Monist or dualist: Nigeria must respect international rule of law
Practitioners and students of international law are familiar with the concepts of monism and dualism. These are important concepts about how nations treat international law domestically. A monist state regards international law and domestic law as one and the same, a single unity of legal rules. Thus, treaties, once ratified, automatically become part of domestic law without any enactment by the legislature.
By contrast, a dualist state treats international law and domestic law as two entirely distinct legal systems. As such, treaties ratified by a dualist state must be incorporated into domestic law before they can be recognised as binding within the domestic sphere.
Of course, the legal position under international law is clear. Once a country has negotiated, signed and ratified a treaty, it is expected to comply with it and do so faithfully. Art 26 of the Vienna Convention on the Law of Treaties imposes that compliance obligation, based on the universal principles of pacta sunt servanda and good faith fulfilment. And Art 27 goes further. It prohibits states from invoking their national law as justification for failure to perform obligations imposed by a treaty they have ratified.
Yet, despite the provisions of the Vienna Convention, the operation of international law within the domestic system still depends, crucially, on whether a country is a monist or a dualist state; and if a dualist state, whether the country has respect for international rule of law and legality, and is willing to do the needful to give direct legal effect to its treaty obligations. That’s the context of this discussion on Nigeria’s attitude to international law. Is Nigeria a monist or dualist state, and if the latter, to what extent has it given domestic legal effect to its treaty obligations to ensure it performs them in good faith?
But, first, why does this matter? Well, it matters because how a country treats international law is an indication of its rule of law mindset, and also of its commitment to socio-economic development and global integration. Treaties are the main instruments for developing international cooperation among countries, but they are also major sources of domestic socio-economic progress.
Think of it, trade, investment, intellectual property, technology transfer, environmental protection, human rights, anti-terrorism, anti-corruption etcetera – all of which are critical to the social and economic development of any nation – are today covered by international treaties, bilateral or multilateral.
The process of creating such treaty obligations is designed to ensure compliance. They are based on the doctrine of free consent through negotiations. Once a treaty is finalised, the parties sign it to indicate they agree with the final text. Sometimes a treaty itself provides that it enters into force on signature alone. More commonly, though, treaties are subject to ratification, an act by which a state confirms that it is bound by a treaty it has already signed. The distinction between monism and dualism becomes sharper at this point. For monist states, such as Germany and the Netherlands, the ratification of an international treaty automatically incorporates it into their domestic law. But for dualist states, such as the UK and the US, ratification is not enough: domestic legislation is needed to give treaty provisions legal effect.
In the US, except self-executing, only treaties enacted into domestic law by Congress would have direct effect and become “the supreme law of the land”. There have been many instances, such as with the International Trade Organisation (ITO) charter in 1948 and the Paris Climate Change Agreement of 2015, when a US president negotiated and signed an international treaty only for it to be denied domestic legal effect because the US Congress refused to approve it. Similarly, in the UK, the government can only ratify a treaty if parliament doesn’t object. Even so, in most cases, ratification does not give a treaty direct effect in the UK, unless Parliament enacts the treaty into domestic law.
So, what about Nigeria? Too often, we hear that Nigeria has ratified this or that treaty. In August, when President Buhari returned from his long medical vacation, he “ratified”, in the full glare of the media, several international agreements. What, then, is the status of these agreements? In other words, what is Nigeria: a monist or a dualist state? Well, section 12 of the Constitution says it is a dualist state.
Section 12 states: “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”. This couldn’t be clearer. Nigeria is a dualist state, and thus the ratification of a treaty by the executive is not enough; the treaty must be enacted into domestic law, as in other dualist states, such as the UK and the UK, just discussed above.
But the truth is that Nigeria is notorious for signing or ratifying international agreements and doing virtually nothing to implement them. Several international agreements are gathering dust in various ministries, departments and agencies.
In principle, one of the benefits of incorporating treaty provisions in domestic law is that individuals who are harmed by a violation of the treaty-based rights may be able to obtain a domestic legal remedy. In many countries, the courts would interpret domestic laws to conform with international conventions, particularly when it comes to human rights and environmental protection. However, Nigerian courts are unlikely to defer to international
At the heart of all this is Nigeria’s poor commitment to the rule of law and legality. Some scholars make an affinity argument that respect for domestic rule of law and legality would translate into respect for international rule of law. But a government that does not respect its own domestic law, constitution and judiciary is unlikely to see international law as anything other than a distant legal nuisance that should be ignored.
Olu Fasan