principle is that concomitant with States‘ rights are States‘
obligations to preserve the seas and accommodate the needs of other
States.
Exclusive Economic Zone According to the 1982 convention, each country‘s sovereign territorial
(EEZ) A sea zone prescribed waters extend to a maximum of 12 nautical miles (22 km) beyond its
by UN Convention on the Law
of the Sea over which a state has coast, but foreign vessels are granted the right of innocent passage
special rights over the through this zone. Passage is innocent as long as a ship refrains from
exploration of marine resources, engaging in certain prohibited activities, including weapons testing,
including energy production
from water and wind. It spying, smuggling, serious pollution, fishing, or scientific research.
stretches from the seaward edge
of the state's territorial sea out Beyond its territorial waters, every coastal country may establish an
to 200 nautical miles from its exclusive economic zone (EEZ) extending 200 nautical miles (370 km)
coast. from shore. Within the EEZ the coastal state has the right to exploit and
regulate fisheries, construct artificial islands and installations, use the
zone for other economic purposes (e.g., the generation of energy from
waves), and regulate scientific research by foreign vessels. Otherwise,
foreign vessels (and aircraft) are entitled to move freely through (and
over) the zone.
With regard to the seabed beyond territorial waters, every coastal country
has exclusive rights to the oil, gas, and other resources in the seabed up to
200 nautical miles from shore or to the outer edge of the continental
margin, whichever is the further, subject to an overall limit of 350
nautical miles (650 km) from the coast or 100 nautical miles (185 km)
beyond the 2,500-metre isobaths (a line connecting equal points of water
depth). Legally, this area is known as the continental shelf, though it
differs considerably from the geological definition of the continental
shelf.
Where the territorial waters, EEZs, or continental shelves of neighbouring

countries overlap, a boundary line must be drawn by agreement to
achieve an equitable solution. Many such boundaries have been agreed
upon, but in some cases when the countries have been unable to reach
agreement the boundary has been determined by the International Court
of Justice (e.g., the boundary between Bahrain and Qatar) or by an
arbitration tribunal (e.g., the boundary between France and the United
Kingdom). The most common form of boundary is an equidistance line
(sometimes modified to take account of special circumstances) between
the coasts concerned. On many issues the 1982 convention contains
precise and detailed regulations (e.g., on innocent passage through
territorial waters and the definition of the continental shelf), but on other
matters (e.g., safety of shipping, pollution prevention, and fisheries
conservation and management) it merely provides a framework, laying
down broad principles but leaving the elaboration of rules to other
treaties.
Regarding the safety of shipping, detailed provisions on the safety and
seaworthiness of ships, collision avoidance, and the qualification of crews
are contained in several treaties adopted under the auspices of the
International Maritime Organization (IMO), a specialized agency of the
United Nations (UN). The IMO also has adopted strict antipollution
standards for ships. Pollution of the sea from other sources is regulated by
several regional treaties, most of which have been adopted under the
58
aegis of the United Nations Environment Programme. The broad

standards for fisheries conservation in and management of the EEZ
(where most fishing takes place) laid out in the 1982 convention have
been supplemented by nonbinding guidelines contained in the Code of
Conduct for Responsible Fisheries adopted in 1995 by the UN Food and
Agriculture Organization. Principles of management for high seas fishers
are laid down in the UN fish stocks treaty (1995), which manages
straddling and highly migratory fish stocks, and in detailed measures
adopted by several regional fisheries commissions.
In essence, some of the important features of the United Nations
Convention on the Law of the Sea include:
 Nations are provided with full money rights by UNCLOS for a
200 nautical miles zone along the shoreline.
 The sea and oceanic bed extending to this area are regarded to be
the Exclusive Economic Zone (EEZ) of a country and that
country can use these waters for their economic utilization.
 Another important organization that plays a vital role in
UNCLOS operations is the International Maritime Organization
(IMO).
 Other important parties involved in Nautical Law and its
functioning are the International Seabed Authority and the
International Whaling Commission.
6.3 Settlement of Disputes
Located in Hamburg, Germany, the International Tribunal for the Law of the
Sea consists of 21 members and has jurisdiction over any dispute concerning
the interpretation or application of the United Nations Convention on the Law
of the Sea.
Countries first attempt to settle any disputes stemming from the 1982
convention and its provisions through negotiations or other agreed-upon
59
means of their choice (e.g., arbitration). If such efforts prove

unsuccessful, a country may, subject to some exceptions, refer the dispute
for compulsory settlement by the UN International Tribunal for the Law
of the Sea (located in Hamburg, Germany), by arbitration, or by the ICJ.
Resort to these compulsory procedures has been quite limited. The
International Tribunal for the Law of the Sea is an independent judicial
body established by the United Nations Convention on the Law of the
Sea to adjudicate disputes arising out of the interpretation and application
of the Convention. The Tribunal is composed of 21 independent
members, elected from among persons enjoying the highest reputation for
fairness and integrity and of recognized competence in the field of the
law of the sea.
The Tribunal has jurisdiction over any dispute concerning the
interpretation or application of the Convention, and over all matters
specifically provided for in any other agreement which confers
jurisdiction on the Tribunal (Statute, article 21). The Tribunal is open to
States Parties to the Convention (i.e. States and international
organizations which are parties to the Convention). It is also open to
entities other than States Parties, i.e., States or intergovernmental
organizations which are not parties to the Convention, and to state
enterprises and private entities ―in any case expressly provided for in Part
XI or in any case submitted pursuant to any other agreement conferring
jurisdiction on the Tribunal which is accepted by all the parties to that
case‖ (Statute, article 20). Disputes before the Tribunal are instituted
either by written application or by notification of a special agreement.
The procedure to be followed for the conduct of cases submitted to the
Tribunal is defined in its Statute and Rules.
The first case, The M/V “SAIGA” Case (Saint Vincent and the
Grenadines v. Guinea), Prompt Release, was submitted to the Tribunal
on 13 November 1997. As of 2023, thirty-one cases have been submitted
to the Tribunal.
Discuss the roles of multinational corporations in the pollution of water bodies

in the South-south region of Nigeria.
Discussion Post your response on Study Session Six forum page on course website. You may see
schedule date on course blog
Activity

In this Study Session, you learnt that Law of the Sea is the branch of
international law concerned with public order at sea. The Law of the Sea
Convention defines the rights and responsibilities of nations in their use
Summary of the world‘s oceans, establishing guidelines for businesses, the
environment, and the management of marine natural resources.
The Law of the Sea Convention has three fundamental principles: that
States have some sovereign rights to some portion of the sea adjacent to
their sea coastline; that some portion of the sea, the seafloor and the sea-
bed are shared as part of the ‗common heritage of mankind‖; that
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concomitant with States‘ rights are States‘ obligations to preserve the

seas and accommodate the needs of other States.
According to the convention, each country‘s sovereign territorial waters
extend to a maximum of 12 nautical miles (22 km) beyond its coast, but
foreign vessels are granted the right of innocent passage through this
zone. If negotiations fail, States can take their cases to the International
Tribunal for the Law of the Sea. The Tribunal has jurisdiction over any
dispute concerning the interpretation or application of the Convention,
and over all matters specifically provided for in any other agreement
which confers jurisdiction on the Tribunal.
Assessment
1. What is the function of the exclusive economic zone (EEZ)?
2. Describe the role of the International Tribunal for the Law of the Sea.
Assessment
Bibliography
Press, 2003).
Reading
Shaw, Malcolm N. International Law. 6th edn. Cambridge University
https://www.itlos.org/en/main/the-tribunal/the-tribunal/
61
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Study Session 7 International Humanitarian Law
Study Session 7
International Humanitarian Law
Introduction
In this Study Session, we will examine the international humanitarian
law, also called laws of war. In doing so, we will explore how laws
pertaining to land warfare have evolved over several centuries.
Learning Outcomes
7.1 explain the international humanitarian law.
7.2 highlight the sources of international humanitarian law.
7.3 analyse the principles of international humanitarian law.
7.4 highlight the weapons prohibited under the international humanitarian
law.
7.5 point out the breaches of the Geneva Conventions.
7.6 discuss the greatest challenge facing the Geneva Conventions.
7.1 International Humanitarian Law

In addition to prescribing laws governing resort to force (jus ad bellum),
international law also seeks to regulate the conduct of hostilities (jus in
bello). International humanitarian law, also referred to as the laws of war
or laws of armed conflict, is a collection of rules with the fundamental
purpose to regulate armed conflicts and alleviate human suffering in
armed conflicts. It is the body of law that regulates the conduct of
hostilities by all parties to a conflict once an armed conflict has
commenced. It protects the persons who are not or no longer involved in
the conflict and restricts the means and methods of warfare. The human
misery and destruction that occurs as a result of war demands that the
international community seek ways to regulate violence and minimize the
horrific consequences of war. Indeed, since ancient times the
international community has sought ways to regulate the horrors of war.
Attempts to regulate armed conflict date back to ancient times and are
evident across many diverse cultures throughout history. Modern IHL is
made up of a large number of diverse international treaties concluded in
the past 200 years and customary international law. Thus, the history and
development of International Humanitarian Law (IHL) provide evidence
that states see the value of agreed codes of conduct to regulate conflict
and as the nature of conflict has changed so too the international
community has attempted to respond to new horrors by expanding and
adapting the rules of IHL.
There is a distinction within IHL between those who are actually engaged
in fighting, the combatants, and those who are not. According to Article
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51 (5) (b) of Additional Protocol I to the Geneva Conventions, civilians

must not be attacked. They do not take part in the hostilities and should
be protected and respected. Indiscriminate attacks, such as attacks that are
not or cannot be directed at a specific military objective, or attacks that
employ means and methods of fighting whose effects cannot respect the
distinction principle are forbidden.
Originally, laws pertaining to war were limited to preserving the spoils for
victors, but over time, rules pertaining to the exchange of prisoners of war,
as well as the treatment of combatants and non-combatants, were
developed.
Tip
7.2 Sources of International Humanitarian Law

Historically, there are two streams of law that govern armed conflict – the
‗Law of the Hague‘ and the ‗Law of Geneva‘. The Law of the Hague
(through the Hague Conventions of 1899 and 1907) governs the use of
military force and focuses on the behaviour and rights of combatants. In
particular, it concerns itself with the definition of combatants; establishes
rules relating to the means and methods of warfare; and examines the
issue of military objectives. The Law of Geneva (or humanitarian law) is
concerned with the principle of humanity, and the protection of civilians
and other non-combatants, but also regulates and protects combatants in
various ways. Both deal with jus in bello, which deals with the question
of whether certain practices are acceptable during armed conflict. The
law as a whole seeks to balance respect for human life in armed conflict
against military necessity.
Much of international humanitarian law has been codified in the four
Geneva Conventions of 1949. The Geneva Conventions were adopted to
limit the human suffering in times of armed conflict. The first convention
was adopted in 1864 giving protection to wounded and sick soldiers in
times of armed conflict on land. The second convention gives protection
to wounded, sick, and shipwrecked in armed conflict at sea. After the
atrocities committed against prisoners during the First World War, the
international community adopted the third Geneva Convention in 1929 to
give protection to the treatment of prisoners of war (POW).
The four Geneva Conventions of 1949 are the core of international

Hint humanitarian law. The Geneva Conventions were adopted to limit the
human suffering in times of armed conflict.
In 1949 the first three were revised and a fourth was adopted to give
protection to civilians and populations living under occupation, based on
the experiences of the Second World War. In 1977, two additional
Protocols to the Geneva Conventions were opened for ratification. They
clarify the status of civilians in international conflict and importantly, in
conflicts that are not international, for example, in civil war, or armed
insurgency against a government.
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7.2.1 The First Additional Protocol to the Geneva

Conventions
The First Additional Protocol from 1977 extends the protection of
civilians, and also includes rules on the conduct of hostilities which
defines what weapons and methods can be used. It generally applies in
international armed conflicts and is obligatory on the states that have
signed and ratified it. However, article 75 which sets out the minimum
guarantees granted to all persons in the power of a party to the conflict
reflects international customary law which is binding on all states,
regardless of any signatories.
Although warfare has changed dramatically since the Geneva

Conventions of 1949, they are still considered the cornerstone of
contemporary International Humanitarian Law.
Reflection
7.2.2 The Second Additional Protocol to the Geneva

Conventions
The Second Additional Protocol expands the scope of article 3, common
to the four Geneva Conventions, and gives additional protection in
internal armed conflicts. It generally applies in internal armed conflicts
and is also binding only on states that have signed and ratified it. Some
articles are also regarded as international customary law, for example,
article 7 which relates to protection of medical and religious persons.
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7.3 Basic Principles of International Humanitarian

Law
Rules of International Humanitarian attempt to control the wars as much
as possible to minimize the suffering of the civilian population.
International humanitarian Law reflects this constant balance between the
military necessity from the state of war and the needs for humanitarian
protection.
Therefore, Humanitarian Law protects persons and property affected or
liable to be affected by the conflict and Restrict the right of the parties to
a conflict to use the means -in particular weapons- and methods of
warfare – such as military tactics- of their choice. In this section, we will
examine the basic principles of IHL that restrict the methods of warfare.
7.3.1 The Principle of Distinction between Civilians and
Combatants
The principle of distinction prohibits all means and methods that cannot
make a distinction between those who do take part in hostilities -
combatants, and those who do not and therefore are civilian, protected
persons (article 48 IAP). The sick and wounded, medical personnel,
civilians and prisoners of war (POWs) are all called protected persons.
7.3.2 The Principle of Proportionality
The principle of proportionality (Article 51(5) (b) IAP) states that even if
there is a clear military target it is not possible to attack it if the risk of
civilians, or civilian property, being harmed is larger than the expected
military advantage. A military target is an object that contributes
effectively to the military operation. The definition of a military target is
clear in theory but sometimes harder to apply in practice, especially when
it comes to double-use facilities. These may be used both by civilians and
combatants. For example, a TV or a radio station can be a legitimate
military target if used as a military command or communication centre
but if it is used for civilian purposes only it cannot be targeted.
The definition of a military target is clear in theory but sometimes harder to

apply in practice, especially when it comes to double-use facilities. These may
be used both by civilians and combatants. For example, a TV or a radio station
can be a legitimate military target if used as a military command or
communication centre but if it is used for civilian purposes only it cannot be
Note targeted.
7.3.3 The Principle of Precaution in Attack

As part of the principle of distinction, the conflicting parties are obliged
to respect the principle of precautions in attack. This principle
supplements the general obligation to distinguish, at all times, between
civilians and combatants, and between civilian and military objects.
Whenever civilians are present, the parties to an armed conflict must:
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 Take precaution during military operations to spare the civilian

population and civilian objects (article 57 of the First Additional
Protocol (IAP).
 Take precaution to protect the civilian population and civilian
objects, which is under their own control, against the effects of
military attacks (article 58 IAP).
The obligation to take safety measures to protect civilians is placed on both

the attacker and the attacked. The attacker needs to take into account the
Hint presence of civilians prior to any attack, and the leadership of the attacked
community needs to provide the necessary guarantees to minimize the
harm towards its own civilian population.
Rules relating to precaution are set out to guarantee that the parties will
never disregard the presence of civilians and their status as protected
persons. The obligation to take safety measures to protect civilians is
placed on both the attacker and the attacked. The attacker needs to take
into account the presence of civilians prior to any attack, and the
leadership of the attacked community needs to provide the necessary
guarantees to minimize the harm towards its own civilian population.
7.4 Weapons Prohibited under International

Humanitarian Law
The IHL limits the means and methods of warfare. It covers the conduct
of military operation by stating what weapons and military tactics can be
used in armed conflict. The only legitimate object during war is to
weaken the military forces of the enemy. Civilians can never be
legitimate targets of attack. The prohibited weapons are injury causing
weapons and biological and chemical weapons.
7.4.1 Weapons that cause Superfluous Injury or
Unnecessary Suffering
The IHL prohibits weapons that cause superfluous injuries or unnecessary
suffering. There are several agreements in international law that prohibit
or limit the use of such weapons. The use, production, stock-piling, and
transfer of anti-personal landmines are prohibited according to the Ottawa
Treaty of 1997.The 1980 Convention on Certain Conventional Weapons
(CCW) includes five protocols covering landmines, incendiary weapons
(weapons that set fire to objects or cause burn injuries to persons),
blinding laser weapons, and explosive remnants (weapons and
ammunition left behind after war), undetectable fragments (weapons with
the effect to injure by fragments that are non-detectable by x-ray). These
treaties are binding on states that have signed and ratified them.
7.4.2 Biological and Chemical Weapons
The use of biological and chemical weapons is prohibited by the 1925
Geneva Protocol. The Protocol is considered customary international law
and is therefore binding on all states regardless of whether they signed it
or not. In 1972 and 1993, conventions were adopted to prohibit the use,
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as well as the production, transfer, and stock-piling of biological and

chemical weapons. These treaties are binding on states that have signed
and ratified them.
Situations of armed conflict are not exclusively regulated by treaties and

custom but by the principles of public conscience and humanity referred to by
the Martens Clause. The Martens Clause was outlined in the preamble of the
1899 Hague Convention and remains a cornerstone for the understanding and
Note interpretation of IHL to this day.
7.5 Breaches of the Geneva Conventions

Not all violations of the treaty are treated equally. The most serious
crimes are termed grave breaches, and provide a legal definition of a war
crime. Grave breaches of the Third and Fourth Geneva Conventions
include the following acts if committed against a person protected by the
convention:
1) willful killing, torture or inhumane treatment, including biological
experiments
2) willfully causing great suffering or serious injury to body or health
3) compelling someone to serve in the forces of a hostile power
4) willfully depriving someone of the right to a fair trial if accused of
a war crime.
Also considered grave breaches of the Fourth Geneva Convention are the
following:
1) taking of hostages
2) extensive destruction and appropriation of property not justified by
military necessity and carried out unlawfully and wantonly
3) unlawful deportation, transfer, or confinement.
Nations who are party to these treaties must enact and enforce legislation
penalizing any of these crimes. Nations are also obligated to search for persons
alleged to commit these crimes, or ordered them to be committed, and to
bring them to trial regardless of their nationality and regardless of the place
Note where the crimes took place.
7.6 The Geneva Conventions Today

Although warfare has changed dramatically since the Geneva
Conventions of 1949, they are still considered the cornerstone of
contemporary International Humanitarian Law. They protect combatants
who find themselves hors de combat (outside the fight), and they protect
civilians caught up in the zone of war. These treaties came into play for
all recent international armed conflicts, including the War in Afghanistan
(2001–present), the 2003 invasion of Iraq, the invasion of Chechnya
(1994–present), and the 2008 War in Georgia. The Geneva Conventions
also protect those affected by non-international armed conflicts such as
the Syrian Civil War.
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Modern warfare continues to evolve, and the lines between combatants

and civilians have blurred (for instance, the Sri Lankan Civil War, the
Sudanese Civil War, and the Colombian Armed Conflict). Also, a number
of states violate the IHL. The Russian–Ukraine war which broke out in
February 2022 is a case in point of flagrant violation of the IHL. Russia is
being accuse by the international community of breaching the IHL in its
pursuit of victory. U.S. Vice President Kamala Harris accused Russia
of committing crimes against humanity – of pursuing ―gruesome acts of
murder, torture, rape, and deportation‖ as well as ―execution-style
killings, beatings, and electrocution.‖
A core tenet of IHL is the principle of military necessity, which permits
armed parties to pursue measures that are necessary to weaken the
military capacity of the adversary but does not allow them to carry out
attacks that harm civilians or damage non-military infrastructure. Since
World War II, international norms have steadily moved in favour of
preferencing humanitarian objectives over military necessity. Yet this
development appears to hold little sway when it comes to Russia‘s
behaviour.
Russia‘s attacks on Ukraine‘s energy infrastructure is cited as a breach of
the IHL. Attacking and seizing nuclear infrastructure – the Chernobyl
Nuclear Power Plant (ChNPP) on February 24, 2022, and the
Zaporizhzhia Nuclear Power Plant (ZNPP) on March 4, 2022 – was in
direct violation of Article 56 of Protocol (I) to the 1949 Geneva
Conventions, i.e., protection of works and installations containing
dangerous forces. Since October 2022, Moscow has conducted strikes
against power plants and substations using missiles and Iranian kamikaze
drones in multiple regions across Ukraine. These attacks exacerbate
humanitarian challenges to civilians, who rely on the power grid for heat,
electricity, and hot water during the winter. As international legal scholar
Michael N. Schmitt writes, ―the attacks [against Ukraine‘s power
infrastructure] have gone on for so long, are so widespread, and are so
intense, that it is difficult to attribute any purpose to them other than
terrorizing the civilian population.‖
Evaluate compliance and non-compliance of states with the provisions of

Geneva Conventions using the Russian–Ukraine war as a case study.
Case Study Submit your response on Study Session Seven Assignment page.

In this Study Session, we examined International Humanitarian Law
(IHL), also referred to as the laws of war or laws of armed conflict, as a
collection of rules with the fundamental purpose to alleviate human
Summary suffering in armed conflicts. Two streams of law govern armed conflicts
– the ‗Law of the Hague‘ and the ‗Law of Geneva‘.
The Geneva Conventions are the major instruments of IHL, which
69
restricts the methods of warfare and the prohibition of weapons that

cause superfluous injury or unnecessary suffering and biological and
chemical weapons. The foundation of the Geneva Conventions system is
the principle that persons not actively engaged in warfare should be
treated humanely. Grave breaches of the Geneva Conventions include:
willful killing, torture or inhumane treatment, compelling someone to
serve in the forces of a hostile power, wilfully depriving someone of the
right to a fair trial if accused of a war crime; amidst others.
Assessment
1. What are examples of violations of international humanitarian law?
2. What are some of the prohibited means of armed conflict?
Assessment 3. What are the main reasons behind prohibiting certain weapons from being
used?
4. Discuss the meaning of indiscriminate attacks on the basis of Article 51 (5)
(b) of Additional Protocol I to the Geneva Conventions.
Bibliography
Press, 2003).
Reading
https://www.whitehouse.gov/briefing-room/speeches-
remarks/2023/02/18/remarks-by-vice-president-harris-at-the-munich-
security-conference-2/
https://lieber.westpoint.edu/further-thoughts-russias-campaign-against-
ukraines-power-infrastructure/
Study Session 8
International Human Rights Law
Introduction
Human rights are universal, inalienable and indivisible rights to which a
person is inherently entitled simply because she or he is a human being.
In this Study Session, we will examine human rights under international
law.
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Study Session 8 International Human Rights Law
Learning Outcomes
8.1 explain human rights.
8.2 discuss the principles of human rights.
8.3 highlight various violations of international human rights.
8.4 explain the sources of international human rights law.
8.1 What are Human Rights?

Human rights are rights inherent to all human beings, regardless of
nationality, place of residence, sex, national or ethnic origin, colour,
religion, language, or any other status. We are all equally entitled to our
human rights without discrimination. These rights are all interrelated,
interdependent and indivisible. Human rights are commonly understood
as inalienable fundamental rights to which a person is inherently entitled
simply because she or he is a human being.
8.2 Principles of Human Rights

The principles of human rights include: universal and inelienablity,
interdependent and indivisibility, equal and non-discriminatory, rights
and obligation. The principle applies to everyone in relation to all human
rights and freedoms and it prohibits discrimination on the basis of a list of
non-exhaustive categories such as sex, race, colour and so on.
8.2.1 Universal and Inalienable
The principle of universality of human rights is the cornerstone of
international human rights law. This principle, as first emphasized in the
Universal Declaration on Human Rights in 1948, has been reiterated in
numerous international human rights conventions, declarations, and
resolutions. The 1993 Vienna World Conference on Human Rights, for
example, noted that it is the duty of States to promote and protect all
human rights and fundamental freedoms, regardless of their political,
economic and cultural systems.
All States have ratified at least one, and 80% of States have ratified four
or more, of the core human rights treaties, reflecting consent of States
which creates legal obligations for them and giving concrete expression
to universality. Some fundamental human rights norms enjoy universal
protection by customary international law across all boundaries and
civilizations.
Human rights are inalienable. They should not be taken away, except in
specific situations and according to due process. For example, the right to
liberty may be restricted if a person is found guilty of a crime by a court
of law.
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8.2.2 Interdependent and Indivisible

All human rights are indivisible, whether they are civil and political
rights, such as the right to life, equality before the law and freedom of
expression; economic, social and cultural rights, such as the rights to
work, social security and education, or collective rights, such as the rights
to development and self-determination, are indivisible, interrelated and
interdependent. The improvement of one right facilitates advancement of
the others. Likewise, the deprivation of one right adversely affects the
others.
The improvement of one right facilitates advancement of the others.

Likewise, the deprivation of one right adversely affects the others.
Reflection
8.2.3 Equal and Non-discriminatory

Non-discrimination is a cross-cutting principle in international human
rights law. The principle is present in all the major human rights treaties
and provides the central theme of some of international human rights
conventions such as the International Convention on the Elimination of
All Forms of Racial Discrimination and the Convention on the
Elimination of All Forms of Discrimination against Women. The
principle applies to everyone in relation to all human rights and freedoms
and it prohibits discrimination on the basis of a list of non-exhaustive
categories such as sex, race, colour and so on. The principle of non-
discrimination is complemented by the principle of equality, as stated in
Article 1 of the Universal Declaration of Human Rights: ―All human
beings are born free and equal in dignity and rights.‖
8.2.4 Rights and Obligations
Human rights entail both rights and obligations. States assume
obligations and duties under international law to respect, to protect and to
fulfil human rights. The obligation to respect means that States must
refrain from interfering with or curtailing the enjoyment of human rights.
The obligation to protect requires States to protect individuals and groups
against human rights abuses. The obligation to fulfil means that States
must take positive action to facilitate the enjoyment of basic human
rights. At the individual level, while we are entitled our human rights, we
should also respect the human rights of others.
8.3 International Human Rights Law

International Human rights law is a set of international rules, established
by treaty or custom, on the basis of which individuals and groups can
expect and/or claim certain rights that must be respected and protected by
their States. The Universal Declaration of Human Rights is generally
agreed to be the foundation of international human rights law. Adopted in
1948, the UDHR has inspired a rich body of legally binding international
human rights treaties. It represents the universal recognition that basic
rights and fundamental freedoms are inherent to all human beings,
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inalienable and equally applicable to everyone, and that every one of us is

born free and equal in dignity and rights. Whatever our nationality, place
of residence, gender, national or ethnic origin, colour, religion, language,
or any other status, the international community on December 10, 1948
made a commitment to upholding dignity and justice for all of us.
In essence, international human rights law lays down obligations of
Governments to act in certain ways or to refrain from certain acts, in
order to promote and protect human rights and fundamental freedoms of
individuals or groups. Human rights law helps prevent violations, punish
violators, and afford some relief to victims. By becoming parties to
international treaties, States assume obligations and duties under
international law to respect, to protect and to fulfil human rights. The
obligation to respect means that States must refrain from interfering with
or curtailing the enjoyment of human rights. The obligation to protect
requires States to protect individuals and groups against human rights
abuses. The obligation to fulfil means that States must take positive
action to facilitate the enjoyment of basic human rights.
Through ratification of international human rights treaties, Governments
undertake to put into place domestic measures and legislation compatible
with their treaty obligations and duties. The domestic legal system,
therefore, provides the principal legal protection of human rights
guaranteed under international law. Where domestic legal proceedings
fail to address human rights abuses, mechanisms and procedures for
individual and group complaints are available at the regional and
international levels to help ensure that international human rights
standards are indeed respected, implemented, and enforced at the local
level.
There is a close relationship between international humanitarian law
(IHL) and international human rights law. While both human rights law
and international humanitarian law are aimed at protecting the individual,
international human rights law provides non-discriminatory treatment to
everybody at all times, whether in peacetime or in times of war or other
upheaval. International humanitarian law, on the other hand, is aimed at
ensuring a minimum of protection to victims of armed conflicts, such as
the sick, injured, shipwrecked and prisoners of war, by outlawing
excessive human suffering and material destruction in the light of
military necessity.
8.3.1 Violations of International Human Rights Law
Violations of human rights exist in every part of the world. Nelson
Mandela was released after twenty-six years of imprisonment for his
opposition to Apartheid in South Africa. Aun San Suu Kyi was placed
under house arrest for about fifteen years because the government of
Burma refused to acknowledge that her political party won the elections
in that country. Archbishop Oscar Romero was assassinated as he was
saying mass in El Salvador. Young women of Kosovo were
systematically raped at a Serb army camp. U.S. soldiers exchanged
photographs of detainees they had tortured and degraded in Iraq. A child
is compelled to leave primary school and work long hours in a brick
factory. A refugee is forced to return to his country of origin despite his
73
well-founded fear of political persecution. A woman with AIDS is

deprived of medical treatment that will prevent transmission of her illness
to her infant. Ken Saro Wiwa and the Ogoni 8 were hanged after an
‗unfair‘ trial. All these are examples of violation of fundamental human
rights.
International human rights law is applicable at all times, that is, both in times
of peace and in times of turmoil, including armed conflicts, whether of an
internal or international character. This means that there will be situations
when international human rights law and international humanitarian law will
Reflection be applicable simultaneously.
A state commits human rights violations either directly or indirectly.

Violations can either be intentionally performed by the state and or come
as a result of the state failing to prevent the violation. When a state
engages in human rights violations, various actors can be involved such
as police, judges, prosecutors, government officials, and more. The
violation can be physically violent in nature, such as police brutality,
while rights such as the right to a fair trial can also be violated, where no
physical violence is involved.
Another type of violation, failure by the state to protect, occurs when
there is a conflict between individuals or groups within a society. If the
state does nothing to intervene and protect vulnerable people and groups,
it is participating in the violations. Also, vivil, political, economic,
cultural, and social rights can all be violated through various means.
8.4 Sources of International Human Rights Law

The primary sources of international human rights law are treaties and
customary international law. The Universal Declaration of Human
Rights (UDHR), the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR) together form what is known as the
‗International Bill of Rights.‘ There are also treaties that deal specifically
with discrimination based on race and gender, torture, children, refugees,
workers and migrant workers. However, human rights are interdependent
and must be considered together when determining a state‘s human rights
responsibilities.
There are nine key multilateral treaties relevant to human rights law:
1) International Covenant on Civil and Political Rights;
2) International Covenant on Economic Social and Cultural Rights;
3) International Convention on the Elimination of all Forms of
Racial Discrimination;
4) Convention on the Elimination of all Forms of Discrimination
against Women;
5) Convention against Torture and Other Forms of Cruel, Inhuman
or Degrading Treatment or Punishment;
74
6) Convention on the Rights of the Child;

7) Convention relating to the Status of Refugees;
8) International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families; and
9) Rome Statute of the International Criminal Court.
Examine the Universal Declaration of Human Rights (UDHR), the International

Covenant on Civil and Political Rights (ICCPR) and the International Covenant
on Economic, Social and Cultural Rights (ICESCR). Make a list of their
similarities.
Activity Post your response on Study Session Eight assignment page on course website. You
may see schedule date on course blog

In this Study Session, you learnt that human rights are rights inherent to
all human beings, regardless of nationality, place of residence, sex,
national or ethnic origin, colour, religion, language, or any other status
Summary The principles of human rights include the fact that they are: universal
and inalienable, interdependent and indivisible, equal and non-
discriminatory, both rights and obligations.
You also learnt that International human rights law lays down
obligations of Governments to act in certain ways or to refrain from
certain acts, in order to promote and protect human rights and
fundamental freedoms of individuals or groups. The primary sources of
international human rights law are treaties and customary international
law.
Assessment
1. What do you think is the biggest challenge for human rights today and what
is the best way to address it?
2. How can we differentiate between international human rights law and
Assessment international humanitarian law?
3. What are the three sources that comprise the International Bill of Rights?
75
Bibliography
Gardbaum, S. (2018). ―Human Rights as International Constitution
Rights.‖ European Journal of International Law. 19(4): 749–68.
Kelly, L. (2006). ―Benefits and limitations of human rights frameworks:
the case of interpersonal violence‖. Analytic report on the CAHRV
Reading cross-cutting workshop, VALENCIA.
Smith, Rhona K. M. (2022) International Human Rights Law. Oxford:
Oxford University Press (8th ed).
Study Session 9
Asylum and Refugee Laws
Introduction
In this session we will examines the concept of refugee and the law
governing the protection of refugees.
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Study Session 9 Asylum and Refugee Laws
Learning Outcomes
9.1 explain who a refugee is.
9.2 explain the reasons for persecution.
9.3 highlight solutions to refugee problem.
9.4 discuss the principle of nonrefoulement.
9.5 point out the agencies involved in the protection of refugee.
9.6 discuss the role of states in the provision of asylum.
9.1 Who is a Refugee?

People who are forced to flee their homes due to persecution, whether on
an individual basis or as part of a mass exodus due to political, religious,
military or other problems, are known as refugees. The definition of a
refugee has varied according to time and place, but increased
international concern for the plight of refugees has led to a general
consensus. As defined in the 1951 United Nations Convention Relating to
the Status of Refugees (the Refugee Convention), a refugee is defined as a
person who owing to a well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality, and is unable to
or, owing to such fear, is unwilling to avail himself of the protection of
that country or return there because there is a fear of persecution. In
reality, asylum seekers only become refugees, and acquire related rights
in the host country, when they can prove to an asylum judge or official
that political authorities in their own country are unable or unwilling to
protect them from persecution based on these five grounds.
9.2 Reasons for Persecution

The reasons for persecution must be because of one of the five grounds
listed in Article 1 A(2) of the Refugee Convention: race, religion,
nationality, membership of a particular social group or political opinion.
Persecution based on any other ground will not be considered. The five
grounds allowed by the Refugee Convention as possible reasons for
persecution leading to refugee situations are:
1) Race is used in the broadest sense and includes ethnic groups and
social groups of common descent.
2) Religion also has a broad meaning, including identification with a
group that tends to share common traditions or beliefs, as well as
the active practice of religion.
3) Nationality includes an individual‘s citizenship. Persecution of
ethnic, linguistic and cultural groups within a population also may
be termed persecution based on nationality.
4) A particular social group refers to people who share a similar
background, habits or social status. This category often overlaps
with persecution based on one of the other four grounds. It has
77
applied to families of capitalists, landowners, homosexuals,

entrepreneurs and former members of the military.
5) Political opinion refers to ideas not tolerated by the authorities,
including opinions critical of government policies and methods. It
includes opinions attributed to individuals (i.e., the authorities
think a person has a certain political opinion) even if the individual
does not in fact hold that opinion. Individuals who conceal their
political opinions until after they have fled their countries may
qualify for refugee status if they can show that their views are
likely to subject them to persecution if they return home.
Definitions come into play when countries and organizations attempt to
determine who is and who is not a refugee. Asylum seekers—that is, those
who are seeking refugee status in another country-- normally need to
establish individually that their fear of persecution is well-founded and
undergo a legal procedure in which the host country decides if she or he
qualifies for refugee status. However, during a mass exodus, it may not
be possible for a host country to carry out individual screening. In such
circumstances, particularly when civilians are fleeing for similar reasons,
a ‗group‘ determination of refugee status may be declared, whereby each
civilian is considered a refugee, in the absence of evidence to the
contrary.
International law recognizes the right to seek asylum, but does not oblige
states to provide it. Nations at times offer ―temporary protection‖ when
they face a sudden mass influx of people and their regular asylum
systems would be overwhelmed. In such circumstances people can be
speedily admitted to safe countries, but without any guarantee of
permanent asylum. Thus ―temporary protection‖ is helpful to both
governments and asylum seekers in specific circumstances. Yet it only
complements and does not substitute for the wider protection measures
offered by the Refugee Convention.
9.3 Solutions to Refugee Situation

Refugee protection and assistance organizations generally promote three
―durable solution‖ to the fate of refugees:
9.3.1 Voluntary Repatriation
Refugees are able to return to their home country because their lives and
liberty are no longer threatened
9.3.2 Local Integration
Host governments allow refugees to integrate into the country of first
asylum; and
9.3.3 Resettlement in a third Country
Repatriation is unsafe and the first-asylum country refuses local
integration.
Most of the world‘s refugees wait for durable solutions for their
predicament. While most have been granted provisional or temporary
asylum in neighbouring countries, they are not able to regularize their
78
status or integrate. Their rights to move and work are often highly
restricted, and educational and recreational opportunities are often
nonexistent or severely lacking. These refugees may also be subject to
attack, either by local security forces or by cross-border incursions from
the country of origin.
9.4 Principle of Nonrefoulement

Prohibition of the forced return of a refugee is called nonrefoulement and
is one of the most fundamental principles in international refugee law.
This principle is laid out in Article 33 of the Convention Relating to the
Status of Refugees, which says that no state ―shall expel or return
(‗refouler‘ in French) a refugee in any manner whatsoever to the frontiers
of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or
political opinion‖.
Some countries detain asylum seekers upon arrival, during the asylum
process or while waiting for deportation (refoulement). Asylum seekers
may have already suffered imprisonment and torture in the country from
which they have fled. Therefore, the consequences of detention may be
particularly serious, causing severe emotional and psychological stress.
Article 31 of the Refugee Convention says that refugees should not be
penalized for having entered a country illegally if they have come directly
from a place where they were in danger and have made themselves
known to the authorities. Therefore, asylum seekers should not be
detained for being in possession of forged identity papers or for
destroying identity or travel documents.
Articles 12 - 30 of the Refugee Convention set out the rights which
individuals are entitled to once they have been recognized as Convention
refugees:
 All refugees must be granted identity papers and travel documents
that allow them to travel outside the country
 Refugees must receive the same treatment as nationals of the
receiving country with regard to the following rights:
- Free exercise of religion and religious education
- Free access to the courts, including legal assistance
- Access to elementary education
- Access to public relief and assistance
- Protection provided by social security
- Protection of intellectual property, such as inventions and trade
names
- Protection of literary, artistic and scientific work
- Equal treatment by taxing authorities
 Refugees must receive the most favourable treatment provided to
nationals of a foreign country with regard to the following rights:
- The right to belong to trade unions
- The right to belong to other non-political nonprofit organizations
- The right to engage in wage-earning employment
 Refugees must receive the most favourable treatment possible,
which must be at least as favourable to that accorded aliens generally
in the same circumstances, with regard to the following rights:
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- The right to own property

- The right to practice a profession
- The right to self-employment
- Access to housing
- Access to higher education
 Refugees must receive the same treatment as that accorded to aliens
generally with regard to the following rights:
- The right to choose their place of residence
- The right to move freely within the country
- Free exercise of religion and religious education
- Free access to the courts, including legal assistance
- Access to elementary education
- Access to public relief and assistance
- Protection provided by social security
- Protection of intellectual property, such as inventions and trade
names
- Protection of literary, artistic and scientific work
- Equal treatment by taxing authorities
9.5 Principal Assistance Agencies

The following organizations play key roles in assisting and protecting
refugees worldwide:
9.5.1 United Nations High Commissioner for Refugees
The United Nations High Commissioner for Refugees (UNHCR) was
created in 1951 to assist in the international protection of refugees. The
organization's primary objective is to ensure that all persons can exercise
the right to seek asylum and find safe refuge in another state, and to
return home voluntarily. One of the agency‘s pressing tasks is to
encourage governments to adopt fair and flexible processes to promote
just and effective refugee law. When UNHCR was first established,
material aspects of refugee relief (e.g., housing, food) were seen to be the
responsibility of the government that had granted asylum. As many of the
world's more recent major refugee flows have occurred in less developed
countries, however, UNHCR has acquired the additional role of
coordinating material assistance for refugees and returnees. Although this
was not UNHCR‘s original mandate, coordination of material assistance
has become one of its principal functions alongside protection and the
promotion of solutions.
9.5.2 International Committee of the Red Cross
The International Committee of the Red Cross (ICRC) is an independent
humanitarian organization that acts as a neutral entity in assisting and
protecting victims of war, from providing medical care to victims to
arranging exchanges of family messages. As members of the civilian
population, displaced persons benefit from ICRC protection and
assistance activities including the protection of civilians; visits to
detainees; medical assistance; food aid; and restoration of family links
between persons separated by war. The ICRC does not have a general
mandate to provide protection and assistance to internally displaced
80
persons. Over the years, however, it has provided limited assistance to

certain groups of internally displaced persons. The ICRC is considered
well placed to provide such help given its experience in humanitarian and
crisis situations. These operations have been carried out at the request of
the UN Secretary-General or the General Assembly, at the request of the
country involved.
9.5.3 The International Organization of Migration (IOM)
IOM assists with the return of rejected asylum seekers and refugees
referred by UNHCR.
9.6 National Protection and Service Agencies

The 1951 Refugee Convention does not force a state to admit a refugee,
that is, to grant asylum. It is clear that there is a gap here between the
individual‘s right to seek asylum and the state‘s discretion in providing it.
As a result of this ambiguous state of affairs, government‘s practice in
granting asylum varies widely, both in terms of the procedure they use for
determining refugee status and the actual legislation that is applied. States
can ask the UNHCR for assistance in determining refugee status.
A majority of states that have ratified the Refugee Convention have not
adopted domestic legislation to implement this treaty. Nonetheless, many
of these countries have provided protection to massive numbers of
individuals fleeing persecution. Although this action has saved many
lives, it has rarely been accompanied by procedures for individually
determining refugee status. As a result, refugees in these countries are
often uncertain as to their status and rights, and have no guarantee that
they will not be arbitrarily returned. Approximately one-third of the states
that have ratified the Refugee Convention have enacted domestic
legislation to implement the treaty. Although the details of the legislation
vary a great deal from state to state, there are certain common elements
arising out of the commitments of the Refugee Convention and as a result
of the procedures recommended by the UNHCR.
These states generally offer asylum to individuals who conform to the
Article 1 A (2) definition of a refugee. There is room for interpretation,
however. For example:
 What constitutes persecution?
 What evidence shows that a fear is well founded?
 On what grounds are persecution defined (race, religion,
nationality, membership of a particular social group, political
opinion)?
Aside from government service agencies many non-governmental and
volunteer organizations provide assistance to asylum seekers and
refugees.
Analyse the roles of any organization that play key roles in assisting and
protecting refugees worldwide using at least two case studies.
Post your response on Study Session Nine forum page on course website. You may
Discussion see schedule date on course blog
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Activity

In this Study Session, we identified refugees as people who are forced to
flee their homes due to persecution, whether on an individual basis or as
part of a mass exodus due to political, religious, military or other
Summary problems. For someone to be considered a refugee, the reasons for
persecution must be because of one of the five grounds listed in Article 1
A(2) of the Refugee Convention: race, religion, nationality, membership
of a particular social group or political opinion.
International law recognizes the right to seek asylum, but does not
compel states to provide it. Prohibition of the forced return of a refugee
is called nonrefoulement and is one of the most fundamental principles
in international refugee law.
Assessment
1. What is international refugee law?
2. Who qualifies for refugee status under international law?
Assessment 3. What is the role of the United Nations High Commissioner for Refugees
(UNHCR)?
Bibliography
Betts, A., and Loescher, G. (eds) (2010) Refugees in International
Relations (Oxford: Oxford University Press).
second edition.
Reading
Smith, Rhona K. M. (2022) International Human Rights Law. Oxford:
Oxford University Press (8th ed).
Text of the 1951 Convention Relating to the Status of Refugees.
https://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf
82
Study Session 10 International Criminal Law
Study Session 10
International Criminal Law
Introduction
International Criminal Law really began with World War II. Following
the Allies‘ victory, ad hoc tribunals were set up in Nuremburg and
elsewhere to try individuals charged with war crimes, genocide, and
crimes against humanity. In this Study Session, we will examine the
development and enforcement of international criminal law
Learning Outcomes
10.1 explain what is meant by international criminal law.
10.2 discuss the mechanisms for implementing international criminal law.
10.3 explain what international crimes are
10.4 discuss the concept of transitional justice
10.1 International Criminal Law

The principle that individuals are and can be held criminally accountable
for violations of the laws of war dates back to many years. However, it
was only after World War II and the Nuremberg and Tokyo trials, set up
to judge those German and Japanese military leaders accused of serious
crimes during the war, that the idea of individual criminal responsibility
for serious breaches of international law gained ground.
The current system of international criminal law works through
international ad hoc tribunals, internationalized or mixed tribunals, the
International Criminal Court as well as national courts (military tribunals
and ordinary courts). One of the legal consequences of framing an act as
an international crime is that it may give rise to what is called universal
jurisdiction, as we discussed earlier in Study Session 4, which allows any
state to try alleged perpetrators, even in the absence of any link between
the accused and the state exercising jurisdiction.
83
10.2 International Mechanisms of Implementation

Following World War II, early efforts to establish a permanent
international criminal court to ensure individual accountability for
international crimes did not go far as a result of Cold War tensions.
Moreover, the system instituted by the 1949 Geneva Conventions to
punish grave breaches of international humanitarian law through national
courts was not put in practice. A breakthrough came in 1993 and 1994
with the establishment by the UN Security Council of two ad hoc
international criminal tribunals: for the former Yugoslavia and Rwanda.
Other criminal tribunals with diverse international dimensions have since
been set up in Cambodia, East Timor, Kosovo and Sierra Leone, though
these courts have also included national legal elements in their
establishment and implementation. These ‗internationalized‘ or ―mixed‖
tribunals are established with the consent of the state on whose territory
the atrocities were committed.
‘Internationalized’ or “mixed” tribunals are established with the consent of

Hint
the state on whose territory the atrocities were committed.
A further landmark in the international justice system occurred in 1998

with the adoption of the 1998 Rome Statute for an International Criminal
Court. On 17 July 1998, 120 States adopted the Rome Statute of the
International Criminal Court (Rome Statute). On 1 July 2002, the Rome
Statute came into force upon its ratification by 60 States. This is
significant because it signals an international consensus on definitions of
genocide, crimes against humanity and war crimes. The International
Criminal Court issued its first judgment in 2012 when it found Congolese
rebel leader Thomas Lubanga Dyilo guilty of war crimes related to using
child soldiers.
The ICC, which began to operate in 2002, has a mandate to try cases
involving war crimes, crimes against humanity, and genocide. The Court is
intended to complement existing national judicial systems and can exercise
Hint
its jurisdiction only if national courts are genuinely unwilling or unable to
investigate or prosecute such crimes. (Article 17 of the 1998 Rome Statute of
the ICC).
10.3 International Crimes

An international crime has been broadly defined as ―an act universally
recognized as criminal, which is considered a grave matter of
international concern and for some valid reason cannot be left within the
exclusive jurisdiction of the state that would have control over it under
ordinary circumstances‖. Today, international criminal liability exists at
least in respect of war crimes, crimes against humanity, genocide and
torture. Other crimes such as terrorism-related crimes, enforced
disappearances and extrajudicial killings can arguably also be considered
international crimes but will not be dealt with here.
84
Study Session 10 International Criminal Law
Today, international criminal liability exists in respect of war crimes, crimes

against humanity, genocide and torture.
Tip
War crimes refer to ―grave breaches‖, as specified in the 1949 Geneva

Conventions and Additional Protocol I, along with other serious
violations of international humanitarian norms applicable in international
and non-international armed conflict. Despite the criminalization of acts
committed in non-international armed conflicts, important differences
remain between the laws applicable in such conflicts and those applicable
to international armed conflict, as evidenced by the shorter list of war
crimes that the ICC can prosecute in the context of non-international
armed conflicts.
Genocide covers acts such as murder or serious bodily or mental harm,
committed with the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such. Torture is generally
considered to be an aggravated form of inhuman treatment. Torture is not
only prohibited as a war crime or when it is part of a widespread or
systematic practice amounting to a crime against humanity but is also
prohibited as a single act. Under common Article 3 of the 1949 Geneva
Conventions and the 1998 ICC Statute, torture is outlawed as a war crime
or a crime against humanity with regard to both state actors and non-state
armed groups.
10.4 Transitional Justice

The notion of transitional justice comprises a range of processes and
mechanisms associated with a society‘s attempt to come to terms with a
legacy of large-scale past abuses in order to ensure accountability, serve
justice, and achieve reconciliation. It implies that the role of justice in
situations of transition is different from its role at other times.
Transitional justice can take many forms. However the importance of
justice as a means of transition to peace and reconciliation takes centre
stage, whether the means used are punitive such as criminal trials or
restorative such as truth and reconciliation commissions. This concept
emerged in the mid-1990s and seems to have originated in a desire to
return elements of justice to the centre of the transition process, as a
precondition for true peace.
Study the occurrences of genocide around the world since 1948 to 2008. The
following websites contain information that will help your study.
 http://www.historyplace.com/worldhistory/genocide/
 http://www.avon.k12.ma.us/genocide.htm
Reading Activity
Note your findings on your journal
85

In this Study Session, you were exposed to the idea of individual
criminal responsibility for serious breaches of international law. The
current system of international criminal law works through international
Summary ad hoc tribunals, internationalized or mixed tribunals, the International
Criminal Court as well as national courts. An international crime is an
act universally recognized as criminal, which is considered a grave
matter of international concern and for some valid reason cannot be left
within the exclusive jurisdiction of the state that would have control over
it under ordinary circumstances.
Assessment
1. What is international criminal law?
2. Which crimes come under the scope of application of international criminal
law?
Assessment
3. What role do international criminal courts and tribunals play to enforce
international criminal law?
Bibliography
Bassiouni, M.C., Introduction to International Criminal Law,
Transnational Publishers, 2003.
Cassese A., Gaeta P. and Jones J.R.W.D. (eds), The Rome Statute of the
International Criminal Court: A Commentary, Oxford University Press,
Reading 2002.
Cassese, A., International Criminal Law, Oxford University Press, 2nd
edition, 2008.
Cryer, R., Friman, H., Robinson, D., and Wilmshurst, E. , An
Introduction to International Criminal Law and Procedure, Cambridge
University Press, 2007.
Schabas, W.A., The UN International Criminal Tribunals. The former
Yugoslavia, Rwanda and Sierra Leone. Cambridge University Press,
2006.
Zahar, A. & Sluiter, G., International Criminal Law, Oxford University
Press, 2008.
86
Study Session 11 Terrorism
Study Session 11
Terrorism
Introduction
Terrorism has existed in the world for quite a long time. It has, however,
become a recurring feature of the 21st century international arena. In this
Study Session, we shall examine terrorism and international efforts
against it.
Learning Outcomes
11.1 define and use correctly the term ―terrorism‖.
11.2 discuss different types of terrorist incidence.
11.3 discuss international treaties against terrorism.
11.4 examine the obligations established by such treaties.
11.1 Meaning of Terrorism

Terrorism The violence or Terrorism is the systematic use of terror, especially as a means of
the threat of violence, especially
bombing, kidnapping, and
coercion. In the international community, however, terrorism has no
assassination, carried out for universally agreed, legally binding, criminal law definition. Common
political purposes. definitions of terrorism refer only to those violent acts which are intended
to create fear (terror), are perpetrated for a religious, political or,
ideological goal; and deliberately target or disregard the safety of non-
combatants (civilians). Some definitions now include acts of unlawful
violence and war. The use of similar tactics by criminal organizations for
protection rackets or to enforce a code of silence is usually not labelled
terrorism though these same actions may be labelled terrorism when done
by a politically motivated group.
The United States Department of Defense defines terrorism as ―the

calculated use of unlawful violence or threat of unlawful violence to
inculcate fear; intended to coerce or to intimidate governments or
societies in the pursuit of goals that are generally political, religious, or
ideological.‖ Within this definition, there are three key elements—
87
violence, fear, and intimidation—and each element produces terror in its

victims.
The Federal Bureau of Investigation (FBI) uses this: ―Terrorism is the
unlawful use of force and violence against persons or property to
intimidate or coerce a government, the civilian population, or any
segment thereof, in furtherance of political or social objectives.‖ The U.S.
Department of State defines ―terrorism‖ to be ―premeditated politically-
motivated violence perpetrated against non-combatant targets by sub-
national groups or clandestine agents, usually intended to influence an
audience.
International terrorism refers to terrorism that goes beyond national
boundaries in terms of the methods used, the people that are targeted or
the places from which the terrorists operate.
Terrorism is the calculated use of unlawful violence or threat of unlawful

violence to inculcate fear; intended to coerce or to intimidate governments
or societies in the pursuit of goals that are generally political, religious, or
ideological.
Tip
There are three perspectives of terrorism: the terrorist’s, the victim’s,

and the general public’s. The phrase ―one man‘s terrorist is another
man‘s freedom fighter‖ is a view terrorists themselves would accept.
Terrorists do not see themselves as evil. They believe they are legitimate
combatants, fighting for what they believe in, by whatever means
possible. A victim of a terrorist act sees the terrorist as a criminal with no
regard for human life. The general public‘s view is the most unstable.
The terrorists take great pains to foster a ―Robin Hood‖ image in hope of
swaying the general public‘s point of view toward their cause. This
sympathetic view of terrorism has become an integral part of their
psychological warfare and needs to be countered vigorously.
11.2 Types of Terrorist Incidents

The most common types of terrorist incidents include bombings,
kidnapping and hostage-takings, armed attacks and assassinations, arson
and fire bombings, hijacking and skyjackings and cyber terrorism among
others.
11.2.1 Bombings
Bombings are the most common type of terrorist act. Typically,
improvised explosive devices are inexpensive and easy to make. Modern
devices are smaller and are harder to detect. They contain very
destructive capabilities; for example, on August 7, 1998, two American
embassies in Africa were bombed. The bombings claimed the lives of
over 200 people, including 12 innocent American citizens, and injured
over 5,000 civilians. Terrorists often use materials that are readily
available to the average consumer to construct a bomb.
88
11.2.2 Kidnappings and Hostage-Takings

Terrorists use kidnapping and hostage-taking to establish a bargaining
position and to elicit publicity. Kidnapping is one of the most difficult
acts for a terrorist group to accomplish, but, if a kidnapping is successful,
it can gain terrorists money, release of jailed comrades, and publicity for
an extended period. Hostage-taking involves the seizure of a facility or
location and the taking of hostages. Unlike a kidnapping, hostage-taking
provokes a confrontation with authorities. It forces authorities to either
make dramatic decisions or to comply with the terrorist‘s demands. It is
overt and designed to attract and hold media attention. The terrorists‘
intended target is the audience affected by the hostage‘s confinement, not
the hostage.
11.2.3 Armed Attacks and Assassinations
Armed attacks include raids and ambushes. Assassinations are the killing
of a selected victim, usually by bombings or small arms. Drive-by
shootings is a common technique employed by unsophisticated or loosely
organized terrorist groups. Historically, terrorists have assassinated
specific individuals for psychological effect.
11.2.4 Arsons and Fire bombings
Incendiary devices are cheap and easy to hide. Arson and fire bombings
are easily conducted by terrorist groups that may not be as well-
organized, equipped, or trained as a major terrorist organization. Arson or
firebombing against a utility, hotel, government building, or industrial
centre portrays an image that the ruling government is incapable of
maintaining order.
11.2.5 Hijackings and Skyjackings
Hijacking is the seizure by force of a surface vehicle, its passengers,
and/or its cargo. Skyjacking is the taking of an aircraft, which creates a
mobile, hostage barricade situation. It provides terrorists with hostages
from many nations and draws heavy media attention. Skyjacking also
provides mobility for the terrorists to relocate the aircraft to a country that
supports their cause and provides them with a human shield, making
retaliation difficult.
Skyjacking provides terrorists with hostages from many nations and draws
heavy media attention. Skyjacking also provides mobility for the terrorists to
Hint
relocate the aircraft to a country that supports their cause and provides
them with a human shield, making retaliation difficult.
11.2.6 Cyber terrorism

Cyber terrorism is a form of terrorism that is only going to increase in
profile as we rely on computer networks to relay information and provide
connectivity to today‘s modern and fast-paced world. Cyber terrorism
allows terrorists to conduct their operations with little or no risk to
themselves. It also provides terrorists an opportunity to disrupt or destroy
networks and computers. The result is interruption of key government or
89
business-related activities. This type of terrorism isn‘t as high profile as

other types of terrorist attacks, but its impact can be very destructive.
Cyber terrorism, is not as high profile as other types of terrorist attacks, but its
impact can be very destructive.
Note
Other Types of Terrorist Incidents

In addition to the acts of violence discussed above, there are also
numerous other types of violence that can exist under the framework of
terrorism. Terrorist groups conduct maiming against their own people as
a form of punishment for security violations, defections, or informing.
Terrorist organizations also conduct robberies and extortion when they
need to finance their acts and they do not have sponsorship from
sympathetic nations.
Other Types of Terrorist Incidents

In addition to the acts of violence discussed above, there are also numerous
other types of violence that can exist under the framework of terrorism.
Terrorist groups conduct maiming against their own people as a form of
punishment for security violations, defections, or informing. Terrorist
organizations also conduct robberies and extortion when they need to finance
their acts and they don’t have sponsorship from sympathetic nations.
11.3 International Conventions against Terrorism

There are several international Conventions and protocols related to the
prevention and suppression of terrorism. The Convention on Offences
and Certain Other Acts Committed on Board Aircraft, adopted in Tokyo
in 1963, is considered to be the first international treaty against terrorism.
Five more were adopted during the 1970s:
 the 1970 Convention for the Suppression of Unlawful Seizure of
Aircraft
 the 1971 Convention for the Suppression of Unlawful Acts
against the Safety of Civil Aviation,
 the 1973 Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons, including
Diplomatic Agents,
 the 1979 International Convention against the Taking of
Hostages
 the 1979 Convention on the Physical Protection of Nuclear
Material.
Three treaties were adopted in 1988: the Convention for the Suppression
of Unlawful Acts against the Safety of Maritime Navigation, a Protocol
to that Convention for the Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on the Continental Shelf, and a
Protocol for the Suppression of Unlawful Acts of Violence at Airports
90
Serving International Civil Aviation, supplementary to the 1971

Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation.
The 1990s saw the adoption of the 1991 Convention on the Marking of
Plastic Explosives for the Purpose of Detection, the 1997 International
Convention for the Suppression of Terrorist Bombings and the 1999
International Convention for the Suppression of Financing of Terrorism.
In 2005, the international community also introduced substantive changes
to three of these universal instruments to specifically account for the
threat of terrorism; on 8 July of that year States adopted the Amendments
to the Convention on the Physical Protection of Nuclear Material, and on
14 October they agreed to both the Protocol of 2005 to the Convention
for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation and the Protocol of 2005 to the Protocol for the Suppression
of Unlawful Acts against the Safety of Fixed Platforms Located on the
Continental Shelf.
Two more legal instruments were added in 2010: the 2010 Convention on
the Suppression of Unlawful Acts Relating to International Civil Aviation
and the 2010 Protocol Supplementary to the Convention for the
Suppression of Unlawful Seizure of Aircraft. These treaties further
criminalize the act of using civil aircraft as a weapon, and of using
dangerous materials to attack aircraft or other targets on the ground. The
unlawful transport of biological, chemical and nuclear weapons and their
related material becomes punishable under the treaties.
11.4 Obligations Established by International

Treaties against Terrorism
Under international law, states have the responsibility to bring terrorists
to justice. This means that states need to ratify and effectively implement
the relevant conventions and binding UN Security Council Resolutions,
criminalize terrorist offences, establish appropriate penalties and
sentences that duly reflect the seriousness of the crimes and facilitate
mutual legal assistance in accordance with international law.
The principal obligation set forth in the international treaties against
terrorism is to incorporate the crimes defined in the treaty in question into
the domestic criminal law, and to make them punishable by sentences
that reflect the gravity of the offence. The states parties to these treaties
also agree to participate in the construction of ‗‗universal jurisdiction‘‘
over these offences, that is, to take the necessary measures to give their
courts very broad jurisdiction over the offences in question, including
jurisdiction based on territoriality, jurisdiction based on the nationality of
the offender and the victims and, according to most of these treaties,
jurisdiction based on the mere presence of a suspect in the territory of the
state. In addition, they accept the obligation either to extradite any
suspected offenders found in their territory or to begin criminal
proceedings against them.
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UN Global Counter-Terrorism Strategy: The UN General Assembly adopted

by consensus the UN Global Counter-Terrorism Strategy on 8 September
2006. The strategy is a unique global instrument to enhance national,
regional and international efforts to counter terrorism. The General
Assembly reviews the Strategy every two years, making it a living document
Tip attuned to Member States’ counter-terrorism priorities.
In order to facilitate extradition, these treaties invariably provide that the

offences in question shall not be considered political offences, which are
not extraditable under most treaties on extradition. In addition, these
treaties require various forms of co-operation among the states parties,
ranging from co-operation in preventing terrorist acts to co-operation in
the investigation and prosecution of the relevant offences.
The United Nations Security Council has adopted a number of resolutions
relating to terrorism. Some resolutions refer to specific terrorist acts, such
as United Nations Security Council resolution 1189 (1998), which
condemned the terrorist bomb attacks in Kenya and the United Republic
of Tanzania of August 1998; other resolutions are of a more general
character. Some of these Security Council resolutions are adopted under
chapter VII of the United Nations Charter and impose obligations on
United Nations Member States. Effective implementation of these
obligations by Member States is mandatory.
In implementing their obligations under the sanctions regimes established
against terrorist groups including Al-Qaida, ISIL and other affiliated
groups designated by the Security Council under resolution 1267 (1999),
many States have established a range of domestic mechanisms for giving
effect to the United Nations lists of designated individuals, groups or
entities. Often, this will involve the adoption of the lists, at a national
level, or the use of nationally-based designations of individuals or entities
appearing on them.
In addition, for countering the financing of terrorism, States are obliged
under Security Council resolution 1373 (2001), operative para. 1(c), to
freeze, without delay, funds, other financial assets or economic resources
of persons who commit, or attempt to commit, terrorist acts or participate
in or facilitate the commission of terrorist acts; or of entities they own,
control or direct, as well as of persons and entities acting on their behalf
or direction, and to prohibit their nationals or any persons and entities
within their territories from making any funds, financial assets or
economic resources or financial or other related services available,
directly or indirectly, for the benefit of persons who commit or attempt to
commit or facilitate or participate in the commission of terrorist acts
(operative para. 1(d)).
As a result, many States have in place, at a national level, legal and
institutional frameworks for the designation of individuals or groups their
governments consider to be terrorists, that are on the United Nations list,
or are designated for national or multilateral (e.g., European Union)
purposes.
92
Examine the significance of the 2002 Bali bombings.

.
Discussion Post your response on Study Session Eleven forum page on course website. You may
Activity see schedule date on course blog

In this Study Session, we discussed the meaning and perspectives of
terrorism. There are varied definitions of terrorism, the term is however
generally used in describing those violent acts which are intended to
Summary create fear (terror), and are perpetrated for a religious, political or,
ideological goal; and deliberately target or disregard the safety of non-
combatants (civilians). There are three perspectives of terrorism: the
terrorist, the victim, and the general public. Terrorists‘ incidences
include: bombings, kidnappings and hostage-takings, armed attacks and
assassinations, arsons, hijacking and skyjacking.
By international treaties against terrorism, states are to incorporate the
crimes defined in the treaty in question into the domestic criminal law,
and to make them punishable by sentences that reflect the gravity of the
offence.
Assessment
1. Compared with other serious international crimes, what are the
distinguishing features of terrorism?
2. Explain four types of terrorist incidents.
Assessment
3. What are the obligations of the states under international law to combat
terrorism?
93
Bibliography
second edition.
Jackson, R., Jarvis, L., Gunning, J. and Breen Smyth M. (2011).
Terrorism: A Critical Introduction. London: Palgrave Macmillan.
Reading
Fidler, David P. (2016). ―Cyberspace, Terrorism and International
Law.‖ Journal of Conflict and Security Law, vol. 21, issue 3, pp. 475-
493.
Weinberg, Leonard, Ami Pedahzur and Sivan Hirsch-Hoefler (2014).
―The Challenges of Conceptualizing Terrorism.‖ Terrorism and
Political Violence, vol. 16, issue 4, pp. 777-794.
https://www.un.org/counterterrorism/international-legal-instruments
Study Session 12
International Trade Law
Introduction
In this Study Session, we will examine legal frameworks that support
international trade. In doing so, we will explore the roles of organizations
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Study Session 12 International Trade Law
like World Trade Organization (WTO) and United Nations Commission

on International Trade Law (UNCITRAL).
Learning Outcomes
12.1 outline the evolution of international trade law.
12.2 discuss the roles of the WTO in regulating international trade.
12.3 explain the roles of the UNCITRAL in regulating international trade.
12.1 International Trade Law

International trade is the exchange of capital, goods, and services across
international borders or territories. In most countries, such trade
represents a significant share of gross domestic product (GDP). While
international trade has been present throughout much of history, its
economic, social, and political importance has been on the rise in recent
centuries.
International trade law regulates the global exchange of goods and
services. For a long time, most trade agreements were bilateral, meaning
between two nations. However, with the growth of global trade, countries
have increasingly used multilateral treaties, such as when nations within a
particular region sign an international trade agreement. Current examples
include the North America Free Trade Agreement (NAFTA) and the
South Asia Free Trade Agreement (SAFTA).
The multilateral trade agreement with the most members (signatories) is
the General Agreement on Tariffs and Trade (GATT). The GATT
comprises several rules on international trade, and is now part of the
World Trade Organization (WTO), which is not just an agreement, but is
also an international organization. In addition, there is the United Nations
Commission on International Trade Law (UNCITRAL), which is the core
legal body of the United Nations system responsible for helping to
facilitate international trade and investment. Let us discuss briefly on the
WTO and UNCITRAL.
International trade law includes the rules and customs governing trade
Hint
between countries.
12.1.1 The World Trade Organization

The World Trade Organization (WTO) is an international organization
established in 1995 as a result of the final round of the General
Agreement on Tariffs and Trade (GATT) negotiations, called the
Uruguay Round. GATT was formally signed on April 15, 1994, in
Marrakesh, Morocco, by representatives from 124 member countries.
GATT was known as the Uruguay Round of Talks because the wide-
ranging trade liberalization negotiations began in the Uruguayan resort of
Punta del Este in 1986.
The WTO, therefore, replaced GATT. The principal goal of the WTO is
free trade. WTO members promote free trade by lowering or eliminating
95
trade barriers such as tariffs. The sweeping trade pact opens global
markets between member countries for goods and services and projects a
worldwide reduction of tariffs of up to 40% and a $235-billion increase in
annual global income.
WTO is responsible for monitoring national trading policies, handling
trade disputes, and enforcing the GATT agreements, which are designed
to reduce tariffs and other barriers to international trade and to eliminate
discriminatory treatment in international commerce. In an effort to
promote international agreements, WTO negotiations are conducted in
closed sessions; many outsiders have strongly criticized such meetings as
antidemocratic.
Unlike GATT, the WTO is a permanent body but not a specialized
agency of the United Nations; it has far greater power to mediate trade
disputes between member countries and assess penalties. In the Uruguay
Round, agreement was reached to reduce tariffs on manufactured goods
by one third. Under the WTO, subsidies and quotas are to be reduced on
imported farm products, automobiles, and textiles, which were not
covered by GATT; there is also freer trade in banking and other services
and greater worldwide protection of intellectual property. Negotiations to
eliminate subsidies and protections for agricultural products, however,
have proved to be a stumbling block. The Doha Round of talks, launched
in 2001, have been deadlocked over such subsidies; the round was
originally scheduled to be finished in January, 2005.
Since its creation in January 1995, WTO has expanded the reach of trade
rules deep into the regulatory structure of 164 sovereign states, affecting
the daily lives of all citizens. As a result, it has found itself at the centre
of controversy in areas that are well outside the domain of traditional
trade policy. The response of public interest groups has been to demand a
role in WTO processes and for the WTO to undertake major reforms.
The WTO serves three important functions:
1) formulating trade rules and policy,
2) providing a forum for negotiating lower trade barriers, and
3) settlement of trade disputes between members.
The principal goal of the WTO is free trade. WTO members promote free
trade by lowering or eliminating trade barriers such as tariffs.
Tip
A General Council, comprised of all members, carries out the functions
of the WTO. It this on behalf of the Ministerial Conference, which only
meets every two years. The WTO is headquartered in Geneva and also
holds international ministerial conferences. It has 164 members as of
December 2022. Nigeria became a member on January 1, 1995.
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Study Session 12 International Trade Law
12.1.2 The United Nations Commission on International

Trade (UNCITRAL)
This is a United Nations-sponsored commission that seeks to create a
forum for countries to come together and set international trade law
standards. The United Nations Commission on International Trade Law
(UNCITRAL) works to unify and harmonize the rules of international
trade. UNCITRAL meets annually to discuss matters of international
trade, with meetings alternating between Austria and the United States.
Working groups meet outside the annual conference.
UNCITRAL was established by the General Assembly in 1966
(Resolution 2205(XXI) of 17 December 1966). In establishing the
Commission, the General Assembly recognized that disparities in
national laws governing international trade created obstacles to the flow
of trade, and it regarded the Commission as the vehicle by which the
United Nations could play a more active role in reducing or removing
these obstacles. The General Assembly gave the Commission the general
mandate to further the progressive harmonization and unification of the
law of international trade. The Commission has since come to be the core
legal body of the United Nations system in the field of international trade
law. The Commission is composed of seventy member States elected by
the General Assembly. Membership is structured so as to be
representative of the world's various geographic regions and its principal
economic and legal systems. Members of the Commission are elected for
terms of six years, the terms of half the members expiring every three
years.
12.3 Sources of International Trade Law

International trade law comes from three major sources:
 National laws, which are the fundamental source of international
trade law.
 International sources, consisting of all international conventions
relating to the fields of international commercial law. Three
conventions are particularly important:
 The Vienna Convention on the International Sale of
Goods (1980) which aims to provide a modern, uniform
and fair system for contracts for the international sale of
goods and which contributes to the security of trade.
 The Rome 1 Regulation (2008), which establishes
uniform rules for determining the law applicable to
contractual obligations of the European Union.
 The 1988 Ottawa Convention on International Factoring.
 The Lex Mercatoria, which is a collection of customs and
practices that form binding rules for those involved in
international trade. Certain private associations have given
themselves the objective of codifying these uses. For example,
the International Chamber of Commerce is the source of
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―Incoterms” or Uniform Customs and Practice for Documentary

Credits.

In this Study Session, you learnt that international trade is the exchange
of capital, goods, and services across international borders or territories.
International trade law regulates the global exchange of goods and
Summary services.
The World Trade Organization (WTO) is an international organization
established in 1995 as an instrument of international trade law. The
principal goal of the WTO is free trade. The WTO serves three important
functions: formulating trade rules and policy, providing a forum for
negotiating lower trade barriers, and settling trade disputes between
members.
The United Nations Commission on International Trade Law
(UNCITRAL) was established by the General Assembly in 1966 to serve
as a forum for countries to come together and set international trade law
standards. The General Assembly gave the Commission the general
mandate to further the progressive harmonization and unification of the
law of international trade.
Assessment
1. What are the sources of the international trade law?
2. Examine the purpose of the World Trade Organization.
Assessment
Bibliography
second edition.
Trebilcock, Michael J. and Trachtman, Joel. (2020) Advanced
introduction to international trade law. (Cheltenham: Edward Elgar
Reading Publishing)
https://uncitral.un.org/en/about
https://onu-vienne.delegfrance.org/What-is-international-trade-law-
International
http://www.justia.com/international-trade/
98
Study Session 13 International Environmental Law
Study Session 13
International Environmental Law
Introduction
Due to the fact that the earth has been so badly exploited and not
protected, this has created changes in weather patterns. The ozone layer
that should protect us from the dangerous rays of the sun has been
damaged and is not functioning as effectively as it did before. In this
Study Session, we shall examine international environmental laws put in
place to regulate and protect the environment from global perspective.
99
Learning Outcomes
13.1 explain the importance of the international environmental law.
13.2 highlight the established norms of international environmental law.
13.3 discuss the history of international environmental law.
13.1 International Environmental Law

The quality of our environment affects all of us no matter where we live.
When people abuse the environment, this affects us all. If water is
polluted, if the air is full of smoke and chemicals, if food contains
poisons, people (and plants and animals) are harmed. Many of the natural
resources that we use or consume every day, such as water, wood,
minerals and fish, will soon run out if we do not limit the rate at which
All people have a we use them. All people have a responsibility to protect and use the
responsibility to protect environment so as to ensure that it will be protected for us as well as
and use the environment future generations.
so as to ensure that it will
International environmental law is a body of international law concerned
be protected for us as well
as future generations.
with protecting the environment, primarily through bilateral and
multilateral international agreements. The foundations of the protection
of the environment in international law are fundamental principles of
customary international law, treaty law, judicial decisions, and ‗soft law‘
or non-binding sources such as resolutions, recommendations and
declarations of international organizations and conferences. The first
attempt to comprehensively address environmental issues on a global
level was the UN Conference on the Human Environment held in
Stockholm in 1972. The Conference resulted in the Stockholm
Declaration on the Human Environment and led to the creation of the UN
Environment Program (UNEP) which is based in Nairobi, Kenya. The
Stockholm Declaration set out a number of principles for safeguarding
the natural environment, the use of renewable resources, protection of
flora and fauna, restriction on discharge of toxic substances, prevention of
marine pollution and the relationship of environmental protection to
economic development.
International treaties are the most recent, and most effective, source of
Hint
international environmental law.
In 1982, the UN General Assembly adopted the World Charter for

Nature, based on the principle that the environment and living resources
are to be protected for their own worth. In 1983, the UN established the
World Commission on the Environment and Development, to address
issues of development and environmental protection. The resulting
Brundtland Report, published as Our Common Future, was adopted by
the General Assembly in 1987, and recommended an integrated approach
based on the principle of sustainable development. The second UN
Conference on Environment and Development was held in Rio in 1992.
The key documents agreed to at UNCED were the Rio Declaration on
100
Environment and Development and Agenda 21. The Rio Declaration is a

statement of principles and goals. Agenda 21 is a non-binding action plan
to guide States in all aspects of the environment and development, and
covers social and economic dimensions, conservation and management of
resources, strengthening the role of major groups, and the means of
implementation. UNCED also produced the Biodiversity Convention and
the United Nations Framework Convention on Climate Change
(UNFCCC).
Another important environmental law instrument is the Kyoto Protocol.
The Kyoto Protocol was adopted on 11 December 1997. Owing to a
complex ratification process, it entered into force on 16 February 2005.
Currently, there are 192 Parties to the Kyoto Protocol.
The Kyoto Protocol operationalizes the United Nations Framework
Convention on Climate Change (UNFCCC) by committing industrialized
countries and economies in transition to limit and reduce greenhouse
gases (GHG) emissions in accordance with agreed individual targets. The
Convention itself only asks those countries to adopt policies and
measures on mitigation and to report periodically. However, the Paris
Agreement was adopted on 12 December 2015 and came into force on 4
November 2016. In 2021, it replaced the Kyoto Protocol as the principal
regulatory instrument governing the global response to climate change.
Decisions by international courts or arbitrators, such as the International
Court of Justice or the International Tribunal for the Law of the Sea, also
shape international environmental law. The Trail Smelter Arbitration case
of 1938 and 1941, one of the earliest international environmental law
cases, involved a dispute between the United States and Canada over air
pollution from a Canadian smelting factory. The pollution blew across the
American-Canadian border and destroyed crops in the State of
Washington. After 15 years, an international arbitration panel established
the ―polluter pays principle,‖ a key foundation of international
environmental law. The polluter pays principle holds that if pollution
from one nation causes harm in another nation, then the polluter nation
must pay to remedy the damage.
Many international environmental law treaties, especially those
developed under the auspices of the United Nations, speak of
environmental law as a human rights issue. The Declaration of the
(Stockholm) Conference, for example, states that every human has the
right to a clean and healthy environment. Few nations, however, have a
legal framework that treats environmental law as a human rights issue.
Most citizens cannot sue their government when their right to a clean
environment is violated. Multilateral environmental treaties, therefore,
take a more practical, regulatory approach toward environmental law.
You need to note that while the development of international
environmental law has brought about positive changes in controlling
environmental degradation in many areas (e.g. protection of the ozone
layer), it proved to be inadequate and ineffective in many other areas (e.g.
climate change). In some cases, old environmental problems have
worsened and new environmental threats and challenges have emerged
101
13.2 Established Norms of International

Environmental Law
Norms are general legal principles that are widely accepted. This
acceptance is evidenced in a number of ways, such as international
agreements, national legislation, domestic and international judicial
decisions, and scholarly writings. The leading norms in the field of
international environmental law are addressed below.
13.2.1 Principle 21 of the 1972 Stockholm Declaration
on the Human Environment
Foremost among these norms is Principle 21 of the 1972 Stockholm
Declaration on the Human Environment. Principle 21 maintains that
―States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own
resources pursuant to their own environmental law and development
policies, and the responsibility 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.‖ This is based
on the ancient Roman maxim, sic utero tuo et alienum non laedas,
roughly translated as, ―don‘t behave in a way that harms your neighbour.‖
Most international environmental agreements that have been negotiated
over the past 20 years have reaffirmed this principle, including Agenda
21 and the Biodiversity Convention, both adopted at the United Nations
Conference on Environment and Development in Rio de Janeiro, Brazil,
in June 1992 (commonly called the Earth Summit).
13.2.2 The Duty of a State to Notify and Consult
Another widely shared norm is the duty of a state to notify and consult
with other states when the first state undertakes an operation (such as the
construction of a power plant) that is likely to harm neighbouring
countries‘ environments, such as impairing air or water quality in
downwind or downstream states.
13.2.3 The Duty of a State to Monitor and Assess
Environmental Conditions
Over and above the duty to notify and consult, a relatively new norm has
emerged whereby states are expected to monitor and assess specific
environmental conditions domestically and disclose these conditions in a
report to an international agency or international executive body created
by an international agreement and authorized by the parties to the
agreement to collect and publicize such information.
13.2.4 Citizens’ Right to a Decent and Healthy
Environment
Another emerging norm is the guarantee in the domestic constitutions,
laws, or executive pronouncements of several states, including India,
Malaysia, Thailand, Indonesia, Singapore, and the Philippines, that all
102
citizens have a right to a decent and healthful environment. In the United

States, this fundamental right has been guaranteed by a handful of states
but not by the federal government.
13.2.5 The Polluter Pays Principle
Most industrialized countries subscribe to the polluter pays principle.
This means polluters should internalize the costs of their pollution,
control it at its source, and pay for its effects, including remediation or
cleanup, rather than forcing other states or future generations to bear such
costs.
13.2.6 The Precautionary Principle
Another norm of international environmental law, which is also
articulated in Agenda 21, is the precautionary principle. This is basically
a duty to foresee and assess environmental risks, to warn potential
victims of such risks, and to behave in ways that mitigate such risks.
13.2.7 Environmental Impact Assessment
Environmental impact assessment is another widely accepted norm of
international environmental law. Typically, such an assessment balances
economic benefits with environmental costs. The logic of such an
assessment dictates that before a project is undertaken, its economic
benefits must substantially exceed its environmental costs.
13.2.8 Inviting the Input of Nongovernmental
Organizations (NGOs)
Another recent norm is to invite the input of nongovernmental
organizations (NGOs), especially those representing community-based
grassroots environmental activists. This NGO participation ensures that
the people who are likely to be most directly affected by environmental
accords will have a major role in monitoring and otherwise implementing
the accord.
13.2.9 Principle of Sustainable Development
In October 1982, the United Nations General Assembly adopted the
World Charter for Nature and Principles of Sustainable Development.
This agreement expressly recognized the principle of sustainable
development, which was defined as using living resources in a manner
that ―does not exceed their natural capacity for regeneration‖ and using
―natural resources in a manner which ensures the preservation of the
species and ecosystems for the benefit of future generations.‖ The
principle of sustainable development was also acknowledged in the 1987
report Our Common Future, published by the United Nations World
Commission on Environment and Development (which was chaired by
Gro Harlem Brundtland, prime minister of Norway). This report defined
sustainable development as ―humanity‘s ability to ensure that
[development] meets the needs of the present generation without
compromising the ability of future generations to meet their needs.‖
Sustainable development, in the view of many, is the overarching
paradigm of international environmental policy.
103
13.2.10 Intergenerational Equity

Intergenerational equity is among the newest norms of international
environmental law. It can best be understood not so much as a principle
but rather as an argument in favor of sustainable economic development
and natural resource use. If present generations continue to consume and
deplete resources at unsustainable rates, future generations will suffer the
environmental (and economic) consequences. It is our children and
grandchildren who will be left without forests (and their carbon retention
capacities), without vital and productive agricultural land and without
water suitable for drinking or sustaining life.
Therefore, we must all undertake to pass on to future generations an
environment as viable as the one we inherited from the previous
generation. Proponents of intergenerational equity maintain that the
present generation has a moral obligation to manage the earth in a manner
that will not jeopardize the aesthetic and economic welfare of the
generations that follow. From this moral premise flow certain ecological
commandments: Do not cut down trees faster than they grow back. Do
not farm land at levels, or in a manner, that reduces the land‘s
regenerative capacity. Do not pollute water at levels that exceed its
natural purification capacity.
13.2.11 the Principle of Common Heritage of Humanity
At the 1982 United Nations Conference on the Law of the Sea,
developing countries articulated the norm that certain resources, such as
deep seabed, are part of the common heritage of humanity and must be
shared by all nations.
13.2.12 the Principle of Common but Differentiated
Responsibilities
Finally, and of special importance to developing countries, the principle
of common but differentiated responsibilities was articulated in the Rio
Declaration of 1992 (Principle 7). This means that all countries have a
shared responsibility to protect the global environment, but the richer
countries have a special responsibility to undertake and pay for
preventive and remedial action.
13.3 Environmental Dispute Resolution

The Permanent Court of Arbitration (PCA), established by treaty in 1899,
is an intergovernmental organization providing a variety of dispute
resolution services to the international community. The PCA‘s Optional
Rules for Arbitration of Disputes Relating to the Environment and/or
Natural Resources (―Environmental Rules‖) were adopted in 2001. The
rules were drafted by a working group and committee of experts in
environmental law and arbitration. The Environmental Rules seek to
address the principal gap in environmental dispute resolution identified
by the working group. The Optional Rules for Conciliation of Disputes
Relating to the Environment and/or Natural Resources were adopted in
2002. These Rules provide the most comprehensive set of
104
The Permanent Court of environmentally tailored dispute resolution procedural rules presently
Arbitration in The Hague, available. The PCA also provides guidance on drafting environmentally
Netherlands currently with related dispute settlement clauses.
115 member states
provides services for 13.3.1 Panels of Environmental Experts
resolution of disputes
involving states, state The Environmental Arbitration Rules provide for the establishment of a
entities, intergovernmental specialized list of arbitrators considered to have expertise in this area. The
organizations, and private Rules also provide for the establishment of a list of scientific and
parties. technical experts who may be appointed as expert witnesses pursuant to
these Rules. Parties to a dispute are free to choose arbitrators, conciliators
and expert witnesses from these Panels. However, the choice of
arbitrators, conciliators or experts is not limited to the PCA Panels.
13.3.2 Multilateral Environmental Agreements

The Environmental Rules were drafted, inter alia, to serve as procedural
rules for the resolution of disputes between States parties to multilateral
environmental agreements (―MEAs‖). To assist with the incorporation of
references to the PCA‘s Environmental Rules in the dispute resolution
clauses in these instruments, the PCA participates regularly in
negotiations facilitated by United Nations convention secretariats, such as
Conferences of the Parties to the UN Framework Convention on Climate
Change (UNFCCC). Recourse to arbitration administered by the PCA is
also among the dispute settlement options recommended in the draft
International Covenant on Environment and Development, a model
agreement developed by non-governmental organizations with the
purpose of facilitating treaty negotiations in the environmental sector.
How is the Paris Agreement different from the Kyoto Protocol?
Post your response on Study Session Thirteen forum page on course website. You
Discussion
may see schedule date on course blog
Activity

In this Study Session, we examined the attempt to address environmental
issues on a global level. The Stockholm Declaration set out a number of
principles for safeguarding the natural environment, the use of
Summary renewable resources, protection of flora and fauna, restriction on
discharge of toxic substances, prevention of marine pollution and the
relationship of environmental protection to economic development.
The second UN Conference on Environment and Development held in
Rio in1992 produced the Rio Declaration on Environment and
Development and Agenda 21. There are several leading norms in the
field of international environmental law. It is a significant principle of
customary international law that States must ensure that activities within
their jurisdiction or control do not cause damage to the environment of
10
5
other States.
The Permanent Court of Arbitration‘s Optional Rules for Arbitration of
Disputes Relating to the Environment and/or Natural Resources
(―Environmental Rules‖) were adopted in 2001 while the Optional Rules
for Conciliation of Disputes Relating to the Environment and/or Natural
Resources were adopted in 2002.
Assessment
1. Is international environmental law effective in building or demonstrating a
global consensus on the need for improved environmental protection?
2. How can norms be used to help improve global environmental conditions?
Assessment
Bibliography
Alam, S., Atapattu, S., Gonzalez, C. G. & Razzaque, J. (Eds.). (2015).
International Environmental Law and the Global South. Cambridge:
Cambridge University Press.
Sands, P. & Peel, J. (Eds). (2012). Principles of International
Reading Environmental Law. Cambridge: Cambridge University Press (3rd ed).
Shaw, Malcolm N. (2021) International Law. Cambridge: Cambridge
University Press (9th ed.)
Study Session 14
Enforcement of International Law
Introduction
As we discussed earlier in Study Session 1, international law has no
international police force to oversee obedience to the international legal
standards. Likewise, there is no compulsory enforcement mechanism for
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Study Session 14 Enforcement of International Law
the settlement of disputes. In this session, we shall examine how these

disputes resolved and how international laws are enforced.
Learning Outcomes
14.1 discuss the enforcement tactics of states.
14.2 describe methods of dispute resolution in the
international community.
14.3 analyze the use of force in international community.
14.4 discuss the means of the UN peacekeeping operations.
14.1 Implementation and Enforcement of

International Law
Collective Security The International law is often implemented and enforced through national
maintenance of peace and
security through the united
legal systems as well as through a variety of specialized international
action of nations. courts, tribunals and treaty bodies. The United Nations charter is
principally concerned with the preservation of world peace, including
through various methods for resolving disputes peacefully (see article 33
of the UN charter). These methods range from informal, nonbinding,
diplomatic methods through to formal and binding judicial settlement.
The Charter also provides for special measures of coercive enforcement
in response to the use of military force, including unilateral or collective
self-defence (Article 51 of the Charter) and collective security measures
(such as sanctions, peacekeeping, and military force) under Chapter VII
of the Charter.
Also, as we have seen in a previous study session, the Charter of the UN
established the International Court of Justice (ICJ), the principal judicial
organ of the United Nations, as a means by which Member States may
settle their disputes peacefully, in accordance with international law. The
Court can also give advisory opinions on legal questions referred to it by
duly authorized international organs and agencies. Member States of the
United Nations, in cases to which they are parties, are obliged to abide by
the Court‘s decisions. However, before a case can go before the Court, a
State must have accepted the jurisdiction of the Court, either in general or
in relation to a specific case. A State that has not accepted the Court‘s
jurisdiction cannot be forced to appear before the International Court of
Justice.
A treaty may have incorporated into its own text enforcement provisions,
such as arbitration of disputes or referral to the ICJ. However, some
treaties may not expressly include such enforcement mechanisms.
Especially in situations where the international law in question is not
explicitly written out in a treaty, one can question how this unwritten law
can be enforced. In an international system where there is no overarching
authoritative enforcer, punishment for non-compliance functions
differently.
107
14.1.1 Enforcement Tactics

States are more likely to fear tactics used by other states, such as
reciprocity, collective action, and shaming.
Reciprocity
Reciprocity is a type of enforcement by which states are assured that if
they offend another state, the other state will respond by returning the
same behavior. Guarantees of reciprocal reactions encourage states to
think twice about which of their actions they would like imposed upon
them. For example, during a war, one state will refrain from killing the
prisoners of another state because it does not want the other state to kill
its own prisoners. In a trade dispute, one state will be reluctant to impose
high tariffs on another state‘s goods because the other state could do the
same in return.
Collective Action
Through collective action, several states act together against one state to
produce what is usually a punitive result. For example, Iraq‘s 1990
invasion of Kuwait was opposed by most states, and they organized
through the United Nations to condemn it and to initiate joint military
action to remove Iraq. Similarly, the United Nations imposed joint
economic sanctions, such as restrictions on trade, on South Africa in the
1980s to force that country to end the practice of racial segregation
known as apartheid.
Shaming
Most states dislike negative publicity and will actively try to avoid it, so
the threat of shaming a state with public statements regarding their
offending behaviour is often an effective enforcement mechanism. This
method is particularly effective in the field of human rights where states,
not wanting to intervene directly into the domestic affairs of another
state, may use media attention to highlight violations of international law.
In turn, negative public attention may serve as a catalyst to having an
international organization address the issue; it may align international
grassroots movements on an issue; or it may give a state the political will
needed from its populace to authorize further action.
14.2 Dispute Resolution

Disputes are resolved in various ways in the international community.
But let us examine some resolution methods.
14.2.1 Negotiation
A discussion of the issues between the parties, without the participation
of any third party is a negotiation. Some organizational forums exist for
States to raise issues in dispute as well as dealing with coordination of
policy. Examples are the South Pacific Forum (regular meetings of the
independent countries of the South-Western Pacific) and the Group of
Eight (G-8) (regular meetings of the eight largest Western economic
powers), increasingly with the input of the other States with emerging
economies (China, India, Brazil, Mexico and South Africa) or ‗G8+5‘.
108
G8 countries are France, the United States, United Kingdom, Russia,

Germany, Japan, Italy and Canada.
14.2.2 Inquiry
If States agree to have a third party determine certain issues of fact which
are relevant to their dispute, an inquiry is held. This mechanism can then
be used as the basis of future negotiations between the parties.
14.2.3 Mediation and conciliation
This mechanism involves a third party, and range in formality from that
third party acting as an honest broker between States in dispute, who may
have severed diplomatic relations, through to the making of a binding
determination by an arbitrator.
14.2.4 Arbitration
Arbitration is a more formal method of dispute settlement which involves
the parties in dispute agreeing to submit to a binding decision by an
arbitrator, while (unlike in a judicial court) retaining some degree of
control over the selection of the arbitrator and the applicable law and
procedure. One example of an arbitral body is the Permanent Court of
Arbitration, set up under The Hague Conventions on Pacific Settlement
of International Disputes, which provides experienced arbitrators and
clear procedural rules for the conduct of arbitrations. Other arbitral bodies
exist in specialized areas such as foreign investment disputes.
14.2.5 Judicial Settlement
The world Court, the International Court of Justice can decide disputes
between States. Its decisions are binding only on the parties to a
particular dispute. States must agree to the ICJ having jurisdiction before
it can hear a case:
1) A State can make an Optional Declaration, by forwarding to the
Secretary-General a declaration that it unilaterally accepts the
jurisdiction of the Court. Once a State has done so, it accepts the
jurisdiction of the Court in disputes with other States that have
made such a declaration. A State can limit the scope or subject
matter of disputes that can go the Court by making a reservation.
For example, New Zealand and the UK have made declarations
with reservations excluding disputes with other Commonwealth
countries; France‘s declaration excludes disputes relating to
nuclear testing; and Australia‘s declaration excludes maritime
boundary disputes.
2) The States in dispute can agree to bring a particular dispute to the
Court;
3) A State may consent to the Court having jurisdiction where another
State has commenced an action unilaterally;
4) A treaty or convention may specify that the Court has jurisdiction
to decide disputes about the interpretation or application of the
treaty (for example, the Convention on the Prevention and
Punishment of the Crime of Genocide 1948).
10
9
Arbitration is a more formal method of dispute settlement which involves the

parties in dispute agreeing to submit to a binding decision by an arbitrator,
while (unlike in a judicial court) retaining some degree of control over the
selection of the arbitrator and the applicable law and procedure.
Note
There is no mechanism for enforcement of orders of the ICJ other than

the possibility of referral to the Security Council. States have usually
been willing to obey the orders of the ICJ. The ICJ can give a non-
binding Advisory Opinion on issues when requested by the General
Assembly, Security Council or other UN agencies.
14.2.6 Binding Mechanisms
As noted earlier, there are a range of specialized international or mixed
criminal tribunals which have enforced international criminal law. In
addition, in other specialized areas of international law, there are also
binding enforcement mechanisms. One example is the International
Tribunal for the Law of the Sea in Hamburg, Germany, which hears
disputes between States under the 1982 Convention on the Law of the
Sea. Another example is the dispute settlement panels of the WTO which
determines trade disputes between member States of the WTO. A further
example is the European Court of Human Rights, which issues binding
decisions concerning human rights violations involving member States of
the European Convention on Human Rights.
14.2.7 Non-Binding Mechanisms
Various mechanisms have been established for supervising the
implementation of international treaty obligations, particularly in the
human rights area. These procedures include:
Reporting
States parties may be required to submit periodic reports on their
domestic implementation of treaty obligations.
State Complaints
Member States may be able to make complaints against other States.
Individual Complaints
Some treaties provide an avenue for individuals to complain about the
conduct of a State. The findings of human rights bodies in individual
cases are not binding but they are regarded as highly persuasive and
States frequently respond positively to the findings.
Independent Monitoring of Compliance
Some treaties provide for an independent mechanism to measure
compliance with the treaty obligations.
110
14.3 Use of Force

Before 1945, international law generally allowed States to resort to
military force to settle their disputes, which often led to the escalation of
military violence and ultimately to world wars. Since the adoption of the
UN Charter, all member States are required to refrain from the threat or
use of force against the territorial integrity or political independence of
any State, or in any manner inconsistent with the purposes of the UN:
Article 2(4) of the UN Charter. There are two basic exceptions to this
general prohibition on the use of force: self defense in response to an
armed attack (article 51) and collective security measures authorized by
the UN Security Council (Chapter VII of the Charter). A third possible
exception is not established: humanitarian intervention to protect human
rights (as in NATO‘s attack on Kosovo in Yugoslavia in 1999), in
circumstances where the intervening State is not exercising self-defense
and there is no Security Council authorization to use force.
Since the adoption of the UN Charter, all member States are required to refrain
from the threat or use of force against the territorial integrity or political
independence of any State, or in any manner inconsistent with the purposes of
the UN: Article 2(4) of the UN Charter. There are however two basic exceptions
to this general prohibition on the use of force: self-defence in response to an
Note armed attack (article 51) and collective security measures authorized by the UN
Security Council (Chapter VII of the Charter).
14.3.1 Unilateral Use of Force

A State has the right of individual or collective self-defence ‗if an armed
attack occurs‘ under Article 51 of the UN Charter, meaning where
military force is used by one State against another, or by non-State
militant groups which are controlled by one State and sent to attack
another. A State which is subjected to an armed attack can request
assistance from other States (‗collective self-defence‘). There is
disagreement as to whether this right is limited to situations where an
armed attack has actually occurred, or includes action in anticipation of
attack. The UN Secretary General accepts that States have a right to use
force in self-defence if an armed attack is imminent (for example, there is
good intelligence that an attack is about to happen and there are no other
means available to prevent it). In contrast, the outer limits of self-defence
have been pushed by theories of ‗pre-emptive self-defence‘ by which
States seek to argue that they are justified to use force unilaterally to
prevent more remote or distant threats, in circumstances where the time
or place of the attack is far more uncertain. This theory was most recently
used by the United States in its invasion of Iraq in March 2003 to the
extent that it relied on the existence of weapons of mass destruction, in
circumstances where there was no evidence of an intention by Iraq to use
those weapons the US, and where evidence of the existence of any such
weapons was in doubt.
14.3.2 Collective Use of Force
Articles 24 and 25 of the UN Charter permit the UN Security Council to
use collective force against a threat to international peace and security.
111
For example, the Security Council triggered this power in the early stages
of the Korean War and during the Iraq invasion of Kuwait in 1990. The
Security Council rarely invokes this power, though, and prefers to exert
its authority through economic sanctions or other non-military measures.
Each of the five permanent members of the Security Council holds a veto
power, and they usually do not share the same perspective on any given
international conflict.
The Security Council sometimes has authorized the use of force in
humanitarian missions that do not involve overtly taking sides between
states. For example, it mobilized a United Nations Protection Force
(UNPROFOR) for a peacekeeping operation during the turmoil that
resulted from the breakdown of the former Yugoslavia. At various points
during the operation, UNPROFOR was authorized to use force for
humanitarian purposes.
In general, the Security Council is required to encourage States to resolve
their disputes by peaceful means. If there is a threat to, or breach of
international peace and security, the Security Council can respond,
although the Council does not control its own military forces. The
Security Council can impose non-forceful sanctions, or take forceful
measures by authorizing willing States to use delegated force on its
behalf. Between 1945 and 1990, the Security Council only authorized
forceful measures once, in response to North Korea‘s invasion of South
Korea in 1950. In 1990, the Security Council authorized forceful
measures against Iraq following its invasion of Kuwait. Since then the
Security Council has authorized forceful measures in a number of
situations, including in Bosnia-Herzegovina, Somalia, Rwanda and Haiti.
These collective forceful measures are not under the command of the UN,
but of one or more of the participating countries.
The Security Council can authorize regional organizations or agencies to
undertake enforcement action. In July 2007, the Security Council
authorized the use of force by a hybrid UN and African Union force in
Sudan to protect and ensure freedom of movement for its own personnel
and humanitarian workers, prevent armed attacks and protect civilians in
order to support implementation of the Darfur Peace Agreement.
UN Security Council Resolution 1973 of 17 March 2011 is an example of
the authorisation of the use of force by the UN Security Council. On the
17 February 2011, soon after the outbreak of protests in Egypt and
Tunisia, which marked the beginning of ‗The Arab Spring‘, Libyans in
Benghazi joined in peaceful protests against the oppressive rule of
Colonel Muammar Gaddafi. They demanded that he step down after 42
years of ruling Libya and called for an open, democratic and inclusive
Libya. They demanded the end of an era of oppression and gross human
rights violations in the country, such as those committed in 1996 in the
Abu Salim prison. The response of Gaddafi to this protest with armed
violence against civilian protesters ignited a civil war between the
government forces in support of Gaddafi and the opposition armed forces
formed by the rebels.
On 17 March 2011, the UN Security Council, acting under Chapter VII of
the UN Charter, adopted Resolution 1973 authorising member states ‗to
take all necessary measures […] to protect civilians and civilian
112
populated areas under threat of attack in the Libyan Arab Jamahiriya,

including Benghazi, while excluding a foreign occupation force of any
form on any part of Libyan territory.‘
14.4 Peacekeeping Operation

The UN peacekeeping operations involve the deployment of armed troops
to assist in the implementation of agreements reached between the UN
and parties to a conflict. Consent from all parties to the conflict is needed,
and the peacekeepers are impartial. Peacekeeping operations do not
involve the use of force except in self-defence. Peacekeeping operations
are under UN command, under the authority of the Security Council.
Peacekeeping forces are multinational in composition, selected in
consultation with the parties to the conflict, and traditionally exclude
troops from the permanent five members of the Security Council.
UN peacekeeping operations have included monitoring cease-fires,
organizing and supervising elections, monitoring arms flows and
demobilizing troops, supervising government functions and disarmament,
monitoring human rights obligations, and assisting in the delivery of
humanitarian relief. All members of the UN are obliged to contribute to
the costs of peacekeeping costs. Since 1948, more than 70 peacekeeping
operations have been deployed by the UN. Over the years, hundreds of
thousands of military personnel, as well as tens of thousands of UN
police and other civilians from more than 120 countries have participated
in UN peacekeeping operations. In 1988, the Nobel Peace Prize was
awarded to UN peacekeeping forces.
Make a PowerPoint presentation of UN peacekeeping missions since 1948.

Post your response on Study Session Fourteen forum page on course website. You
Discussion may see schedule date on course blog
Activity

In this Study Session, we examined how international law is
implemented and enforced through national legal systems as well as
through a variety of specialized international courts, tribunals and treaty
Summary bodies. States also use tactics such as reciprocity, collective action, and
shaming to ensure compliance with international obligations.
Disputes are resolved in various ways in the international community.
These include: negotiation, inquiry, mediation and conciliation,
arbitration, and judicial settlement. The UN peacekeeping operations
involve the deployment of armed troops to assist in the implementation
of agreements reached between the UN and parties to a conflict.
113
Assessment
1. Assess the effectiveness of the United Nations in their enforcement of
international law.
2. What are the methods of enforcing international law?
Assessment
Bibliography
second edition.
Jo, H., & Simmons, B. A. (2016). Can the international criminal court
deter atrocity? International Organization, 70, 443–475.
Reading
The Kyoto Protocol. https://unfccc.int/resource/docs/convkp/kpeng.pdf
https://unfccc.int/files/essential_background/convention/application/pdf/
english_paris_agreement.pdf
114
Study Session 15 International Law in Nigeria
Study Session 15
International Law in Nigeria
Introduction
Domestic law can have a bearing on international law; likewise,
international law can affect domestic law both directly and indirectly. To
what extent is international law part of domestic law? What steps are
required to allow international law to operate as a part of domestic law?
These and many more are the issues that we will address in the
concluding session of this course, using domestication of international
law in Nigeria as a case study.
Learning Outcomes
15.1 analyze Nigeria in the international community.
15.2 examine the traces of international law in Nigeria‘s domestic law.
15.3 highlight components of international law that is being implemented in
Nigeria.
15.1 Nigeria in the World

Nigeria is a federal republic consisting of 36 states. Nigeria occupies a
strategic economic, military and political position in Africa, as is captured
by the reference to her as the ―Giant of Africa‖. The geo-political
importance of Nigeria is deep-rooted in history and has impacted
variously, negatively and positively, on her relations with countries in
Africa and the rest of the world. Within Africa, Nigeria has defined her
own political and socioeconomic security with that of the rest of Africa,
playing a prominent and frontline role in African politics, in the
establishment of the Organization of African Unity (OAU), and of its
successor, The African Union (AU), and of the Economic Community of
West African States (ECOWAS); in the formation of ECOMOG and in
the liberation of Southern Africa.
Within the United Nations and in other multilateral international

organizations, Nigeria has also been a foremost African country, earning
respect for herself as a champion of African causes and contributing men
and material to UN and other peacekeeping operations in various parts of
the world. Because of the international stature of the country, other
countries and international organizations continue to show keen interest
in her domestic politics and economic policies, including the protection
and promotion of human rights.
115
15.2 International Law in Nigeria’s Domestic Law

Nigeria is signatory to more than 200 International treaties of bi-lateral
and multi-lateral nature. And as a member of the international
community, Nigeria is bound by treaties it enters into. According to
section 12, subsection 1 of the 1999 Nigerian Constitution; all treaties
need to be enacted into law by the National Assembly. In cases where
that law deals with matters upon which the Federation does not have
exclusive competence, it has to be ratified by a majority of all the state
legislative bodies before being presented to the President for assent and
enacted (section 12, subsections 2 and 3). This reflects the dualist
position of Nigeria. Nigeria declared itself bound by succession to the
four Geneva Conventions of 1949 in a note received by the Swiss Federal
Council on 20 June 1961. Both Additional Protocols of 1977 were
ratified on 10 October 1988.
Nigeria‘s role as regional superpower with Africa the centre piece of its
foreign policy owes very much to belief and observance of the provisions
of Article VII of the United Nations (UN) Charter Action with respect to
the Peace, Breaches of the peace, and acts of Aggression which was the
reason Nigeria led the Economic Community of West African States
Monitoring Group (ECOMOG) to intervening in Liberia in 1990, Sierra
Leone in 1997, Guinea-Bissau in 1999 and the Guinea-Liberia border in
2001. Nigeria is also a major contributor nation funding the Special Court
for Sierra Leone since its inception in 2000 till dissolution in 2013.
Furthermore, in 2011, Nigeria led African countries in endorsing and
supporting United Nations intervention in Côte d'Ivoire and Libya
pursuant to its powers under Article VII of the UN Charter with the
enforcement mechanism and measures set out in UN Security Council
Resolutions (UNSC) 1973 and 2011 respectively.
15.3 Implementation of International Law in Nigeria

You remember that we pointed out in the first lecture that Nigeria is a
monist state. Therefore, treaties between Nigeria and other subjects of
international law do not transform into domestic laws unless they are
specifically domesticated, that is, enacted into laws by the National
Assembly. However, the National Assembly has, over the years, shown
little interest in discharging this all-important constitutional task; hence,
most treaties, which Nigeria is a party to, have not been domesticated
many years after their ratification.
Also, Nigeria is a signatory to several international agreements but only a
small proportion of such agreements have been domesticated in its laws.
For instance, Nigeria is a signatory state to the Rome Statute setting up
the ICC since 1 June 2000 and ratified the treaty on 27 September 2001,
although the ICC (Ratification and Jurisdiction) Bill 2006 has not been
signed into domestic Nigerian law. However, in May 2012, the Federal
Executive Council (FEC) approved the adoption and domestication of the
International law on Crimes against Humanity, War Crimes, Genocide
and other related Offences.
116
The branches of International law that is Public International law

particularly relevant to Nigerian law are International Human Rights law,
International Humanitarian law and lately International Criminal law.
15.3.1 Domestic Implementation of International

Human Rights
Nigeria became a party to the African Charter on Human and Peoples.
Rights (ACHPR) in 1983. The charter, which obliges member-states of
the Organization of African Unity (OAU) to recognize the rights, duties
and freedoms enshrined in it and to undertake to adopt legislative
measures to give effect to them, became part of the laws of Nigeria by
virtue of the African Charter on Human and Peoples. Rights (Ratification
and Enforcement) Act, cap.10 Laws of the Federation of Nigeria, 1990.
Nigerian courts have since then been applying the charter in human rights
cases.
15.3.2 Nigeria’s Compliance with International

Humanitarian Law Standards
The level of actual implementation of International Humanitarian Law
(IHL) in Nigeria is high. During the country‘s civil war (1967-1970),
Nigeria demonstrated in practice her commitment to the implementation
of IHL, particularly with the instructions given to Nigerian troop. The
Nigerian government issued an operational code of conduct, which
distinguishes between combatants and non-combatants, to guide the
Nigerian Armed Forces in their prosecution of the civil war on the
battlefield. The operational code further stipulated that the instructions in
the code must be read in conjunction with the Geneva Convention. This
means that Nigeria recognizes the principle of distinction in the Geneva
Convention.
The Nigerian government has adopted the following national measures:
1) Incorporation of IHL in Nigerian domestic law: Nigeria has not
only ratified the 1949 Geneva Convention and the additional
protocols of 1977 but also transformed the convention into
domestic law by enactment, namely in the form of the Geneva
Conventions Act Cap.162 Laws of the Federation, 1990.
Furthermore, Nigeria has enacted the Nigerian Red Cross Act, Cap.
324, Laws of the Federation, 1990, by incorporating the Nigerian
Red Cross. The Federal Government issued an operational code of
conduct to the Nigerian Armed Forces during the Nigerian Civil
War, 1967-70/
2) A programme of teaching and dissemination of IHL is presently
being carried out in all the military educational institutions in
Nigeria, with the support of the International Committee of the Red
Cross (ICRC) in Lagos.
3) A legal adviser has been appointed in the Armed Forces. The
Directorate of Legal Services in the Nigerian Army is fully
responsible for dissemination, education and advice on matters
relating to IHL in the Nigerian Armed Forces. Presently, the
117
Nigerian Army has produced a series of instructional manual on

various aspects of IHL. Every member of the Nigerian Armed
Forces has an identity card, which he/she must carry on him/her
everywhere and at all times.
4) Some of the faculties of law in Nigerian universities have included
the teaching of IHL in their curricula.
15.3.3 Domestic Implementation of International

Criminal Law
On a day to day practical basis in Nigerian Criminal law the impact of
International Human Rights law is significantly more profound. This is
because it is derived from the executing effect of the treaties and
instruments which form International Human Rights law. Furthermore
International Humanitarian law and indeed International Criminal law by
their very nature do not apply at all times because they apply during
situations of internal or international armed conflicts or the aftermath and
consequence of such conflicts though given the prevailing situation in
parts of Nigeria where there is a violent conflicts the framework of
International Humanitarian law and International Criminal law are
applicable. Nigeria signed the Rome Statute of the International Criminal
Court on 01 June 2000 and deposited its instrument of ratification on 27
September 2011.
Nevertheless, as a member of the international community, Nigeria
makes a commitment to the implementation of international law as can be
found in Section 19 (d) of the 1999 Constitution, which provided for the,
―respect for international law and treaty obligations as well as the seeking
of settlement of international disputes by negotiation, mediation,
conciliation, arbitration and adjudication.‖
Furthermore Article 26 of the Vienna Convention principle of ―Pacta
sunt servanda‖ states that, ‗Every treaty in force is binding upon the
parties to it and must be performed by them in good faith‘. Hence this
places a positive obligation on Nigeria to adhere to the provisions of the
Rome Statute since Nigeria had signed and ratified the treaty. In addition,
the principle of jus cogens (coercive law) rule of International law,
principles of International law including the crimes defined in the Rome
Statute which are deemed as fundamental are generally binding on all
states without any exceptions. Complimentary to the jus cogens rule is
the rule of erga omnes obligations or obligation erga omnes (towards all
in international law) that obligations that have to be fulfilled because all
states have an interest if its subject matter is of importance to the
international community as a whole. Thus, Nigeria has a positive duty
under international law to ensure it adheres to its obligations under the
Rome Statute.
Examining the responsibility of Nigeria in International Law in respect to its

inability to tackle insecurity within its territory.
Discussion Post your response on Study Session Fourteen forum page on course website. You
Activity may see schedule date on course blog
118

In this Study Session, we noted that Nigeria occupies a strategic
economic, military and political position in Africa, being a contributor of
men and material to UN and other peacekeeping operations in various
Summary parts of the world. Nigeria is signatory to more than 200 International
treaties of bi-lateral and multi-lateral nature. As a member of the
international community, Nigeria is bound by treaties it enters into.
According to section 12, subsection 1 of the 1999 Nigerian Constitution;
all treaties need to be enacted into law by the National Assembly. Of
particularly relevance to Nigerian law are International Human Rights
law, International Humanitarian law and International Criminal law.
Nigeria‘s compliance with the international humanitarian law was
demonstrated during the civil war (1967-1970). Nigeria is considered a
dualist state in terms of the relationship between international law and
domestic law.
Assessment
1. How are international laws applicable to Nigeria?
2. What are the challenges facing Nigeria in the implementation and
enforcement of international law within the domestic framework?
Assessment
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COURSE MANUAL

Principles of International Law

University of Ibadan Distance Learning Centre

General Editor: Prof. Bayo Okunade

Page layout, Instructional Design &UI Mobile Class Development by EDUTECHportal,

University of Ibadan Distance Learning Centre

Prof. Isaac Adewole

Professor Bayo Okunade

Content Editor Prof. Remi Raji-Oyelade

Getting around this course manual 16

Characteristics of Treaty ...................................................................................................... 29

7.3.3 The Principle of Precaution in Attack ............................................................................. 66

13.2.8 Inviting the Input of Nongovernmental Organizations (NGOs) ..................... 103

Study Session 14 106

Study Session 15 115

About this course manual

How this course manual is

We strongly recommend that you read the overview carefully before

The course content

How to be successful in this

Distance Learning Centre (DLC) Head Office

Information Centre Lagos Office

For technical issues (computer problems, web access, and etcetera),

Getting around this course manual

Activity Assessment Assignment Case study

Discussion Group Activity Help Outcomes

Note Reflection Reading Study skills

Summary Terminology Time Tip

1.1 Understanding International Law

that prohibits certain actions, then one cannot be accused of breaking a

According to Jeremy Bentham, the purpose of law is the maximisation of

In essence, therefore, law is a general set of principles imposed and

However, we need to note that there is an absence of higher governing

I am sure you are wondering how then law is maintained in the

foundations of international public law. These treaties included the

1.1.2 Branches of International Law

There is an absence of higher governing authority in the international

depending upon the nature of the rule), or regional, whereby a group of

Essentially, international law, often referred to as public international

1.2 Purpose and Scope of International Law

laws he is alleged to have c) international crimes and extradition;

1.3 Difference between International Law and

International law has no international police force to oversee obedience to the

In general, international law is enforced through methods such as national

1.4 How International and Domestic Law Interact

monist approach is that international law is deemed to be automatically

1.4.3 Harmonization of Monism and Dualism

1.5 Foundation of International Law

Thus far, will you consider international law as real

Study Session Summary

governing the relations between sovereign states, and relations between

2.1 Sources of International Law

In relations to Article 59 of the Statute of the International Court of Justice, a

The Vienna convention deals with the conclusion of treaties, the

Treaties are therefore, agreements between states, between states and

Nigeria followed the practice of the United Kingdom in treaty-making

2.1.3 General Principles of Law

Reading Activity Link: https://history.state.gov/milestones/1861-

Discussion Post your response on Study Session Two forum page on

Study Session Summary

3.1 Subjects of International Law

corporation (MNC) or - Holy See

A State must have an effective government, or some coherent political