i THE STATUS OF CUSTOMARY INTERNATIONAL LAW IN NIGERIA A PROJECT PRESENTATION IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS (LLB) HONS DEGREE BY OZUO IZUNNA ISDORE NAU/2008394322 TO FACULTY OF LAW NNAMDI AZIKIWE UNIVERSITY, AWKA SUPERVISOR DR. ELIZABETH AMA OJI JULY 2013
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i
THE STATUS OF CUSTOMARY INTERNATIONAL LAW IN NIGERIA
A PROJECT PRESENTATION IN PARTIAL FULFILMENT OF THE
REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS (LLB)
HONS DEGREE
BY
OZUO IZUNNA ISDORE
NAU/2008394322
TO
FACULTY OF LAW
NNAMDI AZIKIWE UNIVERSITY, AWKA
SUPERVISOR
DR. ELIZABETH AMA OJI
JULY 2013
ii
Certification
This is certify that this project was written by me and submitted to the Faculty of Law, Nnamdi
Azikiwe University in partial fulfillment of the requirements for the award of Bachelor of Laws
(LL.B) degree. It has not been submitted in part or full to this or any other University for
Diploma or Degree Programme.
_____________________________ ________________________
Ozuo Izunna Isdore Date
Student
_____________________________ ________________________
Dr. Elizabeth Ama Oji Date
Supervisor
_____________________________ ________________________
Rev. Fr. Dr. Maurice Izunwa Date
(Project Coordinator)
_____________________________ ________________________
Prof. Chuka Obiozor Date
Dean Faculty of Law
iii
Dedication
This work is dedicated to the Legion of Mary: a pious society whose object is to give God glory
through the lives its members’ live.
iv
Acknowledgements
I cannot commence this acknowledgment without thanking first the Eternal Father for his love
and guidance throughout the writing and production of this work. I am greatly indebted to the
Father of Life and the Giver of knowledge for the successful completion of this work.
My sincere and unequivocal gratitude goes my supervisor: Dr. Lizzy Ama Oji for igniting
my interest in this area of law, I will forever remain grateful and for the tutelage I received from
her in the course of writing this project. I wholeheartedly appreciate my Project coordinator Rev.
Fr. Dr. MO Izunwa for his help especially the procedural help in writing this work, also for his
diligence towards duty and inspiring his students to be hard working. I could not have done
better but for my supervisor Dr Oji and my coordinator Dr Izunwa.
My heartfelt gratitude goes to my father Mr. Richard Anayo Ozuo and my mother Mrs.
Veronica Njideka Ozuo for their perseverance in seeing me through this journey that began 5
years ago and beyond. I appreciate my siblings too: Marvin for proof reading and contributing to
this work, Justice, Loveth and Aeneid for their support and encouragement throughout my stay in
Unizik.
I sincerely thank all my Lecturers for their formation throughout my stay in this citadel of
learning especially CA Obiozor a Professor of Laws and the amiable Dean of this noble Faculty
for his love for observance to rules; Prof. Ilochi Okafor SAN for the confidence he instilled in
me at the early part of this academic journey and Dr. MN Umenweke for his attitude towards his
students and towards life. My unalloyed appreciation goes to RO Onunkwo Esq for his drilling
and inculcating in his students how to engage in critical thinking and CI Okafor Esq for his
caring and friendly attitude.
I am grateful to Chief Sir OJO Okolie Esq for the opportunity he gave to me to
experience legal practice during the unduly long vacations. I also wish to use this medium to
appreciate my learned brothers at the LAWSA bench, all the members of LAWSA Practitioners
Council of 2011/2012 Session and all erudite and ebullient LAWSA practitioners of the
aforementioned session. My brothers and sisters in the Legion of Mary, friends in the Nigeria
Federation of Catholic Students Unizik Chapter and the Curia Officers from 2010-2013 I cannot
thank you enough. It is virtuous that I acknowledge my friends: CBN Akuneto, IO Akpuchukwu,
IE Okonkwo, IE Asuzu, IL ELeazu, CI Umeanaeto, DO Nnachi, UC Anyanele, SU Nweke-Eze,
RO Agazie, MC Oguaju, BL Ochulor, SO Orji and Uche Anichebe. I also appreciate CJS Azoro
for his immense contribution and Cynthia for her concern. Boy V, Brainie, TI, TJ Kameje,
Kwuchi, Saint, Prince and all others. I thank you all.
However, it is worthy to note that none of the persons mentioned above share in any
error, omission or shortcoming of whatever nature that may be found in this work. I accordingly
accept full, total and complete responsibility thereof. Thank you
v
Abstract
Over the years, uncertainty has fathered the applicability or otherwise of customary international
law in Nigeria. The legislature by omission or commission failed to provide for the place of
customary international law in our laws. This precarious situation is peculiar to customary
international law because article 12 of the Nigerian Constitution took care of the application of
treaties but nowhere under our enactment was the application of customary international law
addressed. This is notwithstanding the fact that treaties and customary international law are both
sources of international law. This work examines the position of customary international law in
other jurisdiction spread among the five continents so as to determine how international custom
ought to be treated. The work also considers our case laws as regards the practice of customary
international law in Nigeria to discern the position adopted by our courts. To accomplice this
project, this work is divided into five chapters. The first chapter will aid us in understanding the
true concept and nature of international law and its development. The second chapter throws
light on the sources of international law particularly customary international law. The third
chapter takes us on a voyage to the five continents of the world to decipher their relationship
with international law via treaties and customary international law. The fourth chapter transports
us back to the position in Nigeria and finally chapter five deals with the implication of various
practices adopted by states with respect to customary international law, recommendations and of
course the conclusion.
vi
Table of Content
Title page……………………………………………………………………………………..................i
Certification…………………………………………………………………………………………..…ii
Dedication………………………………………………...…………………………………………….iii
Acknowledgement………………………………………….…………………………………………..iv
Abstract………………………………………………………………………………………………....v
Table of Content……………………………...…………………………………………………………vi
Table Cases…………………………………………………………………………………………..…ix
Table of Statutes…………….…….……………………….……………………………………….…..ix
List of Abbreviations….….…….………...….….….……….…….….….……….…….………….… xiii
CHAPTER ONE
NATURE AND MEANING OF INTERNATIONAL LAW
1.1 Nature of International Law…………………………………………………………………………1
1.1.1 Role of International law…………………………….………………………………………..…….2
1.1.2 Does International Qualify as Law?.……………………….………………………………......…3
1.1.3 The Enforceability or Otherwise of International Law…………………………………………...5
1.2 Meaning of International Law…………..…………………………………………………………...7
1.3 Development of International Law…………………………………………………………………10
CHAPTER TWO
SOURCES OF INTERNATIONAL LAW
2.1 Treaties……………………………………………………………………………………………..15
2.2 Customs……………………………………………………………………………………………..18
2.2.1 General Practice………………………………………………………………………..…………18
vii
2.2.2 ‘Accepted As Law’………………………………………………………………………………20
2.3 Other Sources of International Law………………………………………………………………..22
2.3.1 General Principles of Law Recognized by Civilized Nation………….…………………………22
2.3.2 Judicial Decisions………………………………………………………………………………..24
2.3.3 Teaching of the Most Highly Qualified Publicist……………….……………………………….25
2.3.4 Resolutions of the United Nations General Assembly……………..…………………………….26
2.3.5 The International Law Commission……………………………………………………………...27
CHAPTER THREE
RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW
3.1 Application of Municipal Law in International Law……………………………………………….30
3.2 International Law before Municipal Court…………………………………………………………32
3.3 Comparative Analysis of States…………………………………………………………………….33
3.3.1 Practice in Respect of Treaties………………………………………………………………........33
3.3.1.1United States of America….………………………………………………………………….…33
3.3.1.2 Great Britain……………………………………………………………………………….……34
3.3.1.3 China…………………………………………………………………………………………....35
3.3.1.4 Ghana…………………………………………………………………………………………...35
3.3.1.5 Argentina………………………………………………………………………………………..36
viii
3.3.2 Practice in Respect Of Customary International Law……………………………………………37
3.3.2.1 United States of America……………………………………………………………………….37
3.3.2.2 Great Britain……………………………………………………………………………………37
3.3.2.3 China……………………………………………………………………………………………39
3.3.2.4 Ghana…………………………………………………………………………………………...39
3.3.2.5 Argentina……………………………………………………………………………………….40
CHAPTER FOUR
INTERNATIONAL LAW IN NIGERIA
4.1 Application of International Law in Nigeria with Respect to Treaties……………………………..41
4.2 Application of Customary International La w in Nigeria…………………………………………..46
CHAPTER FIVE
STANDARDIZING INTERNATIONAL LAW PRACTICE IN NIGERIA
Implications of Various Practices………………………………………………………………………52
Recommendations………………………………………………………………………………………55
Conclusion……………………………………………………………………………………………...56
Bibliography…………………………………………………….……………………………………....58
ix
Table of Cases
Abacha v Fawehinmi [2000] 4 SC (pt 11) 1 ........................................................................... 45,47,49,54,58
African Continental Bank v Eagles Super Pack Ltd [1995]2 NWLR (pt 379) 590 ............................... 50,58
Agbai v Okogbue (1991) NSCC 422 .......................................................................................................... 52
Akinsanya v United Bank for Africa [1986] 4 NWLR (pt 35) 273 ............................................................ 51
Albama Claims Arbitration (1871) Moores Arbitration ............................................................................. 35
Anglo- Norwegian fisheries case(1951) ICJ Report 131. ........................................................................... 25
Asylum Case (1950) ICJ Report 266 .......................................................................................................... 22
Barbuit’s Case (1737) Cas Temp Talbolt 281 ............................................................................................ 42
Barcelona Traction, Light and Power Company [Belgium v Spain (1970)] ICJ Report 3 ......................... 27
Bosnia and Hezegovina v Serbia and Montenegro(2007) ICJ Reports 113 ................................................ 27
Cameroon v Nigeria (1998) ICJ Report 275 ............................................................................................... 28
Certain German Interest in Polish Upper Silisus[1925] PCIJ Report (Ser. A) No. 6…….…………….....36
Cheung v R (1939) AC 160 ................................................................................................................... 42,55
Chorzow Factory Case [1928] PCIJ (Ser.A) No 17 ................................................................................... 27
Commercial and Estate co. of Egypt v Board of Trade (1925) 1 KB 295 .................................................. 55
Cook v United States (1933) 288 US 102 ................................................................................................... 38
Corfu Channel Case (1949) ICJ Report 18 ................................................................................................. 27
Diggs v Shultz (1973) 411 US 931 ............................................................................................................. 38
Diversion of Water from the Meuse Case [1937] PCIJ Report (Ser.A/B) No.7………………………….28
Fawehinmi v Abacha [1996] 9 NWLR (pt 745) 710 .................................................................................. 47
Filartiga v Pena-Irala (1980) 630 F2d 876 .................................................................................................. 41
Fisheries Case [United Kingdom v Norway ] (1951) ICJ Report 116 ................................................... 23,36
Fisheries Jurisdiction Case [United Kingdom v. Iceland (1973) ] ICJ Report 3 ........................................ 23
Free Zones Case [1932] PCIJ Report (Ser. A/B) No.40 ............................................................................ 35
x
Frères v Soviet Mercantile Fleet (1926) Civil Judgment No 15 - 4885 ...................................................... 43
Graeco – Bulgarian Communities Case [1930] PCIJ Report (Ser. B) No.17 ............................................ 35
Ibidapo v Lufthansa Airlines [1994] 8 NWLR (pt.362) 355 ...................................................................... 47
Lotus Case [1927] PCIJ (Ser.A) No.10 ...................................................................................................... 25
Mbamara v Iwuagwu (2002) WRN 82 ....................................................................................................... 52
Mojekwu v Iwuchukwu [2004] 11 NWLR (pt 883) 196 ............................................................................ 52
Mortensen v Peters (1906) 8 FJ 93 ............................................................................................................. 42
NDIC v Okem [2004] 10 NWLR (pt 880) 107 ........................................................................................... 48
Nicaragua v US (1986)ICJ Report 14 ......................................................................................................... 31
North Sea Continental Shelf case (1960) ICJ Report 3.......................................................................... 21,24
Oshevire v British Caledonian Airways Ltd. [1990] 7 NWLR (pt 163) 507……………………………..47
Paquette Habana (1990)175 U.S 677………………………………………………………...…………...23
Polish National in Danzig Case [1937] PCIJ Report (Ser. A/B) No. 44 p.24 ............................................. 35
Prosecutor v Thomas Labanga Dyilo (Unreported Suit No. ICC-/01/04-01/06) ....................................... 11
Public Procurator v Matsumoto (1954) Criminal Judgment 54 Yi-11165 .................................................. 39
Public Procurator v Wang and Sung (1965) Criminal Judgment No.54 Shu-2107 .................................... 43
Public Prosecutor v Wilson (1961) Criminal Judgment 55 Shu-772 .......................................................... 39
R v Chief Immigration Officer ex parte Bubi (1976) WLR 979 CA .......................................................... 38
R v Jones (2006) UKHL 16 ........................................................................................................................ 42
Reid v Covert (1957) 354 US 1 .................................................................................................................. 38
Right of Passage case [Merit] (1960) ICJ Report. ...................................................................................... 24
South West Africa Cases [Second Phase] (1966) ICJ Report 6 .................................................................. 28
Texaco v Libya (1977) 53 ILR 389 ............................................................................................................ 28
Trendex Trading Corporation v Central Bank of Nigeria (1977) 2 WLR 356…………………….…..42,54
Triquent v Bath (1964) 3 Burr 1475 ........................................................................................................... 42
xi
Table of Statutes
National Statutes
Constitution of Argentine Nation 1994
Constitution of Federal Republic Of Nigeria 1999 Cap C23 Lfn 2004
Constitution of Federal Republic Of Nigeria (Third Alteration) Act 2010
Constitution of Peoples Republic Of China 1982
Constitution of The Republic Of Ghana 1992
Evidence Act 2011
Evidence Act Cap E14 Lfn 2004
United States Constitution Amendment Xxvii 1992
International Instruments
Agreement Establishing The World Trade Organization 1994
American Declaration of The Rights And Duties of Man 1948
Convention on Status of Stateless Persons of 1954
Convention on the Elimination of All Forms of Discriminations Against Women 1979
Declaration on the Right of a Child Of 1959
Geneva Convention on the High Sea Of 1958
Hague Conventions and Declaration 1907
International Covenant on Civil and Political Rights 1966
Kellogg-Briand Pact 1928
Panama-USA Convention for the Construction of Isthmian Ship Canal 1903
Protocol Relating to The Status of Refugees 1967
Statute of The International Court of Justice 1945
Statute of The International Criminal Court 1998
Universal Declaration of Human Right 1948
xii
United Nations Charter 1945
Ussr-Afghanistan Bilateral Treaty of Friendship 1978
Vienna Convention on The Law of Treaties 1969
Vienna Convention on The Law Of Treaties Between States and International Organizations Or Between
International Organizations 1986
Vienna Convention on Diplomatic Relations
Warsaw Convention For The Unification of Certain Rules Regarding Air Transport 1929
Other Authorities
The Holy Bible
Regulations
Carriage by Air (Colonies, Protectorates and Trust Territories) Order 1953 (Public Notice No.73 Of 1953)
xiii
List of Abbreviations
Cal. W. Int'l. L. J California Western International Law Journal
EJIL European Journal of International Law
HKLJ Hong Kong Law Report
ICJ International Court of Justice
ILR International Law Report
LFN Laws of the Federation of Nigeria
NAILS Nation Institute of Advanced Legal Studies
NWLR Nigerian Weekly Law Report
NSCC Nigerian Supreme Court Cases
PICJ Permanent Court of International Justice
SC Supreme Court
UK United Kingdom
UKHL United Kingdom House of Lords
UN United Nations
USSR Union of Soviet Socialist Republics
WLR Weekly Law Report
WRN Weekly Reports of Nigeria
1
CHAPTER ONE
NATURE AND MEANING OF INTERNATIONAL LAW
1.1 Nature of International Law
When we talk about International law we either mean private international law or public
international law.1 Aust opined that private international law is an unfortunate term for what is
more properly called conflict of law; that is, the body of rules of the domestic law of a state
which applies when a legal issue contains a foreign element and it has to be decided whether a
domestic court should apply foreign law or surrender jurisdiction to a foreign court.2 On the
other hand, public international law governs the relationship of state and other subjects of
international law amongst themselves. This work is not concerned with private international law
so called, but with public international law which is properly termed international law.
The validity of International law has been queried by some jurists and legal
commentators. They have questioned the existence of any set of rules governing inter-state
relations, its entitlement to be called law and its effectiveness in controlling states and other
international actors in ‘real life’ situations.3 These questions, criticisms and comments made by
some jurist with respect to international law and the answers given thereto will aid us in
understanding the nature of international law which is the basic characteristics and attributes of
international law.
In considering the myriad of criticisms of international law for the sole purpose of
exposing the true nature of international law, this work will consider the following:
1 MN Shaw, International Law (6th edn, Cambridge: Cambridge University Press, 2008) p.1. 2 A Aust, Handbook of International Law (Cambridge: Cambridge University Press, 2005) p.1. 3‘The Nature of International Law and International System’ available at
<http://www.oup.com/uk/orc/bin/9780199208180/dixon6e_ch01.pdf> accessed on 25th December 2012.
2
1) The role of international law.
2) Whether international law can properly be called law.
3) The enforceability or otherwise of international law and finally.
4) The juridical basis of international law.
1.1.1 The Role of International Law
International law play various roles ranging from promotion of relationship among states,
maintaining peace in the world, promotion of justice, regulating international transactions etc. It
is said that rules of international law covers every facet of interstate activity. There are laws
regulating the use of the sea, outer space and Antarctica.4 International law concerns itself with
rules governing international telecommunication, postal services, conduct of international trade,
carriage of good etc. International law is also involved with extradition, the use of force, human
right, nationality, security of nations and environmental protection.5
International law has lay down rules, principles and standards that govern nations and
other participants in international affairs in relation with one another.6 It also plays roles in the
resolutions of problems of regional or global scope, resolution of international tension and
prevention of needless suffering during wars.7
International law addresses the issue of peace keeping forces, the claims for
independence by groups around the world, the changing social and political situation in the
4 ‘Nature of International Legal System’ available at
<http://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CDIQFjAA&url=ht
tp%3A%2F%2Ffds.oup.com%2Fwww.oup.com%2Fpdf%2F13%2F9780199562718_chapter1.pdf&ei=m4gFUZLl
CceyhAeBkYCoCQ&usg=AFQjCNFEr_eFrPUdHI2eeD-
llVEMRd0_rA&sig2=Ej64rp9IbGuN4phNXCMkgQ&bvm=bv.41524429,d.ZG4> p.3 accessed on 25th December
2012. 5 Ibid. 6 EA Oji, ‘Application of Customary International Law in Nigeria’ (2010) NAILS Law and Development Journal,
151. 7 Ibid.
3
world, increase interdependence in the international community by analyzing the legal principles
arising from interactions between states, actions by states and certain actions by individual
corporations, international organization and other actors on the international plane.8 Thus,
international law has relevance to our daily lives. For example, international law enables
international telephone calls to be made, oversea mails to be delivered and travel by air, sea or
land to occur relatively easy.9 From the foregoing, international law play various roles in the
functioning of states. It does not only benefit the states by this enormous role but also benefits
the citizens of the states concerned.
It has been said that modern international law do not only facilitate the functioning of
international community but also seeks to control states by inhibiting or directing their conducts
in their relation with one another e.g. law prohibiting the use of force.10 International law thus
has graduated or is graduating from a system that was or is concerned with facilitating
International Corporation to a system that seeks to control its subjects.11
Finally international law has the role of arranging for the cooperation that most actors
wish to have.
1.1.2 Does International Law Qualify as Law
International law has been accused by some writers of pretending to be what it is not. The
famous jurist John Austin cast aspersion on international law when he alleged that ‘international
8 ‘Nature of International Legal system’, art cit, p.1. 9 Ibid. 10 ‘Nature of International Law and the International System’, art cit, p.3. 11 Ibid.
4
law is clearly a movement as it is more ethical than legal in its nature’.12 He went further to call
it a branch of ethics. In fact international law has been regarded to mean international morality or
ethics, international courtesy or convention in the social sense of the word. It has been regarded
as rules comity or even as a foreign policy.13 However all these assertion can be termed frivolous
because of the overwhelming evidence evidencing international law as law.
Arguments have been proffered to assert that international law is really law. One of
which is the position taken by HL Hart when he posits that if the strength of any law is derived
from acceptance of that law by the society and not its enforceability, then international law is
law.14 From this point of view it is seen that acceptance of the law and not its enforceability
makes a law. International law has been accepted as law by various states. These states do not
only accept international law as such but accept it as binding on them. Thus in international law,
we discuss concepts like opinio juris sive necessitates (general practice accepted as law).
It must be kept constantly in mind that courts administer laws as opposed to morality or
ethics. It will thus be unfounded to posit that what courts administer (international law) is no
longer law.15 The mere fact that courts both local and international administer international law
shows that international law is really law and nothing else.
Sanction, which Austin observed as missing in international law and which consequently
disqualifies international law from being law, must be noted that it is not an end itself; rather it is
a means to an end. The said end is obedience to the command or rule of law. Thus, any means
which produces this end has the force of sanction per se and there is no reason why such means
12
JB Scott, ‘The Legal Nature of International Law’ (1907) 1 No.4 the American Journal of International Law
available at<http://www.jstor.org/stable/2186495> accessed on 25th December 2012. 13 Ibid. 14 Aust, art cit, p.3. 15 Scott, art cit, p.838.
5
should not be seen as sanction.16 If international law is carried out by any means, such means can
as well be termed sanction which is enforcement properly so called. More so, it should be kept
constantly in mind that sanction is not part of the rule but something outside the rule and
sanction indeed confirm the existence of a law.17
Finally the application of international law in national courts cannot be over emphasized
neither can the application of international law as such be denied in offices that deal with it daily.
Examples would include the foreign ministries, international organizations which all have legal
departments that advise on international law and even conduct cases in international tribunal.
Aust thus pointed out that if international law is not law then the aforementioned offices and
other legal colleagues in other foreign ministries are earning their salary under false pretences.18
1.1.3 The Enforceability or Otherwise of International Law
It is quite obvious that international law lack formal system for enforcement. International law
unlike municipal law has no police and no systemized court to effectively enforce its rules.
However, this does not mean that international law is not enforceable. In dealing with the
enforcement of international law, the researcher of this work deemed it necessary to divide same
into formal enforcement and informal enforcement.
Formal enforcement: Here we have the provisions of the United Nations charter which
provides for enforcement and prevention of any breach of international law.19 From the UN
Charter,20 the Security Council is a vital organ in enforcement of international law. The Security
16 Scott, art cit, p.844 17 Ibid. 18 Aust, art cit, p.4 19 United Nations Charter 1945, art.39, 41 and 42. 20 Ibid.
6
Council is entitled to take any action as it deems necessary to see to the enforcement of the
decisions of The International Court of Justice when any party to the case fails to comply with
the judgment of the court.21 Another powerful organ for the enforcement of international law is
the International Court of Justice. It is established as the principal judicial organ of the United
Nations in its Charter.22 The International Criminal Court established in 1998 is also a vital tool
for enforcing international law. Both courts have handled plethora of cases pertaining to
international law.
Informal enforcement: This could be seen in those enforcement procedures that arises out
of state practice and not necessarily found in a formal document. Informal enforcement includes;
1) Obligation imposed on states to domesticate or incorporate international law in their
municipal legislation;23
2) Rules on reciprocity because international laws are rooted in those rules that state
would like to apply to them;24
3) Loss of rights and privileges is another way of enforcing international law. Here a
state can repudiate a treaty or suspend the performance of their obligation arising
under a treaty if the other state violates a term in that treaty.25 E.g. In 1982 U.K broke
diplomatic relations with Argentina after its invasion of Falkland Islands.
21Ibid art. 94. 22 Ibid art. 93. 23 ‘Nature of Public International Law’ available at<http://fds.oup.com/www.oup.com/pdf/13/9780199599943.pdf>
accessed on 25th December 2012. 24 Ibid. 25‘Nature of International Law and the International System’, art cit, p.8
7
1.2 Meaning of International Law
Having known the nature of international law, what then is the meaning of international law?
Over the years, many meanings and definitions have been ascribed to international law. We
would x-ray these definitions to know how they fit into the concept of international law.
According to Bentham’s classical definition, ‘international law is a collection of rules
governing relations between states’.26 This definition by the learned jurist is one of the earliest
definitions given of international law. Since then, international law has developed rapidly so that
one cannot comfortably say now that international law now regulates the relationship that exist
between states. It must be borne in mind that international law now regulates individual behavior
and also deals with international organizations. In the case of individuals, prosecution of certain
persons before International court and tribunals is no longer news. The recent conviction and
sentencing of Thomas Labanga by the International Criminal Court on 14th March and 10th July
2012 respectively is a good example.27 This stand by Bentham has not stood the test of time.
WE Hall on definition of international law has this to say:
International law consists in certain rules of conduct which modern
civilized states regard as being binding on them in their relation with one
another with a force comparable in nature and degree to that binding the
conscientious person to obey the law of his country, and which they also
26
‘The Nature and Development of International Law : Definition and Scope’ available at
<http://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CDYQFjAA&url=
http%3A%2F%2Fwww.britannica.com%2FEBchecked%2Ftopic%2F291011%2Finternational-
law%2F233494%2FThe-nature-and-development-of-international-
law&ei=YCQGUfarDIXJhAfNk4HQDw&usg=AFQjCNGDX_HUWc6wzy7-
a1pPGr7HB5OygA&sig2=N6RqJeDPhd5gl0CkwDl73Q&bvm=bv.41524429,d.ZG4> accessed on 25th December
2012 at 5:41pm. 27 The Prosecutor v Thomas Labanga Dyilo (Unreported Suit No. ICC-/01/04-01/06).
8
regard as being enforceable by appropriate means in cases of
infringement.28
This definition in as much as it tried to cover the scope of international law, has some
shortcomings. One of which is the emphasis it lays on the state leaving out the individual persons
who are also subjects of international law like Bentham’s definition above. To this extent, the
erudite definition offered by WE Hall is faulty and cannot be accepted in its entirety.
Conwey Henderson on the other hand, defined international law as ‘the collection of rules
and norms that states and other actors feel an obligation to obey in their mutual relations and
commonly obey’. This definition as wonderful as it may seem may not totally be correct bearing
in mind that international law does not only arise in state’s mutual relationship with another, but
international law is also applicable within a state. This is why we talk about the application of
international law in municipal law which we shall see in chapter 3 of the work. More so, the
jurist never defined what he meant by ‘other actors’ in his definition. This singular act is capable
of keeping one in the dark as to the meaning of ‘other actors’ as used in the definition.
Prof. Tunkin has this to contribute:
contemporary international law is the aggregate of norms which are
created by agreement between states of different social system, reflect the
concordant wills of states and have a generally democratic character,
regulate relationships between them in the process of struggle and
cooperation in the direction of ensuring peace and peaceful coexistence
28 Scott, art cit, p.846
9
and freedom and independence of the people, and are secured when
necessary by coercion effectuated by states individually or collectively.29
From this long definition, apart from the fact that it focuses on only the state, the
definition assert that international law is an aggregate of norms which are created by agreement
between states. To our mind, not all norms are created by agreement between states. In fact,
customs are not created by agreement but evolve by practice. To this extent this definition does
not represent the meaning of international law.
Some other definitions of international law though not totally accepted but which to a
large extent capture the interests protected by international law include; ‘The system of law
regulating the interrelationship of sovereign states and their rights and duties with regard to one
another. In addition, certain international organizations, companies, and sometimes individuals
may have rights or duties under international law’.30
Wallace also declared ‘Today, international law refers to those rules and norms which
regulate the conduct of states and other entities which at any time are recognized as being
endowed with international personality…in their relations with each other…’.31
Finally, we have the definition of a revered international law writer, who conceived
international law thus:
International law is the body of rules which are legally binding on states in
their intercourse with other states. These rules are primarily those which
29 Shaw, op cit, p.43 30 EA Martin & J Law, Oxford Dictionary of Law (6th edn, Oxford: Oxford University Press, 2006) p.284. 31 MM Wallace, International Law (London: Sweet and Maxwell, 1995) p.1.
10
govern the relations of states, but states are not the only subjects of
international law. International organizations and, to some extent, also
individuals may be subjects of rights conferred and duties imposed by
international law.32
From the above, one can operationally deduce that international law can be defined as
that which regulate the affairs of the nations of the world, the actions and inactions of the
individual and companies and finally the operations of international organizations as concerns
the common good of all.
1.3 Development of International Law
The meaning we attach to international law will determine when it started. Neff on development
of international law declared:
If by ‘international law’ is meant merely the ensembles of methods or devices
which give an element of predictability to international relations then the origin
may be placed virtually as far back as recorded history itself. If by ‘international
law’ is meant a more or less comprehensive substantive code of conduct applying
to nations, the late classical period of Middle Ages was the time of its birth. If
‘international law’ is taken to mean a set of substantive principles applying
uniquely to states as such, then the seventeenth century would be the starting
time. If ‘international law’ is defined as the integration of the world at large into
something like a single community under rule of law then the nineteenth century
32 R Jennings & A Watts (eds), Oppenheim’s International Law (9th edn, London: Longman, 1996) p.4.
11
would be the earliest date… if finally ‘international law’ is indicated to mean the
enactments and judicial decision of a world government then its birth lies (if at
all) somewhere in the future and in all likelihood, the distant future at that.33
International law thus depending on the meaning or even generally has developed from the
ancient time to the classical and middle ages. We also witnessed the development of
international law in the seventeenth century, eighteenth century, nineteenth century and of
course the twentieth and twenty first century. However for want of space the development of
international law for purposes of this work would be limited to the ninetieth century and the
twentieth.
The 19th Century: International law can be said to have developed over the centuries with
it flowering at the classical age.34 This century saw the development of the philosophy of
positivism in international law. Neff thus stated that ‘…the major feature of the nineteenth
century was the dominant role of positivism…’.35 Shaw on the other hand termed this century as
regards the development of international law as a practical, expansionist and positivist era.36 It
should be borne in mind that the development of international law cannot be divorced from the
European enlightenment thus the international law as at this century became Eurocentric and
was a reflection of European values.
33 SC Neff, ‘A Short History of International Law’ available at
<http://www.google.com.ng/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CDIQFjAA&url=h
ttp%3A%2F%2Fwww.oup.com%2Fuk%2Forc%2Fbin%2F9780199565665%2Fevans3e_ch01.pdf&ei=3TUGUfn
fO4jChAf3toGADg&usg=AFQjCNGMMAoc3nBT6NuMML22VVinTGVHzQ&sig2=PTGo2TsCjQPeqbxJahDT
Fg&bvm=bv.41524429,d.ZG4> p.2 accessed on 25th December 2012 at 5:43pm. 34 In the classical ages we talk about writers like Hugo Grotius who most writers often refer to as the father of
international law. 35 Neff, op cit, p.12 36 Shaw, op cit, p.27
12
This era witnessed the independence of Latin America, French industrial revolution
which all affected the development of international law. Under this era, we talk about the Act of
Congress of Vienna of 1815 which established the principle of freedom of navigation with
regard to international water ways; in 1865 the establishment of the International Telegraphic
Union; the International Red Cross society in 1863 and of course the Hague convention of 1899.
Shaw noted that this century saw the publication of many works on international law.37
The 20th Century: International law as we have it today resulted from the activities of this
century. The First World War came and affected the old international law regime and ushered in
the new international law regime with the establishment of the League of Nations following the
Peace Treaty of 1919. The League of Nations brought about the first international judicial
system by the establishment of the Permanent Court of International Justice in 1921 which the
extant International Court of Justice replaced in 1946. The Second World War came with its
own challenges which include the breakdown of the League of Nations and the birth of the
United Nations. The plethora of international agreements and treaties that came into effect in
this era cannot be over emphasized. In fact this era witnessed the influx of treaties, conventions
and agreements.38 International law keeps developing everyday so long as state intercourse
continues. Now we have an international criminal court whose duty is to try individuals charged
with international crime.39 It is worthy to note that the court handed its first conviction in 2012,
in the 21st century.
37 Ibid p.28 38 E.g. United Nations Charter of 1945, Convention on Status of Stateless Persons of 1954, Geneva Convention on
the High Sea of 1958, Declaration on the Right of a Child of 1959 etc 39 The International Criminal Court has jurisdiction to try War crimes, Genocide, Crime against humanity, Crime
against aggression etc.
13
CHAPTER TWO
SOURCES OF INTERNATIONAL LAW
In the first chapter, we x-rayed the nature and meaning of international law and came to a
conclusion that international law qualifies as law. It is now appropriate to discuss where
international law is rooted. The fons juris or sources of any law is something that provide
authority for legislation and judicial decisions, be it Constitution, statute, treaty or custom.1
Simply put, sources are those provisions operating within the legal system.2 When we deal with
sources of any law, we deal with questions like; where does the judge obtain the rules by which
to decide cases. Under municipal law especially in common law jurisdiction, sources of law are
usually legislation, customs and judicial precedents.3
International law text writers have tried to create a distinction between formal sources
and material sources of international law.4 Formal sources are those mechanism and procedure
for creating rules which are obligatory or binding on the parties whereas material sources
embodies certain rules itself or provides for existence of certain rules which are binding on the
parties when proved. However Brownlie5 and Shaw6 admitted that the distinction between the
two is difficult to maintain. It should be noted that the important consideration in determining the
sources of international law, irrespective of whether the sources can conveniently be classified as
formal or material sources or not, is the Statute of International Court of Justice.7
1 BA Garner et al, (eds) Black’s Law Dictionary (9th edn, Minnesota: West, 2009) p.1523. 2 MN Shaw, International Law (6th edn, Cambridge: Cambridge University Press, 2008) p.70. 3 JM Elegido, Jurisprudence (Ibadan: Spectrum Law Series, 1994) p.243. 4 I Brownlie, Principles of public international Law (7th edn, Oxford: Oxford University Press, 2008) p.4. 5 Ibid. 6 Shaw, op cit, p.71 7 Statute of the International Court of Justice 1945, art.38(1) (hereinafter called the Statute).
14
Article 38 of the Statute provides thus:
The court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a) International conventions, whether general or particular, establishing rules
expressly, recognized by the contesting states;
b) International custom, as evidence of a general practice accepted as law;
c) The general principles of law recognized by civilized nations; and
d) Subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations as subsidiary means
for the determination of rules of law.
The provision above did not expressly mention sources but the fact that judges faced with
international litigation are to apply them leaves to the inevitable conclusion that the provision
deals with sources of international law, bearing in mind that wherever a judge obtains a rule in
deciding a case therein lies the sources of the law in that system.
Bederman classified article 38 above into classical or essential sources and subsidiary
sources.8 These classical sources according to Bederman are custom, treaties and general
principles found in sub paragraph (a-c). On the other hand, Harris asserted that subparagraph (a-
c) are concerned with pedigree of the rules of international law while sub (d) enumerated the
means for the determination of any alleged rule of international law.9 Shaw still on article 38 of
the Statute opined that subparagraph (a-c) are described as the three exclusive law creating
processes while sub paragraph (d) that is judicial decisions and academic writings are law
8 DJ Bederman, Spirit of International Law (Athens: University of Georgia Press, 2002) p.29. 9 DJ Harris, Cases and Materials on International Law (6th edn, London: Sweet & Maxwell, 2004) p.18.
15
determining agencies.10 It should be borne in mind that article 38, regardless of the myriad of
distinctions sought to be drawn therein, is regarded as the authoritative provision on the sources
of international law. The following sources can be gleaned from that provision: Treaties,
Custom, General principles, Judicial decisions and Teachings of highly qualified publicists.
2.1 Treaties
Treaties are the main and the most obvious sources of international law. It is seen as the most
important source.11 Philip Allot opined that treaties are older than the idea of international law.12
This assertion may not totally be wrong considering the mention of same severally in the book of
all books: the holy Bible.13
The Vienna convention defined treaty to mean ‘an international agreement concluded
between states in a 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’.14 This
definition excludes any agreement between International Organizations and private parties. It
further excludes unwritten agreements between states from becoming a treaty. However with the
ever increasing role of International Organizations, we now have the Vienna Convention on the
law of Treaties between States and International Organizations or between International
Organizations which defined treaty as ‘an international agreement governed by international law
and concluded in written form: (i) between one or more States and one or more international
organizations; or (ii) between international organizations, whether that agreement is embodied in
10 Shaw, op cit, p.71. 11 This may be borne out of the fact that treaties were mentioned first in article 38 of the Statute. However, the said
provision did not as it were list the hierarchy of sources of international law. 12 P Allot, ‘The Concept of International law’ (1999) 10 No.1EJIL, 42 13 I Kings 5 v 12 witnesses a treaty between King Hiran of Tyre and King Solomon of Israel. 14 Vienna Convention on the Law of Treaties 1969, art.2(1)(a).
16
a single instrument or in two or more related instruments and whatever its particular
designation’.15
The importance of treaty as a source of law cannot be overemphasized bearing in mind
that it is an explicit agreement between the parties and it constitutes the most visible evidence of
consent. Treaties can be bilateral, in which case it is between two states.16 It may also be
multilateral: that is treaty entered into by many states.17 A treaty goes by different names ranging
from Conventions,18 Agreement,19 Covenant,20 Charter,21 Protocol,22 Declaration23 etc.
A treaty which is an agreement for regulation of relations between states can be
contractual, legislative or by aspiration. A contractual treaty in usually bilateral in nature and it
can be likened to a contract in municipal law where parties agree to confer on themselves certain
rights and obligation. Shaw asserted that treaty contracts are not law making instrument. Since
the treaty is between small numbers of states and govern a limited topic.24 When a treaty is
legislative, it is regarded as a law making treaty. A law making treaty usually creates general
principles or norm for the future conduct of the parties. Brownlie stated that a treaty is not law-
making when it is for the joint carrying out of a single enterprise because the fulfillment of the
enterprise terminates the obligation in the treaty.25 Law making treaties usually involve a large
number of participants, and obligation created therein binds all the parties. It is usually
15 Vienna Convention on the law of Treaties between States and International Organizations or between
International Organizations 1986 art.2. 16 E.g. is USSR-Afghanistan Bilateral Treaty of Friendship 1978. 17 E.g. is The Convention on the Elimination of all Forms of Discriminations against Women 1979. 18 Example is The Geneva Convention on the High Sea 1958. 19 Example is The Agreement Establishing the World Trade Organization 1994. 20 Example is The International Covenant on Civil and Political Rights 1966. 21 Example is The United Nation Charter 1946. 22 Example is The Protocol Relating to the Status of Refugees 1967. 23 American Declaration of the Rights and Duties of Man 1948 24 Shaw, op cit, p.97. 25 Brownlie, op cit, p.13; example of such treaty is Panama-USA Convention for the Construction of Isthmian Ship
Canal 1903.
17
declaratory in nature since it creates rules of conduct.26 It is pertinent to note that law making
treaties cannot bind a non party to it as illustrated the North Sea Continental Shelf case.27
Treaty can also be by aspiration. Such treaty stipulates the desires of the parties as
regards their conduct with one another. An example is the The Kellogg–Briand Pact28 officially
called the Pact of Paris. This pact was concluded in 1928 and State parties to it promised not to
use war to resolve disputes or conflicts of whatever nature or of whatever origin they may be,
which may arise among them. The Pact renounced the use of war and called for the peaceful
settlement of disputes. It is doubtful whether this type of treaty can constitute a valid source of
international law owing to the fact that law generally whether municipal or international is not
concerned with desires of persons subject to it. An aspirational treaty is not the same as a law
making treaty or treaty contract although Brownlie averred that there is no clear and dogmatic
distinction between law making treaties and others.29
There are other types of treaties outside contractual, aspirational or law making treaties;
example is the treaty establishing the international criminal court.30 Such treaties are constitutive
in nature since they establish institution with powers. Treaties, no matter the classification are
binding31 and it operates or constitutes a chunk of the sources of international law due to the fact
that states started entering into treaties from time immemorial.
26 Examples of such law making treaties are Vienna Convention on Diplomatic Relation 1961; The UN Charter
1945. 27 ICJ Reports (1969) p.3 the court held in this case that Article 6 of Geneva Convention on Continental Shelf which
lays down the equidistance rules cannot bind Federal Republic of Germany which has not ratified the treaty. 28 Kellogg-Briand Pact 1928. It is named after its authors: United States Secretary of State Frank B Kellog and
French foreign minister Aristide Briand. 29 Brownlie, op cit, p.14. 30 Statute of the International Criminal Court 1998 31 This is rooted on the principle of pacta sunt servanda which means agreement must be obeyed. For monist state it
is binding internationally and locally once it is ratified. However, for dualist states it is binding international upon
ratification and binding locally only when it is domesticated. See chapter 3 of this work on monism and dualism.
18
2.2 Custom
This is a dynamic source of international law and it has been described as a constant and uniform
usage accepted as law.32 It is a response to the lack of unified legislature in international law and
it fills vacuum created by treaties. It postulates that the way things have always been done
becomes the way things must be done. it is a vital source of international law, although it has
been criticized as being complex and uncertain unlike treaties33 and can be difficult to prove
conclusively since it entails study of different practices of as many states as possible.34
Article 3835 captures customary international law when it provides ‘international custom
as evidence of general practices accepted as law’. From this provision, two constituent but
distinct elements of customary international law must be pointed out namely ‘general practice’
and ‘accepted as law’. These two elements are referred to as objective or empirical element and
subjective or psychological element respectively.36 These two elements must co-exist for the
court to apply customary international law.
2.2.1 General Practice
General practice deals with what states actually do, that is how state behaves internally or
externally which is generally termed state practice. The behavior of a state is important here and
it can take the form of affirmative action, affirmative assertion or non-objection or acquiescence
32 Asylum Case (1950) ICJ Report 266 33 JW Dellapana, ‘The Customary International Law of Transboundary Fresh Waters (2001) 1 No. 14 International
Journal on Global Environmental Issues, 266. 34 C Schreuer, ‘Sources of International law: Scope and Application’ available at
<http://www.univie.ac.at/intlaw/wordpress/pdf/59_sources.pdf> accessed on 4th April, 2013. 33 Art.38 (1) ibid. 36 Bederman, op cit, p.33; Brownlie, op cit, pp. 7-8; Shaw op cit, pp.74-75; ‘International law outline 2009’
available at
<https://www.law.nyu.edu/ecm_dlv4/groups/public/@nyu_law_website__students__student_bar_association/doc
uments/documents/ecm_pro_063686.pdf> accessed on 4th April 2013.
19
in a situation the state ordinary ought to have objected. State practice can be determined by
having recourse to official manuals on legal question of the state concerned, opinions of national
legal advisors, newspaper, policy statements, press releases, diplomatic correspondence etc.37
General practice as an element of custom entails the duration, consistency, uniformity
and generality of practice among the international actors. The question now is; what should be
the duration of the state practice sought to be proved? Must same be consistent or uniform
among state actors? There are no hard and fast rules to determining these various constituents of
what amounts to general practice; thus as regards duration, it can take a considerably long time
or a short time. On consistency, Shaw declared that some degree of continuity must be
maintained but it depends on the context of operation and the nature of the usage.38 Uniformity
on the other hand need not be complete but should be substantial as held in the Fisheries case.39
The need for generality does not mean universality of practice but that a large number of states
must have adopted the uniform practice as held in Fisheries Jurisdiction case.40 Finally
generality of practice does not preclude local or regional custom among a group of states or two
states only as the international Court of Justice held in Right of Passage case.41
37 Shaw, op cit, p.82 38 Ibid, p.80; AE Robert, ‘Traditional and Modern Approaches to Customary International law: A Reconciliation’
American Journal of International Law available at
<https://www.law.nyu.edu/ecm_dlv4/groups/public/@nyu_law_website__students__student_bar_association/doc
uments/documents/ecm_pro_063686.pdf> accessed on 4th April 2013; Bederman op cit, p. 33, Brownlie op cit,
pp.7-8. 39 Fisheries Case [United Kingdom v Norway (1951)] ICJ Report, 116 wherein the court refused to accept the
existence of a ten mile rule for bays because there was no uniformity of practice; Paquette Habana (1990)175 US
677. 40 Fisheries Jurisdiction Case [United Kingdom v. Iceland ] (1973) ICJ Report 3. 41 Right of Passage Case [Merit (1960)] ICJ Report where the court found a custom to exist between India and
Portugal
20
2.2.2 ‘Accepted As Law’
The second element of custom is that the practice must be accepted as law or as binding on the
states. This is as opposed to a habit or usage which is as a matter of convenience or courtesy and
is devoid of any legal obligation e.g. ceremonial salute at sea, shaking hands when Heads of
States meet etc. This legal obligation that transforms usage into a custom is known as opinio
juris sive necessitates (opinio juris) literally meaning opinion that an act is necessary by rule of
law. This legal obligation in custom is different from moral obligation thus the court in the North
Sea Continental Shelf stated that:
…not only must the act concerned amount to a settled practice, but they must also
be such or be carried out in such a way or to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule requiring it… the state
concerned must therefore feel that they are conforming to what amount to a legal
obligation…’.42
The court is permitted to infer the existence of this legal obligation or opinio juris on the
bases of evidence of general practice or consensus of literature or previous determination of a
court on the issue.43 The opinion held by judges, jurists and scholars rather than pronouncements
of states are more helpful in determining whether international practice has at some stage
become customary international law.44
42 (1969) ICJ Report p.40 43 Brownlie, op cit, pp.8-9 44 F Mutharika ‘International Law Outline’ (2004) available at
<http://law.wustl.edu/SBA/upperlevel/International%20Law/IntLaw-Mutharika3-F04.pdf> accessed on 5th march
2013.
21
These two elements i.e. general practice and opinio juris must be proved by a party
urging the court to apply customary international law. However the proof of customary
international law does not make it binding for all purposes on the other party. This is because
two states can agree to contract out of custom provided that the custom has not attained the status
of jus cogens.45 A state can also unilaterally contract out of customary international law by
rejecting the so called custom during its formation. This rejection must be clear and
unambiguous as held in Anglo- Norwegian Fisheries case.46 Such states are referred to as
persistent objectors. When a custom has crystallized, objection may also be entertained in which
case we have subsequent objectors which often occur upon the creation of new states.47A state
that successfully objected to customary international law whether as a persistent objector or
subsequent object is exculpated from liability and cannot be bound like any other state which did
not oppose the custom.
It is pertinent to note that a party who asserts the existence of custom must prove same to
the satisfaction of the court.48 Finally the role of custom as an unwritten source of international
law cannot be overemphasized. That explains why some customary international law has been
codified, thus, principles of customary international law can now be found in treaties.49
45 Jus Cogens (compelling law) is a peremptory norm accepted by international community of state as a norm from
which no derogation is ever permitted e.g. genocides, slavery, torture, maritime piracy etc. see Vienna Convention
of Law of Treaties 1969, art.59. 46 (1951) ICJ Report 131. 47 There is a presumption that new states are bound by the rules of international law and it is immaterial that they did
not take part in forming the custom. This is because they cannot pick and choose the rule to be bound unless the
object to same unequivocally. 48 Lotus Case [1927] PCIJ (ser.A) No.10 p.28 49 Geneva Convention 1949, art.3 in cases of armed conflict; First four parts of Vienna Convention ibid; Hague
Conventions and Declaration 1907on Law of War; Universal Declaration of Human Right 1948 is also regarded
as containing some rules of customary international law.
22
2.3 Other Sources of International Law
A discussion of the other sources of international law will be undertaken. These other sources
include:
a) General principle of law recognized by civilized nations;
b) Judicial decision;
c) Teachings of highly qualified publicist;
d) General Assembly Resolution; and
f) Acts of International Law Commission.
2.3.1 General Principle of Law Recognized by Civilized Nation
The inadequacy of treaties and custom led to the addition of the clause ‘general principles of law
recognized by civilized nations’ in article 38.50 This is because a judge of an international court
who is faced with a case has to decide same despite the absence of treaty or custom on the issue.
The essence of the phrase remains a moot point thus Verdross argued that the clause has the
effect of incorporating natural law.51 On the other hand, Tukin and Geggenheim asserted that the
phrase adds nothing to what is covered by custom.52 However the view which the international
tribunals normally uphold is that the phrase empowers them to apply municipal law (evidencing
general principles) to an international dispute where same is applicable.53
It should be pointed out quickly that general principles of law recognized by civilized
nations prevent a situation of non liquet.54 However, the phrase ‘civilized nations’ in the article is
50 Ibid. 51 Harris, op cit, p.44 52 Shaw, op cit, p.99 53 Harris, loc cit 54 Non liquet is a situation where there is no applicable law. It is of Roman origin which literally means it is not
clear.
23
thought provoking and gravitate towards uncertainty. Is the phrase discriminatory? More so,
must the general principle be applicable in all the so called civilized nations? CN Okeke on this
issue argued that civilization is usually understood as synonymous with European cultures and
values. Thus ‘the inclusion of ‘civilization’ as an international standard smacks of an outright
declaration of discrimination against the non- European States who are predominantly Afro-
Asian’.55 He went on to say that imposing the legal norms of European powers on Africa states is
clearly improper.56 Further, GN Okeke asserted that civilization is a term mainly associated with
the west thus the scale of the principles to be applied under this heading tilts towards the western
principles of law which have widely permeated the legal fabrics of developing states including
African states.57
However, Waldock opined that the phrase simply means general principles recognized in
the legal system of independent states and that it was never intended that the principle in
question must be applicable in every legal system considered to be civilized. The judges most
times consider the principles they are acquainted with which will likely be the legal system
where they were trained.58 Aust on the other hand stated that civilized as used in the article
should not be seen as a demeaning term bearing in mind that the Statute was only referring to
states that have reached an advanced state of legal development.59 International courts have
adopted and applied some principles of municipal law; some of which include the doctrine of
55 CN Okeke, ‘International Law in the Nigeria Legal System’ (1997) 27 Cal. W. Int'l. L. J. 317-318 available at
<http://www.google.com.ng/url?sa=t&rct=j&q=okeke%2C%20cn%2C%E2%80%98international%20la
w%20in%20the%20nigeria%20legal%20system%20&source=web&cd=1&cad=rja&ved=0CEEQFjAA
&url=http%3A%2F%2Fdigitalcommons.law.ggu.edu%2Fpubs%2F9%2F&ei=8SVrUazsDcbbsgac4oG
oBw&usg=AFQjCNHEECfmVjiD8kGxf7WaiqJlUoJ7IQ&bvm=bv.45175338,d.Yms> accessed on 5th
March 2013 56 Ibid. 57 GN Okeke, Aspects of International Law (Enugu: Joen Publishing Company, 2007) p.4. 58 Haris, op cit, p.46 59 A Aust, Handbook of International Law (Cambridge: Cambridge University Press 2005) p.8.
24
lifting the veil,60 the principle of res judicata,61 the doctrine of circumstantial evidence,62 the
doctrine of estoppels has also been given due consideration,63 and the doctrine of equity
specifically he who seeks equity must do equity.64
However, it should be borne in mind that it is not every principle of municipal law that
the court applies. Consequently, the court has rejected the following principles
1. The doctrine of actio popularis65 which was found only to be known by certain legal
system.66
2. French law of administration contract was rejected by the court on the ground that it
lacked acceptance within other jurisdiction.67
Finally from the attitude of international tribunal, it can be said that general principle, of
law as a source of international law is applied mostly in area of evidence and procedure.
2.3.2 Judicial Decisions
Article 38(1) of the Statute gave judicial decision to the status of subsidiary sources of
international law, although article 59 of the Statute on the other hand provided that the decision
of the court has no binding force except as between the parties and in respect of that particular
case. In essence, the doctrine of stare decisis does not apply in any litigation before the
International Court of Justice. This position taken by the Statute is uncommon to common law
60 Barcelona Traction, Light and Power Company [Belgium v Spain (1970)] ICJ Report 3. 61 Chorzow Factory Case [1928] PCIJ (ser.A) No 17 p.29; Bosnia and Hezegovina v Serbia and Montenegro (2007)
ICJ Reports 113. 62 Corfu Channel Case (1949) ICJ Report 18 63 Cameroon v Nigeria (1998) ICJ Report p.275 64 Diversion of Water from the Meuse Case {Netherland v. Belgium [1937]} PCIJ Report (Series A/B) No.77. 65 Actio popularis means an action that a male member of the general public could bring in the interest of public
welfare. It is of Roman Law origin which literally means popular action. 66 South West Africa Cases [Second Phase (1966)] ICJ Report 6 67 Texaco v Libya (1977) 53 ILR 389
25
jurisdictions like Nigeria and United Kingdom where the doctrine of stare decisis plays an
important role. This position of judicial decisions as a source of law is akin to civil law68
jurisdiction.
It has been argued that judicial decision as used in the Statute is not limited to the
International Court of Justice. It also extends to decisions of ad hoc international tribunals,
municipal court69 and international arbitral awards such as the Permanent Court of Arbitration.70
Judicial decisions aid in the determination of the rule of law as a subsidiary source as opposed to
being the actual source of law.71
2.3.3 Teachings of the Most Highly Qualified Publicists
Explicit in article 38 (1) d of the Statute is international law writers otherwise referred to by the
Statute as highly qualified publicists. They are not intended to be a source of law in the strict
sense just like judicial decisions but they are called upon to shed light on existing laws and to
clarify legal provisions through their writings.72 The Statute only made them a subsidiary means
for the determination of the law meaning that they constitute evidence of the law. Prior to the
current stage of international law, some writers like Grotius, Gentili, Pufendorf, Vattel and
Bynkershock were considered supreme authorities for determination of the scope, form and
content of international law.73
68 Civil law otherwise known as Roman law is one of the two prominent legal systems in the world. Litigation is
characterized by inquisitional method as opposed to adversarial method in common law jurisdiction. E.g. of
countries that practice it are Scotland, Argentina, Germany etc. 69 Decision of municipal court may constitute evidence of the practice of state in determining customary
international law. 70 Shaw, op cit, p.111; see also Brownlie, op cit, pp.19-24. 71 Ibid, p.109 72Schruer, op cit, p.8 73 Shaw, op cit, p.112
26
2.3.4 Resolutions of United Nations General Assembly
The General Assembly which is comprised of all the current 193 members of the UN was
established in 1945 and it is the principal deliberative, policymaking and representative organ of
the UN. It provides a forum for members to deliberate and resolve international issues. Most of
their resolutions are binding on member states, thus an international court can have recourse to
such resolution in reaching its decision.
Okere pointed out three instances where the resolutions of the UN are binding. These are:
a. Where a resolution is adopted without dissent, it may constitute subsidiary means for the
determination of international law;
b. Where the resolution is concerned with the international working of the UN;
c. Where it is a declaration of a legal principle.74 On legal principles, the General Assembly
over the years has adopted some declarations which express legal principles of international
law. Such declarations would either constitute authentic interpretation of the UN Charter or
are declaratory of existing customary law.75 Examples of such declarations are:
i. Declaration on the Granting of Independence to Colonial Countries
ii. Declaration on Legal Principles Governing Activities of States in the Exploration and use of
Outer Spaces
iii. The 1961 Declaration on the Prohibition and the Use of Nuclear and Thermo Nuclear
Weapons.
74 BO Okere, ‘Sources of International Law’ unpublished mimeograph lecture of University of Nigeria Enugu
Campus. 75 Haris, op cit, pp.55-60
27
The ICJ in Nicaragua v US76 relied on the General Assemblies resolution in determining
the position of customary international law on the use of force. The court made reference to the
Assembly’s Resolution 2625(XXV), Resolution 3314(XXIX) and resolution 2131(XX) in
reaching its decision. From the foregoing, it can be deduced that the resolutions of the General
Assembly constitute a source of international law.
2.3.5 International Law Commission
The UN general Assembly passed Resolution 174 on the 21st of November 1947 for the creation
of the International Law Commission. The Commission was formed for the purpose of
promoting the progressive development of international law and its codification.77 The draft
articles by the Commission constitute a source of law and the court can make reference to them
in its judgment. The draft articles form bases of international treaties and its work forms part of
the range of state practice which can lead to new rules of customary international law.78 Its draft
constitutes evidence of custom and it is worthy to note that the Commission is composed of
qualified publicist.79
Finally The Commission has been credited with providing draft articles of so many
conventions which includes Vienna Convention on the Law of Treaties, Vienna Convention on
Diplomatic Relations, Statute of International Criminal Court etc.
76 (1986) ICJ Report p.14 77 Statute of International Law Commission 1947, art.1(1). 78 Shaw, op cit, p.121 79 Ibid.
28
CHAPTER THREE
RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW
The affinity between international law and municipal law is of paramount importance. This is
due to the fact that both seek to regulate certain conduct and promote peace. There are bound to
be conflict between the two systems in pursuing its various objectives, and the role of one in
actualizing the goal of the other cannot be overemphasized. In ascertaining how both systems
work together, two major theories namely dualism and monism have emerged.
The proponents1 of dualism posit that municipal law and international law constitute two
distinct and separate legal systems. Borchard quoted Oppeheim as saying that international law
and municipal law are two totally and essentially different bodies of law which have nothing in
common except that they are both branches – but separate branches of law.2 Dualists argue that
the two systems differ as regards their subject i.e. while individuals are subjects of municipal
law; states are subjects of international law. They further argue that both systems differ as to
their judicial origin; that is, whereas Parliamentary statutes reflect the will of the state in
municipal law, on the other hand, treaties and custom representing the common will of states are
sources of international law.3 Consequent upon these distinctions drawn by the dualist is that the
validity of each legal system does not rest on a legal rule belonging to the other and that each
legal system cannot condition the other.
1 Oppenheim, Triepel, Anzilotti, Virally etc 2 EM Borchard ‘Relation between International Law and Municipal Law’ (1940) 27 Virginia Law Review 139
available at <http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4498&context=fss_papers> accessed
on 5th march 2013. 3 ‘Relationship of Municipal Law and International Law: Monism or Dualism’, unpublished mimeograph lecture of
University of Nigeria Enugu Campus.
29
The implication of the argument of the dualist is that the rule of one cannot be applied in
another system e.g. international law rules cannot be applied in municipal law unless such
international law rule has been transformed into the legal system of the jurisdiction concerned.
Finally the dualists argue that each state must will international law before it would be
bound by it, that is to say; that each state is at liberty to decide whether a particular rule of
international law will govern it or not and is at liberty to decide the way to implement
international law within its own system.4 Consequently, where there is conflict between
international law and municipal law, the latter prevails.
On the other hand, the proponents5 of monism deny the validity of the argument of the
dualists. They maintain that both systems regulate the conduct of the individual regardless of
their subjects and that both systems bind their subjects independent of their will. They thus
conclude that international law and municipal law is one and the same thing. Monists assert the
supremacy of international law over municipal law due to the fact that international law
determines when a state is sovereign, who is or not a state, territorial waters of the state, when a
state is immune from local jurisdiction etc.6 On this issue, Kelsen opined that the municipal
Constitution derives its validity from international law. For the monist, once there is a conflict
between both systems in their relation, international law would prevail.
Both theories have been criticized on several grounds. For dualism, it has been argued
that the position that municipal law overrides international law is faulty considering the fact that
a state is responsible for any act that violates international law notwithstanding anything in its
4 Ibid. 5 Kelsen, Lauterpatch, Verdross, Jellinek etc. 6 Borchard, op cit, p.140
30
laws or decisions of its courts.7 More so, Borchard pointed out that the dualist denies the legal
character of international law with their position.8 For monism, Borchard asserted that
international law controls but a very small part of external state activity and a smaller part of
internal state activity so that it is a little tenuous to argue that municipal law finds its source in
international law.9 Monism denies state sovereignty. It should be noted also that an individual
that goes contrary to international law but within the bounds of municipal law cannot be
punished in a municipal court. If the individual cannot be punished in the municipal court, where
now is the primacy of international law over municipal law?
Another theory distinct from dualism and monism has yet emerged and it is known as
theory of coordination. Shaw10 and Brownlie11 citing Fitmaurice and Rosseau the major
proponents of this theory stated that the theory of coordination opines that international law and
municipal law do not come into conflict as systems since the two systems operate in different
spheres and are within their sphere supreme. This theory is also known as the dialectical model12
and it recognizes conflict of obligation but stated that in such a scenario, state responsibility will
arise.
3.1 Application of Municipal Law in International law
Most times the issue of application of municipal law before international tribunal is discussed in
the negative. Thus the rule is that a state cannot plead the provision of its own law or deficiencies
7 Ibid p.140 8 Bochard, loc cit 9 Ibid p.142 10 MN Shaw, International Law (6th edn, Cambridge: Cambridge University Press, 2008) p.132. 11 I Brownlie, Principles of Public International Law (7th edn, Oxford: Oxford University Press, 2008) p.33. 12 B Ahl ‘Chinese Law and International Treaties’2009 HKLJ Vol. 39 Part 3, 739 available at
<http://www.cesl.edu.cn/eng/upload/201106214048086.pdf> accessed on 5th March 2013.
31
in the said law in answer to a claim against it before an international court.13 The locus classicus
on this principle of law is the Alabama claim14 wherein United States of America successfully
claimed damages from Britain for breach of its obligations during the American civil war, the
absence of British legislation necessary to prevent the alleged breach was pleaded by Britain as a
defence but the tribunal rejected it.
In the Free Zones case the Court observed thus ‘it is certain that France cannot rely on
her own legislation to limit the scope of her international obligation’.15 The court stated in Polish
National in Danzig case that:
…a state cannot adduce as against another state its own Constitution with
a view to evading obligations incumbent upon it under international law or
treaties in force. Applying these principles to the present case, it results
that the question of the treatment of polish nationals or other persons of
polish origin or speech must be settled exclusively on the other basis of
rules of international law and the treaty provision in force between Poland
and Dazing.16
The foregoing leads to an inevitable inference that in the international plane, international
law is supreme over municipal law. It is pertinent to note that there are other instances where
municipal law is applicable in international law ranging from nationality, law relating
13 Vienna Convention on the Law of Treaties 1969, art.27; Graeco – Bulgarian Communities Case [1930] PCIJ
Report (ser. B) No.17. 14 Albama Claims Arbitration (1871) report of international arbitrary awards available at
<http://untreaty.un.org/cod/riaa/cases/vol_XXIX/125-134.pdf> accessed on 13th April 2013. 15 [1932] PCIJ Report (ser. A/B) No.40 p.167 16 [1937] PCIJ Report (ser. A/B) No. 44 p.24
32
expropriation, fishing limits, welfare of infants, treaties having as their object the creation and
maintenance of certain standard of treatment of minority groups in national law etc.17
Furthermore, the provisions of municipal law can constitute a fact or used to establish
practice before an international court. The Permanent Court of International Justice captured this
position when it held in Certain German Interest in Polish Upper Silisus18 that ‘… from the
standpoint of international law and of the court which is its organ, municipal law are merely facts
which express the will and constitute the activities of states, in the same manner do legal
decisions or administrative measures...’.
Finally the international court is not bound to take judicial notice of the provision of the
municipal law. In essence, municipal law must be proved before an international tribunal and the
international tribunal is bound by interpretation given by municipal court to their municipal
laws.19
3.2 International Law before Municipal Court
It is worthy to note that the application of municipal law before an international court is certain
owing to the fact that international tribunals is one and operate within the same plane. The
position is different when international law is raised in municipal court which differs in its
Constitution and laws. The position of international law before municipal law varies with
different state as there are different laws governing the states. The position of a monist state as
regards the application of international law must necessary vary with the position of dualist state.
17 Brownlie, op cit, p.37 18 [1925] PCIJ Report (ser. A) No. 6 19 Fisheries case supra.
33
Consequent upon this fact, a comparative analysis of different state practices as regards
international law will now be undertaken.
3.3 Comparative Analysis of States
The comparative analysis will involve countries from the five continents of the world. In
African, Republic of Ghana will be considered, in Asia, the position in China will be reflected
on. United States of America will be taken from North America whereas Argentina will cover
South America and finally Britain will be a European state to be given due consideration.
3.3.1 Practice in Respect of Treaties
3.3.1.1 United States of America
In US treaty making power is vested in the president but he can only ratify only if two third of
the congress approves.20 Her Constitution provides for the place of treaty in their municipal
court. The relevant section provides:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.21
From this provision, treaties override various state laws and the courts are empowered to
apply them. However, not all treaties can be applied by the court. Thus the U.S court drew a
distinction between self executing treaty and non-self executing treaty. In the former, the treaty
20 United States Constitution Amendment XXVII 1992, art.II s.2(2). 21 Ibid, art.III s.2(1).
34
applies directly and becomes operative but in the latter, the treaty requires a Legislative Act, to
be operative.22 To determine whether a treaty is self executing, the court will consider whether
the treaty is ‘full and complete’ or whether the treaty contains provisions which are capable of
enforcement between the parties.
Finally it should be borne in mind that treaty in the US is equivalent to an Act of the
Congress consequently, it can be amended or even repealed by the congress,23 and it is inferior to
the Constitution.24
3.3.1.2 Great Britain
The power of concluding and ratification of treaty is vested in the crown. The position of treaty
is clear because the court cannot apply any treaty unless an enabling act of the British Parliament
has been passed to sanction it. The reason for need of Parliament’s sanction is not farfetched
because the crown is vested with the power to enter into treaties and if the so called treaty forms
part of British law, it follows that the crown can amend, modify or repeal an English law without
the consent of the Parliament.
Lord Denning captured the position in England when he stated ‘… I would dispute
altogether that convention is part of our law. Treaties and Declaration do not become part of our
law until they are made law by Parliament…’.25
However certain treaties like treaties relating to the conduct of war does not require an
enabling Act. Treaties that require enabling act include treaties that affect rights of British
subject, treaties that impose additional financial obligation on the government etc.
22 Cook v United States (1933) 288 US 102. 23 Diggs v Shultz (1973) 411 US 931 24 Reid v Covert (1957) 354 US 1. 25 R v Chief Immigration Officer ex parte Bubi (1976) WLR 979 CA
35
3.3.1.3 China
The Chinese Constitution provides for the conclusion of treaties,26 but did not expressly provide
when the treaty will be applicable. However there are instances where statutes expressly
authorize the application of treaties in China.27 The question now is what happens to treaties
which were not expressly authorized by an Act of the legislature? Chui and Chen writing in that
jurisdiction considered Chinese legislative history, judicial decisions28 and opinion of Chinese
writers29 and came to conclusion that treaties are directly applicable to Chinese government once
ratified by the legislature.30
3.3.1.4 Ghana
The president by virtue of Ghanaian Constitution is empowered to execute treaties.31 The
Constitution further gave the Parliament power of ratification when it provides that ‘a treaty…
executed by or under the authority of the president shall be subject to ratification by a) Act of
Parliament or b) a resolution of Parliament supported by the votes of more than one half of…
Parliament’.32
26 Constitution of Peoples Republic of China 1982, art.33 provides that ‘the President shall in accordance with the
provisions of this Constitution exercise the powers of concluding treaties…’. Art. 58 (2) provides for presentation
of treaties to legislature for consideration and decision. Finally art.63 gives the legislative Yuan power to pass
treaties into law. 27 Law of Treaties (1954), art.1 provides that extradition shall be effected in accordance with treaties. 28 Public Procurator v Matsumoto (1954) Criminal Judgment 54 Yi-11165; Public Prosecutor v Wilson (1961)
Criminal Judgment 55 shu-772 29 Writers like professor Lexington Hung, Tang Wu, Chung Hua etc. 30 H Chiu and CI Chen ‘The Status of Customary International Law, Treaties, Agreements and Semi Official and or
Unofficial Agreement in Law of the Republic of China on Taiwan’ (2007) 3 Maryland Series in Contemporary
Asian Studies available at
<http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1189&context=mscas> accessed on 21st
March 2013. 31 The Constitution of the Republic of Ghana 1992, art.75(1). 32 Ibid, art.75 (2)
36
From the foregoing, for a treaty to be applied in Ghanaian court, such treaty must have
been ratified by the Parliament failing which international law will not be applicable in Ghana.33
It is worthy to note that ratification in Ghana can come in two ways; that is it can be by
domestication (passing an Act) or by resolution of Parliament as seen in (a) & (b) of article 75(2)
respectively.
3.3.1.5 Argentina
The Argentine Constitution declared treaties as one of the supreme laws of the land when it
provides that:
This Constitution, the laws of the nation enacted by congress in pursuant thereof
and treaties with foreign powers are the supreme law of the nation and the
authorities of each province are bound thereby notwithstanding anything to the
contrary included in the provincial laws or Constitution.34
From the foregoing provision the position of treaties in Argentina is crystal clear owing
to the fact that treaties form part of the supreme law of the land which is to be applied by
Argentine courts in appropriate cases. Sections 75(22)35 further went ahead to provide that the
senate is seised with the power of rejecting or approving a treaty. The section further declares
that treaties have a higher hierarchy than laws but stipulated the situation when treaty will be at
par with the Constitution.
33 VL Essien ‘Researching Ghanaian Law’ available at http://www.nyulawglobal.org/globalex/ghana1.htm accessed
on 21st March 2013; R. Ataguba Review of International Laws and Practices on Human Trafficking available at
<http://www.lrcghana.org/assets/INSTITUTE%20FOR%20JUDICIAL%20TRAINING-
CHILD%20LABOR%20AND%20APPRENTICESHIP.pdf> accessed on 5th March 2013. 34 Constitution of Argentine Nation 1994, s.31 35 Ibid s.75 (22) listed treaties that are at par with the Constitution already like the America Declaration of Rights
and Duties of Man, the Convention on the Elimination of all Forms of Discrimination against Women, etc.
37
3.3.2 Practice in Respect of Customary International Law
3.3.2.1 United States of America
The U.S court in Paquette Habana36 declared customary international law to be part of the laws
of the U.S. The court stated thus ‘international law is part of our law… where there is no treaty
and no controlling executive or legislative act or judicial decision resort must be had to custom
and usages of civilized nation’. Garcia opined that customary international law will be applicable
if there is no controlling executive or legislative Act in place. He went ahead to point out that
there does not appear to be a case where the court invalidated a statute for being contrary to
customary law; however customary international law he asserted affects the interpretation of a
court on a given statute.37
Garcia pointed out that the clearest example of U.S adopting customary international law
as part of their laws is through the Alien Tort Statute38 which provides that an alien can bring a
claim for violation of either a treaty of the U.S. state or the laws of nations. It is worthy to note
that that statute was applied in the popular case of Filartiga v Pena-Irala.39
3.3.2.2 Great Britain
It appears from judicial decisions that there are two approaches to the position of international
customary law. The courts either adopt the incorporation or transformation theory.
36 (1990) 175 US 700 37 MJ Garcia ‘International Law and Agreements: Their effects Upon US Laws’ 2013 Congressional Research
Service available at
<http://www.google.com.ng/url?sa=t&rct=j&q=international%20law%20in%20us%20courts&source=web&cd=2
&cad=rja&sqi=2&ved=0CD4QFjAB&url=http%3A%2F%2Fwww.fas.org%2Fsgp%2Fcrs%2Fmisc%2FRL32528
.pdf&ei=e15jUdbEE4ORhQeA74HoCg&usg=AFQjCNEB2gHmUzhxjnvHbO3d4WFN73a0IQ&bvm=bv.447705
16,d.d2k> accessed 14th April 2013. 38 1798. 39 (1980) 630 F2d 876 the plaintiff Paraguayan brought an action in US court against a former Paraguayan head of
police also in US for wrongfully causing the dead of his child and torturing his brother. The court found in his
favour and observed that torture constitutes a violation of international customary law and was thus actionable.
38
By incorporation, customary international law becomes part of the laws of the land
provided it is not inconsistent with Acts of Parliament or judicial decisions.40 By transformation
or specific adoption, it means that customary international law will only form part of the law of
the land if it has been adopted via legislation, judicial decision or established usage.41 Recent
authorities appear to favour the incoprporation doctrine thus Lord Denning stated in Trendex
Trading Corporation v Central Bank of Nigeria.
… under the doctrine of incorporation when the rules of international law change
our English law changes with them but under the doctrine of transformation, the
English law does not change. It is bound by precedents. As between these two
schools of thought I now believe that the doctrine of incorporation is correct.42
Inasmuch as the position of customary international law is clear, it is worthy to note that
where it conflicts with Acts of Parliament, the latter would prevail.43 Thus international law is
not the law of the land in U.K if it conflicts with an Act of the Parliament.44
Finally the House of Lords45 in R v Jones per Lord Bingham of Cornhill distinguished
between customary international law in relation to civil law and criminal law. The court held that
40 Brownlie, op cit, p.41 citing Barbuit’s Case (1737) Cas Temp Talbolt 281, Triquent v Bath (1964), 3 Burr 1475,
Emperor of Austria v Day (1861), 30 LJCH 690 and Blackstone Commentaries. 41 Cheung v King (1960) AC 160 42 (1977) 2 WLR 356 43 Mortensen v Peters (1906) 8 FJ 93 44 ‘International Law in National Courts: Discussion’ in J Crawford and M Young (eds) The Function of Law in the
International Community: An Anniversary Symposium (2008), Proceedings of the 25th Anniversary Conference of
Lauterpacht Centre for International law available at
<http://www.lcil.cam.ac.uk/25th_anniversary/book.php.>accessed on 21st March 2013. 45 Predecessor to the Supreme Court of the United Kingdom established on 1st October, 2009.
39
customary international law as regards crimes is not recognized in UK.46 A crime must be
codified in the statute because the statute is the sole source of criminal offences.
3.3.2.3 China
The position of customary international law was well represented by Chui47 when he pointed that
the earlier or present Chinese Constitution did not make any reference to customary international
law. He distinguished how two scenario; that is instances when statutes and administrative
decrees authorizes application of customary international law and where there is no statute or
administrative decree authorizing it. In the former the position is clear in that the court will apply
them.48 However in the latter Chui considered four judicial Chinese authorities49 and came to a
conclusion that Chinese court can apply customary international law in exercise of their function
without statutory or administrative authorization.
As regards conflict between customary international law and Chinese statutory provision,
Chui opined that the latter could prevail.50
3.3.2.4 Ghana
The position of customary international law in Ghana can be gleaned from Article 73 of
Ghanaian Constitution which provides that ‘the government of Ghana shall conduct its
46(2006) UKHL 16 47H Chui ‘The Status of Customary International Law, Treaties, Agreements and semi-official or unofficial
Agreements in Chinese Law’ (1989) no.2 Occassional Papers/Reprint Series in Contemporary Asian Studies pp.2-
6 available at <http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1090&context=mscasat>
accessed on 21st March 2013. 48 Ibid. 49 Tung-Tzu no. 1589 Interpretation; Public Procurator v Wang and Sung (1965) Criminal Judgment No.54 shu-
2107; Frères v Soviet Mercantile Fleet (1926) Civil Judgment No 15 - 4885 ; Gazette of the Judicial Yuan (1969)
Nov. Vol.11 No. 11 pp.30-31. He pointed out that in these four scenarios, the court applied customary
international law although the question whether customary international law was applicable in China never raised. 50 Chui, loc cit, Chiu asserted that there are neither judicial authorities nor writers’ opinion on this issue.
40
international affairs in accordance with the accepted principles of public international law and
diplomacy in a manner consistent with the national interest of Ghana’.
From this provision, it is clear that the municipal court can apply customary international
law bearing in mind that the municipal court is part of the government of Ghana and customary
international law forms part of the accepted principles of international law. In cases of
inconsistency or conflict with Ghanaian legislation, it is humbly submitted that the customary
law will kowtow to the relevant law because it can be argued that the Acts or Laws passed by
Ghanaian Parliament embodies their national interest and article 73 provides that the application
of public international law must be in a manner consistent with Ghanaian national interest.
3.3.2.5 Argentina
The Argentine Constitution is silent on the application or otherwise of customary international
law, thus, recourse to judicial authorities becomes inevitable. Brunner writing in that jurisdiction
cited the case of Aranciba clave wherein the Argentine court had course to consider customary
international law.51 In upholding the conviction of the trial court the court applied the rule of
customary international law that provides that statutory limitation would not apply to crimes
against humanity.52 Also the Argentine National Appeal Court considered the principle of
proportionality in attack to be part of customary international law in Military Junta Case.53 From
these two cases, it appear that the Argentine court has no problems in applying customary
international law keeping in view the fact that the cases above are both criminal cases.
51 I Brunner ‘Leaning on International Law to Prosecute the Past: The Arancibia Clavel decision of the Argentine
Supreme Court’ available at http://law.uoregon.edu/org/oril/docs/10-1/Brunner.pdf accessed on 21st March 2013. 52 Ibid. 53 Cited in LM Henckart and L Dosward-Beck Customary International Humanitarian Law Volume 1: Rules
(Cambridge: Cambridge University Press, 2005) p.49.
41
CHAPTER FOUR
INTERNATIONAL LAW IN NIGERIA
Nigeria just like every other nation is obliged to obey international law. The extent to which
Nigeria conforms to this rule will be discussed in this chapter. Nigeria is said to be a dualist
state; that is to say, the rules of international law cannot be applied in our municipal court except
such rules or principles have been transformed and enacted into our laws.1 Consideration will
now be given to the position and practices of international law in Nigeria with respect to Treaties
and Customary International law.
4.1 Application of International Law in Nigeria with Respect to Treaties
The position of treaty in Nigeria can be found in section 12 of the Nigeria Constitution.2 The
section provides thus:
(1) No treaty between the Federation and any other country shall have the
force of law except to the extent to which any such treaty has been enacted into
law by the National Assembly.
(2) The National Assembly may make laws for the Federation or any part
thereof with respect to matter not included in the Exclusive Legislative List for
the purpose of implementing a treaty.
(3) A bill for an Act of the National Assembly passed pursuant to the
provisions of subsection (2) of this section shall not be presented to the president
1 Abacha v Fawehinmi [2000] 4 SC (pt 11) 1 at 70 per Ejiwunmi JSC wherein the learned justice stated ‘I think the
above ought to be accepted as representing the position of our law with regard to International Treaties entered into
by the Federal Government of Nigeria. If such a treaty is not incorporated into the municipal law, our domestic
courts would have no jurisdiction to construe or apply it. Its provisions cannot therefore have any effect upon
citizens’ right and duties’. 2 Constitution of Federal Republic of Nigeria 1999 Cap C23 LFN 2004
42
for assent and shall not be enacted unless it is ratified by a majority of all the
Houses of Assembly in the Federation.
From this sole provision on treaties, it must be pointed out quickly that the Constitution
did not vest the power of concluding treaty in anybody. This is an obvious lacuna in the
Constitution unlike the Constitution of other countries we considered in Chapter 3 of this work.3
However, Enemo argued that bearing in mind that Nigeria is a Federation, the Federal
government should have the responsibility of concluding treaties in Nigeria as opposed to state
governments since treaty is a matter within the Exclusive Legislative list.4 Flowing from this
view is the fact that the president who is the Head of the Federation has the power of concluding
treaties.
It is worthy of note that it is only the National Assembly that can domesticate a treaty.
However section 12 of the Constitution drew a distinction between treaties entered into by the
Federation which affects the legislative competence of the National Assembly and treaties that
affects the legislative competence of state assemblies. In the former, the National Assembly can
domesticate it without more, whereas in the latter, majority of the state assemblies must ratify the
treaty before the National Assembly can domesticate same. Thus, various state legislatures in
Nigeria have a role to play in domesticating a treaty so long as it affects their legislative
competence.5 This distinction is peculiar to Nigeria as opposed to other countries discussed in
the preceding chapter.
3 Art.II s.2 of US Constitution; art.75(2) of Ghanaian Constitution; art.38 of Chinese Constitution; s.99(11) of
Argentine Constitution. 4 IP Enemo, ‘International Law and the Nigeria Foreign Policy Under the 1989 Constitution’ (1991) JUS Vol.1
No.12 p.29 5 The legislative competence of the state assembly can be found in Second Schedule Part II of Nigeria Constitution
while the legislative competence of the National Assembly can be found in Second Schedule Part I.
43
The position represented in the foregoing section depicts Nigeria as a dualist country with
respect to international laws. It follows therefore that a treaty entered into by Nigeria cannot be
applied in court except if such treaty has been domesticated. In Abacha v Fawehinmi6 the
Supreme Court of Nigeria had the opportunity to deal with this issue and they held that only
treaties incorporated into our municipal law would have effect in Nigeria. In the words of
Ejiwunmi JSC the court stated:
It is therefore manifest that no matter how beneficial to the country or the
citizenry an international treaty to which Nigeria has become a signatory may be,
it remains unenforceable, if it is not enacted into the law of the country by the
National Assembly, this position is generally in accord with the practice in other
countries.
At the lower court, Pats Acholonu JCA of the blessed memory had this is to say ‘where
there is no enactment to give effect to the spirit of a treaty notwithstanding its adaption and
recognition and due regard by a sovereign government, it cannot be justifiable in a municipal
court’7 The court both at the Court of Appeal and Supreme Court applied the African Charter8
which Nigeria has domesticated. Also, the court per Akanbi JCA in Ibidapo v Lufthansa
Airlines9 applied the provisions of the Warsaw Convention10 which was incorporated into our
law by virtue of the Carriage by Air Order.11
6 Supra 7 Fawehinmi v Abacha [1996] 9 NWLR (pt 475) 710 at 756 8 African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap A9 LFN 2004, art.4, 5, 6, 7,
and 12. 9 [1994] 8 NWLR (pt 362) 355 following the Supreme Court decision in Oshevire v British Caledonian Airways Ltd.
[1990] 7 NWLR (pt163) 489 per Ogundare JSC 10 Warsaw Convention for the Unification of Certain Rules Regarding Air Transport 1929 11 Carriage by Air (Colonies, Protectorates and Trust territories) Order 1953 (Public Notice No.73 of 1953)
44
The position of treaties and its application in Nigeria has been said to be straight
forward,12 however, the resent amendment of Nigeria Constitution13 makes the position of
treaties very unclear. The amendment provides in S.254(C)-2:
Notwithstanding anything to the contrary in this Constitution, the National
Industrial Court shall have the jurisdiction and power to deal with any matter
connected with or pertaining to the application of any international convention
treaty or protocol of which Nigeria has ratified relating to labour, employment,
working industrial relations and matters connected therewith.
It appears from the provision above that a municipal court namely National Industrial
Court can apply treaties ratified by Nigeria. From the forgoing provision, it is immaterial
whether Nigeria has domesticated such treaty or not. It should be noted that there is a wide gulf
between ratification and domestication. For dualist states, ratification of a treaty makes the state
to be bound by its contents internationally whereas domestication makes the treaty to be
applicable domestically. However for monist states ratification without more makes the treaty to
be binding both locally and internationally and there is no need for domestication.
This amendment is in dogged conflict with section 12 of Nigerian Constitution.14 More
so, the amendment was made to be notwithstanding anything in the Constitution (section12
inclusive) and by virtue of the Supreme Court decision in NDIC v Okem15 on the meaning of the
phrase notwithstanding. It follows that the amendment overrides section12 of the Constitution.
12 EA Oji, ‘Application of Customary International Law in Nigeria’ (2010) NAILS Law and Development Journal,
151. 13 Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010. This amendment was with respect to
the jurisdiction of the National Industrial Court which over the years, there has been a debate as to the status of the
court and its jurisdiction. This amendment laid the argument to rest upon the signature of the president by way of
assent on 4th March 2011. 14 CFRN 1999 15 [2004] 10 NWLR (pt 880) 107
45
Can one considering the foregoing conclude that Nigeria is a monist state? It is submitted that
this question requires intensive research which is not covered by this project. Therefore it is
suggested that the said question can constitute a topic to be researched on subsequently.
Further on treaties, the Nigeria Constitution unlike the Argentine16 and United States
Constitution17 never provided the place of treaties under our law. The ultimate question now is:
are treaties at par or subject to the Nigerian Constitution? Or are treaties above, or at par or
below other local enactments? The obvious lacuna in the Constitution will necessarily compel
one to consider our case laws.
In Abacha v Fawehinmi,18 the issue arose as to the status of treaties. The learned Justices
of the Supreme Court all agreed that the Constitution is above every other law in Nigeria
including treaties which when domesticated form part of our laws, considering s.1(1) and 1(3) of
Nigeria Constitution. On the issue of treaties vis a vis other laws, the learned Justices were
divided. Ogundare JSC who read the lead judgment was of the view that treaties override any
other law apart from the Constitution that is inconsistent with it. On the other hand, Mohammed,
Achike and Uwaifo JJSC disagreed with this view and held that treaties are at par with other
municipal laws and cannot override any Act or Decree. The three other justices to wit Belgore,
Iguh and Ejiwunmi JJSC made no comment on this issue.
In Nigerian jurisprudence, the binding decision or ratio decidendi for purposes of judicial
precedence is the lead judgment. Put differently, the lead judgment constitutes the decision of the
court as opposed to the concurrent judgment or dissenting opinions. Keeping this principle in
view, it is submitted that in Nigeria treaties are higher than Acts of the National Assembly and
16 Constitution of Argentine Nation 1994, s.75(22). 17 United States Constitution Amendment XXVII 1992, art.IV s.2(2). 18 Supra
46
override any inconsistent legislation. However the Constitution on the other hand overrides any
provision of any treaty that is in conflict with it.
4.2 Application of Customary International Law in Nigeria
It is quite unfortunate that the position of customary international law in Nigeria is as clear as
mud. The Constitution neither provided for its application nor the application of international law
by the Nigeria court from where customary international law can be inferred19. The only place
that made reference to international law was section 19 of the Constitution on Nigerian foreign
policy objective. The section provides: ‘the foreign policy objectives shall be…(d) respect for
international law and treaty obligations as well as the seeking of settlement of international
dispute by negotiation, mediation, conciliation, arbitration and adjudication.
This section is not enough to warrant the application of customary international law in
Nigeria. The section is dedicated to the foreign policy objectives which Nigeria as a state pursues
and nothing more. The obvious lacuna in the Constitution is capable of keeping one in the dark
as regards the applicability or otherwise of customary international law. There is a dearth of
Nigeria cases on the issue. The only Nigeria authority20 that dealt with customary international
law is the case of African Continental Bank v Eagles Super Pack Ltd.21
In that case, the issue for determination was whether the Uniform Customs and Practice
(UCP) for documentary credit were applicable in Nigeria. The UCP was made by the
International Chambers of Commerce with headquarters in Paris with a view of having a
19 This is unlike the position in Ghana as seen in the preceding chapter of this work. 20 This is to the best of the knowledge of the researcher of this work. 21 [1995] 2 NWLR (pt 379) 590
47
universal standardization of letters of credit in banking and commercial transactions. At the trial
court, it was held per Ononuju J that UCP is not applicable in Nigeria in the following words:
Exhibit 5 is Uniform Customs and Practice for documentary credits and from the
evidence before me; it does not apply in this case. I hold the view that it can
operate in a country that subscribes to it and there is nothing to show that Nigeria
has done so.
However at the Court of Appeal Onalaja JCA held that UCP constitutes customary
international law and can be judicially noticed. In the words of the learned justice he declared:
…the result is that UCP is an international custom of trading by banks in the
international trade of payment by letters of credit. To sustain it having regard to s.
14…the court in Nigeria can take judicial notice that UCP is applicable in
Nigeria.
The Supreme Court in Akinsanya v United Bank for Africa22 applied the provisions of
UCP although it was neither argued nor decided that UCP amounts to an international custom
and whether same is applicable in Nigeria by virtue of that. From the foregoing, it appears that
the Nigeria court can judicially notice an international custom under the Evidence Act.23
However, it is doubtful whether the court in Nigeria can take judicial notice of custom
considering the definition given to custom in our law. Section 258 of Evidence Act24 defines
custom to mean ‘a rule which in a particular district has from long usage obtained force of law’
22 [1986] 4 NWLR (pt 35) 273 23 Evidence Act 2011, s.17 formerly Evidence Act cap E14 LFN 2004, sec. 14 which provides for judicial notice of
custom. 24 Ibid This section is ipsisima verba with s. 2 of the repealed Act.
48
district for clarity has been defined in Oxford dictionary25 to mean ‘area of a country or town
especially one that has a particular feature’.
Juxtaposing these two definitions, it can be seen that a custom for purposes of judicial
notice in Nigeria as found in the Evidence Act must be restricted to a locality in Nigeria. The
draftsman never intended any custom outside Nigeria. In fact the draftsman meant indigenous
customs that was why the words ‘a particular district’ was used in the definition of custom and it
would be uncharitable to ascribe to the draftsman what he never intended. Thus the position
taken by the Court of Appeal above is of doubtful validity.
Custom as seen from the foregoing is not alien to Nigerian legal system. Various ethnic
customs form part of the sources of law in Nigeria provided the custom passes the validity test
videlicet: It must not be repugnant to natural justice equity and good conscience;26 it must not be
incompatible either directly or by implication with any law for the time being in force,27and it is
not contrary to public policy.28 Once a custom passes these tests, the Nigeria court can apply it to
the given circumstances. An ebullient international law writer after analyzing the position of
ethnic customs in Nigeria argued that customary international law forms part of Nigeria law, the
jurist stated: ‘if ethnic customary law form part of the body of Nigerian law so also international
customary law’.29
The Jurist further opined that the requirement of passing the first test will not constitute a
problem. This is because customary international law must have passed a stiffer test namely
acceptability by a large number of international community. The jurist however asserted that
25 AS Hornby, Oxford Advance Learners Dictionary (7thedn, Oxford: Oxford University Press, 2006) p.426. 26 Mojekwu v Iwuchukwu [2004] 11 NWLR (Pt.883) 196 27 Agbai v Okogbue (1991) NSCC 422 28 Mbamara v Iwuagwu (2002) WRN 82 29 Oji, art cit, p.165
49
customary international law must necessarily pass the two other tests that is; the customary
international law must not be inconsistent with either the Constitution or any municipal law and
that it must not be contrary to Nigerian public policy.30
The erudite view above on application of customary international law in Nigeria has been
severely criticized on four grounds.31 Firstly Azoro argued that the position taken above raises
the jurisprudential question of basis of obligation of customary international law. He maintained
that the common will of states from which the custom emanates should be considered and not the
will of Nigerian people deducible from their public policy. He further argued that application of
customary international law will be hindered in Nigeria because of the difficulty in ascertaining
the Nigerian public policy. In his word he stated:
Since opinio juris is a vital element for international custom, it follows that unless
Orji’s ‘public policy’ is arrived at, international custom is inapplicable in Nigeria.
…The plurality cum heterogeneity of the Nigerian socio-ethnic polity and the
resultant differences in opinion on most issues will mean a difficulty in
ascertaining the ‘common will’ of Nigerians on most subject matters of
international custom and will invariably, affect its applicability.32
Secondly, Azoro asserted that the view taken by the international law writer cannot be
traced to the Nigerian Constitution which is the alpha and omega of Nigeria legal system. He
submitted that importing rules of customary international law by the judiciary without
Constitutional backing goes contrary to the principles of separation of powers. Thirdly, Azoro
suggested that the view appears to reduce customary international law to the same status as
indigenous customary law and this position goes contrary to the dictum of Ogundare JSC in
30 Ibid, pp.167-168 31 CJS Azoro ‘The Place of Customary International Law in the Nigerian Legal System’ 2013 unpublished opinion
pp.17-18 32 Ibid.
50
Abacha v Fawehinmi33 wherein the court held that international law prevails over any local rule
of law though subject to the Constitution.34 Fourthly the repugnancy test under the Evidence
Act35 remains the Nigerian standard and not the standard of the international community. This is
due to the fact that some practices accepted in most civilized nations e.g. same-sex marriages are
repugnant to Nigerian customary and statutory laws.36
Lastly Azoro opined that since customary international law is part of common law and by
virtue of s 32 of Nigeria Interpretation Act,37 common law forms part of our law, it follows by
parity of reasoning that customary international law is part of Nigeria law and should be
applicable in our courts to the same extent as common law. He concluded that customary
international law is part of Nigeria law following the English doctrine of incorporation, provided
it is not inconsistent with the Constitution or any local enactment.
Meritorious as this argument may seem, it may not be totally correct considering the
following reasons. Firstly, the position in England as regards the application of customary
international law is not settled. Some judicial decisions support the doctrine of incorporation38
whereas others favour the doctrine of transformation.39 These two doctrines are in conflict with
each other and make the position very unclear. If this unclear position is transported to Nigerian
jurisprudence, it follows that the position of customary international law in Nigeria will be
uncertain and its application will be at the will of the Nigerian judge. This will necessarily make
the status of customary international law in Nigeria to vary with the length of the judge’s foot.
33 Supra 34 Azoro, art cit, p.18 35 Ibid s.18(3) 36 Azoro, loc cit 37 Cap I 23 LFN 2004. 38 Trendex Trading Corporation v Central Bank of Nigeria (1977) 2 WLR 356. 39 Commercial and Estate Co. of Egypt v Board of Trade (1925) 1 KB 295; Chung Chi Cheung v R (1939) AC 16.
51
Secondly, common laws of England which is applicable in Nigeria are settled principles
of law which the Nigeria courts can have recourse to in cases of lacuna in our laws. Common
laws are principles of law as opposed to an approach. The Nigeria courts are only enjoined to
apply common law principles as opposed to an approach adopted by the English court in
reaching its principles. The doctrine of transformation or incorporation is merely an approach in
applying customary international law in England as opposed to being a principle of law thus; the
Nigerian courts are never obliged to follow the transformation or incorporation approach by
section 32 of interpretation Act. More importantly; if we accept this view by Azoro; only rules of
customary international law which have been accepted as common law principles can the Nigeria
courts apply. If this be the case, what happens to other rules of customary international law
which has not been applied in English courts? Moreover customary international law changes
from time to time and Nigeria will be hamstrung from applying new rules of customary
international law. To this extent, the erudite view taken by Azoro may not augur well with the
application of customary international law in Nigeria.
The obvious truth from the foregoing is that there is a lacuna as to the application of
customary international law in Nigeria. The next chapter will thus examine the implications of
various practices by different countries as seen in chapter 3 above and make practical
recommendation for the way forward in Nigeria.
52
CHAPTER FIVE
STANDARDIZING INTERNATIONAL LAW PRACTICE IN NIGERIA
5.1 Implications of Various Practices
The starting point of this discourse is the fact that international law does not prescribe how its
rules will be applied by different states. International law only requires that its rules and
principles be obeyed by state actors, thus a state determines the manner international law will be
applied by its municipal court.
The United State of America in obeying the principles of international law with respect to
international custom adopted the doctrine of incorporation; that is, once a customary
international law emerges, it automatically forms part of the law of the land and the US courts
will be at liberty to apply the relevant custom provided that there is no controlling legislative
Act. The position in the Federal Republic of Ghana, the Peoples Republic of China and the
Argentine Nation appears to be the same. Although the Argentine Constitution and the Chinese
Constitution did not make reference to international law, it can be seen from judicial authorities
in these two states that the court applies the doctrine of incorporation like the US.
The obvious implication taken by the states above is that when it comes to the application
of customary international law, the legislative arm of government who represents the interest of
the people has no say. Reliance is placed only on the judicial arm of government and the
executives are shut out too. This position will invariably affect the sovereignty of the state
involved and the right to determine what laws that govern the state by the legislature will be lost.
53
Another implication that will becloud the practice of incorporation is uncertainty of laws.
This is as a result of the vagueness of custom. This is due to the facts that customs are generally
unwritten and custom changes from time to time. The unpredictability of customary international
law will definitely pose a great problem to legal practitioners in those states. However, the
various states from the foregoing will be at less risk of violating the inviolable principles of
international law. This position promotes the good of all and accords with the objectives of
international law. The court applies international law as it were without waiting for the
legislature to pronounce on the international custom which may never happen.
Nigeria will be visited with these implications once we follow the doctrine of
incorporation. More so, this approach has the effect of making the content of treaties not
domesticated in Nigeria to be applied by our courts; that is once a person can prove that the
content of a treaty amounts to customary international law, the courts will apply it as such
without determining whether Nigeria has ratified such treaty or not. Example, Nigeria has
ratified The Convention for the Elimination of All Forms of Discrimination against Women
(CEDAW) but has not domesticated it for reasons best known to her. However if one can prove
that the provisions of CEDAW amounts to customary international law, it follows that the
Nigeria court will apply the provision not as a treaty but as customary international law. This
will of course defeat the reasons for the non domestication of the treaty by Nigeria.
It is of general knowledge that Nigeria is a dualist state due to the principle of
domestication adopted by Nigeria with respect to treaty obligations within the state. However,
the implication of this approach is that it will portray Nigeria as a monist state because rules of
customary international law will be applicable directly in our courts without legislative
interference. It follows therefore that Nigeria will be a dualist state with respect to treaties and a
54
monist state with respect to customary international law. This position invariably cast doubt as to
the concept of monism and dualism in the description of a state. This doubt is further stretched
by the facts that some state that are seen as monist e.g. US provide for the superiority of the
Constitution over international law which contradicts the theory of monism: that international
law is higher than municipal law. Thus the adoption of this doctrine may not agree with the
Constitution which provides for legislative interference at least with respect to treaties.
Furthermore, this doctrine agrees with the decision of the Court of Appeal in African
Continental Bank v Eagles Super Pack Ltd.1 wherein the court judicially noticed the Uniform
Customs and Practice (UCP) for documentary credit after declaring same to amount to
customary international law. This decision although erroneous as seen in chapter 4 still
represents the position of international custom in Nigeria until same is overruled by the Apex
court. More so, the approach agrees with the position Nigerian courts are prepared to take with
respect to customary international law as evident in the dictum of Ogundare JSC in Abacha v
Fawehinmi2 when he declared thus ‘…it is presumed that the legislature does not intend to
breach an international obligation’.
On the other hand, the practice of customary international law in Britain is quite different,
the courts usually adopt two approaches; that is the incorporation approach or the transformation
approach. The purport and implications of the incorporation approach is the same as in US,
Ghana, China and Argentina. However by transformation, the British court cannot apply
customary international law unless there is an enabling Statute or the rule has been adopted by
1 [1995] 2 NWLR (pt 379) 590 2 [2000] 4 SC (pt 11) 1
55
the court. This theory obviously affirms the sovereignty of the British Parliament to determine
laws that will govern the rights and obligations of persons in Britain.
The doctrine of transformation unlike the incorporation theory, involves the legislature in
the application of international law. The judiciary is not the sole determinant of the rules of
international law to apply because a rule of customary international law will have to pass through
the scrutiny of the legislature before it will be applied by the court. This will enable the British
Parliament to jettison any rule of customary international law that appears to be inconsistent with
its laws. However, discarding certain rules of customary international law domestically will lead
to state responsibility. It follows therefore that the doctrine of transformation most times leads to
State responsibility and may attract sanctions both formal and informal as discussed in chapter 2
of this work.
The obvious implication of the doctrine of transformation in Nigeria cannot be
overemphasized. It establishes a nation as sovereign and our legislature will play a part in
application of any international law in Nigeria be it treaty or custom. It will prevent the
application of principle of customary international law evident in some treaties which the Nigeria
Parliament has rejected by neither ratifying those treaties nor domesticating them. However
considering how the legislature functions in Nigeria, it is doubtful whether the legislature will
ever consider domesticating rules of customary international law. Our experience of non
domestication of treaties is enough.
5.2 Recommendations
Having considered the implications of these various practices adopted by nations and its obvious
consequences on the sovereignty of the state concerned, it is strongly recommended that the
56
amendment of the Nigerian Constitution should be carried out to provide for the application of
customary international law in Nigeria. Nigeria as a nation that has respect for international law
cannot continue to be vague as regards the application of customary international law by her
courts.
The said amendment of the Constitution should include the status to be placed on
customary international law and the status to be placed on treaties vis a vis the Constitution and
other local enactment as seen in other jurisdictions like Argentina and United States of America.
It is the view of the researcher that the incorporation approach should be adopted with respect to
customary international law in the constitution despite its adverse implications. It is further
recommended that the decision in African Continental Bank v Eagles Super Pack Ltd3 with
respect to customary international law should be revisited.
Finally from this research, it is discovered that the concept of monism or dualism as used
in international law is very unclear, it is not clear which state qualifies as a monist state or dualist
state and what makes them so, considering the fact that some states practice the doctrine of
incorporation with respect to customary international law and the doctrine of transformation with
respect to treaties. Perhaps a further research can be undertaken on this area to establish whether
the delineation of states as monist or dualist actually exists; that is to say, the efficacy or
otherwise of the theory of monism or dualism in the description of states. This issue it is
submitted is beyond the scope of this project. Further can it be said that Nigeria is a monist state
considering the recent amendment of Nigerian Constitution as pointed out in chapter 4 of this
work.
3 Supra
57
5.3 Conclusion
Nigeria is a member of the international community and has as one of her foreign policy
objectives the promotion of international co-operation for the consolidation of universal peace
and mutual respect among all nations and elimination of discrimination in all its manifestations.
The aspirations and objectives of Nigeria as a state can only be met by abiding with international
law polices and principles, this cannot be achieved by shutting out the application of the rules of
customary international law domestically. The need for these customary law rules cannot be
overemphasized and it is hoped that the recommendation presented in this work will go a long
way to help Nigeria achieve its aims as a nation and to portray Nigeria as a state that has respect
for international law.
58
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