EXAMINING THE RELATIONS BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW

By Raji Usman Amao, a 200L law student and legal writer and researcher.

This is a controversial and unclear area of the law, with a contention as to the exact nature of the contextual meaning. International law and municipal or domestic law are closely connected with the concept of law in general on the one hand and, on the other hand, with the structure of the international legal community and the foundations and the sources of international law.

Albeit, the theoretical problem of whether international law and municipal law are parts of one legal order (monism) or of several legal orders existing independently from each other and needing special provisions to be brought into a reciprocal relationship (dualism or pluralism) has been long discussed, often with strong ideological and political overtones.

The topic is debated between scholars; philosophers posited on one school which is the “Dualist,” where the municipal law prevails in the course of conflicts, and for other schools—which is the “Monists”—stated that international law prevails. However, this writer tends to delve into the propriety of this article in order to exponentially expand the nexus between International Law and Municipal Law.

What is Municipal Law?

The word “Municipal Law” itself connotes home-grown or made law to which it gives the country the legal sanctity to stand-fit in the governing of the country. 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.

What is International Law?

International laws are a set of rules, regulations, norms, and principles for a state accepted internationally as a guideline for a state to interact with another state in various sectors such as war, diplomacy, human rights, trade, and other matters.

Examining The Relations Between International Law and Municipal Law

It is always essential to study the relationship between international and municipal laws because there are some instances where international law becomes a part of domestic law. The above assertions have been described through two main theories of state which are the monist theory and the dualist theory.

Furthermore, I'll extensively expatiate the two theories so as to juxtapose both terms—Dualism and Monism.

MONIST 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. Invariably, the constitution or Supreme Law of a monist state as a matter of necessity usually contains provisions that declare/proclaim 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, for instance, Senegal and Gambia.

DUALIST THEORY

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 laws 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. 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 provision of 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—whereas international law is not superior to domestic law. One state that practised it was Germany under the military regime.

Conclusion

Conclusively, where the writer has examined the relationship between international and domestic law, it is important to take cognizance of what the constitution or supreme law of a country states. It must be stated at this point that there are some states or countries that cannot be categorized as being monist or dualist stricto sensu.

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Raji Usman Amao is a student of the faculty of law, Ahmadu Bello University Zaria. He can be reached via rajiusman223@gmail.com or +234 816 367 7361.