By AKIN OYEBODE
Prof. Akin Oyebode, Ph.D is a former Dean, Faculty of Law, University of Lagos (UNILAG).
He delivered a paper titled, “Applicability of International Treaties to Nigerian Laws” at the just concluded 15th Maritime Seminar for Judges in Abuja. Read on:
Introduction
At a time when the US under President Donald Trump seems to have dealt a devastating blow on the pacta sunt servanda maxim by unilaterally and unceremoniously withdrawing from different binding treaties such as the Paris Climate Accord, 2016, the Iran Nuclear Treaty, 2015, the Trans-Pacific Partnership Treaty, 2016 and now threatening to jettison the North American Free Trade Act, 1994, some might be at a loss as to why we in Nigeria seem to be extolling and putting great stock on the import or applicability of treaties to the Nigerian legal order. However, this should not really raise any eyebrows since Nigeria perceives itself as a critical international role actor and impactful subject of international law which, to all intents and purposes, suggests that the country intends to be seen as a reliable and responsible member of the international community.
In the maze of relations between States, it is self-evident that the obligation to abide by the stipulations of treaties by parties remains the bulwark of global stability and international peace and security. Without fidelity of States to freely assumed international obligations, the world could quite easily be thrown into the vortex of instability, disorder, if not outright conflagration. Accordingly, it is self-evident that the sanctity of treaties remains the bastion of international legality.
It is against this backdrop that Nigeria’s treaty law and practice has to be interrogated. To the extent that Nigeria treasures its role as a subject of international law, to that extent should its treaty-making and treaty implementation warrant scholarly review and evaluation. Indeed if majority of 2
States would take their obligation to honour treaties seriously, the threats posed to international peace and security would be so much circumscribed.
This presentation would, therefore, begin by considering some theoretical issues emanating from the inter-relationship between international law and municipal law before highlighting the duty to carry out treaty obligations faithfully and stipulations thereto as reflected in the Nigerian Constitution and laws. Finally, it is intended to dilate on Nigeria’s treaty implementation practice with a view to unraveling the impact of treaties on Nigerian domestic law. However, it seems apposite to begin by examining the inter-relationship between international law and municipal law generally.
International Law and Municipal Law: Some Theoretical Considerations
The relationship between international law and municipal law forms the basis of understanding the application of international law norms within the domestic legal order. Two approaches—dualism and monism—capture the framework for coming to grips with the issue. The dualist approach was first formulated way back in 1899 by Hendrich Triepel.1 In his view, international law and municipal law constitute two distinct and separate legal categories operating along parallel lines, possessing different subjects, different subject-matters or objects of regulation and different scopes or spheres of operation. Accordingly, international law and municipal law never intersect such that the norms of one legal order are clearly distinctive, separate and inherently distinguishable from norms of the other and can interact only by way of adoption or incorporation.
In reality, however, the norms of both legal orders do interact and intersect and sometimes conflict with one another, thereby necessitating the postulation of other theories that can harmonize norms of both legal orders. The leading lights in the effort to reconcile both systems include Sir Hersch Lauterpacht2 and Sir Gerald Fitzmaurice3, using human rights as a basis of harmonization and co-ordination 3
such that each can function within its own sphere without obviating the possibility of joint application and collaboration if and when the need arises.
However, the most comprehensive effort to bring international law and municipal law together under a scheme was undertaken by Hans Kelsen, the so-called father of monism. In his perspective, arising out of Kantian transcendental idealism, norms of both orders should be integrated in a single, unified monist system such that they are to be seen as existing in a continuum within which some are higher or lower, depending on their location within the hierarchy of norms. Furthermore, since a norm stipulates an act backed by sanction, it is not altogether important whether a norm is consigned to the international or municipal sphere. The welter of norms, therefore, encompasses both the international and municipal orders such that higher or lower norms create, authorize or legitimize one another. Thus, at the end of the legal chain, there is a norm of all norms–the grundnorm–which does not require another norm for its existence or validity. In effect, the grundnorm is a meta-legal, extra-legal, a priori juristic pre-supposition which, stricto sensu, does not form part of the system of positive norms but breathes life into it in a manner not dissimilar to the Biblical narration of creation where God animates the clay molded into Man.4
Thus, the grand mystery of Kelsen, as Karl Olivecrona once characterized it, helped to resolve any conflict arising between norms of international law and municipal law. Indeed, the primacy of norms of the international legal order over those of the municipal and vice versa becomes merely academic. However, the atrocities of Nazi Germany which had postulated primacy of municipal law over international law have since rendered untenable any pretensions of according primacy to norms of municipal law over those of international law.5 Furthermore, the constitution being the highest norm within the municipal order is inferior to international law since it cannot be invoked as a justification for flouting international law.6 4
The Duty to Implement Treaties
The duty of parties to faithfully carry out treaty obligations is one of the most hallowed principles of international law. It is enshrined under the maxim, pacta sunt servanda7 and is a norm of jus cogens, that is to say, peremptory norms of international law from which no derogation is permitted and which can only be modified by a norm of similar character8. Without the operation of these maxims, the essence of international law can be effectively called into question. Indeed, it is no exaggeration to aver that the pacta sunt servanda rule is the glue that holds international society together.9
If the world is to be saved from uncertainty, instability and conflagration, parties to treaties must strictly adhere to obligations that they freely assume. Not only would this ensure certainty, stability and predictability in relations between States, prospects for global peace, international security and collaboration among States would be so much enhanced. The sanctity of treaties is a much needed value in today’s world and should be an elixir to most of the crises and conflicts afflicting the international community.
However, it needs be emphasized that the duty to observe treaties is applicable to only valid treaties. Treaties concluded in contravention of the essential conditions of validity10 are outside the purview of the principle. Furthermore, certain incidents can render the maxim inoperative.11 It needs be emphasized that international law merely stipulates the duty to implement treaties, leaving state parties with choice of means and processes for effectuating treaties within their domestic legal order. In other words, the duty to implement treaties arises out of international law while the procedure do so emanates from the countries’ constitutions and laws related thereto. 5
Treaties and the Nigerian Domestic Legal Order
It is apposite to begin by considering the location of treaties within the hierarchy of norms in Nigeria.12 This is because the issue is inseparable from that of the relationship between international law and municipal law generally. Depending on the prevalent theory on the matter, treaties may be located higher or lower than or be at par with the domestic law. Usually, the constitution provides necessary and proper guidelines or specific pronouncements regarding the relationship between international law and Nigerian law. However, not even the 1979 or 1999 Constitutions, both of which went further than their predecessors in many respects made any definitive pronouncement on the matter.13
Accordingly, there seems to be merit in the observation by F. C. Okoye to the effect that “Nigeria like other Commonwealth countries practically inherited the English common law rules governing the municipal application of international law…”14 Therefore, it can be safely assumed that the rules governing the application of treaties in England apply mutatis mutandis in Nigeria. More importantly, treaties do not apply ex priopio vigore but require transformation into Nigerian law before they can take effect domestically.15 Thus, it can be said that in Nigeria, treaties are at par with statutes which bears affinity with the dualist approach.
Treaty Implementation in Nigeria
As stated earlier, international law prescribes the obligation to implement treaties. Beyond that international law does not go. The ways and means of discharging that obligation is a matter of domestic jurisdiction. More often than not, the constitution indicates how treaties are to be implemented domestically. 6
However, treaty implementation in a federation is, very often, encumbered by problems arising from the division of powers between the federal government and constituent units. Unlike a unitary state where the government which concludes the treaty is also the one which sees to its implementation, in a federation, performance of treaties frequently requires co-operation between both levels of government, federal and state, despite the well-established prerogative of the federal government in foreign relations generally.16
It is worthy of note that division of powers within a federation varies from federation to federation. In some federations, legislative power over specific items may be consigned to the federal government, leaving the residue in the hands of the constituent units. Alternatively, specific items are assigned to the constituent units, with the residuary power vested in the federal government. Finally, it is quite possible to have a combination of both approaches such that items falling within the competence of the two levels are separately enumerated, with the understanding that whatever is omitted can be legitimately acted upon by the federal government in consonance with the doctrine of covering the field.
However, regarding the question of division of powers and treaty implementation, federal constitutions can be classified into two groups. The first group comprises federations under whose constitutions the federal legislature is empowered to enact laws pursuant to implementation of treaties or which provide that, in certain circumstances, a treaty once made, could have the force of law throughout the federation, even if, in the absence of such a treaty, the subject-matter of the treaty would normally have been reserved for the constituent units.
The second category include those federations whose constitutions do not provide for treaties to automatically become law of the land or allow the federal legislature to alter the distribution of powers enshrined in the constitution by way of treaty implementation. 7
The constitutions of the United States, Australia, India and Malaysia are considered as belonging to the first group while those of Canada and the Federal Republic of Germany lean more towards the second category of both groups.17
Nigeria’s constitutional arrangement and treaty practice combine attributes of both groups. Thus, under Nigeria’s constitutional law and practice, the treaty power has, to all intents and purposes, signified power to implement treaties since the country had never had specific and explicit constitutional provisions regarding treaty-making. However, it is necessary to bear in mind that if treaty-making had generally been reserved to the Federal Government under the various constitutional arrangements which had operated in Nigeria since independence, treaty implementation is an issue which envisaged some role for the constituent units, the only contentious issue being, perhaps, the extent of their role.
It is remarkable that although Nigeria has been spared the cantankerous experience of some other federations which had witnessed political conflict and misgivings over the exclusive exercise of the treaty power by the Federal Government, the country apprehended the wisdom of accommodating its constituent units in as delicate an issue as treaty implementation. Unlike, for example, in Canada, where Quebecois nationalists had found a ready outlet in the foreign arena to ventilate their grievances against Anglophone Canada, local protagonists of the notion of “statism” are yet to discover the foreign arena as a viable forum for the propagation of anti-Abuja sentiments.
Accordingly, Nigeria’s various constitutions have embodied provisions such as is contained in s. 12 of the 1999 Constitution regarding treaty implementation thus:
(1) 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.
(2) The National Assembly may make laws for the Federation or any
part thereof with respect to matters not included in the Exclusive 8
Legislative List for the purpose of implementing a treaty.
(3) A bill for an Act of the National Assembly passed pursuant to the
provisions of subsection (2) of this section shall not be presented
to the President for assent, and shall not be enacted unless it is
ratified by a majority of all the Houses of Assembly in the Federation.
However, it is worthy of note that in line with the Treaties (Making Procedure, Etc) Act, 1993, not every treaty concluded by Nigeria warrants implementation by way of enabling legislation. Only those which, one way or another, affect existing legislation or the legislative powers of the National Assembly require implementation by way of legislative action. Accordingly, treaties which impose financial, political and social costs or which are strictly of a scientific or technological nature require legislation for their implementation while mutual exchange or cultural agreements generally do not necessarily have to be implemented via legislation.
In today’s world, there is a growing tendency among countries to adopt less formal methods of treaty implementation, especially with regard to so-called agreements in simplified form which usually become operative upon signature. While current Nigerian legislation does not make a distinction between treaties and agreements, it seems safe to assume that Nigerian state practice would still continue to reserve the term “treaty” for more solemn engagements which, more often than not, are multilateral in form, needing to be laid before the National Assembly for their implementation domestically, as against those that are usually bilateral in nature and envisaging executive rather than legislative action for their implementation.
It needs be emphasized that the loose use in many quarters of the term “ratification” in relation to actions taken pursuant to treaty implementation blurs the distinction between ratification and legislative approval. For the avoidance of doubt, ratification is an executive act communicating to other state parties of a country’s intention to be bound by the treaty and usually ensues following legislative approval by way of an enabling legislation transforming the treaty into domestic law, thereby opening the door for its implementation. 9
It must be stated that Nigeria has had a chequered history as far as its treaty implementation is concerned. While upon independence, Nigeria had acceded to a number of existing multilateral treaties, it, nevertheless, had to enact laws to bring them to force domestically in consonance with the country’s Independence Constitution. These included the Chicago Convention on International Civil Aviation, 1944, the Berne Copyright Convention, 1952 and the International Convention for the Prevention of Pollution of the Sea by Oil of 1954.
Furthermore, the somewhat unimaginative acceptance by the Prime Minister of post-independence Nigeria of all the treaties concluded by Britain during the colonial era and pertaining, one way or another, to Nigeria thereby saddled a considerable amount of treaty obligations for which the country was compelled to take action pursuant to their implementation.
With regard to timing and method of treaty implementation, it is difficult to establish any discernable pattern. For example, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1965, which, by the way, Nigeria became the very first party to ratify, was speedily implemented through the International Centre for the Settlement of Investment Disputes (Enforcement of Awards) Decree No. 49 of 1967. On the other hand, the Convention Relating to the Status of Refugees of 1951 and its Protocol, both of which Nigeria had acceded to in 1967 and 1968, respectively were left unattended for a long time before being implemented through administrative action rather than explicit legislative enactment.
Similarly, a treaty as important as the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 was signed by Nigeria in April, 1984 with the instruments of ratification deposited with the UN Secretary-General as far back as June 13, 1985, but is yet to be transformed into domestic law by way of an enabling legislation, perhaps on account of the reluctance of the powers-that-be to place Nigerian women at par with women elsewhere in compliance with international law. Interestingly, Nigerian children are somewhat luckier in that the Child Rights Act was passed in 2003, pursuant to the UN Convention on the Rights of the Child, 1989, even if exigencies of socio-cultural 10
idiosyncracies seem to have continued to hamstring the full implementation of the Convention.
It is instructive that the 1982 Convention Establishing the West African Examinations Council (W.A.E.C.) provided that Member States should, as soon as the Convention enters into force “enact laws in accordance with their legislative processes incorporating (sic) into their respective laws the provisions of [the] Convention.” In addition, the Convention declared that “[s]uch laws incorporated (sic)…shall, without prejudice to existing laws such as those dealing with forgery, fraud and kindred offences against malpractices in examinations and relating to awards of certificates and diplomas for examinations conducted by the Council…” However, following Nigeria’s ratification of the Convention in 1984, there is no record of enactment of a specific law transforming it into Nigerian law. Rather, what we have is the Miscellaneous Offences, Decree No. 20 of 1984 which encompassed a wide spectrum of offences among which are examination malpractices which formed part of the subject-matter of the WAEC Convention.
As far as charters of international organizations are concerned, it should be pointed out that accession to the constituent instruments or charters of international organizations has usually been effected by way of executive action as against legislation, more so as obligations arising from membership in such organizations envisage performance abroad. For instance, Nigeria’s admission into membership of the United Nations on October 7, 1960 was effected through the simple act of the Prime Minister appending his signature to the UN Charter.
Nevertheless, it is worthy of note that serious problems could ensue if the charter of an international organization is signed by someone else apart from the President, Minister of Foreign Affairs or the Ambassador accredited to the country where the headquarters of the organization is located. This is because in consonance with international law and Nigeria’s state practice, such a signature would be a signature ad referendum which, if subsequently, it fails to secure confirmation or approval by a higher authority, would put in serious jeopardy Nigeria’s membership of the organization. The same situation would arise if the charter of the organization is at variance with Nigeria’s Constitution and laws. 11
This would bring into bold relief the controversy surrounding Nigeria’s admission into membership of the Organization of Islamic Conference (O.I.C.) in February, 1986 which was occasioned by feelings in certain quarters that the charter of the O.I.C. was incompatible with Nigeria’s secular status as stipulated under the Constitution.
With regard to treaties concluded under the auspices of international organizations, implementation of such treaties is usually in accordance with their provisions or in conformity with the established procedure for treaty implementation. Accordingly, ILO Conventions, AU Conventions, the ECOWAS Treaty and Protocols and similar engagements arising from Nigeria’s membership of international organizations generally are implemented either through enabling legislation or administrative action, as the case may be.
The distinction between treaties and agreements now having become largely academic in consequence of the Treaties (Making Procedure) Etc. Act of 1993, it should be emphasized that implementation of agreements in Nigeria is currently effected regardless of form, whether concluded by “High Contracting Parties” or “Heads of State.” If there is the necessity for ratification, that can be done by the Minister of Foreign Affairs, on behalf of the Federal Government within the period specified in the agreement. This is usually done by way of exchange of notes between Nigeria and the other party as was done in relation to the series of visa abolition agreements between Nigeria and Cameroon, Chad, Dahomey (Benin), Ivory Coast (Cote d’Ivoire), Morocco, Niger and Togo in the 1960’s.
Similarly, Nigeria’s extradition agreements such as those with Liberia, the US and the quadripartite West African agreement call for implementation by administrative action as envisaged under the Extradition Decree No. 87 of 1966. It would, otherwise have been quite unwieldy to enact separate laws for the implementation of each and every new extradition agreement concluded by Nigeria.
A notable feature of Nigeria’s treaty practice is resort to economic, scientific and technical co-operation agreements. Just as their conclusion is usually under the auspices of the Federal Ministry of National Planning, agreements on economic, 12
scientific and technical co-operation are generally implemented through the instrumentality or general supervision of the ministry.
However, the procedure for the implementation of these agreements varies in accordance with the subject-matter and terms of each agreement. Thus, a particular agreement might envisage implementation through execution of separate programmes, subsidiary agreements or contracts by competent authorities or bodies designated by the agreement. In such cases, the Federal Ministry of National Planning is usually designated the appropriate organ to ensure the implementation of the agreement and other matters related thereto. However, this does not exclude the possibility of designating another ministry, department or agency to act in lieu of the Ministry of National Planning, depending on the subject-matter of the agreement and surrounding circumstances.
Another important development in relation to these agreements is the use of joint commissions in the implementation of economic, scientific and technical co-operation agreements. Accordingly, joint commissions comprising representatives of Nigeria and the other party have been established with the intention of performing a wide range of functions, including but not limited to the following:
(I) promotion and co-ordination of the economic and industrial
co-operation between the two Contracting Parties;
(ii) consideration of proposals aimed at effective implementation
of agreements; and
(II) working out of proposals for removing obstacles for removing
obstacles arising during execution of projects established under
on-going agreements.
Today, Nigeria has more than seventy joint commissions and regularly holds every other year, hosted in each party’s capital city, with the Nigeria-Niger Joint Commission even having a permanent headquarters located in Niamey.
As far as other agreements go, particularly, those dealing with trade, education or cultural exchange, the practice is for the Ministry of Foreign Affairs to act in liaison 13
with the respective ministry, department or agency at whose initiative the agreement was concluded in ensuring its implementation. This is usually done by way of protocols based on existing agreements. The expanding role of the Federal Ministry of Justice in treaty matters, hopefully, would not result in diminishing the role of the Ministry of Foreign Affairs in this endeavour.
Transformation of Treaties into Nigerian Law
As stated previously, while international law enjoins States to faithfully implement treaties, the methods of their implementation are matters consigned to domestic law.18However, it is necessary to distinguish implementation of treaties from their entry into force.19
The approach toward treaty implementation varies from State to State. Under the US Constitution, for example, treaties form part of the laws.20 However, US practice has evinced a distinction between “self-executing” treaties and “non-self-executing” treaties. While certain treaties ostensibly automatically part of US laws, ex priopio vigore, non-self-executing agreements require enabling statutes before they can operate within the domestic sphere and, therefore, become applicable in the courts.21It is important to observe that though both the President and the Senate are empowered under the Constitution to conclude and implement treaties, such treaties would only be considered as law if they are not in violation of other constitutional provisions, especially the “Federal Clause”, which limits the Federal Government in the implementation of treaties affecting matters specifically reserved to the states.22
In comparison with previous constitutions, both the 1979 and 1999 Constitutions had made considerable improvement with regard to implementation of treaties by 14
declaring that a treaty between Nigeria and another country shall not have force of law except the treaty has been transformed into Nigeria’s domestic law by way of an enactment by the National Assembly.
The import of this provision is that the implementation of all treaties by Nigeria would henceforth require enabling legislation. However, it should be quickly pointed out that this would not affect treaties concluded before the Constitution would go into force.23 Thus, while it appears that the extant Constitution does not make a distinction between political and ‘self-executing’ treaties in the American tradition, it envisages a procedure for ratifying only treaties concluded with respect to matters outside the Exclusive Legislative List and ‘ratification’ as used in the Constitution refers to approval by the State Assemblies and not ratification in the strict sense. Besides, the possibility of the Federal Government being unable to apply a treaty on account of an uncooperative state Governor now appears remote as the Federal Government no longer need rely on the consent of an affected state or some functionary of that state since “[it] can proceed to fulfill its international obligations respecting a treaty if the majority of the state …Assemblies within the Federation ratifies that action of the National Assembly thereto.”24
With the prominence given to the doctrine of transformation under the Constitution, perhaps an end has now been put to the speculation that the interests can be better served by the doctrine of incorporation.25Aside from this, it is suggested that in consonance with the Constitution, resort can be had to the lex posterior derogat legi priori rule to resolve conflicts arising between treaties and municipal law even if this occasions deleterious consequences for Nigeria’s reputation internationally as a committed party to fidelity to the sanctity of treaties. 15
Application of Treaties by Statutes
The first thing to say in respect of enabling statutes in the application of treaties is that it is the statute enacted to implement a treaty that normally serves as a source of law and not the treatyper se. Accordingly, the method of transformation adopted by the treaty-implementing statute could play a decisive role in the way and manner in which the treaty is going to be applied by the courts. Now, there are, broadly speaking, two methods of transforming treaties into domestic law—by re-enactment and by reference.
Transformation by re-enactment, otherwise known as the “force of law” technique is adopted when the implementing statute enacts specific provisions or the entire treaty usually in the form of a schedule attached to the statute. The advantage of this method is that it enables the courts to confront the treaty itself, albeit in the form of an enabling statute, thereby reducing the likelihood of their being hamstrung in the process of interpreting or otherwise applying the treaty by the so-called ambiguity rule as well as other restrictive or exclusionary common law rules of statutory interpretation.
On the other hand, the implementing statute can transform the treaty into the domestic law merely by reference either eo nomine or generally. Sometimes, also, references to a treaty could be contained either in the long and short titles of the statute or in the preamble or schedules. The main question raised by this method concerns whether or not, and to what extent courts can depart from the text of the implementing statute in case of ambiguity or mistake in its wording.
It is also possible for a statute to employ its own substantive provisions to effectuate a treaty whose text it has not directly enacted. Although such a statute stricto sensu does not appear to be an implementing enactment, it can be considered such if a comparison of its text and that of the statute combined with its legislative history or other extrinsic evidence would reveal whether its purpose is to implement the treaty or give it legal effect domestically. Indeed English courts are known not only to have shown a readiness to treat such statutes as 16
implementing legislation but also had recourse to the selfsame treaties which they are deemed to implement by way of extrinsic aids toward their implementation.26
It needs be emphasized that the judicial function in relation to treaties differs little from general adjudication. Courts, especially superior courts of record, state High Courts, the Federal High Court, the Court of Appeal and the Supreme Court are empowered to adjudicate in “all matters between persons or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” Accordingly, only the courts enumerated above can deliberate and issue binding decisions in respect of treaties where and when such treaties constitute the basis of claims or otherwise engender consequences within the domestic legal order.
Under the Constitution, the High Courts enjoy unlimited jurisdiction over “any criminal activity, privilege, interest, obligation or claim…and…any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.” Thus, matters having their origin in treaties would normally fall for determination, in the first instance, by the High Courts before undergoing judicial review, if need be, at the appellate level. However, this is without prejudice to the original jurisdiction of the Supreme Court in matters concerning treaties if the dispute is one between the Federal Government and a state or between the states inter se.
With regard to the jurisdiction of the courts in respect of treaties, the problems which could arise after treaties have been transformed into domestic law are varied and complex. They include the scope of the treaty both in time and space, consistency of the treaty with existing law as well as the legality of any actions taken, whether administrative or otherwise, pursuant to the implementation of the treaty. 17
In other words, numerous issues could arise concerning the extent to which treaties can be considered as norm-creating within the legal order. More often than not, the resolution of most of these questions would depend on the prescription by the Constitution on the relationship that should subsist between international law and municipal law and, arising from that, the status to be accorded treaties vis-à-vis other normative acts within the legal order. Where, as in Nigeria, there is no explicit constitutional pronouncement on the questions raised, it would be useful to adumbrate some judicial decisions from which extrapolations can be made regarding application of treaties within the Nigerian legal order.
Nigeria’s Treaties through the Cases
In spite of the fact that the Constitution is silent on the relationship between international law and Nigerian law and especially the location of treaties within the hierarchy of sources, Nigerian courts have striven to come to grips with cases involving treaties albeit without dilating on doctrinal issues arising from such cases.
In Alfred C. Toepfer Inc. of New York v. John Edokpolor,27one of the earliest reported cases in Nigeria on the application of treaties, the Supreme Court held that a suit brought upon a foreign award ought not to be struck out merely on the ground that there was no treaty regarding reciprocal enforcement of judgments between Nigeria and the US. Also, in The Swiss Air Transport Co. Ltd. v. The African Continental Bank, 28 the issue in contention was the application in Nigeria of the Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, 1929, commonly known as “The Warsaw Convention.” The respondent bank had commenced proceedings at the Lagos High Court against the appellant for a refund of 13,000 Sudanese pounds for which it had contracted with the appellant to transport from Geneva to Kano but which had got lost in transit. Counsel for the appellant had raised a preliminary objection to the jurisdiction of the lower court, arguing that in accordance with Art. 28 of the Warsaw Convention, the court which ought to exercise jurisdiction in the case was a court located at the destination of the journey, that is to say, Kano and not Lagos. The Supreme Court
held that the applicable law in the matter was not just the contract between the parties but in reality the Warsaw Convention. Accordingly, it overturned the decision of the lower court overruling the applicant’s objection to the court’s ruling and remitted the case back for re-trial.
While the Supreme Court’s decision in respect of the interpretation of the phrase “place of destination” as used under the Warsaw Convention was indeed sound, it is regrettable that the Court did not consider it necessary to pay attention to the question of the basis of application of the Convention itself. By glibly accepting the argument that the Convention had become binding on Nigeria as a result of the Carriage by Air (Parties to Convention) Order of 1958, the Court missed an opportunity of advancing Nigeria’s legal development through addressing the issue of succession by Nigeria to the various treaties concluded by the British during the colonial era.
On yet another occasion when the Supreme Court could have made pronouncements regarding application of treaties domestically as well as related matters, it chose to be reticent and non-committal. One is here referring to the case of Ishola-Noah v. The British High Commissioner.29In that case, an aggrieved citizen had sued the head of a diplomatic mission accredited to Nigeria on account of being denied an entry visa to Britain. As is well-known, diplomats are immune under the Vienna Convention on Diplomatic Relations, 1961 from vexatious suits such as the one instituted in the case. However, the Court chose to summarily dismiss the case for want of jurisdiction instead of handing down a robust judgment which could have expatiated on the nature of diplomatic immunity generally, Nigerian state practice on the matter and the position of treaties within the hierarchy of sources, etc.
It needs be admitted that Nigerian judges and lawyers are not altogether enamoured of international law. Where and when they could have made heavy weather of the international legal ramifications of matters in dispute, they usually skirt round such and seek refuge in the portals of municipal law. Nevertheless, the ratification and transformation of the African Charter on Human and Peoples’ 19
Rights would seem to have finally ignited the interest and awareness of our judicial officers and legal practitioners generally in treaties and other areas of international law .
This laudable development can be said to have become noticeable in the landmark case of Muhammed Garuba and Ors. v, Lagos State Attorney- General30, where Femi Falana successfully invoked provisions of the African Charter against the Robbery and Firearms Decree and rescued fourteen teenage accused robbers from execution by the firing squad. The trend to invoke the African Charter against arbitrariness, injustice and disregard for due process of law is now deeply ingrained in the nation’s legal consciousness such that the Constitutional Rights Project was able to save Gen. Zamani Lekwot from the hangman’s noose31. Regrettably, this feat could not be replicated in the matter of Ken Saro-Wiwa and his Ogoni kinsmen owing to the implacable and draconian mien of the Abacha junta.
Today, there exists a plethora of cases where the African Charter has been applied against executive lawlessness and impunity of public officials. From the case of Oshevire v .British Caledonian Airways Ltd.,32 Olisa Agbakoba v. Director, SSS33 to the locus classicus of Fawehinmi v. Abacha,34 Ogugu and Ors. v. The State,35 Ibidapo v. Lufthansa Airlines,36 Trustees of National Association of Community Health Practitioners of Nigeria v. Medical and Health Workers Union of Nigeria and Ors.,37 indeed hardly does any human rights matter is litigated without pegging it on the African Charter. Accordingly, it is no exaggeration to aver that we are living in the golden age of treaties where treaties have become a reality in Nigerian law.
Conclusion 20
The critical role played by treaties in international life warrants attention to the matter in contemporary times. However, it is necessary to bear in mind that treaties are not concluded for fun but in order that the consensus of parties thereto is realized. This is why the duty of States to carry out their freely assumed obligations constitutes the very basis of relations between and among States and other subjects of international law.
While parties to treaties are enjoined by international law to carry out faithfully their treaty obligations, they are left with the choice of means of ensuring implementation. In Nigeria, despite the lacuna in its basic law on the relationship between international law and Nigerian law, the country’s treaty law and practice evince clear fidelity to international law and especially, the pacta sunt servanda principle. The implication of this is that ministries, departments and agencies should not balk at doing the needful to realize the country’s international legal obligations.
As a key player on the continent and main financier and motivator of ECOWAS, Nigeria should leave nothing to chance in the task of dutifully carrying out its treaty obligations. Only thus can the country be able to sustain the support and understanding of the international community as a reliable and effective partner in the maintenance of international peace and security.
