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Implementation of Treaties in Nigeria and the Status Question: Whither Nigerian Courts?

Document Cited authorities 7 Cited in Related
Vincent
Date01 September 2009
Pages326-341
AuthorA. O. Enabulele
DOI10.3366/E0954889009000425
Published date01 September 2009
INTRODUCTION

No doubt countries which are geographically far apart are becoming increasingly interconnected and interdependent; sovereign privacy is gradually being obliterated as the high walls of nationalism continue to give way to internationalism: events which up to the middle of the twentieth century, were private and internal to the sovereign, are now the focus of international action. This result is the product of the unity created by both bilateral and multilateral treaties geared towards the common good of the international community. Indeed, more than ever before, treaties are playing fundamental roles in both the internal governance and the external relations of sovereign states. As a consequence, matters, which hitherto were the exclusive preserve of municipal law are now covered by treaties, which in the words of Abram and Antonio Chayes, ‘are formally among states, and the obligations are cast as state obligations … the real object of the treaty … is not to affect state behaviour but to regulate the activities of individuals and private entities’.1

A. Chayes & A. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, (1995): 14, cited in J. C. Yoo, ‘Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding’, 99 Colum. L. Rev. (1999): 1956, 1958. (Hereinafter, Yoo, Globalism).

Accordingly, one cannot but agree with John C. Yoo that

Relationships and problems which were once domestic, such as economics and environment have become international in scope. Events abroad … affect domestic markets and institutions in a more profound manner than in the past. Efforts to regulate domestic problems need to address international affairs in order to be comprehensive and effective. Correspondingly, policy solutions have come to rely upon new types of international agreements that include multiple parties, that create independent international organisations, and that pierce the veil of the nation-state and seek to regulate individual private conduct. While perhaps necessary to meet international goals, these novel arrangements and institutions create difficulties because they intrude into what was once controlled by the domestic political and legal system.2

ibid at p. 1968.

 Indeed international law is venturing more profoundly into municipal arena like an ‘incoming tide flowing up the estuaries and up the rivers’.3

Lord Denning in H.P. Bulmer Ltd v. Bollinger S.A (1974) 2 ALL E.R 1226, 1231. Also see Shield v. E Coomes (Holdings Ltd) (1979) 1 ALL E.R 456,462, where his Lordship took the analogy further noting that the incoming tide of community laws did not stop at the high water marks but had broken the dykes and the banks.

 While this is so, there is the worrisome diversity in the approaches of municipal law towards the municipal application of international law, and this reflects the interplay of forces of internal sovereignty, such as the legislature and the judiciary. The forces are manifested in two ways: (a) the mode of application – whether treaties are self-executing or whether treaties require municipal implementation; (b) the status to be accorded to such implemented treaties – whether applicable treaties are superior to, or on parity with municipal legislations. The first poses little or no difficulty in that the municipal law of each country often states what mode is permissible, and where the law is silent, the prevailing approach could be gathered from the nature of legal system the country operates – common law countries usually adopt dualism while civil law countries are monist inclined

Monism maintains that there is a unity between municipal law and international law in a relationship in which international law is superior. Monism is associated with self executing treaties; this specie of treaties is so named because it is held to be enforceable in the municipal realm, on its own force, without the need of municipal legislations.4

The implication of this is that in countries, where treaties are self-executing, international law is binding upon its terms in the municipal realm of such a country; that is, once the conditions prescribed by the treaty, if any, are fulfilled, the treaty becomes binding and effective in the municipal realm, provided however, that the treaty does not revolt against the reserved sovereign province of the State. In Trans World Airlines Inc. v. Franklin Mint Corp 466 US 243, 252 (1984), the United States Supreme Court defined a self-executing treaty as one for which, ‘no domestic legislation is required to give it the force of law in the United States [the domestic realm]’. For a detailed discussion see C. M. Vazquez. ‘The Four Doctrines of Self Executing Treaties’, 89 AJIL 695, 695; A. E. Evans, ‘Self-Executing Treaties in the United States of America’, 30 Brit. Y.B. Int'l L (1953): 178; J. Paust, ‘Self Executing Treaties’ 82 AJIL (1988): 760. Although that is not within the shade of this paper, it is arguable that no treaty is truly enforceable on its own force in the municipal realm. While there are instances where American courts have relied on the text of a treaty to decide whether it is self-executing or not, we must remember that such exercise was carried out within the context of article VI of the American Constitution – it is merely a circuitous exercise. See Foster & Elam v. Neilson, 27 US 253 (1829) (where the US Supreme Court relied on the text of a treaty between the US and Spain to hold that a grant of land made pursuant to it was not self-executing). The point being made is that the choice of whether a treaty is self executing or not, is for municipal law to decide. See Y. Iwasawa, ‘The Doctrine of Self-Executing Treaties in the United States: A Critical Analysis’, 26 Virginia Journal of International Law (1985–86): 627, 695 (noting that municipal law determines the validity and rank of treaties in domestic law). The contrary view held by Judge Lauterpacht in the Norwegian Loans Case (1957) ICJ Rep 9, 37, suggesting the reverse, pales into insignificance when considered alongside the weight of scholarly opinion and state practice in favour of the former.

Dualism, on the other hand, is premised upon the existence of two different systems of law operating in different fields and to different subjects. Dualism is associated with non-self executing treaties.5

Non-self-executing treaties cannot have the force of law in the municipal realm without the specific approval of municipal law. The implication of this is that, for every treaty intended to have the force of municipal law, a municipal law must be passed to give it effect. For a detailed discussion of the theories, see J.G. Starke, ‘Monism and Dualism in the Theory of International Law’, 17 Brit. Y.B. Int'l L. (1936): 69.

Dualism results from the desire of states to preserve their internal governance and policies from influences dictated from afar on the guise of international law. It preserves the province of the legislature to make laws by prohibiting self-executing treaties, which in effect encroach on the province of the legislature to make laws for the country. In Nigeria for instance, treaties are made by the executive; allowing treaties to be self-executing in the municipal realm, is to give the executive the powers to make laws for the country against the clear division of powers in the con stitution. Aside the opportunity for a calm reflection on the general purpose and spirit of the treaty by the legislature, which does not take part in treaty making in most countries, the process of domestication creates internal awareness for the general principles of the treaty and thus provoke public debate on its suitability or otherwise. Sometimes, countries enter into treaties which conflict with constitutional provisions; when this occurs, dualism creates the opportunity for municipal law to be amended, where necessary, before the treaty is made to have effect municipally rather than having two inconsistent pieces of legislation in force, should such an inconsistent treaty be self-executing. For example, it is expressly provided in article 79 of the Mauritania Constitution, article 97 of the Constitution of Senegal and article 129 of the Constitution of Niger – all of which embrace dualism – that a treaty which contains a clause which is contrary to the constitution shall not be ratified until the constitution is amended or revised

The major problem is with the second – the municipal status of treaties. On this point, there is also no uniformity. In some countries, it is expressly stipulated in the constitution, that treaties trump municipal legislations;6

For instance, of the dualists Constitutions of the Republic of Benin 1990 (articles 146 and 147), Mali 1992 (articles 114 and 116), Mauritania, 1991 (articles 78 and 80), Burkina Faso 1991 (articles 149 and 151), the Republic of Senegal 2001 (articles 96 and 98) and Niger 1999 (Sections 130 and 132) all give primacy to domesticated international law.

in some other countries, the constitution is completely silent. Where the former position is adopted, the matter is settled, but where the latter is adopted, the onus is shifted to the courts to decide whether treaties trump municipal legislations or vice versa whenever there is a conflict between them. Nigeria shares in this diversity.

Having joined the league of democratic society after decades of military dictatorship, the world is looking up to Nigeria to play a leading international role, not only in the West Africa sub-region but also in Africa as a whole, particularly at this time that both the Economic Community of West African States (ECOWAS) and the African Union (AU) are pressing for more integration. The need to reaffirm her status as a responsible member of the international society, places a duty on her to act responsibly by taking her international obligations seriously. Consequently, Nigeria, more than ever before, should...

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