The Applicability of Customary International Law in NigerianContext: Definitive Lessons from South Africa

Abstract

The applicability of customary international law in municipal law is characterised by parallels, nuances, and marked distinctions ranging from the state practice and opinio juris sive necessitates (acceptance of obligation to be bound) of one sovereign state to another. Adopting the doctrinal research methodology, this article presents an overview of the applicability of customary international law within the purview of Nigerian legal system. The article finds that, unlike treaties which have a clear legal framework, there is no explicit and definitive statutory provision or categorical judicial decision regarding the applicability of customary international law in Nigerian legal milieu. Although some scholars have asserted that customary international law may be applicable in Nigeria if successfully proved or judicially noticed, and inferences may be drawn from a few judicial decisions, there is need for a definitive statutory provision or categorical judicial pronouncement in this regard. It would appear that Nigerian state practice is recondite as far as the applicability of customary international law in the domestic milieu is concerned. In contradistinction, this article has tellingly indicated that South Africa has a definite constitutional provision and authoritative judicial pronouncement in respect of the applicability of customary international law in its jurisdiction. The article therefore recommends that government should take a cue from the South African archetype and accordingly recalibrate the extant legal regime in order to foster a definitive restatement of the correlation between customary international law and municipal law in the Nigerian context.