The Influence Of International Politics On International Law (The Problem Of Domestication And Realization Of International Law In Nigeria)
INTRODUCTION
- What is Law and how does it function? (views of Jeremy Bentham, Karl Marx, Hegel, Roscoe Pound, Austin, Kelsen, etc-Law is seen as an instrument of progressive change, social cohesion, command and sanction to aid social engineering) (see A.O. Obilade, The Transformation of Law: The Developing Country’s Dilemma, Nigerian current Law review, 1984, pp. 141-142) see also Black’s Law Dictionary 8th Edition, p. 900-“The regime that orders human activities and relations through systemic application of the force of politically organized society, or through social pressure, backed by force, in such a society;… the aggregate of legislation, judicial precedents, and accepted legal principles”.
- What is International Law? (West’s Encyclopedia of American Law-A set of rules generally regarded and accepted as binding in relations between states and nations).
- How does Politics at the international stage influence International Law?
THE ORIGIN/SOURCES OF INTERNATIONAL LAW
- The views of European scholars (Hegel, Lorimer, Wheaton, Westlake, Grotius, etc-from imperialistic to racist ideas and universality).
- African kingdoms of Ghana (300-1087AD), Borno/Spain relations, Benin/Oyo, Hausa States, Egypt, etc.
- Religious contributions (Islamic and Judeo-Christian, etc)
- Article 38 of ICJ statute (treaties and other bilateral agreements to which sovereigns are signatories and which govern issue, customary international law which includes general practices of state, general principle of mature legal systems and subsidiary determinations by Supreme Courts and respected writers).
THE DEVELOPMENT OF INTERNATIONAL LAW
- The emergence of modern commerce/trade.
- The rise of new nations.
- WWI and WWII – isolationism (see Barrack Obama, The Audacity of Hope, 2006 pp. 279-291).
- League of Nations and the UN.
- The UN charter and conventions (see Ian Brownlie, Basic Documents in international law, 5th Edition, Oxford, 2002).
- The growth of international institutions.
- Globalization and national interests.
THE INFLUENCE OF INTERNATIONAL POLITICS
- Perestroika and Glasnot
- The two ideological blocs (cold war).
- Helsinki Declaration, 1975
- ICJ (the Bakassi case and inconsistent declarations on legal principles-Uti Posidetis, Nemo dat quod non habet principle, pacta sunt servanda, terra nullius, historical consolidation/effectivite, sovereign immunity, etc) (see G. Oduntan, Africa before the international Court of Justice and the permanent Court of arbitration: the generational gap in international adjudication and arbitration, 2004)
- ICJ (the Namibia case)
- ICC Rome Statute, 1998 (non-compliance with the Geneva convention on Prisoners and other International conventions-Abu Ghuraib/ Guantanamo)
- Pinochet case
- Climate change/world energy needs
- 9/11 and aftermath (The Bush Presidency and international law)
- WTO and economic interests
- Proliferation of nuclear arms/energy – IAEA, etc.
- Chapter vii of UN charter (Articles 39, 41, 42)
- Sudan/Iran/North Korea, etc. (see Philippe Sands, Lawless World: Making and Breaking Global Rules, Penguin, 2006)
DOMESTICATION OF INTERNATIONAL LAW IN NIGERIA
- What is treaty? (see Article 2(1) of Vienna convention on the Law of Treaties-treaty means an international agreement concluded between states in written form and governed by international law).
- S. 12 of the 1999 Constitution (Note S.12 (12) and (3) thereof) (see A. Oyebode, International law and politics: An African perspective 2003 pp. 132-133).
- The position of the Supreme Court (see Abacha –VS- Fawehinmi (2002) FWLR part 7, 08 p. 533 at 586).
- Challenges of cultural rights and national security
- Economic interests and regional integration.
- Article 46(2) of Vienna convention on the Law of Treaties (voidability for non-compliance with fundamental requirement of a State’s Constitution).
- Succession to treaties:
- Clean slate
- Devolution
- Review (see A. Oyebode (supra) pp. 105-113).
RECOMMENDATIONS
- Active participation of African nations, Judges, Lawyers and Diplomats.
- Reforms at the UN and International institutions.
- Expansion of scope of International law to embrace other norms/legal systems.
- Easier mode of domestication through Constitutional amendment.
- Afro-centric pacific conflict resolution mechanisms.
* Abstract Paper on Inaugural Lecture presented by Mohammed Monguno, Esq, on 26th July, 2010 to the Law Students Association, Faculty of Law, University of Maiduguri, Nigeria.
