PRINCIPLES OF INTERNATIONAL LAW DENNING OKATO

PRINCIPLES OF INTERNATIONAL LAW

Definitions
Black’s Law Dictionary (Bryan Garner)
The legal system governing the relationships between nations.
The law applicable to states in their mutual relations and to individuals in their
relations with states.
Barron’s Law Dictionary 5th Edition (Steven Gifis)
Rules and principles that govern questions of right between nations
Dictionary of Law (Julian Webb)
A body of rules that regulates the relationship between sovereign states.
Traditional Definition
A body of rules which regulates the relationship between civilized states.
Modern Definition
A body of rules or principles which regulate the relationship between states
amongst themselves and other subjects of international law.
A body of rules or principles which govern the relations between entities
endowed with international legal personality.
Jeremy Bentham
A body of legal rules, norms and standards that apply between sovereign states
and other entities that are legally recognized as international actors.
Rudiger Wolfrum
The legal order which is meant to structure the interaction between entities
participating in and shaping international relations.
Discussion point.
Is international law a toothless dog? (is it binding?)

 Consent
 Pacta sunt servanda (the agreement must be kept)
 Good faith
 Sanctions

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Essence of International Law

 Regulates the relationship between subjects of international law.

 Provides for applicable law whenever a dispute arises.
 Mutual respect among states and/or other subjects of international law.
International Law as Legal System
As opposed to national law, international law is its own legal system because of
the following reasons:
 It has its own subjects.
 It has its own objects.
 It has its own applicable laws.
 It has its own sphere of operation.
Factors that have influenced the development of international law.
1. Customs and Practices.
They have played a critical role in the development of international law. The
customs and practices of states have been reduced into law through treaty.
Different areas of international law have developed through the different
practices that states have had over the years.
 Diplomacy: this has developed from the custom of sending messengers
to different states and the practice was mutually accepted that you do
not harm a messenger. This led to the two important conventions on
diplomacy i.e. Vienna Convention on Diplomatic Relations (VCDR) and
Vienna Convention on Consular Relations (VCCR).
 Humanitarian law: this was after the 2nd world war where countries
came together and decided that there would never be such war ever
again due to the atrocities that had been committed to the human race.
States mutually agreed to have a law in place that would bind them. This
led to the UN Charter of 1945 and the 4 Geneva Conventions of 1949.
 Environmental law: states agreed that the environment was an
important aspect and needed to be protected and conserved. States
convened through their representatives in 1972 and the Stockholm
Declaration came to being whereas in 1992, the Rio Declaration was
passed during the Earth Summit.

2. Treaties and Conventions

The Vienna Convention on the Law of Treaties was agreed upon by states in
1969, which has played a crucial role on the procedure of treaty making

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and/or formation. Most bits of international law are found in conventions and
treaties hence playing a key role in development of international law.
3. General Principles of Law
Res Judicata (the court has already exercised its judicial mind on a matter).
Estopel
Acquiescence
4. Judicial Precedents. (Case Law)
Corfu Channel Case
North Sea Continental Shelf Cases.
5. Writings of scholars
Hugo Grotius – Law of the Sea
Alberico Gentilli – Laws of War (De Jure Belli)
Ian Brownlie
6. Notable events in history.
World War
French Revolution
7. Declarations.
Soft law.
Not signed by the parties
Not binding unless they have been domesticated.

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SOURCES OF INTERNATIONAL LAW.

Where do you find international law
Ian Brownie states that to find international law, one looks at Article 38 (1) of
Statute of International Court of Justice (ICJ) which provides that when a
dispute is brought before the ICJ it shall in accordance with international law
apply:

1. International conventions
2. International customs
3. Writings of renowned publicists
4. General principles of law
5. Judicial Precedents

Ian Brownie therefore inferred the above mentioned to be sources of

international law. “The most authoritative statement about the sources of
international law can be found in Article 38(1) of statute of ICJ”

INTERNATIONAL CUSTOMS.
A custom is a practice and has an element of repetition .There is a difference
between mere and legal customs e.g. Red carpet for head of states is not a legal
custom .The custom of privileges to diplomats is a legal custom and hence it’s
binding and the law is the convention relating to diplomatic relations.
Identification of a legal custom.
Ian Brownie defines x-tics of a custom as follows
1. Long passage of duration of time
2. Uniformity and constistency
3. General practice or abstention from practice
4. Opinio Juris’ –state practice amounts to a legal obligation

Long passage of duration of time

This x-tic is all about time /duration. The x-tics of long passage of duration of
time is not absolute and hence there are exceptions :In relation to the exclusive
economic zone which was adopted in1971 and by 1984 it was generally
accepted that EEZ had acquired the status of an international custom case
:North Sea Continental Shelf Case (West Germany vs Denmark and Holland )

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In this case it was stated that even where a custom had existed for a
short time what was more important is that it was practiced extensively
and uniformly.

Uniformity and consistency.

An international custom must be practiced consistently and uniformly (sense of

continuity) uniformity –practiced in the same manner in different places.

THE ASYLUM CASE (PERU vs COLUMBIA)

There was a Peruvian dissident (contrary political views) who sought asylum in
the Columbia embassy in Lima Peru. The question that was brought to the ICJ
whether diplomatic asylum was an international custom .The matter was
brought before court .The court held that there was too much inconsistency
and discrepancy both in the attitude of states and their practice for this
practice to be deemed an international custom in South America .Hence the
grant of asylum was to be held not be mere abstention, it should be based on
some obligation.

Generality of practice or abstention from practice

SS LOTUS CASE (FRANCE vs TURKEY)

There was a collision between French and Turkish vessels and as a result some
Turkish sailors were killed .When the French ship docked in Constantinople in
Turkey .The French captain was arrested and charged with manslaughter .The
French protested arguing that criminal proceedings are not instituted in
collision cases before the ICJ .The question was whether abstention from
instituting criminal proceedings are not instituted in collision cases before the
ICJ. The questions was whether abstention from instituting criminal
proceedings was an international custom. The court held that it was a mere
abstention and hence not an international custom should be based on
acceptance and recognition.

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Opinio juris

The opinion of the laws

A practice is based on a legal requirement that is not a mere practice.

Example: Not telling lies is a mere practice but not telling lies in court is a legal
requirement .The custom is obligatory

An International custom has two elements

1. Material element –state practice

2. Psychological element-opinion saris –legal requirement

REF : North Sea continental shelf case

Summary
1. Long passage of duration of time (consistency and generality) (regular
and repeated). North Sea Continental Shelf Cases (West Germany v
Holland Denmark)
2. Uniformity and consistency/generality (The Asylum Case) (Columbia v
Peru)
3. Generality of practice or abstention from practice (SS Lotus Case)
(France v Turkey)
4. Opinio Juris

INTERNATIONAL CONVENTIONS
This is a treaty based on consent.
A treaty is an international agreement between states in accordance with
international law in written form whatever its designation.
Can be designated varyingly charter, pact, covenant ,convention etc.
They have capacity to make laws hence can be called laws making treaties.
Bilateral treaties only create contractual obligations between the two parties
hence not law creating (treaty contract)

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Multilateral treaty has a greater effect its binding power is great compared to
bilateral which binds only the two states.
Consent is expressed in many ways e .g Signing, ratification, re –affirmation of
the consent of a party, exchange of instruments and accession.
Agreement between South Sudan and Republic of Sudan Accession joining an
already existing agreement.
Summary
Treaties
Multilateral treaties – law making treaties/treaties between many states –
greater binding power.
Bilateral treaties – treaty contracts/ treaties between two states – are not law
creating.
Designated as follows: Charter, pact, covenant, convention etc.
Treaties are based on consent.
Ways in which consent can be expressed:
Signing, ratification, exchange of instruments, accession (join an existing
treaty).
Pacta Sunt Servanda

RELATIONSHIP BETWEEN NATIONAL LAW AND INTERNATIONAL LAW.

What’s the relationship between national (municipal law) law and international
law?
International law governs the relationship between states and other subjects of
international law. It is generally concerned with the international community.
Municipal law is a reflection of state sovereignty and governs the relationship
between individuals among themselves and individuals and state organs.
The relationship between the two legal systems has been cast into two debates.
Monists/monistic theories.
Dualists/dualistic theories.

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Monists
International law and municipal law are part of the same legal
system/universal legal order.
However, international law is supreme even in the national law sphere. Article
2(5)(6) CoK. Charpter 4 of CoK Bill of Rights).
Followers of the monistic theory;
Hans Kelsen – International law is the basic norm or the grund norm – national
law develops from international law hence it is the one constituted with
fundamental rights/norms which are universally recognized.
HerschLauterpacht
Monists hold that whenever there is a dispute between national law and
international law, international law will prevail.
The thinking of monists is based on the suspicion that states (municipal law)
are the greatest violators of human rights. Hence international law is best
suited to protect human rights.

Dualists
International law and national law are two independent and separate legal
systems.
This theory is based on this:
That international law is applicable between sovereign states.
That national law applies within a state to regulate the activities of citizens.
Neither of the two legal systems has power to alter or create the rules of the
other.
In cases of a conflict between the two, a municipal court will apply municipal
law at the national level, whereas at the international level, international law
will apply.
Proponents of this theory are:
Triepel argues based on subjects, individuals are the subjects of national law
while states are subjects of international law. Each binds their own subjects.
Anzilotti argues based on fundamental principles by which each system is
conditioned. He states that municipal law is conditioned by the fundamental
principle or the grund norm (constitution) which is to be obeyed; international
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is conditioned by the principle of pacta sunt servanda (The agreement must be

kept) i.e. treaties between states are to be observed in good faith.
Consequently, the two legal systems are so distinct that a conflict between
them is impossible.

The third approach

This approach holds that the two belong to separate legal systems and that
each is superior in their own field.
The debate as to which one is superior should not arise; the comparison has no
validity at all.

International law before national law

Mwangi Patrick Githinji & 14 Others vs IOM
International Organization on Migration has a universal character. Employees
of IOM who were Kenyans were summarily dismissed and went to court to
petition the dismissal. The counsel of IOM raised a preliminary question that
the courts in Kenya do not have jurisdiction over IOM i.e. IOM is immune from
jurisdiction and would be based on the Vienna Convention Relating to
Representation of States to International Organizations of a universal
character. This convention accords immunity to international organizations.
The case suggests that where there is a conflict between national and
international law; international law prevails in the area of diplomatic
relations. The petition was dismissed. This case shows how Kenya relates to
international law. International organizations are not subject to laws of Kenya.
Lockerbie Case
Scotland wanted the Libyan suspects of Lockerbie to be extradited; Libya
argued that it did not have extradition rules. The court held that the
inadequacy of internal law cannot be a basis for non-compliance with
international law. That the weakness of national law cannot be a basis of not
complying with international law.

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Example - Post-election violence in Kenya not having laws on crimes against

humanity was not liable, i.e. the perpetrators could not be charged under any
law.
Violation against human rights or crimes set out in the Rome statute

Article 27 of Vienna Convention on the Law of Treaties 1969

Provides that the weakness or inadequacy of Municipal law cannot be a basis
of non-compliance with international law.
Alabama Arbitration Case (USA VS UK)
Some vessels were constructed in the UK and left the shores of UK for US and
upon arrival they destroyed American vessels, the US went to court claiming
damages. The UK argued that it did not have laws to restrict ships from sailing
from its shores; the court held that the inadequacy of internal law cannot be a
basis of non-compliance with international law.

National law before international law.

R v Okunda
It was held that any law including the Official Secrets Act of East Africa which
was contrary to Constitution of Kenya is null and void. It shows national law is
superior to any other law. Article 2(4) CoK.

How can international law become part of national law.

Domestication.
Happens through specific means, either
Doctrine of incorporation or doctrine of transformation.
Doctrine of incorporation.
It relates to international customs and provides that international law
automatically becomes part of national law, either through declaration or a
legal provision. Article 2(5)(6) CoK.
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Doctrine of Transformation.
Relates to international treaties which provide that international law can
become part of national law through a special procedure which can be
legislative.
Examples are
Rome Statute which is part of laws of Kenya through the International Crimes
Act,
The Vienna Convention on Diplomatic Relations of 1961 and the Vienna
Convention on Consular Relations of 1963 are part of laws of Kenya through the
enactment of Privileges and Immunities Act,
The Geneva Convention relating to Status of Refugees of 1961 and OAU
Convention relating to Status of Refugees of 1969 are now part of laws of Kenya
through the Refugee Act 2006. (The Refugee Bill 2019 currently in National
Assembly)
Task: Find out more examples of laws.
Previously, the Executive made law without Parliament’s interference but after
passage of Ratification of Treaties Bill, all treaties are now subjected to the
legislative process and public opinion before ratification.

SUBJECTS OF INTERNATIONAL LAW

A subject is an entity that is conferred upon by law rights, obligations and
capacity to enforce claims.
Subjects of international law have international legal personality.
 States
 International Organizations
 State like entities
 Liberation movements
 Individuals in special circumstances

1. STATES

They are the first subjects of international law. States came together to create
international law and subjected themselves to international law. This is found
in the original definition of international law.

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The Monte Video Convention of 1933 provides that a state has the following
characteristics;

 Defined territory
 Permanent population
 Government
 Capacity to enter into legal relations

Additional characteristics of a state may include;

 Right to self determination
 Recognition

DEFINED TERRITORY

A state ordinarily should have a defined territory. Should have clearly defined
borders, to appreciate the demarcations of its borders. (General View)
Borders of a state separate it from the other states and are clearly defined.
This characteristic is not absolute and where there is deficiency as to the
demarcation of borders, a state still retains its statehood.
An example is Israel which has disputes with its borders but it is still a state.
Kenya also had disputed with Somalia but it’s still a state. The deficiency of
these characteristics does not negate statehood.
PERMANENT POPULATION
A state ordinarily should have population i.e. within a state there should be
inhabitants. The population of a state may be affected by circumstances e.g.
Natural calamities or manmade problems.
If population is affected the state does not lose its statehood. (Reduction in
population does not negate statehood)
Does not demand a specific number of inhabitants of a state.

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GOVERNMENT
Government is the entity that drives the country. It is the engine of any
functional state.
Government should have effective control. Not all governments have effective
control over their territories but still a state does not lose its statehood. An
example is Somalia which at one time their govt. was situated in Nairobi Kenya
due to war. (De Jure (by right) and De Facto (by fact)
The characteristic is not absolute. Even if there is deficiency statehood does not
get lost.

CAPACITY TO ENTER INTO LEGAL RELATIONS

No state is an island and must engage with other states. A state must co-
operate with other states. In Kenya for example, development arises from our
relations with other states. Our relation with China helps in development of
roads etc.
A state enjoys statehood if it’s not isolated from other states.
At a point South Africa was isolated from other states due to apartheid. Trade
sanctions were imposed against it.
Cuba at some point was isolated from the rest of the world and hence they did
not sell or buy any new cars.

RIGHT TO SELF DETERMINATION

A state should be able to determine its own destiny politically, socially and
economically.
A state should determine its own political system whether presidential or
parliamentary.
Third generation right
A right to determine the use of natural resources
Right to exploit our natural resources
This right should be exercised in a manner that does not affect other states.

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RECOGNITION
A state in normal circumstances should be recognized by other states.
For a state to enjoy its statehood it requires recognition and acknowledgment.
Recognition can move into diplomatic relations.

2. INTERNATIONAL ORGANIZATIONS

Came up as a development of international law.

States were unable to resolve specific challenges hence need for international
organizations to help resolve the conflicts and challenges.
An example is the UN Charter which was signed by states and has different
departments to deal with specific challenges.
WHO is a specialized agency of the United Nations that deals with cases of
people affected by hunger, drought and famine.
Article 105 of UN Charter not only recognizes UN and its agencies but also its
privileges and immunities.
They must be international organizations of universal character e.g. UN, UNEP,
UNDP AND WHO
They have international legal personality (ILP) which can be absolute or
qualified. Absolute ILP means that the entity is recognized by most states.
Other international organizations have qualified ILP legal personality i.e. it is
not recognized by many states but specific which center legal recognition to
them.
Not all international organizations are subjects of international law since it’s not
all that are recognized by states.
3. STATE LIKE ENTITIES E.G VATICAN

Vatican was established under Lateran Agreement of 1968 between Italy and
the Catholic Church.
The Vatican was given a territory called Vatican City which is autonomous.
The Vatican has characteristics of a state
 Territory

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 Has a form of religious organization and structure where pope is at the

top.
 Have laws i.e. canon laws which help resolve issues.
 Has capacity to enter into relations

Vatican has a representative of diplomatic mission in Kenya called Nuncio who

is like an ambassador and enjoys all diplomatic immunity.
Vatican is a state within a state (quasi state)
Is Zanzibar a state like entity?

4. LIBERATION MOVEMENTS

Movements fighting for right to self determination

They are only recognized if they conform to international law in their struggle
e.g. if they respect humanitarian law by distinguishing combatants and non-
combatants.
It should be recognized e.g. ANC in SA, Palestinian Liberation Org, SPLM
(Sudan People Liberation Movements)
It must respect democracy, human rights etc.
5. INDIVIDUALS IN SPECIAL CIRCUMSTANCES

Ordinarily individuals are not subjects of international law but national law,
however in special circumstances individuals can become subjects of
international law e.g. where they commit international crimes they become
subjects of international law.
This position was adopted after 2nd World war when serious human rights
violations were committed and there was need to bring the perpetrators to
account. The manner in which they could be held to account was by
introduction of principle of individual criminal responsibility.
This meant that even where crimes are committed by states there are
individuals behind the crimes. (Behind every crime there is an individual)

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RECOGNITION
An important concept under international law and can be also referred to as
acknowledgement or willingness to enter into relations with an entity.
The two levels are;
 Recognition of states
 Recognition of governments
 Recognition of freedom movements

1. RECOGNITION OF STATES

This only happens once; at the point when the state becomes independent.
When South Sudan became independent it was recognized as a new state and
can be through press statement, congratulatory messages but more so through
diplomatic relations.
Two theories exist;
 CONSTITUTIVE THEORY

Holds that an entity only becomes a state after recognition i.e. before
recognition the entity does not acquire statehood.

 DECLARATORY THEORY

Holds that an entity attains statehood by the fulfillment of the

characteristics/requirements of a state in accordance with Monte Video
Convention and additional requirements.

2. RECOGNITION OF GOVERNMENTS

Recognition of governments unlike that of states can happen severally.

Governments are recognized as and when they came into power.
Where there is a legitimate dispute states do not recognize the govt. in power.

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In 2008, there was an issue about recognition since the elections were not free
and fair but in 2002 the NARC gov’t was recognized since no complaints arose.
Issues of non-recognition arise in cases of political conflicts or elections that
are not free and fair.

3. RECOGNITION OF FREEDOM MOVEMENTS

Not all freedom movements are recognized.

Those that are recognized are those that respect human rights and democracy.
Freedom movements that are subjects of international laws are those that are
recognized e.g. ANC, SPLM, PLO, and SWAPO
Those that are not recognized are LRA.

LEGAL EFFECT OF RECOGNITION

Research on the effect of recognition.

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LAW OF TREATIES
A treaty is defined as an international agreement concluded between states in written
form and governed by international law, whether embodied in a single document or in
two or more related instruments (optional protocols) and whatever its designation( Pact,
convention, covenant, charter). The key elements of a treaty are:
i. An international agreement –to be a treaty an agreement has to have an
international character .It must be an agreement between international subjects.
ii. Concluded between states –the 1969 Vienna Convention on the Law of Treaties
applies to agreements concluded between states. Agreements between states and
individuals are not governed by international law.
iii. In written form-the convention (VCLT) does not apply to oral agreements, thus
for a treaty to be recognized as per the convention, it has to be in written form.
iv. Governed by international law- this embraces the element of an intention to
create obligations under international law, thus if the intention is absent then
there will be no treaty.
v. Embodied in a single instrument or in two or more related instruments –this
recognizes that the classic form of a treaty is a single document which has often
been drawn in less formal ways such as exchange of note.
vi. Whatever its particular designation-in most cases, it is more a matter of practice
of either international organizations, group of states or political preference which
determines how a treaty is named. However, the name does not determine the
status of the instrument, rather, what is decisive is whether the negotiating
states intend for it to be binding in international law.

Types of treaties
There are two types of treaties namely:
1. Bilateral treaties- these are treaties formed between two states.
2. Multilateral treaties-these are treaties formed between two or more states.

Treaty formation.
The following are the main steps in the formation of a treaty:
1. Accrediting of representatives.

The first step in the formation of a treaty is accrediting the persons who will act on
behalf of the contracting parties. States authorize representatives to represent them
for negotiation, adoption and signature of a treaty.

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A person is considered as representing a state for the purpose of adopting or

authenticating the text of a treaty if:

i. He or she produces full powers i.e a document emanating from the

competent authority of a state designating a person to represent the state
for accomplishing any particular act in respect to a treaty.
ii. It appears from the practice of the states concerned that their intention
was to consider that person as representing the state.

In Kenya, the person tasked with representing the country is the Cabinet
Secretary for foreign affairs.

2. Negotiation.

The accredited persons of contracting states proceed for negotiation. In the

state of negotiations, the proposals of the negotiating parties are put forward,
discussed, harmonized and tentatively agreed upon while negotiating a treaty.
The representative acts in consultation with their governments. The procedure
at diplomatic conferences runs in a standard pattern where apart from steering
committees, legal and drafting ones are at an early stage to receive and review
the draft provisions proposed by the various delegations.

3. Adoption.

When states have negotiated a treaty, they settle its form and content by
drafting up a text setting out its provisions, in expressing their agreement with
this text, states are said to have adopted this text.
The Vienna Convention provides that the adoption of any text at an
international conference is to take place by the vote of two thirds of the states
present, unless by the same majority these states decide to apply a different
rule.
4. Authentication, signature and exchange of documents.

When the final draft of the treaty has been agreed upon, the instrument is
ready for signature. The text may be made public for a period of time before
signature. The act of signature is usually a most formal matter, even in the

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case of bilateral treaties and as to multilateral treaties,’ signature is generally

effected at a formal closing session (séance de cloture) in the course of which
each delegate steps up to a table and signs on behalf of the head of state of
government by whom they were appointed.
The rule is that the text may be authenticated by such procedure as is laid out
in the treaty itself, or as is agreed by the negotiating states themselves, or in
the absence of these, by signature, referendum and signature or by
incorporation in the Final Act of the conference.
Where a treaty is constituted by instruments exchanged by representatives of
the parties, such exchange may result in the parties becoming bound by the
treaty if:
i. The instruments provide that the exchange is to have this effect.
ii. It can otherwise be shown that the parties were agreed that this would be
the effect of this exchange.

5. Ratification.

The next stage is that the representatives who signed the treaty refer it back to
their governments for approval, if such further act of confirmation be expressly
or impliedly necessary. Ordinarily, unless and until a treaty is ratified it does
not bind the states concerned .Ratification means that the state government by
conforming to the constitutional provisions confirms or approves the signature
made by their authorized representative on the treaty. A state becomes bound
by treaty when it ratifies. In Kenyan context, the approving body is the National
Assembly.

6. Accession

In practice, when a state has not signed a treaty it can only accede to it if a
non-signatory may accede to it even before the treaty enters into force. The
term accession has been applied to acceptance by a state of a treaty after the
prescribed numbers of ratifications for its entry into force have been deposited.
Unless the treaty otherwise provides, an instrument of accession does not
finally establish such consent, until exchange of deposit, or notice thereof of
the contracting states is handed over .States accede to a treaty by virtue of a
special accession clause enabling them to accede after the final date for
signature of the treaty, and prescribing the procedure for deposit of accessions.

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7. Entry into force.

The entry into force depends upon the provisions of the treaty. The treaty,
unless where ratification is necessary, comes into force on the date of
signature. In case of ratification, the treaty comes into force after the exchange
or deposit of ratification by the state signatories if so agreed. In the absence of
an agreement in case of ratification, the treaty is deemed to have come into
force with effect from the date of the signatures.
A treaty may also enter into force provisionally. A treaty or part of a treaty is
applied provisionally pending its entry into force if:
a) The treaty itself so provides ;or
b) The negotiating states have in some other manner so agreed.

8. Registration and publication.

After the treaty has been ratified, it has to be registered at the headquarters of
the international organization. The U.N Charter provides:
i. That every treaty and every international agreement entered into by any
member of the U.N after it comes into force shall as soon as possible be
registered with the secretariat and published by it.
ii. No party to any such treaty or international agreement which has not
been registered in accordance with the provisions of the first paragraph
of this article may invoke that treaty or agreement before any organ of
the U.N. The Vienna convention also provides for this under Article 80(1).

9. Application and enforcement.

The final stage of the treaty formation is the actual incorporation, where
necessary, of the treaty provisions in the municipal law of the states, and the
application by such states of these provisions and also, any required
administration and supervision by international organs. The Constitution of

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Kenya 2010 states that any treaty or convention ratified by Kenya shall form
part of the law of under the constitution.

Interpretation of treaties.
The interpretation of treaties, like that of any legal instrument, depends on
what the aims and goals of treaty interpretation are.

1. Subjective approach- this is the approach which asserts that the primary
and only aim and goal of treaty interpretation is to ascertain the intention
of the parties to the treaty.
2. Objective approach- this starts from the proposition that there must exist
a presumption that the intention of the parties is reflected in the text of
the treaty which they drawn up, and that the primary goal of treaty
interpretation is to ascertain the meaning of the text.
3. Teleological approach- this is the approach which maintains that the
decision maker must first ascertain the object and purpose of a treaty and
then interpret it so as to give effect to the object and purpose.

Interpreting a treaty is to elucidate the meaning of its text. The general rule is
that a treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given .The Vienna Convention on the Law of Treaties entails
principles of interpreting treaties from articles 31 to 33.
Article 31 provides for the general rules of interpretation:
1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given in terms of the treaty in their context and
in the light of its object and its purpose.

2. The context for the purpose of interpretation of a treaty shall comprise,

in addition to the text, including its preamble and annexes;
a) Any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty.
b) Any instrument which was made by one or more parties in connection
with the conclusion of the treaty.

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3. There shall be taken into account together with the context;

a) Any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of
Its provisions.
b) Any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation.
c) Any relevant rules of international law applicable in the relations
between the parties
4. A special meaning shall be given to a term if it is established that the
parties so intended.

Supplementary means of interpretation.

Resource may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order
to confirm the meaning relating resulting from the application of article 31, or
to determine the meaning when the interpretation according to article 31;
i. Leaves the meaning ambiguous or obscure;
ii. Leads to a result which is manifestly absurd or unreasonable.

Interpretation of treaties authenticated in two or more languages.

1. When a treaty has been authenticated in two or more languages, the
text is equally authoritative in each language unless the treaty provides
or the treaty agrees that, in case of divergence, a particular text shall
prevail.
2. A version of the treaty in a language other than of those in which the
text was authenticated shall be considered an authentic text only if the
treaty so provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each
authentic text.
4. Except where a particular text prevails in accordance with the first
paragraph, when the composition of the authentic text discloses a
difference of meaning when application of Articles 31 and 32 does not
remove the meaning which best reconciles the texts, having regard to
the object and purpose of the treaty shall be adopted.

The treaty making process.

The treaty making process is well defined in the Treaty Making and Ratification
Act No. 45 of 2012.

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Initiation of treaty making.

1. The relevant state department initiates the treaty making process in such
manner as may be prescribed by the Cabinet Secretary.
2. When deciding whether to initiate the treaty making process or not, the
national executive or relevant state department considers the following:

i. The need that the new treaty is to meet;

ii. The existing legal regime, including the extent of its applicability to the
perceived problem;
iii. The probability of reaching the required measure of agreement on the
solution aimed for;
iv. Any relevant legislative efforts related to the perceived problem;
v. The optional form for the proposed treaty;
vi. The likelihood that the proposed treaty shall be accepted by a sufficient
number of states where the treaty is multilateral;
vii. The anticipated time schedule for completing the treaty making process;
viii. The expected costs of formulating and adopting the treaty in Kenya;
ix. In formulating treaties relating to technical or scientific problems,
whether extensive scientific studies or research have been carried out to
determine the parameters of the problem and the lines of potential
solutions.
3. The national executive or the relevant state department then records
whether the conditions in the above sub section are met, and shall
present a proposal to commence treaty making for approval by the
cabinet.
4. The cabinet then considers and approves or disapproves a proposal for
treaty making presented in accordance with sub section 3 within
reasonable time.

Ratification of treaties.
Ratification of treaties in Kenya is provided for by the Treaty Making and
Ratification Act no 45 of 2012.
It provides for:
Approval by cabinet.

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Where the government intends to ratify a treaty, the Cabinet Secretary of the
relevant state department in consultation with the Attorney General, submits
to the cabinet the treaty together with a memorandum outlining:
a) The objects and subject matter of the treaty.
b) Any constitutional implications including;

i. Any proposed amendment to the constitution and

ii. That the treaty is consistent with the constitution and promotes
constitutional values and objectives.

c) The national interests which may be affected policy and legislative

considerations.
d) Financial implications.
e) Obligations imposed on Kenya by the treaty.
f) Requirements for the implementation of the treaty.
g) Policy and legislative considerations.
h) Ministerial responsibility.
i) Implications on matters relating to counties.
j) The summary of the process leading to the adoption of the treaty.
k) Views of the public on the ratification of the treaty.
l) Whether the treaty sought to be ratified permits reservations and any
recommendations on reservations and declarations.
m) The date of signature.
n) The number of states that are party to the treaty.
o) The proposed text of any reservations that should be entered when
ratifying the treaty in order to protect or advance national interests.
p) Whether expenditure of public funds will be incurred in implementing
the treaty and an estimate where possible of the expenditure.

Consideration by the National Assembly.

Where the Cabinet Secretary approves the ratification of a treaty, he or she
then submits the treaty and a memorandum on the treaty to the speaker of the
National Assembly.
The relevant parliamentary committee, during its consideration of the treaty
ensures public participation in the ratification process in accordance with laid
down parliamentary procedures.
The National Assembly may then approve the ratification of the treaty with or
without reservations to specific provisions of the treaty.

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A proposed reservation is then introduced as a provision into the treaty in the

procedure set out in the standing orders.
Where the National Assembly refuses to approve the ratification of a treaty, the
clerk of the National Assembly submits the resolution of the house to the
relevant Cabinet Secretary within fourteen days of the resolution.
The National Assembly shall not approve the ratification of a treaty or part of it
that is contrary to the Constitution. The same applies to a reservation or part
of a reservation of a treaty if it negates any constitutional provisions.

Approval of ratification.
Where ratification of a treaty is approved by the National Assembly without any
reservations, the relevant Cabinet Secretary shall within thirty days from the
date of ratification prepare the instrument of ratification of the treaty.
Where a treaty is approved for ratification with reservations to some provisions
of the treaty, the treaty shall be ratified with those reservations to the
corresponding article in the treaty.
Where the National Assembly refuses to approve the ratification of the treaty,
the government shall not ratify the treaty.
Ratification of a treaty.
All the instruments of ratification of a treaty shall be signed, sealed and
deposited by the Cabinet Secretary at the requisite international body and a
copy filled with the Registrar of Treaties.
Where a treaty ratified under the Act is subsequently amended or modified, it
shall be ratified only after the procedure set out above.

Invalidation of a treaty.
The following are the chief grounds which render a treaty invalid:
1. Lack of proper authority of the representative – a representative may
purport to bind his or her state when in fact he or she lacks the
authority to do so. This renders the treaty invalid.

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2. Error of fact or situation- a treaty based on an error of fact or situation

forming the essential part of the treaty although it should not exist
invalidates the treaty.
3. Fraud – a treaty based on an error caused by fraud or misrepresentation
is invalid.
4. Corruption of its representative – in case the state consent has been
obtained by means of corruption by its representative by another
negotiating party, the state is entitled to claim that it is invalid.
5. Coercion – a treaty signed or ratified as a result of coercion, that is, by
use of threat of force in violation of the U.N Charter is void.
6. Jus Cogens – a treaty is void if it conflicts with the norms of
international law.
7. Impossibility of being performed – where the obligations created by it are
immoral or are impossible to perform, the treaty is invalid.

Termination of a treaty.
This is provided for by the Vienna Convention on the Law of Treaties.
The consequences for termination include:
1. The convention releases a party from obligations to a treaty when
denunciation or withdrawal is made.
2. If termination does not affect the rights or obligations or legal situation
of the parties created through the execution of the treaty then parties are
allowed to terminate it.
3. When the existence of one of the parties to the contract comes to an end,
or it merges with another state, the treaty is terminated.
4. In the occurrence of war and the party states are enemies, the
contractual obligations come to an end and the treaty is terminated.
5. The treaty can be dissolved by a notice by either party to another. If no
period of the existence of a treaty is prescribed by the parties, then the
treaty can be determined by the requisite period of the termination of
treaties by a notice. Where a prescribed period of notice is given
expressly in the treaty, it must be strictly complied with.
6. Where a treaty in part or in whole becomes injurious to a party state
such that it affects the sovereignty of that state, thus causing conflict,
the obligations will come to an end.

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7. If the treaty grants a unilateral right of denunciation to one or all

parties, in case of failure of certain essential conditions, the treaty comes
to an end.
8. Doctrine of Rebus Sic Stantibus –the meaning of this doctrine is if by
any unforeseen change or circumstances, an obligation provided for in
the treaty should imperil the existence of one of the state, such a state
has a right to demand to be released.

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International human rights

Human rights are inherent to human beings. Legislation serves to protect
human rights and give recourse against any person whose rights are violated.
The violation can be on the part of the state, fellow human beings private
entities and organisations etc. The legal framework of Human Rights Law can
be classified into international, regional and domestic laws.
International Human Rights Law Instruments
At the International Law level, sources of law according to Article 38 of the
International Court of Justice Statute constitute,1
1. Customary International law
2. General Principles of Law as recognised by civilised nations
3. Treaties
4. International Court of Justice decisions
5. Writings of highly qualified jurists
Human rights law forms part and parcel of all the sources mentioned above.
The United Nations has been at the centre of the codification of Human Rights
law. The Universal Declaration of Human Rights2 and the United Nations
Charter3 revolutionised Human Rights Law in the world. The United Nations
(UN) is an international organisation whose stated aims are to facilitate
cooperation in international law, international security, economic development,
social progress and human rights issues. The pursuit of human rights was a
central reason for creating the UN.

UN Charter
The UN Charter in its preamble sets out that the charter is meant to reaffirm
faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small.
The charter mandates the General Assembly with the Authority to initiate
studies and make recommendations for the purpose of promoting international
co-operation in the political field and encouraging the progressive development
of international law and its codification. It further states that promoting
international co-operation in the economic, social, cultural, educational, and
health fields, and assisting in the realization of human rights and fundamental
1
United Nations, Statute of the International Court of Justice, 18 April 1946, available at:
http://www.refworld.org/docid/3deb4b9c0.html [accessed 27 January 2016]
2
UNGA, Universal Declaration of Human Rights General Assembly Resolution 217 A(III) ( 10 December 1948),
3
United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at:
http://www.refworld.org/docid/3ae6b3930.html [accessed 27 January 2016]

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freedoms for all without distinction as to race, sex, language, or religion.4 This
legislation is mainly done through the GA’s resolutions. The charter however
prevents the UN from intervening with a state as a result of the principle of
sovereignty. Intervention is a means of last resort and is only to be used.5 The
UN undertakes to promote universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion.6 The charter does not however spell out exactly how it
intends on doing so.

The Universal Declaration of Human Rights (UDHR)

The Economic and Social Council (ECOSOC), acting under the mandate of the
UN Charter set up a Commission for Human Rights in 1946 to develop a
framework for an international bill of rights to specify the content of human
rights to be promoted. This commission was chaired by Eleanor Roosevelt,
The UDHR7 is the central case of International Human Rights law. Although it
is not and does not purport to be a statement of law or legal obligations, it is a
common standard of achievement for all people.8 This piece of legislation
provides for fundamental rights and freedoms including the right to life, right
to equality before the law, right to freedom of expression and opinion amongst
others. The UDHR was not binding due to the nature of International Law and
politics. The UN feared that states would not submit themselves to this
instrument. It was however envisioned that treaties would be drafted to
promote the key values enshrined in the UDHR.
Treaties
A treaty means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation.9 The most remarkable treaties in the Human Rights regime are the
two 1966 Covenants ie: International Covenant on Civil and Political Rights10
(ICCPR) and the International Covenant on Economic, Social and Cultural

4
Ibid article 13(1)
5
Ibid article 2(7)
6
Ibid article 55
UNGA, Universal Declaration on Human Rights
8
Eleanor Roosevelt, Chairman of the United Nations Commission on Human Rights during the drafting of the
Universal Declaration on Human Rights.
9
Article 2, Vienna Convention on the law of treaties 1155 UNTS 331(adopted on 23 May 1969 entered into force
27 January 1980)
10
UNGA, International Covenant on Civil and Political Rights16 December 1966, 999 UNTS 171

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Rights11 (ICESCR) and their additional protocols.12Together with the UDHR, the
ICCPR and ICESCR constitute what is known as the International Bill Of
Rights. The ICCPR revolves around issues such as the right to life, freedom of
speech, religion and voting. The ICESCR focuses on food, education, health
and shelter. Both covenants proclaim these rights for all people and forbid
discrimination. The ICCPR established the UN Human Rights Committee which
essentially ensures the compliance of ICCPR by member states. The UN has
also created other treaties central to the Human Rights case. These are
1. International Convention on the Elimination of All Forms of Racial
Discrimination (1965)
2. Convention on the Elimination of All Forms of Discrimination
against Women (1979)
3. Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984)
4. Convention on the Rights of the Child (1989)
5. International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (1990)
6. Convention on the Rights of Persons with Disabilities (2006)
7. International Convention for the Protection of All Persons from
Enforced Disappearance (2006)

11
UNGA, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3
12
UNGA, Optional Protocol to the International Covenant on Civil and Political Rights, 16December 1966, UNGA,
TH
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 5 March 2009.

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Regional Human Rights Instruments

Human rights law regime has been extended to a regional basis. The regions
are, Africa, Europe and The Americas. States in these blocks have ratified
Human Rights treaties specific to their regions (whose principles are inferred
from the International Instruments discussed above). These treaties are
required to be enforced by member states and any disputes arising are referred
to the respective Human Rights Courts.

Africa
African Charter of Human and Peoples’ Rights
The first human rights instrument in Africa was the African Charter on Human
and Peoples’ Rights 13(ACHPR). It is a creature of the Organisation of African
Union (OAU) currently the African Union AU. The charter affirms the inviolable
nature of the Human being and insists on the respect for life and integrity of
the person.14 It also recognises the existence of human dignity as inherent and
denounces all actions which will compromise it. It prohibits all forms of torture,
cruelty and slavery.15 It further provides for the right to life, freedom of
expression, freedom of movement, the right to equal protection before the law
amongst others.
Other Human Rights Conventions in Africa are:
1. African Charter on the Rights and Welfare of the Child –
2. Protocol to the African Charter on the Rights of Women –
3. OAU Convention Governing the Specific Aspects of Refugee Problems in
Africa
4. Convention for the Elimination of Mercenarism in Africa
5. African Union Convention on the Conservation of Nature and Natural
Resources –
6. Bamako Convention on the Ban of the Import of Hazardous Wastes into
Africa –
7. African Union Convention on Preventing and Combating Corruption –

13
organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul Charter"), 27 June
1981
14
Ibid Article 4
15
Ibid Article 5

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8. OAU Convention on the Prevention and Combating of Terrorism –

9. African Union Non-Aggression and Common Defence Pact –
10. African Charter on Democracy, Elections and Governance

The African Commission on Human and peoples’ Rights

Article 30 of the African Charter of Human and People’s Rights establishes the
African commission of Human and Peoples’ Rights to promote human and
peoples’ rights and ensure their protection in Africa. Article 31 (1) of Charter
provides that the commissioners shall be “chosen from amongst African
personalities of the highest reputation, known for their high morality, integrity
impartiality and competence in matters of human and peoples’ rights....' They
are nominated by State parties to the Charter, which may nominate up to two
candidates for election. The members of the Commission serve a six year term
and are eligible for re-election indefinitely. At the beginning of their mandates,
they solemnly declare to discharge their duties impartially and faithfully.Article
45 of the Charter enumerates the functions of the Commission to be:
 the promotion of human and peoples’ rights;
 the protection of human and peoples’ rights;
 interpretation of the provisions of the Charter; and
 any other task assigned to it by the OAU Assembly

African Court on Human and People’s Rights

The African Court has its seat in Arusha, Tanzania. It has been operating since
2006 and is a creature of the ACHPR. The jurisdiction of the court extends to
the states which have ratified the Protocol to the African Charter. Matters may
be brought before the court through the following ways.
1. The African Commission on Human and Peoples’ Rights, –
2. States Parties (as respondent or petitioner in a case before the
Commission, or on behalf of an individual citizen)

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3. African intergovernmental organizations; NHRIs and individuals and

nongovernmental organizations with observer status before the African
Commission.
The court cannot receive matters in regards to states who have not ratified the
protocol thereby accepting the court’s jurisdiction.16
The states of the African Union have agreed to set up an African Court of
Human Rights and justice which will replace the African Human Rights Court
and prosecute individuals in violation of International Criminal Law. By 2014,
only 5 states had ratified the protocol to effect this change. It requires at least
15 member states to ratify the Protocol before it comes into force.

Europe
The European Convention on Human Rights
The European Convention on Human Rights (1950) was drafted in 1950 by the
Council of Europe, entered into force on 3 September 1953. It initially catered
for Civil and Political Rights .The range of Rights has been expanded by
additional Protocols (16).more importantly, the convention establishes a Court:
The European Court of Human Rights and unlike the African Court,
Individuals have standing.

The European Court of Human Rights

The court sits in Strasbourg, France. Each member state is represented in the
court by 1 member. There are 47 members. Elections are conducted by the
Parliamentary Assembly of the Council of Europe among the lists of three
candidates proposed by the State. The candidates should be of a high moral
character and qualification for high judicial office or jurists of recognized
competence. They hold office for 9 years and cannot be re-elected. They can be
removed only by two thirds of the judges.
Conventions
The conventions which are applicable in the European court are
 Convention on Action against Trafficking in Human Beings,
 Charter of Fundamental Rights of the European Union
 European Charter for Regional or Minority Languages (ECRML)
 European Convention on Human Rights (ECHR)

16
Article 34, Protocol to the African Charter on Human and People’s Rights.

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 European Convention for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment (CPT)
 European Social Charter (ESC), and Revised Social Charter
 Framework Convention for the Protection of National Minorities

NB: TASK
Research on the characteristics of human rights and generations of
human rights. (1st, 2nd and 3rd Generation)

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