The Journal of Law & Policy Volume 2, Issue 6, 2022

Volume 2, Issue 6, 2022

 The Journal of Law and Policy Volume 2, Issue 6, 2022

APPLICATION OF INTERNATIONAL LABOUR STANDARDS IN

DOMESTIC LEGAL SYSTEMS: THE CASE OF NIGERIA
By
Gogo George Otuturu*

Abstract
As an active member of the international community, Nigeria has
ratified many treaties and conventions adopted by international and
regional organizations especially the UN, the ILO and the African
Union. Under the 1999 Constitution, Nigeria adopted the dualist theory
which requires any treaty or convention ratified by Nigeria to be further
domesticated or passed into law by the National Assembly before it can
be applied by domestic courts. This position changed under the
Constitution (Third Alteration) Act 2010 which has incorporated the
monist theory with regard to treaties and conventions relating to labour
and industrial relations which Nigeria has ratified even though they have
not been domesticated or passed into law by the National Assembly. This
paper examines the application of international labour standards in
domestic legal systems with particular reference to Nigeria. It examines
the dualist theory under the 1999 Constitution and the instances when
the monist theory will become applicable in Nigeria. It also examines the
impact of international labour standards on the Nigerian legal system.

Keywords: Convention, dualism, incorporation, monism, transformation, treaty

1. Introduction
International labour standards are international legal instruments setting
out basic conditions and rights at work.1In Omole v. Mainstreet Bank
Microfinance Bank Ltd2 the National Industrial Court of Nigeria noted that
examining International Labour Organization treaties is one approach for
measuring or assessing international labor standards.3Thus, the
International Labour Organization's Conventions, Recommendations, and
Declarations are the principal sources of international labour standards.
*
Gogo George Otuturu, LLB, LLM, PhD, B.L, CBA, DipEd, ANITD, ACIArb (Nigeria); Solicitor and
Advocate of the Supreme Court of Nigeria; Senior Lecturer and Head, Department of
Jurisprudence and Public Law, Faculty of Law, Niger Delta University, Wilberforce Island,
Bayelsa State. E-mail: otuturulaw@gmail.com
1
ILO, Rules of the Game: A Brief Introduction to International Labour Standards (ILO Geneva
2014) 14.
2
Omole v. Mainstreet Bank Microfinance Bank Ltd2015 53 NLLR 491 (hereinafter the Omole case).
3
Omole 521.
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There are, however, additional international and regional legal documents

that constitute the corpus of international labour standards applicable in
Nigeria. They include, among others, the United Nations Declaration of
Human Rights, the International Covenant on Civil and Political Rights,
and the International Covenant on Economic, Social, and Cultural Rights,
all adopted by the United Nations, as well as the regional instruments
adopted by the African Union, most notably the African Charter on
Human and Peoples' Rights.4
This article looks at how Nigeria's legal system applies international
labour norms. It takes a look at the monist theory and how it could apply
in Nigeria and how the dualist theory is established in the Constitution of
the Federal Republic of Nigeria 1999, as amended. It also discusses how
international labour norms have affected the law in Nigeria.

Theories of Monism and Dualism

The phrases "treaty,""convention,""covenant,""charter,""protocol,""pact,"
and "agreement" are all synonymous under the Vienna Convention on the
Law of Treaties.5As such, it may be said that ILO conventions are, in fact,
treaties. In the light of this, ILO conventions are subject to the same
standards for domestic implementation as other treaties.
When it comes to incorporating international conventions and treaties into
domestic law, governments have generally adopted one of two
approaches - monism and dualism. Both ideas are accepted in the
domestic implementation of international treaties and conventions in
various countries, most notably South Africa and Nigeria.
The monist view holds that different levels of law may be seen as different
aspects of the same legal system, including domestic law and international
law. Therefore, once approved, constitutionally compliant treaties and
conventions become binding law. Once a treaty is ratified, it is said to
have been "automatically incorporated" or "adopted" into domestic law.
Most of Europe and Latin America adhere to this view.
4
African Charter on Human and Peoples’ Rights (1981).
5
Article 2 of VCLT defines “treaty” as an international agreement concluded between States in
written form and governed by international law, whether embodied in a single instrument or
in two or more related instruments and whatever its particular designation. The phrase
“whatever its particular designation” suggests such designations as “convention, covenant,
charter, protocol, pact and agreement”. See EA Oji, and Others, “The Relevance of
International Labour Organization Conventions to Promote Rights of Workers and Fair Labour
and Industrial Practice in Nigeria” *2016+ 7(1) Journal of Emerging Trends in Educational
Research and Policy Studies 65-75.
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Duly approved treaties are considered part of domestic law in monist

governments. For example, all treaties signed in conformity with the Mexican
Constitution are considered to be part of the country's supreme law. Again,
international treaties to which the Syrian Arab Republic is a party are
considered part of Syrian law and are obligatory on all authorities inside the
country.6
Dualists hold that domestic law and international law are two distinct legal
regimes, unrelated in terms of their subjects, purposes, and origins. First,
domestic law covers responsibilities between private parties inside a state,
whereas international law governs obligations between states. Second, under
customary international law, only sovereign nations may be considered
"subjects of international law," whereas private people cannot.7Finally,
domestic law is grounded in the will of a state, whereas international law is
grounded in the common will of the contracting nations. Thus, domestic
law's binding force is grounded in the Constitution, whereas international
law's binding force is based on the concept of pacta sunt servanda, whereby
nations are obligated by their agreement when they sign a treaty.8
This view holds that international law has no binding effect inside a given
state unless and until it has been formally acknowledged by that state's own
laws. Therefore, in order for an international convention or treaty to acquire
domestic legal effect in a dualist state, it must undergo "statutory
incorporation" or "transformation."
The United Kingdom, along with the vast majority of Commonwealth
nations, is a dualist state. The United Kingdom is considered a "radical
dualist-system" because of its adherence to the rules of statutory
incorporation, whereas South Africa is considered a "dualist system with
monist features."9 In Chung Chi Cheung v The King10Lord Atkin succinctly
stated the relationship between the two systems in the United Kingdom thus:
So far, at any rate, as this country is concerned, international law
has no validity save in so far as its principles are accepted and
adopted by our own domestic law. There is no external power that
imposes its own rules upon our own code of substantive law and
procedure.11
6
United Nations Report of the Committee on Elimination of Racial Discrimination para 8.
7
See Walker v. Bard [1892] AC 491, 497 and 639.
8
Brindusahttp://revcurentjur.ro/old/arhiva/attachments_200712/recjurid071_22F.pdf.<accessed
12 August 2012>
9
For a brief survey of the position in some African countries, see
Duruhttp://ssm.com/abstract+2142977.
10
Chung Chi Cheung v The King 1989 AC 160 (hereinafter the Chung Chi Cheung case).
11
Chung Chi Cheung 167-168.
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When implementing an international convention or treaty, dualist nations

often use one of two approaches. The first is called "incorporation," and it
entails passing an implementing legislation that makes reference to the
treaty and includes the treaty in its entirety as a schedule to the statute.
The enacting law is considered to have an international flavor if this is the
case. The African Charter on Human and Peoples' Rights (Ratification and
Enforcement) Act included the entire Charter as a schedule, as did the
Civil Aviation Act, which included many international agreements
pertaining to the carriage of goods and people by air. The second strategy
is known as "transformation" and it entails either re-enacting the treaty's
substantive provisions as a law or altering the legislation to bring it into
compliance with the treaty without referencing the treaty itself. One such
provision is Article 8 of the ILO Protection of Wages Convention 1949,
which is re-enacted in section 5(1) of the Labour Act..12
When a treaty is re-enacted into domestic law, it has the same status as
any other piece of domestic law. To the contrary, a treaty or convention is
given precedence over domestic law when it is included as a schedule in
an implementing statute. In Oshevire v. British Caledonia Airways, the
Court of Appeal ruled that "any domestic law in contradiction with the
Convention is invalid."
Thus, the African Charter on Human and Peoples' Rights has become
supreme above all other domestic legislation, including military orders.
When the Charter's provisions are at odds with those of a domestic law,
the Charter's provisions will prevail. The Charter is the second highest
legal document after the Constitution.. Thus, in Abacha v. Fawehinmi13
Ogundare JSC (as he then was) stated the position of the law as follows:
No doubt Cap 1014 is a statute with international flavour. Being so,
therefore, I would think that if there is a conflict between it and
another statute, its provisions will prevail over those of the other
statute for the reason that it is presumed that the legislature does not
intend to breach an international obligation. To this extent, I agree
with their lordships of the Court below that the Charter possesses “a
greater vigour and strength” than any other domestic statute. But
that is not to say that the Charter is superior to the Constitution...15

12
ILO Protection of Wages Convention (1949) (No. 95).
13
Abacha v. Fawehinmi [2000] 6 NWLR (Pt. 660) 229 (hereinafter the Abacha case).
14
African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, Laws
of the Federation of Nigeria 1990 is now Cap A9, Laws of the Federation of Nigeria, 2004.
15
Abacha 289.
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Constitutions of some Central and Eastern European nations, known as

monist states, grant international treaties supremacy over domestic law.
This is because monist governments apply international law in a "statute-
like" manner. For instance, in Costa Rica, international treaties are given
precedence over domestic legislation, but in Colombia and Mexico, only
human rights treaties are given precedence over domestic laws.
Once a treaty is ratified in the United States, it has the same legal standing
as a federal law and takes precedence over any state or municipal laws
that conflict with it, as well as any federal laws that were passed earlier.
However, later enacted federal laws will supersede any treaty provisions
that are in contradiction with those laws.16

Position under the Nigerian Constitution

Like other commonwealth countries,17 Nigeria is a dualist state.18
However, Nigeria, like South Africa, is a dualist state with monist
underpinnings. The dualist idea is encapsulated in Section 12(1) of the
1999 Constitution (as modified), which states:
No treaty between the Federation and any other country shall have
the force of law except to the extent to which any such treaty has
been enacted into law by the National Assembly.

As was previously said, the Conventions of the International Labour

Organization are international agreements. Therefore, the implementation
of ILO Conventions in Nigeria is first subject to the aforementioned
constitutional restrictions, as is the case with any other convention.
According to the Supreme Court in the Abacha case, the National
Assembly must approve every treaty that the Nigerian government signs
before it can be considered legally binding.19

16
MS Weiss, “International Treaties and Constitutional Systems of the United States, Mexico and
Canada: Proceedings of the Seminar on International Treaties and Constitutional Systems of
the United States, Mexico and Canada: Laboring in the Shadow of Regional Integration” [1998]
22 Maryland. Journal of International Law 185-219, 205
17
For the position in India, see Sharma “Practice in Relation of International Law in India” Law
Mantra 1-10; and in South Africa, see De Wet, Hestermeyer and Wolfrum The Implementation
of International Law in Germany and South Africa (Pretoria University Law Press Pretoria 2015)
23-50.
18
BI Olutoyin “Treaty Making and Its Application under Nigeria Law: The Journey So Far” *2014+
31(31) International Journal of Business and Management Innovation 7-18, 13.
19
Abacha 288 (Ogundare JSC).
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More specifically, in Registered Trustees of National Association of Community

Health Practitioners of Nigeria (NACHPN) v. Medical and Health Workers
Union of Nigeria20 the1st appellants claimed inter alia a declaration that it
was unconstitutional, illegal, unlawful and against the provisions of
Conventions 87 and 98 of the International Labour Organization for the
Minister of Labour and the Registrar of Trade Unions to refuse to register
the applicants as senior staff trade union. Unanimously dismissing the
appeal, the Supreme Court stated that “insofar as an ILO Convention has
not been enacted into law by the National Assembly, it has no force of law
in Nigeria and cannot possibly applyy.”21
It is abundantly obvious that just having been approved or signed by the
Government of Nigeria is insufficient for a treaty or convention to have
the force of law in Nigeria. Not only must it be ratified, but also the
National Assembly must pass an act making it law. That being the case, no
international agreement may be implemented in Nigeria unless it has been
approved and domesticated.
Courts must give effect to international treaties and conventions that have
been ratified and enacted into law by the National Assembly. For
example, the African Charter on Human and Peoples' Rights is now part
of domestic law via the African Charter on Human and Peoples' Rights
(Ratification and Enforcement) Act.
Domesticated treaties or conventions are subject to the Constitution to the
same extent as other legislation. The Constitution has long been
recognized as the highest legislation in the nation. This is the standard by
which all other laws are measured. Therefore, the practical application of
any treaty or convention passed into law in Nigeria is subject to whatever
restrictions that may be established by the legislature. So also the
Constitution takes precedence over any treaty or convention signed in the
United States.22
However, monist aspects have been included into Nigerian industrial law
by the Constitution (Third Alteration) Act of 2010 and the National
Industrial Court Act of 2006. The National Industrial Court is required to
take into account best practices in labour or industrial relations whenever

20
Registered Trustees of National Association of Community Health Practitioners of Nigeria
(NACHPN) v. Medical and Health Workers Union of Nigeria2008 2 NWLR (Pt. 1072) 575
(hereinafter the NACHPN case).
21
NACHPN 616 (Mukhtar JSC); 631-632 (Onu JSC). This decision has been overruled by the
section 254C(2) o the CFRN 1999, as altered by the Third Alteration Act 2020.
22
Section 1(4) of the 1999 Constitution (as amended).
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it exercises its jurisdiction or any of the powers granted to it. The Court
also has the authority to implement and interpret international labour
standards according to the Constitution (Third Alteration) Act of 2010,
which amends the Constitution of 1999.
In Omole's case, the National Industrial Court declared that the ILO
condemns any act of unilateral deduction of employees' salaries. In that
case, the claimant had complained about the unilateral reduction of her
earnings by her employers and had her claim partially upheld. Since the
Protection of Wages Convention 1949 (No. 95) is integrated into Nigerian
domestic law under section 5(1) of the Labour Act 2004, the court used
that provision.
The most ground-breaking clause concerning the implementation of
international conventions, treaties, and protocols pertaining to labour and
industrial relations in Nigeria is found in the 1999 Constitution as
modified by the Constitution (Third Alteration) Act of 2010. The
Constitution now provides thus:
Notwithstanding anything to the contrary in this Constitution,
the National Industrial Court shall have the jurisdiction and
power to deal with any matter connected with or pertaining to the
application of any international convention, treaty or protocol of
which Nigeria has ratified relating to labour, employment,
workplace, industrial relations or matters connected therewith.23

This empowers the National Industrial Court to apply and interpret any
convention, treaty, or protocol approved by Nigeria but not yet
domesticated. The provisions seem to be in contradiction with section
12(1) of the 1999 Constitution and the judgement of the Supreme Court in
the Abacha case. However, the Supreme Court has underscored the usage
of the phrase "notwithstanding" in any legislative provision "to exclude an
impinging or impending effect of any other provision of the statute or any
subordinate legislation so that the provision may fulfil itself."24
Thus, in Aero Contractors (Nig.) Ltd v. National Association of Aircraft Pilots
and Engineers (NAAPE)25 the National Industrial Court explained that the

23
Section 245C(2) of the 1999 Constitution as amended by the Constitution (Third Alteration) Act,
2010.
24
Peter Obi v. INEC &Ors 2007 11 NWLR (Pt. 1046) 5645, 636-637 (Aderemi JSC).
25
Aero Contractors (Nig.) Ltd v. National Association of Aircraft Pilots and Engineers
(NAAPE)2014 42 NLLR (Pt. 133) 664 (hereinafter the NAAPE case)
htpp://www.judgement.nicn.gov.ng.
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word “notwithstanding” in section 254C (1) and (2) of the Constitution, as

amended, excludes the impinging effect of section 12 of the Constitution. It
means that section 254C(1)(f) and (h) and (2) of the Constitution, as amended,
cannot be undermined by any provision of the Constitution. Accordingly, the
Court said:
This Court has the jurisdiction and power to apply any international
convention, treaty or protocol of which Nigeria has ratified and ILO
Conventions 87 and 98 and the ILO jurisprudence that goes with
them can be so applied in view of their ratification by Nigeria.26

This statement is consistent with monism. Therefore, treaties, conventions,

and protocols ratified by Nigeria cannot generally be enforced unless they
have been enacted into law in accordance with the dualist theory, while
treaties, conventions, and protocols pertaining to labour and industrial
relations matters can, in exceptional cases, be enforced once they have been
ratified by Nigeria in accordance with the monist theory.
Therefore, the Constitution differentiates between treaties pertaining to
labour and industrial relations and treaties pertaining to other subjects. In the
first case, the monist theory is applicable, but in the later case, the dualist
theory is more appropriate.
Impact of ILS on the Nigerian Legal System
The line between national labour law and international labour law is
"increasingly porous" as a result of globalization and the evolution of
workers' rights into fundamental human rights in the workplace. In three
primary areas, the international literature suggests that international labour
norms may affect local legislation.27
To begin, domestic legislation may be supplemented with international
labour standards in order to address gaps. Thus domestic laws and practices
on the subject matter are largely based on the substance of ILO treaties and
recommendations. As a result, the National Industrial Court may use the
convention's provisions as international best practices to fill actual vacuum
where local laws and practices are silent or missing on the issue covered in a
specific convention. After that, lawmakers could suggest new regulations or
make changes to current ones to make them consistent with global best
practices.28

26
NAAPE718 (Justice Kanyip) http://www.judgement.nicn.gov.ng
27
M Kirby “International Law: The Impact on National Constitutions” *2006+ 21(3) American
University Law Review 327-364
28
W Sandholtz How Domestic Courts Use International Law” *2015+ 38(2) Fordham International
Law Journal 579-599, 595
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In Maduka v. Microsoft Nigeria Ltd & Ors29 the applicant alleged that the 3rd
respondent had consistently and sexually harassed her by tickling her on
the waist and fondling her body in spite of her clear objections. The
National Industrial Court said there is currently no provision in Nigerian
labour law regarding sexual harassment in the workplace, save the
constitutional provisions giving the court jurisdiction in such cases. The
applicant's attorneys also received praise for their use of international law,
treaties, and best practices throughout the proceedings.30
To interpret the applicant's fundamental rights expressly guaranteed in
the 1999 Constitution as amended, which embodies the concept of
freedom from discrimination and the right to dignity, the Court relied on
international conventions, specifically the United Nations Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW)
and the International Labour Organization Discrimination (Employment
and Occupation) Convention 1958 (No. 111).
Second, while interpreting domestic laws, including those that define the
extent of rights, international labour standards may be considered. This is
on the basis that the law would not be interpreted in a manner that would
cause the country to break its international commitments.31
In Attorney-General of Enugu State v. National Association of Government
General Medical and Dental Practitioners (NAGGMDP)32 the National
Industrial Court stated that the concept of essential services has not been
espoused under Nigerian labour jurisprudence beyond the statutory
provisions on it.33Therefore, the Court embraced the ILO Committee of
Experts' definition of essential services as "[services] the interruption of
which would jeopardize life, personal safety, or health of the whole or
part of the population," citing with approval the work of Gernigon, Odero
and Guido.’34
The provisions of the Trade Unions Act, the Trade Disputes Act, and the
Trade Disputes (Essential Services) Act were interpreted by the National
Industrial Court inine with ILO Conventions and jurisprudence. The
29
Maduka v. Microsoft Nigeria Ltd &Ors2014 41 NLLR (Pt. 125) 67 (hereinafter the Maduka case)
http://www.judgement.nicn.gov.ng
30
Maduka 139 (Justice Obaseki-Osaghae)
31
Brownlie Principles of Public International Law 50.
32
Attorney-General of Enugu State v. National Association of Government General Medical and
Dental Practitioners2014 NLLR (Pt. 153) 427 (hereinafter the NAGGMDP case)
33
NAGGMDP 467 (Justice Kanyip).
34
B Gernigon and Others, “ILO Principles Concerning the Right to Strike” *1998+ 137(4)
International Labour Review 441-481
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Court used the ILO Conventions and case law on the right to strike and
determined that only the defendant unions' air traffic controllers fall
within the category of individuals engaged in essential services, where the
right to strike might be severely curtailed or even forbidden.35
Thirdly, international labour standards might be a direct source of
legislation for the formation of judicial principles. This is feasible in
monist jurisdictions since treaties in such jurisdictions have immediate
effect, are automatically integrated into domestic law, and/or are self-
executing. Treaties would be used by courts in such circumstances just
like any other piece of applicable legislation. However, courts in dualist
governments still look to international law and precedent when deciding
how to implement constitutional protections for minority groups.
Invoking ILO conventions as a direct source of law alongside domestic
law for the formulation of judicial principles is now possible because of
the incorporation of monist features in section 254C (1) and (2) of the
Constitution, as amended. Courts in Nigeria have sometimes looked to
international law principles to help them give effect to rights granted by
the Constitution even before the Third Alteration Act of 2010 was enacted.
The Court of Appeal in the case of Moujekwu & Ors v. Ejikeme & Ors36
relied on CEDAW, which had not been domesticated in Nigeria, to declare
as repugnant a custom known as 'Nrachi' that prevents a daughter, in this
case Virginia, on whom it is not been performed from inheriting her
father's real estate. It's a tradition that encourages prostitution and allows
a father to keep a daughter at home, unwed and childless, so that he
might have sons to follow him. Niki-Tobi JCA said:
By the application of the custom, Virginia was subjected to
disabilities or restrictions which the provision of section 42(1) of
the Constitution forbids. The above apart, Virginia has protection
under Article 2 of the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW). By the Article,
States Parties condemn discrimination against women in all its
form and agree to pursue a policy of eliminating discrimination
against women....In view of the fact that Nigeria is a party to the
Convention, courts of law have to give or provide teeth to its
provisions. 37

35
NAAPE 726.
36
Moujekwu & Ors v. Ejikeme & Ors [2000] 5 NWLR (Pt. 657) 402 (hereinafter the Moujekwe
case).
37
Moujekwe 436 (Niki-Tobi JCA).
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Conclusion
Conventions, treaties and protocols issued by international and regional
organizations, such as the International Labour Organization and the
African Union, of which Nigeria is an active member, provide the basis for
international labour standards. They serve as valuable tools for
influencing the development of domestic labour and industrial relations
legislation and policy. If domestic law is silent or nonexistent on a certain
subject, international law might be invoked by courts to fill the vacuum.
Additionally, courts might utilize them to help interpret legislative
requirements. In addition, courts may utilize them to implement protected
rights guaranteed by the Bill of Rights and other constitutional
provisions.38
According to the 1999 Constitution, the National Assembly must approve
any international convention, treaty or protocol before it may be
considered applicable in Nigeria. The courts in Nigeria would be unable
to apply the terms of any international convention, treaty or protocol
unless and until it is ratified by the government.
Even if not domesticated as an Act of the National Assembly, the National
Industrial Court has authority under the Third Alteration Act of 2010 to
apply conventions, treaties or protocols on labour industrial relations
matters that Nigeria has ratified. Because of this, international labour
standards may be interpreted and used by the National Industrial Court
to settle labour disputes. The consequence is that treaties, conventions and
protocols that have nothing to do with labour may still be interpreted
according to the dualist theory, while those that do can be interpreted
according to the monist theory. As a result, Nigeria is now a dualist nation
with monist underpinnings, much like South Africa.

38
Thomas, Oelz and Beaudonnet 281.
326