COMPARATIVE STUDY OF DRAFTING STYLES OF THE UNITED NATIONS (UN) AND EUROPEAN UNION (EU)
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- 1-5 Chapters
- Qualitative
- Library / Doctrinal
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- NGN 3000
Background to the Study
The foundation or idea of comparative study in the legal profession could be traced to two German Lawyers, K Zweigert and H Kotz1, where in their works on comparative law they stated that comparative law started in Paris in 1900, the year of Exhibition. They posited that a country could adopt a foreign law if it is useful as only a fool would refuse the quinine just because it did not grow in his back garden. The two German Lawyers thereafter formulated the “Principle of Functionality” that postulates that, once a foreign law is functional, another jurisdiction may adapt/adopt the said foreign law. However, Nicole and Scaffardi2 on their part categorised comparative study of law practice into three jurisdictions.
The first category are those jurisdictions where the modalities of the use of foreign law in the field of the legislative process tend to assure the use of strict sensu of the concept of “transplant”. These jurisdictions transplant the foreign law of a country into theirs after an a priori evaluation by the national legislators, who must have ascertained the appropriateness and the legal coherence of the foreign law for the recipient legal system. Example of countries that practice this is the Peoples’ Republic of China.
Thus, the importance of comparative law to legislative drafting cannot be over emphasized. This is due largely to the fact that there is no individual or group that has monopoly of knowledge of legislation. This interdependence of knowledge extends to the realm of legislative drafting. However, this research will focus more on the comparison of the drafting styles of the United Nations (UN) and European Union (EU) and avoid dwelling extensively on comparative law, since these organisations have no full legal regimes like those of a country like Nigeria or UK. Though the UN and EU make treaties, rules and regulations for their members, the study seeks to compare the drafting styles of the treaties, rules and regulations of the organisations, who have in recent times transmogrified into law making institution due to the instrumentality of the, UN Charter 19454, Vienna Convention on the Law of Treaties, 19695(VCLT) and EU Legislations.
Legislation by its nature has been described as the process of making law and has been aptly captured by Crabbe when he said “Governments need legislation to govern. The governed need well drafted, readable and understandable legislation.”6 Legislative drafting on the other hand is the art of communicating the language of the law to the people.7 Accordingly, this study considered the concepts of legislation, legislative drafting and styles and relates same to its adaptation by the identified international organisations. Therefore, the subjects of comparison are: nomenclature, drafting personnel, scrutiny, structure among others.
Statement of the Research Problem
The main problem of the research therefore, is dearth of literature on drafting styles of the UN and EU. The study seems to be a new area of law. However, since the study is anchored on two important areas of law, i.e. comparative study of law and legislative drafting, the researcher have to make do with extant literature on comparative law, legislative drafting and laws of international institutions respectively. These aspects are integrated into the study, as a discussion on one without the other will create gaps. The researcher however, observed further that in drawing lessons from the study to Nigeria on the drafting styles of the organisations, since the discussion did not concern the country, there is problem of adaptation. This is because, experiences have shown that Nigeria hardly draws lessons from foreign laws but adopt them without considering the implication. For example, the Child Rights Act, 2003 which was copied from the 1989 UN Convention on the Rights of the Child, contains provision on compulsory vacation for children by parents. However, this is not practicable in Nigeria due to economic and socio-cultural reasons. Though an international convention binding on member States including Nigeria, a good drafter must be wary of including this circumstance as a provision in the said law. Additionally, in the course the research, ordinarily the researcher would have preferred physical visits to UN and EU Headquarters where the drafting Offices are located for interviews with stakeholders, but this was nearly impossible due to time factor and lack of adequate resources to achieve same considering that majority of these offices are not located in Nigeria. The researcher therefore blends the doctrinal research methodology of sourcing information and data from other non-literal sources by accessing the websites of the organisations.
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