INR331

COURSE
GUIDE
INR 331
INTERNATIONAL LAW
Course Team Dr. Iwebunor Okwe (Course Developer/Writer) -

OAU
Mr. Akinbode Fasakin (Co-Writer) - OAU
Dr. Dokun Oyeshola (Course Editor) – OAU
Mrs. Udeoji Ebele (Course Coordinator) - NOUN
NATIONAL OPEN UNIVERSITY OF NIGERIA

INR 331 COURSE GUIDE
National Open University of Nigeria

Headquarters
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e-mail: [email protected]
URL: www.nou.edu.ng
Published by
National Open University of Nigeria
Printed 2015
ISBN:
All Rights Reserved
ii
CONTENTS PAGE
Introduction …………………………………………….. iv
What you will Learn in this Course …………………….. iv
Course Aims…………….………………………………. v
Course Objectives ……………………………………… v
Working through this Course…………………………… v
Course Materials………………………………………… vi
Study Units……………………………………………… vi
Textbooks and References…..…………………………. vii
Assessment………………………………………………. vii
Tutor-Marked Assignment…………………………….. vii
Final Examination and Grading……………………….. vii
Course Marking Scheme……………………………….. viii
Course Overview………………………….……………. viii
What you will Need in the Course……………………… x
Facilitators/Tutors and Tutorials……………………….. x
Conclusion……………………………………………… x
Summary………………………………………………… x
iii
INTRODUCTION
INR 331 - International Law is a three credit unit course for

undergraduate students of International Relations programme. The
course provides an opportunity for you to understand the meaning and
origin of international law, its evolution in Europe and some of the
theories and conceptual debates surrounding it. At the end of this course,
you should be able to understand and explain the meaning of
international law, which emanates from European diplomatic practices,
its use as instruments by, and for, modern states and its importance to
international relations. You would also be expected to be familiar with
the literature on international law and understand its role in world
politics.
This course guide provides you with necessary information about the
materials you will need to be familiar with for a proper understanding of
the subject matter. It is designed to help you get the best of the course by
enabling you to think productively about the principles underlining the
issues you study and the projects you execute in the course of your study
and hereafter. It also provides some guidance on the way to approach
your Tutor-Marked Assignment (TMA). You will receive on-the-spot
guidance from your tutorial classes, which you are advised to approach
with all seriousness.
Overall, this module will fill an important niche in the study of

international law as a sub-field of international relations and global
politics which has been missing from the pathway of Politics and
International Relations programmes offered in most departments.
WHAT YOU WILL LEARN IN THIS COURSE
Considering the proliferation of states and their changing/multiple roles

in the international system and the increase in the number of non-state
actors as well as their power and influence in the international system,
international law will help you to gain a mastery of international
relations. This course will provide an in-depth understanding of the
politics of international law as documented in the literature. You will be
exposed to the theoretical bases of, approaches to and principle of
international laws in the way that will provide a robust understanding
and the use of case studies to drive home the theoretical bases and
approaches. You will then know the strength of international law, how it
emerges, how much it is been respected or abused by states and the
politics states play while observing or making others to observe
international laws and the principles that actors observe in the
international system.
iv
COURSE AIMS
The aims of the course are to:
• explain in details the meaning and foundation of the concept

‘International Law’ in European diplomatic practices with
a view to highlighting the meaning of other concepts in the
course of study
• describe the origin, sources and history of international law in
European diplomatic practices
• present an overview of the theoretical approaches and principles
of international law
• discuss some international laws on the sea, outer space,
environment, human rights etc.
• apply the different approaches of international law to a wide and
diverse range of international legal formulation, criminal
prosecution and other conflict prevention areas.
COURSE OBJECTIVES
On successful completion of the course you should be able to:
• define international law, its principles and a number of concepts

therein
• state the evolution of international law and its linkage to
diplomacy in Europe
• compare and contrast international law with municipal laws
• describe the roles of the states and other actors in the formulation
and implementation of international laws
• apply these theoretical approaches and principles to practical
world events as it happens daily.
WORKING THROUGH THIS COURSE
It is advised that you carefully work through the course studying each
unit in a bid to understanding the concepts and principles in international
law and how the discipline evolved and has continued to develop.
Knowing the theoretical debates to this study will also be very useful in
having a good grasp of the course. Your questions should be noted
regularly and asked at the tutorial classes. It is recommended that
students also engage new ideas generated from unfolding events around
the world that International Law principles can be applied to and
romance these ideas among one another and the tutorial master.
v
COURSE MATERIALS
1. Course Guide
2. Study Units
3. Textbooks
4. Assignment File
5. Presentation Schedule
STUDY UNITS
There are five modules in this course and each is made up of four units.
In all, there are 20 units.
Module 1 Starting Point: Understanding the Concept

‘International Law’ within European Diplomatic
Practices
Unit 1 What is International Law?

Unit 2 Europe, the Origin and Historical Development of
International Law
Unit 3 Classical/Early Writers of International Law
Unit 4 The Relationship between International Law and
Municipal Law
Module2 International Law: Sources, Theories, Approaches and

Principles
Unit 1 Sources and Subjects of International Law

Unit 2 Theories of International Law: Positivist, Naturalist etc.
Unit 3 Principles of International Law: Principles of Self
Determination, Reciprocity, Right to Protect etc.
Unit 4 Human Rights in International Law
Module 3 Some International Laws and the Environment
Unit 1 Laws of War

Unit 2 Laws of the Sea
Unit 3 Air Space and Outer Space Law
Unit 4 International Environmental Protection Laws
Module 4 The Politics of International Laws
Unit 1 Sovereignty and Recognition of States in Modern

International Law
Unit 2 Jurisdiction
Unit 3 State Responsibility
Unit 4 Nationality
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Module 5 International Law Related Institutions
Unit 1 The United Nations and the International Court of Justice

Unit 2 The International Criminal Court
Unit 3 The African Union
Unit 4 The Limitations and Possibilities of International Law
TEXTBOOKS AND REFERENCES
Each unit contains a list of relevant reference materials and text which
can help enhance your reading and understanding of this course. It s
important to note that conscious effort have been put to developing this
course guide, however, it is in your interest to consult these relevant
texts and many others not referenced here so as to widen your horizon
and sharpen your own ability to be versatile and creative. This
instruction is crucial as it will go a long way in helping you find solution
to assignments and other exercises given to you.
ASSESSMENT
There are two types of assessment involved in the course: the Self-
Assessment Exercise (SAE) and the Tutor-Marked Assignment (TMA)
questions. The SAE are intended to prepare you on your own and assess
your understanding of the course since you are not going to submit it.
On the other hand, the TMA are to be carefully answered and kept in
your assignment file for submission and marking. It is important you
take it seriously as it accounts for 30% of your overall score in this
course.
TUTOR-MARKED ASSIGNMENT
The Tutor-Marked Assessments (TMA) that you will find at the end of
every unit should be answered as instructed and put in your file for
submission afterwards. This account for a reasonable score and so must
be done and taken seriously too. However, this Course Guide does not
contain any Tutor-Marked Assignment question. The Tutor-Marked
Assignment questions are provided from Unit 1 of Module 1 to Unit 4 of
Module 5.
FINAL EXAMINATION AND GRADING
There will be a final examination at the end of this course. The

examination duration is three hours carrying 70% of your total score and
grade in this course. It is highly recommended that your Self-
Assessment Examination and Tutor- Marked Assignment are taken
vii
seriously as your examination questions will be drawn from the question

treated under these assessments.
COURSE MARKING SCHEME
The following table sets out how the actual course marking is broken
down.
Assessment Marks
Four assignments (the best four Four assignments, each marked out
of all the assignments submitted of 10%, but highest scoring three
for marking). selected, thus totaling 30%
Final Examination 70% of overall course score.
Total 100% of course score.
COURSE OVERVIEW
Assignment
Weeks
Units Title of Work (End of
Activity
Unit)
Course Guide
Module 1
1 Assignment
What is International Law? Week 1
1
Europe, the Origins and Historical Assignment
2 Week 2
Development of International Laws 1
Classical/Early Writers of Assignment
3
International Law 1
The Relationship between Week 3
Assignment
4 International Law and Municipal
1
Law
Module International Law: Sources, Theories, Approaches and
2 Principles
1
Sources and Subjects of International Assignment
Week 4
Law 1
Theories of International Law: Assignment

2
Positivist, Naturalist etc. 1
Principles of International Law: Week 5
Assignment
3 Principles of Self Determination,
1
Reciprocity, Right to Protect etc.
viii
Assignment
Weeks
Units Title of Work (End of
Activity
Unit)
Assignment
4 Human Rights Week 6
1
Module
Study of Some International Law
3
Assignment
1 Laws of War Week 7
1
Assignment
2 Laws of the Sea Week 8
1
Assignment
3 Air Space and Outer Space Law Week 9
1
International Environmental Week Assignment
4
Protection Laws 10 1
Module
The Politics of International Laws
4
Sovereignty and Recognition of Week Assignment
1
States in Modern International Law 11 1
Assignment
2 Jurisdiction
Week 1
12 Assignment
3 State Responsibility
1
Week Assignment
4 Nationality
13 1
Module
International Institutions
5
The United Nations and the Week Assignment
1
International Court of Justice 14 1
Week Assignment
2 The International Criminal Court
15 1
Assignment
3 The African Union
1
Week
The Limitations and
16 Assignment
4 Strengths/Possibilities of
1
International Law
Week
Revision
17
Week
Examination
18
18
Total
Weeks
ix
WHAT YOU WILL NEED IN THE COURSE
The knowledge of Introduction to International Law and Diplomacy in

Pre-colonial Africa, INR 112 taken in your first year will be of immense
benefit in this course. There will also be some recommended texts at the
end of each module that you are expected to purchase. Some of these
texts will be available to you in libraries across the country. In addition,
your computer proficiency skill will be useful to you in accessing
internet materials that pertain to this course. It is crucial that you create
time to study these texts diligently and religiously.
FACILITATORS/TUTORS AND TUTORIALS
The course provides 15 hours of tutorials in support of the course. You

will be notified of the dates and locations of these tutorials, together
with the name and phone number of your tutor as soon as you are
allocated a tutorial group. Your tutor will mark and comment on your
assignments, and watch you as you progress in the course. Send in your
tutor-marked assignments promptly, and ensure you contact your tutor
on any difficulty with your self-assessment exercise, tutor-marked
assignment, and the grading of an assignment.
CONCLUSION
This is a theoretical as well as empirical course and so, you will get the
best out of it if you can read wide, listen to as well as examine
international regulations and agreement between and among states and
get familiar with international reports across the globe. You will also get
to know the political dimensions to international laws as individuals and
states observe or ignore and enforce or weaken these laws.
SUMMARY
This Course Guide has been designed to furnish you with the
information you need for a fruitful experience in the course. In the final
analysis, how much you get from it depends on how much you put into
it in terms of learning time, effort and planning.
I wish you all the best in INR 331 and in the entire programme!
x
MAIN
COURSE
CONTENTS PAGE
Module 1 Starting Point: Understanding the Concept
‘International Law’ Within European
Diplomatic Practices………………………………. 1
Unit 1 What is International Law?........................................... 1
Unit 2 Europe and the Origins and Historical
Development of International Law…………………. 9
Unit 3 Classical/early Writers of International Law………. 22
Unit 4 The Relationship between International
Law and Municipal Law……………………………... 28
Module 2 International Law: Sources, Theories,
Approaches and Principles………………............... 37
Unit 1 Sources and Subjects of International Law……….… 37
Unit 2 Theories of International Law: Positivist,
Naturalist etc……………………………………….... 47
Determination, Reciprocity, Right to Protect etc…... 58
Unit 4 Human Rights in International Law……….……….. 79
Module 3 A Study of Some International Laws……………. 91
Unit 1 Laws of War………………………………………… 91
Unit 2 Laws of the Sea……………………………………… 106
Unit 3 Air Space and Outer Space Law……………………. 118
Unit 4 International Environmental Protection Laws…….. 123
Module 4 The Politics of International Laws……………..... 128
International Law………………………………….. 128
Unit 2 Jurisdiction………………………………………... 135
Unit 3 State Responsibility……………………………….. 140
Unit 4 Nationality…………………………………………. 145
Module 5 International Law Related Institutions………… 150
Unit 1 The United Nations and the International
Court of Justice…………………………………….. 150
Unit 2 The International Criminal Court…………………. 155
Unit 3 The African Union…………………………............ 161
Unit 4 The Limitations and Possibilities of International Law 166
INR 331 MODULE 1
MODULE 1 STARTING POINT: UNDERSTANDING

THE CONCEPT ‘INTERNATIONAL LAW’
WITHIN EUROPEAN DIPLOMATIC
PRACTICES
Unit 1 What is International Law?

Unit 2 Europe, the Origins and Historical Development of
International Laws
Unit 3 Classical/Early Writers of International Laws
Unit 4 The Relationship between International Law and
Municipal Law
UNIT 1 WHAT IS INTERNATIONAL LAW?
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Definition and Meaning of International Law
3.2 Why Study International Law?
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignment
7.0 References/Further Reading
1.0 INTRODUCTION
Through its diplomatic activities, Europe as a continent has contributed

immensely to the development of international law. Most of its state to
state relationships prior to the First and Second World Wars have now
become part and parcel of diplomacy and international law. This is more
so when the wars and diplomatic activities between and among
European states before the formal international legal structures were
codified in various conventions and other statutory documents.
Therefore, the study of international law in this study, attempts to do so
bearing in mind European contributions through diplomatic practices to
international law. International law is an institutional practice with a
long history and presence in the international system. It is usually relied
upon to state the roles and limits of actors in the international system.
This underscores the fundamental importance of international law in the
study of international relations. Although international relations and
international law appear to be separate disciplines, their degree of
separation very much depends on how participants in these disciplines
define their research interests and concerns. How be it, at the level of
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INR 331 INTERNATIONAL LAW
system-wide analysis, international law is an important resource for

students of international relations. Studying international law is an
important way to grasp the facts of international life, as well as the
values underpinning it. It can be studied from any of the perspectives
within international relations. International law has undergone a number
of changes, which indeed have increased tremendously since 1945 with
the emergence of international human rights law, international trade law,
international criminal law, and international humanitarian law regimes;
indicating the dynamics of the evolution of international law in
consonance with the trajectories of international relations.
Contemporary theories of international relations have to develop, part
way on account of the configurations established by these networks and
domains of institutional practices provided by international law.
International law comprises those structural legal relations which are

intrinsic to the co-existence of all kinds of subordinate societies and
persons. It confers on legal personalities, including the state societies,
the capacity to act as parties in international legal relations. It
determines the systematic relationship between other systemic entities.
A crucial element of the international legal system is the international
public law, which focuses on the inter-governmentalism of international
society. International public law is that part of international law, which
regulates the interaction of the subordinate public realms within the
international public realm. The principal participants in the legal
relations of international public law are the ‘states’, represented by their
‘governments’, that is to say, by the controllers of their respective public
realms. ‘States’ are considered to be those societies whose internal
public realm is recognised as capable of participating in inter-
governmentalism. International constitutional law determines the
conditions of that participation and also the participation of other
persons, on the basis of legal relations to which they are made parties.
The Laws of the nations are an integral part of the international legal
system. It is international constitutional law which determines the
participants in the international legal system (for example, making a
particular society into a ‘state’), and determines the conditions of their
participation. The geographical and material distribution of
constitutional authority among subordinate legal system cannot be
finally determined by those legal systems themselves, but only by a
super ordinate legal system namely international constitutional law.
2.0 OBJECTIVES
At the end of this unit, you should be able to:
• define and explain the concept international law

• explain the relevance of the study of international law
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INR 331 MODULE 1
• identify the different component areas of international law.
3.0 MAIN CONTENT
3.1 Definition and Meaning of International Law
International law refers to the universal system of rules and principles

concerning the relations between sovereign states, and relations between
states and international organisations such as the United Nations. It
consists of the rules and principles of general application dealing with
the conduct of States and of international organisations in their
international relations with one another and with private individuals,
minority groups and transnational companies. It can also be described as
a system of legal relations which condition social action of state and
non-state entities. International law is primarily formulated by
international agreement, treaties and conventions, which create rules
binding upon the signatories, and customary rules which are basically
state practices recognised by the community at large as laying down
patterns of conducts that have to be compiled with. The willingness to
agree, accept and abide with international resolutions is crucial,
particularly to the extent it will go in precluding international disputes.
Nevertheless, while it is true that international law deals with
international disputes, like any other system of law, the role of
international law is to regulate relations and thus help to contain and
avoid disputes in the first place. The substantial part of international law,
therefore, does not concern dispute resolution but dispute avoidance. It
focuses on the day-to-day regulation of international relations. In the
daily routine of international life, large numbers of agreements and
customs are made and observed. However, the need is felt in the hectic
interlay of world affairs for some kind of regulatory framework or rules
network within which the game can be played, and international law
fulfills that requirement. States feel this necessity because it imports an
element of stability and predictability into the situation. Where countries
are involved in a disagreement or a dispute, it is handy to have recourse
to the rules of international law even if there are conflicting
interpretations since at least there is a common frame of reference and
one state will be aware of how the other state will develop its argument.
International law, like any other law is a product of social processes,
which determine society’s common interest and which organises the
making and application of law. International law takes a customary
form, in which society orders itself through its experience of self-
ordering. The state of international law at any time reflects the degree of
development of international society. This partly explains why
international law has a threefold social function, which include the
carriage of the structures and systems of society through time; the
insertion of the common interest of societies into the behavior of society
3
members and; the establishment of a possible future for societies, in

accordance with society’s theories, values and purposes. By extension
therefore, international law is self-constituting of all-humanity and is
actualised through the law of the common interest of international
society. It is that element which binds the members of the community
together in their adherence to recognise values and standards. It consists
of a series of rules regulating behavior, and reflecting to some extent,
the ideas and preoccupations of the society within which it functions.
There is the need to emphasise that international law is different from

other laws such as municipal law and conflict of laws (or private
international law). This is essential given the ambiguities associated
with these concepts. The former regulates relationships between natural
and legal persons within a single country. The law that is applied is
determined by the legislation of the same country. For example, if two
Nigerians make a contract in Ghana to sell goods situated in Accra,
Nigerian court would apply Ghanaian law as regards the validity of that
contract. The latter regulates relationships between natural and legal
persons that happen to be in more than one country, such as
relationships between companies in two different countries or between
parents from two different countries over the custody of children. In
such cases, courts have to decide the law of which country should be
applied.
It is for the above reason that international law is sometimes also called
public international law. Public International Law (PIL) covers relations
between states in all their myriad forms, from war to satellites, and
regulates the operations of the many international institutions. It may be
universal or general, in which case the stipulated rules bind all the states
(or practically all depending upon the nature of the rule), or regional,
whereby a group of states linked geographically or ideologically may
recognise special rules applying only to them. The rule of international
law must be distinguished from what is called international comity,
which are implemented solely through courtesy and are not regarded as
legally binding. Similarly, the mistake of confusing international law
with international morality must be avoided. While they may meet at
certain points, the former discipline is a legal one both as regards its
content and its form, while the concept of international morality is a
branch of ethics. This does not mean, however, that international law
cannot be divorced from its values.
The above underlines the fact that the focus of international law is
interstate relations and not relations between private entities and also the
fact that domestic laws of any country cannot tell us what international
laws are. Private entities, such as companies or individuals, however,
can be subjects of international law. For example, international aviation
4
INR 331 MODULE 1
is governed by international law because there are international treaties

between states about it. Similarly, individuals can be prosecuted under
international criminal law or claim rights against states under
international human rights law because there are interstate treaties that
make these possible. International law, therefore, regulates more than
just interstate relations. It also regulates other forms of relationships that
states agree to regulate internationally. International law regulates the
conduct of actors that make up contemporary international society.
Areas of contemporary international law are numerous and include:
airspace, development, bio-diversity, climate change, conduct of armed
conflicts, diplomatic and consular relations, extradition, finance,
fisheries, human rights, indigenous rights, intellectual property,
international crimes, minority rights, natural resources, outer space,
ozone layer, postal matters, peace and security, science and security, sea,
trade, use of force, weapons.
SELF-ASSESSMENT EXERCISE
What do you understand by international law?
3.2 Why Study International Law?
International law can be studied to understand the history of interstate

practice over the years. International law has a memory of state practice
in a historical context. We can compare the amount and kinds of
cooperation states had in previous centuries with the current situation by
studying the international treaties in a historical perspective.
International law gives us an idea about the acceptable basis of interstate
cooperation and how states deal with the most pressing issues of their
times through international law. A comparison, for example, between
the League of Nations and the UN offer us an understanding of
international affairs in terms of which ideas have been institutionalised
and how effective such institutionalisation has proved. This is also very
important when we talk about the reform of the international system.
International law enables us to have a historically informed attitude
towards what may be feasible for the future of international law.
International law can be studied in order to have an understanding of the

operation of international organisations and institutions. All
international organisations appeal to basic principles of international law
in their operations. International organisations, in this respect, exist by
virtue of international law. The workings of the United Nations (UN)
General Assembly, the UN Security Council, the UN Peace-Building
Commission, the UN Human Rights Council only become clear after a
study of the UN Charter and relevant decisions, declarations, resolutions
of these bodies. There are also an increasing number of institutional
5
arrangements that we cannot analyse without a clear understanding of

their status and mandate in international law. Consider for example,
peacekeeping or peace enforcement missions authorised by the Security
Council or the refugee camps run by the UN High Commission for
Refugees or the International Red Cross and Red Crescent, which is
recognised to have a special mandate under international humanitarian
law treaties and domestic laws.
International law can be studied to find out what the distinct

international law position is on any aspect of international affairs. There
are a number of views that can be offered on a particular debate in
international affairs. There could be the subjective view, i.e. an account
of what any stakeholder thinks is the case. There could be the normative
view, i.e. an account of what would be the best position to be adopted by
anyone. Finally, there could be the international law view, that is, an
account of what would be the correct conduct or outcome in
international law. For the student of international relations interested in
understanding how international actors conduct themselves, the
international law perspective is indispensable as international law aims
to offer established standards of conduct. For the future policy- maker or
politician, it is imperative to be able to critically appraise whether the
current rules of international law are worth following or supporting or
whether they are in need of fundamental revision. International law,
therefore, is particularly important for international relations students
who wish to criticise the actual conduct of states or would like to
propose changes to existing arrangements. Given the interest of
international law in the regulation of international affairs, accurate
information about international treaties, the mandates and composition
of international organisations, the relationship between different
organisations at the international level and the way in which
international institutions operate matters to international law.
International law can be studied with the purpose of understanding the

power of its norms and the rise and fall of international legal
frameworks. A central reason to engage with international law is to
assess the extent to which the norms embedded in international law
guide and control state behavior. There are a number of scenarios that
may emerge in any area of international relations at any time. One
scenario is that some new development may take place, for example, the
possibility of exploitation of resources on the moon. It would then be
necessary to assess whether there are already a number of norms that
govern this area or whether different norms emerge that are able to
address the concerns in a more specific way. Another scenario would be
the case of states withdrawing their support from an international law
rule. This would lead us to question what made the rule inadequate and
what replaces it instead. Yet another scenario is the sphere of contested
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INR 331 MODULE 1
norms and how a student of international relations can distinguish

between a norm with weak support and a contested norm. A final
systematic issue would be the circumstances under which a fundamental
international legal norm may undergo change or reform. International
law not only provides indicators about where the most pressing
problems lie with respect to the power of norms, it also offers
perspectives to international relations students about how to assess the
rise and demise of international law to international relations students
about how to assess the rise and demise of international law.
International law is worth studying because it is a site where we can

engage with both ideas and practice about international affairs. The final
answer to the Why international law? Question, is one about developing
a certain kind of attitude to international affairs. International law
contributes to how we think about international relations as a whole and
the basic aims of international society. This is a different orientation of
thinking, especially as opposed to thinking about the basic aims of
states. More significantly, contemporary international law, with its focus
stretching beyond interstate relations to areas such as the environment,
human rights, trade, development, allows students of international
relations to engage with questions about a fair international system and
the possibility of such a system under contemporary political conditions.
International law with one foot in the practice of international affairs and
another one in principles and norms is a perfect location to think about
the future of international relations.
List and explain five importance of international law.
4.0 CONCLUSION
The international society is made up of states and non state actors. It is

also made up of international organisations and other groups such as
armed groups or business enterprises and individuals; whose status,
powers, responsibilities and actions must however be recognised by
states through international law. By implication, an essential element in
the definition of international law, which provides a framework for
focus, is not in its subject matter or the type of entities it regulates, but
that it is law that is made by states collectively. No single state acting
unilaterally can make international law; neither can a collection of
corporations or individuals. International law rests with states acting
together. International organisations, individuals, and corporations can
all become subjects of international law and have limited powers and
international personality recognised under international law. They can
also help clarify what international law is by interpreting it or they can
7
appear in international courts. But they cannot make international law.

This means that there are no predetermined limits as to what areas
international law does or should regulate. This can only be determined
through collective agreement amongst states.
5.0 SUMMARY
This unit has defined and explained international law. It emphatically

noted that the key focus of international law is interstate relations and
not relations between private entities. Private entities indeed play
significant roles in the international system but only constitute part of
the ‘subjects’ of international law. International law was also considered
as a product of social processes that assumes a customary form and
character in which nations develop based on their histories and
experiences. The study equally made effort to clarify that although
international law helps in the settlement of disputes, the principal target
of international law is to regulate relations between and among states.
By so doing, international law centrally focuses on the preclusion of
disputes. In this unit, we equally examined some of the reasons why the
study of international law is crucial. Fundamentally, international law
provides the platform upon which international relations is
harmoniously carried out.
6.0 TUTOR-MARKED ASSIGNMENT
Analyse the significance of European states in the framing of

international law.
7.0 REFERENCES/FURTHER READING
Duplessis, I. (2008). “Soft International Labour Law: The Preferred

Method of Regulation in a Decentralised Society” In: Clavet, R.
et al.
Governance International Law and Corporate Social Responsibility.

Geneva: International Institute for Labor Studies.
Shaw, M. N. (2008). International Law. London, United Kingdom:

Cambridge University Press.
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INR 331 MODULE 1
UNIT 2 EUROPE AND THE ORIGINS AND

HISTORICAL DEVELOPMENT OF
INTERNATIONAL LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Origins of International Law
3.1.1 Ancient Worlds
3.1.2 The Universalist Outlook: Medieval Natural Law
3.1.3 The Pluralist Outlook: The Italian City-States
3.1.4 Developments in State Practice
3.1.5 The Classical Age
3.1.6 Historical Development of International Law
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
Indeed, the ambiguity of the term ‘international law’ leads to different

answers to the question of when international law ‘began’. If by
‘international law’ is meant merely the ensemble of methods or devices
which give an element of predictability to international relations (as in
the silent-trading illustration), then the origin may be placed virtually as
far back as recorded history itself. If by ‘international law’ is meant a
more or less comprehensive substantive code of conduct applying to
nations, then the late classical period and Middle Ages was the time of
its birth. If ‘international law’ is taken to mean a set of substantive
principles applying uniquely to States as such, then the seventeenth
century would be the starting time. If ‘international law’ is defined as
the integration of the world at large into something like a single
community under a rule of law, then the nineteenth century would be the
earliest date (perhaps a tri. e optimistically). If, finally, ‘international
law’ is understood to mean the enactments and judicial decisions of a
world government, then its birth lies (if at all) somewhere in the
future—and, in all likelihood, the distant future at that.
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2.0 OBJECTIVES
• state the linkage between diplomacy in Europe and the origin(s)

and historical development of international law
• identify the major ancient powers, kingdoms, and empires
(especially the Greek and Roman empires) that served as the
precursors of international law
• explain the main contributions of the Medieval Natural Law
towards the development of international law
• demonstrate how the arguments of both the universalists and the
pluralists evolved and impacted on the historical development of
international law
• outline the implications of pluralism on state practice, particularly
on the development of diplomatic ties among nations.
3.0 MAIN CONTENT
3.1 Origin of International Law
3.1.1 Ancient Worlds
For a vivid indication of how persons from even the most diverse
cultures can relate to one another in a peaceful, predictable, and
mutually beneficial fashion, it is difficult not to top Herodotus’s
description of ‘silent trading’ between the Carthaginians and an
unnamed North African tribe in about the sixth century BC. When the
Carthaginians arrived in the tribe’s area by ship, they would unload a
pile of goods from their vessels, leave them on the beach and then return
to their boats and send a smoke signal. The natives would then come
and inspect the goods on their own, leave a pile of gold, and retire. Then
the Carthaginians would return; and, if satisfied that the gold represented
a fair price, they would take it and depart. If not satisfied, they would
again retire to their ships; and the natives would return to leave more
gold. The process would continue until both sides were content, at which
point the Carthaginians would sail away with their gold, without a word
exchanged between the two groups. There was perfect honesty on both
sides, as Herodotus observed. There were no problems of theft or
conflict. This silent trading arrangement may have been successful in its
way, but a process of interaction so inflexibly ritualistic and so narrow
in subject matter could hardly suffice for political interactions between
States, even in ancient times.
The major evidence in the study of the nascent international law lay in
three areas of ancient Eurasia that were characterised by dense networks
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INR 331 MODULE 1
of small, independent States sharing a more or less common religious

and cultural value system: Mesopotamia (by, say, the fourth or third
millennium BC), northern India (in the Vedic period after about 1600
BC), and classical Greece. Each of these three State systems was
characterised by a combination of political fragmentation and cultural
unity. This enabled a number of fairly standard practices to emerge,
which helped to place inter-State relations on at least a somewhat stable
and predictable footing. Three particular areas provide evidence of this
development: diplomatic relations, treaty-making, and the conduct of
war. A major additional contribution of the Greek city-States was the
practice of arbitration of disputes, of which there came to be a very
impressive body of practice.
It was not inordinately difficult for some of these practices to extend

across deeper cultural lines as well. One of the earliest surviving treaty
texts was between Egypt and the Hittite Empire, from the thirteenth
century BC. The agreement concerned an imperial division of spheres of
influence, but it also dealt with the extradition of fugitives. The problem
of good faith and binding force was ensured by enlisting the gods of
both nations (two thousand strong in all) to act as guardians. With the
advent of the great universal religions, far more broadly-based systems
of world order became possible. One outstanding example was the
Islamic empire of the seventh century AD and afterwards. Significantly,
the body of law on relations between States within the Muslim world
(the Dar al-Islam, or ‘House of Islam’) was much richer than that
regarding relations with the outside world (the Dar al-Harb, or ‘House
of war’). But even with infidel States and nationals, a number of
pragmatic devices evolved to permit relations to occur in predictable
ways—such as ‘temporary’ truces (in lieu of treaties) or safe-conducts
issued to individuals (sometimes on a very large scale).
In Western history, the supreme exemplar of the multinational empire

was Rome. But the Roman Empire was, in its formative period, a
somewhat tentative and ramshackle affair, without an over-arching
ethical or religious basis comparable to the Islamic religion in the later
Arab empire. That began to change, however, when certain
philosophical concepts were imported from Greece (from about the
second century BC). The most important of these was the idea of a set of
universal principles of justice: the belief that, amidst the welter of
varying laws of different States, certain substantive rules of conduct
were present in all human societies. This idea, first surfaced in the
writings of Aristotle. But it was taken much further by the philosophers
of the Stoic school, who envisaged the entire world as a single ‘world
city-State’ (or kosmopolis) governed by the law of nature. Cicero,
writing under Stoic influence, characterised this law of nature as being
‘spread through the whole human community, unchanging and eternal’.
11
This concept of a universal and eternal natural law was later adopted by
two other groups, the Roman lawyers and the Christian Church, and
then bequeathed by them to medieval Europe. The lawyers in particular
made a distinction that would have a very long life ahead of it: between
a jus naturale (or natural law properly speaking) and a jus gentium (or
law of peoples). The two were distinct, but at the same time so closely
interconnected that the differences between them were often very easily
ignored. Natural law was the broader concept. It was something like
what we would now call a body of scientific laws, applicable not just to
human beings but also to the whole animal kingdom as well. The jus
gentium was the human component, or sub-category, of it. Just as the
law of nature was universal in the natural world, so was the jus gentium
universal in the human world.
Discuss the origin and historical development of international

law.
3.1.2 The Universalist Outlook: Medieval Natural Law
The European Middle Ages became the great age of natural-law thought.
During this period, natural-law conceptions developed under the
umbrella of the Catholic Church. But it must be remembered that the
idea was not specifically Christian in its inception, but rather was a
legacy of the classical Stoic and Roman legal traditions. The dominant
tradition—represented outstandingly by Thomas Aquinas—was
rationalist in outlook, holding the content of the natural law to be
susceptible of discovery and application by means of human reason
rather than of revelation.
Natural law is one of the many parts of international law that have never
received the systematic study that they merit. In the present context,
only a few of its most salient features can be noted. Perhaps its single
most outstanding feature was its all-embracing character. It
encompassed and regulated the natural and social life of the universe in
all its infinite variety—from the movements of the stars in their courses
to the gurgling of the four humors through the veins and arteries of the
human body, from the thoughts and deeds of all of the creatures of land,
sea, and air, to those of human beings and the angels in the heavens. Its
structures applied universally to all cultures and civilisations, past,
present, and future.
There continued to be, as in the ancient period, a distinction between the

jus natural and the jus gentium, though still without any very sharp line
between the two. The jus gentium was much the lesser of the two, being
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seen largely as an application of the broader natural law to specifically

human affairs. Sometimes it was regarded as comprising universal
customs of purely human creation—and therefore as a sort of
supplement to natural law properly speaking. These jus gentium rules
were sometimes referred to as ‘secondary’ natural-law rules. It must be
stressed that this original jus gentium did not consist entirely, or even
primarily, of what would now be called rules of international law.
Instead, it was a collection of laws common to all nations, affecting
individuals in all walks of life, from the highest to the lowest, and
dealing with all aspects of human social affairs—contract, property,
crime, and the like. It was more in the nature of an ethical system of
universal or trans-cultural scope, setting out general norms of conduct,
as opposed to a legal code with a list of prohibitions and punishments.
One aspect of this grand intellectual scheme should be particularly
stressed: the fact that there was no strong tendency to think that anybody
of law existed that was applicable uniquely to international relations as
such. States, like private persons, were permitted lawfully to wage war
for such purposes as the punishment of wickedness or, generally, for the
enforcement of the law—but not for vainglory or conquest or
oppression. This, in fact, was the conceptual kernel of natural law’s
most outstanding contribution to international law: the doctrine of the
just war.
3.1.3 The Pluralist Outlook: The Italian City-States
Even if (as the natural-law writers maintained) the whole of human

society formed a single moral and ethical community, there was no
denying that the world also consisted of a welter of different polities, of
a bewildering variety of sorts, and of varying degrees of independence
from one another—extending all the way from the great empire of Rome
itself (of Byzantium) to the patchwork of feudal jurisdictions which
carpeted Western Europe.
Nowhere was the tension between the universalistic and the pluralistic
tendencies of the period more evident, in practice, than in the debates
over the legal status of the various ‘independent’ city-states of northern
Italy. These obtained substantial de facto independence from the Holy
Roman Empire in the late twelfth century, when the cities of the
Lombard League defeated the forces of Emperor Frederick I. There was,
however, considerable debate over what this ‘independence’ really
meant. To this matter, two of the most prominent medieval lawyers—
Bartolus of Sassoferato and his student Baldus of Ubaldis, who both
wrote in the fourteenth century—turned their attention. Broadly
speaking, the conclusion of Bartolus (largely echoed by Baldus) was that
the cities were independent in the sense of being wholly self-governing
and independent of one another, but that, in their relations inter se, they
13
continued to be subject to rules of the Empire. Here we see the, first

glimmer, in European society, of the concept of independence of States
operating in conjunction—sometimes very uneasily—with subjection to
a larger set of norms governing inter-State relations. For this reason,
Bartolus has been called, with some justice, the jurist theorist of
international law.
Describe how ancient civilisation, particularly European civilisation,

contribute to the evolution of the natural law.
3.1.4 Development in State Practice
It is from the pluralist rather than the universalist side of the great
medieval conceptual divide that we must look for innovations in State
practice. The reason is easily seen: it is in the day-to-day relation of
different States and peoples with one another that the practical problems
of law are most likely to arise. Much of the State practice in the middle
ages consisted of traditional ways inherited from ancient times. The area
of diplomatic relations is an example, with diplomats increasingly being
accorded a broad (but not absolute) degree of immunity from judicial
process in host States. Beginning in about the eleventh century,
European (chiefly Italian) States began to conclude bilateral treaties that
spelled out various reciprocal guarantees of fair treatment. These
agreements, sometimes concluded with Muslim States, granted a range
of privileges to the foreign merchants based in the contracting States,
such as the right to use their own law and courts when dealing with one
another. The same process was at work in the sphere of maritime
trading. The seafaring community made use of the laws of Oleron
(which were actually a series of court decisions from the small island of
that name in the Bay of Biscay), and also of a code of rules called the
Consolato del Mare, compiled in about the thirteenth century for the
maritime community of Barcelona. These codes governed the broad
range of maritime activities, including the earliest rules on the rights of
neutral traders in wartime.
Certain aspects of the conduct of war witnessed a high level of

refinement in the middle ages—most notably the law on the ransoming
of prisoners of war (a welcome step forward from the alternatives of
enslavement and summary killing). ‘the law of arms’ (as it was known)
was expounded in the fourteenth century, first by John of Legnano and
later by a monk named Honore de Bonet (or Bouvet), whose book
entitled The Tree of Battles, of the 1380s, became very influential.
Accounts of medieval warfare, however, incline observers to harbour
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grave doubts as to whether even these practical rules exerted much real
influence.
With the European explorations of Africa and, particularly, the New

World from the fourteenth century onward, questions of relations with
non-European societies assumed an urgent importance—while, at the
same time, posing an immense practical test for the universality of
natural law. The Spanish conquest of the Indian kingdoms in the New
World sparked especially vigorous legal and moral debates (even if only
after the fact). The Dominican scholar, Francisco de Vitoria, in a series
of lectures at the University of Salamanca, concluded that the Spanish
conquest was justified, on the ground that the Indians had unlawfully
attempted to exclude Spanish traders from their kingdoms, contrary to
natural-law rules. But he also confessed that his blood froze in his veins
at the thought of the terrible atrocities committed by the Spanish in the
process. In 1550–51, there occurred one of the major legal
confrontations of history, when two prominent, Figures—Juan Ines de
Sepulveda and Barolome de las Casas—debated, at length, the
lawfulness and legal bases of the Spanish conquest of the New World,
under the judgeship of the theologian and philosopher Domingo de Soto.
The result, alas, was inconclusive, as Soto declined to render a
judgment.
In short, medieval international law was a jumble of different beliefs and

practices— from the rare end conceptions of the law of nature, to the
more serviceable rules by which various communities conducted their
actual day-to-day business, from warfare and diplomacy, to buying and
selling.
In what way(s) did pluralism influence the development of state practice

during the medieval era?
3.1.5 The Classical Age
In the seventeenth and eighteenth centuries, a new spirit entered into

doctrinal thought on international law. This is sometimes put in terms
of a secularisation of natural-law thought. That, however, is a very
misleading characterisation, since natural-law itself was (and had always
been) primarily secular in nature. What was new in the seventeenth
century was a willingness to give a degree of formal recognition to State
practice as a true source of law, rather than regarding it as merely
illustrative of natural-law principles. The result was a kind of dualistic
outlook, with natural law and State practice maintaining a wary, and
15
rather uneasy, form of co-existence—a state of affairs much in evidence

to the present day.
3.1.6 Historical Development of International Law
The foundation of international law (or the law of nations) as it is

understood today lie firmly in the development of Western culture and
political organisations. As it were, the growth of European nations of
sovereignty and the independent nation-state required an acceptable
method whereby inter-state relations could be conducted in accordance
with commonly accepted standards of behavior, and international law
filled the gap. But although the law of nations took root and flowered
with the sophistication of Renaissance Europe, the seeds of this
particular hybrid plant are of far older lineage. They reach far back into
history. While the modern international system can be traced back some
400 years, certain of the basic concepts of international law can be
discerned in political relationships thousands of years ago. Around 2100
BC, for example, a solemn treaty was signed between the rulers of
Lagash and Umma, the city-states situated in the area known to
historians as Mesopotamia. It was inscribed on a stone block and
concerned the established of a defined boundary to be respected by both
sides under pain of alienating a number of Sumerian gods.
The next major instance known of an important, binding, international

treaty is that concluded over 1000 years later between Ramses II of
Egypt and the king of the Hittites for the establishment of eternal peace
and brotherhood. Other points covered in that agreement signed (at
Kadesh, north of Damascus) included respect for each other’s territorial
integrity, the termination of a state of aggression and the setting up of a
form of defensive alliance. Since that date many agreements between the
rival Middle Eastern powers were concluded, usually aimed at
embodying in a ritual form a state of subservience between the parties or
attempting to create a political alliance to contain the influence of an
over-powerful empire.
After much neglect, there is now more consideration of the cultures and
standards that evolved, before the birth of Christ, in the far East, in the
Indian, and Chinese civilisations. Many of the Hindu rules displayed a
growing sense of morality and generosity and the Chinese empire
devoted much thought to harmonious relations between its constituent
parts. Regulations controlling violence and the behavior of varying
factions with regard to innocent civilians were introduced and ethical
values instilled in the education of the ruling class. In times of Chinese
dominance, a regional tributary-state system operated which fragmented
somewhat in times of weakness, but this remained culturally alive for
many centuries.
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INR 331 MODULE 1
However, the predominant approach of ancient civilisation was

geographically and culturally restricted. There was no conception of an
international community of states co-existing within a defined
framework. The scope for any ‘international law’ of states was
extremely limited and all that one can point to is the existence of certain
ideals, such as the sanctity of treaties, which have continued to this day
as important elements in society. But the notion of a universal
community with its ideal of world order was not in evidence.
The era of classical Greece, from about the sixth century BC and
onwards for a couple of hundred years, has been of overwhelming
significance for European thought. Its critical and rational turn of mind,
its constant questioning and analysis of man and nature and its love of
argument and debate were spread throughout Europe and the
Mediterranean world by the Roman empire which adopted Hellenic
culture wholesale, and penetrated Western consciousness with the
Renaissance. However, Greek awareness was limited to her competitive
city-states and colonies. Those of different origins were Barbarians not
deemed worthy of association.
The value of Greece in the study of international law lies partly in the
philosophical, scientific, and political analyses bequeathed to mankind
and partly in the fascinating state of inter-relationship built up within the
Hellenistic world. Numerous treaties linked the city-states together in a
network of commercial and political associations. Rights were often
granted to the citizens of the states in each other’s territories and rules
regarding the sanctity and protection of diplomatic envoys developed.
Certain practices were essential before the declaration of war, and the
horrors of war were somewhat ameliorated by the exercise, for example,
of religious customs regarding sanctuaries. But no overall moral
approach similar to those emerging from Jewish and Hindu thought,
particularly, evolved. No sense of a world community can be traced to
Greek colonies throughout the Mediterranean area.
This was left to the able administrators of the Roman Empire. The
Romans had a profound respect for organisation and the law. Law
knitted together their empire and constituted a vital source of reference
for every inhabitant of the far-flung domain. The early Roman law (the
jus civile) applied only to Roman citizens. It was formalistic and hard
and reflected the status of a small, unsophisticated society rooted in the
soil. It was totally unable to provide a relevant background for an
expanding, developing nation. The need was served by the creation of
the jus gentium. This provided simplified rules to govern the relations
between foreigners, and between foreigners and citizens. The instrument
through which this particular instrument evolved was the official known
as the Praetor Peregrinus, whose function it was to oversee all legal
relationship, including bureaucratic and commercial matters, within the
17
empire. The progressive rules of the jus gentium gradually overrode the
narrow jus civile until the latter system ceased to exist. Thus the jus
gentium became the common law of the Roman Empire and was deemed
to be of universal application. It is this all embracing factor which so
strongly distinguishes the Roman from the Greek experience, although,
of course, there was no question of the acceptance of other nations on a
basis of equality and the jus gentium remained a ‘national law’ for the
Roman Empire.
One of the most influential of Greek concepts taken up by the Romans

was the idea of Natural Law. This was formulated by the Stoic
philosophers of the third century BC and their theory was that it
constituted a body of rules of universal relevance. Such rules were
rational and logical, and because the ideas and the precepts of the ‘law
of nature’ were rooted in human intelligence, it followed that such rules
could not be restricted to any nation or any group but were of worldwide
relevance. This element of universality is basic to modern doctrines of
international law and the Stoic elevation of human powers of logical
deduction to the supreme pinnacle of ‘discovering’ the law foreshadows
the rational philosophies of the West. In addition to being a fundamental
concept in legal theory, Natural Law is vital to an understanding of
international law, as well as being an indispensible precursor to
contemporary concern with human rights.
Certain Roman philosophers incorporated those Greek ideas of Natural

Laws into their own legal theories, often as a kind of ultimate
justification of the jus gentium, which was deemed to enshrine rational
principles common to all civilised nations. However, the law of nature
was held to have an existence over and above that of the jus gentium.
This led to much confusion over the exact relationship between the two
ideas and different Roman lawyers came to different conclusions as to
their identity and characteristics. The important factors though that need
to be noted are the theories of the universality of law and the rational
origins of legal rules that were founded, theoretically at least, not on
superior force but on superior reason.
The classical rules of Roman law were collated in the Corpus Juris
Civilis, a compilation of legal material in AD 534. Such a collection was
to be invaluable when the darkness of the early middle ages, following
the Roman collapse, began gradually to evaporate. For there was a body
of developed laws readymade and awaiting transfer to an awakening
Europe. The middle ages characterised by the authority of the organised
church and the comprehensive structure of power that it commanded.
All Europe was of one religion, and the ecclesiastical law applied to all,
notwithstanding tribal or regional affiliations. For much of the period,
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there were struggles between the religious authorities and the rulers of
the Holy Roman Empire.
These conflicts were eventually resolved in favour of the Papacy, but the
victory over secularism proved of relatively short duration. Religion and
a common legacy derived from the Roman Empire were strongly
unifying influences, while political and regional rivalries were not. But
before a recognised system of international law could be created, social
changes were essential and of particular importance during this era were
the authority of the Holy Roman Empire and the supranational character
of canon laws. Nevertheless, commercial and maritime developed apace.
English law established the Law Merchant, a code of rules covering
foreign traders, and this was declared to be of universal application.
Throughout Europe, mercantile courts were set up to settle disputes

between tradesmen at the various fairs, and while it is not possible to
state that a continent Law Merchant came into being, a network of
common regulations and practices weaved its way across the
commercial fabric of Europe and constituted an embryonic international
trade law. Similarly, maritime customs began to be accepted throughout
the continent. Founded upon the Rhodesian Sea Law, a Byzantine work,
many of those rules were enshrined in the Rolls of Oleron in the 12th
century, and other maritime textbooks, a series of common applied
customs relating to the sea permeated the naval powers of the Atlantic
and Mediterranean coasts.
Such commercial and maritime codes, while at this stage merely

expressions of national legal systems, were amongst the forerunners of
international law because they were created and nurtured against a
backcloth of cross-national contacts and reflects the need for rules that
would cover international situation. Such rules, growing out of the early
middle ages, constituted the seeds of the international law, but before
they could flourish, European thought had first to be developed by that
intellectual explosion known as the Renaissance. These complex ideas
changed the face of European society and ushered in the modern era of
scientific, humanistic, and individualistic thought.
The rise of the nation of England, France and Spain in particular

characterised the process of the creation of territorially consolidated
independent units. In theory and doctrine. This led to a higher degree of
interaction between sovereign entities and thus the need to regulate such
activities in a generally acceptable fashion. The pursuit of political
power and supremacy became overt and recognised, as Machiavelli’s
The Prince (1513) demonstrated. The city-states of Italy struggled for
supremacy and the Papacy too became a secular power. From these
hectic struggles emerged many of the staples of modern international
19
life: diplomacy, statesmanship, the theory of the balance of power and

the idea of a community of state.
It is the evolution of the concept of an international community of

separate, sovereign, if competing, states, that marks the beginning of
what is understood by international law. The Renaissance bequeathed
the prerequisites of independent, critical thought and a humanistic,
secular approach to life as well as the political framework for the future.
But is the latter factor which is vital to the subsequent growth of
international law. The Reformation and the European religious wars that
followed emphasised this, as did the growing power of the nations. In
many ways these wars marked the decline of a continental system
founded on the supremacy of the state. Throughout these countries the
necessity was felt for a new conception of human as well as state
relationships. This search was precipitated, as has been intimated, by the
decline of the church and the rise of what might be termed ‘free-
thinking’.
The foundations of international law, as it is understood today, lie firmly

in the development of Western culture. What is your stance on this
assertion?
4.0 CONCLUSION
A thorough review of the origin and historical development of

international law shows an evolution of a social and historical variables,
which have continued to shape the trend in the progression of an orderly
international society. Prior to the emergence of an interstate system, the
manner in which diverse nations and peoples conducted their relations
shows a sense of observance of certain customs, this helped to sustain
exchange. Right from period 6 BC ancient Eurasia, an era characterised
as the period of nascent international law to the modern times,
international law has progressed in direct proportion to the dynamics of
the international system.
The legacies of great Greek and Roman Empire, with regards to the
development and organisation of relations among component units in
their political systems also found expression in the development of
international law. However, the rise of nation-states on the global scene
introduced certain structural changes in the form and nature of
international law. It marked the evolution of an international community
of separate, sovereign, if competing, states, with tremendous changes.
By and large, the origin of international law can be traced as far back as
known history.
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5.0 SUMMARY
This unit located the origin of international law and also, in

chronological sequence, discussed its historical development. It recorded
different epochs and the significant contributions of great kingdoms and
empires towards the harmonious relations of various groups and nations.
International law was considered a dynamic concept, which has
continued to metamorphose and to respond to the exigencies of the
international system. Of course, the unique legacies of former great
empires, particularly those of the Greek and Roman empires were
documented. This unit equally portrayed the significance of the
emergence of nation-states and the implications of such development on
the framing of international law.
1. Explain the contributions of great kingdoms and empires,

especially those of Greek and Roman empires towards the
development of international law.
2. What were the implications of the rise of nation-states to the
development of international law?
Neff, S. C. (2005). War and the Law of Nations: A General History.

Cambridge: Cambridge University Press.

Nijman, J. E. (2004). The Concept of International Legal Personality:

An Inquiry the History and Theory of International Law. The
Hague: TMC Asser Press.
21
UNIT 3 CLASSICAL/EARLY WRITERS OF

INTERNATIONAL LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Hugo Grotius
3.2 Thomas Hobbes
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
As identified earlier, international law is as old as written history. Most

of the written works in international law have tended to contextualise the
dominant theories of international law. From the period of the ‘silent
trading’, to contemporary times, the contention between the advocates of
law of nature (traditional natural law) and those in support of the law of
nations, have preoccupied many literatures in international law. Among
the early writers, whose contributions have remained outstanding
include Alberico Gentili, Hugo Grotius, Thomas Hobbes, Christian
Wolff’s, Emmerich de Vattel, etc. Subsequent write-ups in international
law have considerably grown on the strength of the works already done
by these early writers; hence the importance of this section of our
discussion. The opinions and documentations of Hugo Grotius and
Thomas Hobbes would be given significant attention because of the
depth, basis and relevance of their works in the composition of
international law.
2.0. OBJECTIVES
• identify reasons why the works of Hugo Grotius and Thomas

Hobbes are considered to have made substantial contributions to
the development of international law
• enumerate the major arguments of these scholars, including those
of other scholars who played a part, either in support or against
the claims of the duet
• state criticisms for each of the arguments of the theorists.
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3.0. MAIN CONTENT
3.1. Hugo Grotius
The writings of the Dutch scholar Hugo Grotius, whose major work On
the Law of War and Peace was published in Paris in 1625—a work so
dense and rich that one could easily spend a lifetime studying it (as a
number of scholars have) is of great importance. As a natural-law writer,
he was a conservative, writing squarely in the rationalist tradition. In
international law specifically, he had important forerunners, most
notably the Italian writer, Alberico Gentili, who produced the first truly
systematic study of the law of war at the end of the sixteenth century.
Where Grotius did break important new ground—and where he fully
earned the renown that still attaches to his name was in his
transformation of the old jus gentium into something importantly
different, called the law of nations.
The distinctive feature of this law of nations was that it was regarded as
something distinct from the law of nature, rather than as a sub-category
or means of application of natural law. Furthermore, and most
significantly, this law of nations was not regarded (like the old jus
gentium) as a body of law governing human social affairs in general.
Instead, it was a set rules applying specifically to one particular and
distinctive category of human beings: rulers of States. For the first time
in history, there was a clear conception of a systematic body of law
applicable specifically to the relationship between nations.
It should be appreciated that Grotius’s law of nations or ‘voluntary law’

as it was sometimes known, was not designed to supplant or undermine
traditional natural law. Far from it, the function of this law of nations
was basically an international one - filling gaps where the natural-law
principles were too general, or devising workable rules as pragmatic
substitutes where the application of the strict natural law was, for some
reason, unfeasible. The law of nature and the law of nations, in short,
were seen as partners rather than as rivals. For this reason, the earliest
academic chairs in the field were commonly designated as being
devoted to ‘the law of nature and nations’, in (presumably) happy
partnership. There were some, however, who contended that the
partnership between the law of nature and the law of nations was
anything but a happy one. Foremost amongst these dissidents was the
English writer, Thomas Hobbes. We shall explore the work of Thomas
Hobbes in the next section.
23
What is significant about Hugo Grotius’ works and contribution in the

3. 2 Thomas Hobbes
Thomas Hobbes’ master work Leviathan was written in 1651, shortly

after Grotius’s death. In sharp contrast to Grotius, Hobbes denied that
the pre-political condition of human society had been orderly and law-
governed. He maintained, instead, that it was a chaotic, even violent,
world, with self-preservation as the only true natural right. Security
could only be attained by the radical step of having all of the persons in
a state of nature surrender their natural rights to a sovereign power of
their own creation—with the result that, henceforth, the only law which
they would live under would be the law promulgated by that sovereign.
Natural law was not rejected in its entirety, but it was radically stripped-
down, to the point of being reduced, in essence to two fundamental
tenets: a right of self-preservation, and a duty to perform contracts or
promises. It was this stripped-down version of natural law which, in the
opinion of Hobbes, constituted the sole body of law between
independent nation-states.
On this thesis, the only possible way in which states could construct a
stable international system was through the painstaking process of
entering into agreements whenever this proved feasible. The natural-law
duty to perform promises was the fundamental basis of this system, with
the detailed substantive rules being provided by the various agreements
that were actually concluded. These agreements could take either of two
forms: written or unwritten. The written form, of course, comprised
treaties, of the sort of that states had been concluding for many
centuries. The unwritten form was customary law, which in this period
was seen predominantly as simply a tacit or unwritten treaty.
It is hardly surprising that, amongst traditional natural lawyers (i.e.,

followers of Grotius), Hobbes’s conclusions were unwelcome in the
extreme, since they entailed the ruthless discarding of so much of the
content of traditional natural law. But they were also not easily refuted.
Some writers, such as Pufendorf, attempted to take at least some of
Hobbes’s ideas into account, while still adhering to the older idea of a
detailed, substantive natural law. Others basically ignored the Hobbesian
challenge as best they could and continued to expound natural law in a
systematic manner. In fact, the seventeenth and eighteenth centuries
were the great age of systematic jurisprudence, in which natural law was
re-housed (it might be said) in grand logical edifices of a hypothetico-
24
INR 331 MODULE 1
deductive nature, modeled on that most magnificent of all intellectual

constructions and mathematics.
The culmination of this systematic natural-law movement came in the

mid-eighteenth century, at the hands of the German philosopher
Christian Wolff’s, who, however had been trained as a mathematician.
Wolff’s massive eight-volume encyclopedia of natural law contained
detailed discussions of practically everything under the sun and even
beyond (a discourse on the characteristics of the inhabitants of other
planets)—while paying virtually no heed to state practice. It holds an
honourable place on the list of the world’s great unread masterpieces.
The most famous and influential writer in the Grotian tradition was the
Swiss diplomat Emmerich de Vattel, whose famous exposition of The
Law of Nations was published in London in 1758. In a number of ways,
Vattel’s treatise was a popularisation of Wolff’s ideas, but it was written
in a very different spirit. Where Wolff had been disdainful of the
voluntary law, Vattel fully embraced it, cheerfully and candidly
expounding it alongside the natural law whenever appropriate. He has
been accused of inconsistency—of constantly being on both sides of
issues—but that charge is unfair. The fact is that he had two bodies of
law to expound, which sometimes provided differing solutions to
practical problems. He was generally very forthright about which law he
was treating at any given time. It is we who end to misunderstand the
nature of his task because the dualistic mentality of that era is so foreign
to us.
The best example of the dualistic ‘method’ concerned war. The natural
law on just wars allowed a state to resort to force in self-help to
vindicate a legal right that had actually been violated (or was threatened
with violation)—so that, in a given conflict, one side would be , fighting
justly, and the other one not. The voluntary law, however, was not
concerned over which party had the stronger legal claim to use force
(i.e, it did not deal with the jus ad bellum, in legal terminology). Instead,
it simply treated each side as if it had lawfully resorted to war. It then
contented itself with regulating the conduct of wars, fixing rules for both
parties to apply, on an even-handed basis, in their contention against one
another (the jus in bello, in the common legal parlance). In effect, then,
the natural law saw war in terms of law enforcement and as a sanction
for wrongdoing. The voluntary law, in contrast, saw war more in terms
of a duel.
What is significant about Thomas Hobbes’ works and contribution in the

25
4.0 CONCLUSION
In spite of the dichotomy between the claims of Hugo Grotius, Thomas

Hobbes and other early writers of international law, the basis and
relevance of their perspectives have remained and will remain vital for
further development of this subject matter. The controversy between the
positions of the Universalists and the Pluralists still form the cornerstone
of most debates in international law. Nevertheless, the important thing to
note is the manner in which these divergences and convergences have,
since history served as the foundation of harmonious relations between
and among nations of the world.
5.0 SUMMARY
This unit has examined the contributions of some early writers of

international law. It specifically looked into the works of Hugo Grotius
and Thomas Hobbes who among others have left indelible marks on the
growth and development of international law. Hugo Grotius’ work came
to the lime light for his revolutions in the field of jus gentium, from
which emerged the concept of law of nations. His works marked a clear
demarcation between the hitherto law of nature and the rise of law of
nations. On the other hand, Thomas Hobbes had basically focused
attention on ‘correcting’ what he viewed as a major misconception in
relation to the impressions, ab initio harbored, concerning the social
harmony which was thought and also taught to have existed between the
law of nature and the law of nations. He insisted that socio-political
systems had remained disorderly with the inclination towards self-
preservation as the only true natural right. Reign of terror and survival of
the fittest were the orders of the day. Security, peace and stability were
later attained when the people, in a state of nature, surrendered their
natural rights to a sovereign power of their own creation. They pledged
to obey this sovereign, which they had agreed to handover their personal
rights to. Thomas Hobbes, however, remarked that natural law was not
totally abandoned, but largely stripped down. It was from this standpoint
therefore, that Thomas Hobbes strongly held as forming the basis of the
structures of international law – a body of law between independent
nation-states. Most other writers have majorly followed the lines of
argument of these two great international law experts.
1. Are there areas of similarities between the arguments of the

Universalists and the Pluralists?
2. What is the core area of demarcation between the contentions of
Hugo Grotius and Thomas Hobbes in relation to the universality
and plurality of international law?
26
INR 331 MODULE 1

Nijman, J. E. (2004). The Concept of International Legal Personality:

An Inquiry into the History and Theory of International Law. The
Hague: TMC Asser Press.
27
UNIT 4 THE RELATIONSHIP BETWEEN

INTERNATIONAL LAW AND MUNICIPAL
LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Differences between International Law and Municipal Law
3.1.1 The Law-Making Process
3.1.2 Enforcement Process
3.2 Why do States Obey International Law?
3.3 States and International Law in the Era of Globalisation
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
International law is concerned with the rights and duties of states in their
relations with each other and with international organisations, whereas
domestic (municipal or national) law, that is, the law within a state, is
concerned with the rights and duties of legal persons within the State.
International law is different from other laws such as domestic law and
conflict of laws (or private international law). The former regulates
relationships between natural and legal persons within a single country
and the law that is applied is determined by the legislation of that
country. The latter regulates relationships between natural and legal
persons that happen to be in more than one country, such as
relationships between companies in two different countries or between
parents from two different countries over the custody of children. In
such cases, courts have to decide the law of which country should be
applied. It is for this reason that international law is sometimes also
called public international law. This is to emphasise that its focus is
interstate relations.
Private entities, such as companies or individuals, however, can be

subjects of international law. For example, international aviation is
governed by international law because there are international treaties
between states about it. Similarly, individuals can be prosecuted under
international criminal law or claim rights against states under
international human rights law because there are interstate treaties that
make these possible. International law, therefore, regulates more than
28
INR 331 MODULE 1
just interstate relations. It also regulates other forms of relationships that

states agree to regulate internationally. International law regulates the
conduct of actors that make up contemporary international society.
2.0 OBJECTIVES
• state in clear terms, the major differences between international

law and domestic law
• explain why most states chose to obey international law in spite
of the absence of a coercive enforcement mechanism
• analyse the points of convergence between international law and
municipal law
• discuss the impact of the wave of globalisation on both the
making of international law and also on the making of municipal
law.
3.0 MAIN CONTENT
3.1 Differences between International Law and

Municipal Law
Fundamentally, international law differs from domestic law in two

central respects:
3.1.1 The Law-Making Process
There is no supreme law-making body in international law. Treaties are

negotiated between states on an ad hoc basis and only bind states which
are parties to a treaty. The General Assembly of the United Nations is
not a law-making body, and so its resolutions are not legally binding.
This is not the case in municipal law. In most countries, municipal law
makes provision for supreme law making body. For example, in Nigeria,
the National Assembly is known as the supreme law-making body.
There are methodologies for the making of laws, which must, of course,
be binding on all legal and natural persons. However, we must note that
the UN Security Council resolutions can take effect with respect to
threats to peace, breaches of the peace, and acts of aggression. The
general trend in many nations is that the parliaments are the supreme
law-making bodies while courts are empowered to interpret the law and
apply it to individual cases.
29
3.1.2 Enforcement Process
International law has no police force to oversee obedience to the

international legal standards in which states agree as international
standards of behavior. Similarly, there is no compulsory enforcement
mechanism for the settlement of disputes. However, there are an
increasing number of specialised courts, tribunals and treaty monitoring
bodies as well as an International Court of Justice. National laws and
courts are often an important means through which international law is
implemented in practice. In some instances, the Security Council can
authorise the use of coercive economic sanctions or even armed force.
For example, in 1990 – 91 when Iraq invaded and occupied Kuwait the
international community used armed force to enforce international law
(resolutions of the Security Council). More so, the controversy over the
use of armed force against Iraq highlights how difficult it can be to
obtain the necessary authorisation from the Security Council under the
United Nations Charter. In international law, that is the only legitimate
way that collective armed force can be used. In general, international
law is enforced through methods such as national implementation,
diplomatic negotiation or public pressure, mediation, conciliation,
arbitration (a process of resolving disputes other than by agreement),
judicial settlement (including specialised tribunals).
On the other hand, municipal law generally makes provision for a

national police force to oversee obedience to national legal standards to
which states agree to implement. There is a compulsory enforcement
mechanism for the maintenance of internal peace and order and also for
the settlement of disputes. State sovereignty becomes more evident as a
result of such law-making and law enforcement provisions, which
characterise state power.
Explain the differences between international law and municipal law.
3.1.3 Why do States Obey International Law?
Even though international law does not have the coercive enforcement
processes available to domestic law, it is in the interests of most states to
ensure stability and predictability in their relations with other states. By
complying with their obligations, they help to ensure that other states
comply with theirs. Aside from this mutual benefit, it is in every state’s
interests to abide by the rule of law applying to areas such as use of the
sea and ocean resources and environmental protection. In a field like
human rights, states may uphold international law principles, even
30
INR 331 MODULE 1
where there is no direct national interest, because they recognise the

need to protect common and universal human values.
3.2 How do International and Domestic Law Interact?
It is important to understand how international law principles become

part of domestic law, and to explain what happens if the rules conflict.
The theories of monism and dualism are the two main theories that
explain the relationship between international and domestic law.
Monism
In this theory, all law is part of a universal legal order and regulates the
conduct of the individual state. The difference in the international sphere
is that the consequences are generally attributed to the state. Since all
law is part of the same legal order, international law is automatically
incorporated into the domestic legal order. Some monist theorists
consider that international law prevails over domestic law if they are in
conflict; others, that conflicting domestic law have some operation
within the domestic legal system.
Dualism
This theory holds that international law and domestic law are separate
bodies of law, operating independently of each other. Under dualism,
rules and principles of international law cannot operate directly in
domestic law, and must be transformed or incorporated into domestic
law before they can affect individual rights and obligations. The main
differences between international and domestic law are thought to be the
sources of law, its subjects, and subject matter. International law derives
from the collective will of states, its subjects are the states themselves,
and its subject matter is the relations between states. Domestic law
derives from the will of the sovereign or the State, its subjects are the
individuals within the state, and its subject matter is the relations of
individuals with each other and with government.
Harmonisation
Neither monism nor dualism can adequately explain the relationship

between international and domestic law, and alternative theories have
developed which regard international law as having a harmonisation
role. If there is a conflict, domestic law is applied within the domestic
legal system, leaving the state responsible at the international level for
any breach of its international law obligations.
31
What is the relationship between international law and municipal law?
3.3 States and International Law in the Era of Globalisation
The State is the principal subject of international law. But the

relationship between State and international law continually evolves.
Each era sees the material and ideological reconstitution of the
relationship between state sovereignty and international law. The
changes are primarily driven by dominant social forces and powers of
the time.
The era of globalisation is no exception to this rule. Globalisation is not

an autonomous phenomenon. It is greatly facilitated by the actions of
states, in particular dominant states. The adoption of appropriate legal
regimes plays a critical role in this process. The on-going restructuring
of the international legal system is not entirely dissimilar to the one that
saw capitalism establish and consolidate itself in the national sphere. In
that case the State shaped itself around pre-existing political structures,
inserting itself among them, forcing upon them whenever it could, its
authority, its currency, its taxation, justice and language of command.
This was a process of both infiltration and superimposition, of conquest
and accommodation. In this case what is at stake is the creation of a
unified global economic space with appropriate international law and
international institutions to go along.
These developments seek to accommodate the interest of transnational

ruling elites which have come to have unprecedented influence in
shaping global policies and law. They also have far reaching
consequences for the peoples of the third world. First, international law
is now in the process of creating and defining the democratic state. It has
led to the internal structure of states coming under the scrutiny of
international law and in so many ways relocated sovereign economic
powers in international institutions; thereby limiting the possibilities of
third world states to pursue independent self-reliant development. An
emerging international law norm requires states to hold periodic and
genuine elections. However, it pays scant attention to the fact that
formal democracy excludes large, in particular marginal groups, from
decision making power. The task of low intensity democracies, from all
evidence, is to create the conditions in which transnational capital can
flourish. But despite the relocation of sovereign powers in international
institutions, international law does not take global democracy seriously.
Global or transnational systems of representation and accountability are
yet to be established.
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INR 331 MODULE 1
Secondly, at the level of circulation of commodities, international law

defines the conditions in which international exchange is to take place. It
is a truism that markets cannot exist without norms or rules of some sort,
and the ordering of market transactions takes place through layers of
rules, formal and informal. In this regard, international law inter alia
lays down rules with regard to the sales of goods, market access,
government procurement, subsidies and dumping. Many of these rules
are designed to protect the corporate actor in the first world from
efficient production abroad even as third world markets are being pried
open for its benefit.
Thirdly, international law increasingly requires the ‘deterritorialisation

of currencies’ subjecting the idea of a “national currency” to growing
pressure. The advantages of monetary sovereignty are known. It is,
among other things, a possible instrument to manage macroeconomic
performance of the economy; and a practical means to insulate the
nation from foreign influence or constraint. The first world is today
using international financial institutions, and the ongoing negotiations
relating to the General Agreement on Trade in Services (GATS), to
compel third world states to accept monetary arrangements, such as
capital account convertibility, which are not necessarily in their
interests. Thus, it will not be long before capital account convertibility
becomes the norm, despite its negative consequences for third world
economies. The loss of monetary sovereignty, as the East Asian crisis
showed, has serious fallouts for the ordinary people of the third world.
Their standards of living can substantially erode overnight.
Furthermore, human rights talk has come to have a pervasive presence

in international relations and law. This development has been variously
expressed: ‘a new ideal has triumphed on the world stage: human
rights’; ‘human rights discourse has become globalised’; ‘human rights
could be seen as one of the most globalised political values of our time’.
The fact that the omnipresence of the discourse of human rights in
international law has coincided with increasing pressure on third world
states to implement neo-liberal policies is no accident; the right to
private property, and all that goes along with it, is central to the
discourse of human rights. For the implementation of neo-liberal
policies is at least one significant cause of growing internal conflicts in
the third world.
Besides, labour market deregulation prescribed by international financial

institutions and international monetary law has caused the deterioration
of the living conditions of third world labour. Deregulation policies are
an integral part of structural adjustment programs. They are based on the
belief that excessive government intervention in labour markets –
through such measures as public sector wage and employment policies,
33
minimum wage fixing, employment security rules – is a serious

impediment to adjustment and should therefore be removed or relaxed.
The growing competition between third world countries to bring in
foreign investment has further led to easing of labour standards and a
“race to the bottom.” In the year 2000, nearly 93 developing countries
had export processing zones (EPZs), compared with 24 in 1976. Women
provide up to 80 per cent of labor requirements in EPZs and are the
subject of economic and sexual exploitation. The United Nations
Secretary-General himself has pointed to ‘adverse labour conditions as a
major factor contributing to the increased feminisation of poverty.’
In addition, the concept of jurisdiction is being rendered more complex

than ever in the past. Among other things, digital capitalism threatens to
make ‘a hash of geopolitical boundaries’ and reduce the ability of third
world states to regulate transnational commerce. Where international
law does not penetrate national spaces, powerful states put into effect
laws that have an extraterritorial effect; third world states have little
control over processes initiated without its consent in distant spaces.
There is, therefore, a legitimate fear among third world states of ‘a
tyranny of sameness’ or the ‘extension transnationally of the logic of
Western governmentality’. The fear is accentuated by the fact that
international laws are being increasingly understood in ways that
redefine the concept of jurisdiction.
Also, there has been a proliferation of international tribunals that

subordinate the role of national legal systems in resolving disputes.
These range from international criminal courts to international
commercial arbitration to the WTO dispute settlement system (DSS). It
is not the greater internationalisation of interpretation and enforcement
of rules that is problematic but its differential meaning for, and impact
on, third world States and peoples.
Finally, we must mention that the State is no longer the exclusive

participant in the international legal process even though it remains the
principal actor in law making. The globalisation process is breaking the
historical unity of law and State, creating ‘a multitude of decentered
law-making processes in various sectors of civil society, independently
of nation-states’. While this is not entirely an unwelcome development,
the “paradigmatic case” of global law without the state is lex
mercatoria. The fact is that global laws without the State are, more
generally, sites of conflict and contestation, involving the renegotiation
and redefinition of the boundaries between, and indeed the nature and
forms, of the state, the market, and the firm.
34
INR 331 MODULE 1
How does the spate of current globalisation facilitate the hegemony of

the ‘global ruling elites’ to the detriment of the third world?
4.0 CONCLUSION
In spite of the discrepancies between international and municipal law,

both laws have some commonalities. In many respects, international law
has a tremendous influence over the municipal law; notwithstanding the
fact that municipal law possesses some basic structures, which
international law does not. Evidently, states find reasons to obey the
provisions of international law since this position has greater benefits.
States prefer to interact with one another just as international law has
provided. However, there is a general understanding that the making of
and provisions of international law are significantly to the interest and
will of the dominant forces in the international system.
5.0 SUMMARY
We have extensively considered the relationship between international

law and municipal law and noted that whereas municipal law is designed
to regulate all forms of relationship between natural and legal persons
within a particular country, international law is designed to regulate
relationships between and among natural and legal persons that are in
more than one country. This unit equally underscored the fact that
although the municipal law own and have control over state apparatuses
such as law-making and law enforcement mechanisms, the international
law exerts a high level of influence and control over municipal law; yet
without such a direct ownership and control of apparatuses. We equally
underlined the fact that the spate of globalisation has, a matter of
inevitability, further reduced the sovereignty of states in the making and
implementation of municipal law; while favoring the interests of the
hegemonic forces in international relations.
1. The wave of globalisation does not only reduce the chances of

states to exercise their sovereignty but also widens the space for
the dominant social, cultural, economic, and political forces to
wield excessive influence and control over weaker states. Explain
2. Why do most states prefer to obey than to disobey international
law?
35
Brownlie, I. (1999). Principles of Public International Law. (5th ed.).

Oxford: Oxford University Press.

Charles Worth et al. (2006). No Country is an Island: Australia and

International Law. Sydney: UNSW Press.
36
INR 331 MODULE 2
MODULE 2 INTERNATIONAL LAW: SOURCES,

THEORIES, APPROACHES AND
PRINCIPLES
Unit 1 Sources and Subjects of International Law

Unit 2 Theories of International Law: Positivist, Naturalist etc.
Determination, Reciprocity, Right to Protect etc.
Unit 4 Human Rights in International Law
UNIT 1 SOURCES AND SUBJECTS OF

INTERNATIONAL LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3. 1 Sources of International Law
3.1.1 Treaties
3.1.2 Custom
3.1.3 General Principles of Law
3.1.4 Subsidiary Means for the Determination of Rules
of Law
3.2 Subjects of International Law
3.2.1 States
3.2.2 International Organisations
3.2.3 Nationality of Individuals, Companies, Etc.
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The sources of international law are listed in the Article 38(1) of the
Statute of the International Court of Justice. They include:
a) Identify various sources of international law;

b) State the methodologies towards the composition of each of the
sources and their efficacy in the regulation of international
relations; and
c) Recognise and identify the binding forces of these sources of
international law on the subjects of international law.
37
2.0 OBJECTIVES
• identify the various sources of international law

• state the methodologies towards the composition of each of the
sources and their efficacy in the regulation of international
relations
• recognise the binding forces of these sources of international law
on the subjects of international law.
3.0 MAIN CONTENT
3. 1 Sources of International Law
3.1.1 Treaties
International conventions are generally referred to as treaties. Treaties

are written agreements between states that are governed by international
law. Treaties are referred to by different names, including agreements,
conventions, covenants, protocols and exchanges of notes. If states want
to enter into a written agreement that is not intended to be a treaty, they
often refer to it as a Memorandum of Understanding and provide that it
is not governed by international law. Treaties can be bilateral,
multilateral, regional and global.
The law of treaties is now set out in the 1969 Vienna Convention on the
Law of Treaties which contains the basic principles of treaty law, the
procedures for how treaties become binding and enter into force, the
consequences of a breach of treaty, and principles for interpreting
treaties. The basic principle underlying the law of treaties is pacta sunt
servanda which means every treaty in force is binding upon the parties
to it and must be performed by them in good faith. The other important
principle is that treaties are binding only on states parties. They are not
binding on third states without their consent. However, we should add
that it may be possible for some or even most of the provisions of a
multilateral, regional or global treaty to become binding on all states as
rules of customary international law.
There are now global conventions covering most major topics of

international law. They are usually adopted at an international
conference and opened for signature. Treaties are sometimes referred to
by the place and year of adoption, example, the 1969 Vienna
Convention. If a State becomes a signatory to such a treaty, it is not
38
INR 331 MODULE 2
bound by the treaty, but it undertakes an obligation to refrain from acts

which would defeat the object and purpose of the treaty.
A State expresses its consent to be bound by the provisions of a treaty

when it deposits an instrument of accession or ratification to the official
depository of the treaty. If a State is a signatory to an international
convention it sends an instrument of ratification. If a State is not a
signatory to an international convention but decides to become a party, it
sends an instrument of accession. The legal effect of the two documents
is the same. A treaty usually enters into force after a certain number of
States have expressed their consent to be bound through accession or
ratification. Once a State has expressed its consent to be bound and the
treaty is in force, it is referred to as a party to the treaty.
The general rule is that a treaty shall be interpreted in good faith in

accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in light of its object and purpose. The
preparatory work of the treaty and the circumstances of its conclusion,
often called the travaux preparatoires, are a supplementary means of
interpretation in the event of ambiguity.
3.1.2 Custom
International custom – or customary law – is evidence of a general

practice accepted as law through a constant and virtually uniform usage
among States over a period of time. Rules of customary international
law bind all states. The state alleging the existence of a rule of
customary law has the burden of proving its existence by showing a
consistent and virtually uniform practice among states, including those
states specially affected by the rule or having the greatest interest in the
matter. For example, to examine the practice of states on military uses of
outer space, one would look in particular at the practice of states that
have activities in space. Most of the International Court of Justice cases
also require that the states who engage in the alleged customary practice
do so out of a sense of legal obligation or opinio juris rather than out of
comity or for political reasons.
In theory, opinio juris is a serious obstacle to establishing a rule as

custom because it is extremely difficult to find evidence of the reason
why a state followed a particular practice. In practice, however, if a
particular practice or usage is widespread, and there is no contrary state
practice proven by the other side, the Court often finds the existence of a
rule of customary law. It sometimes seems to assume that opinio juris
was satisfied, and it sometimes fails to mention it. Therefore, it would
appear that finding consistent state practice, especially among the states
39
with the most interest in the issue, with minimal or no state practice to
the contrary, is most important.
Undisputed examples of rules of customary law are:
(a) giving foreign diplomats criminal immunity

(b) treating foreign diplomatic premises as inviolable
(c) recognising the right of innocent passage of foreign ships in the
territorial sea
(d) recognising the exclusive jurisdiction of the flag state on the high
seas
(e) ordering military authorities to respect the territorial boundaries
of neighboring states; and
(f) protecting non-combatants such as civilians and sick or wounded
soldiers during international armed conflict.
3.1.3 General Principles of Law
General principles of law recognised by civilised nations are often cited

as a third source of law.
These are general principles that apply in all major legal systems. An
example is the principle that persons who intentionally harm others
should have to pay compensation or make reparation.
General principles of law are usually used when no treaty provision or
clear rule of customary law exists.
3.1.4 Subsidiary Means for the Determination of Rules of Law
Subsidiary means are not sources of law; instead they are subsidiary
means or evidence that can be used to prove the existence of a rule of
custom or a general principle of law. Article 38 lists only two subsidiary
means - the teaching (writings) of the most highly qualified publicists
(international law scholars) and judicial decisions of both international
and national tribunals if they are ruling on issues of international law.
Resolutions of the UN General Assembly or resolutions adopted at
major international conferences are only recommendations and are not
legally binding. However, in some cases, although not specifically listed
in article 38, they may be subsidiary means for determining custom. If
the resolution purports to declare a set of legal principles governing a
particular area, if it is worded in norm creating language, and if is
adopted without any negative votes, it can be evidence of rules of
custom, especially if states have in practice acted in compliance with its
terms. Examples of UN General Assembly Resolutions which have been
treated as strong evidence of rules of customary international law
include the following:
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• GAR 217A Universal Declaration of Human Rights (1948)

• GAR 2131 Declaration on the Inadmissibility of Intervention in
the Domestic Affairs of States and the Protection of their
Sovereignty (1965) [Declaration on Non-Intervention]
• GAR 2625 Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation among States in
Accordance with the Charter of the United Nations (1970)
[Declaration on Friendly Relations]
• GAR 3314 Resolution on the Definition of Aggression
Some of these resolutions have also been treated as subsequent

agreement or practice of states on how the principles and provisions of
the UN Charter should be interpreted. In addition, Article 38 fails to take
into account the norm-creating effect of modern global conventions.
Once the international community has spent several years drafting a
major international convention, states often begin in practice to refer to
that convention when a problem arises which is governed by the
convention - in effect treating the rules in the Convention as customary.
Furthermore, if the Convention becomes universally accepted the
provisions in the Convention may become very strong evidence of the
rules of custom, especially if states which are not parties have also acted
in conformity with the Convention. Examples of such conventions
would be the 1959 Vienna Convention on Diplomatic Relations and the
1969 Vienna Convention on the Law of Treaties.
Mention and explain the various sources of international law you know.
3.2 Subjects of International Law
A subject of international law (also called an international legal person)

is a body or entity recognised or accepted as being capable of exercising
international rights and duties. It refers to the entities or legal persons
that can have rights and obligations under international law. This
expression does not suggest that all entities that operate within the
international arena possess rights nor have obligations that are
recognisable in international law. Some of the key features of ‘subjects’
of international law are:
(i) the ability to access international tribunals to claim or act on

rights conferred by international law
(ii) the ability to implement some or all of the obligations imposed by
international law; and
41
(iii) the power to make agreements, such as treaties, binding in

international law
(iv) the right to enjoy some or all of the immunities from the
jurisdiction of the domestic courts of other states.
3.2.1 States
State refers to a politically organised body of people occupying a

definite territory, living under a government, virtually free from external
control. It is an abstraction denoting the existence of a political
organisation for the regulation of the affairs of its members. The key
features of a state include:
Definite territory: A state must have a definite territory which

demarcates it from other states. Such territory may be large or small.
Apart, from land, other elements of the state include the airspace, forest,
waters, mountains, etc.
Organised government: For the continuous existence of the state, there

is need to note the vitality of government; it is through the organisation
of government as an institution of the state, that the will of the state is
realised.
Permanence: It often said that government comes and goes whereas the
state remains. This shows the strength of the durability of the state. The
state has the capacity for longevity.
Population: The state comprises a given number group of men and

women of common purpose and interest. However, such number is not
fixed as population can still increase or decrease.
Sovereignty and Independence: A state is not subject to any external

control; no matter the size of the state. A state must have the capacity to
make laws and enforce the laws with every coercive power available to
it; including the capacity to enter into relations with other states.
Recognition: Both within and outside, state should be identifiable. The

worth of a state is sometimes determined by the extent to which it
possesses political, economic, military, and technological powers. Some
writers emphasise that a state must be fully independent and be
recognised as a State by other states.
The international legal system is a horizontal system dominated by

states which are, in principle, considered sovereign and equal.
International law is predominately made and implemented by states.
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Only states can have sovereignty over territory. International law must
be respected by each nation to ensure world peace. The implications of
the rule of law between states are far reaching, and can be fully grasped
only by contrast with the conception which now rules, viz. the rule of
might. Under the present system, or lack of system, when a nation’s
interest are supposed to conflict with those of another, the nation
concerned resorts to war to secure its interest. This suggests that states,
which are judges in their own disputes, can use war as an instrument of
national policy and must try individually or through alliances to be
stronger than every other state or group of states. But the World Wars of
1914-1918 and 1939-1945 have been slowly teaching mankind the
painful lesson that a system of national security is really impossible for
all at the same time, or even for a few for all time. This indeed is
inherent in the logic of facts: every state or group of states cannot be
stronger than every other state or group.
What then is the alternative? The answer is the rule of law among
nations – international law. This involves three things:
(i) States must agree to the principle that, in matters which affect
other states besides their own, they will accept the provisions of
international law, as binding on themselves.
(ii) Sates must renounce the right to settle disputes by making war.
(iii) States must bind themselves to regard any act of war by any state
in breach of this primary obligation as an act of war against
themselves and to come to the assistance of the victim of the
aggression.
States are expected to agree to the principle that, in matters which touch
more than one state, they will be bound by the stipulations of
international law. By extension there is the need for the rule of law
between nations as there is the rule of law between individuals within
each state.
States are expected to obey and comply with the principles of

international law. Only states can become members of the United
Nations and other international organisations. Only states have access to
the International Court of Justice.
3.2.2 International Organisations
Early attempts at international organisation were half-hearted and

inadequate. Besides there was no permanent organisation of a political
character to bring the nations together to enable them to understand one
another’s point of view, settle disputes and avert wars. Largely in view
43
of this, the League of Nations was established in 1919 to remove these

defects, promote international cooperation and achieve international
peace and security.
International Organisations are established by states through

international agreements. However, it must be stressed that the powers
of international organisations are limited to those conferred on them in
their constituent document. International organisations have a limited
degree of international personality, especially vis-à-vis member states.
They can enter into international agreements and their representatives
have certain privileges and immunities. The constituent document may
also provide that member states area legally bound to comply with
decisions on particular matters. It is accepted that international
organisations are subjects of international law where they:
Are permanent members of association of states, with lawful objects;

Have distinct legal powers and purposes from the member states; and
Can exercise powers internationally and not only within a domestic
system.
3.2.3 Nationality of Individuals, Companies, Etc.
The freedom of the individual is considerable affected not only by the

form of government but also by the relations of his state with other
states. Individual are generally not regarded as legal persons under
international law. Their link to State is through the concept of
nationality, which may or may not require citizenship. Nationality is the
status of being treated as a national of a state for particular purposes.
Each state has wide discretion to determine who is a national. The most
common methods of acquiring nationality at birth are through one or
both parents and/or by the place of birth. Nationality can also be
acquired by adoption and naturalisation.
Companies, ships, aircraft and space craft are usually considered as

having the nationality of the state in whose territory they are registered.
This is important because in many circumstances states may have
international obligations to regulate the conduct of their nationals,
especially if they are carrying out act activities outside their territory.
Under the principle of nationality of claims, if a national of State A is
injured by State B through internationally unlawful conduct, State A
may make a claim against State B on behalf of its injured national. This
is known as the doctrine of diplomatic protection.
Therefore, only international legal persons, as recognised subjects of

international law, possess and can exercise international rights, as well
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as perform international obligations. Among the subjects of international

law discussed, states are conspicuously the dominant. This is chiefly
anchored on the unique features of the state, which distinguishes it from
other subjects of international law. Sequel to this, international law is
predominately made and implemented by states. Only states can have
sovereignty over territory. This should not be misinterpreted to mean
that the other subjects of international law are insignificant. Far from
this, other international legal entities such as international organisations
equally wield great powers.
Why states are accorded special recognition among other subjects of

international law?
4.0 CONCLUSION
We had earlier recorded that unlike certain provisions of the municipal

law in which state instruments such as the apparatuses for law making
and law enforcement are available for the effective control of the state,
international law does not possess these attributes. How be it,
international law is not left without standards of operation. The sources
available for the making of international law provide a high sense of
direction for the harmonisation of rules and regulations (for both states
and non-state actors) in order to achieve relative peace and order in the
international scene. Thus, the absence of instruments of coercion upon
the various subjects of international law is not to be interpreted as open
space for chaos and anarchy. 3
5.0 SUMMARY
We have been able to mention and explain the various sources available
for the construction of international law. These sources of international
law are recognised in various instruments and documentations of the
United Nations. They include international convention (treaties),
international customs (customary laws), general principles of law,
subsidiaries means for the determination of rules of law. These sources
of international law help to guide and mold the growth and development
of international law. In spite of lack of formal recognition of ‘general
principles of law’ as a source of international law, it has played an
important role especially to the extent it provides a supplementary
support for the use of treaties as a source of international law.
45
1. Compare and contrast the various sources of international law

2. Resolutions of the UN General Assembly (UNGA) or resolutions
adopted at major international conferences are only
recommendations and are not legally binding. Does this statement
utterly deny any relevance of the resolutions of UNGA in the
framing of international law? Clarify your position.

Oxford: University Press. Oxford.

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UNIT 2 THEORIES OF INTERNATIONAL LAW:

POSITIVIST, HISTORICAL, NATURALIST
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Positivism
3.1.1 Two Types of Legal Positivism in International
Law
3.2 The Historical School
3.3 Naturalism
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
One explanation for the remarkable lack of attention by international

lawyers to the nineteenth century lies perhaps in the pervasive
dominance of doctrinaire positivism over international legal writing
generally. There was much, admittedly, that was unattractive about
nineteenth-century positivism, particularly to modern eyes—its
doctrinaire quality, its narrow horizons, its lack of high ideals, the aura
of superficiality raised to the pitch of dogma, its narrowly technocratic
character, its ready subservience to power. But it would be wrong to
judge it on these points alone because its solid achievements were many.
If it lacked the breadth and idealism of natural-law thought, it also
discarded the vagueness and unreality that often characterised natural-
law thought at its worst. In many ways, positivism was a breath (or even
a blast) of fresh air, countering the speculative excesses of natural-law
thought. Even if positivism sometimes went too far in the opposite
direction, we should nonetheless appreciate the valuable services that it
performed in its time.
The positivist era was also the period in which we first saw the
international community ‘legislating’ by way of multilateral treaties, for
the most part in areas relating to armed conflict. The first major example
of this was the Declaration of Paris of 1856. It restricted the capture of
private property at sea, by providing that ‘free ships make free goods’
(that is, that enemy private property could not be captured on a neutral
ship). It also announced the abolition of privatising. Within five years, it
attracted over 40 ratifications. In 1868, the Declaration of St Petersburg
47
contained a ban on exploding bullets. More importantly, it denounced

total-war practices, by stating that the only permissible objective of war
is the defeat of the enemy’s armed forces. Alongside the law of war—
and in some ways in close partnership to it— was the full flowering of
the law of neutrality, which, for the first time, emerged in the full light
of juridical respectability as a sort of counterpart to the unrestricted right
of states to resort to war on purely political grounds.
There was ‘legislation’ in other fields too. On the humanitarian front, the
period witnessed a concerted effort by the nations of the world to put an
end to slave trading. The culmination of this effort occurred in 1890,
when the General Act of the Brussels Conference established an
International Maritime Office (at Zanzibar) to act against slave trading.
In the less-than-humanitarian sphere of imperialism, the major powers
established, by multilateral treaty, the ‘rules of the game’ for the
imperial partitioning of Africa. This took place at the Berlin Conference
of 1884–85. (Contrary to the belief of some, that conference did not
actually allocate any territories; it established the criteria by which the
powers would recognise one another’s claims).
2.0 OBJECTIVES
• explain the major theories of international law – the positivist, the

naturalist and the historical
• identify the major differences between and among these theories
• examine the relevance of these theories in the study and
understanding of international law.
3.0 MAIN CONTENT
3.1 Positivism
According to the positivists, the binding force of international law is

rooted in the consent of sovereigns themselves, either through a
laborious search of state practice or a catalog of explicit agreements.
John Austin’s famous 1832 suggestion in The Province of Jurisprudence
Determined states that: ‘the law obtaining between nations is not
positive law: for every positive law is set by a given sovereign’. The
duties which it imposes are enforced by moral sanctions: by fear on the
part of nations, or by fear on the part of sovereigns, of provoking general
hostility, and incurring its probable evils, in case they shall violate
maxims generally received and respected. The early positivists’ school
emphasised the importance of custom and treaties as sources of
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international law. Early positivist scholar like Alberico Gentili used

historical examples to posit that positive law (jus voluntarium) was
determined by general consent. At the time, Cornelius van Bynkershoek
reiterated this idea but added that the bases of international law were
customs and treaties commonly consented to by various states.
In one sense, remembering a late 19th century triumph of positivism

puts international law on the road to pragmatism, for positivism orients
us to the actual practice of states, and seems less likely to degenerate
into wishful thinking or moralising about what the law should be. The
20th century tradition of realism, sociological jurisprudence, and
international relations theory continue this tendency. Positivism lays the
ground for pragmatism, extinguishing for a century international law’s
flirtation with religion and ideology. It is a paradoxical inheritance.
International law rids itself of faith only by enshrining the state, making
the task of international public order both more realistic and more
difficult. To the question, ‘How can there be order among sovereigns’,
there cannot be the answer, ‘Well, maybe it’s not possible.’ To do so
would be to deny the facts, since there appear to be lots of rules and
legal institutions. More importantly, it would betray the internationalist
project. In this sense, it was by eliminating religion that international
lawyers became priests.
A group of ideas arise together: the philosophical priority of the state,

the identification and rejection of naturalism, the challenge to the
possibility of international public order, and a polemical tradition of
international legal philosophy which could evolve only by rejecting
extreme positivism. In this sense, what is now remembered as 19th
century positivism sets in motion a practice of affirming its premises and
rejecting its conclusion.
There have been broad traditions of response. The first approach

responds theoretically, revitalising either the positivist or the naturalist
tradition against skepticism. Beginning with the notion of ‘consent’ and
an analogy to private law, and proceeding through the range of 20th
centuries of international law has been variously affirmed and explained
by modifying the image of absolute state sovereigns floating in a legal
vacuum. A second tradition of response is associated with the 20th
century tradition of international legal pragmatism and most
characteristic of international law after 2nd WW. It rejects the
theoretical tradition of both positivism and naturalism as irreconcilable
extremes between which a middle must be built, and more importantly,
as sterile intellectual projects, able to speak only to one another and
unhelpful in strengthening the actual or real international legal order. In
an unfortunate terminological borrowing from political science,
49
positivism offers no plausible ‘positive’ account of state practice.

International legal theorists now customarily present philosophical
inquiry into the possibility of international legal order among sovereigns
as a dead end and as the preoccupation of an earlier, philosophical age.
Consequently, there are indications that sovereignty is, in any event, no
longer was what it once thought to be.
Twentieth century international legal theory less accepts the positivist

answer to the question of how law might be possible among sovereigns.
At the same time, the question of how international law binds, how
order is possible among sovereigns, how international law distinguishes
itself from politics, and how international norms are enforced in the
absence of a supra-national, remained the central preoccupations of the
field throughout the twentieth century.
Indeed, the 19th cent taught us the futility of philosophy, and the urgent
necessity of getting beyond speculation if war is to be averted. This 19th
century memory inaugurated a disciplinary anti-intellectualism, a
repeated practice of demonstrating the unsatisfactory nature of both
naturalist and positivist answers to the question of law’s force in a world
of sovereigns, and of calls for a turn to practical effort of one sort or
another to expand international law in the name of peace and security.
The practical project might be institution building, codification, citizen
initiative or litigation, but it would not be a project of theory or
philosophy.
Explain the subject matter ‘Positivism’.
3.1.1 Two Types of Legal Positivism in International Law
International legal positivism has had a multitude of variants since the

turn of the twentieth century, but each variant contains the core
distinction between moral and legal obligations. But here, we will
discuss two possible variants that focus on the relationship between
international law and international relations.
The first variant expressly or implicitly links legal positivism with

realism. Early international legal positivists had normative reasons for
maintaining the distinction between law and morality. Lassa
Oppenheim, for example, asserted that a state-centric view of
international politics that lauded balance of power politics provided
conditions where international law could develop and promote peace
and justice. The emphasis on balance of power politics linked this view
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of legal positivism with a realist conception of international relations,

and became a popular view among international lawyers. By the turn of
the twentieth century, the majority of international lawyers counted
themselves as positivists. Moreover, Oppenheim’s work was influential
among such international relations classical realists like E.H. Carr and
Hans Morgenthau. Both camps viewed the study of the field as a
science, with a careful investigator being able to determine what is or is
not international law based on an analysis of the relevant international
legal sources without imputing any moral judgments about what the law
ought to be.
There is no necessary link between positivism and realism. The main

tenets of structural realism can be stated succinctly. For structural
realists, the primary unit of analysis in international relations is a
rational and unitary state, with a focus on the power of the state in
relation to other states in an anarchic international system. From these
assumptions, we can see both the overlap between structural realism and
one strong form of legal positivism and, similarly, realism’s aversion to
international law. With respect to structural realism’s relationship with
international law, some famous realists dismiss the concept altogether.
Legal positivism has a narrower conception of what constitutes
international law than the mainstream position in IHRL. Similarly,
realism tends to dismiss international law more than its two rival
international relations theories (liberal institutionalism and
constructivism).
The second variant, offered here, links legal positivism with

constructivism. Constructivist theory in international relations exploded
onto the scene in 1992 with Alexander Wendt’s Anarchy is what states
make of it: The Social Construction of Power Politics. A positivist
approach to international law grounded in constructivism can be
analogised to the following situation. Near the outset of Stalag, William
Holden’s character, Sefton, bets his fellow POWs that two prisoners
who were trying to escape would get caught by the Germans running the
camp. The two potential escapees are shot during the attempt, and
Sefton wins several packs of cigarettes. Sefton is not making any
normative statement about whether the two POWs should have been
able to escape. Rather, he placed his wager based upon his perception of
the situation as it actually existed. Further, Sefton as a
constructopositivist might even plan future escapes by other inmates—
or at least recognise the validity of other inmates making such plans.
What separates the construct-positivist from the realist-positivist is that
the construct-positivist has no steadfast allegiance to an international
system based on balance of power politics with the corresponding weak
notion of the independent causal function that international law can
51
serve. The construct-positivist views what constitutes international law

as binary—either a norm does or does not fall under the international
law umbrella. At the same time, the construct-positivist recognises that
both the constitutive and regulative rules of how international law is
produced can change, but until this change occurs the crystallising norm
should not be considered part of international law until the norm
satisfies the current threshold requirements to gain status as international
law.
This more nuanced view of positivism in international law has not yet
been accepted among most international legal commentators. Allen
Buchanan makes the point that “because positivism is a view about what
the law is, not about what it should be, it is entirely neutral as to whether
moral reasoning can determine how the law ought to be.” This statement
encapsulates the difference between construct-positivists and realist-
positivists. Simply stated, one can distinguish between what is and is not
international law and still engage in theorising about what international
law should be. Further, as I argue, the construct-positivist can be in
favor of expanding international law to recognise more moral norms.
This difference saves construct-positivism from Buchanan’s observation
that “legal positivists make a fundamental mistake when they move
from arguments against naturalism (as a position on what the law is) to
the conclusion that moral theories of international law ought to be
rejected.” While the realist-positivist might make this mistake, the
construct-positivist would not. The construct-positivist approach to
international law allows for all sorts of moral theorising about what a
legal rule should be, and thus provides a more robust view of IHRL.
Briefly discuss the nexus between legal positivism with realism.
3.2 The Historical School
At the core of the historical school’s philosophy was the thesis that each
culture, or cultural unit, or nation possessed a distinctive group
consciousness or ethos, which marked it off from other cultures or
nations. Each of these cultural units, as a consequence, could only really
be understood in its own terms. The historical school therefore rejected
the Universalist outlook of natural law. This opposition to universal
natural law was one of the most important features that the historical
school shared with the positivists.
In international law, the impact of the historical school is evident in

three principal areas. The first was with regard to customary law, where
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its distinctive contribution was the insistence that this law was not a
matter merely of consistent practice, however widespread or venerable it
might be. A rule of customary law required, in addition, a mental
element—a kind of group consciousness, or collective decision on the
part of the actors to enact that practice into a rule of law (albeit an
unwritten one). In fact, this collective mental element was seen as the
most important component of custom, with material practice relegated to
a clear second place. Customary law was therefore seen, on this view, as
a kind of informal legislation rather than as an unwritten treaty (as the
positivists tended to hold). is thesis marked the origin of the modern
concept of opinio juris as a key component of customary international
law.
The second major contribution of the historical school to international

law was its theory that the fundamental unit of social and historical
existence was not—or not quite—the State, as it was for the positivists,
but rather the nation-state. In this vision, the State, when properly
constituted, comprised the organisation of a particular culture into a
political unit. It was but a short step from this thesis to the proposition
that a ‘people’ (i.e, a cultural collectivity or nation or, in the German
term, Volk) had a moral right to organise itself politically as a state. And
it was no large step from there to the assertion that such a collectivity
possesses a legal right so to organise itself. If ‘nationality school’ (as it
was sometimes called) had the most impact in Italy, where its leading
spokesman was Pasquale Mancini, who was a professor at the
University of Turin (as well as an office-holder in the government of
unified Italy). Although the nationality thesis did not attract significant
support amongst international lawyers generally at the time, it did
prefigure the later law of self-determination of peoples.
The third area where the influence of the historical school was felt was
regarding imperialism— a subject that has attracted strangely little
attention from international lawyers. It need only be mentioned here that
the historical school inherited from the eighteenth century a fascination
with ‘stages’ of history. Under the impact of nineteenth-century
anthropological thought, there came to be wide agreement on a three-
fold categorisation of states: as civilised, barbarian, and savage. The
Scottish lawyer James Lorimer was the most prominent international-
law writer in this category. The implication was all too clear that there
was a kind of entitlement—moral and historical, if not strictly legal—for
the ‘civilised’ countries to take their ‘savage’ counterparts in hand and
to bring them at least into contact with the blessings of modern scientific
life.
53
What are the impacts of the historical school of thought on the

3.3 Naturalism
The dominance of positivism, with its stern and forthright opposition to
the very concept of natural law, brought that venerable body of thought
to its lowest ebb so far in the history of international law. It should not
be thought, though, that the natural-law ideals of old died out altogether.
That was far from the case. If they lost the central position that they had
previously held, they nevertheless maintained their hold in many ways
that were not altogether obvious. One reason that natural-law ideas were
not always recognisable was that, to some extent, they were re-clothed
into a materialistic and scientific garb. This was particularly so with the
new science of liberal political economy. Underlying this new science
was a belief, directly imported from traditional natural-law thought, in a
natural harmony of interests amongst human beings across the globe.
This was first enunciated in a systematic way by the French physician
Francois Quesnay in the 1750s, and then developed into its modern form
in Britain by Adam Smith, David Ricardo, and John Stuart Mill. The
centre-piece of their programme was support for free trade—and, more
generally, for a breaking down of barriers between individual economic
actors the world over. They were, in short, the pioneers of what came to
called ‘globalisation’
In plain terms, Naturalism refers to theories of international law which

locate the binding force of international norms in some sources outside
sovereignty, which precedes the sovereign, or can be implied from the
nature of a community of sovereigns. The natural law approach argues
that international norms should be based on axiomatic truths. The source
might be reason, or religion, or moral values, or it might be the
traditions of the community in which sovereigns find themselves. In
1625 Hugo Grotius had argued that nations as well as persons ought to
be governed by universal principle based on morality and divine justice
while the relations among polities ought to be governed by the law of
peoples, the jus gentium, established by the consent of the community of
nations on the basis of the principle of pacta sunt servanda, that is, on
the basis of the observance of commitments.
If natural law stands for nothing else, it stands for the proposition that
there is some objective standard or “higher law” against which positive
(man-made) law can and should be measured. H. L. A. Hart
characterised the classical theory of natural law as the view “that there
are certain principles of human conduct, awaiting discovery by human
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reason, with which man-made law must conform if it is to be valid”.”'

The principal concern of the natural law theorist is, then, with the
substantive content of law.
In the traditional story, 19th century international legal theorists

gradually realised that these various ideas could not explain the source
of law’s binding force in a way consistent with the absolute nature of
sovereignty and the equality of states, because all these implied some
order as a means of enforcement beyond the sovereign which simply
was not available in a world of sovereign state. In more traditional areas
of international law, the legacy of natural law is most readily discerned
in the area of armed conflict—specifically concerning what came to be
called measures short of war. It has been observed that positivism
basically accepted the outbreak of war as an unavoidable fact of
international life, and contented itself with regulating the conduct of
hostilities. But that approach applied to war properly speaking.
Regarding lesser measures of coercion, the legacy of just-war thought
lingered on. This was the thesis that a resort to armed self-help was
permissible to obtain respect for legal rights, if peaceful means proved
unavailing. The most important of these forcible self-help measures
were armed reprisals. These were far from an unusual occurrence.
Indeed, the nineteenth century was a golden age (if that is the right word
for it) of armed reprisals. The most common cause of such actions was
injury to nationals that had gone underdressed by the target country. A
famous illustration was Britain’s action against Greece in the ‘Don Paci,
co’ incident of 1850, in which Britain blockaded Greek ports to compel
that country to pay compensation for injury inflicted by mob action
against a British subject. One of the largest scale operations was a
blockade of Venezuelan ports in 1902–03 by a coalition of major
European powers, to induce that State to pay various debts that were
owing to foreign nationals. Reprisals sometimes also included
occupations of territory and even bombardments of civilian areas.
It could hardly escape the attention of observers that reprisal actions

were, for obvious practical reasons, a prerogative of the major powers—
and that they accordingly gave rise to some strong feelings of
resentment in the developing world. In the wake of the Venezuelan
incident of 1902–03, the Foreign Minister of Argentina, Luis Drago,
proposed an outright ban against the use of force in cases of contract
debts, as was not forthcoming. But a milder restriction was agreed, in
the so-called Porter Convention of 1907 (named for the American
diplomat who was its chief sponsor), adopted by the Second Hague
Peace Conference. This convention merely required certain procedural
steps to be taken before armed reprisals could be resorted to in debt-
default cases.
55
It is one of history’s great ironies that the natural-law tradition, which

had once been so grand an expression of idealism and world
brotherhood, should come to such an ignominiously blood-spattered
pass. A philosophy that had once insisted so strongly on the protection
of the weak against the strong was now used as a weapon of the strong
against the weak. It is, of course, unfair to condemn a whole system of
justice on the basis of abuses. But the abuses were many, and the power
relations too naked and too ugly for the tastes of many from the
developing world. Along with imperialism, forcible self-help actions left
a long-lasting stain on relations between the developed and the
developing worlds.
Explain the subject matter ‘Naturalism’.
4.0 CONCLUSION
Generally, international law remembers the 19th century, along with the
18th and 17th, as a period of the philosophical controversies between
naturalism and positivism in which positivism later became dominant.
These terms, ‘naturalism’ and ‘positivism’, take on somewhat special
meanings in theory of international law. They suggest alternative
answers to what became international law’s central riddle: How can
there be a law among sovereigns when sovereignty, by definition admits
no higher authority? Although positivism was by far the dominant trend
in nineteenth century international law, it did fall short of having a
complete monopoly. Two other schools of thought in particular should
be noted. The first was a new arrival: the historical school, which was
intimately connected with the romantic movement of the period. Its
impact in international law has received, as yet, hardly any serious
attention. The other alternative to positivism was natural law, severely
reduced in prestige to be sure, but surviving rather better than has
generally been appreciated. Each of these theories has its own relevance;
notwithstanding the relative dominance of one over another at different
epochs (for example, the dominance of the positivist theorists,
particularly during the nineteenth centuries over the naturalists).
5.0 SUMMARY
The unit has extensively discussed the three known theories of

international law – positivist, naturalist and the historical. The principal
arguments innate in each of these theories were elucidated. For the
Positivists, the binding force of international law is rooted in the consent
of sovereigns themselves. Proponents of the positivist theory
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emphasised the importance of custom and treaties as sources of

international law. Furthermore, two variants of legal positivism were
espoused in a bid to shed light on the main distinction between moral
and legal obligations.
The first variant expressly or implicitly linked legal positivism with

realism, while the second variant linked legal positivism with
constructivism. To a large extent, the historical school has much linkage
to the positivist school, particularly in relation to their forthright
disapproval of the universal natural law. According to them, each
culture or cultural entity possesses a unique group consciousness and a
separate dialectic. Cultural relativism is perceived as an important tool
in understanding each cultural milieu and also in guiding people’s
cultures against subtle imperialism.
For the Naturalists, the binding force of international norms could be

located in some sources outside the sovereigns. They argue that
international norms should be based on axiomatic truths; arising mainly
from strong reasoning, religion, or moral values. In fact, the focus of the
naturalists is the maximisation of the substantive content of law, which
is replete with rationality.
1. The positivist and the historical schools of thought share certain

assertions.
2. Identify and explain this commonality.
3. Highlight and discuss the major contentions of the positivist, the
naturalist and the historical theorists.

Barnett, R. E. (1978). “Toward A Theory of Legal Naturalism”. Journal
of Libertarian Studies, Vol. 2, No. 2, pp. 97-107
D'Entreves, P. (1970). Natural Law. (2nd ed.). London: Hutchins&Co.
Hart, H. L. A. (1961). The Concept of Law. Oxford: Oxford University

Press.
Kennedy, K. (1996). “International Law and the 19th Century: History

of an Illusion” Nordic Journal of International Law, 65, pp.385-
420.

57
UNIT 3 PRINCIPLES OF INTERNATIONAL LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Principle of Self Determination
3.2 The Principle of International Co-Operation
3.3 Principle of Sovereign Equality of States
3.4 Principle of Non-Intervention
3.5 Principle of Non-Use of Force
3.6 Principle of Freedom to Choose and Develop their Own
Internal Political System
3.7 Principle of Freedom of the People to Pursue their Own
Economic Development
3.8 Principle of Peaceful Settlement of Disputes between and
among States
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The general principles governing friendly relations between and among

state are issues of international law and have been set out in UN General
Assembly Resolution 2625, which declares that the progressive
development and codification of certain principles would secure more
effective application within the international community and ultimately
promote the realisation of the purposes of the United Nations. States
have great expectations as the major actors in the international system.
So much has been done by the international society to ensure that the
relations of states in the international system are carried out on
predictable templates that would guarantee fair treatment for all
participants in the system.
The Final Act of the Conference on Security and Cooperation in Europe,

adopted at Helsinki on 1 August 1975, states that “all the principles set
forth in the Declaration of Principles Guiding Relations between
Participating States, that is, Sovereign equality, respect for the rights
inherent in sovereignty; refraining from the threat or use of force;
inviolability of frontiers; territorial integrity of states; peaceful
settlement of disputes; non-intervention in internal affairs; respect for
human rights and fundamental freedoms, including the freedom of
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thought, conscience, religion or belief; equal rights and self-

determination of peoples; cooperation among states; and fulfillment in
good faith of obligations under international law, are of primary
significance and, accordingly, they will be equally and unreservedly
applied, each of them being interpreted taking into account the others.”
These are important considerations and so in the bid to pursue the task
of ensuring a world in which nations have equal chances of participating
in charting the course of its growth and development, certain principles
of international law are of essence. These principles to a reasonable
extent crisscross and facilitate each other with a view to achieving the
overall objective for their formulation.
2.0 OBJECTIVES
• explain the main principles of international law

• identify the synergy between and among these principles
• discuss the role of International Organisations, especially the
United Nations in facilitating the promotion of these principles of
international law.
3.0 MAIN CONTENT
3.1 Principle of Self Determination
The Charter of the United Nations expressly establishes the right to self-
determination in Article 1, paragraph 2 (Chapter I: “Purposes and
Principles”) and in Article 55 (Chapter IX: “International Economic and
Social Co-operation”). Article 1, paragraph 2, states that one of the
purposes of the United Nations is to develop friendly relations among
nations based on respect for the principle of equal rights and self-
determination of peoples, and to take other appropriate measures to
strengthen universal peace. However, it should be noted that ab initio,
the words “based on respect for the principle of equal rights and self-
determination of peoples” did not appear in the Dumbarton Oaks
Proposals. Their addition was proposed at the San Francisco Conference
in the amendments submitted by the four sponsoring Governments. At
the 6th meeting of Committee 1 of Commission I of the San Francisco
Conference, held on 15 May 1945, emphasis were put on the right to
self-determination in Chapter I of the Charter and also on the need to
ensure that the principle corresponded closely to the will and desires of
peoples everywhere; only insofar as it implied the right of self-
government of people and not the right of secession.
59
The Committee had before it an amendment proposing the replacement

of the words “based on respect for the principle of equal rights and self-
determination of people “- by the words “to strengthen international
order on the basis of respect for the essential rights and equality of the
states, and of the peoples' right of self-determination”. The debates were
centrally on the use of certain words which were thought to have
ambiguous representations. For example, when one speaks generally of
the equality of states; surely one could use the word “peoples” as an
equivalent for the word “states”, but in the expression “the people’s”
right of self-determination” the word “people” means the national group
which do not identify themselves with the population of a state.
The debates of the Sub-Committee of Committee 1 of Commission I

included an exchange of views on the meaning of the principle of self-
determination of people. This discussion was summarised as follows in
the report of the Rapporteur of this Sub-Committee (I/l/A) to Committee
I/I (1 June 1945): It was understood: That the principles of self-
determination constitute an essential norm and that the respect of this
norm is a basis for the development of friendly relations, and is in effect,
one of the appropriate measures to strengthen universal peace. It was
understood likewise that the principle in question, as a provision of the
Charter, should be considered in function of other provisions. An
essential element of this principle is the free and genuine expression of
the will of the people. It also extends as a general basic conception to a
possible amalgamation of nationalities if they so freely choose.
Many controversies cropped up as issues unfolded. For example, the

view was expressed in the Co-ordination Committee of the Conference
that the simultaneous use of the words “nations” and “peoples” seemed
to introduce the right to secession and that it would have been more
appropriate to use only the word “people”. It was also held, as an
argument against the use of the word “nations”, that international
relations were established between states, not between nations. On the
other hand, it was maintained that the word “nations” would be
preferable, since it would cover certain members of the United Nations
which had not yet attained statehood.
With a view to the creation of conditions of stability and wellbeing

which are necessary for peaceful and friendly relations among nations
based on respect for the principle of self-determination of people, the
principle of the right to self-determination is established indirectly in
Article 76 of the Charter (Chapter XII: “International Trusteeship
System”), paragraph b of which provides that one of the objectives of
the trusteeship system is to promote the progressive development of the
inhabitants of the Trust Territories towards “self-government or
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independence”, taking into account, inter alia, “the freely expressed

wishes of the peoples concerned”. The same principle appears in Article
73 (Chapter XI: “Declaration regarding Non-Self-Governing
Territories”, where it is affirmed that: members of the United Nations
which assume responsibilities for the administration of territories whose
people have not yet attained a full measure of self-government recognise
the principle that the interests of the inhabitants of these territories are
paramount and accept as a sacred trust the obligation to develop self-
government, to take due account of the political aspirations of the people
and to assist them in the progressive development of their free political
institutions.
The view was expressed that an article on the right to self-determination

should be included in the covenant because:
(a) that right was the source of or an essential prerequisite for other
human rights, since there could be no genuine exercise of
individual rights without the realisation of the right to self-
determination;
(b) in the drafting of the covenant, the principles and purposes of the
Charter, which included the principle of equal rights and self-
determination of people, should be applied and protected;
(c) many provisions of the Universal Declaration of Human Rights
had a direct bearing on the right to self-determination; and
(d) the covenant embodied that right, it would be incomplete and
inoperative. It was also said that the right to self-determination
was the right of a group of individuals in association; it was
certainly the prerogative of a community, but the community
itself consisted of individuals and any encroachment on its
collective right would be tantamount to a breach of their
fundamental freedoms.
At the sixth session of the General Assembly, the Third Committee

continued to consider whether an article on the right to self-
determination should be included in the international covenant on
human rights. During the debate on this point, many delegations
proposed that the General Assembly should agree to include an article
on the right to self-determination in the draft international covenant on
human rights. Further arguments were advanced in favor of its inclusion
in the covenant and views were expressed on certain aspects of the right.
It was maintained that the right to self-determination stood above all
other rights and formed the corner-stone of the whole edifice of human
rights. It was impossible for an enslaved people to enjoy the full
economic, social and cultural rights which the Commission on Human
61
Rights would wish to embody in the covenant. The covenant would be

devoid of all meaning if it did not include the right to self-determination.
The opinion was expressed that the right to self-determination should
not be confused with the rights of minorities, since the authors of the
Charter had not intended to give that right to minorities. The right to
self-determination should not be exercised to destroy the unity of a
nation or to impede the creation of that unity, in violation of national
sovereignty. With regard to the nature of the right, it was held to be a
true right possessing political, economic and legal elements. The right of
peoples to self-determination had two aspects: from the domestic point
of view, it signified the people's right to self-government and from the
external point of view their independence. It was pointed out that the
application of the principle of self-determination was a condition of
international peace and security and of fruitful international co-
operation. Resolution 545 (VI), adopted by the General Assembly on 5
February 1952, entitled “ Inclusion in the International Covenant or
Covenants on Human Rights of an article relating to the right of peoples
to self-determination”, reads as follows: Whereas the General Assembly
at its fifth session recognised the right of peoples and nations to self-
determination as a fundamental human right (resolution 421 D(V) of 4
December 1950), Whereas the Economic and Social Council and the
Commission on Human Rights, owing to lack of time, were unable to
carry out the request of the General Assembly to study ways and means
which would ensure the above-mentioned right to people and nations,
Whereas the violation of this right has resulted in bloodshed and war in
the past and is considered a continuous threat to peace, The General
Assembly (i) To save the present and succeeding generations from the
scourge of war, (ii) To reaffirm faith in fundamental human rights, and
(iii) To take due account of the political aspirations of all peoples and
thus to further international peace and security, and to develop friendly
relations among nations based on respect for the principle of equal rights
and self-determination of peoples.
1. Decides to include in the International Covenant or Covenants on

Human Rights an article on the right of all peoples and nations to
self-determination in reaffirmation of the principle enunciated in
the Charter of the United Nations. This article shall be drafted in
the following terms : ' All people shall have the right to self-
determination', and shall stipulate that all states, including those
having responsibility for the administration of Non-Self-
Governing Territories, should promote the realisation of that
right, in conformity with the Purposes and Principles of the
United Nations, and that states having responsibility for the
administration of Non-Self-Governing Territories should promote
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the realisation of that right in relation to the peoples of such

Territories;
2. Requests the Commission on Human Rights to prepare
recommendations concerning international respect for the self
determination of peoples and to submit these recommendations to
the General Assembly at its seventh session.
At its seventh session, the General Assembly adopted resolution 637

(VII), of 16 December 1952, entitled “The right of peoples and nations
to self-determination “. Among the ideas expressed in that resolution,
the following are relevant to the present study:
(a) that the right of peoples and nations to self-determination is a

prerequisite to the full enjoyment of all fundamental human
rights;
(b) that every State Member of the United Nations, in conformity
with the Charter, should respect the maintenance of that right in
other States;
(c) that the States Members of the United Nations should uphold the
principle of self-determination of all peoples and nations;
(d) that the people of Non-Self-Governing and Trust Territories have
the right to self determination and that Member States should
therefore recognise and promote the realisation of that right and
facilitate its exercise;
(e) that the Member States responsible for the administration of Non-
Self-Governing and Trust Territories should take certain practical
steps pending, and in preparation for, the realisation of the right
to self-determination.
As earlier noted, the right to self-determination is very crucial in the

understanding of the other principles of international law. It may indeed
be regarded as the fountain of the other accompanying principles of
international law. We shall thus, in a jiffy review the other principles of
international co-operation.
3.2 The Principle of International Co-operation
In the process of applying the principle of equal rights and self-

determination of people, great importance attaches to the principle of
international co-operation, for at the present time international co-
operation is incompatible with any form of subjection or of pressure
exerted by the strong on the weak. Such co-operation should therefore
be based on the sovereign equality of states and on the equal rights and
self-determination of people. Consequently, in the process of co-
operation between states, reciprocity of advantages, non-interference in
63
the domestic affairs of states and the absence of discrimination should

be respected. The concept of international co-operation is one of the
fundamental ideas of the United Nations. It appears in the Charter
because the world community has come to realise that, if it is to
maintain peace, the United Nations cannot rest content with playing a
preventive role, but should also encourage states to co-operate with one
another. Co-operation between states is a prerequisite for maintaining
and strengthening international peace and security and one of the most
important means of- promoting peace.
Consequently, as stated in the Declaration on Principles of International

Law concerning Friendly Relations and Co-operation among states in
accordance with the Charter of the United Nations, every state has the
duty to promote, through joint and separate action, realisation of the
principle of equal rights and self-determination of people, in accordance
with the provisions of the Charter, and to render assistance to the United
Nations in carrying out the responsibilities entrusted to it by the Charter
regarding the implementation of the principle, in order to:
(a) promote friendly relations and co-operation among states;

(b) bearing in mind that subjection of people to alien subjugation,
domination and exploitation constitutes a violation of the
principle, as well as a denial of fundamental human rights, and is
contrary to the Charter.
However, according to the principle it is the duty of states to co-operate

with one another in accordance with the Charter, as developed in the
same Declaration; states to co-operate in the promotion of universal
respect for, and observance of, human rights and fundamental freedoms
for all, and in the elimination of all forms of racial discrimination and all
forms of religious intolerance; States Members of the United Nations to
take point and separate action in co-operation with the United Nations in
accordance with the relevant provisions of the Charter.
In addendum, states should co-operate in the economic, social and

cultural fields as well as in the field of science and technology and for
the promotion of international cultural and educational progress. States
should co-operate in the promotion of economic growth throughout the
world, especially that of the developing countries. No state in the world
today can live in total isolation, and even the most strenuous national
efforts on the part of states acting individually would not solve the
substantial economic and social problems facing the international
community. Active co-operation is needed if the “conditions of stability
and well-being” referred to in Article 55 of the Charter are to be created
and the foundations laid for harmonious and friendly relations among
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states. Co-operation among states is a prerequisite for maintaining and

strengthening international peace and security and one of the most
important means of promoting peace.
3.3 Principle of Sovereign Equality of States
The principle of equal rights and self-determination of people has its

corollary another principle of international law concerning friendly
relations, namely, the principle of sovereign equality of states. This
latter principle is closely bound up with the struggle to attain equal
rights, self-determination and independence and with the strengthening
of national sovereignty. There is a close interdependence between equal
rights and self-determination of people, on the one hand, and sovereign
equality on the other, in that each of these principles affects the
application of the other. The events that have occurred since the
adoption of the Charter of the United Nations, which proclaims
sovereign equality in Article 2, paragraph 1, have demonstrated not only
the validity and great significance of the principle of sovereign equality,
but also the need to develop it in close conjunction with the principle of
equal rights and self-determination of people.
The principle of sovereign equality is of fundamental importance. The

Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter
of the United Nations stresses in its Preamble that “the purposes of the
United Nations can be implemented only if states enjoy sovereign
equality and comply fully with the requirements of this principle in their
international relations”. The principles of sovereign equality and of
equal rights and self determination of people underline fundamental
rights of states, such as sovereignty and independence. The principle of
sovereign equality is the touchstone for the relations which should exist
between all the states in the world. It is the expression of the recent
development of the concept of State sovereignty under the influence of
the growing interdependence of states and the ever-increasing trend
towards democratisation in international life. In these circumstances, the
concept of sovereignty has been influenced by that of equality, in the
context of a new form of diplomacy based on collective security and
international co-operation. If all nations were equal in size and power,
the principle of the sovereign equality of states would be less important
that it is. However, one of the objectives of the international community
is to prevent the existing disparities, so far as possible, from creating
injustices and placing states in a position of inferiority in their relations
with other states.
65
Sovereign equality is of increased importance in the modern era, when

many new states have attained independence and wish to take part in
international relations on a footing of complete equality. Through the
application of the principle of sovereign equality, international law
should protect these new states and their people from any arbitrary
action and afford them genuine equality. The principle of sovereign
equality applies whatever the inequalities in territory, population,
economic power or degree of development between states. It ensures
legal equality — that is to say, equality in law —for all states. In these
circumstances, states should have not only equal rights and duties, but
also equal capacity to exercise those rights and carry out those duties.
No state, whatever its power, can claim special treatment or a derogation
from this principle. Sovereign equality does not mean equality in power
but a de jure equality which applies to all states irrespective of their size,
capacity, wealth, economic or military power, volume of production,
social and economic structure, degree of development or geographical
situation. All States, large and small, are equal before the law, and no
state may claim special treatment, seek advantages on any pretext, or set
out to dominate other states. Since they have equal rights and duties in
international law, states should have the same scope for exercising their
rights and carrying out their duties. Consequently, any discrimination
designed to encroach upon the sovereign rights of states constitutes a
violation of the principle of sovereign equality, because the exercise of
the rights deriving from sovereign equality must not be limited or
compromised for political, social, economic, geographical or any other
reasons.
The principle of sovereign equality means legal equality; that is to say,

equal rights as specified in the Preamble to the Charter, respect for
which, according to Article 1, paragraph 2, forms the basis for friendly
relations among nations. Unfortunately, equality de jure is not always
accompanied by equality de facto, but states, both individually and
collectively, should strive to reduce and eliminate de facto inequalities
through economic, technical, scientific and cultural co-operation and,
above all, through political co-operation based on good will and a sense
of fairness.
By virtue of the principle of equal rights and self determination of

people on the one hand, and the principle of sovereign equality on the
other, there is a duty to respect the personality of states. The personality
and other essential attributes of the state, such as territorial integrity and
political independence, are inviolable. Consequently, state has the right
to ensure its self-preservation and its own prosperity, together with the
preservation and prosperity of its constituent people, and to organise
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itself. Under international law, the sole restriction on the exercise of

these rights is the exercise of the rights of other states.
Sovereign equality implies the right of every state to establish its own
political, social and economic structure, without interference or
intimidation from outside, in the best interests of its inhabitants; that is
to say, in accordance with the right of its people to self-determination.
The independence of the state implies an independent domestic policy;
in other words, independence in political, economic, social and cultural
organisation. The jurisdiction of states within their frontiers is exercised
equally and exclusively over all inhabitants, nationals and aliens alike,
and over the whole territory. The principle of sovereign equality on the
one hand, and the principle of equal rights and self-determination of
peoples on the other, forbids any encroachment upon the authority of the
State in these matters.
It is the duty of all states to refrain from any action aimed at the partial
or total disruption of the national unity and territorial integrity of another
country. Such behaviour is incompatible with the purposes and
principles of the Charter, as is pointed out in the Declaration on the
Granting of Independence to Colonial Countries and People. The
principle of sovereign equality imposes on states the duty of respecting
the institutions of other states and not impeding their progress. At the
international level, state sovereignty and self-determination are
manifested by the independence of states in foreign policy. Every state
has the right to take part in solving international problems and in
formulating and amending the rules of international law, to join
international organisations and to become a party to multilateral treaties
of interest to it. This is an important consideration. Since the modern
world forms a single international community, international law is
universal in character. The old rules of international law must be
adapted to meet the needs of the modern community of states, or be
replaced by new rules. The new states have the right to play their part in
this process. Any attempt to frustrate the achievement of universality in
international life — such as refusal to recognise newly independent
states, or action to prevent them from exercising their rights as sovereign
subjects of international law — is incompatible with respect for the
principle of the sovereignty and rights of other states. Actions of this
kind constitute a form of discrimination and are thus contrary to the
principle of equality. To exclude particular states from participation in
the life of the international community of nations would be tantamount
to denying the universal character of the principle that states are equal in
law and enjoy the rights inherent in full, sovereignty. In order to ensure
that international law is universal, it is essential that each state should be
guaranteed the right to play its due part in the international community.
67
This right is a necessary consequence of the unanimously accepted

principle that states are juridically equal. Every State enjoys the rights
inherent in full sovereignty and each state has the duty to respect the
personality of other states.
3.4 Principle of Non-Intervention
There is another principle of international law concerning friendly

relations and co-operation among states which ought also to be linked to
the principle of equal rights and self-determination of people namely:
the principle of non-intervention. In the first place, non-intervention
should not be used to cover up violations of self-determination; in the
second place, it should protect states and people struggling for their
independence. Acts of intervention are thus violations of the principle of
equal rights and self-determination of people. Intervention, by violating
the fundamental rights of the state, encroaches upon that state's
sovereignty and independence. The right of peoples to self-
determination is simply the transposition of the concept of human rights
at the collective level.
The current importance of the principle of non-intervention in domestic

affairs and its connection with the principle of equal rights and self-
determination of people were emphasised in the above-mentioned
Declaration, which confirmed that the General Assembly was: Mindful
that violation of the principle of non-intervention poses a threat to the
independence, freedom and normal political, economic, social and
cultural development of countries, particularly those which have freed
themselves from colonialism, and can pose a serious threat to the
maintenance of peace, [and] Fully aware of the imperative need to
create appropriate conditions which would enable all states, and in
particular the developing countries, to choose without duress or coercion
their own political, economic and social institutions.
Furthermore, in its Declaration on Principles of International Law

concerning Friendly Relations and Cooperation among states in
accordance with the Charter of the United Nations (resolution 2625
(XXV)), the General Assembly expressed the conviction that the strict
observance by states of the obligation not to intervene in the affairs of
any other state is an essential condition to ensure that nations live
together in peace with one another, since the practice of any form of
intervention not only violates the spirit and letter of the Charter, but also
leads to the creation of situations which threaten international peace and
security. The principle of non-intervention in matters which are within
the domestic jurisdiction of a state, like the principle of equal rights and
self-determination of people and the principle of sovereign equality of
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states, is designed to guarantee states the freedom, in matters of

development, to follow the course which they consider to serve their
fundamental interests, These principles reflect the need felt by every
people to be the sole master of its fate. Respect for these principles
guarantees the right of all people to achieve their aspirations and to
make their full contribution to the heritage of civilisation.
Consequently, acceptance of and strict respect for the principle of non-

intervention are essential features of any system for the protection of
small states, especially those which have recently freed themselves from
colonial domination. From this standpoint, the principle of non-
intervention can be seen as the complement of the principle of equal
rights and self-determination of peoples. Moreover, the principle of non-
intervention is of importance to all states, since it guarantees them the
enjoyment of their rights as recognised by international law.
The principle of non-intervention demands recognition of the inalienable

right of every people, whether large or small, to decide its own fate,
freely to choose its own form of political, economic and social
development and its own way of life in keeping with its national needs
and aspirations, and to affirm its national identity without interference or
pressure from outside. With the entrenchment and development of the
principle of self-determination, the principle of non-intervention has
taken on special importance, for the disintegration of the colonial system
and the accession of many new states to independence have increased
the need to protect the sovereignty and independent development of
those states from all outside interference.
The principle of non-intervention simply safeguards the freedom of

choice without which a state and an independent people cannot exist as
such — a freedom often symbolised by the expression “domestic
jurisdiction” of a state. This freedom has both internal and external
aspects, and consists principally in the liberty of the state to choose its
own political, social, economic and legal system (subject, of course, to
respect for human rights and fundamental freedoms) and to decide
whether or not to maintain diplomatic relations with another state,
whether or not to conclude agreements, and whether or not to join
regional or international organisations. If freedom of choice were
confined to essentials, it could be said that in principle the state should
be protected against any action by another state designed to impose a
particular choice on it.
In virtue of the principle of non-intervention, activities directed against a

state's political, economic and social system and the imposition of, or
the attempt to impose, a specific form of organisation or government
69
upon a state are prohibited. Any interference designed to encroach upon

the right of a state to determine its own political, social or economic
development may set up international tension likely to endanger peace.
Consequently, any external pressure directed against a state's right freely
to choose a particular social system or political régime should be
prohibited outright. Thus not only armed intervention is prohibited, but
also any form of direct or indirect intervention in the internal or external
affairs of states, including political and economic intervention, and also
political and economic pressure calculated to prevent people from
choosing their own social system or from taking, in their own country,
economic measures in their own interests. In virtue of the principle of
non-intervention, “measures to coerce another state in order to obtain
from it the subordination of the exercise of its sovereign rights or to
secure from it advantages of any kind” (General Assembly Resolution
2131 (XX), paragraph 2) are prohibited. Among such measures may be
mentioned,' for example, measures of economic pressure designed to
influence the policy of another country or to obtain control of essential
sectors of its national economy.
Lastly, the principle of non-intervention further prohibits any armed

intervention against a state or a people, any action to organise, assist,
foment, finance, incite or tolerate subversive, terrorist or armed
activities directed towards the violent overthrow of the régime of
another state, and interference in any other form. This conclusion is of
special importance, because indirect intervention presents the greater
danger for developing countries. While these countries have to
concentrate all their energies on development, their efforts are
sometimes counteracted by foreign intervention.
3.5 Principle of Non-Use of Force
Through the principle of non-intervention, the principle of equal rights

and self-determination of people is linked to the principle of non-resort
to the threat or use of force. The last-mentioned principle is the corner-
stone of peaceful relations between states. It is also an essential
component of the system established by the Charter of the United
Nations. In the Charter, the peoples of the United Nations affirmed that
they were determined “to save succeeding generations from the scourge
of war” and “to unite [their] strength to maintain international peace and
security”. However, as long as some states are stronger than others, it is
essential to protect the weak against the misuse of force by the strong,
and that is one of the purposes of the rule prohibiting the use of force in
international relations. This principle offers a means of protection
against the misuse of force by preventing conflicts and guaranteeing
complete equality of all states. It is therefore of special importance for
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small states, for developing countries, for states which have just attained
independence, and for people all over the world.
The Declaration of Principles of International Law concerning Friendly

Relations and Co-operation among states in accordance with the Charter
of the United Nations (General Assembly resolution 2625 (XXV)),
recalls “the duty of states to refrain in their international relations from
military, political, economic or any other form of coercion aimed against
the political independence or territorial integrity of any state” and
considers it “essential that all states shall refrain in their international
relations from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent
with the purposes of the United Nations”.
Aggression — the use or threat of force —is consequently a violation

not only of the principle of non-use of force, but also of the principle of
equal rights and self determination of people. A threat of force which
infringes these principles may be direct or indirect. It may be expressed
in words, in actions such as the concentration of troops in frontier areas,
or in a partial or complete severance of economic or other relations. It
tends to instill fear in the state and people concerned, to intimidate them
and thus to compel them to change their policy. The use of force against
another state may take various forms: for instance, actions conducted by
regular or irregular forces, by forces of volunteers or by armed bands;
acts of reprisal; invasion; or pressure or coercion of various kinds. The
threat or use of force cannot have as a legal consequence military
occupation or territorial gain.
The Declaration of Principles of International Law concerning Friendly

of the United Nations provides that “No territorial acquisition resulting
from the threat or use of force shall be recognised as legal”. Non-
recognition of territorial conquests is a general principle of law within
the meaning of Article 38 of the Statute of the International Court of
Justice, for it is embodied in many important international conventions
and in other United Nations instruments, in particular the Declaration on
the Strengthening of International Security (General Assembly
resolution 2734 (XXV)). It can also be considered to be a corollary to
the rule laid down in Article 2, paragraph 4, of the Charter of the United
Nations prohibiting the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations. Non-recognition
of territorial conquests is the result of a legal and political assessment
which every state is entitled to make of a given situation and on which it
can base its conduct. However, if in certain cases the legal assessment of
71
the situation should be made by the Security Council or the General

Assembly, and if that organ should conclude that the situation had been
created by the threat or wrongful use of force, Member States would be
under an obligation not to recognise that situation. Territorial
acquisitions or other advantages gained through the threat or wrongful
use of force cannot have legal effect, because international law cannot
confer legality upon the consequences of wrongful acts incompatible
with the Charter. In such cases, there should be full restitution. The
traditional doctrine of acquisition of legal title by conquest has been
rejected as anachronistic and contrary to the Charter of the United
Nations.
The Declaration on the granting of independence to colonial countries

and people condemned all armed action or repressive measures directed
against people exercising their right to self-determination. There can
hardly be any question of peace between nations until such time as
policies which disregard the inherent right of people to forge their own
destiny are brought to an end. A number of international conflicts have
been due to the use of force against dependent people. The immediate
elimination of colonialism is essential, and any attempt to hold back the
grant of independence is unlawful. Article 2, paragraph 4, of the Charter
prohibits the use of armed force not only against states but also “in [...]
international relations”, and thus applies to colonial Powers which try to
crush communities struggling for their freedom and independence. The
illegality of the use of force against such peoples derives from the fact
that such action prevents the exercise of a legitimate right deriving from
the principle of equal rights and self-determination of peoples; from the
fact that the General Assembly has repeatedly proclaimed that the use of
force to deprive dependent peoples of their inalienable rights constitutes
a flagrant violation of the Charter of the United Nations and the
Declaration on the granting of independence to colonial countries and
peoples; and from the United Nations practice of opposing the idea that
the struggle of colonial peoples for their liberation — the most important
phenomenon of the modern age — should be regarded as a violation of
the prohibition of the use of force.
3.6 Principle of Freedom to Choose and Develop their Own

Internal Political System
This right is expressed most clearly in the General Assembly

Declaration on Principles of International Law concerning Friendly
of the United Nations. The Charter of the United Nations uses the term
“self-government” to describe this legal situation. The principle of equal
rights and self-determination of people comprises, for a people
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organised as an independent state, the right to take its own decisions

concerning its political, economic, social and cultural systems. All
people have the right to equip themselves with the political, economic
and social institutions of their choice, the right to decide their own
future, to choose their own form of government, to set their political
objectives, to construct their systems and to draw up their philosophical
programmes without any pressure, whether direct or indirect, internal or
external. It should be noted that this aspect of self-determination is not
of direct concern to international law, either in its essence or in its
operation.
Every state has the sole right to make decisions in this field, without any
external interference. This aspect of the principle covers, for every state,
a number of rights, namely: the right to adopt whatever political,
economic and social systems it sees fit; the right to adopt the legal
system it desires, whether of constitutional law, private international
law, administrative law or any other form of law, without any limitation
other than respect for human rights; the right to shape its foreign policy
as it deems necessary, including the right to conclude, modify and
denounce international treaties, without any restrictions other than those
imposed by the generally accepted rules of international law; and the
right to dispose freely of its national wealth and natural resources, in
accordance with its own interests.
Civil and political rights are proclaimed by both the Universal

Declaration of Human Rights and the International Covenant on Civil
and Political Rights, which has already entered into force. The
prohibition of discrimination based on criteria of race, color, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status, is of great importance in guaranteeing the
free exercise of the right to self-determination. There is a link and
mutual influence between civil and political rights on one hand, and
economic, social and cultural rights on the other; the two groups of
rights are closely connected, so that the absence of one makes
enjoyment of the other impossible. Recognition and full enjoyment of
economic, social and cultural rights is the only sure basis for
guaranteeing the exercise of civil and political rights, since civil and
political rights would be devoid of meaning if respect for economic,
social and cultural rights were not assured. The efforts of the
international community to establish a new international economic order
have once again shown how crucial and essential it is to guarantee for all
people the enjoyment of economic, social and cultural rights. The
exercise of civil and political rights is also an important factor in the
progressive development of conditions in which economic, social and
cultural rights may be fully realised, since without political rights there
73
is no guarantee that people will be able to live in conditions of freedom,

respect for the law and justice, in which it is possible fully to enjoy
economic, social and cultural rights.
There are certain aspects of economic, social and cultural rights which
affect the enjoyment of political rights. This is true of the right to work
and to equal remuneration for equal work; the right to form and join
trade unions; the right to education; and the right to participate in the
cultural life of the community. Full and equal enjoyment of these rights
is also indicative of non-discrimination in the exercise of civil and
political rights.
3.7 Principle of Freedom of the People to Pursue their Own

Economic Development
An essential element of the right of people to self-determination is the

right to pursue their economic development. This right is denned in
article 1 of the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights
which provide that, by virtue of their right of self-determination, all
peoples “freely pursue their economic development”, that they may, “for
their own ends, freely dispose of their natural wealth and resources”, and
that “In no case may a people be deprived of its own means of
subsistence”. Likewise, in resolution 3171 (XXVIII) of 17 December
1973, entitled “Permanent sovereignty over natural resources”, the
General Assembly reaffirmed “the inviolable principle that every
country has the right to adopt the economic and social system which it
deems most favorable to its development”. Furthermore, in the
Declaration on the Establishment of a New International Economic
Order (General Assembly resolution 3201 (S-VI) of 1 May 1974), one
of the principles on full respect for which the new international
economic order should be founded, is the following: (d) The right of
every country to adopt the economic and social system that it deems the
most appropriate for its own development and not to be subjected to
discrimination of any kind as a result.
In the Final Act of the first Session of the United Nations Conference on
Trade and Development, held in 1964, the participating states declared
themselves determined to achieve the high purposes embodied in the
United Nations Charter 'to promote social progress and better standards
of life in larger freedom'; to seek a better and more effective system of
international economic co-operation, whereby the division of the world
into areas of poverty and plenty may be banished and prosperity
achieved by all; and to find ways by which the human and material
resources of the world may be harnessed for the abolition of poverty
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everywhere. They asserted that: In an age when scientific progress has

put unprecedented abundance within man's reach, it is essential that the
flows of world trade should help to eliminate the wide economic
disparities among nations. The international community must combine
its efforts to ensure that all countries — regardless of size, of wealth, of
economic and social system — enjoy the benefits of international trade
for their economic development and social progress.
3.8 Principle of Peaceful Settlement of Disputes between and

among States
The Charter of the United Nations provides in its Chapter I (Purposes

and principles) that the Purposes of the United Nations are: “To
maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats
to the peace, and for the suppression of acts of aggression or other
breaches of the peace, and to bring about by peaceful means, and in
conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations which
might lead to a breach of the peace.”
The Charter also provides in the same Chapter that the Organisation and
its Members, in pursuit of the purposes stated in Article 1, shall act in
accordance with, among others, the following principle: “All Members
shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not
endangered” (Article 2, paragraph 3). It furthermore, in Chapter VI
(Pacific settlement of disputes), states that: “The parties to any dispute,
the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice.” (Article 33, paragraph 1)
The principle of the peaceful settlement of disputes has been reaffirmed

in a number of General Assembly resolutions, including resolutions
2627 (XXV) of 24 October 1970, 2734 (XXV) of 16 December 1970
and 40/9 of 8 November 1985. It is dealt with comprehensively in the
Declaration of Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter
of the United Nations (resolution 2625 (XXV), annex), in the section
entitled “The principle that States shall settle their international disputes
by peaceful means in such a manner that international peace and security
and justice are not endangered”, as well as in the Manila Declaration on
the Peaceful Settlement of International Disputes (resolution 37/10,
75
annex), in the Declaration on the Prevention and Removal of Disputes

and Situations Which May Threaten International Peace and Security
and on the Role of the United Nations in this field (resolution 43/51,
annex) and in the Declaration on Fact-finding by the United Nations in
the Field of the Maintenance of International Peace and Security
(resolution 46/59, annex).
The principle of the peaceful settlement of international disputes is

linked to various other principles of international law, including the
principle that States shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
purposes of the United Nations; the principle that states shall settle their
international disputes by peaceful means in such a manner that
international peace and security and justice are not endangered; the
principle concerning the duty not to intervene in matters within the
domestic jurisdiction of any state, in accordance with the Charter; the
duty of states to cooperate with one another in accordance with the
Charter; the principle of equal rights and self-determination of people;
the principle of sovereign equality of states; and the principle that states
shall fulfill in good faith the obligations assumed by them in accordance
with the Charter-are interrelated in their interpretation and application
and each principle should be construed in the context of other principles.
The links between the principle of peaceful settlement of disputes and
the other specific principles of international law are highlighted both in
the Friendly Relations Declaration and in the Manila Declaration, and
include inter alia:
Good Faith in International Relations
The Manila Declaration enunciates in its section I, paragraph 1, the duty

of states to “act in good faith”, with a view to avoiding disputes among
themselves likely to affect friendly relations among states. Other
references to good faith are to be found in paragraph 5, under which
good faith and a spirit of cooperation are to guide states in their search
for an early and equitable settlement of their disputes; in paragraph 11,
which provides that states shall in accordance with international law
implement in good faith all the provisions of agreements concluded by
them for the settlement of their disputes; in paragraph 2 of section II,
under which Member States shall fulfill in good faith the obligations
assumed by them in accordance with the Charter of the United Nations;
and in one of the concluding paragraphs of the Declaration, whereby the
General Assembly urges all States to observe and promote in good faith
the provisions of the Declaration in the peaceful settlement of their
international disputes.
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A provision similar to paragraph 5 of section I of the Manila Declaration

is to be found in the third paragraph of section V of the Declaration on
Principles Guiding Relations between Participating states contained in
the Final Act of the Conference on Security and Cooperation in Europe.
Write short notes on any six principles of international law of your

choice.
4.0 CONCLUSION
It is the duty of all States to refrain from any action aimed at the partial
or total disruption of the national unity and territorial integrity of another
country. Such behavior is incompatible with the purposes and principles
of the United Nations Charter. At the international level, state
sovereignty and self-determination are manifested by the independence
of states in foreign policy. Every state has the right to take part in
solving international problems and in formulating and amending the
rules of international law, to join international organisations and to
become a party to multilateral treaties of interest to it. Since the modern
world forms a single international community, international law is
universal in character. The old rules of international law must be
adapted to meet the needs of the modern community of states, or be
replaced by new rules. The new states have the right to play their part in
this process. Any attempt to frustrate the achievement of universality in
international life is incompatible with the United Nations Charter,
particularly as it affects the principles international law and the
sovereignty and rights of other states.
For effective interstate relations, states and other subjects of

international are expected to observe all the principles of international
law. This injunction is crucial to the extent that these principles are
interlocked. In order to achieve the primary aims and objectives of the
United Nations as regards global peace and security, these principles are
a necessity.
5.0 SUMMARY
In this unit, we have been able to deliberate on the principles of

international law. Compliance to these principles are said to be of
utmost importance for several reasons including the retention of World
peace and security. The justifications for and also the manner in which
these principles are interlinked were adequately clarified. For example,
77
the linkages between the principles of self determination and other

follow up principles are such that any delinking of their provisions will
certainly reduce the chances of making the most of the expected
outcomes. The role of the United Nations in all of the struggles geared
towards ensuring that member nations abide by these principles of
international law were equally discussed in details.
1. What are the expected merits for compliance with the principles
of international law?
2. What are the expected demerits for non compliance with the
principles of international law?
Barnett, R. E. (1978). “Toward A Theory of Legal Naturalism”. Journal

of Libertarian Studies, Vol. 2, No. 2, pp. 97-107.
Hart, H. L. A. (1961). The Concept of Law. Oxford: Oxford University

Press.
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UNIT 4 HUMAN RIGHTS
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 International Human Rights Law (IHRL)
3.2 Right to Culture and the International Covenant on Civil
and Political Rights
3.3 The Right to Self-Determination in Relation to Cultural
Development
3.4 Globalisation of Human Rights and the Third World
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
For the enjoyment of social order, citizens consider right as a legal or

moral claim or entitlement to certain benefits. Human rights are rights or
privileges conferred by law upon a person for self realisation and for
peace and harmony in general. They are those basic rights and freedoms
which a state accords to the citizens irrespective of race, sex, religious
and political affiliations. They are inalienable rights which every human
being is entitled to by virtue of the fact that she/he is a human being.
John Locke buttressed this claim when he asserted, in the 17th century,
that the power of the state should be such that liberty and freedoms are
granted to the citizens without any distinction.
In the Declaration of the Rights of Man (1789) issued by the National

Assembly during the French Revolution, the following categorical
statement is made: men are born, and always continue, free and equal in
respect of their rights’. A similar statement is found in the American
Declaration of Independence (1776): ‘We hold these to be self-evident,
that all men are created equal … Thus, several documents had embraced
and espoused the fundamental elements of human rights even before the
famous Universal Declaration of Human Rights in 1948. For example,
in Britain, some of core features of these rights were clearly spelt out in
the Bill of Rights and Magna Carta of 1815.
To a large extent, the UDHR of 1948 is an expression of the general

acceptance by countries of the world of the basic elements of human
rights. It emphatically stipulates those rights, which a citizen must have
79
in order to enjoy good life. It has been the practice of modern

governments to entrench these rights in the constitution for purposes of
certainty. The UDHR contains about 30 articles, which have been
categorised into six broad units:
Political Rights, which include the rights of the citizens to participate in

the affairs of the state. For example, the right to vote and to be voted for.
Civil Rights which include citizens rights to freedom of expression,
freedom of movement, etc.
Equality before the law, which provides for non discrimination against
anybody or group of people regardless of their social, economic, and
political status.
Economic Rights, which seeks to guarantee the welfare of the workers

through commensurate salaries and better working conditions.
Social Rights, which provides for citizens easy access to education,

health care and other social benefits.
Cultural Rights, which ensures that people’s rights to their identities and
traditions are protected.
Seven Core Freedoms of the UDHR
Besides the above categorisation, seven core freedoms are recognisable

in the UDHR. They include:
Dignity of Person: The first provision of the UDHR declares that the
recognition of and respect for human rights is the foundation of all
forms of justice. This declaration connotes that people should not be
subjected to any form of inhuman treatment. Dignity of persons is
considered as a natural right that belongs to every human being.
Freedom of Association/Assembly: Freedom of association implies that

citizens are allowed to form voluntary associations ranging from labour
organisations, religious organisations, social clubs, political parties, civil
society organisations, etc. This provision promotes the freedom of
expression because it affords the citizenry the opportunity to express
their minds and opinions with regards to issues that affect their common
existence.
Religious Freedom: In modern times, the right to following one’s own

religion and faith has become widely accepted, notwithstanding the
challenges. People are free to hold their own religious beliefs and to
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worship in whatever methods they deem right; without being compelled

to conform to any state religion. People are not to be sanctioned on
account of the ideas, philosophies or religion they hold.
Freedom of Speech: To a large extent, freedom of speech connotes the

absence of fear as people express themselves, including the right to
criticise the government, without being intimidated; though this must be
done within the provisions of the law. It involves the freedom to write,
speak or print whatever material that is available in order to express
one’s views on any matter of concern. This provision is very important
because any attempt to suppress people’s points of view would
undermine any claim to democracy. However, this freedom does not
suggest that people should speak or write with the hope of inciting
others against the government as this could cause social disorder.
Freedom from Discrimination: There are legal frameworks put in place

to ensure that one is not discriminated upon because of one’s place of
origin, one’s religion, one’s sex, one’s race, one’s social background,
etc. Rather, equality before the law is encouraged.
Freedom to Work and own Property: This connotes the right to be

gainfully employed in order to provide for one’s daily needs and also to
acquire property. When an individual rightfully and legally acquire
properties, nobody should deprive him/her of the opportunity to use and
enjoy such property. The government itself would pay some
compensations or rewards when it confiscates any property belonging to
anybody.
Freedom from Fear and Intimidation: This is part of the fundamental

pillars of personal liberty. For example, it implies that a person cannot
be subjected to arbitrary arrest, unlawful detention or imprisonment.
Unfortunately, many Nigerians are denied these rights because a lot of
people are sent to the prison when they had not been convicted in a court
of law. There are cases of people who are molested without any legal
justification. However, we must remark that there are provisions for
people to seek redress through the writ of Habeas Corpus, which
provides that a person shall not be detained for more than 24 hours
without bail.
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2.0 OBJECTIVES
• define and explain the concept Human Rights

• identify the important documents that preceded the Universal
Declaration of Human Rights
• explain the nitty-gritty of the International Human Rights Law
and their implications for the actualisation of the essence of
international law and those of international relations
• state the impacts of the international Human Rights Law on
states, which obviously are the most affected category as
international legal personality
• discuss the contributions of the United Nations in providing the
needed space to promote issues involved in human rights,
especially those of the civil, cultural, economic and political
rights.
3.0 MAIN CONTENT
3.1 International Human Rights Law (IHRL)
IHRL is a set of international rules, established by treaty or custom, on

the basis of which individuals and groups can expect and/or claim
certain behavior or benefits from governments. Human rights are
inherent entitlements which belong to every person as a consequence of
being human. Numerous non-treaty based principles and guidelines
(“soft law”) also belong to the body of international human rights
standards. IHRL lays down rules binding governments in their relations
with individuals. In spite controversies, there is a growing body of
opinion according to which non-state actors – particularly if they
exercise government-like functions – must also be expected to respect
human rights norms. The essence is to ensure that various international
actors, governmental and non-governmental actors, show greater
commitments to programmes designed to enhance the quality of rights
enjoyed by various persons across the world.
IHRL also contains provisions obliging states or governments to

implement its rules, whether immediately or progressively. They must
adopt a variety of legislative, administrative, judicial and other measures
that may be necessary to give effect to the rights provided for in the
treaties. This may include enacting criminal legislation to outlaw and
repress acts prohibited under IHRL treaties, or providing for a remedy
before domestic courts for violations of specific rights and ensuring that
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the remedy is effective. There other ways through which governments

could facilitate this task. It is expected that the governments should:
• Ensure that their national constitutions reflect the current position

on the UDHR. This is one way to facilitate the universality of the
provisions of the UDHR. In addition, other national laws should
be framed in such a way to show a sense of conformity with the
UDHR;
• Support individuals and groups that are genuinely devoted to the
task of promoting human rights programmes in their states;
• Establish agencies and public machineries that will be solely
responsible for the spreading of information relating the new
resolutions of the UDHR. This is important considering the fact
that there are emerging issues, which also touch on human rights
matters;
• Organise for local, national and international conferences in hope
of promoting human rights projects. Such conferences should be
organised at regular intervals;
• Create legal frameworks to address complaints on human rights
violations. Complaints relating to the abuse of human rights
should be investigated and thoroughly handled. Also those found
guilty should be adequately punished. This measure will certainly
serve as a deterrent to others who might be thinking of doing the
same; and
• Increase awareness on the advantages of respecting human rights
and also on the dangers of disregarding it.
The United Nations (UN) has since its inception, initiated several
programmes in support of efforts guarantee Human Rights to all. One
area of such support is on the right to participatory development in
international human rights law. The UN has, with various levels of
ratification by its members, proclaimed a human right to development.
Article 22 of the Universal Declaration of Human Rights (UDHR) states
that “[e]veryone, as a member of society… is entitled to the
realisation…of the economic, social and cultural rights indispensable for
his dignity and the free development of his personality.” In furtherance
of this responsibility, the General Assembly, in 1966, signed and
adopted two important resolutions - the International Covenant on
Economic, Social and Cultural Rights (ICESCR) and the International
Covenant on Civil and Political Rights (ICCPR).
Write a short note on what you understand by International Human

Rights Law.
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3.2 Right to Culture and the International Covenant on Civil

and Political Rights
Civil and political rights are proclaimed by both the Universal

Declaration of Human Rights and the International Covenant on Civil
and Political Rights. The prohibition of discrimination based on criteria
of race, color, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status, is of great importance in
guaranteeing the free exercise of the right to self-determination. There is
a link and mutual influence between civil and political rights on one
hand, and economic, social and cultural rights on the other; the two
groups of rights are closely connected, so that the absence of one makes
enjoyment of the other impossible. Recognition and full enjoyment of
economic, social and cultural rights is the only sure basis for
guaranteeing the exercise of civil and political rights, since civil and
political rights would be devoid of meaning if respect for economic,
social and cultural rights were not assured. The efforts of the
international community to establish a new international economic order
have once again shown how crucial and essential it is to guarantee for all
people the enjoyment of economic, social and cultural rights. The
exercise of civil and political rights is also an important factor in the
progressive development of conditions in which economic, social and
cultural rights may be fully realised, since without political rights there
is no guarantee that people will be able to live in conditions of freedom,
respect for the law and justice, in which it is possible fully to enjoy
economic, social and cultural rights. The ICESCR promotes the right to
development, with its emphasis on state obligation to provide certain
economic and social rights. It is generally believed that human rights
and development have a “fundamental two-way relationship,” so that the
two concepts are interconnected even if the latter concept is based on
positive rights.
On the other hand, there are certain aspects of economic, social and
cultural rights which affect the enjoyment of political rights. This is true
of the right to work and to equal remuneration for equal work; the right
to form and join trade unions; the right to education; and the right to
participate in the cultural life of the community. Full and equal
enjoyment of these rights is also indicative of non-discrimination in the
exercise of civil and political rights.
This is one aspect of international law that has continued to generate

controversies. International law has initiated diverse programmes
directed at the preservation of human rights, including the rights of the
minorities. According to Article 27 of the International Covenant on
Civil and Political Rights (ICCPR), members of “ethnic, religious, or
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linguistic minorities ... shall not be denied the right ... to enjoy their own
culture, to profess and practice their own religion, or to use their own
language and do all of these things both as individuals and as a group”.
UNESCO has defined the concept of culture as the distinctive traits,
including the total spiritual, material, intellectual and emotional traits
that characterise a society or social group, and that include, in addition
to arts and literature, their ways of life, the manner, in which they live
together, their value systems, and their traditions and beliefs.
The right to culture is fundamental for indigenous people, as their
cultures are distinct and threatened by the continuous pressure of
assimilation by the dominant society. The right to culture should give
indigenous people the right to conserve, adapt and even voluntarily
change their own culture. Combined with the right to land, the right to
culture gives the right to subsistence activities. A number of
international and regional human rights instruments make reference to
culture but indigenous cultural claims have not been fully
accommodated, and the implementation of cultural rights has been
somewhat neglected. Culture, in and of itself, has not often been
articulated as a free-standing human right; rather, it is commonly
understood as an underlying principal of human rights law with which
other rights overlap. The right to culture as an autonomous right is a
“synthesizer right” permeating all individual as well as collective rights.
It requires the fulfillment and effective exercise of all human rights; and,
reciprocally, their fulfillment is dependent upon the enforcement of
many other human rights.
Collective rights are ascribed to groups of people and can only be

claimed by the collective entity and its authorised agents. Both the
United Nations Declaration on the Rights of Indigenous Peoples and the
Inter-American Commission on Human Rights (IACHR) Draft
Declaration on Indigenous Rights as well as the ILO Convention No.
16940 acknowledge certain collective rights. For example, the UN
Declaration on the Rights of Indigenous Peoples establishes the
collective right to the protection of cultural property and identity in
addition to the rights to education and health. Article 1 of the
Declaration provides: “Indigenous peoples have the right to the full
enjoyment, as a collective or as individuals, of all human rights ... as
recognised in ... the Universal Declaration of Human Rights and
international human rights law”.
Recognition and full enjoyment of economic, social and cultural rights is

the only sure basis for guaranteeing the exercise of civil and political
rights. Is this true?
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3.3 The Right to Self-Determination in Relation to Cultural

Development
The Declaration of the Principles of International Cultural Co-operation,

proclaimed by the General Conference of UNESCO at its fourteenth
session, on 4 November 1966, contains certain principles concerning the
right of people to choose their cultural system and freely to pursue their
cultural development. In addition, the Declaration refers to the means of
implementing this right. The Special Rapporteur proposes to take these
principles as a basis for his study of this right, which derives from the
right to self-determination. The United Nations instruments quoted in
the preamble to the Declaration include the Universal Declaration of
Human Rights, the Declaration on the Granting of Independence to
Colonial Countries and People and the Declaration on the Promotion
among Youth of the Ideals of Peace, Mutual Respect and Understanding
between People. Taken as a whole, therefore, the Declaration of the
Principles of International Cultural Co-operation must be interpreted in
the particular light of the right to self-determination.
From the point of view of this study, the most important principles of
the Declaration of the Principles of International Cultural Co-operation
are the following:
(a) every people have the right and the duty to develop its culture; (b)
every culture has a dignity and value which must be respected and
preserved; (c) nations shall endeavor to develop the various branches of
culture side by side and, as far as possible, simultaneously, so as to
establish a harmonious balance between technical progress and the
intellectual and moral advancement of mankind; (d) in their cultural
relations, states shall bear in mind the principles of the United Nations.
Ever since the development of these foundational documents (the
UDHR, ICESCR, and ICCPR), which collectively form the basis of
what some call the International Bill of Rights, human rights issues have
progressively continued to evolve and accordingly, the United Nations
has not ceased in its plans and efforts to address emerging concepts that
accompany these human rights issues. Developments in this direction
could be viewed in their political contexts of both the Cold War and also
within the large-scale debates surrounding relations between the so-
called North (developed countries) and the South (developing countries).
As a general matter, where the United States supported negative rights
embodied in the ICCPR, the Soviet Union recognised positive rights
found in the ICESCR. During the same period, we witnessed the
emergence of two 1974 General Assembly Resolutions declaring and
purportedly establishing a program of action for the New International
Economic Order (NIEO). The NIEO among other pursuits sought to
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decrease the divide between the North and the South based on principles
of justice, equity, and reparation for past colonial harms. Needless to
say, the NIEO engendered great opposition among some developed
states.
On this same trend, the UN Commission on Human Rights and its Sub-
Commission on the Promotion and Protection of Human Rights were
abolished in June 2006, and replaced by a new successor organisation,
the UN Human Rights Council, as part of an ongoing reform process
within the UN. The Human Rights Council reports directly to the UN
General Assembly. The creation of the Human Rights Council is
intended to accord appropriate importance within the UN to human
rights by creating a higher status, Council level organisation, as for
security (Security Council) and development (Economic & Social
Council). All three concepts are central to the UN Charter; address a
perception that the Commission on Human Rights had become overly
politicised, ineffective and selective in its work; to make the Human
Rights Council a smaller standing body (that means, always working
rather than working during only one part of the year) with members
elected by all members of the General Assembly, taking into account the
candidate State’s contribution to the promotion and protection of human
rights and the need for equitable representation across the five UN
geographic regions; and establish a new system of universal periodic
review of the human rights performance of UN member states. In order
to ensure that human rights violators do not use the Human Rights
Council to evade international scrutiny, a member of the Council can
now be suspended on a two-thirds majority vote by the General
Assembly for gross and systematic violations of human rights. No
member may serve more than two consecutive terms.
How relevant is the right to self-determination to the development of

human rights?
3.4 Globalisation of Human Rights and the Third World
The idea of humanitarianism is framed by the discourse of human rights.

Its globalisation is a function of the belief that the realm of rights, albeit
a particular vision of rights, offers a cure for nearly all ills which afflict
third world countries and explains the recommendation of the mantra of
human rights to post-conflict societies. Few would deny that the
globalisation of human rights does offer an important basis for
advancing the cause of the poor and the marginal in third world
countries. Even the focus on civil and political rights is helpful in the
87
struggle against the harmful policies of the State and international

institutions. There is certain dialectic between civil and political rights
and democratic practice that can be denied at our own peril. But it is
equally true that the focus allows the pursuit of the neo-liberal agenda
by privileging private rights over social and economic rights. This belief
is strengthened by the fact that official international human rights
discourse eschews any discussion of the accountability of international
institutions while promoting policies with grave implications for both
the civil and political rights as well as the social and economic rights of
the poor.
In recent years, a particular form of State (the neo-liberal State) has

come to be touted as its only sensible and rational form. It has been the
ground for justifying the erosion of sovereignty though relocating it in
international institutions. What this has permitted is the privatisation and
internationalisation of collective national property. In order to
understand the on-going process, the state needs to be understood in two
different ways. First, ‘states are clearly institutions of territorial
property’. This has begun to change under the ideological onslaught
which declares that the internationalisation of property rights is the
surest way to bring welfare to third world people. Second, the state is to
be understood ‘as a social form, a form of social relations’. It allows the
debunking of the concept of “national interest” and the insight that the
third world ruling elite is actively collaborating with its first world
counterparts in entrenching the process of privatisation and
internationalisation of property rights in its own interest.
It is suggested that the post-colonial imaginary has been colonised

allowing the major organising principle of Western culture, that is ‘the
idea of infinite development as possibility, value and cultural goal’ to be
implanted in the poor world. The general idea here is to displace the
aspirations of third world people and scale down development to more
tolerable levels. This would help avoid the burden of sustainable
development from falling on the North and help sustain its high
consumption patterns. It is development through structural adjustment
programmes or neo-liberal policies that need to be indicted, rather than
the aspirations of the people to be able to exercise greater choices and a
higher standard of life.
Today, globalising international law, overlooking its history, and

abandoning the principle of differential treatment, legitimises itself
through the language of blame. The North seeks to occupy the moral
high ground through representing the third world people, in particular
African people, as incapable of governing themselves and thereby
hoping to rehabilitate the idea of imperialism. The inability to govern is
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projected as the root cause of frequent internal conflicts and the

accompanying violation of human rights necessitating humanitarian
assistance and intervention by the North.
It is therefore worth reminding ourselves that colonialism was justified

on the basis of humanitarian arguments (the civilising mission). It is no
different today. The contemporary discourse on humanitarianism not
only seeks to retrospectively justify colonialism but also to legitimise
increasing intrusiveness of the present era. Indeed, as we have observed
elsewhere, ‘humanitarianism is the ideology of hegemonic states in the
era of globalisation marked by the end of the Cold War and a growing
North-South divide.’ Overlooked in the process is the role played by
international economic and political structures and institutions in
perpetuating the dependency of third world peoples and in generating
conflict within them.
Of what use is the globalisation of human rights to the cause of the poor
and the marginal in third world countries?
4.0 CONCLUSION
Human rights talk has come to have a pervasive presence in

international relations. This development has been variously expressed:
‘a new ideal has triumphed on the world stage: human rights’; ‘human
rights discourse has become globalised’; ‘human rights could be seen as
one of the most globalised political values of our time’. Relatively,
modern states in general recognise civil equality and the granting of
human rights. Therefore, we all understand that no man is above the law
and no man is punishable except according to the constitution. The
equality of citizens before the law is secured above all by judicial
impartiality and also by the independence of the judiciary. Every citizen
is expected, in accordance with the provisions of the rule of law, to
enjoy some rights, which cannot be infringed upon by other individuals
or public institutions. Such rights must be entrenched in the constitution
as a guarantee of the rights. The rights of the citizens cannot be denied
except when there is a violation of the law or there is a threat to public
security especially during emergencies.
Nevertheless, it has become very expedient to warn that the forms and
dynamics of the globalisation of human rights require a deep-seated
reflection in order to optimise the original aims and visions of the
human rights discourse. Third Worlds are, from various points of view,
not favored in the current spate of globalisation of human rights.
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5.0 SUMMARY
We have examined in details the concept of human rights. We also

assessed some hitherto used documents, which portrayed the basic
tenets, ethics and etiquettes of and equally formed the platform upon
which the Universal Declaration of Human Rights was made. Some of
the documents include the American Declaration of Independence
(1776), the French Declaration of the Rights of Man (1789), the British
Bill of Rights and Magna Carta of 1815. Effort was made to explicate
the implications of the International Human Rights Law, especially on
the states. The obligations and duties that are placed upon states as a
result of the provisions are enormous. States are the major instruments
through which the demands of the UNDR would be realised. This unit
attempted to buttress the implications of the spate of globalisation of
human rights upon Third world states, which evidently are
disadvantaged in the process.
1. What roles are expected of states in relation to the application of

the provisions of the Universal Declaration of Human Rights?
2. How would you describe the place and position of the Third
Worlds in the ongoing process of globalisation of human rights?
3. Examine the processes that culminated into the declaration of
United Nations Human Rights in 1948.
Adeola, K. & Victoria, D. (2011). Civic Education for Senior Secondary

Schools. Lagos: SV Dayspring Publication Limited.
Alonge, F. K. (2005). Principles and Practices of Governing Men:

Nigeria and the Third World. Ibadan: University Press PLC.
Lidija Knuth, (2009). The Right to Adequate Food and Indigenous

People: How Can the
Right to Food Protect Indigenous People. Retrieved 18/12/11,
from http://www.fao.org/righttofood/publi09/ind_people.pdf
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MODULE 3 SOME INTERNATIONAL LAWS AND

THE ENVIRONMENT
Unit 1 Laws of War

Unit 2 Laws of the Sea
Unit 3 Air Space and Outer Space Law
Unit 4 International Environmental Protection Laws
UNIT 1 LAWS OF WAR
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Origins of Jus ad Bellum (Legitimate War)
3.2 The Historical Periods
3.2.1 The Just War Period
3.2.2 The Era of Christian Influence: Divine Justification
3.2.3 The War as Fact Period (1800-1918)
3.2.4 Jus Contra Bellum Period
3.2.5 Post World War II Period
3.3 Jus in Bello: Regulation of Conduct during War
3.4 United Nations and Legal Bases for the Use of Force
3.4.1 Historical Background
3.4.2 United Nations Charter and the Use of Force
3.4.3 The Law of War and the Banner of Sovereignty
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
History demonstrates that mankind has always sought to limit the effect
of conflict on the combatants and has come to regard war not as a state
of anarchy justifying infliction of unlimited suffering, but as an
unfortunate reality which must be governed by some rule of law. This
point is exemplified by Article 22 of the Hague Convention: “the right
of belligerents to adopt means of injuring the enemy is not unlimited,
and this rule does not lose its binding force in a case of necessity.”
That regulating the conduct of warfare is ironically essential to the

preservation of a civilised world was exemplified by General
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MacArthur, when in confirming the death sentence for Japanese General

Yamashita, he wrote: “The soldier, be he friend or foe, is charged with
the protection of the weak and unarmed. It is the very essence and
reason of his being. When he violates this sacred law, he not only
profanes his entire cult but threatens the fabric of international society.
The law of war is a body of international law intended to dictate the
conduct of state actors (combatants) during periods of conflict. It is the
customary and treaty law applicable to the conduct of warfare and to
relationships between belligerents and neutral states. It requires that
belligerents refrain from employing any kind or degree of violence
which is not actually necessary for military purposes and those they
conduct hostilities with regard for the principles of humanity and
chivalry. It is also referred to as the Law of Armed Conflict or
Humanitarian Law, though some object to the latter reference as it is
sometimes used to broaden the traditional content of the law of war.
The law of armed conflict is generally divided into two major

categories, Jus ad Bellum and Jus in Bello. Jus ad Bellum is the law
dealing with conflict management. It deals with laws regarding how
states initiate armed conflict - under what circumstances was the use of
military power legally and morally justified. On the other hand, Jus in
Bello is the law governing the actions of states once conflict has
started. It deals with the measure of legal and moral restraints, which
should apply to the conduct of waging war. Both categories of the law
of armed conflict have developed over time, drawing most of their
guiding principles from history.
2.0 OBJECTIVES
• state the difference between jus ad bellum (legitimate war) and

jus ad bello (illegitimate war)
• list the prerequisites for the declaration of a just war
• explain reasons that necessitated the formation of the United
Nations (especially the war dimension to the creation of the
United Nations)
• discuss the roles of the Security Council in the struggle to
maintain international peace and security.
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3.0 MAIN CONTENT
3.1 Origins of Jus Ad Bellum (Legitimate War)
Law became an early player in the historical development of warfare.

The earliest references to rules regarding war referred to the conditions
that justified resort to war legally and morally. Greeks began the
concept of Jus ad Bellum, wherein a city state was justified in resorting
to the use of force if a number of conditions existed (if the conditions
existed the conflict was blessed by the gods and was just). In the
absence of these conditions armed conflict was forbidden. Romans
formalised laws and procedures that made the use of force an act of last
resort. Rome dispatched envoys to the nations against whom they had
grievances, and attempted to resolve differences diplomatically. The
Romans also are credited with developing the requirement for declaring
war. Cicero wrote that war must be declared to be just. The ancient
Egyptians and Sumerians (2nd Millennium B.C.) generated rules
defining the circumstances under which war might be initiated. The
ancient Hittites required a formal exchange of letters and demands
before initiating war. In addition, no war could begin during planting
season.
What is spectacular about Greece as one of the precursors of the concept

of legitimate war?
3.2 The Historical Periods
3.2.1 The Just War Period
This period ranged from 335 B.C. to about 1800 A.D. The primary
tenant of the period was determination of a “just cause” as a condition
precedent to the use of military force. The law during this period
focused upon the first prong of the law of war given that the ‘just
conduct’ was valued over the ‘regulation of conduct’ (Jus ad Bellum). If
the reason for the use of force was considered to be just, whether the war
was prosecuted fairly and with humanity was not a significant issue. The
early beginning of the Just War was closely connected to self-defense.
Aristotle (335 B.C.) had written that war should only be employed to
prevent men becoming enslaved; to establish leadership which is in the
interests of the led; or to enable men to become masters of men who
naturally deserved to be enslaved. Cicero refined Aristotle's model by
stating that “the only excuse for going to war is that we may live in
peace unharmed ....”
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3.2.2 The Era of Christian Influence: Divine Justification
Early church leaders forbade Christians from employing force even in

self-defense. This position became less and less tenable with the
expansion of the Christian world. Church scholars had reconciled the
dictates of Christianity with the need to defend individuals and the state
by adopting a Jus ad Bellum position under which recourse to war was
just in certain circumstances (6th century A.D.). During the middle ages,
some modifications were effected. Saint Thomas Aquinas (12th century
A.D.), within his Summa Theological orientation, refined this “just war”
theory when he established the three conditions under which a just war
could be initiated:
a. with the authority of the sovereign;

b. with a just cause (to avenge a wrong or fight in self-defense); and
c. so long as the fray is entered into with pure intentions (for the
advancement of good over evil).
The key element of such an intention was to achieve peace. This was the
requisite “pure motive.” Saint Thomas Aquinas' work signaled a
transition of the Just War doctrine from a concept designed to explain
why Christians could bear arms (apologetic) towards the beginning of a
juristic model. The concept of “just war” was initially enunciated to
solve the moral dilemma posed by the adversity between the Gospel and
the reality of war. With the increase in the number of Christian nation-
states, this concept fostered an increasing concern with regulating war
for more practical reasons.
Progressively, the concept of just war was passed from the hands of the
theologians to the lawyers. Several great European jurists emerged to
document customary laws related to warfare. Hugo Grotius (1583-1645)
produced the most systematic and comprehensive work, On the Law of
War and Peace. His work is regarded as the starting point for the
development of the modem law of war. Grotius asserted a non-religious
basis for this law, in spite of the dominance of Christian values in the
popular narratives on the laws of war. According to Grotius, the law of
war was not based on divine law, but on recognition of the true natural
state of relations among nations. Thus, the law of war was based on
natural and not divine law.
By the time the next period emerged, the Just War Doctrine had
generated a widely recognised set of principles that represented the early
customary law of war. The most fundamental of these principles are:
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a. A decision to wage war can be reached only by legitimate

authority (those who rule, e.g. the sovereign).
b. A decision to resort to war must be based upon a need to right an
actual wrong, in self-defense, or to recover wrongfully seized
property.
c. The intention must be the advancement of good or the avoidance
of evil
d. In war, other than in self-defense, there must be a reasonable
prospect of victory.
e. Every effort must be made to resolve differences by peaceful
means, before resorting to force.
f. The innocent shall be immune from attack.
g. The amount of force used shall not be disproportionate to the
legitimate objective
3.2.3 The War as Fact Period (1800-1918)
Generally, this period saw the rise of the nation state as the principle
element used in foreign relations. These nation states transformed war
from a tool to achieve justice to something that was a legitimate tool to
use in pursuing national policy objectives. The concept of Just War was
gradually pushed aside. Natural or moral law principles replaced by
positivism that reflected the rights and privileges of the modem nation
state. Law is based not on some philosophical speculation, but on rules
emerging from the practice of states and international conventions.
Since each state is sovereign, and therefore entitled to wage war, there
is no international legal mandate, based on morality or nature, to
regulate resort to war. Real politik replaces justice as reason to go to
war. War is (based upon whatever reason) a legal and recognised right
of statehood. In short, if use of military force would help a nation state
achieve its policy objectives, then force may be used. This period was
dominated by the real politik of Clausewitz who characterised war as a
continuation of a national policy that is directed at some desired end.
Thus, a state steps from diplomacy to war, not always based upon a
need to correct an injustice, but as a logical and required progression to
achieve some policy end.
Following a number of occurrences and changes in the pattern of

warfare, certain significant developments signaled the beginning of the
next period “Treaty Period.” Based on the “positivist” view, the best
way to reduce the uncertainty attendant with conflict was to codify rules
regulating this area. Intellectual focus began to shift toward minimising
resort to war and/or mitigating the consequences of war.
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3.2.4 Jus Contra Bellum Period
World War I represented a significant challenge to the validity of the

“war as fact” theory. In spite of the moral outrage directed towards the
aggressors of that war, legal scholars unanimously rejected any assertion
that initiation of the war constituted a breach of international law
whereas world leaders struggled to give meaning to a war of
unprecedented carnage and destruction. The “war to end all wars”
sentiment manifested itself in a shift in intellectual direction leading to
the conclusion that aggressive use of force must be outlawed.
Prior to this period, the Hague Conferences (1899- 1907) had produced
the Hague Conventions, which represented the last multilateral law that
recognised war as a legitimate device of national policy. While Hague
law concentrated on war avoidance and limitation of suffering during
war, this period saw a shift toward an absolute renunciation of
aggressive war. Furthermore, the League of Nations became unique
being the first time in history that nations agreed upon an obligation
under the law not to resort to war to resolve disputes or to secure
national policy goals. The League was set up as a component to the
Treaty of Versailles, largely because President Wilson felt that the
procedural mechanisms put in place by the Covenant of the League of
Nations would force delay upon nations bent on war. During these
periods of delay peaceful means of conflict management could be
brought to bear. The eighth Assembly of League of Nations banned
aggressive war. However, the League did not attempt to enforce this
duty (except as to Japan's invasion of Manchuria in 1931).
The Kellogg-Briand Pact (of 1928), officially referred to as the Treaty

for the Renunciation of War, banned aggressive war. This is the point in
time generally thought of as the “quantum leap.” For the first time,
aggressive war is clearly and categorically banned. In contradistinction
from the post WW I period, this treaty established an international legal
basis for the post WW II prosecution of those responsible for waging
aggressive war. In spite of the dynamics of international conflicts, this
treaty remains in force today. Virtually all commentators agree that the
provisions of the treaty banning aggressive war have ripened into
customary international law. It is noteworthy to mention that the use of
force in self-defense has remained unregulated. No law has ever
purported to deny a sovereign the right to defend itself. Some
commentators stated that the use of force in the defense is not war. Thus,
war has been banned altogether.
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3.2.5 Post World War II Period
Evidently, the procedural requirements of the Hague Conventions did

not prevent World War I; just as the procedural requirements of the
League of Nations and the Kellogg-Briand Pact did not prevent World
War II. World powers recognised the need for a world body with greater
power to prevent war. Consequently, international law began to provide
more specific protections for the victims of war. There was the Post-
WWII War Crimes Trials (Nuremberg, Tokyo, and Manila Tribunals).
Thus the trials of those who violated international law during World
War II demonstrated that another quantum leap had occurred since
World War I.
This period strongly ushered in the era of universality and established

the principle that all nations are bound by the law of war based on the
theory that law of war conventions largely reflect customary
international law. The world began to focus on ex post facto problem
during prosecution of war crimes. The universal nature of law of war
prohibitions, and the recognition that they were at the core of
international legal values (Gus Cogens), resulted in the legitimate
application of those laws to those tried for violations.
In another dimension, the United Nations Charter, besides the shift

towards outright ban on war, also extended the ban through Article 2(4)
to the threat of use of force. At the early period of the Charter, that is,
immediately after the negotiation of the Charter in 1945, many nations
and commentators assumed that the absolute language in the Charter's
provisions permitted the use of force only if a nation had already
suffered an armed attack. More so, in the contemporary period, most
nations have come to accept that a nation's ability to defend itself is
much more expansive than the provisions of the Charter seem to permit
based upon a literal reading. This view is based on the conclusion that
the inherent right of self-defense under customary international law was
supplemented, and not displaced by the Charter. However, this remains
a controversial issue. In all, we observe that the Jus ad Bellum has
continued to evolve. Current doctrines such as anticipatory self- defense
and preemption are adapted to meet today's circumstances.
3.3 Jus in Bello: Regulation of Conduct during War
The second body of law that began to develop dealt with rules that
control conduct during the prosecution of a war to ensure that it is legal
and moral. A review of the law of war beginning from the early periods
is important. In 4th century B.C Ancient China, Sun Tzu's in The Art of
War had set out a number of rules that controlled what soldiers were
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permitted to do during war. For example, he stated that captives must be

treated well and cared for; and that natives within captured cities must
be spared and women and children respected. Other references include
the Ancient India during the 4th century B.C. The Hindu civilisation
produced a body of rules codified in the Book of Manu that regulated in
great detail land warfare; the Ancient Babylon in the 7th century B.C.
The ancient Babylonians treated both captured soldiers and civilians
with respect in accordance with well- established rules.
As it were, Jus in Bello received little attention until late in the Just War
period. This led to the emergence of a Chivalric Code. The chivalric
rules of fair play and good treatment only applied if the cause of war
was “just” from the beginning. Other provisions made included that
Victors were entitled to spoils of war, only if war was just; forces
prosecuting an unjust war were not entitled to demand Jus in Bello
during the course of the conflict; Red Banner signaled a party's intent to
wage absolute war;
During the War as Fact period, the focus began to change from Jus ad
Bellum to Jus in Bello also. With war as a recognised and legal reality in
the relations between nations, the focus on mitigating the impact of war
emerged. Memory of Solferino work served as the impetus for the
creation of the International Committee of the Red Cross and the
negotiation of the First Geneva Convention in 1864. Sherman’s work on
“War is Hell” was also concerned with the morality of war. His
observation that war is hell demonstrates the emergence and
reintroduction of morality. However, as his March to the Sea
demonstrated, Sherman only thought the right to resort to war should be
regulated. Once war had begun, he felt it had no natural or legal limits.
In other words he only recognised the first prong (Jus ad Bellum) of the
law of war. At the end of this period, the major nations held the Hague
Conferences (1 899-1907) that produced the Hague Conventions. While
some Hague law focused on war avoidance, the majority of the law dealt
with limitation of suffering during war.
Basically, the Law of The Hague governs the use of military force and
focuses on the behavior and rights of COMBATANTS. But the Law of
Geneva is concerned with the principle of humanity, and the protection
of civilians and other non-combatants, but also regulates and protects
combatants in various ways. The law as a whole seeks to balance respect
for human life in armed conflict against military necessity. The Geneva
Conventions, which are often discussed, provide a codified source of
what has come to be known as international humanitarian law, or
‘Geneva’ law 25. They are the result of a process that developed in a
number of stages between 1864 and 1949 which focused on the
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protection of civilians and those combatants who can no longer fight in

an armed conflict. In 1977, two additional Protocols to the Geneva
Conventions were opened for ratification. They clarify the status of
civilians in international conflict and importantly, in conflicts that are
not international, for example, in civil war, or armed insurgency against
a government.
The Geneva Conventions (1949) introduced certain provisions, which

clarified previous ambiguities. Article 2 asserts that the law of war
applies in any instance of international armed conflict. Its conventions
made a comprehensive effort to protect the victims of war. There was
the birth of ‘Civilian's Convention’, which was post war recognition of
the need to specifically address this class of individuals. The Convention
also made to internationalise its provisions since the conventions are
considered as customary international law. This means even if a
particular nation has not ratified the treaties, that nation is still bound by
the principles within each of the four treaties because they are merely a
reflection of customary law that all nations states are already bound by.
It marked a clear shift towards a true humanitarian motivation: the
Conventions are coming to be regarded less and less as contracts on a
basis of reciprocity concluded in the national interest of each of the
parties, and more and more as solemn affirmations of principles
respected for their own sake.
Outline the significance of each epoch in the evolution of the legitimate

war.
3.4 United Nations and Legal Bases for the Use of Force
3.4.1 Historical Background
Chronologically, as we have established, each historical era had its

convention on the conduct of warfare. The law of war has evolved to its
present content over millennia based on the actions and beliefs of
nations. It is deeply rooted in history and an understanding of this
history is necessary to understand current law of war principles.
Between 335 B.C. and 1800, the Just War Theory introduced a
moral/philosophical approach that approved of a resort to force if the
cause was just. From 1800 to 1918, State Sovereignty (“War as Fact”
Era) allowed for the use of war as an instrument of national policy.
Sovereign states were free to employ force as a normal element of their
foreign relations. Early attempts to regulate the resort to force at the
level of international law began at Hague (1899 and 1907) with a
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recommendation for the declaration of war. The League of Nations

(1919) attempted the collective security system. The Kellogg-Briand
Pact (1928) renounced recourse to war. Further shifts on the rules of
warfare were observed in the Post World War ll period. Nuremburg
Charter, Article 6 listed a number of crimes corning within the
jurisdiction of the Tribunal for which there shall be individual
responsibility. Such crimes, which were characterised as CRIMES
AGAINST PEACE included planning, preparation, initiation or waging
a war of aggression, or a war in violation of international treaties,
agreements or assurances, or participation in a common plan or
conspiracy for the accomplishment of any of the foregoing.
3.4.2 The United Nations Charter and the Use of Force
A. United Nations Charter provides:
Article 2(3) provides that “All Members shall settle their international
disputes by peaceful means in such a manner that international peace
and security, and justice, are not endangered”. This provision has not
been relied upon independent of those instances in which Article 2(4) is
applicable. In other words, leaving a dispute unsettled, without the use
or threat of force, has not been claimed to be a violation of Article 2(3).
Article 2(4). “All members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations”. This item has become the basic
provision restricting the use of force among states. The article clearly
noted that if an attack is not against the “territorial integrity or political
independence” of another state, it is not a violation of Article 2(4). In
other words if an attackers goal is not to seize territory or overthrow the
government, then the attack does not violate Article 2(4).
Chapter VII addresses actions with respect to threats to the peace,

breaches of the peace, and acts of aggression.
1. This Chapter gives the Security Council the power to employ

non-military or military measures to restore or maintain
international peace and security.
2. Article 39: “The Security Council shall determine the existence
of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security”.
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The General Assembly Resolution 33144 recommended to the Security

Council a definition of ‘aggression’. … the use of armed force by a state
against the sovereignty, territorial integrity, or political independence of
any state, or in any other manner inconsistent with the purposes of the
United Nations’. Acts constituting acts of aggression include blockade,
land, sea or air strike, etc.
Article 41: Authorises measures short of use of armed force1military

intervention and allows the Security Council to call upon all Members to
apply such measures. Includes, but is not limited to, “complete or partial
interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.” Article 42 authorises “such action by
air, sea, or land forces as may be necessary to maintain or restore
international peace and security”, including “demonstrations, blockades,
and other operations by air, sea or land forces, by Members of the
United Nations”. Article 43 provides for special agreements between
Members and the U.N. to provide armed forces, assistance, and facilities
necessary for the purpose of maintaining international peace and
security.
Chapter VIII extensively provided for regional arrangements for the

settlement of local disputes. Article 52 recognises the existence of
regional organisations (e.g., Organisation of American States, Arab
League, Organisation of African Unity), and encourages the resolution
of local disputes through such arrangements. Article 53 urges the
Security Council to utilise regional arrangements for enforcement
actions; regional organisations may not undertake enforcement actions
without Security Council authorisation.
To cover up for possible lapses arising from lack of agreement among

the members of the Security Council, the General Assembly Resolution
337(V) on “Uniting for Peace” declares:
“. . . if the Security Council, because of a lack of unanimity of the

permanent members, fails to exercise its primary responsibility for
the maintenance of international peace and security in any case
where there appears to be a threat to the peace, breach of the peace,
or act of aggression, the General Assembly shall consider the matter
immediately with a view to making appropriate recommendations to
Members for collective measures, including in the case of a breach
of the peace or act of aggression the use of armed force when
necessary, to maintain or restore international peace and security.”
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Example of Cases where the Use of Force became applicable include:

the 1990 Iraq (Desert Storm) invasion of Kuwait. Under the UNSCR
660, the Security Council determined that there was a breach of the
peace by the Iraqi invasion of Kuwait. Further resolutions were also
made to ensure the restoration of peace in that region. In 1994, the
attention was on Haiti. UNSCR 940 authorised states to use all
necessary means to facilitate the departure from Haiti of the military
leadership, which had generated lots of controversy and also to effect
the prompt handover to the legitimately elected President.
Identify and explain the principal aims and objectives of the United
Nations with regards to the Laws of War.
3.4.3 The Law of War and the Banner of Sovereignty
Generally, the concept of sovereignty protects a state from “outside

interference with internal affairs.” This is exemplified by the
predominant role of domestic law in internal affairs. However, in some
circumstances, international law “pierces the shield of sovereignty, and
displaces domestic law from its exclusive control over issues. The law
of war is also applicable but only after the requirements for piercing the
shield of sovereignty has been satisfied. Once the conditions are met, it
therefore intrudes upon the sovereignty of the regulated state. The extent
of this intrusion will be contingent upon the nature of the conflict.
Despite the nature of the conflict, the law of war includes a standard for
when it becomes applicable. This standard is reflected in the Four
Geneva Conventions.
Article 2 of the Convention identifies that: “[The present Convention

shall apply to all cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting Parties,
even if the state of war is not recognised by one of them.” This is a true
clefacto standard. The subjective intent of the belligerents is irrelevant.
The law of war applies to: “any difference arising between two states
and leading to the intervention of armed forces”.' Thus, Article 2
effectively requires that the law be applied broadly and automatically
from the inception of the conflict. The following two facts result in
application of the entire body of the law of war:
At what point and circumstance do you think that the international law
could pierce through the shield of sovereignty and subsequently
undermine domestic laws?
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4.0 CONCLUSION
Those who believe in the progress and perfectibility of human nature

may continue to hope that at some future point reason will prevail and
all international disputes will be resolved by non violent means. Unless
and until that occurs, our best thinkers must continue to pursue the
moral issues related to war. Those who romanticise war do not do
mankind a service; those who ignore it abdicate responsibility for the
future of mankind, a responsibility we all share even if we do not choose
to do so. The best to do would be to stay ready for war and yet do all
within reach to ensure that we preclude war, since war does not actually
favour mankind. War, including threats to the use of force, is a reality
and must therefore be integrated into national plans. History is replete
with diplomacies to prevent wars, the failures of diplomacy to prevent
wars, the actual conduct of war, and also with efforts directed at
establishing lasting peace and order. Thus, the understanding of the war
cycle will evolve a better preparation for a relative global peace.
With special attention on laws of war, the importance of regulation

cannot be overemphasised. Among others it motivates the enemy to
observe the same rules; motivates the enemy to surrender; guards
against acts that violate basic tenets of civilisation; protects against
unnecessary suffering; safeguards certain fundamental human rights;
provides advance notice of the accepted limits of warfare; reduces
aggression and makes identification of violations more efficient; helps
restore peace; etc.
Since 1945, the United Nations has made a lot of effort to prevent
situations that could lead to the disruption of world peace and security.
The principle of the peaceful settlement of disputes has been reaffirmed
in a number of General Assembly resolutions, including resolutions
2627 (XXV) of 24 October 1970, 2734 (XXV) of 16 December 1970
and 40/9 of 8 November 1985. It is dealt with comprehensively in the
Declaration of Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter
of the United Nations (resolution 2625 (XXV), annex), in the section
entitled “The principle that states shall settle their international disputes
by peaceful means in such a manner that international peace and security
and justice are not endangered”, as well as in the Manila Declaration on
the Peaceful Settlement of International Disputes (resolution 37/10,
annex), in the Declaration on the Prevention and Removal of Disputes
and Situations which may threaten International Peace and Security and
on the Role of the United Nations in this field (resolution 43/51, annex)
and in the Declaration on Fact-finding by the United Nations in the field
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of the maintenance of International Peace and Security (resolution

46/59, annex).
In spite of the above efforts by the United Nations, there is the need to
emphasise that the Laws of War should be strengthened to ensure that
some nations are not above the provisions therein. The various clauses
and resolutions of the Security Council should be thoroughly observed
in a manner that no Big Nation will influence the choices of other
nations in the hope to achieving specific national interests as against the
broad interest of the entire globe.
5.0 SUMMARY
This section has thoroughly surveyed the Laws of War from historical
times. The stage by stage progression of the Laws of War and the
peculiar characteristics of each epoch were adequately treated in this
unit. The operations of the jus ad bellum and the jus ad bello at each
point in the history of war. Chronologically, we examined the just war
period, the era of divine justification under the Papacy, the war as a fact
period, the jus contra bellum period, the Post World War II period and
the periods beyond the jus ad bello period. Of significant attention was
the shift from the period of war as a fact, which inaugurated the jus ad
bello period.
This unit equally gave special focus on the works of the United Nations
in its pursuit of world peace and security. It recorded the failures of
previous conventions (the Hague Conventions, the League of Nations,
and the Kellogg-Briand Pact) which sought to prevent world wars. The
activities of the Security Council and the General Assembly in the
pursuit of global peace are viewed as the hope of today’s international
system to actualise the vision of world security, which is first and
foremost anchored on the ban of war, the use of the principle of peaceful
settlement and also the ban of threat of use of force.
1. In the history of Laws of War, what are the main characteristics

of the jus ad bello period?
2. The relative global peace and security in our contemporary
international system are significantly anchored on the initiatives
and operations of the United Nations Security Council’s. Do you
believe this assertion?
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Michael N. S. (2010). “Military Necessity and Humanity in International

Humanitarian Law: Preserving the Delicate Balance”. Virginia
Journal Of International Law, Vol.50 Issue 4.

Russell, F. H. (1975). The Just War in the Middle Ages. Cambridge:

Tuck, R. (1999). The Rights of War and Peace: Political Thought and
the International Order from Grotius to Kant. Oxford: Oxford
University Press.
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UNIT 2 LAWS OF THE SEA
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Emergence of the Law of the Sea
3.2 United Nations Conference on Laws of the Sea
(UNCLOS)
3.3 Part XI and United State’s Interest
4.0 Conclusion
5.0 Summary
7.0 Reference/Further Reading
1.0 INTRODUCTION
The oceans have long been a critical arena for international relations.
Before there was air travel and instantaneous communication, people,
goods, and ideas travelled the world by ship. For centuries a strong
maritime presence—both military and commercial—has been essential
for states with great power aspirations. Today, even with advances in
technology, seaborne commerce remains the linchpin of the global
economy. As the International Maritime Organisation reports, “more
than 90 percent of global trade is carried by sea.” And beyond trade, a
host of other issues, ranging from climate change and energy to defense
and piracy, ensure that the oceans will hold considerable strategic
interest well into the future.
One of the principal functions of the law of the sea is to balance the
competing interests arising from different uses of the sea, such as
navigation, fishing, scientific research and waste disposal. The law of
the sea has developed from customary international law and
international conventions, some of which codify customary international
law. The principal conventions are the four conventions developed at the
First UN Conference on the Law of the Sea in 1958 and the UN
Convention on the Law of the Sea 1982 (UNCLOS), which entered into
force in 1994. By the time it entered into force, many of its provisions
had achieved sufficient acceptance to be regarded as principles of
customary international law.
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2.0 OBJECTIVES
• state the rationale behind the earlier concept of Freedom of the

Seas
• explain the main activities that marked the 1967 Declaration of
Principles Governing the Seabed and Ocean Floor Beyond the
Limits of National Jurisdiction
• highlight the major discourses and relevance of the United
Nations Conference on Laws of the Sea I, II, and III
• state the reasons why the United States’ refused to accept the Part
XI of the UNCLOS III.
3.0 MAIN CONTENT
3.1 Emergence of the Law of the Sea
Creating an international ocean governance framework has its roots in

sixteenth-century European imperialism. As states increasingly
competed for trade routes and territory, two theories of ocean use
collided head-on. On one side, Spain and Portugal claimed national
ownership of vast areas of ocean space, including the Gulf of Mexico
and the entire Atlantic Ocean, which the Catholic Church declared
should be divided between them. Opposed to this were the proponents of
“freedom of the seas,” a theory of vital concern to the great trading firms
like the Dutch East India Company. Since no nation could really enforce
claims to such enormous areas, and given the need of all the rising
colonial powers to have assured access to their overseas territories, it is
not surprising that the proponents of freedom of the seas, the foremost of
whom was the Dutch jurist Hugo Grotius, emerged triumphant. That
concept became the basis of modern ocean law. Over the next three
centuries, the concept of freedom of the seas became almost universally
accepted, subject only to the exception that in an area extending three
miles from the shoreline, or roughly the range of iron cannons of the
day, the coastal state was sovereign. Its control, however, was not
absolute. Vessels of other countries were given the right of passage
through the territorial sea so long as such passage was “innocent”—that
is to say, “not prejudicial to the peace, good order or security of the
coastal state.” The nineteenth century witnessed a steady increase in
ocean commerce, and freedom of the seas came to be qualified by the
concept of “reasonable” use—basically, respect for the rights of others.
It was during the twentieth century, with its discoveries of important
resources, such as oil, and a sharp rise in ocean uses generally, that the
accepted principles began to erode. Customary law, dependent on slow,
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incremental growth, could no longer move fast enough to provide

generally acceptable solutions to new problems. Traditional uses
multiplied. Both the world fish catch and the gross tonnage of merchant
ships quadrupled in the twenty-five years from 1950 to 1975. However,
the real spur to the seaward expansion of territorial claims had come a
decade earlier with the discovery of oil under the continental shelf off
the coast of the United States. That led President Harry S. Truman in
1945 to proclaim that henceforth the United States had the exclusive
right to explore and exploit the mineral resources of its continental shelf
beyond the traditional three-mile limit. Unilateral extensions were also
of growing concern to the world’s major maritime powers, particularly
the United States and the Soviet Union. As more and more coastal states
started claiming territorial seas broader than three miles (in several
cases, as much as twelve miles, but in some, particularly in Latin
America, far beyond), the maritime nations feared that their freedom of
navigation on, over, and under critical portions of the world’s oceans
might be severely curtailed. They were particularly concerned that they
would lose their high-seas freedoms in the 116 straits, including those of
Malacca, Dover, Gibraltar, and Hormuz, that, at their narrowest point,
were more than six miles but less than twenty-four miles in width. If
these 116 straits became territorial seas, the rules of innocent passage
would require, for example, that submarines operate on the surface, not
submerged, and that over flight by aircraft be prohibited without the
prior consent of the coastal state.
The maritime nations did their best but failed to cap these extensions in
two UN conferences—the first in 1958, and the second in 1960—the
results of which were never widely accepted. By the mid-1960s, they
were eager to try again, and they lent their weight to the growing calls
for a new UN conference on the law of the sea. Their calls were not the
only ones. Many developing nations in the Third World were concerned
about preserving international rights to non-living resources beyond the
limits of national jurisdiction. In 1967, these concerns were crystallised
in a remarkable speech before the General Assembly by Arvid Pardo,
then the Maltese delegate. Pardo was viewed sympathetically throughout
much of the world when he asked the UN to declare the seabed and the
ocean floor “underlying the seas beyond the limits of present national
jurisdiction” to be “the common heritage of mankind” and not subject to
appropriation by any nation for its sole use. Their calls were not the only
ones. Many developing nations in the Third World were concerned
about preserving international rights to non-living resources beyond the
limits of national jurisdiction. He urged the creation of a new kind of
international agency that, acting as trustee for all countries, would
assume jurisdiction over the seabed and supervise the development and
recovery of its resources “for the benefit of all mankind,” with the net
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proceeds to be used primarily to promote the development of the poorer

countries of the world.
Developing countries liked the idea for several reasons. First, since the
value of the resources was then believed to be considerable, some
thought it would lead to substantial development assistance for the
poorest countries. Second, it gave developing countries a chance to
become partners in, rather than subjects of, resource development.
Developed countries also liked the prospect of a source of development
funds that, for once, would not be a direct drain on their treasuries. The
major maritime countries also saw the idea as the natural vehicle to
finally provide a counterweight to the seaward expansion of coastal state
jurisdictions.
Whatever the motive, the concept of the common heritage was

embodied in a “Declaration of Principles Governing the Sea-bed and
Ocean Floor Beyond the Limits of National Jurisdiction,” which was
adopted by the General Assembly by a vote of 106–0, with the United
States voting in favour and only the Soviet bloc abstaining. The
declaration called for the establishment of a new regime to oversee
management of this area and to ensure the equitable sharing of benefits,
with specific reference to the needs of developing countries. A
companion resolution called for the convening in 1973 of a
comprehensive conference to cover all ocean issues on the international
agenda.
Discuss the origin of the Laws of the Sea.
3.2 United Nations Conference on Laws of the Sea

(UNCLOS)
UNCLOS, also called the Law of the Sea Convention or the Law of the
Sea treaty, thus became the international agreement that resulted from
the third United Nations Conference on the Law of the Sea (UNCLOS
III), which took place from 1973 through 1982. It was the largest
international conference ever held, with virtually every country in the
world represented, many of them relatively new and with no prior
experience in dealing with ocean issues. There was even a subgroup to
look after the interests of fifty-one landlocked or geographically
disadvantaged states. In essence, the conference was charged with the
formidable task of creating a comprehensive framework for managing
ocean uses that would be acceptable to the international community.
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The Law of the Sea Convention defines the rights and responsibilities of
nations in their use of the world's oceans, establishing guidelines for
businesses, the environment, and the management of marine natural
resources. The Convention, concluded in 1982, replaced four 1958
UNCLOS 1 treaties. We will recall that in 1956, the United Nations had
held its first Conference on the Law of the Sea (UNCLOS 1) at Geneva,
Switzerland. Subsequently, UNCLOS I resulted in four treaties
concluded in 1958:
• Convention on the Territorial Sea and Contiguous Zone, entry

into force: 10 September 1964.
• Convention on the Continental Shelf, entry into force: 10 June
1964.
• Convention on the High Seas, entry into force: 30 September
1962.
• Convention on Fishing and Conservation of Living Resources of
the High Seas, entry into force: 20 March 1966.
Although UNCLOS I was considered a success, it left open the

important issue of breadth of territorial waters.
In 1960, the United Nations held the second Conference on the Law of
the Sea (“UNCLOS II”); however, the six-week Geneva conference did
not result in any new agreements. Generally speaking, developing
nations and third world countries participated only as clients, allies, or
dependents of United States or the Soviet Union, with no significant
voice of their own.
UNCLOS III came into force in 1994; a year after Guyana became the
60th state to sign the treaty. The convention introduced a number of
provisions. The most significant issues covered were setting limits,
navigation, archipelagic status and transit regimes, exclusive economic
zones (EEZs), continental shelf jurisdiction, deep seabed mining, the
exploitation regime, protection of the marine environment, scientific
research, and settlement of disputes.
The convention set the limit of various areas, measured from a carefully
defined baseline. (Normally, a sea baseline follows the low-water line,
but when the coastline is deeply indented, has fringing islands or is
highly unstable, straight baselines may be used.) The areas are as
follows:
Archipelagic Waters: The convention set the definition of Archipelagic

States in Part IV, which also defines how the state can draw its territorial
borders. A baseline is drawn between the outermost points of the
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outermost islands, subject to these points being sufficiently close to one

another. All waters inside this baseline are designated Archipelagic
Waters. The state has full sovereignty over these waters (like internal
waters), but foreign vessels have right of innocent passage through
archipelagic waters (like territorial waters).
Contiguous Zone: Beyond the 12 nautical mile limit, there is a further

12 nautical miles from the territorial sea baseline limit, the contiguous
zone, in which a state can continue to enforce laws in four specific
areas: customs, taxation, immigration, and pollution, if the infringement
started within the state's territory or territorial waters, or if this
infringement is about to occur within the state's territory or territorial
waters. This makes the contiguous zone a hot pursuit area.
Exclusive Economic Zones (EEZs): These extend from the edge of the
territorial sea out to 200 nautical miles (370 kilometres; 230 miles) from
the baseline. Within this area, the coastal nation has sole exploitation
rights over all natural resources. In casual use, the term may include the
territorial sea and even the continental shelf. The EEZs were introduced
to halt the increasingly heated clashes over fishing rights, although oil
was also becoming important. The success of an offshore oil platform in
the Gulf of Mexico in 1947 was soon repeated elsewhere in the world,
and by 1970 it was technically feasible to operate in waters 4000 meters
deep. Foreign nations have the freedom of navigation and over flight,
subject to the regulation of the coastal states. Foreign states may also lay
submarine pipes and cables.
Continental Shelf: Baseline, whichever is greater. A state’s continental

shelf may exceed 200 nautical miles until the natural prolongation ends.
However, it may never exceed 350 nautical miles (650 kilometres; 400
miles) from the baseline; or it may never exceed 100 nautical miles (190
kilometres; 120 miles) beyond the 2,500 meter isobaths (the line
connecting the depth of 2,500 meters). Coastal states have the right to
harvest mineral and non-living material in the subsoil of its continental
shelf, to the exclusion of others. Coastal states also have exclusive
control over living resources “attached” to the continental shelf, but not
to creatures living in the water column beyond the exclusive economic
zone.
Aside from its provisions defining ocean boundaries, the convention

establishes general obligations for safeguarding the marine environment
and protecting freedom of scientific research on the high seas, and also
creates an innovative legal regime for controlling mineral resource
exploitation in deep seabed areas beyond national jurisdiction, through
an International Seabed Authority and the Common heritage of mankind
111
principle. Landlocked states are given a right of access to and from the
sea, without taxation of traffic through transit states.
What were the major landmarks of the UNCLOS that distinguished it

from the previous frameworks put in place to guarantee peace and order
on the seas?
3.3 Part XI and United State’s Interest
Part XI of the UNCLOS III provides for a regime relating to minerals on

the seabed outside any state's territorial waters or EEZ (Exclusive
Economic Zones). It established an International Seabed Authority
(ISA) to authorise seabed exploration and mining and collect and
distribute the seabed mining royalty. However, the United States
objected to this provision (Part XI of the Convention) on several
grounds, arguing that the treaty was unfavorable to American economic
and security interests. Due to Part XI, the United States refused to ratify
the UNCLOS, although it expressed agreement with the remaining
provisions of the Convention. To date, 162 countries and the European
Community have joined in the Convention.
While the Secretary General of the United Nations receives instruments

of ratification and accession and the UN provides support for meetings
of states party to the Convention, the UN has no direct operational role
in the implementation of the Convention. There is, however, a role
played by organisations such as the International Maritime Organisation,
the International Whaling Commission, and the International Seabed
Authority (the latter being established by the UN Convention).
On what can be considered the sovereignty front, preserving freedoms of

navigation were paramount, but there were also a number of other
objectives, such as threats to fisheries and marine mammal conservation;
protection of the marine environment, in particular from the growing
threat of vessel source pollution; and the preservation of the high-seas
freedom of scientific research. All of these, like freedoms of navigation,
were being whittled away by claims of exclusive control accompanying
the many extensions of coastal-state jurisdiction. To strengthen against
these extensions, the convention sought the establishment of third-party
settlement mechanisms for disputes, particularly those over boundaries
that were already being exacerbated by new jurisdictional claims.
On what can be called the deep-seabed front, there was the effort to
create a regime to manage resources beyond national jurisdictions. The
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main U.S. objective was to help create a strong, viable organisation that
would be effective against the further-seaward claims of coastal states.
At the same time, the United States wanted to ensure access to the deep
seabed for U.S.-based companies on reasonable terms and conditions
that would offer the prospect of a fair profit in the light of the technical
difficulties to be surmounted and the large capital investments required
for development.
How well did the United States fare during the nearly ten years of
negotiations that followed? Most observers believe that, as a whole, the
convention met U.S. objectives reasonably well, even though the
Reagan administration, which came to power in 1981, concluded that
defects of the design for a seabed regime would prevent President
Ronald Reagan from signing the final convention. Certainly, on the
sovereignty side, the final Convention on the Law of the Sea met every
significant U.S. objective.
Most important of all, the breadth of the territorial sea was capped at
twelve miles, while a new transit passage regime was created that, for all
practical purposes, preserved freedom of navigation and over flight of
the international straits. High-seas freedoms were also preserved in the
three newly created jurisdictional zones beyond the twelve-mile
territorial sea: the contiguous zone out to twenty-four miles, where a
coastal state could enforce customs and immigration laws; the 188-mile
exclusive economic zone (EEZ), which carried the coastal state’s
jurisdiction over living and nonliving resources out to a total of two
hundred miles; and the new archipelagic zones, which otherwise would
have become internal waters of archipelagic states such as Indonesia and
the Philippines, placing significant restrictions on navigation freedoms
previously enjoyed in these areas. The convention also established
procedures for extending coastal-state jurisdiction over areas of
continental shelf beyond two hundred miles.
On the environmental front, the United States scored several important

victories. It got the conference to agree to international standards for
vessel-source pollution. There would be only one set of standards,
worldwide, with which all vessels would have to comply. At the same
time, the conference agreed to maintain the traditional right of port
states to enact and enforce standards higher than the international ones
for vessels entering their harbors. That was important to the United
States, since an estimated 90 percent of all shipping off U.S. coasts is on
its way to or from American seaports.
The Reagan administration thought that, by and large, the convention

had gotten it right. Indeed, it later declared that the United States would
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voluntarily abide by all non-seabed parts of the convention. The Reagan

administration’s objections were directed mainly at the deep-seabed side
of the negotiations—the design of and the powers to be given to the new
regime for governance of the mineral resource recovery in the area
beyond national jurisdictions. The philosophical argument was that the
United States should be able to go where it wanted and take what it
wanted on a “first come, first served” basis. President Reagan would
have preferred no regime at all governing the international seabed, but
he realised that this was a fait accompli given the late stages of the
negotiations. In the end, the Reagan administration declared it could
accept Part XI only if certain changes were made in six areas having to
do with matters like technology transfer, and if the United States
preserved a de facto veto power in the governing organs of the new
authority so that no financial obligations could be imposed on the
United States without its consent. When these changes were not made
by 1982, the Reagan administration refused to sign the convention.
All six of the Reagan administration’s objections were fixed to the

satisfaction of the United States in a subsequent supplemental agreement
that was negotiated and signed by most states, including the United
States, in 1994. By now, it has been adopted and ratified by most of the
original signatories to the 1982 convention.
Beyond Reagan’s administration, American politics has generally,

continued to intensify efforts on as well as incorporate issues relating to
the Laws of the Sea. Presidents, Law makers, and other top government
officials have in diverse manners demonstrated their desire to protect
America’s interests. The United States had objected to the provisions of
Part XI of the Convention on several grounds, arguing that the treaty
was unfavorable to American economic and security interests. Due to
Part XI, the United States refused to ratify the UNCLOS, although it
expressed agreement with the remaining provisions of the Convention.
From 1983 to 1990, the United States accepted all but Part XI as
customary international law, while attempting to establish an alternative
regime for exploitation of the minerals of the deep seabed. An
agreement was made with other seabed mining nations and licenses
were granted to four international consortia. Concurrently, the
Preparatory Commission was established to prepare for the eventual
coming into force of the Convention-recognised claims by applicants,
sponsored by signatories of the Convention. Overlaps between the two
groups were resolved, but a decline in the demand for minerals from the
seabed made the seabed regime significantly less relevant. In addition,
the decline of Socialism and the fall of Communism in the late 1980s
had removed much of the support for some of the more contentious Part
XI provisions.
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In 1990, consultations were begun between signatories and non-

signatories (including the United States) over the possibility of
modifying the Convention to allow the industrialised countries to join
the Convention. The resulting 1994 Agreement on Implementation was
adopted as a binding international Convention. It mandated that key
articles, including those on limitation of seabed production and
mandatory technology transfer, would not be applied, that the United
States, if it became a member, would be guaranteed a seat on the
Council of the International Seabed Authority, and finally, that voting
would be done in groups, with each group able to block decisions on
substantive matters. The 1994 Agreement also established a Finance
Committee that would originate the financial decisions of the Authority,
to which the largest donors would automatically be members and in
which decisions would be made by consensus.
On February 1, 2011, the Seabed Disputes Chamber of the International

Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion
concerning the legal responsibilities and obligations of States Parties to
the Convention with respect to the sponsorship of activities in the Area
in accordance with Part XI of the Convention and the 1994 Agreement.
The advisory opinion was issued in response to a formal request made
by the International Seabed Authority following two prior applications
the Authority's Legal and Technical Commission had received from the
Republics of Nauru and Tonga regarding proposed activities (a plan of
work to explore for polymetallic nodules) to be undertaken in the Area
by two State-sponsored contractors (Nauru Ocean Resources Inc.
(sponsored by the Republic of Nauru) and Tonga Offshore Mining Ltd.
(sponsored by the Kingdom of Tonga). The advisory opinion set forth
the international legal responsibilities and obligations of Sponsoring
States AND the Authority to ensure that sponsored activities do not
harm the marine environment, consistent with the applicable provisions
of UNCLOS Part XI, Authority regulations, ITLOS case law, other
international environmental treaties, and Principle 15 of the UN Rio
Declaration.
On July 29, 1994, President Bill Clinton signed the Agreement on the
Implementation of Part XI of the Convention on the Law of the Sea. He
sent the agreement, along with the 1982 convention, to the Senate on
October 7, 1994. The following month, Republicans won control of the
Senate and subsequently there emerged expressions of dissatisfaction
with the handling of the provisions of the convention, which the
Republicans alleged jeopardised US sovereignty.
By the late autumn of 2007, the convention had become a small but
notable issue in the Republican presidential campaign. Senator John
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McCain (R-AZ), who had a decade long history of supporting the treaty,
changed his position and opposed the convention. By early 2008, the
heat of the presidential campaign brought progress on the convention to
a halt. Then, following the election, the Senate’s attention was taken by
the growing economic crisis, precluding consideration of the convention
during the lame-duck session. Under Senate rules, treaties must be
reconsidered by the SFRC in each new Congress. While the committee
must begin the process again, it will be able to draw upon the extensive
hearings held in 2003, 2004, and 2007 to inform its next review.
What was the key ingredient and provisions of the UNCLOS, which
touched negatively on the US interests on the use of the seas?
4.0 CONCLUSION
The importance of and large space covered by the seas is such that
requires utmost attention. Global governance of the seas and oceans of
this world is a necessity that deserves the compliance of all states,
notwithstanding what the specific interest of any nation might be. From
time past, mankind has endeavored to work out modalities to evolve a
harmonious relationship with other nations of the world given the
importance of international relations against the myopic tendency
towards isolationist principles, which run counter to international
standards. From the 16th century, intensive operations at high seas had
resulted to the emergence of various conventions on the use of the seas,
beginning with the Freedom of the Seas mantra.
It is indeed imperative to opine that any opinion channeled towards lack

of submission to generally accepted resolutions on the management of
sea resources will spell doom for the ultimate desire to achieve the
measure of peace and security envisioned through the modalities of
international law. Laws of the Sea are an integral module in the entire
system of international law and should be viewed with some modicum
of solemnity and commitment in the interest of all.
5.0 SUMMARY
Laws of the Sea are an integral part of international law. Its provisions
have been a major preoccupation of most states, especially the marine
nations. During the 16th century, the major European nations, driven by
uncontrolled commercial interests had begun to experience major
confrontations with regards to gaining access and also to the use of
international seas. By way of reconciliation, the idea of Freedom of the
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Seas became operational. However, with the passage of time, other

interests began to emerge. The United States’ concern on the use and
management of the sea had grown and shortly afterwards became
dominant, particularly from the late 20th century.
Besides the Freedom of the Sea theory, other important concepts

designed to control activities on the world’s oceans include the
UNCLOS 1 treaties of 1958, the UNCLOS II treaties of 1960, 1967
Declaration of Principles Governing the Seabed and Ocean Floor
beyond the Limits of National Jurisdiction, and the UNCLOS III treaties
of 1982, which came into force in 1994. In spite of great challenges,
chiefly from the United States, the United Nations has extensively
worked hard to ensure an even use of the ocean resources through the
establishment of an international sea management body that would be
responsible to the United Nations.
1. Why is the UNCLOS III unique?

2. What was United States’ objection with regards to the Part XI of
the UNCLOS III?
3. What law of the sea was generally accepted during the 16th
century?
7.0 REFERENCE/FURTHER READING
Lawrence, A. K. What goes around comes around: How UNCLOS

Ratification Will Herald Europe’s Precautionary Principle as
U.S. Law.
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UNIT 3 AIR SPACE AND OUTER SPACE LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Sovereignty above State Territory
3.2 The Regulation and Protection of Air Transport
3.3 Outer Space
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
We have established the importance of international laws to nature and

the environment. In line with this discussion, this unit treats
environmental laws guiding the outer space, its ownership and use by
the international community. The discussion also covers rules of
engagement in air transportation, states’ rights to activities within the
lower reaches of a state and the outer space.
2.0 OBJECTIVES
• identify outer space laws and its usefulness to states in their

activities outside a state’s atmospheric reach
• explain the limits under which international regulations can
prevent a state’s activities on air
• state the importance of outer space laws to the states.
3.0 MAIN CONTENT
3.1 Sovereignty above State Territory
A State has sovereignty in international law above and below its land.
According to international law principle, whoever owns the land, owns
the space above it to infinity and the space below. This allows a State to
use its own airspace and that of the high seas but not that of another
State without permission.
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The development of aircraft in the early 20th century added new

dimension to the regulations of airspace in state interaction with one
another. This is because; war planes and fighter aircrafts can be used for
surveillance as well as bombings during wars different from the regular
peaceful use of the airspace for mere transportation purposes.
The revolving nature of the earth and manning of human in outer space
by developed countries that have had no negative implications on States
sovereignty in the outer space limits States’ control. This places some
limit to State’s control of its outer space. Different distances have been
suggested as the upper limits of a state sovereignty. An aircraft can
reach a height of about 20 km although the greatest aerodynamic is
about 40 km. the X-15 possesses characteristics of both air and space
craft and can ascend to a height of about 75 km.
Another view is that sovereignty extends as high as an aircraft can fly

and the next and the next 480 km is a contiguous zone with the right of
innocent passage for all other states using non-military aircraft. The
distance beyond is outer space free to all other States. It is also
suggested that the sovereignty should extend to the lowest height that an
object is required to circle the earth and that is between 100 km and 160
km.
Therefore, state sovereignty is recognised over the lower limits of the

atmosphere including the areas where conventional flights are possible.
The region of outer space, where objects circle the earth is open to all
states. However, States sovereignty would persist beyond the lower
reaches if the activities in the outer space have grave human security
breaches on the State or human welfare.
1. State the conditions for the regulation and control of the outer
space by states according to international law.
3.2 The Regulation and Protection of Air Transport
The Paris Conference of 1919 on Air transport reinforced the ad coelum

principle, doctrine of absolute sovereignty above a State’s sovereignty
and distinguished between scheduled and non-scheduled flights. It made
provision as well for the registration of aircrew, certificates of
airworthiness, aircraft licenses, rule of traffic and so on.
There was also the Havana Convention of 1928. However, civil aviation
today is regulated mainly by the Chicago Convention of 1944 which
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reaffirms State’s sovereignty over airspace but creates rights and duties
for member-states in air transportation. The Convention established the
regulations for air navigation and transportation as well as the
International Civil Aviation Organisation (ICAO) to administer the
rules. This convention adopted two out of the five freedom of air
advocated by the United States including:
1. Freedom to fly across Grantor State without landing

2. Freedom to land for non-traffic purposes such as refueling and
repairs
These two being transit rights while the next three are traffic rights but
were not adopted.
3. Freedom to carry passengers, cargo, and mail from the Grantee

State to the Grantor State.
4. Freedom to carry passengers, cargo and mail from the Grantee
State to the Grantee State.
5. Freedom to carry passengers, cargo and mail from the Grantee
and the Grantor States as well as from or to third States on the
same route which may be intermediate or beyond.
Other regulations and convention also provides conducts in airspace

travels including provision for what is expected of aircrew and
prevention of crimes such as bombings, hijacking and so on. There is the
Tokyo Convention on offences and other acts committed on Board
Aircraft 1963, Hague Convention for the Suppression of Unlawful
Seizure of Aircraft 1970 and the International Convention against the
taking of Hostages 1979 among others. In all of these, a State uses
reasonable force against aircraft that breaches its sovereignty such as
ordering it to land but every state tries to safeguard the safety of lives
and the aircraft in air transportation regulations.
Clearly state and explain the provisions of the Chicago convention of

1928 and relate these provisions to air transportation regulations today.
3.3 Outer Space
From the foregoing, it could be seen that the outer space is full of
activities. It is the responsibility of states and international organisations
to protect the outer space. The United Nations General Assembly passed
a number of resolutions calling for non-militarisation, peaceful uses and
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international cooperation in space exploration and other relationship in

the outer space.
The Nuclear Test Ban Treaty of 1963 prohibits the explosion of nuclear
weapons in outer space or anywhere else if it will cause radioactive
debris outside the territory of the State exploding it.
The Treaty on the Principles Governing the Activities of States in the

Exploration and Use of Outer Space, including the Moon and other
Celestial Bodies 1967 restrict the use of outer space to peaceful uses
only. It prohibits the appropriation of celestial bodies by any means and
entrenches the freedom of scientific investigation, exploration and use.
There is also the United Nations Convention on International Liability
for Damage caused by Space Objects 1972 concerning for instance
satellites installation in the outer space. Under this convention, a
launching state launches and is responsible for the payment of
compensation for damage caused by the space object on earth or to
aircraft in flight.
These regulations find expression in the United Nations General

Assembly Resolution 1721 A (xvi) 1961 which asserts that international
law applies to outer space and that “Outer Space and Celestial Bodies
are …not subject to national appropriation”.
How influential is the United Nations in the regulation of Outer Space?
4.0 CONCLUSION
There are more conventions and protocols intended preserve the outer
space and activities thereof. It is expected that by obliging to these
regulations development and advancement in states’ activities and uses
of objects in the space will not have negative consequences on states in
the relations with one another. It could be seen however that most of the
conventions help to promote a mastery of the outer space by developed
countries.
5.0 SUMMARY
The above identified few of the conventions on state’s control of the

outer space. It showed the rights and sovereignty of a state over the
outer space above it and regulations for air transportation, that has
become a veritable tool or relationship among states. It ended by stating
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the importance of the United Nations provision in preventing the

appropriation of the outer space.
1. How effective are outer space regulations to states whose

technological advancements can manipulate outer space limits set
by international conventions?
2. How true is the assertion that international regulations in the
outer space help promote developed countries superiority in
International Law?
Rothwell, R. D. & Stephens, T. (2010). The International Law of the

Sea. Oxford: Hart Publishing.
Umozurike, U. O. (2005). Introduction to International Law. (5th ed.).

Ibadan: Spectrum Books Limited.
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UNIT 4 OTHER INTERNATIONAL LAWS ON THE

PROTECTION OF THE ENVIRONMENT
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Stockholm Conference of 1962
3.2 Rio de Janeiro Conference of 1992
3.3 Kyoto Protocol of 1996
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The environment is a very crucial part of nature and a heritage from

which man derives survival. Human activities on the environment have
had significant consequences both positively and negatively on the lives
of man at the moment, the environment and future generations. In a bid
to regulate human beings reliance on the environment, several
regulations have been reached at international conferences that have
today formed part of international law by which states somehow tacitly
operate. This unit examines the Stockholm conference, Rio de Janeiro
Conference and the Kyoto Protocol among many other international
environmental regulations.
2.0 OBJECTIVES
• state why there are international regulations and laws on the

environment
• identify some international laws of the environment
• outline the importance of these laws.
3.0 MAIN CONTENT
3.1 Stockholm Conference of 1962
The United Nations Conference on the Human Environment (also

known as the Stockholm Conference) was an international conference
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convened under United Nations auspices held in

Stockholm, Sweden from June 5–16, 1972. It was the UN's first major
conference on international environmental issues, and marked a turning
point in the development of international environmental politics.
Being the precursor to the 1992United Nations Earth Summit in Rio de

Janeiro, Brazil, the meeting agreed upon a Declaration containing 26
principles concerning the environment and development; an Action Plan
with 109 recommendations, and a Resolution. Many believe the most
important result of the conference was the precedent it set for
international cooperation in addressing environmental degradation. The
nations attending agreed that they shared responsibility for the quality of
the environment, particularly the oceans and the atmosphere, and they
signed a declaration of principles, after extensive negotiations,
concerning their obligations. The conference also approved an
environmental fund and an action programme, which involved 200
specific recommendations for addressing such problems as global
climatic change, marine pollution, population growth, the dumping of
toxic wastes, and the preservation of biodiversity. A permanent
environmental unit was established for coordinating these and other
international efforts on behalf of the environment; the organisation that
became the United Nations Environmental Programme was formally
approved by the General Assembly later that same year and its base
established in Nairobi, Kenya. This organisation has not only
coordinated action but monitored research, collecting and disseminating
information, and it has played an ongoing role in international
negotiations about environmental issues.
The conference, and more importantly the scientific conferences

preceding it, had a real impact on the environmental policies, for
instance, the European Community (that later became the European
Union) in 1973, created the Environmental and Consumer Protection
Directorate, and composed the first Environmental Action Program. In
addition, the conference sensitised the globe on the importance of the
environment leading to increased interest and research collaboration
which for instance paved the way for further understanding of
environmental issues like global warming, which has led to such
agreements as the Kyoto Protocol.
What are the main contributions of the Stockholm conference of 1972 to

International law especially those concerning the environment?
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3.2 Rio de Janeiro Conference of 1992
The Earth Summit in Rio de Janeiro was unprecedented for a United

Nations conference, in terms of both its size and the scope of its
concerns. Twenty years after the first global environment conference in
Stockholm, the UN sought to help Governments rethink economic
development and find ways to halt the destruction of irreplaceable
natural resources and pollution of the planet. Hundreds of thousands of
people from all walks of life were drawn into the Rio process. They
persuaded their leaders to go to Rio and join other nations in making the
difficult decisions needed to ensure a healthy planet for generations to
come.
The conference focuses on the review of four key issue areas including:
1. Patterns of production, particularly the production of toxic

components, such as lead in gasoline, or poisonous waste — are
being scrutinised in a systematic manner by the UN and
Governments alike;
2. Alternative sources of energy are being sought to replace the use
of fossil fuels which are linked to global climate change;
3. New reliance on public transportation systems is being
emphasised in order to reduce vehicle emissions, congestion in
cities and the health problems caused by polluted air and smog;
and
4. Greater awareness of and concern over the growing scarcity of
water.
At the end, the Earth Summit as the Rio Conference is known resulted in
the following documents:
1. Rio Declaration on Environment and Development

2. Agenda 21
3. Forest Principles
Moreover, two important legally binding agreements were opened for

signature:
1. Convention on Biological Diversity

2. United Nations Framework Convention on Climate
Change (UNFCCC).
The Earth Summit influenced all subsequent UN conferences, which

have examined the relationship between human rights, population, social
development, women and human settlements and the need for
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environmentally sustainable development. The World Conference on

Human Rights, held in Vienna in 1993, for example, underscored the
right of people to a healthy environment and the right to development,
controversial demands that had met with resistance from some member
States until Rio Summit.
State clearly the provisions of Agenda 21 and its impacts on the

international environmental protection.
3.3 Kyoto Protocol of 1996
The Kyoto Protocol is a protocol to the United Nations Framework

Convention on Climate Change (UNFCCC), aimed at fighting global
warming arising from human industrial activities. The UNFCCC is an
international environmental treaty with the goal of achieving the
stabilisation of greenhouse gas concentrations in the atmosphere at a
level that would prevent dangerous anthropogenic interference with the
climate system.
The major feature of the Kyoto Protocol is that it sets binding targets for
37 industrialised countries and the European community for reducing
greenhouse gas (GHG) emissions. This amounts to an average of five
per cent against 1990 levels over the five-year period 2008-2012. The
major distinction between the Protocol and the Convention is that while
the Convention encouraged industrialised countries to stabilise GHG
emissions, the Protocol commits them to do so.
Under the Protocol, countries’ actual emissions have to be monitored

and precise records have to be kept of the trades carried out. The registry
systems track and record transactions by Parties under the mechanisms.
The UN Climate Change Secretariat, based in Bonn, Germany, keeps
an international transaction log to verify that transactions are consistent
with the rules of the Protocol. Reporting is done by Parties by way of
submitting annual emission inventories and national reports under the
Protocol at regular intervals. A compliance system ensures that Parties
are meeting their commitments and helps them to meet their
commitments if they have problems doing so.
The Kyoto Protocol, like the Convention, is also designed to assist

countries in adapting to the adverse effects of climate change. It
facilitates the development and deployment of techniques that can help
increase resilience to the impacts of climate change. The Adaptation
Fund was established to finance adaptation projects and programmes in
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developing countries that are Parties to the Kyoto Protocol. The Fund is
financed mainly with a share of proceeds from CDM project activities.
The major challenges to the reduction of GHG remain the developed
countries led by the United States that has refused to sign the Protocol
into law because it argues over 80 per cent of the most populous people
in the world are not parties to the Protocol. According to former US
President George Bush the Protocol “exempts 80% of the world,
including major population centers such as China and India, from
compliance, and would cause serious harm to the US economy”. The
protection of their economy weakens therefore the effectiveness of the
Protocol just as their neglect of other international law has rendered such
laws impotent.
In the face of states agitation for economic development and prosperity,
can the Kyoto Protocol reduce global warming?
4.0 CONCLUSION
From the foregoing, the environmental laws are many and states
continue to hold international conferences to control the spate of
harmful activities to the human environment.
5.0 SUMMARY
The above had taken a look at some environmental laws on the
protection of the environment. It states how important it is for states to
work together if these laws are to make meaningful impact on the
environment as individual interests have negative implications for the
enforcement and preservation of these laws.
1. What are the contributions of international environmental laws on

international law?
2. Identify the strengths and weaknesses of international
environmental laws on States.
Baylis, J. & Smith Steve (2005). The Globalisation of World Politics.
(3rd ed.). Oxford: Oxford University Press.
McCormick, J. (1995). The Global Environmental Movement. London:
John Wiley.
Oyeshola, D. (2008). Sustainable Development: Issues and Challenges

for Nigeria. Ibadan: Daily Graphics.
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MODULE 4 THE POLITICS OF INTERNATIONAL LAWS

International Law
Unit 2 Jurisdiction
Unit 3 State Responsibility
Unit 4 Nationality
UNIT 1 SOVEREIGNTY AND RECOGNITION OF

STATES IN MODERN INTERNATIONAL LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is Sovereignty?
3.2 How does a State Acquire Sovereignty?
3.3 How does a State Lose Sovereignty?
3.4 The Relevance of Sovereignty in Contemporary
International Law?
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The general aim of this module is to identify how very key concepts are
applied by states in their interaction with one another. By so doing, you
will have a better understanding of these concepts as well as understand
the politics involved in state interaction with one another so as to use
these concepts appropriately and in future analysis. In addition, this
module points out the relevance of these concepts in how states
politicise international law to favour their interests.
This module is made up of four units comprising concepts like

sovereignty, state jurisdiction, state responsibility, and nationalism in
international law. One of the key concepts in contemporary
international law and in fact international relations is sovereignty.
Though, it is a concept that relates to state’s recognition in the
international system, especially because it grants a state the recognition
to become a member of an international organisation, it is a concept that
has been increasing challenged by the emergence of new actors in the
international system. We therefore, in this unit, examine the various
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definitions of sovereignty by scholars with the aim of enhancing our

understanding of the concept and using such understanding to explain
the importance of sovereignty to states in the contemporary international
system.
2.0 OBJECTIVES
• define sovereignty from different perspectives of scholars and

international organisations
• explain the evolution of sovereignty and how a state can acquire
sovereignty
• state how a state can lose sovereignty
• determine the relevance of sovereignty in relation to the desire to
acquire sovereignty by states in the contemporary international
system where the concept has been seriously challenged.
3.0 MAIN CONTENT
3.1 What is Sovereignty?
In its simplest meaning, it is the right of a state to make and enforce

laws within its territory without external influence. Traditionally, it is
the right in the authority found in the ruler over the subjects. From the
writings of Socrates to Thomas Hobbes have sovereignty been reckoned
with. Though largely defined in absolute terms especially in the work of
Jean Bodin, six books of the commonwealth in 1576, Bodin sees
sovereignty as a political doctrine that is both absolute and indivisible.
According to this doctrine, in every state there must be one person (or
one defined group of people) who has all the powers necessary to
govern the community without external influence, and who is its
sovereign. Sovereignty cannot be divisible between different people
rather, as was the case in the 16th century; it resides in the monarch or
leader of the state.
Sovereignty is the supreme, absolute, and uncontrollable power by

which any independent state is governed; supreme political authority;
the supreme will; paramount control of the constitution and frame of
government and its administration; the self-sufficient source of political
power, from which all specific political powers are derived; the
international independence of a state, combined with the right and power
of regulating its internal affairs without foreign dictation.
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At least, sovereignty can be defined in thirteen ways. They include:
1. Sovereignty as a personalised monarch (real or ritualised);

2. Sovereignty as a symbol for absolute, unlimited control or power;
3. Sovereignty as a symbol of political legitimacy;
4. Sovereignty as a symbol of political authority;
5. Sovereignty as a symbol of self-determined, national
independence;
6. Sovereignty as a symbol of governance and constitutional order;
7. Sovereignty as a criterion of jurisprudential validation of all law
(grundnorm, rule of recognition, sovereign);
8. Sovereignty as a symbol of the juridical personality of Sovereign
Equality;
9. Sovereignty as a symbol of recognition;
10. Sovereignty as a formal unit of legal system;
11. Sovereignty as a symbol of powers, immunities, or privileges;
12. Sovereignty as a symbol of jurisdictional competence to make
and/or apply law; and
13. Sovereignty as a symbol of basic governance competencies
(constitutive process).
An important meaning associated with the concept of sovereignty

identifies it with ultimate, effective political power. It has also been
identified with the nature of law itself, the reference to power and
political culture.
Today and particularly from the period of enlightenment, this concept

has been interpreted to mean the power of a state often shared by the
powers that make, enforce and interpret laws in the country i.e. arms that
make up government comprising the legislature, executive and judiciary.
There are two main features of sovereignty:
(a) Separateness; and

(b) Supremacy
By separateness, a sovereign state is no longer a part of another entity

either as a colony or annex. Therefore, all colonies ceased to be part of
the metropolis as soon as the power to make and enforce its laws is
transferred after independence. This power Kosovo also got after it was
been recognised by the United Nations in 2000. Taiwan is still part of
the People’s Republic of China (PRC) and cannot claim sovereignty like
other countries in the world. The second important part if supremacy. A
state is supremely sovereign, in as much as, it can make laws and
enforce it using the powerful organs in the state without external
interference within its territory.
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Compare and contrast the salient differences between the old definition
of sovereignty and the modern definition of the concepts following
writings of scholars from Bodin till the 21st century.
3.2 How does a State Acquire Sovereignty?
A state can acquire sovereignty through three major ways. They include
(a) Peaceful and formal means through independence: This happens

when a state that was a colony becomes independent and acquires
sovereign status from its former colonial master. Examples of this
kind of sovereign states include Nigeria in 1960, India in 1947,
and Ghana in 1957. All of these states acquire independence
through a constitutional formal process that is preceded by
conferences and agreed date of withdrawal.
(b) Forceful war of secession: a state can also acquire sovereignty by
successfully fighting a secession war. This usually occurs when a
state is made up of multiple ethnic groups or members that have
divergent views about the existence of the state. This should be
contrasted with devolution and confederation, where the national
power gives some form of control to regional groups or powers.
In the case of forceful secession, the breakaway state(s) acquire
independent and equal status at the international level as the old
state. While the attempt by the eastern part of Nigeria to
breakaway and form the Biafra republic in 1967 failed, Croatia,
Slovenia, Bosnia and Herzegovina, Montenegro, Macedonia and
Serbia were the sovereign states that emerged from the former
Yugoslavia.
(c) International creation of sovereign states as well as recognition
by other states and international organisations: a state can acquire
sovereignty through recognition by other states and international
organisations in the international system. Some states were never
colonised while they were also never part of a wide sovereign
entity before they acquire such sovereign status. Examples
include the creation of Liberia in 1822 and Israel in 1947 with the
support of the United States and Western Europe and recognised
by the international system.
Using concrete examples, discuss ways through which a state can

acquire sovereignty and recognised by other states in the international
system?
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3.3 How does a State Lose Sovereignty?
Just as states acquire sovereignty and become accepted into international

relations, they can also loose sovereignty and ‘disappear’ from the
international system. There are two ways of losing sovereignty:
(a) Voluntary loss: A state can lose its sovereignty voluntarily when
it decides to join with another state to form a more formidable
state. A classical example remains the emergence of Tanzania
from Tanganyika and Zanzibar in 1964. Both former states
voluntary gave up their sovereignty to form a single country.
(b) Forceful annexation: A state can also lose its sovereignty through
forceful annexation by other state(s). Although, a practice usually
condemned by states and against international law, states lose
sovereignty when they are being overrun by another powerful
state. In international relations, the forceful annexation of Kuwait
by Iraq failed in the 1991 Persian Gulf War. Had Iraq succeeded,
Kuwait would have ceased to enjoy sovereignty as an
independent entity free from external influence and control.
Discuss the circumstances (actors and factors) surrounding the failure of

Iraq to hijack the sovereignty of Kuwait in 1989.
3.4 The Relevance of Sovereignty in Contemporary

International Law?
As a very important and useful concept in International law and

relations, sovereignty of states is also being greatly challenged by both
emerging actors and weaknesses in state existence in the international
system. Those that challenge the power and existence of states do so
largely due to their contributions to what is called international law.
Actors particularly have emerged in international relations that have
more relevance than states. They include:
(a) International Organisations or Institutions: They are very

influential because of their roles in the recognition of a state’s
sovereignty and the role they play in setting international agendas
and laws. Every nations needs to gain acceptance into the United
Nations for its sovereignty to be acknowledged by the
international system. Other international organisations for
instance the World Bank, African Union among others also have
towering influence on states.
(b) Multinational Corporations (MNCs): MNCs wield influence over
states due to their enormous wealth and geographical spread
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around the world. The top ten biggest MNCs are individually
richer than most counties in Africa and other developing
countries in terms of their total revenue and a country’s national
income.
(c) Non-Governmental Organisations (NGOs): NGOs also play
prominent role that challenge state’s sovereignty in contemporary
international system.
(d) Individuals: a good number of influential individuals now also
determine what is acceptable or otherwise in the international
system. Some of these individuals also have a large number of
followers that states cannot, at times, control. Individuals like Bill
Gates and Nelson Mandela have high influence above states in
international matters.
However, this should not in any way be understood as making states

sovereignty completely irrelevant. States sovereignty is crucial for
many reasons some of which include that:
(a) Only states can form and be members of international

organisations like the United Nations
(b) State can determine the fate and existence of MNCs in their
countries through legislation and regulations
(c) The regular quest and agitation for sovereignty buttresses the
point of its importance. If sovereignty is irrelevant, then Israel
and Palestine would not have been at war with each other since
1948.
Writing from the background that sovereignty is irrelevant in

contemporary international law and relations, state the relevance of
sovereignty to states.
4.0 CONCLUSION
What the above has done is to analyse sovereignty in international law.

It is a concept that defines both the power of the state over and above its
citizens and a standard for the understanding of the equality of states.
Any state that wants to be recognised as truly independent and part of
the international system must be sovereign i.e. separate and supreme and
having a defined territory. This principle, states have preserved since the
treaty of West Phalia in 1648.
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5.0 SUMMARY
The above states the meanings and importance of sovereignty in

contemporary international law. It shows that states can acquire and loss
sovereignty by various means and given certain factors. However, as
challenging as the concept has been in international law, given the rise
of MNCs, NGOs and powerful international organisations and
individuals, the concept remains a highly coveted one by states.
1. How relevant is sovereignty in contemporary international law

and state relationship?
2. If states can acquire sovereignty, they can also lose it; explain
how with appropriate examples.
Anghie, A. (2005). Imperialism, Sovereignty and the Making of

International Law. Cambridge: Cambridge University Press.
Nagan, P. & Hammer, C. (2003). “The Changing Character of

Sovereignty in International Law and International Relations.”
Public Lecture at the University of Asmara, Eritrea.
Ojo, O. & Sesay, A. (2003). Concepts in International Relations. Ile-Ife:

Cleanprint Publishers.
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UNIT 2 JURISDICTION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is Jurisdiction in International Law?
3.2 Classifications f Jurisdiction
3.3 International Criminal Jurisdiction
3.4 Immunity from Jurisdiction
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The concept of jurisdiction is integral to the sovereignty of States and is

fundamental to the functioning of the international legal system. This
unit addresses the authority of a state over natural and juristic persons
and property within it. It examines the power of a state to try cases that
involve areas that concerns its jurisdiction.
2.0 OBJECTIVES
• define jurisdiction
• discuss the right of a State to try nationals over issues that
concern its territory, treasures and powers
• state the classifications of jurisdiction
• outline the differences between jurisdiction and conflict of law or
private international law.
3.0 MAIN CONTENT
3.1 What is Jurisdiction in International Law?
According to Umozurike, Jurisdiction in International law is the

authority a state exercise over natural and juristic persons and property
within it. It concerns mostly the exercise of this power on state territory
or quasi-territory but some states exercise some measure of jurisdiction
exterritorialy especially when the acts performed within or outside the
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territory or quasi-territory have harmful consequences therein. In this

light, jurisdiction is a positive consequence of sovereignty.
According to the Princeton University Program in Law and Public

Affairs, the fundamental principles of universal jurisdiction include:
1. Criminal jurisdiction based solely on the nature of the crime,

without regard to where the crime was committed, the nationality
of the alleged or convicted perpetrator, the nationality of the
victim, or any other connection to the state exercising such
jurisdiction.
2. Universal jurisdiction may be exercised by a competent and
ordinary judicial body of any state in order to try a person duly
accused of committing serious crimes under international law as
specified in Principle 2(1), provided the person is present before
such judicial body.
3. A state may rely on universal jurisdiction as a basis for seeking
the extradition of a person accused or convicted of committing a
serious crime under international law as specified in Principle
2(1) provided that it has established a prima facie case of the
person's guilt and that the person sought to be extradited will be
tried or the punishment carried out in accordance with
international norms and standards on the protection of human
rights in the context of criminal proceedings.
4. In exercising universal jurisdiction or in relying upon universal
jurisdiction as a basis for seeking extradition, a state and its
judicial organs shall observe international due process norms
including but not limited to those involving the rights of the
accused and victims, the fairness of the proceedings, and the
independence and impartiality of the judiciary (hereinafter
referred to as “international due process norms”).
5. A state shall exercise universal jurisdiction in good faith and in
accordance with its rights and obligations under international law.
Jurisdiction in international law is different from the municipal
meaning of jurisdiction which states the power of a court to
entertain a case i.e. not all can be entertained in the various courts
of the land.
Jurisdiction can be exclusive i.e. where a single state exercises control

over a territorial jurisdiction or concurrent where more than one state
can exercise its authority over a territorial jurisdiction as in the case of
pirates.
1. What is Jurisdiction in International Law?
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3.2 Classifications of Jurisdiction
There are many classifications of jurisdiction. According to Levi,

jurisdiction can be classified into:
Temporal: the time a state acquires or loses personality.
Spatial: the physical area over which a state has jurisdiction over
persons, things and transactions.
Personal: the natural and jurisdictional persons over which a state has
competence.
Material: relating to the subject matter of jurisdiction
For the American Re-statement of the Law, jurisdiction can be classified

into three categories:
1. Jurisdiction to Prescribe: the power to make laws by legislation,

executive act, administrative rule, regulation or determination of
court.
2. Jurisdiction to adjudicate: this refers to the subjection of persons
and things in both civil and criminal matter to the process of the
courts and administrative tribunals.
3. Jurisdiction to enforce whether in judicial or non-judicial action,
the use of resources of government to introduce or compel
compliance with the law.
There are other classifications of Jurisdiction including the following:
1. Personal and territorial or quasi-territorial

2. Ordinary and extraordinary
3. Limited and Unlimited
4. Potential and actual
Discuss in details five classifications of jurisdiction
3.3 International Criminal Jurisdiction
The international criminal jurisdiction gives the state the power to

prosecute offenders on crimes that are intrinsically contrary to
international law irrespective of nationality or territory of the crime.
Piracy, slavery, war crimes are few instances of the crimes within a
state’s jurisdiction to punish offenders.
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On piracy for instance, this offence was codified in the 1958 Convention
on the Law of the Sea and 1982 UN Convention on the law of the Sea
which defines it as an illegal act of violence committed by the crew or
passengers of the crew or passengers of a private ship or aircraft on
another ship or aircraft on the high seas.
Various offences fall under the international criminal jurisdiction apart

from the few mentioned above. There are international institutions
established to try offenders found guilty of these crimes since 1946
starting with the London Agreement that gave birth to the establishment
of an International Military Tribunal by France, UK, USA, and defunct
USSR to try the Nazi leaders for crimes against peace and humanity.
Other tribunal and international criminal courts have been established to
try cases of abuse in various inhuman treatment perpetrated by humans
on fellow human during and after warfare.
Identify some international criminal cases and how they are handled in
international law.
3.4 Immunity from Jurisdiction
As states and international institutions or tribunals nationals to its

jurisdiction in trials on crimes against humanity, some certain persons
and institutions enjoy immunity from the jurisdiction of foreign
municipal courts. These states and individuals include:
1. A foreign State
2. Foreign head of State
3. Diplomatic agents
4. Consular and international institutions
5. Agents of Consuls and International Institutions
However immunity to trial jurisdiction may be excepted if any of the

following happens:
1. When a foreign state or foreign head of state sues as plaintiff,

immunity will not avail for a counterclaim or set-off arising from
the same dispute.
2. Issues and suits relating to land within the jurisdiction, not being
land on which the foreign mission is established are not affected
by a claim of immunity.
3. Where the proceedings relate to the acquisition of property
through succession or gift affecting movable or immovable
property.
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4. In a representative action such as debenture holders’ actions.

5. Winding-up process where a foreign head of state or member of
the diplomatic mission claims an interest.
State and explain five major reasons why some individuals are exempted
from prosecution in international law.
4.0 CONCLUSION
The jurisdiction of a state over its citizens and natural resources is

intended to curtail the excesses of the nationals of a state within and
outside its territory so as to allow for a peaceful environment. The
international community is also interested in checkmating humans’
inhuman treatment to one another.
5.0 SUMMARY
The above looked at the meaning of jurisdiction. It examines its various

classifications. It identified the creation of international criminal
jurisdiction in the management of inhuman treatment of one another
given the difficulty in the regulation of some crimes by the state
singularly.
From a historic point of view, can international effort to prevent crimes

against humanity end inhuman treatment in the contemporary
international system?
Black’s Law Dictionary (6th ed.).
Levi, W. (1979). Contemporary International Law: A Concise

Introduction. Boulder, Co: West view Press.
Ryngaert, C. (2008). “Jurisdiction in International Law”. In: Lowe,

Vaughan (Ed.). Oxford Monographs in International Law.

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UNIT 3 STATE RESPONSIBILITY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is State Responsibility?
3.2 What are the Duties of Third Party (Other) States?
3.3 How are the Excesses of States Checked?
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
This unit addresses the role of states in international relations involving

acts that violates international law. By looking at the world today, it
becomes clear that a large number of states are repeatedly violating their
international obligations. Since there is no international police, states at
times act as if they are above the law. Under what legal principles can a
state be held responsible for breaching international law, and what are
the consequences for failing to live up to its responsibility?
The basic principle of “state responsibility” in international law provides
that any state that violates its international obligations must be held
accountable for its acts. More concretely, the notion of state
responsibility means that states, which do not respect their international
duties, are responsible to immediately stop their illegal actions, and
make reparations to the injured.
2.0 OBJECTIVES
• define state responsibility

• mention some activities by states that violate international law
• list the roles of third party states and the international institutions
in mediating violations by states
• discuss how weak or strong the international law is in checking
States’ excesses.
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3.0 MAIN CONTENT
3.1 What is State Responsibility?
Basically, international responsibility results from an internationally

wrongful act which may be committed by a State directly or by persons
and entities whose claims it can espouse at the international level,
including persons placed under its diplomatic protection.
State responsibility in international law provides that any state that

violates its international obligations must be held accountable for its
acts. More concretely, the notion of state responsibility means that
states, which do not respect their international duties, are responsible to
immediately stop their illegal actions, and make reparations to the
injured.
The laws of state responsibility are the principles governing when and
how state is held responsible for a breach of an international obligation.
They establish the conditions for an act to qualify as internationally
wrongful, the circumstances under which actions of officials, private
individuals and other entities may be attributed to the state, general
defenses to liability and the consequences of liability.
This is a fundamental principle, which forms part of international

customary law, and is binding upon all states. The rules on state
responsibility do not specify the content of a state's obligations under
international law, for example that torture is forbidden, or that a state
must provide medical services to the civilian population. These
obligations are specified in numerous international law treaties and in
international customary law. The rules on state responsibility merely
identify when a state can be held responsible for violating those
obligations, and what are the consequences if it fails to fulfill its
responsibility.
The draft Convention on State responsibility produced by the

International Law Commission (ILC) in 2001 recognises that a serious
breach of an obligation essential for the maintenance of international
community is a crime provided it is so recognised by the international
community as a whole.
If a state violates international law it is responsible to immediately cease

the unlawful conduct, and offer appropriate guarantees that it will not
repeat the illegal actions in the future. The state also has a responsibility
to make full reparations for the injury caused, including both material
and moral damages.
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States have legal responsibilities both towards states and individuals

according to different sources of international law. States, other
international entities and individuals enjoy rights and duties given to
them by international law. When states violate their international
obligations they may cause harm both to other states and to individuals.
Therefore states have responsibilities:
1. Towards their own citizens, and people under their

jurisdiction, based on human rights law.
2. Towards civilians, including occupied people, as well as
combatants of the other party, during armed conflicts under
international humanitarian law (IHL).
3. Towards other states, or international organisations (e.g. UN),
based on general principles of international law, as well as
specific bilateral and multilateral conventions that they have
signed and ratified, including human rights and IHL treaties.
4. Towards the international community as a whole when it comes
to very important rules, such as the prohibitions on genocide and
torture.
What do you understand by the term State responsibility?
3.2 How are the Excesses of States Checked?
When a state violates international law, they should reverse their action
and follow a path of peace. If a state violates international law it is
responsible to immediately cease the unlawful conduct, and offer
appropriate guarantees that it will not repeat the illegal actions in the
future. The state also has a responsibility to make full reparations for the
injury caused, including both material and moral damages.
International law also prohibits third party states from being party to
violations of international regulations. Article 1 common to the four
Geneva Conventions places an obligation on any state that is part of an
armed conflict and also on third states who are not involved in the
conflict. Third states should not do anything to encourage a party to a
conflict to violate IHL. States should also not take action that would
assist in such violations such as arms-transfer and sale of weapons.
In addition, a state can prove it is responsible by paying Reparation

which can take the form of following:
1. Restitution: To re-establish the situation which existed before the

violation was committed, as long as it is not materially
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impossible or involves a disproportional burden either by

returning the material or if this is not possible, by paying the
value of it. Examples: releasing persons who have been illegally
detained, return property that was illegally seized.
2. Compensation: Financial compensation for the damages caused
(in addition to the value of material that could not be restituted).
It includes compensation for material damages that can be valued
in money, such as loss of income and treatment for physical
harm; or non-material damages, such as lost opportunities of
education, as well as mental harm etc.
3. Rehabilitation: As money can never undo psychological harm
and trauma caused by violations of international humanitarian
law (IHL) and human rights, rehabilitation shall be offered for the
victims’ healing process. Rehabilitation should include medical
and psychological care as well as legal and social services.
4. Satisfaction: Acknowledgement of the breach, an expression of
regret or a formal apology by the violating state.
Some states are however recalcitrant. Hans Kelsen, whose fundamental

position was that law, is nothing more or less than a coercive system,
argued in 1948 when he drew his attention to international law that
coercion in international law takes the form of forcible reprisals. A state
commits a delict (in Kelsen’s useful coinage and terminology) when it
violates a rule of international law. The state that commits a delict opens
itself up to a reprisal by other states. A reprisal is a kind of
countermeasure, a tit-for-tat retaliation. The most important
characteristic of a reprisal is that it would be a delict if standing alone.
What saves it from being delict is that it may permissibly be taken,
under customary international law, in retaliation for a delict. Kelsen
came to the conclusion that international law is a coercive order because
it is enforced through the reprisal mechanism.
The violations of these international regulations however have grave

consequences for the international system. Cogan identifies two.
First, and most obviously, a breach of an international legal obligation

can diminish the authority of the obligation itself. This might not be of
concern to the breaching state, at least in the short-term, but it will
probably be of concern to the State to which the obligation is owed and
probably be of concern as well (in the case of multilateral obligations) to
non-breaching states that support or rely upon the obligation breached,
even if they are not directly harmed by the particular breach at issue.
Second, noncompliance can impede the establishment and maintenance

of the international rule of law. This could be done in two ways.
Noncompliance impinges on the principle that power must be exercised
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in accordance with the law, a principle that might be especially dear in

our current unipolar world.
4.0 CONCLUSION
A state can be sanctioned politically, economically, militarily and

diplomatically. In the extreme case, such violations on another country
can lead to outright warfare. This situation most states prevent through
bilateral and multilateral negotiations. But in all, states, particularly
powerful states, do what they like while the weak states mostly observe
international laws on state responsibilities.
5.0 SUMMARY
The unit above examines the meaning of state responsibility and

violations under international law that can rupture the international
relations between and among states. While the international system is
made up of states that sign international treaties and pacts into law, some
states also violate these laws in their self(ish) interests. This does not go
without violating the interests of others. It is the violation that causes
disorder and conflicts and in some cases sanctions among states.
1. What are the rights of foreign nationals and companies in

International law?
2. State the roles of International organisations in maintaining
enforcing International Law on States.
Cogan, J. K. (2004). “Noncompliance and the International Rule of

Law”. The Yale Journal of Law. Vol. 31 Number 189.

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UNIT 4 NATIONALITY AND NATIONALISM
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is Nationality?
3.2 Acquisition of Nationality
3.3 Loss of Nationality
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
Nationality is one of the most important concepts in international law

and state relations. Nationality shares close affinity with nationalism a
concept that is very debatable both in meaning and usage and which
writers have blamed for most of the conflicts in the world today calling
it the Frankenstein monster responsible for the division of states, others
see it as the sleeping beauty bringing about the actualisation of self
determination and liberation. Nationality is a concept for identification
often used in separating the people of the world from one another. This
unit will therefore address the meaning and features of nationality in
international law and relations.
2.0 OBJECTIVES
• define nationality from different perspectives

• state ways through which a national acquire nationality
• explain how nationals can lose nationality; and
• identify its connection to the study of international law in states
relations with one another.
3.0 MAIN CONTENT
3.1 What is Nationality
According to Umozurike, nationality is the link that an individual has

with a state which entitles it to espouse a claim in International Law.
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The International Court of Justice defines nationality as a legal bond

having as its basis a social fact of attachment, a genuine connection of
existence, interests and sentiments, together with the existence of
reciprocal rights and duties.
Nationality, in law refers to membership in a nation or sovereign state. It

is to be distinguished from citizenship, a somewhat narrower term that is
sometimes used to denote the status of those nationals who have full
political privileges. Before an act of the U.S. Congress made them
citizens, for example, American Indians were sometimes referred to as
“noncitizen nationals.”
Individuals, companies (corporations), ships, and aircraft all have

nationality for legal purposes. It is in reference to natural persons,
however, that the term finds most frequent use. Nationality is in fact
commonly regarded as an inalienable right of every human being. Thus,
the United Nations Universal Declaration of Human Rights (1948),
states that “everyone has the right to a nationality” and that “no one shall
be arbitrarily deprived of his nationality.” Nationality is of cardinal
importance because it is mainly through nationality that the individual
comes within the scope of international law and has access to the
political and economic rights and privileges conferred by modern states
on their nationals.
Nationality determines the scope of application of basic rights and

obligations of states vis-à-vis other states and the international
community, such as personal jurisdiction, the application of treaties and
diplomatic protection. In domestic law, nationality is a fundamental
requirement for the exercise of political rights and claims to protection
and correlate duties, such as military or civil service obligations, which
may, however, vary according to national law.
This explains why the German Constitutional Court defines nationality

as the legal requirement for an equal status implying equal duties on the
one hand, equal political rights on the other hand, the exercise of which
is the exclusive source of legitimacy of power in a democracy.
How can you describe nationality?
3.2 Acquisition of Nationality
Article 15 paragraph 1 of the Universal Declaration of Human Rights

states that everybody is entitled to a nationality. The state, through
constitutional and statutory provisions, sets the criteria for determining
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who shall be its nationals. The right of a state to confer its nationality is,
however, not unlimited, for otherwise it might impinge upon other
states’ rights to determine what persons shall be their nationals. By one
rule of international customary law, for instance, a person who is born
within a state’s territory and subject to its jurisdiction acquires that
state’s nationality by the fact of such birth.
In another way, nationality can be acquired through naturalisation,

which happens through marriage, by voluntary application or by Act of
State. Traditionally, a wife took the nationality of the husband on
marriage but can turn unpleasant for the wife when the marriage breaks
up. However, convention like The Hague on Certain Questions Relating
to the Conflicts of Nationality Law allows women to retain their
nationality after marriage. The Convention on the Elimination of
Discrimination against Women also allows women equal rights as men
to acquire, change or retain their nationality and the nationality of the
children.
Furthermore, the act of state grants nationality to political exile to allow

them move freely under diplomatic protection as well as the change of
sovereignty over territory such as the cession or conquest may have
consequences on nationality of the inhabitants.
Multi-nationality or Statelessness may also create nationality where a

person having acquired a nationality at birth, acquired yet another
nationality without losing the first nationality. A person born to a state
where his parents are not nationals is also entitled to a nationality. Such
a person can acquire such by being made a national of his/her state of
birth. In addition, persons who are lawfully and habitually resident on its
territory for a period of time beginning before the age of eighteen, that
period to be determined by the internal law of the state party concerned.
Using concrete examples, state how an individual can acquire the

nationality of a State.
3.3 Loss of Nationality
Just as nationals acquire nationality, they can also lose it. The authority
of states generally determines the loss and deprivation of nationality,
just as it determines the acquisition of citizenship. Loss and deprivation
of nationality affect existing rights, and they are therefore subject to
stricter limits as determined in international instruments. One way is
through release. Some states allow their nationals to request to be
released from nationality on acquiring a new one or on its imminence. A
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minor who has dual nationalities may declare for one on coming of age.
This is particularly common with athletes and professionals.
Through judicial or administrative action, a national can also lose
nationality. Italy, Germany, Turkey and defunct the USSR passed
decrees after First World War depriving some of their citizens of their
rights to nationality of these states on the basis of a long residence
abroad, disaffection and some other reasons.
Obtaining naturalisation in a foreign state, taking an oath or making an

affirmation or other formal declaration of allegiance to a foreign state or
political subdivision thereof, entering, or serving in, the armed forces of
a foreign state and making a formal renunciation of nationality before a
diplomatic or consular officer of the former state for which the national
is known in a foreign state.
Extradition, a process whereby, under treaty or on reciprocity, one state

surrenders to another, at its request, a person accused or convicted of a
criminal offence committed against the law of the requesting state.
Asylum is another way of protection from trial given a person who is
wanted for prosecution in another country, usually his own and for an
offence that is considered to be political by the asylum state.
How can nationals lose nationality?
4.0 CONCLUSION
International Law, especially the Universal Declaration of Human

Rights (UDHR), makes provision for every human being’s nationality. It
makes provision for even refugees who are ravaged by war to lay claim
to a state’s nationality. This is contained in International Refugee
Organisation which was replaced with the Refugee Convention of 1951
and the Protocol Relating to the Status of Refugees.
5.0 SUMMARY
The unit examined nationality. It defines it stating principles through

which a citizen can be called a national of a state. It also looks at how an
individual can lose nationality in International Law.
1. What is the relevance of nationality to International Law?

2. How true is the UNDHR that everyone has a right to nationality
that should not be deprived?
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3. With your understanding of nationality, discuss how a national

can acquire and lose nationality.

United Nations (1993). Human Rights and Refugees Fact Sheet, No 20.
Weis, P. (1956). Nationality and Statelessness in International Law.

London: Stevens & Sons, Ltd.
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MODULE 5 INTERNATIONAL LAW RELATED

INSTITUTIONS
Unit 1 The United Nations and the International Court of Justice

Unit 2 The International Criminal Court
Unit 3 The African Union and the African Union Court
Unit 4 The Limitations and Possibilities of International Law and
Institutions
UNIT 1 THE UNITED NATIONS AND THE

INTERNATIONAL COURT OF JUSTICE
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The United Nations
3.2 Organs of the United Nations
3.3 The International Court of Justice
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
International institutions are by and large, key actors in international

relations. The aim of this unit, however, is not only to refresh your
memories of international institutions but to focus on the United Nations
and its organ as well as to sharpen your understanding of the roles of the
International Court of Justice as an organ of the United Nations in the
promotion and respect of international law. We shall also establish a
linkage between this organ on the one hand and the other organs of the
organisation on the other.
2.0 OBJECTIVES
• describe the United Nations using its organs, noting the salient
contributions of the organisation and its organs to the draft,
existence and recognition for international law by states
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• establish the linkage between the organs of the United Nations

and the International Court of Justice in the implementation of
international law
• identify the weaknesses in the United Nations in its promotion of
human rights, international peace and security
• state the roles of the ICJ and its rulings have implications for
setting international standards and precedence in international
law.
3.0 MAIN CONTENT
3.1 The United Nations
The United Nations is the most global and all encompassing

organisation in the world. This organisation alone through its organs and
agencies has contributed not less than 50,000 laws to International Law.
Founded by 50 members at the San Francisco Conference of the United
Nations, the organisation took its cue from the League of Nations earlier
established to prevent conflicts of interests among states but failed to
prevent the outbreak of the Second World War. It was assumed, the
lessons learnt in the issues that led to the failure of the League of
Nations will be corrected in the new organisation now formed with the
involvement of powerful countries like the United States whose decline
for membership of the league contributed to its failure. It will however,
be important to add that students should make conscious effort to having
access to the charter and articles of the United Nations as this will
benefit students reading and understanding of the United Nations and its
formation. The charter consists of 36 articles stating the expected
behaviours among states when relating with one another.
Ordinarily, the United Nations is seen as the highest body comprising

states of the world. Its establishment has been referred to as
compromises among the powerful countries after the Second World
War. While it has since then existed and modulated states interaction
with one another, it has also acquired so much power that enables it to
touch on state on almost every aspect. The United Nations was
established by 51 countries in 1945. Today this number has grown to
194. With its secretariat in New York, the UN has six organs and
countless numbers of affiliated agencies that help it to carry out its
duties.
As an organisation having universal membership, the UN mandate

encompasses security, economic and social development, the protection
of human rights, and the protection of the environment. All of these
duties, the UN tries to protect through the principles in its charter, its
resolutions that regulate states interactions. Organs of the UN also help
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to enforce these regulations so the international system even though

anarchical enjoys some forms of order.
Identify the similarities and differences between the League of Nations

and the United Nations pointing out while the former failed and the
latter has largely succeeded.
3.2 Organs of the United Nations
Arising from the failures of the League of Nations, part of which

included the lack of its effective powers, absence of clear division of
responsibilities between the main executive (the League Council) and
the League Assembly, that included all member states and absence of
mechanism to coordinate military and economic activities against
miscreant states; the United Nations put in place six organs that will
each address some of these issues and manage conflicts between and
among states.
In this light, the United Nations at inception created six organs that all
work together towards the attainment of the United Nations mandate.
They are:
The Security Council – it is the organ that maintains international peace

and security through its instrumentalities. With an initial state
membership of 11, the Security Council has today increased to 15 state-
membership with five (USA, Russia, France, the UK and China) as
permanent members while the other 10 occupy the Security Council seat
for a two-year period. This organ has the power to impose its decisions
on states once such decisions are ratified by two-third of the
membership including all of the permanent members. The Security
Council can use peacekeepers, sanctions, embargo and any other
‘necessary means’ to enforce its decisions.
The General Assembly is the organ comprising all states in the United
Nations. Its members meet annually to discuss issues concerning the
world. They also make resolutions that nation states observe.
The Secretariat carries out the administrative and day to day running of
the organisation as directed by the General Assembly, Security Council
and other organs of the United Nations. It has its headquarters in New
York and has affiliated offices across the world.
The Economic and Social Council was established to coordinate the

economic and social work of the UN. It also consults with non-
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governmental organisations, thereby establishing a link between the UN

and the civil society. The ECOSOC oversees other affiliated agencies of
the United Nations in carrying out the UN mandate.
The Trusteeship Council was responsible for colonies whose masters

have been defeated during the Second World War. It became almost
useless after all states became independent in the early 1990s.
The International Court of Justice also known as the World Court is the
judicial organ of the United Nations. It consists of 15 Judges elected
jointly by the General Assembly and the Security Council, the Court
decides disputes between and among countries.
The United Nations was established to promote international peace and

security as well as friendly relations among its members, attempt a
connection among the Organs of the United Nations in carrying out this
mandate.
3.3 The International Court of Justice
As noted earlier, the United Nations have six organs, each of which
lends its voice through its resolution to the daily development of
international laws. However, it is important to note that the International
Court of Justice is singled out among these organs of the United Nations
for many reasons. Firstly, it understands and interprets the Charter of the
United Nations in the way it should be understood and interpreted.
Second, it makes proceedings and judgments that serve as precedents
and by extension international laws for states in their interaction with
one another. Thirdly, the ICJ opinion on any issue(s) influence to a large
extent the decisions of other organs like the Security Council and the
Secretariat.
The Court has a twofold role: to settle, in accordance with international

law, legal disputes submitted to it by States (Contentious cases) and to
give advisory opinions (Advisory proceedings) on legal questions
referred to it by duly authorised United Nations organs and specialised
agencies.
In Contentious proceedings, when a dispute is brought before the Court

by a unilateral application filed by one State against another State, the
names of parties in the official title of the case are separated by the
abbreviation v. for the Latin versus (e.g., Cameroon vs Nigeria). When a
dispute is submitted to the Court on the basis of a special agreement
between two states, the names of the parties are separated by an oblique
stroke (e.g., Indonesia/Malaysia).
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Using appropriate examples identify ways in which the ICJ has

influenced the formulation and implementation of international law.
4.0 CONCLUSION
By virtue of their acceptance, towering postures and influence on states,

international organisations such as the United Nations as well as its
organs particularly the International Court of Justice has made
tremendous input to the formulation, interpretation and implementation
of international law. By the constant involvement of these organisations,
the international system is in a state of near-order that would not have
been without them. They have also helped states to solve their boundary,
territorial and other issues that would have degenerated.
5.0 SUMMARY
In this unit, effort has been made to demonstrate the contribution of

international organisations in the drafting of international law using the
United Nations and its organs as the case study. The unit also
demonstrates a relationship between these organs which allows these
relationship to give the world a semblance of order and good
relationship between and among states.
1. Submit a two-page essay (A4, double line spacing) on a robust

critique of the United Nations and its organs on the development,
interpretation and enforcement of International Laws.
2. Examine the contributions of the United Nations to international
peace and security.
3. How influential are United Nations Resolutions on the promotion
of International Law?

Taylor, P. & Curtis, D. (2005). “The United Nations”. In: Baylis, J. &
Smith, S. (Eds). The Globalisation of World Politics: An
Introduction to International Relations (3rd ed.). Oxford: Oxford
University Press.
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UNIT 2 THE INTERNATIONAL CRIMINAL COURT
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The International Criminal Court
3.2 Crimes under ICC Jurisdiction
3.2.1 Genocide
3.2.2 War Crimes
3.2.3 Crimes against Humanity
3.2.4 Crime of Aggression
4.0 Conclusion
5.0 Summary
7.0 Reference/Further Reading
1.0 INTRODUCTION
Another independent but equally powerful international organisation

was negotiated and approved by states in the Rome Statute of 1998 that
came into operation after its ratification by 60 countries in 2002. This is
the International Criminal Court. It was empowered to try genocide,
crimes against humanity, war crimes and crimes of aggression.
2.0 OBJECTIVES
• discuss the contributions of the International Criminal Court to

International Law
• state the similarities and differences between international laws
and municipal laws (use the example of the ICC)
• discuss areas under the ICC jurisdiction
• explain the limitations to the authority of the International
Criminal Court.
3.0 MAIN CONTENT
3.1 The International Criminal Court
Since its creation under the statute of Rome in 1998 which was first
ratified by 60 countries in 2002 and has risen to 120 as at 2012, the
International Criminal Court has contributed in many ways to the
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development of international law and practice. The ICC or “the Court”

is a permanent international court established to investigate, prosecute
and try individuals accused of committing the most serious crimes of
concern to the international community as a whole, namely the crime of
genocide, crimes against humanity, war crimes and the crime of
aggression.
Some of the most heinous crimes were committed during the conflicts
which marked the twentieth century. Unfortunately, many of these
violations of international law have remained unpunished. The
Nuremberg and Tokyo tribunals were established in the wake of the
Second World War. In 1948, when the Convention on the Prevention
and Punishment of the Crime of Genocide was adopted, the United
Nations General Assembly recognised the need for a permanent
international court to deal with the kinds of atrocities which had just
been perpetrated.
The idea of a system of international criminal justice re-emerged after

the end of the Cold War. However, while negotiations on the ICC
Statute were underway at the United Nations, the world was witnessing
the commission of heinous crimes in the territory of the former
Yugoslavia and in Rwanda. In response to these atrocities, the United
Nations Security Council established an ad hoc tribunal for each of these
situations.
The ICC is a permanent autonomous court, whereas the ad hoc tribunals

for the former Yugoslavia and Rwanda, as well as other similar courts
established within the framework of the United Nations to deal with
specific situations only have a limited mandate and jurisdiction. The
ICC, which tries individuals, is also different from the International
Court of Justice, which is the principal judicial organ of the United
Nations for the settlement of disputes between states. The ad hoc
tribunals for the former Yugoslavia and the International Court of
Justice also have their seats in The Hague. The ICC is a permanent
autonomous court, whereas the ad hoc tribunals for the former
Yugoslavia and Rwanda, as well as other similar courts established
within the framework of the United Nations to deal with specific
situations only have a limited mandate and jurisdiction. The ICC, which
tries individuals, is also different from the International Court of Justice,
which is the principal judicial organ of the United Nations for the
settlement of disputes between states.
Describe the origin and major roles of the International Criminal Court
to international law.
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3.2 Crimes under ICC Jurisdiction
The mandate of the Court is to try individuals rather than states, and to
hold such persons accountable for the most serious crimes of concern to
the international community as a whole, namely the crime of genocide,
war crimes, crimes against humanity, and the crime of aggression, when
the conditions for the exercise of the Court’s jurisdiction over the latter
are fulfilled. The following are the interpretation of these crimes.
3.2.1 Genocide
According to the Rome Statute, genocide means any of the following

acts committed with the intent to destroy, in whole or in part, a national,
ethnical, racial or religious group:
• killing members of the group

• causing serious bodily or mental harm to members of the group
• deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part
• imposing measures intended to prevent births within the group
• forcibly transferring children of the group to another group.
How dangerous is genocide to International Peace and Security?
3.2.2 War Crimes
War crimes include grave breaches of the Geneva Conventions and

other serious violations of the laws and customs applicable in
international armed conflict and in conflicts “not of an international
character” listed in the Rome Statute, when they are committed as part
of a plan or policy or on a large scale. These prohibited acts include:
• murder
• mutilation, cruel treatment and torture
• taking of hostages
• intentionally directing attacks against the civilian population
• intentionally directing attacks against buildings dedicated to religion,
education, art, science or charitable purposes, historical monuments
or hospitals
• pillaging
• rape, sexual slavery, forced pregnancy or any other form of sexual
violence
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• conscripting or enlisting children under the age of 15 years into

armed forces or groups or using them to participate actively in
hostilities.
From your understanding of the International law on war crimes, how

guilty is Liberia’s Charles Taylor?
3.2.3 Crimes against Humanity
Crimes against humanity include any of the following acts committed as

part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
• murder
• extermination
• enslavement
• deportation or forcible transfer of population
• imprisonment
• torture
• rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilisation, or any other form of sexual violence of
comparable gravity
• persecution against an identifiable group on political, racial,
national, ethnic, cultural, religious or gender grounds
• enforced disappearance of persons
• the crime of apartheid
• other inhumane acts of a similar character intentionally causing
great suffering or serious bodily or mental injury.
The international war on terror has subjected many nationals to torture

and other inhuman treatment especially in the Western World and the
United States in particular, how plausible is the ICC crimes against
humanity in the protection of peoples’ rights?
3.2.4 Crime of Aggression
As adopted by the Assembly of States Parties during the Review

Conference of the Rome Statute, held in Kampala (Uganda) between 31
June and 11 May 2010, a crime of aggression means the planning,
preparation, initiation or execution of an act of using armed force by a
State against the sovereignty, territorial integrity or political
independence of another State.
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The act of aggression includes, among other things, invasion, military

occupation, and annexation by the use of force, blockade of the ports or
coasts, if it is considered being, by its character, gravity and scale, a
manifest violation of the Charter of the United Nations.
The perpetrator of the act of aggression is a person who is in a position

effectively to exercise control over or to direct the political or military
action of a State.
The Court may exercise jurisdiction over the crime of aggression,

subject to a decision to be taken after 1 January 2017 by a two-thirds
majority of states Parties and subject to the ratification of the
amendment concerning this crime by at least 30 States Parties.
What do you understand by crime of aggression?
4.0 CONCLUSION
Till date, the ICC has prosecuted those involved in crimes as stated
above. However, it does not just convict offenders, it attempts to
rehabilitate offenders. This was why the Rome Statute created two
independent institutions: the International Criminal Court and the Trust
Fund for Victims. While it is impossible to fully undo the harm caused
by genocide, war crimes, crimes against humanity and the crime of
aggression, it is possible to help survivors, in particular, the most
vulnerable among them, rebuild their lives and regain their dignity and
status as fully-functioning members of their societies.
The Trust Fund for Victims advocates for victims and mobilises
individuals, institutions with resources, and the goodwill of those in
power for the benefit of victims and their communities. It funds or sets
up innovative projects to meet victims’ physical, material, or
psychological needs. It may also directly undertake activities as and
when requested by the Court. The Trust Fund for Victims can act for the
benefit of victims of crimes, regardless of whether there is a conviction
by the ICC. It cooperates with the Court to avoid any interference with
ongoing legal proceedings.
5.0 SUMMARY
In this unit, we have looked at the International Criminal Court. It

examined its creation and crimes coming under its jurisdiction. It also
states the limits to the power of the Court as that which prosecute
individuals with the support of the state and not states for the
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enforcement of international law found in the Rome Statute. The

responsibility to enforce warrants of arrest in all cases remains with
states. In establishing the ICC, the states set up a system based on two
pillars. The Court itself is the judicial pillar. The operational pillar
belongs to states, including the enforcement of Court’s orders.
States Parties to the Rome Statute have a legal obligation to cooperate

fully with the ICC. When a State Party fails to comply with a request to
cooperate, the Court may make a finding to that effect and refer the
matter for further action to the Assembly of States Parties. When the
Court's jurisdiction is triggered by the Security Council, the duty to
cooperate extends to all UN Member States, regardless of whether or not
they are a Party to the Statute. The crimes within the jurisdiction of the
Court are the gravest crimes known to humanity and as provided for by
article 29 of the Statute they shall not be subject to any statute of
limitations. Warrants of arrest are lifetime orders and therefore
individuals still at large will sooner or later face the Court.
1. With adequate examples, state the major contributions and

weaknesses of the International Criminal Court to International
Law.
2. The international war on terror has subjected many nationals to
torture and other inhuman treatment especially in the Western
World and the United States in particular, how plausible is the
ICC crimes against humanity in the protection of peoples’ rights?
7.0 REFERENCE/FURTHER READING
Scabas, A. W. (2007). An Introduction to the International Criminal

Court. Cambridge: Cambridge University Press.
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UNIT 3 THE AFRICAN UNION AND ITS COMMISSION

ON HUMAN RIGHTS
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The African Union and its Organs
3.2 The African Union and Conflict Resolution
3.3 African Commission on Human Rights
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
There are many reasons to examine the role of the African Union in the
study of International Law. First, it represents African only organisation
having all the members of the continent and covering their general
issues. Furthermore, its constitution as contained in its constitutive act
accommodates the contemporary challenges facing African countries in
particular in today’s globalised world. In addition, the African Union
has created organs like the Court of Justice similar to the International
Court of Justice created by the United Nations.
In this unit, the formation of the African Union is treated as well as

mention is made of the organs of the organisation. Due attention is given
to the Court of the organisation and its contributions to the development
of international law as far as it affects Africa and its people. The unit
also looks at the African Commission for the promotion of Human
Rights.
2.0 OBJECTIVES
• discuss circumstances surrounding the emergence and formation

of the African Union
• identify its major organs and their various functions and
contributions to International Law
• discuss the major duties of the African Union Court of Justice
• state the weaknesses of the African Union and the Court of
Justice in addressing contemporary challenges in Africa.
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3.0 MAIN CONTENT
3.1 The African Union and its Organs
The African Union emerged from the Organisation of African Unity

meeting of Heads of States and Government at the Durban, South Africa
in 2002. Created as an Organisation for the promotion of continental
peace, unity and cooperation among its members and for the protection
of the independence and sovereignty of African states in 1963, the
developments in the world contributed to the adoption of a more
contemporary organisation that can meet the yearning and aspirations of
African States after these states have acquired independence.
The African Union has 54 member nations. Its headquarters is in Addis

Ababa, Ethiopia. The organisation was initially founded in Addis Ababa
on May 25, 1963, as the Organisation of African Unity. It retained that
name until 2002 when it formally became the African Union (AU). In its
new organisation, it creates organs that take into consideration the
emerging issues that have more relevance to Africans than the quest for
independence and protection of territorial integrity that were the order of
the day at its creation. The AU is divided into 8 commissions and 14
directorates. However, the Assembly of the Heads of States and
Governments is the supreme organ. It consists of a representative from
each member nation, usually the head of state. The Assembly meets at
least once a year. The key organ for the day-to-day functioning of the
AU is the AU Commission.
The African Union can be said to have two types of organs i.e. nine
standing organs and ad hoc organs created according to the needs of the
organisation.
The standing organs are:
(a) The Assembly of the Union;

(b) The Executive Council;
(c) The Pan-African Parliament;
(d) The Court of Justice;
(e) The Commission;
(f) The Permanent Representatives Committee;
(g) The Specialised Technical Committees;
(h) The Economic, Social and Cultural Council; and
(i) The Financial Institutions.
There is also provision for other organs that the Assembly may decide to
establish as the occasion requires.
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Stating clearly the objectives and principles of the African Union,

discuss the relevance of the organisations and its organs to the protection
of Africa and African states in the international system?
3.2 The African Union and Conflict Resolution
Prior to the emergence of the African Union, the OAU was responsible
for the unity as well as protection of the sovereign integrity of African
states. In the OAU Charter, African states were prevented from
interfering in the internal affairs of a member state so as to prevent
annexation and regular conflict that was part of the African states during
the first few decades of independence.
However, the African Union Constitutive Act was modified to

accommodate violence that a state might not be able to handle on its
own. While it recognises peaceful resolution of conflicts among
Member States of the Union through such appropriate means as may be
decided upon by the Assembly, prohibition of the use of force or threat
to use force among Member States of the Union, non-interference by
any Member State in the internal affairs of another; the Union accepts
the right to intervene in a Member State pursuant to a decision of the
Assembly in respect of grave circumstances, namely war crimes,
genocide and crimes against humanity. The right of Member States to
request intervention from the Union in order to restore peace and
security is also allowed in the African Union principle.
African leaders also identify poverty and underdevelopment as a cause

of conflict. This is perhaps one of the visions for a partnership that will
reduce poverty and contribute to development on the continent. One way
to address this is the African Peer Review Mechanism (APRM).
Compare and contrast the Organisation of African Unity and the African
Union approach to conflict resolution.
3.3 African Peer Review Mechanism Commission on Human

Rights
The African Peer Review Mechanism (APRM) is an instrument

voluntarily acceded to by member States of the African Union as an
African self-monitoring mechanism. The mandate of the African Peer
Review Mechanism is to ensure that the policies and practices of
participating states conform to the agreed political, economic and
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corporate governance values, codes and standards contained in the

Declaration on Democracy, Political, Economic and Corporate
Governance.
The APRM is the mutually agreed instrument for self-monitoring by the

participating member governments. Its process looks at four focus areas:
1. Democracy and Good Political Governance: This area looks at

ensuring that member state constitutions reflect the democratic
ethos, provide accountable governance and that political
representation is promoted, allowing all citizens to participate in
the political process in a free and fair political environment.
2. Economic Governance and Management: Good economic
governance including transparency in financial management is an
essential pre-requisite for promoting economic growth and
reducing poverty.
3. Corporate Governance: This area focuses on promoting ethical
principles, values and practices that are in line with broader social
and economic goals to benefit all citizens. It works to promote a
sound framework for good corporate governance.
4. Socio-Economic Development: Poverty can only be effectively
tackled through the promotion of democracy, good governance,
peace and security as well as the development of human and
physical resources.
4.0 CONCLUSION
Since its transformation from the OAU to the AU, African leaders have
depended on the Organisation for the promotion and protection of
regulations and relationships between and among themselves. Its
proceedings have also contributed to some sort of development and
conflict reduction initiatives in Africa.
5.0 SUMMARY
The above has described the emergence of the African Union. It points
out that the AU widened up its scope and area of interests beyond the
earlier definition of the OAU. However, it retains some essential parts of
the organisation that have unity and developmental implications for
Africa. The Union also has organs that have similarities with the United
Nations and the European Union.
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Africa is the most underdeveloped part of the world. How useful are
sub-regional organisations in addressing the socio-political and
economic rights of African people?
Murithi, T. (2005). The African Union: Pan-Africanism, Peace-building

and Development. Vermont: Ash Gate Pub Co.
The African Union Constitutive Act
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UNIT 4 THE LIMITATIONS AND POSSIBILITIES OF

INTERNATIONAL LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Power and Potency of International Law
3.2 The Weaknesses and Limitations of International Law
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
From our studies so far, so much has been examined about international
law. The course shows that international law emanates from
arrangements that states have with one another so as to modulate and
regulate their interactions with one another. With the acceptance of
international law and compliance by states, it is expected that there will
be peace in international relations.
As the last unit in the last module, this unit identifies the major strengths
and weaknesses of international law in international relations. This is
done with the understanding that states ratification of many international
laws are subject to ratification by the national or local law making body
of any state before it becomes acceptable and such state recognised as
party to the law. States also subject most laws null and void when such
contravene municipal laws.
2.0 OBJECTIVES
• state the strengths and weaknesses of international law

• argue for and against the importance of international law as well
as the reason for the preservation of municipal laws by states
• discuss why international law can be an instrument in
international relations.
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3.0 MAIN CONTENT
3.1 The Power and Potency of International Law
International Law has gained wide usage and acceptance by states and
other actors in the international system. Though it is often criticised as
weak and unable to regulate states behaviour, it has a number of
strengths and advantages which include:
For the United Nations, without International Law, there could be chaos.
International law sets up a framework based on states as the principal
actors in the international legal system, and it defines their legal
responsibilities in their conduct with each other, and, within state
boundaries, with their treatment of individuals. Its domain encompasses
human rights, disarmament, international crime, refugees, migration,
nationality problems, and the treatment of prisoners, the use of force,
and the conduct of war, among others. It also regulates the global
commons, such as the environment, sustainable development,
international waters, outer space, global communications and world
trade. International law does work, at times invisibly and yet
successfully. World trade and the global economy depend on it, as it
regulates the activities required to conduct business across borders, such
as financial transactions and transportation of goods. There are treaties
for roads, highways, railroads, civil aviation, bodies of water and access
to shipping for states that are landlocked. And as new needs arise,
whether to prevent or punish terrorist acts or to regulate e-commerce,
new treaties are being developed.
International Law helps to monitor and regulate the relationship between

provinces and its international entities. This means it can govern
international criminal law. Then there of course is the private
international law which in collaboration with supranational laws which
is the law of the nations and supranational organisations. Basically these
laws are in place to make sure that there are no people out there
violating laws. Here’s where it becomes important: let’s say your
country is shipping things to another country and you expect to be paid
for them, by having an international law in place it ensures that you are
going to be paid because even if that other country would like to
withhold payment for any reason the international law will supersede the
private laws and force payment. If payment is not collected then there
will be consequences to pay.
Increasingly, parties are submitting disputes arising out of international

contracts to arbitration. While this is true for general commercial
contracts, it is a particularly marked trend in the construction, energy
and investment dispute areas. The success of international arbitration
167
can be explained by several major advantages it offers in comparison

with litigation, especially litigation in foreign courts. However, certain
disadvantages also need to be taken into account by parties in deciding
whether to enter into an arbitration agreement. Both the main benefits
and the principal drawbacks of international arbitration are outlined
below.
3.2 The Weaknesses and Limitations of International Law
International Law has also been faced with many challenges. Its major
weakness arises out of the fact that its pact are not binding on states
since they enter into it voluntarily. In addition, the range of international
law is much smaller than the range of national law. Although the gap is
gradually narrowing, international law still is and will likely remain a
fragmentary legal order simply because International obligations are
based on consent not force.
Breaches of international law occur more frequently and are less

effectively controlled. Internationally, the rule of power still plays a
more important role than nationally where the rule of law is much more
firmly established.
Rudimentary character of the institutions which make and apply

international law and adjudicate disputes about international legal issues
which is primitive (i.e. anarchical that does not mean war but lack of
order) in the character of international community affects international
law as the legal order of the international community.
4.0 CONCLUSION
The composition of the international system makes International Law a

subject of many controversy but states still enter into agreements that
form part of International Law. States cannot live in isolation and so
must engage other actors. It can however be observed that most of these
regulations are entered into for states personal interest, which states can
violate when these interests are not protected by the International Law.
This is why most constitutions render null and void to that state.
5.0 SUMMARY
The above unit looked at the importance of International Law to its

practice. It also examines some of the weaknesses of International Law.
It concludes that states set international laws and are parties to it but are
apt to respecting it mostly when it protects their interests. In addition,
just as most individuals like to conform to norms so as not to be labeled
168
INR 331 MODULE 5
deviant, most states respect International Law as much as it gives them

the goodwill they need in International Relations.
1. What are the strengths and weaknesses of International law in

state relations with one another?
2. Using constitutional positions of some states, how supreme are
international law to local rules and activities?
Gray, C. (2000). International Law and the Use of Force (1st ed.).
Meliza, Haradinaj “Compare the Strengths and Weaknesses of National

and International Law? To what extent can they be said to be
similar or different?”
McGinnis, O. J. (2006). “The Comparative Disadvantage of Customary

International Law”, Harvard Journal of Law & Public Policy,
Vol. 30 No. 1.
Onuma, Y. (2003). “International Law in and with International Politics:

the Functions of International Law in International Society”.
European Journal of International Law, Vol. 14 No. 1, pp.105-
139.
169

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COURSE

Course Team Dr. Iwebunor Okwe (Course Developer/Writer) -

NATIONAL OPEN UNIVERSITY OF NIGERIA

National Open University of Nigeria

All Rights Reserved

INR 331 - International Law is a three credit unit course for

Overall, this module will fill an important niche in the study of

WHAT YOU WILL LEARN IN THIS COURSE

Considering the proliferation of states and their changing/multiple roles

The aims of the course are to:

• explain in details the meaning and foundation of the concept

On successful completion of the course you should be able to:

• define international law, its principles and a number of concepts

WORKING THROUGH THIS COURSE

Module 1 Starting Point: Understanding the Concept

Unit 1 What is International Law?

Module2 International Law: Sources, Theories, Approaches and

Unit 1 Sources and Subjects of International Law

Module 3 Some International Laws and the Environment

Unit 1 Laws of War

Module 4 The Politics of International Laws

Unit 1 Sovereignty and Recognition of States in Modern

Module 5 International Law Related Institutions

Unit 1 The United Nations and the International Court of Justice

TEXTBOOKS AND REFERENCES

FINAL EXAMINATION AND GRADING

There will be a final examination at the end of this course. The

seriously as your examination questions will be drawn from the question

COURSE MARKING SCHEME

Theories of International Law: Assignment

WHAT YOU WILL NEED IN THE COURSE

The knowledge of Introduction to International Law and Diplomacy in

FACILITATORS/TUTORS AND TUTORIALS

The course provides 15 hours of tutorials in support of the course. You

MODULE 1 STARTING POINT: UNDERSTANDING

Unit 1 What is International Law?

UNIT 1 WHAT IS INTERNATIONAL LAW?

Through its diplomatic activities, Europe as a continent has contributed

system-wide analysis, international law is an important resource for

International law comprises those structural legal relations which are

At the end of this unit, you should be able to:

• define and explain the concept international law

• identify the different component areas of international law.

3.0 MAIN CONTENT

3.1 Definition and Meaning of International Law

International law refers to the universal system of rules and principles

members and; the establishment of a possible future for societies, in

There is the need to emphasise that international law is different from

is governed by international law because there are international treaties

What do you understand by international law?

3.2 Why Study International Law?

International law can be studied to understand the history of interstate

International law can be studied in order to have an understanding of the

arrangements that we cannot analyse without a clear understanding of

International law can be studied to find out what the distinct

International law can be studied with the purpose of understanding the

norms and how a student of international relations can distinguish

International law is worth studying because it is a site where we can

List and explain five importance of international law.

The international society is made up of states and non state actors. It is