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AN APPRAISAL OF THE CONCEPT AND PRACTICE OF EXTRADITION UNDER INTERNATIONAL LAW

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 Format: MS WORD ::   Chapters: 1-5 ::   Pages: 56 ::   Attributes: Questionnaire, Data Analysis,abstract, table of content, references ::   189 people found this useful

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CHAPTER TWO CONCEPTUAL DISCOURSE ON EXTRADITION 

2.1        Introduction

 The foundation of a research work of this nature is largely dependent on the clarification of some vital concepts. The necessity of this chapter is rested on the fact that some concepts have semblance with the subject of this research work. Concepts such as rendition, deportation and expulsion have often been used interchangeably without regard to the distinctions among them for practical purposes. Similarly, these concepts of rendition, deportation, and expulsion have semblance with the concept of extradition, although they are not the same, and thus, require clarification. Importantly too, the concept of extradition, which is the subject of this research work, is practiced within the concurrent dominion of international law and municipal law. There is, therefore, the need to clarify the overlapping nature of these laws. It is also paramount to examine and clarify the concept of treaty because it is the major instrument upon which the practice of extradition is sustained. 

2.2       International and Municipal Laws

                               The necessity of examining the meaning, nature and interrelationship between

international law and municipal law stems from the fact that the pendulum of extradition which is the core subject of this research work, swings within the legal precincts of international and domestic laws. There is, therefore, the need to have an insight into the overlapping nature of these concepts. It is, however, worthy to state that the synergy between international law and domestic law is evident from the fact that a state has the mandate to extradite due to treaty obligation that works in tandem with the state‟s domestic extradition law[1]

 International law implies a collection of those rules and norms that regulate the conduct of states and other entities which at any time are recognized as being endowed with international personality, example, international organizations and individuals, in their relations with each other[2]. Domestic or municipal law on the other hand, refers to those rules, laws or norms that regulate the conducts of individual members of a particular state3. 

 The platform that provides for the interrelationship between international law and municipal law is the very attribute that the reception of international law by a state and its internal effect are matters of municipal law4. In other words, state‟s perception of international law determines how international law forms part of its municipal law. The relationship between international law and municipal law is full of theoretical problems. The international legal literature on the subject records majorly two theories, which are the dualism and monism.

2.2.1 Dualism

 The proponents of the dualist theory point out that the essential difference between international law and municipal law is that while international law essentially regulates the relationship between states, municipal law applies within the territory of a state and regulates the relationship of its citizens with each other and with the executives[3]. According to this point of view, neither of the two legal orders has the power to create or alter the rules of the other and, should there be a conflict between international law and municipal law, the dualist would hold the view that the courts should apply municipal law6. Dualism is closely connected with the positivist doctrine of law, which tends to deny the validity of the sources of international law apart from the practice of state[4].

2.2.2 Monism

 The proponents of monism are said to be disinclined to a unitary concept of law. They view international law and municipal law as an integral part of the same law. However, they subscribe to the superiority of international law over municipal law. They opine that where conflict ensued between international law and municipal law, international law should prevail.[5]  The monists hold the view that international law  and municipal law  must be considered  as a single concept of law. They submit that both laws are geared towards subjects.9 Countries of civil law jurisdiction strongly believe in this theory, like France.

2.2.3 Harmonization Theory

 According to this theory, neither monism nor dualismprovides an answer on the true relationship between international law and municipal law. The starting point is that man lives not in one jurisdiction but in both.   International and municipal laws are concordant bodies of doctrines autonomous but harmonious in their aim of basic human good. When faced with an actual problem a municipal court applies the rules operative within its jurisdiction and may in fact, apply international law to the exclusion of municipal law or vice versa[6]. There is no watertight compartmentalization between the two systems of laws, they are not, strictly speaking, exclusively independent of each other because they reinforce and sustain each other. Municipal laws give effect to international law through judicial activism. While international law, on the other hand, expands the frontiers of municipal laws by opening new vistas of legal reasoning due to certain constantly evolving novel trends in international relations, which are at best, manifestation of national interests of various nations.

2.2.4 Transformation and Specific Adoption Theories

 The positivists argue that the rules of international law can only be applied within the municipal area by a process of specific adoption or incorporation for they are separate systems. For treaties, there must be a transformation into domestic law a substantive requirement that validates the application of treaty provisions to individuals[7]Lord Denning made a fine distinction between incorporation and transformation in Trendtex Trading Corporation v.

Central Bank of Nigeria[8] to the effect that by incorporation, “the rules of international law are incorporated into English automatically and considered to be English law unless they are in conflict with the Act of Parliament.” In transformation:

“the rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decision of judges or by act of parliament or by established customs…under the doctrine of incorporation, when the rules of international law change, our English law changes with them. But under the doctrine of transformation, the English law does not change, it is born by precedent…”[9]

 

 Consequently, Lord Denning gave a judgment that was in accordance with a developing customary rule of international law, but in conflict with English stare decisis. Critics see their distinction as artificial. Others suggest that a delegation theory is more appropriate whereby to each state is delegated the right to determine which treaty provision comes into force and how to apply them. All of these are part of the unitary mechanism for law creation. Whatever the merits or demerits of these theories actual states practices are revealing.

 International law is primarily a collection of laws that regulate the affairs of states, individuals and international organizations and institutions. Municipal laws are the domestic laws of sovereign states. It must also be noted that the synergy between international law and municipal law is very important to the practice of extradition because the making of treaties is the very fulcrum upon which the practice of extradition rests and of importance is the fact that these treaties must not be offensive to municipal laws. As far as the practice of extradition is concerned, there seems to be a marriage between international law and municipal law. In the words of Hingorani:

 


[1] Onyeneke, O. H. C.“Extradition: International Law and Domestic Law: Gary Mckinon v. Nortwest Three.

Accessed from http:// ssrn.com. a    t 10/3/2013, 9:25 am

[2] Wallace, R.M.M. et al. (2009).International Law.(6th Edition), Sweet and Maxwell, London, p.2. 3Onyeneke, Op. cit. p.2 4Wallace, Op. cit.p.3.

[3] Okeke, C.N. (1986)The Theory and Practice of International Law in Nigeria. Fourth Dimension Publishers, Enugu, p. 3. 6 Ibid 

[4] Ibid.

[5] Wallace, R. M. International law Sweet and Maxwell, London, P.37   9Ibid.

[6] Umozurike, U. O. (2010).Introduction to International Law. Spectrum Books Limited, Ibadan, p. 31. 

[7] Ibid. p. 30.

[8] (1977) 2 Q.B 529 (CA) 55, 3-4.

[9] Ibid.


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Paper Information

Format:ms word
Chapter:1-5
Pages:56
Attribute:Questionnaire, Data Analysis,abstract, table of content, references
Price:₦3,000
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