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An African Perspective
Published by Bolabay
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I. Title
Page
Preface xiii
Tabie of Cases xu
List of Abbreviations xix
Section 1
General International Law 1
Chapters
1. International Law and the African States 3
Introduction o
O
Law in International Society 4
From Objects to Subjects 5
State Succession and Post- Independence Africa
6
The OAU and International Law 9
African States and the Progressive Development
and Codification of International Law 11
Treaties > 13
Conclusion 15
I rising
profile in the popular consciousness as a result of its invocation
in
the media in connection with international conflicts, refugee
problems,
transboundary movement of toxic and hazardous substances, human
rights violations, illicit arms trade, drug trafficking, sex tourism and
numerous other phenomena that characterise contemporary
international
life. As the body of rules which regulate the conduct of members of
the
international community, international law inevitably has a role to
play
in shaping the human destiny.
Paradoxically, it is among the legal profession,
lawyers and judges
alike, that knowledge of and respect for international
law are probably
the lowest. To this large army of cynics and skeptics,
international law is
to be viewed with askance or even suspicion on
account of its political
nature and alleged unenforceability. In their view,
international law betrays
' more bark than bite and is, therefore, not worthy of
the time or attention
of the legal practitioner.
It is with a view to correcting this wrong
impression and in order to
remove all the lingering doubts on the normative
character of for Debo Akandet international
* Originally written for a festschrift
law that this contribution has been conceived.
Pursuant to Function of Law
1. Cf. e.g., C. Pany, "The this, it Communityis
in the International
intended to discuss aspects of international law
in Manual of Public International Law 1-14 (M. Sorensen, ed., 1968).
from a practical point
of view so sis to render the subject less arcane and
elicit greater
appreciation of its scope and relevance.
international
3
Law and Politics: An African
4
Perspective
confined to textbooks.
The Interplay of International Law and Domestic Law
Nevertheless, it-is not enough to declare that
international Saw is law without getting to grips with
how it becomes a source of law at the domestic
plane. Besides, it is of paramount importance to
understand the inter-relationship of international
law and the internal or domestic laws of States. How
and in what circumstances can international law be
applied in local courts? Can international tribunals
apply the domestic law of particular States?
The answers, to these questions rest on ones
attitude to the relationship between international
law and domestic law, an issue 'usually approached-
from two broad perspectives, namely, monism and
dualism. To monists, international law and domestic
law constitute part and parcel of a unified legal
systems or continuum, thereby rendering the
individual iiable to norms of both4. On the other
hand, dualists conceive of international law as two
separate and distinct legal orders, objects and
spheres of operation such that the norms of one
would not operate within the realm of the other
without a positive act of reception or
transformation, as the case may be 5. However, it
should be noted that attempts have been made by
some scholars to reconcile international law and
domestic law through notions such as
harmonisation and coordination in a bid to escape
the straight-jacket of the controversy between both
perspectives6.
On a practical note, however, whenever
international law is invoked before a domestic court,
its applicability to the matter in dispute would very
often Theory
depend onthe the position (19451; of international law
4. Tha most notable exponent of monism was Hans Kelsen. See his General
of Law and State 363-SO The Pure Theory of Law 320-47
within the
(1970) hierarchy of sources*of the states
5. The dualist position was first propounded by the German jurist, Heinrich legal
system. Inin fact,
Triepei 1899. Forthe constitutions
more on ofInternational
it, see L. Oppenheim, many Law, States
Vol.
provide a pointer
1, 37 (8th ed.
on the relationship between
international law and domestic law34-35 8(1990).
. Thus, spme
6. . 1955).
See e.g., G. Fiizmaurice, Hague Recueil des Cours 768-94 (1957); !.
Brownlie, Principles of Public International Law
States
7. Seeadopt the practice
e.g., Grundgesatz Ad. 25 (1949,of amend.
primacy1961), of international
.(Germany); Italian
law8.over domestic law, envisaging the possioility of
Const. Art. 10 (1947); Austrian Const. Art. 9 (1920); French Const. Art. 55
domestic sphere 3.
However, it is the practice of many States
especially in the English-
--------- I m a utsu
International
5
Laui from a Practical
4
Perspective
1
speaking world to bifurcate international law into
custom and treaties with different rules regulating
their application domestically. Thus, in England, under
the so-called Biackstor.ian doctrine, customary law is
deemed to have been incorporated into the law of
the land and any changes brought about with respect
to it would automatically be reflected in English law
subject to consistency with statutes and within the
general ambit of judicial precedents'. Or. the other
hand, treaties are not applied ex phop.no vigors. Unless
and only to the extent that enabling legislation had
been enacted by Parliament would treaties be
enforced by English courts. Since treaty-making falls
within the prerogative of the Crown, application of a
treaty domestically without parliamentary approval
would have been tantamount to a violation of the
established relationship between the Crown and
Parliament. None the less, it should be emphasised
that not every treaty requires consent of Parliament
for its realisation. Transformation is necessary only
where and when the treaty in question would affect
private rights cr liabilities, results in a charge on public
funds or necessitate modification of the common law
or an existing statute9 10.
In the United States, the attitude of the courts in
respect of customary international law generally
follows the British approach11. Furthermore, it should
be noted that US courts reserve the right to give
effect to a later statute as against a rule of customary
9.[19051
See 2K.B. 396;
international ine.g.. consonance West Rand Centralwith the maxim,
Gold Mining Co. u. The Lex King,
legiA.C. 160. But T
[1939]
posterior derogat priori l2. However, the practice
Chur.g Chi Cheung u. The
with
529 regard
King,
at
Trading
554; [1977] Q.B.
Corp. to treaties
u. Central Bankisof markedly
of the British in consequence of relevant
Nigeria, different than that
cf.
provisions
rendtex
of
[Owners,)
10.
[1977] u.
theKong)US
Cf. Brownlie,
Ltd.,
Shipping
constitution
A.C. 373
supra
at 402.
note 6, at 48, See 13
also Theand
Wallem
The
Parlementthe
Beige
Philippine
practice
(1879), 4RD.
Admiral
129; of
(Hong
15..
E.M.ForByrd,
moreJr.,
or. this, see
F (2d.) 24.
(1960).
the United States, passim
Treaties and Executive Agreements in
international Law and Politics: An African Perspective 47
directly without need for such legislation or by
administrative actioniD.
As far as Nigeria is concerned, it is a matter or
regret that none of the nations constitutions felt the
need to embody' clear-cut provisions on what should
be the relationship between international law and
Nigerian law. Rather, the matter had usually been
approached in an indirect manner, that is, by way of
treaty implementation16 17 18. Accordingly, while
Nigeria can be deemed as having adopted the
Blackstonian doctrine of incorporation of customary
international law as applies in England, treaties
require transformation into the domestic law before
they can be enforced in the courts13.
What the statement above means in practiced
terms is that it hasdo be established that a rule of
customary or conventional (treaty) international law
was binding on Nigeria before the courts can take
judicial notice of same. Accordingly, where and when
a point of international law is raised in judicial
proceedings, evidence.has to be adduced on its
relevancy. If, for example, the point in issue concerns
the diplomatic status of one of the parties, a
ministers certificate attesting to such would be
considered final and conclusive on that point19.
With regard to the issue of. application of
domestic law by international tribunals, the first thing
to bear in mind is that domestic law is considered
more or less a question of fact at the international
level. More importantly, the laws of a State provide
useful evidence regarding the attitude of or practice
by notethat state
Belmontin relation
301 U.S. 324.to particular rules of
16. See Fujii u. State of California (1952), 38 Cal. (2d.) 718; Pauling v. McElroy, supra
11; US'u. (1937),
international
17. law. ofAs
See e.g. s.12. Constitution stated
the Federal earlier,
Republic every
of Nigeria, State is
1979, s. 74.
obliged
Republicanto bring1963;its
Constitution, s. 69, laws in Constitution,
independence conformity 1960. with
international
18. For more on this,law, more
see A.B. so,
Oyebode, as
Treatyinadequacy
Making and Treaty of the laws
Implementation in
of Nigeria:
a State including its constitution cannot
An Appraisal, unpubl. D. jur. dissertation, Osgoode Hail Law School,
be
19. York University, Toronto, Canada, 1988 at 343 et seq.
pleaded
*3 N.W.L.R. 811.in African
Cf. e.g., justification of violation
Re-Insurance Corporatin
law20. Thus, assuming an African Court of Human
fl986]
of international
u. Abate Fantaye,
Rights
20. or26the
See Arts. and West African
27, Vienna ConuentionCourt
on The Lawof Justice
of Treaties, had been
1969. See aiso
in atp.
existence, such bodies would have been in a
Certain German interests in Polish Upper Silesia Case RC.I.J. (1926), Ser. A, No. 7,
position
A, No. 24,to pronounce
22; Free Zones of Upper Savoy and the District of Gex Case RC.I.J.' (1929), Ser.
at p. 12; Treatment of Polish Nationals in Danzig Case ECU. (1932), Ser.
A/B, No., 44, at p. 24; Anglo-Noruiegian Fisheries Case, (1951] ICJ Rep. 116 at
132; Nottebohm Case, (1955] ICJ Rep. 4 at 20-21.
International Law from a Practical Perspective 48
against draconian decrees like Nigerias State Security
(Detention of Persons) Decree Nc. 2 of 1984 for being
incompatible with international law. However, in the
absence of these international tribunals, it has fallen to
the lot of some of our braver judges to issue such
pronouncements21.
To sum up, the interplay of international law and
domestic law though somewhat theoretical in nature
has important practical implications. Its practical
significance comes in bolder relief when it is
remembered that the ends of law. whether
international or domestic, remain the same, namely,
the resolution of conflicts in the quest of peace, order
and justice.
The Sovereign in Court
Every once in a while, an aggrieved person discovers
to his chagrin that he is without relief, the doors of the
temple of justice having been firmly shut against him
because his traducer and intended defendant is a
sovereign (or his agent) and as such enjoys legal
protection from court processes and execution of
judgments. Hardly could anything be more dispiriting
and frustrating to one still nursing the wounds of a
breach of contract, default in rents or damage or loss
of a vehicle arising from the act or omission of this
omnipotent entity deemed beyond the reach of the
law on account of its sovereign status.
Whereas the law proclaims loudly, 'Ubi jus, ibi
remedium', the injured party is now compelled to hear
another tune, 'Rex non potest peccase! Thus, the law might
declare that there should be no wrong without a
remedy but not when the wrong-doer was the
sovereign himself or his agent22.
In international law, sovereignty is a hallowed
concept upon which inter-state relations in the past
400 years have been built. Indeed, the maxim, Par in
pctrem non habet imperium had become a cornerstone of
21. See 710.u Gen. [1996] 9
international law
N.W.L.R.
22. so much so that the immunity
e.g., Fawehinmi u. Abacha and Ors,
Rep.
28. 277; [1979] 2 Lloyd's
[1981]
Mercantil v. Central Bank of Nigeria,
See e.g.,
Hispano Americana
1 All
[1983] E.R.1110;
A.C.
CA/U244/87
and.the
244. 1Suit
ot
Embassy No.
1stof
Planmount
Kramdrltalou.u.Republic
Belgium,
of Zaire,
Government of the Kingdom of Belgium
Congresso del Partido,
November,
(unreported); Odeft
29. See note 27 supra.
1988
1733/89 of 29thSuit No. LD/
September,
for Malaysia and the Government of Malaysia,
u. High Commissioner
1989 (unreported).
International Lam from : Practical Perspective 50
legislator to do the job. As Akpata JCA had observed in
Italo Kramer, ..the doctrine of restrictive immunity is a
recent development which one must be cautious in
applying, particularly when the doctrine has no statutory
backing.30 y-
As far as diplomatic immunity goes, the courts can
also be relied upon to give unflinching support for its
absolute nature. Thus, the Supreme Court had little
hesitation in dismissing the applicant of an aggrieved
litigant protesting the treatment meted out to him
over his application for a visa31. Nor did the court fail
to accord immunity to an international institution that
had been dragged to judicial proceedings by a
disengaged member of staff32.
In view of the adherence of the courts to the idea
of absolute immunity of sovereigns and their agents
and, or servants, it does not seem than any useful
purpose would be served by attempts to initiate
actions against them in Nigerian courts unless and
until the country decides to bring its practice to
conform with that of the majority of States. In fact,
whenever a private person suffers loss, damage or
injury as a result of the act or omission of a sovereign,
the complainant would do well to seek alternative
methods of resolving the matter, for example, through
the diplomatic channel instead of the legal process
which could be long, tortuous and, in the final
analysis, indecisive jf not, in fact, counter-productive.
The wisdom in the alternative dispute resolution
method proffered becomes self-evident when it is
realised that even if a litigant proceeds and wins
against a foreign State, he would still have to face the
practical problem of enforcing the judgment
especially in view of the fact that international law
frowns against execution by way of seizure or other
measures of compulsion available to litigants within
the domestic sphere.
The Human Rights Question
Perhaps no area better still illustrates the relevance of
international law to the lives and aspirations of the
people of the world today than that of human rights,
30. See note 28 supra.
31. [1980]
1? undor
8-11
32. S.C. 100. classical
Re-Insuranceinternational law only States were
supra
Ishola-Noah u. TAe British High Commissioner,
She Statesupra,
42. Brownlie, cannotebe
6, attried
300. under the objective territorial
principle. The common example of the latter is a shot
fired across the border killing a perso n located on the
territory of another State.
There are other principles of establishing
international Law from a Practical Perspective 54
committed by nationals irrespective of where such
crimes had been committed, that is, the so-called
active nationality principle and also the exercise of
jurisdiction over crimes committed abroad against
nationals, otherwise known as the passive nationality
principle.43. Furthermore, there is the protective
principle which-permits a State to claim jurisdiction
over crimes committed against its interest abroad
irrespective of the nationality of the offender44.
In recent times, the notion of international crimes
and that of crimes against humanity have attained high
resonance in international society. By international
crime is meant a crime declared to be such by a treaty,
State-parties to which are obliged to enact domestic
laws criminalising such acts if previously they were not
deemed criminal. Crimes against humanity, on
the'other hand, are crimes committed against the
entire ..international community, thereby commanding
universal jurisdiction such that they are triable by any
State, irrespective of the nationality of the offender or
place of commission of the offence45. Thus, whereas
international crimes are offences listed in the criminal
codes of individual States albeit at the instances of
international law, crimes against humanity are acts
hostis humani generis incumbent on members of the
international community erga omnes to try and punish46.
Among offences akin to international crimes are drug
trafficking, pornography and aircraft hijacking while
crimes against humanity include piracy jure gentium, slave
trade, genocide and apartheid.
The proliferation of international criminal gangs
involved in crimes such as drug trafficking,
counterfeiting, money laundering, computer fraud,
prostitution and illegal arms trade in various parts of
the world has given rise to intensified collaboration
among the police, customs and other security agencies
of members of the international community. However,
in view of the fact that extra-territorial exercise of
criminal jurisdiction is generally abhorred in
international
43. !d. at 303. law as an affront on state sovereignty, the
practice is for
44. Saa a.g., Joyce States
u. D.P.P., toA.C.
[19491 rely
347.on extradition
.' agreements
for the op.arrest
45. Srownlie, of fugitives from justice. Besides,
cit. at 304-5.
considerable
46. Id. intelligence exchange among States
occurs under the aegis of international organisations
such as INTERPOL and the various Security operation
International Law and Politics: An African Perspective 55
have to continue to rely on individual States for the
enforcement of international criminal law as well as cd
hoc international war crimes tribunals along the lines
of those set up for Bosnia and Rwanda.
Nigerias efforts in combating crimes across
frontiers such as drug trafficking, smuggling and
armed robbery have taken the form of extradition
treaties and agreements on transborder co-operation
as well as mutual assistance4'. Indeed, the creation of
the National Drug Law Enforcement Agency (NDLEA)
in 198943 can be viewed as a measure taken in
fulfillment of the Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances of 198847
48 49. Also, the incidence of armed robbers snatching
vehicles and driving them across the borders to the
neighbouring countries is apt to reduce if the
necessary steps are taken to sign and ratify existing
draft agreements on transborder cooperation between
Nigeria and some of these countries. By so doing,
Nigeria would have ensured a significant impact by
international law on the every day life of Nigerians and
our neighbours.
Summary
Membership of the UN is at present close to 190, each
State possessing its own legal system and peculiar way
of doing things with rules. Yet, we are living in a much
shrunken world where sovereignty is fast receding and
the human destiny seems to have become one. An
occurrence in one part of the planet is beamed across
the globe in seconds. The international exchange in
goods and services is experiencing unprecedented
growth side by side with pockets of unspeakable want
and miseny in various parts of. the world. The end of
the Colpl War has thrown up new challenges for
international peace and security while the yearnings of
the people of the world for democracy and good
governance Oyebode,
47.BeninA.Treaty Nigeria-
Cf. e.g:,keep rising unabated.
Relations in
It is within this conjuncture that international law is
241 (Asiwaju
called upon to perform its delicate task ofid., ensuring
and Igue. eds., 1988);
The Nigeria-Benin Transborder Co-operation
order
48. Seeamong
the in
Relations:the various
No. members of the
Nigeria-Niger
international
48425 (Asiwaju and Barkindo,
Treaty An Overview The Nigeria-Niger Transborder
DecreeCo-operation
of 1989.
community
eds.. 1993). with
49. See A. Oyebode, Legalvarying
National Drug
Implications degrees
Law Enforcement
of Drug Abuse of
and success at National
Drug Trafficking, different
times and places.
Anti-Drug Seminar, NDLEA. 1991.
This contribution has attempted to strip
international law of its recondite aspects with as view
PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND
PEOPLES' RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA
i
13
c) protect women, especially the girl-child from ail forms of abuse, including
sexual harassment in schools and other educational institutions and provide
for sanctions against the perpetrators of such practices;
b) promote education and training for women at all levels and in all
disciplines, particularly in the fields of science and technology;
c) promote the enrolment and retention of girls in schools and other training
institutiohs and the organisation of programmes for women who leave
school prematurely.
Article 13
Economic and Social Welfare Rights
States Parties shall adopt and enforce legislative and other measures to guarantee women
equal opportunities in work and career advancement and other economic opportunities. In
this respect, they shall:
*
promote the right to equal remuneration for jobs of equal value for women
and men;
take the necessary measures to recognise the economic value of the work
of women in the home;
guarantee adequate and paid pre- and post-natal maternity leave in both
the private and public sectors;
recognise and enforce the right of salaried women to the same allowances
and entitlements as those granted to salaried men for their spouses and
children;
s
14
b) promote the right to equal remuneration for jobs of equal value for women
and men;
i) guarantee adequate and paid pre- and post-natal maternity leave in both
the private and public sectors;
j) ensure the equal application of taxation laws to women and men;
Article 23.
(1) Everyone has the right to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring tor
himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his
interests.
'' fop
Article 24.
Everyone has the right to rest and leisure, including reasonable limitation of working hours and
periodic holidays with pay.
A
Ton
Article 25.
(1) Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and necessary
social services, and the right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether
born in or out of wedlock, shall enjoy,the same social protection.
, A
Top
Article 26.
{1) Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible to
all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and shall
further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
A
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INTERNATIONAL LAW VERSUS MUNICIPAL LAW: A CASE
STUDY OF SIX AFRICAN COUNTRIES; THREE OF WHICH ARE
i MONIST AND THREE OF WHICH ARE DUALIST
By
Duru, Onyekachi Wisdoiti Ceazar*
Readers are reminded that this work is protected by copyright. While they are free
to use the ideas expressed in it, they may not copy, distribute or publish the work or
part of it, in any form, printed, electronic or otherwise, except for reasonable
quoting, clearly indicating the source. Readers are permitted to make copies,
electronically or printed, for personal and classroom use.
Abstract
International Law
*
,
B. A. Garner (Ed. in Chief), Blacks Law Dictionary Eight Edition (United States: Thomson West, 2004) at
835. See also, I. M. O Nwabuoku, International Law vis-a-vis Municipal Law: A Close Look at
ABACHA v. FAWEHINMI (2007) 2 Igbinedion University Law Journal 152.
2
See U. O. Umozurike, Introduction to International Law Second Edition (Ibadan: Spectrum Books
Limited, 1999) at 1. See also Denning L. J. in Trendtex Trading Corporation v. Central Bank of
Nigeria (1977) 1 ALLER 801 at 901-2, where the Law Lord defined international as the sum of rules
or usages which civilized states have agreed shall be binding upon them in their dealings with one
another.... See
5
which recognizes the continuous expansion of the scope, subject and subject-
Municipal Law
The Blacks Law Dictionary,* 4 defines the term Municipal Law as:
1. The ordinances and other laws applicable
within a city, town or other local
government entity.
also, L. Oppenheim, International Law (New York: Longmans, Green & Co., 1905) at 1-2, where
international law was defined as the name for the body of customary and conventional rules which
are considered legally binding by civilized states in then- intercourse with each other. He added that it
is a law for the intercourse of states with one another, not a law for individuals and that it is a law
between, not above, the single states. See also the definition by E. C. Stowell, International Law
(New York: Holt, 1931) at 10, thus, international law embodies certain rules relating to human
relations throughout the world, which are generally observed by mankind and enforced primarily
through the agency of governments of the independent communi ties into which humanity is divided.
In P. C. Jessup, A Modern Lmv of Nations (New York: Macmillan, 1948) at 15-16, international law
was defined as law applicable to relations between states. Compare P. C. Jessup, Transnational Law
(New Haven: Yale University Press, 1956), where the author recognized the individuals are becoming
subject to international law. See also, M. S. McDougal, et. at, Studies in Public World Order (New
Haven: Yale University Press, 1960) and M. S. McDougal, International Law, Power and Policy: A
Contemporary Conception (1953) 82 Re- cueil des Cours 137. Additionally, see the definition in C.
G. Fenwick, International Law (New York: Century, 1924) 24 quoted with approval by N. D. Palmer
& H. C. Perkins, International Relations: The World Community in Transition Third Revised Edition
(Delhi: Virender Kumar Arya for A. I. T. B. S. Publishers & Distributors, 2007) at 266-267.
3
See generally Article 38(1) of the Statue of the International Court of Justice which is widely recognized as
the most authoritative statement as to the source of International Law.
4
B. A. Garner, op. cit. at 1043.
f
6
municipal law governs the domestic aspect of government and deals with issues
between individuals and between individuals and the administrative apparatus;
International Law focuses primarily upon the relations between states.5 6 7 8 Monism
Monism is one of the theories advanced to explain the relationship between
international and domestic law. Exponents of this theory are referred to as monists.
Monists hold that International Law and State Law share a common origin-namely
law. Thus, the duo is the two branches of unified knowledge of law which are
applicable to human community in some way or the other. The broad thrust of the
theory of monism is that both international law and municipal law are facets of
same phenomenon.
f
TAgain, monists view international and national law as part of a single legal order.
5
See-M. Akehurst, A Modem Introduction to' International Law (New Delhi: George Allen & Unwin-
[Publishers] Ltd, 1990) at 43.
6
See, M. N. Shaw, International Law Fifth Edition (Cambridge: Cambridge University Press, 2003) at
121. Also, it is instructive to point out that although states are the primary subject to international law,
the development of international relations in recent times, especially the setting-up of a great number
of international institutions and the international recognition of the rights and duties of groups of
individuals have to a large extent brought these entities within its purview.
7
See, S. 0. Ayewa, The Symmetry between International Law and Municipal Law: A Nigerian
Perspective (2004) 1 DELSU Public Law Series, 85; see generally also, I. Brownlie, Principles of
Public International Law (Oxford: Oxford University Press, 1979) at 32-34.
8
See, R. F. Oppong, Re-Imaging International Law: An Examination of Recent Trends in the Reception of
International Law into National Legal Systems on Africa (2006) 30(2) International Law Journal 2.
7
Dualism
International Law and Domestic Law. At the heart of the theory of dualism lies the
premise that international law and municipal law are two separate and distinct orders,
of one would not operate within the realm of the other without a positive act
It is only after such transformation that individuals within the same may
benefit from or rely on the international (now national) law. To the dualist,
12'
The Blacks Law Dictionary, defines the term Constitution as:
9
However, it is not all monists who adhere to such a conception of a relationship between national and
international law. For instance, although Kelsen was an advocate of Monism he did not argue that
International Law may be subjected to particular norms within the national legal system. In other words, to
him, monism required only that legal-norms be part of a single system of law but left open the question of
the relationship between the norms.
10
See, S. O. Ayewa, op. cit. at 86-87.
11
A classic illustration of this rule is the rule that a state cannot rely on its domestic rules to negate its
International obligation.
12
B. A. Garner, op. cit at 331. *
6
municipal law governs the domestic aspect of government and deals with issues
International Law focuses primarily upon the relations between states.5 6 7 8 Monism
Monism is one of the theories advanced to explain the relationship between
international and domestic law. Exponents of this theory are referred to as monists.
Monists hold that International Law and State Law share a common origin-namely
law/ Thus, the duo is the two branches of unified knowledge of law which are
applicable to human community in some way or the other. The broad thrust of the
theory of monism is that both international law and municipal law are facets of same
phenomenon.
. 3'Again, monists view international and national law as part of a single
legal order. Thus, International Law is directly applicable in the national legal order.
There is no need for any domestic implementing legislation; international law is
immediately applicable within national legal systems.
5
See-M. Akehurst, A Modern Introduction to' International Law (New Delhi: George Allen & Unwin''
[Publishers] Ltd, 1990) at 43.
6
See, M. N. Shaw, International Law Fifth Edition (Cambridge: Cambridge University Press, 2003) at 121.
Also, it is instructive to point out that although states are the primary subject to international law, the
development of international relations in recent times, especially the setting-up of a great number of
international institutions and the international recognition of the rights and duties of groups of individuals
have to a large extent brought these entities within its purview.
7
See, S. O. Ayewa, The Symmetry between International Law and Municipal Law: A Nigerian Perspective
(2004) 1 DELSU Public Law Series, 85; see generally also, I. Brownlie, Principles of Public International
Law (Oxford: Oxford University Press, 1979) at 32-34.
8
See, R. F. Oppong, Re-Imaging International Law: An Examination of Recent Trends in the Reception of
International Law into National Legal Systems on Africa (2006) 30(2) International Law Journal 2.
8
13
See the Nigerian Case of P.D.P. v. INEC (2001) FWLR (Pt. 31)2735 at 2776-2777.
14
(1980) AC. 319 at 329. See also, the case of Anaka v. Lokoja (2001) 4 NWLR (Pt. 702) 178 where the
Nigerian Court of Appeal described a constitution as the grundnorm of the country. Also, in Attorney-
General of Ondo State v. Attorney-General of The Federation & 35 Ors. (2002) 9 NWLR (Pt. 772) 222 at
418-419; Uwaifo, JSC while describing the Nigerian constitution opined as follows: it must be recognized
that our constitution is an organic instrument which confers power and also creates rights and limitations. It
is the Supreme Law in which certain first principles of fundamental nature are established.
15
As he then was.
16
(2001) 8 NWLR (Pt. 745) 295 at 350.
9
It can thus be seen that the constitution of a Country or anybody polity is its
fundamental or organic law through which all law, authorities or actions derive their
Legitimacy.17 It is the general legal framework that defines describes and limits
exercise of powers rights and obligations and the modes and limitations of their
exercise thereof.
17
See generally, S. Tar. Hon., Constitutional Law and Jurisprudence in Nigeria (Port Harcourt: Pearl
Publishers, 2004) at 4.
18
See D. N. Palmer and C. H. Perkins, International Relations: The World Community in Transition Third
Revised Edition (India: A.I.T.B.S Publishers & Distributors, 2007) at 274.
19
Ibid.
10
Conversely, international law and municipal law are similar in their sources,-
legislative machinery. In fact, in recent times however, it can not be denied that
there is gradual convergence of interest and the ultimate goal of both is to secure
the well-being of individuals. Areas where this common goal manifests itself include
human rights law,20 environmental law and commercial law, areas where there is
national law and international law.21 Thus, international law and national law
: ___________ . .... ...... ..... .....
shares a lot in common and an attempt to compartmentalize or isolate them will be
analytically flawed and practically inapposite at present.
t
Traditional Theories on the Relationship Betw een International Law and
Municipal Law
20
See generally, C. M. Peter, Fundamental Rights and Freedoms in Kenya: A Review Essay (1991) 3(1)
AJICL 64; E. C. Ibezim, Right to Life under International Human Rights Law: A Gender Perspective
(2008) 10 ABSU L.J. 16; M. O. Unegbu, Resolving the Dilemma of Hierarchy Between the African
Charter and the Nigerian Constitution (1999) 6(1) ABSU L.J. 13; M. O. Unegbu, Human Rights
Enforcement in Nigeria: Some Procedural Problems (1996) 1 ABSU L. J. 1; U. O. Umozuruike, The
African Charter and National Laws: The Issue of Supremacy (2003) 8 ABSULJ 1; A. O. Enabulele,
Unification of the Applications of Principles of International Law in the Municipal Realm: A Challenge
for Contemporary International Law (2008) 11(1) & (2)'Uniben L.J. 125.; R. C. Changani, Chadian
Asylum Seekers and the Nigerian Refugee Law (2009) 2(1) Nasarawa State University L. J. 14 at 21-22;
A. I. Funmitola, The Right to Participate in Governance under International Law (2009) 2(1) Nasarawa
State University L.J. 25; G. N. Okeke, Reflections on International Human Rights Law and Application to
Nigeria (2004) 4(1) Unzik L.J. 163; I. Okorony, International Human Rights Protection: Agenda for the
21st Century (2000) 7 ABSU L.J. 55, and B. Bowing, The Droit Et Devoir Dlngerence: A timely New
Remedy for Africa? (1995) 7(1) AJICL 493.
21
See R. F. Oppong, op. cit at 2.
22
See U. O. Umozunike, Introduction to International Law (Ibadan: Spectrun Books Limited, 1993) 29 at 29-
32 where the learned writer discuses, monism, invert monism, Dualism, Transformation and Specific
Adoption Theories and Harmonization Theories.
li
theories: monism and dualism. This segment of this paper examines these rural
theories in detail and illustrates their practical application with examples from
Monism
of a single universal system. The theory posits that all rules of law ultimately regulate
the behaviour of the individual, whether those rules emanate from international or -
nationa! law Thus, the two systems are interrelated part of a strum ~ .k ---la
the natural law Gchwof include Hugo Grotius, a Dutch scholar and diplomat who is
generally regarded as the father of the nationalist school of natural law; 23 24 25 Hans
Kelsen; and Herschel Lauder Patch - all of n have at 1 that the international legal
order is significant only as par;, of a universal legal .order which comprises the
national legal order as well. The monist school argues that not only do international
23
Early treatises on these theories include J. L. Brierly, International Law is England, (1935) Law
Quartely Review 51:24; H. Kelson, General Theory of Law and State (Cambridge: Harvard University
Press, 1945); H. Kelson, Principles of International Law Second Edition (New York: How, Rime Hark &
Winston, 1966); L. J. Kung, The Nature of Customary International Law (1953) American Journal of
international Law 47 at 662; D. OConnell, International Law Second Edition (London: Stevens & Sons,
1970) & J. G. Starke, Monism and Dualism in me Theory of International Law (1936) British Year Book
of International Law 16. For the more recent discussion of the theories, see I. Brownlie, Principles of
Public International Law Fourth Edition (Oxford: Clarendon Press, 1990); W. E. Butler, Comparative
Approaches to International Law (1985) Recueil Des Cours 190; A. Cassese, Modern Constitutions and
International Law (1985) Recueil Des Cours 192; J. Dugard, International Law: A South African
Perspective Third Edition (Kenwyn: Juta, 2006) and M. N. Shaw, Internet;: Law r';vr L_;tion
(Cambridge: Cambridge University Press, 2003).
24
J. Dugard, op. cit. at 53-58
25
L. J. Kunz, op. cit. at 662-669; See also H. Kelson, op. cit. and O. :..j , ' -a anc i- ;.,tional
Human Rights Law: Cases of Botswana, Namibia and Zimbabwe (A: iers hot: Asngais, 2UU1 j.
12
orders constitute a single universal system, but, in cases of conflict, national legal
Namibia
The status and role of both customary and conventional international
law in the municipal law of Namibia is regulated by the constitution. The
latter Explicitly recognizes international law and its role and function in
Namibian municipal law. The relevant Article llj.4 of the constitution
explicitly and unequivocally declares the following:
Unless otherwise provided by this constitution or Act of
parliament, the general rules of public international law
and international agreements binding upon Namibia
under this constitution shall form part of the law of
Namibia.
26
See I. Brownlie, op. cit. at 33 and M. Shaw, op. cit. at 100-101.
27
See for example, Article 151 of the Constitution of Burkina Faso, 1991; Article 45 of the Constitution of
Cameroon, 1992; Article'147 of the Constitution of Mali, 1992; Article 147 of the Constitution of the
Republic of Benin; Article of 132 of the Constitution of the Central African Republic. All these
constitutional provisions are modeled on Article 55 of the French Constitution of 1958. In general, they
provide that treaties or agreements duly ratified or approved shall, upon their publication, have an authority
superior to that of domestic legislation, subject, for each government or treaty, to application by the other
party.
13
The effect of this provision is to accord both the general rules of public
international law and international agreement direct and automatic application in
Namibian municipal law, subject to two main qualifications.
Firstly, the general rules of international law and international agreement may
be excluded from applying directly in municipal law by the Namibian constitution
itself. Secondly, they may be excluded by an Act of parliament. But for these two
qualifications, the general rules of international law and treaties are directly
incorporated into Namibian, municipal law. These rules are directly enforceable by
municipal' institutions, particularly the courts.
28
(1994) (1)SA 407 (NM.SC) .
14
ACHPR meant that the Charter was directly applicable in Namibia national
law. It directly created rights and duties for individuals in municipal law. It
Cultura 2000 & Another, the Namibian Supreme Court emphasized that;
29
(1995) (1) SA 51 (NM.SC)
30
Ibid, at 86.
31
Although the court opined that the ACHPR formed part of Namibian municipal law, it is significant to
emphasize that the Namibian parliament has yet to pass legislation making the ACHR part of Namibian
National Law.
32
(1994) (1) SA 407 (NM.SC) p. 412.
15
to Namibia where they were charged, inter alia, with treason and murder
Covenant on Civil and Political Rights, 1951; the Convention Relating to the
Status of Refugees, 1951; and the 1967 Protocol Relating to the status of
Refugees, and to Article 144 of the Namibian Constitution. The Court stated
that: ^ ,
As a matter of fact, as I have shown ... the International
Convention on Civil and Political Rights and the UN
Covenant and Protocol relating to the Status of
Refugees have become part of public international law
and by virtue of Art. 144 have become part of the law of
Namibia.
According to the court, these instruments had not only become part of
Namibian domestic law by virtue of the Namibia constitution, but some of their
Senegal
Senegal and published at the domestic level, it automatically becomes part of the
law of the land and can be invoked as a cause of action before domestic *
33
SAFLII 2004 (SC).
courts. Thus, under Article 98 of the Senegalese constitution, treaties or
agreements duly ratified shall upon their publication have an authority superior to
that of the laws, subject for each treaty and agreement, to its application by the
other party.
A question may arise as to whether or not the laws referred to in the above
34
In any case, Senegal has accepted the primacy of International Law over National Law. See Para. 10
of the Human Rights Committees Concluding Observations CCPR/C/79/Add. 82 of 19 November
(1997) on Senegals Report (accessed 27 September, 2011).
35
Suleymane Guengueng and others v. Hissene Habre (2002) AHRCR 183 (SECC 2001).
17
International Law and determines its status within the national hierarchy of laws.
36
Criminal trial judgment and accompanying civil action for damages, 26 March, 2006.
18
over national laws, subject in some cases to implementation by the other parties to
the treaty or agreement. The international laws become applicable as law in the
national legal system as soon as it is ratified. It may be invoked directly in natural
courts.
Dualism
Dualism - or rather, t the doctrine of transformation - for its part perceives
international law and national law as two distinct and independent legal orders, each
having an intrinsically and structurally distinct character.37 The two legal orders are
separate and self-contained spheres of legal action, and theoretically there should
be no point of conflict between them. Since they are separate legal systems,
international law would as such not form part of the municipal law of the state.38 39 * *
* Dualism argues that the two legal systems are distinct in nature.
First, the two legal systems are different in the particular relations that they
govern: state law deals with the social relations between individuals, and
international law regulates the social relations between states, who alone are subject
to it. In the second, sense, Triepel argues and is widely supported by
37
See generally, Maluwa, T.; The Role of International Law in the Protection of Human Rights under
Malawian Constitution (1996) African Year Book of international Law, p. 53; Morgenstern, F.,
Judicial Practice and Supremacy of International Law (1950); British Year Book of International
38 Law, p. 27:42.
This view has been propounded by positivist theorists such as Hegel, Anzilotti and Triepel, who have
invoked a consensual approach to international law to argue that the two legal systems are distinct in
nature.
39
Lindholt has noted that the classical dualist theory is based on the perception that two types of law
regulate different subjects, where national law operates with individual subjects while international has
states as its subject; See Lindholt, L.; Questioning the University of Human Rights: The African
the
on Human and People Rights in Botswana, Malawi and Mozambique, Dartmouth: Ashgate, (1997)
Charter
pp. 84-85.
i
19
other dualists, that the two systems have different juridical origins. The source of
municipal 'law is the will of the state itself, while the source of
principle.42 The latter principle commands that agreements between states are
40
See J. G. Starke, and I. A. Shearer, Starkes International Law (London: Butter Worths, 1994) at 64.
44
See for example, Article 75 of the Constitution of the Republic of Ghana 1979. Article 231 of the
Constitution of South Africa, 1996; Article 211 of the Constitution of the Republic of Malawi, 1995;.
Article 123 of the Constitution of the Federal Republic of Uganda; Article 12 of the Constitution of the
Federal Republic of Nigeria 1999; Article 111(B) of the Constitution of the Republic of Zimbabwe,
1993; Article 238(4) of the Constitution of the Kingdom of Swaziland.
20
law does not become part of or have the force of law in national legal system
unless it has been expressly given that force by a national measure, usually a
be examined seriatim.
Nigeria
*>
Court of Nigeria has observed in the case of General Sani Abacha and-Others
government of Nigeria does not become binding until enacted into law by the
National Assembly and before its enactment into law by the National
45
(2000) 77 LRCN 1255. In that case the court cited with approval the case of Higgs & Anor v. Minister of
National Security & Ors, the Times of December 23, 1999; where the Privy Council opined that Treaties
formed no part of the domestic law unless enacted by the legislature.
21
Malawi
On the authority of Article 211(1) of the Constitution of the Republic of
Malawi, 1995; Malawi is a dualist country. By that constitutional provision, any
international agreement ratified by an Act of parliament shall form part of the law of
the Republic if, so provided for in the Act of parliament ratifying the agreement. The
tenor of this provision has been reechoed by the courts of Malawi.
For instance, in the case of Chafukzya Chichana v. The Republic,47 counsel
for the applicant had argued; inter-alia that the applicants rights were also
provided under the African Charter to which Malawi was a party. The court, however,
rejected this contention based on the fact that no specific
46
Abach v. Fawehinmi supra at 356-357.
47
(1996) ILRC 1. The case was discussed by T. Malawa, The Role of International Law in the Protection of
Human Rights under the Malawi Constitute (1953) 3 ATBLL 65-69.
2
legislation had been passed to incorporate the Charter into domestic law.48
Zimbabwe
Another illustration of the dualist theory on the application of international
law to municipal law is that provided'by section 111(B) of the Constitution of
Zimbabwe.50 According to that section of the Zimbabwes Constitution, an
international treaty is, subject to approval by parliament and does not form part of
the law of Zimbabwe unless it has been incorporated into the law by or under an Act
of parliament.
48
On the current potential effects of the African Charter on Human and Peoples Right on Malawi Law, see L.
Lindholt, op. cit. at Ch. 6 and 7.
49
The 1996 constitution, then in force provided in section 2(1) (III) that the government and the people of
Malawi shall continue to recognize the sanctity of the personal liberties enshrined in the United Nations.
Universal Declaration of Human Rights...
50
As amended by the Constitution of Zimbabwe Amendment Act, (No. 12), 1993.
/ t
y
For Lands, Land Reform And Resettlement And Another,51 52 accommodates the
dualist orientation of the constitution of Zimbabwe. In that case the judge stated
categorically that:
The supreme law in this jurisdiction is our
constitution and it has not made provisions for these
courts to be subject to the tribunal.
The above dictum which suggests that international law and municipal
law is each supreme in its sphere of operation shows the dualist orientation of
Zimbabwe.
Conclusion
practical terms, they may not purely determine the relationship between national
and international law. This is posited on a number of reasons. Firstly, the internal
conditioned by a rule of municipal law. The basic principle in most legal systems is
courts sometimes fail to effectuate treaties which are binding under international law;
51
HC 3295/08 (Unreported)
52
See J. Dugard, International Human Rights Norms in Domestic Courts: Can South Africa Learn from
Britain and the United States? in E. Kahn, (Ed.). Fiat Justitia: Essays in Memory of Oliver Deneys
Schriener (Cape Town: Juta, 1983) at 221, 223-224.
24 }
\
give limited effect even to unincorporated treaties. For example, British courts use
of the European Convention on Human Rights (ECHR) before its incorporation into
United Kingdom (UK) law. In countries like the UK, courts rely on the principle that
legislation should, wherever possible, be so interpreted as not to conflict with the
international obligations of the state.5j
In the final analysis, the theories are relevant only in the specific context of
customary, but not conventional, international law. The real concern, it is submitted,
is how international standards can be infused or, rather, incorporated into state law
to reinforce the effectiveness of the national legal system. Oftentimes, national legal
rules are not well-defined and are sometimes inadequate in respect of addressing
practical legal questions. But this is not to say the theories are insignificant: indeed,
on the contrary, they are important. They continue to illuminate the interaction
between international law and municipal law. Most importantly, they will
increasingly have some impact on efforts to find practical solutions on the role of
international law in the municipal legal sphere.
53
J. G. Collier, Is International Law Really Part of the Law of England? (1989)
International Law and Comparative Law Quarterly at 924-925; H. J. Jackson, Status of
Treaties in Domestic Legal Systems: A Policy Analysis (1992) American Journal of
International Law 310.