A majority of states in the United Nations General Assembly (UNGA), not long ago elevated Kenya to a non-permanent UNSC seat. This was a big win for Kenya. However, it was a massive shock and concern that other than a few informed individuals (mostly media houses, lawyers and of course Kenya MUN delegates)sending congratulatory messages to the state, the remaining large portion of Kenyan citizens did not have any glimpse of information on what the win meant, the pride it brought to the country in the international fora or rather it’s purpose. Further, it beckoned my attention that people did not fathom the position of International legislations within their countries, this article therefore, seeks to harmonise and give an informed opinion on what International law is and it’s position in the hierarchy of domestic laws.
Kent Mckeever defines International law as “..laws of political systems of nation states, laws that are distinct and self contained, independent of national systems of laws within which they interact and dealing with relations with which they do not effectively govern”. I single out this particular definition from other various definitions because of the controversy it portrays.
To begin with, Kent seems to harmonise law and policy, he deliberately ommits the existence of a difference between law and politics and portrays law as a political result. Secondly, he observes that International laws are independent of national systems of laws, this in my view, introduces a supremacy conflict between international laws and locally made legislations. Finally, Mckeever points a dent in International law that it does not effectively govern relations it ought to govern. This is probably because International law lacks proper law making institutions and courts with compulsory jurisdictions. In that list is also an absence of effective sanctions and enforcement mechanisms for when violations occur. Therefore one would say that Kent Mckeever and others like him view International law as an “insufficient law.”
However, looking at International law as an end product and in comparison to Municipal law, International law suffices to be a law that generally governs relations between a state and other states and with other entities upon whom the legal capacity has been conferred while Municipal laws on the other hand suffices to be laws that govern relations between individuals and themselves or individuals and state institutions. In the face of it therefore, it would appear that the two group of laws are distinct parallels that do not interfere at any point with one another albeit this not being the real case.
A group of scholars that argue that these two laws are separate and neither of them has the power to affect the other,builds on the points that incase of conflict between the two locally, a municipal court would apply municipal law as far as the conflict fall under the ambit of municipal law and any conflict pertaining to international law will therefore be accorded superiority of International law because it is only such law that has the sufficient legal system to solve that dispute. They futher heavy on the point that these two systems of laws have distinct subjects; that being individuals for municipal law and states for international law hence none overrides the other.
Another group of scholars argue differently. They put foward the argument that both systems of law are part and parcel of the legal order. Hence, in their view, laws are to be considered as one system composed of binding legal values. It doesn’t matter whether it is states or individuals to be bound because ultimately states are but a group of individuals looked at as one entity. Hence a law cannot be powerful without individuals input on it(through their representatives). They back up this argument stating that it is the doctrine of monism that gives international law the true legal character.
I would love to give my critique by espousing on Article 2 (5) and Article 2 (6) of the Kenyan Constitution respectively. Article 2(5) states that “the general rules of International law shall form part of the laws of Kenya”. Article 2 (6) “Any treaty or convention ratified by Kenya shall form part of the laws of Kenya under the Kenyan Constitution”. There’s a mild supremacy contest between these two Articles. The former puts rules of International law in a higher hierarchy as compared to local legislations because they unilaterally form part of Kenyan laws while the latter gives parliamentary legislations more power through ratifications on treaties and conventions.
A simple question is therefore asked to the reader, would it then mean that suppose international law was to derive legitimacy from the municipal law, whose grundnorm is the Constitution as seen in Article 2 (6), then International law would cease to operate/exist once the Constitution from which it derives legitimacy is overturned, say through a coup de tat? Give it a thought.
In conclusion therefore, It’s my stand that even though scholars may argue on the parallel nature of these two laws, a supremacy contest lies beneath every argument. And International law seems to be heavily winning that contest. In the hierarchy of laws , in my view, International laws need to come first before municipal laws. Because in International courts and tribunals, a state cannot plead the provision of it’s own laws or the deficiency therein in an answer to a claim against it for an alleged breach of it’s obligations under international law. Congratulations Kenya for winning the UNSC non-permanent seat.