INTRODUCTION TO INTERNATIONAL LAW BY PROF. MUHAMMED TAWFIQ LADAN (PhD) DEPARTMENT OF PUBLIC LAW,...

INTRODUCTION TO INTERNATIONAL LAWINTRODUCTION TO INTERNATIONAL LAW

BYBY

PROF. MUHAMMED TAWFIQ LADAN (PhD)PROF. MUHAMMED TAWFIQ LADAN (PhD)DEPARTMENT OF PUBLIC LAW, FACULTY OF LAWDEPARTMENT OF PUBLIC LAW, FACULTY OF LAW

AHMADU BELLO UNIVERSITY, ZARIA, KADUNA STATE, NIGERIA.AHMADU BELLO UNIVERSITY, ZARIA, KADUNA STATE, NIGERIA.

BEING A PAPER PRESENTED:BEING A PAPER PRESENTED:TO THE PARTICIPANTS OF THE NATIONAL DEFENCE COLLEGE, TO THE PARTICIPANTS OF THE NATIONAL DEFENCE COLLEGE,

COURSE 18COURSE 18

ORGANIZED BY:ORGANIZED BY:NATIONAL DEFENCE COLLEGE, ABUJA - NIGERIANATIONAL DEFENCE COLLEGE, ABUJA - NIGERIA

VENUE: -VENUE: - NATIONAL DEFENCE COLLEGE AUDITORIUM, ABUJA NATIONAL DEFENCE COLLEGE AUDITORIUM, ABUJA

DATE: -DATE: - 16 16thth FEBRUARY, 2011 FEBRUARY, 2011

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INTRODUCTIONINTRODUCTION

International law is divided into two International law is divided into two broad types: - Public and Private broad types: - Public and Private International Law.International Law.

For the purpose of today’s lecture For the purpose of today’s lecture gathered from the areas of focus assigned to gathered from the areas of focus assigned to me by the college, our emphasis is going to me by the college, our emphasis is going to be on public international law. Except for the be on public international law. Except for the discussion on the meaning, subjects, discussion on the meaning, subjects, development, and sources of international development, and sources of international law; the relationship between international law; the relationship between international law and municipal law.law and municipal law.

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1.1. MEANING, SUBJECTS AND MEANING, SUBJECTS AND DEVELOPMENT OF DEVELOPMENT OF INTERNATIONAL LAWINTERNATIONAL LAW

Traditional definition of International Law: - as a Traditional definition of International Law: - as a body of rules and principles governing the body of rules and principles governing the relations between states.relations between states.

Criticisms levelled against this definition: - Criticisms levelled against this definition: - denied the quality of law proper for lacking the denied the quality of law proper for lacking the following characteristics of municipal law: - following characteristics of municipal law: - punitive sanctions, enforcement machinery, and punitive sanctions, enforcement machinery, and functional legislative body.functional legislative body.

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

How valid is the criticism today?How valid is the criticism today?– From the mid-20th Century to date, International law never From the mid-20th Century to date, International law never

lacked sanctioning strategies/methods: - the UN Charter of lacked sanctioning strategies/methods: - the UN Charter of 1945 mandated the UN Security Council through a resolution 1945 mandated the UN Security Council through a resolution and for the maintenance of international peace and security, and for the maintenance of international peace and security, to impose various forms of sanctions that are necessary and to impose various forms of sanctions that are necessary and expedient in each and every circumstance: - blockades, expedient in each and every circumstance: - blockades, diplomatic sanctions, indictments, condemnation/shame etc;diplomatic sanctions, indictments, condemnation/shame etc;

– The 1945 UN Charter also mandated the Security Council to The 1945 UN Charter also mandated the Security Council to authorise the use of force in order to maintain peace and authorise the use of force in order to maintain peace and security and compliance with rules of international law;security and compliance with rules of international law;

– Various UN Charter and Treaty based bodies are equally Various UN Charter and Treaty based bodies are equally empowered to ensure compliance with various rules and empowered to ensure compliance with various rules and principles of international law. principles of international law.

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

Beyond the traditional definition and today’s practical reality: - Beyond the traditional definition and today’s practical reality: - Due to the following reasons largely based on the development Due to the following reasons largely based on the development of international law post 1945, the traditional definition of of international law post 1945, the traditional definition of international law cannot hold water: - international law cannot hold water: - – International law today is also about a body of rules of international International law today is also about a body of rules of international

human rights and humanitarian laws that aim at protecting the rights of human rights and humanitarian laws that aim at protecting the rights of individuals and groups in both peace and armed conflict situations individuals and groups in both peace and armed conflict situations against violations by states, non-state actors, and other legal entities. against violations by states, non-state actors, and other legal entities. Thereby governing the relations between individuals and states.Thereby governing the relations between individuals and states.

– Further, international law today is about a body of rules governing the Further, international law today is about a body of rules governing the relations between states and public international relations between states and public international organisations/institutions on the one h and, and with non-state actors organisations/institutions on the one h and, and with non-state actors (otherwise known as Transnational corporations) for all developmental (otherwise known as Transnational corporations) for all developmental and security purpose or in so far their rights and obligations/duties are and security purpose or in so far their rights and obligations/duties are matters of concern to international law.matters of concern to international law.

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

– Furthermore, international law today is about a body of Furthermore, international law today is about a body of rules concerning the land, sea and space territorial rules concerning the land, sea and space territorial rights and obligations of states in their relationship with rights and obligations of states in their relationship with other states and in the course of exploitation, other states and in the course of exploitation, exploration and utilization of natural resources, trade or exploration and utilization of natural resources, trade or business relations as well as the protection and business relations as well as the protection and management of the environment.management of the environment.

– Finally, it is a body of rules, principles, concepts and Finally, it is a body of rules, principles, concepts and doctrines that regulate the conduct of warfare and the doctrines that regulate the conduct of warfare and the use of force in the internal affairs of sovereign states for use of force in the internal affairs of sovereign states for collective security, peace and stability.collective security, peace and stability.

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Hence today there are 5 subjects of international law Hence today there are 5 subjects of international law conferred with legal personality as opposed to the conferred with legal personality as opposed to the traditional one being the state only. These are states, traditional one being the state only. These are states, individuals, public international organizations/institutions, individuals, public international organizations/institutions, Transnational/Multinational Corporations and special Transnational/Multinational Corporations and special entities like Palestine and Vatican City.entities like Palestine and Vatican City.

– 4 reasons why the character of legal personality is needed 4 reasons why the character of legal personality is needed for an entity in international law: - for an entity in international law: -

i.i. for legal competence to act in international law and assert itself in for legal competence to act in international law and assert itself in international life;international life;

ii.ii. for enjoyment of rights, privileges, benefits and immunities;for enjoyment of rights, privileges, benefits and immunities;

iii.iii. for discharge of corresponding duties/obligations;for discharge of corresponding duties/obligations;

iv.iv. for the purpose of determining liabilities – both civil and criminal.for the purpose of determining liabilities – both civil and criminal.

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Development: -Development: - Certain rules of different branches of Certain rules of different branches of international law have existed since time immemorial, international law have existed since time immemorial, especially with the Indian, Chinese, Roman, Greek and especially with the Indian, Chinese, Roman, Greek and Arab/Islamic empires before western Europe. In terms of the Arab/Islamic empires before western Europe. In terms of the development of international law, it is true that contemporary development of international law, it is true that contemporary rules of international law were fashioned out by the European rules of international law were fashioned out by the European nations (or the so-called 1st World) in the 19th and early part nations (or the so-called 1st World) in the 19th and early part of the 20th Centuries, especially the general principles and of the 20th Centuries, especially the general principles and the old legal doctrines.the old legal doctrines.

In the course of its development especially in the mid-In the course of its development especially in the mid-20th Century/post 2nd World War when the newly 20th Century/post 2nd World War when the newly independent African, Asian and Latin American states started independent African, Asian and Latin American states started coming on board of international life, they have no option but coming on board of international life, they have no option but to start challenging some of the principles and concepts or to start challenging some of the principles and concepts or rules of international law which never took their political, rules of international law which never took their political, economic, social and developmental interests into economic, social and developmental interests into consideration. This was simply because they were then consideration. This was simply because they were then colonial territories of the 1st World.colonial territories of the 1st World.

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

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2.2. SOURCES OF INTERNATIONAL LAWSOURCES OF INTERNATIONAL LAW

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

5 Traditional Sources

Principal (3) Subsidiary (2)

Treaty Customary Rules of

International Law

General Principles

of Law

Judicial Decisions

Writings of the most highly

qualified Scholars

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

According to Article 38(1) of the Statute of the ICJ According to Article 38(1) of the Statute of the ICJ the five traditional sources recognized under the five traditional sources recognized under international law are as follows: - international law are as follows: -

Treaty: -Treaty: - means an international agreement concluded means an international agreement concluded between states or parties – may be bilateral /multilateral between states or parties – may be bilateral /multilateral and may be called any of the following names/types: - and may be called any of the following names/types: - charter, convention, covenant, Protocol.charter, convention, covenant, Protocol.

– Effect of ratification of a treaty.Effect of ratification of a treaty.

– Effect of domestication of a treaty into national law: - Effect of domestication of a treaty into national law: - See Agbakoba v. director of SSS (1994) 6 NWLR See Agbakoba v. director of SSS (1994) 6 NWLR (pt.351) 475; Abacha v. Fawehinmi (2000)6 NWLR (pt.351) 475; Abacha v. Fawehinmi (2000)6 NWLR (pt. 660) 228.(pt. 660) 228.

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Custom: -Custom: - is evidence of a general practice accepted is evidence of a general practice accepted as law. This can be established by the existence of as law. This can be established by the existence of bilateral/multilateral relations between states based bilateral/multilateral relations between states based on the belief of the existence of a legal obligation (i.e. on the belief of the existence of a legal obligation (i.e. opinion juris-legal belief or state practice). E.g., the 4 opinion juris-legal belief or state practice). E.g., the 4 Geneva Conventions and the Hague Conventions (on Geneva Conventions and the Hague Conventions (on conduct of war, treatment of prisoners of war etc) and conduct of war, treatment of prisoners of war etc) and the entire provisions of the Universal Declaration of the entire provisions of the Universal Declaration of Human Rights of 1948.Human Rights of 1948.

General Principles of Law: -General Principles of Law: - Are principles of equity Are principles of equity and rules emanating from justice and considerations and rules emanating from justice and considerations of public policy.of public policy.

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– Examples of General Principles of LawExamples of General Principles of Law

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

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

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Judicial Decisions: -Judicial Decisions: - of international courts and of international courts and tribunals such as the ICJ, ICC, ICTY, ICTR, UN Special tribunals such as the ICJ, ICC, ICTY, ICTR, UN Special Court for Sierra-Leone, European Court of Justice, Court for Sierra-Leone, European Court of Justice, European Court of Human Rights, African Court of European Court of Human Rights, African Court of Human Rights, Inter-American Court of Human Rights.Human Rights, Inter-American Court of Human Rights.

– Examples of Judicial DecisionsExamples of Judicial Decisions

The Trial smelter case 11 March 1941 Arbitral The Trial smelter case 11 March 1941 Arbitral judgement is considered as having laid the foundations judgement is considered as having laid the foundations for international environmental law, at least regarding for international environmental law, at least regarding trans-border pollution. In its conclusion, the Arbitral trans-border pollution. In its conclusion, the Arbitral Tribunal stated that: - “No state has the right to use or Tribunal stated that: - “No state has the right to use or permit the use of its territory in such manner as to cause permit the use of its territory in such manner as to cause injury by fumes in or to the territory of another…”injury by fumes in or to the territory of another…”

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

Non Traditional Sources

Pre-emptory NormsResolutions of International

OrganizationsNon-Binding Standards

(Soft Law)

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The three non-traditional sources of international law The three non-traditional sources of international law are: - are: - Pre-emptory Norms: - are final/absolute/mandatory Pre-emptory Norms: - are final/absolute/mandatory norms recognized and accepted by the international norms recognized and accepted by the international community as a whole from which no derogation is community as a whole from which no derogation is allowed by any treaty or municipal law, else void.allowed by any treaty or municipal law, else void.– Also known as Rules of Jus Cogens.Also known as Rules of Jus Cogens.– E.g., the absolute prohibition of torture and slavery or the E.g., the absolute prohibition of torture and slavery or the

general norm prohibiting the use of force in the internal affairs of general norm prohibiting the use of force in the internal affairs of a sovereign state or the promotion and protection of the right to a sovereign state or the promotion and protection of the right to life.life.

Resolutions of public international Organisations/ Resolutions of public international Organisations/ Institutions: - UN, AU, EU, ECOWAS etc resolutions on Institutions: - UN, AU, EU, ECOWAS etc resolutions on given subject matters constitute a source of international given subject matters constitute a source of international law with respect to the matters in question. law with respect to the matters in question.

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Non-binding standards (Soft law): - Are those rules of Non-binding standards (Soft law): - Are those rules of conduct, statements, principles, policies not intended to be conduct, statements, principles, policies not intended to be legally binding but are expressions of intent by the legally binding but are expressions of intent by the international or regional community in a given topical/critical international or regional community in a given topical/critical issue of interest to all.issue of interest to all.– Examples of Non-Binding StandardsExamples of Non-Binding Standards

The 1972 Stockholm Declaration on the Human Environment The 1972 Stockholm Declaration on the Human Environment resulted from the UN Conference on the Environment designed to resulted from the UN Conference on the Environment designed to deal with questions surrounding the management and protection deal with questions surrounding the management and protection of the environment and its relationship with humans. 130 states of the environment and its relationship with humans. 130 states participated at the conference where the recommendation for participated at the conference where the recommendation for institutional arrangement resulted in the UN General Assembly’s institutional arrangement resulted in the UN General Assembly’s establishment of UNEP.establishment of UNEP.

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

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3.3. RELATIONSHIP BETWEEN INTERNATIONAL RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAWLAW AND MUNICIPAL LAW

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

domestication/transformation process of a treaty before it can be domestication/transformation process of a treaty before it can be enforced in Nigeria.enforced in Nigeria.

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RELATIONSHIP BETWEEN INTERNATIONAL RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW (Cont’d)LAW AND MUNICIPAL LAW (Cont’d)

Monism: -Monism: - Protagonists of this doctrine assert the Protagonists of this doctrine assert the superiority of international law over municipal law even superiority of international law over municipal law even within the sphere of national law itself. Hence upon within the sphere of national law itself. Hence upon ratification of a treaty, it becomes operative and ratification of a treaty, it becomes operative and enforceable nationally.enforceable nationally.– Largely embraced by civil law jurisdictionsLargely embraced by civil law jurisdictions– E.g., all French-speaking States.E.g., all French-speaking States.

Nihilism: -Nihilism: - Protagonists of this doctrine assert the Protagonists of this doctrine assert the absolute supremacy of municipal law over international absolute supremacy of municipal law over international law in the event of any conflict on a given subject matter.law in the event of any conflict on a given subject matter.– The USA is a typical example.The USA is a typical example.

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4.4. CONCEPT OF SOVEREIGNTY IN CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAWINTERNATIONAL LAW

Sovereignty as a concept in international law is Sovereignty as a concept in international law is constitutive of the following: - constitutive of the following: - – an expression of statehood: - having possessed all the an expression of statehood: - having possessed all the

characteristics and being so recognized as an characteristics and being so recognized as an independent state by others;independent state by others;

– an indication of preservation of national identity and hard an indication of preservation of national identity and hard won independence;won independence;

– an expression of self-determination covering 2 aspects: - an expression of self-determination covering 2 aspects: - internal and external;internal and external;

– internal self-determination is about the right of people to internal self-determination is about the right of people to choose their socio-political and economic systems and choose their socio-political and economic systems and the extent of their political participation in government;the extent of their political participation in government;

– it is largely against colonialism, neo-colonialism, it is largely against colonialism, neo-colonialism, apartheid and for sovereignty over their territory, apartheid and for sovereignty over their territory, linguistic, socio-cultural, ethnic and religious interests;linguistic, socio-cultural, ethnic and religious interests;

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CONCEPT OF SOVEREIGNTY IN INTERNATIONAL CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW (Cont’d)LAW (Cont’d)

– External self-determination is about a right against foreign economic External self-determination is about a right against foreign economic exploitation of natural resources: - it is a right to exploit, dispose of, utilize or exploitation of natural resources: - it is a right to exploit, dispose of, utilize or deal with natural resources in any way the state feels necessary for the deal with natural resources in any way the state feels necessary for the common good of all.common good of all.

– The above are expressly covered by the 1960 UN Declaration on the The above are expressly covered by the 1960 UN Declaration on the granting of independence to colonized countries; Article 55 UN Charter, granting of independence to colonized countries; Article 55 UN Charter, 1945 emphasises the importance of economic self-determination to remove 1945 emphasises the importance of economic self-determination to remove oppression, injustice, inequity and to promote peace, stability and oppression, injustice, inequity and to promote peace, stability and development; Article 1 of the same charter seeks to promote friendly development; Article 1 of the same charter seeks to promote friendly relations and socio-economic and cultural development of nations; Article 1 relations and socio-economic and cultural development of nations; Article 1 of both the ICCPR and ICESCR of 1966 re-echoed the right to self-of both the ICCPR and ICESCR of 1966 re-echoed the right to self-determination as a fundamental right of a people; Articles 2, 21-24 of the determination as a fundamental right of a people; Articles 2, 21-24 of the African Charter on Human and Peoples’ Rights provide for norms to African Charter on Human and Peoples’ Rights provide for norms to eradicate all forms of colonialism and the promotion of internal and external eradicate all forms of colonialism and the promotion of internal and external self-determination as a developmental right of African peoples.self-determination as a developmental right of African peoples.

– About assumption of state responsibility in international life because liability About assumption of state responsibility in international life because liability exists for failure to observe/discharge obligations imposed by rules of exists for failure to observe/discharge obligations imposed by rules of international law (especially treaty obligations).international law (especially treaty obligations).

– Is about non-intervention in the internal affairs of sovereign states as Is about non-intervention in the internal affairs of sovereign states as generally prohibited by international law except in self-defence and on the generally prohibited by international law except in self-defence and on the authorization of the UN Security council for the maintenance of international authorization of the UN Security council for the maintenance of international peace and security.peace and security.

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However, in international law and practice today, the However, in international law and practice today, the claim of sovereignty is not absolute due to the following claim of sovereignty is not absolute due to the following acknowledged exceptions to the general rule prohibiting acknowledged exceptions to the general rule prohibiting non-intervention in internal affairs of sovereign states;non-intervention in internal affairs of sovereign states;– For collective security: - doctrine that emerged in the late 1980s For collective security: - doctrine that emerged in the late 1980s

after the end of the cold war and when the perception of security after the end of the cold war and when the perception of security changed from military and political issues to socio-economic, changed from military and political issues to socio-economic, developmental, environmental, human rights and humanitarian developmental, environmental, human rights and humanitarian issues as well as gender;issues as well as gender;

– Hence intervention by the use of force is allowed for collective Hence intervention by the use of force is allowed for collective security in a sovereign state on the following grounds: - security in a sovereign state on the following grounds: -

Where a regional or ethnic or political conflict or conflict over scarce Where a regional or ethnic or political conflict or conflict over scarce resources are deemed potentially destabilizing on a sub-regional, resources are deemed potentially destabilizing on a sub-regional, regional or global scale;regional or global scale;

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Where the conflict is capable of endangering the lives of civilians Where the conflict is capable of endangering the lives of civilians and non-combatant population;and non-combatant population;Where the conflict results in massive displacement of civilian Where the conflict results in massive displacement of civilian population either as IDPs or refugees;population either as IDPs or refugees;Where the conflict results in gross or massive human rights Where the conflict results in gross or massive human rights violations constituting genocide or crimes against humanity; or in violations constituting genocide or crimes against humanity; or in order to protect human rights;order to protect human rights;Where a country’s government is universally recognized to have Where a country’s government is universally recognized to have collapsed leading to lawlessness and possible loss or injury to collapsed leading to lawlessness and possible loss or injury to human lives and property;human lives and property;

– Intervention is also allowed on humanitarian grounds in order Intervention is also allowed on humanitarian grounds in order to assist the victims of humanitarian crises;to assist the victims of humanitarian crises;

– In order to enforce a treaty/ in defence of democracy/ in the In order to enforce a treaty/ in defence of democracy/ in the fight against terrorism;fight against terrorism;

– The Liberian, Sierra-Leonean, Rwandan, Bosnian, Kosovan The Liberian, Sierra-Leonean, Rwandan, Bosnian, Kosovan conflicts and those of the Sudan-Darfur, Somalia, and Congo conflicts and those of the Sudan-Darfur, Somalia, and Congo etc are typical examples of the above justification.etc are typical examples of the above justification.

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5.5. BRANCHES OR FIELDS OF PUBLIC BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAWINTERNATIONAL LAW

Branches or Fields of Public International Law

International Human Rights Law (IHRL)

International Humanitarian Law (IHL) (Law of Armed Conflict)

International Criminal Law

International Environmental Law

International Economic/Monetary Law

International Maritime Law

International Law of the Sea International Trade Law International Labour Law

International Law relating to Space

International Refugee Law

International Law relating to disarmament

International Law of Public International Organizations/

Institutions

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

The scope of this lecture is restricted to the The scope of this lecture is restricted to the following branches of public International Law.following branches of public International Law.

1.1. International Human Rights Law (IHRL)International Human Rights Law (IHRL)Meaning and Scope: -Meaning and Scope: - IHRL is that branch of public IHRL is that branch of public

international law that aims at protecting the international law that aims at protecting the internationally guaranteed rights of individuals and internationally guaranteed rights of individuals and groups against violations by state etc.groups against violations by state etc.

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Scope of Internationally Guaranteed Human Rights

1st Generation 2nd Generation 3rd Generation

Civil & Political Rights Economic, Social & Cultural Rights

Rights of Vulnerable Group

Environmental, Developmental Rights

Refugees & IDPs

Women Persons Living with HIV-AIDS

Children Minorities Disabled Persons

Ethnic, Linguistic, Cultural, Political, Religious, Racial, Sexual

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Development and Impact: -Development and Impact: - The post 1945 phenomenon led The post 1945 phenomenon led to the emergence of this branch of international law resulting to the emergence of this branch of international law resulting into the coming into force of the UN Charter of 1945, the into the coming into force of the UN Charter of 1945, the Universal Declaration of Human Rights of December 10, 1948, Universal Declaration of Human Rights of December 10, 1948, the 1966 International Covenants on Civil and Political Rights the 1966 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights among others, the and on Economic, Social and Cultural Rights among others, the regional human rights instruments in Africa, Europe and regional human rights instruments in Africa, Europe and America: - i.e. the African Charter on Human and Peoples’ America: - i.e. the African Charter on Human and Peoples’ Rights, the European Convention of Human Rights, the Inter-Rights, the European Convention of Human Rights, the Inter-American Convention on Human Rights etc.American Convention on Human Rights etc.

IHRL is said to have impacted on the concept of legal IHRL is said to have impacted on the concept of legal personality in international law which pre-2nd World War personality in international law which pre-2nd World War excluded individual human beings. This was done by explicitly excluded individual human beings. This was done by explicitly recognizing individual human beings as legal persons deserving recognizing individual human beings as legal persons deserving protection of their human rights against the state. Also IHRL protection of their human rights against the state. Also IHRL rejected the claim of states under the concept of sovereignty of rejected the claim of states under the concept of sovereignty of exclusive domestic jurisdiction in human rights violations exclusive domestic jurisdiction in human rights violations

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

Enforcement/Monitoring Mechanisms of Human Rights

UN Treaty Monitoring Bodies Regional Human Rights Bodies

UN Charter-based Bodies

ICCPR = Committee on CCPRICESCR = Committee on CESCRICEDR = Committee on CERDUN CEDAW = Committee on CEDAWUN CRC = Committee on CRCUN CAT = Committee on CAT

Economic and Social Council (ECOSOC)UN Human Rights CouncilUN High Commissioner for Human Rights

Africa Europe America

African Commission on Human & Peoples’

Rights

Africa Court of Human Rights

European Court of Human Rights

Inter-American Commission on Human

Rights

Inter-American Court of Human Rights

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Domestic Implementation of International/Regional Human Rights Instruments

Ratification of Human Rights

Treaties

Enforcement in a Court of Law (case law: - Abacha v.

Fawenhimi and Agbakoba v. DSSS)

Monitoring Compliance by National Human Rights

Commissions and Public Complaints Commission,

Consumer Protection Councils etc

Incorporation into National Law

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2.2. International Humanitarian Law (IHL)/ Law of Armed International Humanitarian Law (IHL)/ Law of Armed ConflictConflict

IHL is a branch of public international law that aims IHL is a branch of public international law that aims at regulating the conduct of warfare by: - at regulating the conduct of warfare by: -

– Providing a code of conduct and behaviour for armed forces of a Providing a code of conduct and behaviour for armed forces of a state or party to a conflict;state or party to a conflict;

– Prohibiting certain means of warfare: - Prohibiting certain means of warfare: - Means of combat must be chosen to avoid civilian casualties and Means of combat must be chosen to avoid civilian casualties and damage by distinguishing between combatants and civilian objects;damage by distinguishing between combatants and civilian objects;

Use of weapons to cause widespread, long term and severe damage to Use of weapons to cause widespread, long term and severe damage to the natural environment etc;the natural environment etc;

Use of specific weapons that are poisonous, of mass destruction Use of specific weapons that are poisonous, of mass destruction (WMD), land mines etc.(WMD), land mines etc.

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– Prohibiting certain methods of warfare: - Prohibiting certain methods of warfare: - Starvation of civilian population by attacking/destroying Starvation of civilian population by attacking/destroying any object that is indispensable for their survival;any object that is indispensable for their survival;

Rape of women and girls of the enemy state;Rape of women and girls of the enemy state;

Threats of violence to civilian population;Threats of violence to civilian population;

To order that there will be no survivors.To order that there will be no survivors.

Improper user of signs, and emblems of the Red Improper user of signs, and emblems of the Red Cross/crescent;Cross/crescent;

– – Prohibiting 2 things in the organisation of Prohibiting 2 things in the organisation of armed forces: - armed forces: - Recruitment of under 15 years;Recruitment of under 15 years;

Compelling enemy nationals to fight against their own Compelling enemy nationals to fight against their own state.state.

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– Providing for the protection of human rights of individuals and groups Providing for the protection of human rights of individuals and groups that are civil in nature and relevant to human life and dignity in armed that are civil in nature and relevant to human life and dignity in armed conflict situation: - conflict situation: -

i.i. By the 4 Geneva Conventions, the 1977 Additional Protocols and By the 4 Geneva Conventions, the 1977 Additional Protocols and the Hague Convention prohibiting the killing or violence to the life the Hague Convention prohibiting the killing or violence to the life of all protected persons such as prisoners of war, the wounded, of all protected persons such as prisoners of war, the wounded, sick, shipwrecked, civilian persons, surrendered or disarmed or sick, shipwrecked, civilian persons, surrendered or disarmed or defenceless enemy soldier;defenceless enemy soldier;

ii.ii. By prohibiting indiscriminate attacks, torture, inhuman and By prohibiting indiscriminate attacks, torture, inhuman and degrading treatment or punishment of all protected persons in degrading treatment or punishment of all protected persons in their lawful custody; etc.their lawful custody; etc.

– Providing measures for the prevention and control of armed conflict Providing measures for the prevention and control of armed conflict as well as post-conflict measures (such as search for the wounded, as well as post-conflict measures (such as search for the wounded, sick, dead; repatriation of prisoners of war to neutralized zones; sick, dead; repatriation of prisoners of war to neutralized zones; disciplinary measures/penal sanctions for breaches of IHL).disciplinary measures/penal sanctions for breaches of IHL).

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– Hence IHL is of 3 types and purposes: - Hence IHL is of 3 types and purposes: - The Geneva type law ( the 4 Geneva Conventions) is The Geneva type law ( the 4 Geneva Conventions) is purely humanitarian in nature and protective of war purely humanitarian in nature and protective of war victims in purpose; victims in purpose; The Hague type law (Hague Conventions) is basically The Hague type law (Hague Conventions) is basically about legal regulation of conduct of hostilities;about legal regulation of conduct of hostilities;The mixed type law (Additional Protocols to the G.C., The mixed type law (Additional Protocols to the G.C., 1977) deals with both the protection of victims of war and 1977) deals with both the protection of victims of war and operational code of conduct. operational code of conduct.

– Finally, the message of IHL is very clear that even in Finally, the message of IHL is very clear that even in armed conflict situations there must be respect for armed conflict situations there must be respect for legal restraints and the need to balance the military legal restraints and the need to balance the military necessity to attack with the protection of non-necessity to attack with the protection of non-combatants/victims of war.combatants/victims of war.

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3.3. INTERNATIONAL CRIMINAL LAW INTERNATIONAL CRIMINAL LAW (ICL)(ICL)

ICL is that branch of Public International Law that deals with ICL is that branch of Public International Law that deals with the administration of international criminal justice by providing for the administration of international criminal justice by providing for penal consequences for committing international crimes and penal consequences for committing international crimes and guaranteeing procedural safeguards to all accused persons.guaranteeing procedural safeguards to all accused persons.

In addition to a body of existing treaties and case law In addition to a body of existing treaties and case law developed by the Nuremberg and Tokyo Tribunals, the International developed by the Nuremberg and Tokyo Tribunals, the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Criminal Tribunals for the former Yugoslavia and Rwanda, and the UN special Court for Sierra-Leone, the international community UN special Court for Sierra-Leone, the international community reached an historic milestone on 17 July 1998, when 120 states reached an historic milestone on 17 July 1998, when 120 states adopted the Rome Statute as the legal basis for establishing the adopted the Rome Statute as the legal basis for establishing the permanent International Criminal Court. The Rome Statute entered permanent International Criminal Court. The Rome Statute entered into force on 1st July 2002. ICC’s seat is at The Hague in the into force on 1st July 2002. ICC’s seat is at The Hague in the Netherlands.Netherlands.Why the International Criminal Court (ICC)?Why the International Criminal Court (ICC)?– The international community has long needed a treaty-based, The international community has long needed a treaty-based,

representative, permanent, and independent court, not part of the UN representative, permanent, and independent court, not part of the UN system; system;

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INTERNATIONAL CRIMINAL LAW (ICL) INTERNATIONAL CRIMINAL LAW (ICL) (Cont’d)(Cont’d)

– In order to achieve the following: - In order to achieve the following: - I.I. To administer international criminal law and justice;To administer international criminal law and justice;II.II. To end the culture of impunity by perpetrators of serious international To end the culture of impunity by perpetrators of serious international

crimes;crimes;III.III. To effectively protect human rights and efficiently uphold the rule of law.To effectively protect human rights and efficiently uphold the rule of law.

ICC’s Jurisdiction under Rome Statute: -ICC’s Jurisdiction under Rome Statute: - I.I. Over serious international crimes clearly defined in the Rome Over serious international crimes clearly defined in the Rome

Statute and other relevant instruments namely, genocide, crimes Statute and other relevant instruments namely, genocide, crimes against humanity and war crimes.against humanity and war crimes.

II.II. Over persons (not states or governments) where such crimes Over persons (not states or governments) where such crimes were committed on a State Party’s territory or by one of its were committed on a State Party’s territory or by one of its nationals;nationals;

III.III. The 2 conditions under item ii above do not apply if a situation is The 2 conditions under item ii above do not apply if a situation is referred to the prosecutor by the UN Security Council, whose referred to the prosecutor by the UN Security Council, whose resolutions are binding on all UN Member States, and if a state resolutions are binding on all UN Member States, and if a state makes a declaration accepting the jurisdiction of the ICC.makes a declaration accepting the jurisdiction of the ICC.

IV.IV. ICC will also have jurisdiction over the crime of aggression once a ICC will also have jurisdiction over the crime of aggression once a consensus definition is arrived at by the Assembly of States consensus definition is arrived at by the Assembly of States Parties.Parties.

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Fundamental Principles of the Rome Statute: -Fundamental Principles of the Rome Statute: - – Complementarity principle: - The Court is intended to complement, not to Complementarity principle: - The Court is intended to complement, not to

replace, national criminal justice system. It can prosecute cases only if replace, national criminal justice system. It can prosecute cases only if national criminal justice systems do not carry out proceedings or when they national criminal justice systems do not carry out proceedings or when they claim to do so but in reality are unwilling or unable to carry out such claim to do so but in reality are unwilling or unable to carry out such proceedings genuinely.proceedings genuinely.

– Cooperation Principle: - States Parties (now 105) are obliged to cooperate Cooperation Principle: - States Parties (now 105) are obliged to cooperate with the ICC in the investigation and prosecution of crimes, including the with the ICC in the investigation and prosecution of crimes, including the arrest and surrender of suspects.arrest and surrender of suspects.

– No immunity from arrest, investigation, prosecution, criminal responsibility to No immunity from arrest, investigation, prosecution, criminal responsibility to any Head of State, or government official or any public officer acting in an any Head of State, or government official or any public officer acting in an official capacity.official capacity.

NB: -NB: - Cases of Pinochet and Charles Taylor, Ethiopian Court convicted Cases of Pinochet and Charles Taylor, Ethiopian Court convicted ex-dictator Mengistu H.M of genocide and faces death sentence while in ex-dictator Mengistu H.M of genocide and faces death sentence while in exile in Zimbabwe; Senegalese Court charged ex-dictator/warlord, exile in Zimbabwe; Senegalese Court charged ex-dictator/warlord, Hisne Habre of Chad in exile of war crimes; ex-Rwandan Prime Minister Hisne Habre of Chad in exile of war crimes; ex-Rwandan Prime Minister found guilty of genocide and crimes against humanity etc; More found guilty of genocide and crimes against humanity etc; More recently, President Paul Kagame of Rwanda being investigated for war recently, President Paul Kagame of Rwanda being investigated for war crimes.crimes.

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– Similarly, Superiors or military commanders may be held responsible Similarly, Superiors or military commanders may be held responsible for criminal offences committed by persons under their effective for criminal offences committed by persons under their effective command and control or effective authority/control. However, under command and control or effective authority/control. However, under 18 cannot be prosecuted by the ICCV at the time a crime was 18 cannot be prosecuted by the ICCV at the time a crime was allegedly committed.allegedly committed.

– States Parties are obligated to promote these fundamental principles States Parties are obligated to promote these fundamental principles by providing for implementing national legislations/domesticating the by providing for implementing national legislations/domesticating the Rome Statute/reviewing existing nationals laws to be in conformity Rome Statute/reviewing existing nationals laws to be in conformity with the Rome Statute.with the Rome Statute.

Rights of victims and accused: - Rights of victims and accused: - – For the first time in the history of international criminal justice, For the first time in the history of international criminal justice,

victims, may not only testify as witnesses but have the right to victims, may not only testify as witnesses but have the right to participate in proceedings and request reparations. They are entitled participate in proceedings and request reparations. They are entitled to legal representation and legal aid.to legal representation and legal aid.

– The Court may order restitution, rehabilitation and compensation as The Court may order restitution, rehabilitation and compensation as reparation for victims.reparation for victims.

– Protecting the rights of the accused is essential to ensure a fair trial Protecting the rights of the accused is essential to ensure a fair trial and effective justice. This includes legal and financial aid.and effective justice. This includes legal and financial aid.

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Trigger Mechanism/Activation of ICC’s Jurisdiction: - Trigger Mechanism/Activation of ICC’s Jurisdiction: - – The Prosecutor can initiate an investigation or prosecution in The Prosecutor can initiate an investigation or prosecution in

three different ways: - three different ways: - – States Parties to the Rome Statute can refer situations to the ICC;States Parties to the Rome Statute can refer situations to the ICC;– The UN Security Council can request the prosecutor to conduct The UN Security Council can request the prosecutor to conduct

an investigation;an investigation;– The prosecutor may initiate investigations on the basis of The prosecutor may initiate investigations on the basis of

information received from a reliable public source subject to prior information received from a reliable public source subject to prior authorization from the ICC Pre-Trial Chamber of 3 independent authorization from the ICC Pre-Trial Chamber of 3 independent judges.judges.

– Situations referred and cases before the ICC: - Situations referred and cases before the ICC: - I.I. Three States Parties have referred situations to the prosecutor: - Three States Parties have referred situations to the prosecutor: -

Situation in the DR Congo (the case of the prosecutor v. Thomas Situation in the DR Congo (the case of the prosecutor v. Thomas Lubanga Dyilo); situation in Uganda (the case of Prosecutor v. Joseph Lubanga Dyilo); situation in Uganda (the case of Prosecutor v. Joseph Konny and others); situation in Central African Republic;Konny and others); situation in Central African Republic;

II.II. The UN Security Council referred the situation in Dafur, Sudan (the The UN Security Council referred the situation in Dafur, Sudan (the case of Prosecutor v. Ahmad Harun and Ali Kushayb).case of Prosecutor v. Ahmad Harun and Ali Kushayb).

III.III. The ICC is only hosting the trial of Charles Taylor v. Prosecutor under The ICC is only hosting the trial of Charles Taylor v. Prosecutor under the exclusive jurisdiction of the UN Special Court for Sierra-Leone. the exclusive jurisdiction of the UN Special Court for Sierra-Leone.

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International Crimes Under the ICC’s Jurisdiction: - International Crimes Under the ICC’s Jurisdiction: - – Crimes against humanity: - attack against civilians in peace or Crimes against humanity: - attack against civilians in peace or

war time need not be committed against a particular group war time need not be committed against a particular group sharing certain characteristics such as nationality, ethnicity, sharing certain characteristics such as nationality, ethnicity, religion etc.religion etc.

– Genocide: - Systematic act/attack aimed at destroying a Genocide: - Systematic act/attack aimed at destroying a national, ethnic, racial or religious group, by killing them.national, ethnic, racial or religious group, by killing them.

– Torture covers acts that are purposeless or merely sadistic Torture covers acts that are purposeless or merely sadistic committed by persons with or without connection to the state.committed by persons with or without connection to the state.

– War Crimes: - are 26 enumerated acts against protected War Crimes: - are 26 enumerated acts against protected persons and property constituting grave violations of the 4 persons and property constituting grave violations of the 4 Geneva Conventions.Geneva Conventions.

– Etc. Etc. Etc. Etc. Etc. Etc. Etc. Etc.

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4.4. LAW OF THE SEA (LOS)/NIGERIA’S LAW OF THE SEA (LOS)/NIGERIA’S OCEAN POLICYOCEAN POLICY

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

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LAW OF THE SEA (LOS)/NIGERIA’S LAW OF THE SEA (LOS)/NIGERIA’S OCEAN POLICY (Cont’d)OCEAN POLICY (Cont’d)

However, a major development in the law of the sea was However, a major development in the law of the sea was the 1930 Hague Codification Conference of International Law. the 1930 Hague Codification Conference of International Law. The importance of the conference was that it was the first most The importance of the conference was that it was the first most organized multilateral conference which addressed the question organized multilateral conference which addressed the question of the age-long territorial sea among the other two subjects of of the age-long territorial sea among the other two subjects of law (nationality and state responsibility) that were discussed at law (nationality and state responsibility) that were discussed at the conference.the conference.

After the Hague conference, more multilateral After the Hague conference, more multilateral agreements were made to the extent that by the end of the 2nd agreements were made to the extent that by the end of the 2nd World War to the eve of 1958, a total of 28 multilateral World War to the eve of 1958, a total of 28 multilateral negotiations we concluded on fisheries conservation and negotiations we concluded on fisheries conservation and management, seamen’s welfare, sanitary regulation, oil management, seamen’s welfare, sanitary regulation, oil pollution. And by 1958 and 1960 when UNCLOS I and II, pollution. And by 1958 and 1960 when UNCLOS I and II, respectively, were held, it had become clear that the major respectively, were held, it had become clear that the major international concerns were fisheries conservation and international concerns were fisheries conservation and management, including regional fishery organisations; management, including regional fishery organisations; seamen’s welfare and international shipping. seamen’s welfare and international shipping.

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

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

““a legal order for the Seas and Oceans which will facilitate a legal order for the Seas and Oceans which will facilitate international Communication, and will promote the peaceful uses of international Communication, and will promote the peaceful uses of the the seas and oceans, the equitable and efficient utilization of their seas and oceans, the equitable and efficient utilization of their resources, the resources, the conservation of their living resources, and the study, conservation of their living resources, and the study, protection and preservation of the marine environment.”protection and preservation of the marine environment.”

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By 1958, attempts were made at the United Nations first By 1958, attempts were made at the United Nations first conference on Law of the Sea to resolve these issues. The conference on Law of the Sea to resolve these issues. The conference yielded four Conventions on Different areas of the conference yielded four Conventions on Different areas of the open sea. These were the Convention on the Territorial Sea open sea. These were the Convention on the Territorial Sea and the Contiguous Zone (CZ), the Convention on the High and the Contiguous Zone (CZ), the Convention on the High Seas, the Convention on Fishing and Conservation of the Living Seas, the Convention on Fishing and Conservation of the Living Resources of the High Seas and the Convention on the Resources of the High Seas and the Convention on the Continental Shelf (CS). Although the Convention were largely a Continental Shelf (CS). Although the Convention were largely a success, some key issues were not resolved namely:success, some key issues were not resolved namely:• the precise breadth of the TS;the precise breadth of the TS;• the extent of the right of the coastal States over resources of the CS and the extent of the right of the coastal States over resources of the CS and

beyond; andbeyond; and• the concurrent right of all States to exploit the resources of the “abysmal the concurrent right of all States to exploit the resources of the “abysmal

floor” based on the “exploitability criterion.”floor” based on the “exploitability criterion.”

These outstanding issues were the core issues which These outstanding issues were the core issues which the LOS set out to resolve. We would then examine the the LOS set out to resolve. We would then examine the relevant LOS provision in outline.relevant LOS provision in outline.

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a)a) The TSThe TSThe TS was defined as an area of 12 nautical miles The TS was defined as an area of 12 nautical miles

measured from the coastal baselines of the coastal sea. It measured from the coastal baselines of the coastal sea. It assimilates this area to the land territory of the coastal State, assimilates this area to the land territory of the coastal State, which brings it under the sovereignty of such State. The coastal which brings it under the sovereignty of such State. The coastal State, therefore, has as much jurisdiction over the TS as it has State, therefore, has as much jurisdiction over the TS as it has over its land territory.over its land territory.

b)b) The CZThe CZThe CZ is an area of 24 nautical miles measured from The CZ is an area of 24 nautical miles measured from

the same coastal baseline as TS. This effectively means 12 the same coastal baseline as TS. This effectively means 12 nautical miles from the outer limit of the TS. It vests in the nautical miles from the outer limit of the TS. It vests in the coastal State, jurisdiction over the CZ only to such extent coastal State, jurisdiction over the CZ only to such extent necessary to prevent infringement of customs, fiscal, necessary to prevent infringement of customs, fiscal, immigration and sanitary laws and legislation within its land immigration and sanitary laws and legislation within its land territory or TS. Jurisdiction is also vested in the coastal State to territory or TS. Jurisdiction is also vested in the coastal State to punish infringement of Laws made in this regard. punish infringement of Laws made in this regard.

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c)c) The EEZThe EEZThe LOS created the EEZ. This area extends to a The LOS created the EEZ. This area extends to a

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

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d.d. The CSThe CSThe LOS describes the CS as the area comprising the The LOS describes the CS as the area comprising the

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

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Regulation of Petroleum Exploration and Regulation of Petroleum Exploration and Production OffshoreProduction Offshore NigeriaNigeria

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

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Nigeria’s Ocean Policy and the Law of the Sea: -Nigeria’s Ocean Policy and the Law of the Sea: - Ocean or Ocean or marine policy is a branch of public policy that deals with the marine policy is a branch of public policy that deals with the relations between government and the ocean environment or relations between government and the ocean environment or coastal zone.coastal zone.

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

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

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

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The proposal was intended to break the deadlock between The proposal was intended to break the deadlock between developed and developing counties on the role of states and developed and developing counties on the role of states and private companies in the exploration of the deep seabed. Part of private companies in the exploration of the deep seabed. Part of this proposal also deals with the issue of transfer of technology in this proposal also deals with the issue of transfer of technology in respect of exploration and exploitation of EEZ resources.respect of exploration and exploitation of EEZ resources.

However, since the outcome of the conference was However, since the outcome of the conference was generally a result of “balance of compromise”, Nigeria had to generally a result of “balance of compromise”, Nigeria had to accept all the provisions of the convention. That is why she signed accept all the provisions of the convention. That is why she signed it when it was first open for signature in 1982 and ratified it on it when it was first open for signature in 1982 and ratified it on August 14, 1986. After the New York Agreement of 1994, Nigeria August 14, 1986. After the New York Agreement of 1994, Nigeria indicated her consent to be bound by the agreement on November indicated her consent to be bound by the agreement on November 23, 1994. This means that this convention is in full force as far as 23, 1994. This means that this convention is in full force as far as Nigeria is concerned. What remains, therefore, is that Nigeria Nigeria is concerned. What remains, therefore, is that Nigeria needs conscientious efforts at implementing the provisions of the needs conscientious efforts at implementing the provisions of the Convention so as to maximize or achieve optimum utilization of her Convention so as to maximize or achieve optimum utilization of her ocean space. These conscientious efforts at implementing the LOS ocean space. These conscientious efforts at implementing the LOS and any other actions to achieve our national interests in and any other actions to achieve our national interests in connection with any activity related to the sea constitute the connection with any activity related to the sea constitute the national ocean policy.national ocean policy.

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Nigeria’s Ocean/Marine Interests: -Nigeria’s Ocean/Marine Interests: - Nigeria’s Ocean interests Nigeria’s Ocean interests as a costal and developing state cover a variety of strategic needs as a costal and developing state cover a variety of strategic needs including: - including: -

i.i. Exploration and exploitation of the resources of the sea;Exploration and exploitation of the resources of the sea;ii.ii. Transport and communication;Transport and communication;iii.iii. Military and strategic interests;Military and strategic interests;iv.iv. Marine scientific research and transfer of marine technology;Marine scientific research and transfer of marine technology;v.v. Waste disposal, marine environment preservation and management;Waste disposal, marine environment preservation and management;vi.vi. Coastal zone management; and Coastal zone management; and vii.vii. Tourism and Recreation.Tourism and Recreation.

The LOS provides exclusive jurisdiction over resources of the The LOS provides exclusive jurisdiction over resources of the EEZ and Continental shelf. With a land area of 923,768km2, Nigeria, lies EEZ and Continental shelf. With a land area of 923,768km2, Nigeria, lies between latitude 4between latitude 40016’ – 1316’ – 130052’N and longitude 252’N and longitude 20049’ – 1449’ – 140037’ East of the 37’ East of the Equator. A coastline of about 850km (15 nautical miles) bordering the Equator. A coastline of about 850km (15 nautical miles) bordering the Gulf of Guinea and an Exclusive Economic Zone of 200 nautical miles Gulf of Guinea and an Exclusive Economic Zone of 200 nautical miles covers marine area of approximately 210,900kmcovers marine area of approximately 210,900km22 within which Nigeria within which Nigeria exercises sovereign rights for exploring, exploiting, conserving and exercises sovereign rights for exploring, exploiting, conserving and managing with regards to installations, structures marine scientific managing with regards to installations, structures marine scientific research and protection of the marine environment. Nigeria has a research and protection of the marine environment. Nigeria has a continental shelf which narrows in the west to between 8 – 25 nautical continental shelf which narrows in the west to between 8 – 25 nautical miles but relatively widens off the Niger Delta to the eastern flank to miles but relatively widens off the Niger Delta to the eastern flank to about 43 nautical miles. about 43 nautical miles.

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With a shelf break of 200 metres contour line marking the With a shelf break of 200 metres contour line marking the outer edge, the total surface area of the shelf is about outer edge, the total surface area of the shelf is about 41,000km41,000km22. The Geomorphic features of this continental . The Geomorphic features of this continental shelf are the Avon, Mahin and Calabar canyons as well as shelf are the Avon, Mahin and Calabar canyons as well as sand banks in the inner shelf off the river banks and the sand banks in the inner shelf off the river banks and the deep seated faults Romanche chain and charcot fracture deep seated faults Romanche chain and charcot fracture zones that originate in the Mid-Atlantic ridge. Exploration zones that originate in the Mid-Atlantic ridge. Exploration and exploitation of both the living and non-living resources and exploitation of both the living and non-living resources of this area have vast implication for the country’s economic of this area have vast implication for the country’s economic and military strategy.and military strategy.Need for an Integrated National Ocean Policy in NigeriaNeed for an Integrated National Ocean Policy in Nigeria– Nigeria’s ocean/marine affairs are handled by a number of different Nigeria’s ocean/marine affairs are handled by a number of different

agencies such that there is no one government agency that agencies such that there is no one government agency that overseas ocean activities. Decisions are consequently taken on the overseas ocean activities. Decisions are consequently taken on the basis of particular needs without due consideration to other basis of particular needs without due consideration to other responsibilities.responsibilities.

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

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– Jurisdictional powers of these agencies are backed by a Jurisdictional powers of these agencies are backed by a number of legislations such as the Sea Fisheries Act, number of legislations such as the Sea Fisheries Act, Territorial Waters Act, the National Maritime Territorial Waters Act, the National Maritime Administration and Safety Act, 2006, the Coastal and Administration and Safety Act, 2006, the Coastal and Inland Shipping (cabotage) Act, 2003, and the NESREA Inland Shipping (cabotage) Act, 2003, and the NESREA Act, 2007 etc. promulgated at different times.Act, 2007 etc. promulgated at different times.

– Both the abolished and existing agencies and legislations Both the abolished and existing agencies and legislations may have been relatively effective in their functions but may have been relatively effective in their functions but they are constrained by inadequate marine technology they are constrained by inadequate marine technology and lack of central coordinating body to enhance and lack of central coordinating body to enhance integrated ocean management and policy coordination.integrated ocean management and policy coordination.

– Integration of ocean policy supplements rather than Integration of ocean policy supplements rather than replace a sectoral approach.replace a sectoral approach.

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INTRODUCTION TO INTERNATIONAL LAW BY PROF. MUHAMMED TAWFIQ LADAN (PhD) DEPARTMENT OF PUBLIC LAW,...

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