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Customary International Law at Its Best: An Analysis of the Position of Customary International Law in Kenya and the United States

In the post 2010 constitution dispensation, Kenya has incorporated international law as part of law in Kenya. A closer look at article 2(5) and (6) of the constitution of Kenya 2010 shows that Kenya recognizes international law as part of the law in Kenya. However, it has been argued that article 2(5) makes Kenya a monist state while article 2(6) of the constitution makes Kenya a dualist state. Furthermore, commentators have argued that customary international law is what is stipulated in article 2(5) of the constitution. Some have disputed these claims. 
 
Customary International law is the law that arises due to the general practice of the states. Article 38(1)(b) of the statute of the International Court of Justice 1945 classifies customary international law as a source of international law; and defines it as a ‘general practice accepted by law’. It is based on two factors. They include: 1) the general practice of the states (state practice); and (2) what states have accepted as law (opinio juris). The International Court of Justice in the case of Military and Paramilitary Activities in and against Nicaragua(Nicaragua case) remarked this about customary International law, “In order to deduce the existence of customary rules, the court deems it sufficient that the conduct of state should, in general be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of recognition of a new rule. 
 
For a customary international law to suffice, it has to be established that the practice is ‘in accordance with a constant and uniform usage practised by the states in question as was laid down in the Asylum case . This was also emphasized in the Anglo-Norwegian Fisheries case where it was reiterated that there had to be some measure of uniformity among state practices to establish a custom. In my paper, I will look at the place of customary international law in Kenya. Secondly, I will look at the place of customary international law in the United States of America. Thereafter, I will make a comparison between the position of customary international law in Kenya and in United States of America. In the course of this paper, I will discuss what would happen when customary international law would be in conflict with an existing statute or treaty provision that has been ratified.