The application of international law in Nigeria and the façade of dualism

Abstract

Section 12 (1) of the Amended Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution) provides that no treaty shall have force of law in Nigeria unless it has been enacted into a law of the National Assembly. This provision has been interpreted by the Supreme Court and scholars, alike, to mean that treaties are only applicable in Nigeria if they are enacted into law by the National Assembly. This interpretation gives the impression that Nigeria is a dualist State. This article however argues that, dualism is a façade that ignores the reality of: jus cogens norms that are domestically applicable despite or in spite of national law, customary international law that forms part of national law without being specifically incorporated, selfexecuting treaties and restriction imposed by international law on national (such as the incapacity of municipal law to vitiate international obligations). In this sense, the article maintains that the generalised position that undomesticated treaties are not applicable in Nigeria misses the point that treaties sometimes codify customary international law. The position also misses the point that treaty provisions may later become, or form part of, customary international law. In another vein, the article examines provisions of the constitution which, allow the operation of self-executing treaties in Nigeria. So, while dualism may represent reality in many cases, it is a mirage in some other instances. The article suggests policy and legal recommendations for a more coherent application of international law in Nigeria.

Key Words: International law, Municipal law, Supreme Court of Nigeria, 1999 Constitution, Treaty, Customary International Law, Dualism, Monism, Jus cogens, Self-executing Treaties, Nigeria.