Relationship between Municipal and International law

This is a controversial and unclear area of the law, with a contention as to the exact nature. It is important to first know that international human right laws exist distinctly and independently from municipal human right laws. While international human right laws are of a broad nature, countries choose the human rights they want to have codified and protected. International law is the law which regulates sovereign states/nations. International laws must be ratified before it can be binding on a state. Ratification is the process through which a state accepts to be bound by an international law or treaty, and this power is most often vested in the President. Municipal laws are the laws in sovereign states which determine the rightness or wrongness of any action by either the government or the governed. Only a sovereign state may ratify international law.

Having recognized the difference between international and municipal law, it becomes necessary to look into the operationalization, and how operative international laws are. One instance is the ICCPR which has been ratified by Nigeria, but which is not binding on Nigeria within Nigeria because it has not been passed by the legislature according to section 12(1) of the 1999 constitution. However, it is binding on Nigeria outside Nigeria because it has been ratified.

It must be stated from the outset that the main determinant of the relationship between international law and municipal law is the supreme law or constitution of the respective states. That is to say, a person cannot ascertain in abstract the implication or application of a treaty or a state except he or she considers first and foremost, what the constitution of that state says. In a nutshell, the constitution and its provisions are the drivers of the relationship between international law and municipal law.

The above assertions have been described through two main theories of state which are the monist theory and the dualist theory.

According to proponents of the monist theory, both international law and municipal law flow from one source, the source of law. That is to say that international law and domestic law are one and the same. By implication, in a monist state, international law becomes operational once the state in concern has ratified it. In a monist state, there exists no clear-cut dichotomy between international law and domestic law in their applications.

Furthermore, the constitution or supreme law of a monist state as a matter of necessity usually contains provisions that declare that international law and municipal law have the same applicational force. The applicational force here is usually played out in terms of enforcement of the provision of the international treaty in question. Also, international law will usually prevail over municipal law in a monist state, in the event of a conflict between the two. Senegal and Benin Republic are examples of monist states.

Dualist theorists are of the view that although international law and municipal law are laws, they however differ in their nature, in the process of application and enforcement. They equally believe that municipal law are in a different sphere from international law. According to the dualist theorists, because international law and municipal law are different, they must not be applied evenly at the domestic sphere. That is to say, international law should be applied in a differential manner at the domestic level. They are equally of the opinion that municipal law should determine how international law is to be applied domestically. Due to this argument, most dualist states consider their supreme law to be higher than international law as far as the applicational force domestically is concerned. In Abacha v Fawehinmi, the court stated the superior nature of the constitution in relation to international law.

The principle of pacta sunt servanda declares that a country or a state is bound by the provisions of every treaty entered into, and the country cannot raise domestic law as an excuse to not fulfill its international obligations.

Based on the principle of pacta sunt servanda, there are basically four obligations imposed on parties to international treaties. These obligations were declared in SERAC V Nigeria by the African commission on human and peoples’ rights. They are as follows.

1. Obligation to respect.
2. Obligation to protect.
3. Obligation to fulfill.
4. Obligation to promote.

The obligation to respect means that the state must not violate the rights guaranteed under the treaty in question. That is, the obligation to respect places a negative obligation to not violate the right in question of the state. All the rights guaranteed in the treaty must be respected by the state.

The obligation to protect places a positive obligation on the state to prevent third parties from violating the rights guaranteed in the treaty. That is, the state must take targeted actions to ensure that the rights guaranteed under the treaty are not wantonly violated by third parties or governmental agencies.

The obligation to fulfill is also positive in nature. It is an obligation to put in place mechanisms, machinery, institutions to facilitate the enjoyment of the rights guaranteed in the treaty.

The obligation to promote is slightly connected to the obligation to fulfill. It means that the government must carry out programs that will lead the publication of human rights culture and ethos. This can be done through human rights radio programs, human rights television programs, human rights sensitization, amongst a host of other activities to ensure that the public has adequate knowledge of the human rights guaranteed in the treaties. This is because without the knowledge of the existence of rights in any society, human rights are most likely to be violated, neglected and in most cases unaddressed by the agency responsible for it.

Section 12(1) of the Nigerian constitution makes provision for transformation before international laws can be binding, while article 231(4) of the South African constitution provides the same for South Africa. Besides the above two theories on the relationship between international law and municipal law, there is a third theory which is unpopular. It is called the Nihilist theory. This theory believes that international law is totally inferior to domestic laws. One state that practised it was Germany under the military regime.

In conclusion, when examining the relationship between international and domestic law, it is important to look at what the constitution or supreme law of a country states. It must be stated at this point that there are some states that cannot be categorized as being monist or dualist stricto senso. This is because some international agreements automatically become binding on the state without ratification. Article 231(4) of the South African constitution creates an exception in the cases of self-executing laws. The fourth amendment of the Nigerian constitution provides that Internal Labour Organisation convention provisions have application force in our court.