POLITICAL PARTIES

 The current political parties wrangles are shaping up the Kenyan political parties law.

THE HUMANITARIAN INTERVENTION PRINCIPLE

Article 2(4) of the UN Charter prohibits the use of force as a measure to maintain international peace and security.Article 51 of the same charter provides for accept ions to this rule;that state can use force against other state in self defense and in enforcing the UN actions.
A new exception to this rule also that is not directly mentioned in the UN Charter is the use of force in Humanitarian interventions. This principle is a good ground for the use of force in stopping the tyrant rulers from harming its civilians.The flip side is that this principle has been used to advance political courses in the international community.
The USA inversion of Iraq was justified after attempt to locate nuclear weapons failed as humanitarian intervention.
Currently in Africa the choice between Ivory Coast and Libya is influenced by certain interest.The justification given in the bombing of Libya is also based on Humanitarian intervention.
The real question is why choose to intervene in the Libyan situation over the Ivorian one which preceded the Libyan one? Is it influenced by some political or economic interest?
The untold part of the Libyan story is that the rebel army opposed to colonel Qaddafi's erratic control took arms against his regime.The legal question that lingers in my mind is whether an armed rebel group is still consider civilian? and whether the regime in place is allowed to defend itself and citizens from acts of aggression?
Though I am opposed to any tyrant rule, this principle has been used on several opportune moments by the Developed countries in furthering their selfish ambitions and should be well structured to avoid misuse.

THE POSITION OF EQUITY UNDER THE NEW HIERARCHY OF LAWS IN KENYA

UNDER THE FORMER CONSTITUTION

Under article 3 of the former constitution of Kenya it is provided that:

“This Constitution is the Constitution of the Republic of Kenya and shall have the force of law throughout Kenya and, subject to section 47, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void…”

From the above article the constitution is the supreme law of Kenya and any other law has to be subject to the constitution.

Cap 8 – Judicature Act

The Judicature Act provides for the hierarchy of laws to be applied by the Kenyan courts.

Section 3 of the Act provides:

3. (1) The jurisdiction of the High Court, the Court of Appeal and of all subordinate courts shall be exercised in conformity with –

(a) the Constitution;

(b) subject thereto, all other written laws, including the Acts of Parliament of the United Kingdom cited in Part I of the Schedule to this Act, modified in accordance with Part II of that Schedule;

(c) subject thereto and so far as those written laws do not extend or apply, the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August,1897, and the procedure and practice observed in courts of justice in England at that date; but the common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances may render necessary.

(2) The High Court, the Court of Appeal and all subordinate courts shall be guided by African customary law in civil cases in which one or more of the parties is subject to it or affected by it, so far as it is applicable and is not repugnant to justice and morality or inconsistent with any written law, and shall decide all such cases according to substantial justice without undue regard to technicalities of procedure and without undue delay.

Under Section 3(c) the doctrine of Equity applied in so far as the written laws did not extend or applied. This implied that the written laws in Kenya took precedent over the doctrines of equity.

THE NEW CONSTITUTION

The constitution has chosen to address the hierarchy of laws in Kenya. Article 2 states

2. (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at both levels of government.

(2) No person may claim or exercise State authority except as authorized under this Constitution.

(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other State organ.

(4) Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.

(5) The general rules of international law shall form part of the law of Kenya.

(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

The new constitutional order does not out-rightly refer to the doctrine of equity as a source of law in Kenya. Article 2(5) refers to the general principles of international law forming part of Kenyan law. The question will be, whether the doctrines of equity form part of the general principles of international law?

This is a debate that has blogged the minds of legal scholars in the international community. In the Netherlands v Belgium (1937)¹ case on diversion of water from the River Meuse, Judge Manley stated “Under article 38 of the statute, if not independently of that article, the court has some freedom to consider principles of equity as part of the international law which it must apply.”

Also in the Norwegian Ship Owners’ Claims² (between the U.S. and Norway) who were to decide the claims by applying ‘law and equity’ said:

“The words ‘law and equity’ … can not be understood here in the traditional sense in which these words are used in Anglo-Saxon jurisprudence. The majority of international lawyers seem to agree that these words are to be understood to mean general principles of justice as distinguished from any particular system of jurisprudence or the municipal law of any state”

Judge Anzilotti, the Italian jurist who had been the rapporteur of the 1920 Advisory Committee to draft the Statute of the Permanent Court of International Justice, describing the maxim ‘one who seeks equity must do equity’ as:

“So just, so equitable, so universally recognized, that it must be applied in international relations. [It is one of the] general principles of law recognized by civilized nations.”³

Justice Margaret White stated in her article⁴ “…when consider in the context of specific cases, equity has a wide acceptance and is part of the general stock of legal norms of the international order…To this extent equity is a general principle of law recognized by civilized nations.”

From the above authorities, the doctrines of equity are settled to be general principles of international law, hence, applies in Kenya under Article 2(5) of the constitution of Kenya.

CONCLUSION

The difference between the position of equity in the older constitutional dispensation and the current one is that; in the former constitutional order the doctrines of equity applied where written laws did not extend or apply. The new constitutional order changes this position by making the general principles of international law part of the Kenyan law. This means that the doctrines of equity automatically become part of the Kenyan laws without being subject to other statutes, a position it held in the former constitutional order.

1 Diversion of Waters from the River Meuse (Netherlands v Belgium) [1937] PCIJ (ser A/B) No 70,4.

2 (1922) 1 Reports of International Arbitral Awards 307.

3 Diversion of Waters from the River Meuse (Netherlands v Belgium) [1937] PCIJ (ser A/B) No 70, 4, 50.

4 EQUITY – A GENERAL PRINCIPLE OF LAW RECOGNISED BY CIVILISED NATIONS? 2004

CUSTOMS AND TREATIES AS A SOURCE OF INTERNATIONAL LAW

INTRODUCTION

The world needs international law, because no state acting alone can achieve its aims. International co-operation is necessary: and international law is the framework within which international co-operation takes place.¹

The rules of international law arise from three main sources of obligations; treaties, customary international law, and the principles of natural law. Article 38 of the statute of International Court of Justice (ICJ), directs the court to decide cases before it on the basis of:

1. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognized by civilized nations.

Treaties and custom as the main sources of international law and their relationships are the main point of consideration in this discussion.

CUSTOM

Custom is regarded as an authentic expression of needs and values of the community at any given time. In international law is a dynamic source of law in the light of the nature of the international system and its lack of centralized government organs.

Customary international laws are aspects of law derived from international community. Custom is considered by the International Court of Justice, jurist, the UN, and its member states to be among the primary sources of international law.

For a rule of customary international law to exist, it must be manifested in the general practice of states. Article 38.1(b) of the ICJ statute refers to “International custom” as a source of international law, specifically, emphasizing the two requirements of state practice plus acceptance of the practice as obligatory. Hence, the challenge is how can one tell when a particular line of action adopted by a state reflects a legal rule or is merely prompted by courtesy?

The duration of a particular international states’ practice is what qualifies it into customary international law. Customary law systems generally suppose that the rule that they apply are long-established. The main reason for the concerned with time is a matter of authority. Proof that a practice has long been followed is good evidence that the rule evidence d by the practice is firmly established. The main challenge with regards to the time factor, are concern with the speed of creation of new rules and the effect of protest.

On the other hand , in the North Sea Continental Shelf cases in 1969² ,the ICJ expressly accepted the possibility that a wide spread and representative practice could generate a rule of customary international law even without the passage of any considerable period of time. This is referred to as instant customary law.

Advantages of custom as a source of law:

1. Custom is recognized as being of value since it is activated by spontaneous behavior and thus mirrors the contemporary concern of society.
2. It is democratic in that all states may share in the formulation of new rule. The factor of equality of states being constant.
3. If states are unhappy with a particular law, it can be changed relatively quickly without necessity of convening and successfully completing a world conference.

Critics of this source of international law have denied its significance today stating, it is too clumsy and slow moving to accommodate the evolution of international law any more. Hence, since international law now has contended with a massive increase in the pace and variety of state activities as well as having to come to terms with many different cultural and political traditions, the role of custom is perceived diminished³.

The pro custom as a source of international law, recognize it as a dynamic process of law creation and more important than treaties since it is of universal application.

TREATIES

Treaties are known by variety of different names, but all this terms refer to a similar transaction. This is, the creation of written agreement between states whereby the states participating bind themselves legally to act in a particular relation between themselves.

Treaties, thus, signify written instrument in which the participants (usually but not always states) agree to be bound by the negotiated terms.

Treaties are divided into:

1. Law-making treaties-these are multilateral treaties and mainly intend to have universal or general relevance.
2. Treaty-contracts-this treaties apply only between two or small number of states. They are mainly bilateral treaties.

Treaties are express agreement and are a form of sustitute legislation undertaken by states.Treaties as source of international law originates from mainly the law making treaties which are intended to have a general effect. The law-making treaties are those agreements whereby states elaborate their perception of international law upon any given topic or establish new rules which are to guide them for the future in the international conduct. These are multilateral treaties and may produce rules that bind all states irrespective of their consent.

Article 38⁴ states that, “international conventions, whether general or particular, establishes rules expressly recognized by the contracting states.” Treaties are thus, entered into by consent of states. A general rule illustrated in the North Sea Continental cases⁵ is that parties that do not sign & ratify the particular treaty in question are not bound by its terms.

However where treaties reflect customary law then non-parties are bound, not because it is a treaty provision but because it reaffirms a rule or rules of customary international law.

The pro treaties as a source of international law scholars view it as the most important source of international law. This is because; in their view they require the express consent of the contracting parties. Treaties are thus view by these scholars as superior to custom, which is regarded in any event as a form tacit agreement⁶.

Critics of this source of international law see it as a difficult process. One can imagine how difficult it is to try and achieve conformity of views and approaches in relation to a multilateral instrument that is intended to be comprehensive – even where the instrument’s subject matter is relatively narrow.

Even if you can settle the text of a law-making treaty you then face the risk that it may conflict with other law-making treaties. And the legal principles for resolving these conflicts may prove – in particular cases – to be anything but clear and simple.

Treaties are codified, making it easy to refer and address a wide range of issues.

Relationship between treaties and custom as a source of international law

The source of treaties and custom are the primary inter-relation between them. The interaction between them often exists from the beginning of the life of these judicial bodies.

Customary law is the practice followed generally by the nations. A treaty is not a necessity here. On that logic treaty law could evolve from the long practiced customs if state parties wish to have a codified form of their customary practice.

In the North Sea Continental shelf case the court set out three distinct ways in which a rule of law set out in a treaty text could be an accurate reflection of a rule of customary international law:

1. The treaty could have codified pre-existing international law.
2. A treaty may crystallize an emergent rule of customary international law.
3. The treaty might pass into customary international law after its conclusion.

Customary laws have been the primary laws to commence any case in the international crimes while treaties play a vital role during jurisdiction. The relationship is also reflected in that the obligatory nature of treaties is founded upon the customary international law principle that agreements are binding (pacta sunt servanda).

CONCLUSIONS

In practice, the unending interplay between custom and treaty, in the sense that a treaty rule is fleshed out by practice which in turn becomes evidence of a general practice accepted as law.

Treaties have been favored on one hand as the customary process and its results are vague, slow, malleable and uncertain but treaties can be made relatively spontaneously in specific terms. On the other hand as well, the making of multilateral treaty is recognized as a cumbersome process that may well outlast the formation of a custom outside its framework.

While the interplay between treaties and custom is a constant in international law, there is strong sense in insisting that the two sources maintain separate existences. The question of the extent to which treaty rules, together with their attendant conditions for application, may affect the customary rules of identical content, and vice versa, is still in need of a consistent line of criteria, while taking into account the circumstances of each concrete case⁷.

It is also felt that customary law as a formal source of international law has an enduring role that cannot be diminished, whatever the situation is with efforts in treaty-making. A treaty will always display rigidity in the face of fast-changing conditions of this globalizing world; whereas custom has flexibility and responsiveness to such changing conditions⁸.

It is thus evidence from the above analysis that there is strong sense in insisting that the two sources maintain separate existences but are inter-related. Hence, the international community cannot rely on one in the absence of the other as a source of international law.

BIBLIOGRAPHY

Books:

1. C.De Visscher, Theory & Reality in Public international law 3^rd edn.Princeton,1969.
2. Lowe,Vaughan, International law
3. Malcom Shaw-International law 6^th edition
4. Utopia-by Thomas More

Online sources:

1. http://www.lycoze.com
2. http://www.en.wikipedia.org
3. http://treaties .un.org
4. http://chinesejil.oxfordjournals.org/content/9/1/81.full

Statutes:

1. International Court of Justice statute.

Case reports:

1. International Court of Justice reports.

1 Lowe, Vaughan, International law. Pg.1

2 ICJ REPORTS

3 C.De Visscher, Theory and Reality in Public international law,3^rd edn.Princeton,1969,pg 16

4 ICJ statute

5 ICJ Reports,1969,pp.3,25:41

6 Tunkin, Theory of international law,pp.91-113.

7 http://chinesejil.oxfordjournals.org/content/9/1/81.full

8 . St-Fleur, Aerial Belligerency within a Humanitarian Rhetoric: Exploring the Theorizing of the Law of War/Terrorizing of Civilians' Rights Nexus, 8 Chinese JIL (2009) 347, 356–358.