THE APPLICATION OF CUSTOMARY INTERNATIONAL LAW IN NATIONAL COURTS: THE CASE OF CAMEROON

CHAPTER ONE

                                                   GENERAL INTRODUCTION

Both treaty law and customary international law are sources of international law. Treaties, such as the four Geneva Conventions of 1949, are written conventions in which States formally establish certain rules. Treaties bind only those States which have expressed their consent to be bound by them, usually through ratification[1]. Customary international law, on the other hand, derives from ” a general practice accepted as law ” . Such practice can be found in official accounts of military operations but is also reflected in a variety of other official documents, including military manuals, national legislation and case law. The requirement that this practice be ” accepted as law ” is often referred to as ” opinio juris ” . This characteristic sets practices required by law apart from practices followed as a matter of policy[2]

At its sixty-third session, in 2011, the International Law Commission decided to include the topic “Formation and evidence of customary international law” in its long-term programme of work[3] and, at its sixty-fourth session, in 2012, the Commission included the topic in its current programme of work.[4] At its sixty-fifth session, in 2013, the Commission decided to change the title of the topic to “Identification of customary international law”.[5] At the sixty-seventh session of the Commission, in 2015, the Chairman of the Drafting Committee presented the report of the Drafting Committee on “Identification of customary international law”, containing draft conclusions 1 to 16, provisionally adopted by the Drafting Committee at the sixty-sixth and sixty-seventh sessions of the Commission.[6] The Commission took note of those draft conclusions[7].

At its sixty-seventh session, in 2015, the Commission further requested the Secretariat to prepare a memorandum concerning the role of decisions of national courts in the case law of international courts and tribunals of a universal character for the purpose of the determination of customary international law[8]

The scope of the memorandum is limited to the case law of “international courts and tribunals of a universal character”. The term “universal character” is not to be understood as relating to universal membership of the constitutive instruments of the judicial organs considered, but to the fact that they are open to universal membership, and that the judicial organ in question therefore potentially exercises its jurisdiction ratione materiae at the global level.[9] The International Criminal Court has been considered here on this basis. Regional courts and tribunals, by contrast, have not. Similarly, hybrid criminal courts established by negotiation between the United Nations and a single affected State have not been included. The International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda have been included in view of their establishment as subsidiary organs by decisions of the United Nations Security Council — decisions which, in accordance with Article 25 of the Charter of the United Nations, all Member States have agreed to accept and carry out. On this basis, they are regarded as “universal” for the purpose of the present memorandum, regardless of their competence ratione temporis, ratione loci or ratione personae. Furthermore, arbitral awards have not been systematically analysed in this memorandum by virtue of the ad hoc character of arbitral tribunals. For the same reason, reports issued by panels and decisions rendered by arbitrators under the Understanding on Rules and Procedures Governing the Settlement of Disputes of the World Trade Organization (WTO) have not been included in this analysis.

International law is the body of rules which are legally binding on states in their intercourse with each other.”[10] Even considering modem developments in IL like human rights and international organisations, this classical definition is still the conceptual pillar on which the international legal order rests. 2 The adherence to human rights treaties is conceptually an obligation between states rather than states and individuals. International organisations obtain personality under IL only insofar as the member states allow it. The concept of IL as the system of rules regulating the conduct among states therefore remains.

National law, on the other hand, is the body of rules binding on private entities and state organs in their intercourse between and with each other within the jurisdiction of one state. Here, there is always involved a national element. Disputes are between national persons, whether private or public. If foreigners are involved another national element needs to be given. This may be that the dispute occurred in the forum state’s territory or otherwise within its jurisdiction -for example on one of its ships.[11]

There exists no third body of rules.[12] Law is either national or international. Where these two bodies of rules meet, the rules governing the interrelation must lie either in the international or the national body of law. Then, there exists the question from where this interrelation is to be seen. Is it to be looked at from an international or a national perspective? But, maybe, the two bodies do not overlap. In the first place, it is not obvious how the law between states can influence the law between individuals in the state.

In Cameroon, the preamble and Article 37 of the Constitution of Cameroon[13], 1996 (as amended) as read with section 3 of the law on Judicial Organization[14]provides for the independence, impartiality and integrity of the courts of law and easy accessibility thereto.  It must be noted that one of the fundamental principles in the administration of justice in Cameroon is that justice is administered free of charge[15]. This is important hear because it gives access to even the poor who may not have been able to afford the cost. The above cited sections provide for the establishment of the various courts within the territory of Cameroon. It has at the apex of the court system in Cameroon the Supreme Court, followed by the Court of Appeal, Lower Courts of Administrative Litigation, Lower Audit courts, Military courts, the High Court, Court of First instance and the customary court. Of truth, these courts could not be said to be grassroots courts. The fact of the matter is that these courts are usually established and sited in urban cities and locations. They are almost always approached by the elite of the society, proceedings before them being mostly understood by the elite. Indeed, most often than not, it is the elite who can afford any of these courts not so much in terms of courts fees but as it relates to the cost of obtaining and retaining the services of Legal Practitioners.

The subjection of customary laws to Repugnancy tests in Cameroon[16] courts during the colonial era has attracted the attention and criticisms of different stakeholders, such as Judges, Lawyers, and legal analysts depending on your point of view[17]. The courts have set aside several Cameroon customs[18] on grounds that such customs failed the repugnancy test. In some instances, courts have made conflicting decisions on the same customs[19]. Notwithstanding scholarly efforts and judges’ contributions in condemning every trace of some of the customs, those cultural practices have persisted in many Cameroonian societies[20]. For instance, widow inheritance, genital mutilation, torture of women etc.

The judicial organization in its section 31 excludes criminal jurisdiction from customary and Akali courts, this is perhaps because of the cruel punishments usually associated with the sentencing of offenders

Today in Cameroon almost every community has customary court within the legal system. The court as a court of summary jurisdiction, and a court which reside in the heart and midst of the community they served, are closer to the people as against Courts of First Instance and the High Courts[21]. 

1.3 Research Questions

1.3.1 Main Research Question

1. How are customary International law applied in National Courts

1.3.1 Specific Research Questions

1. What are the sources of international law and the identification of customary international law
2. What is the judicial organization of the Cameroon Legal system and the place of customary court
3. How effective is the application of Customary International law in Cameroonian Courts
4. What policy recommendations can be made on the application of customary international law in Anglophone Cameroon

1.4 Objectives of the Study

1.4.1 Main objective of the study

1. To critically examine the application of customary international law in National courts taking the case of Cameroon
   • Specific objectives of the study
2. To discuss the sources of international law and the identification of customary international law
3. To examine the judiciary and the place of customary courts in Cameroon
4. To investigate the effectiveness in the application of Customary International law in Cameroonian Courts
5. To propose policy recommendations on the application of cust9omary international law in Anglophone Cameroon