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The status of customary international law under the Nigerian legal system

The status of customary international law, unlike treaties, has not been seriously addressed under the Nigerian legal system. This article therefore examines the status of customary international law in the Nigerian legal system. The article adopts a comparative approach and creates new norms from the existing ones which apply to treaties. The article finds that the common law ‘incorporates’ customary international law into the Nigerian legal system but what incorporation means, how it is done and by whom it is done is fraught with serious misunderstandings. The article therefore argues that customary international law should be regarded as law having effect as if so enacted by the law making organs in Nigeria. With this, the article recognizes customary international law in its common character and as a norm of jus cogens and maintains that they constitute federal ‘law’. As a norm of jus cogens, it is inferior to the Nigerian Constitution but superior to an Act whether implementing a treaty or not. Customary international law in its common character maintains a coordinate status with any Act implementing a treaty but superior to an Act not implementing a treaty. However, customary international law can be expressly negatived by an Act. Customary international law whether in its common character or as a norm of jus cogens is superior to state Law, common law, African customary law, administrative rule and an executive order. The article concludes that with globalization, customary international law may be a veritable source of law in Nigeria.