INTERNATIONAL LAW AS A SOURCE OF NIGERIAN LAW
International law means the law that governs legal relations among the nations of this world, in contradistinction to municipal law that operates within the territory of a particular nation. International law (jus gentium or law of nations) has been referred to as 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 (such as the United Nations), companies, and sometimes individuals (e.g. in the sphere of human rights) may have rights or duties under international law. International law deals with such matters as the formation and recognition of states, acquisition of territory, war, the law of the sea and of space, treaties, treatment of aliens, human rights, international crimes, and international settlement of disputes [A Concise Dictionary of Law (1990), p. 213].
O’Connell, Professor of International Law in the University of Adelaide, made a very useful pronouncement on the relationship between international law and municipal law:
Law is a spontaneous generation from the needs and aspirations of man in community. Though its specific details differ from time to time and from place to place, its most basic principles are uniform because human nature in its essence is constant. There is, therefore, no bridgeable gap between international law and municipal law. Both systems are founded on the ‘general principles of law,’ and they differ only in respect of the areas of human activity which they seek to regulate. Man is not confined by the State, but lives his life within the community of mankind . . . . [International Law (1970), p. 3].
Article 38 of the Statute of the International Court of Justice provides that principles of international law are to be found in:
(a) International Conventions or Treaties (also called Charters);
(b) International custom;
(c) General principles of law recognised by civilised nations; and
(d) Teachings of eminent scholars.
International treaties may become a source of Nigerian law after they have been ratified and adopted by Nigeria and incorporated into our law via special Nigerian enactments. This is because Nigeria adopts the ideology of dualism (not monism) in respect of the application of international treaties. Section 12(1) of the Constitution of the Federal Republic of Nigeria 1999 provides that “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.” For example, the African Charter on Human and Peoples’ Rights 1981 made in Banjul (Capital of Gambia) in January 1981 by member States of the Organisation of African Unity (renamed African Union on Tuesday, 9 July 2002) became applicable in Nigeria two years later by virtue of our African Charter on Human and Peoples’ Rights (Enforcement and Ratification) Act 1983. This Charter is not a Nigerian legislation, although its provisions apply in the country and it is contained in our Federal statute book. Consequently, the Federal Government of Nigeria cannot alter any of its provisions: she may only propose an amendment which can be approved only by a simple majority of the member States of OAU by virtue of Article 68 of the said Charter. The peculiar nature of this Charter (and all other international Treaties, by extension) was upheld by the Court of Appeal in Fawehinmi v Abacha (1996) 9 NWLR (Part 475) 10.
Other International Treaties that have been specifically adopted as forming part of Nigerian law by being made applicable in the country through Nigerian legislation include the following:
(a) Carriage of Goods by Sea Act 1926. It adopted the Rules contained in a draft Convention made at the International Conference on Maritime Law held at Brussels in October 1922, as amended at Brussels in October 1923.
(b) Trade (EEC Preferences under the Lome Convention) Act 1976. It implemented the
provisions of Protocol No. 1 of the African, Caribbean and Pacific-