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Trade Integration in a Layered System of International Law

Document Cited authorities 3 Cited in Related
Vincent
Author
DOI10.3366/ajicl.2017.0212
Pages561-578
Date01 November 2017
Published date01 November 2017
INTRODUCTION

The Economic Community of West African States (ECOWAS) was established in 1975 by 15 member states, with regional integration as its underlying development strategy.1 Regional integration is the process by which two or more nation-states agree to work together to achieve common socio-political and economic objectives.2 This cooperation usually begins with economic integration and continues to include political integration. Thus ECOWAS member states affirm that ECOWAS shall ultimately be the sole economic community in the region for the purpose of economic integration.3 Article 3 of the 1993 Revised ECOWAS Treaty (hereinafter referred to as ‘the Revised Treaty’) sets out the aim of the Community as follows:

… to promote co-operation and integration, leading to the establishment of an economic union in West Africa in order to raise the living standards of its peoples, and to maintain and enhance economic stability, foster relations among Member States and contribute to the progress and development of the African Continent.

In order to achieve the afore-stated aim, member states agree among other measures to liberalise trade among themselves, particularly through the elimination of tariff and non-tariff barriers.4 Accordingly, the Revised Treaty envisages the establishment of a common market through the liberalisation of trade by the abolition of both tariff and non-tariff barriers among member states in order to establish a free trade area at the Community level.5

Central to the attainment of the region's integration objectives is the free movement of Community citizens across national boundaries. This was an implicit acknowledgement by the founding fathers of ECOWAS of the fact that when people move from one member state to another, they carry along with them, not just their skills or requisite know-how, but also physical articles of trade. In other words, free movement of persons within the region would necessarily precipitate a like movement of goods and services across the region, thereby enhancing opportunities for market integration and efficiency.6 Accordingly, efforts were made through legal instrumentation to create an enabling environment which would facilitate the free movement of persons within the region.7 Notwithstanding such efforts, the West African regional integration process continues to suffer several setbacks, largely as a result of member states’ failure to comply with their treaty obligations, particularly the obligation to gradually phase out all tariff and non-tariff barriers to trade. For instance, the ECOWAS region was officially declared a free trade area (FTA) as from 1 January 2000, but the continued existence of customs duties on both imports and exports as well as non-tariff barriers, particularly among the English-speaking member states, has rendered the FTA ineffective in practice.8 Even more unfortunate is the fact that member states continue to violate the ECOWAS Protocol on Free Movement9 under several guises and very often placing reliance on the principle of state sovereignty to justify their acts.10 This has indeed created problems of constitutional dimensions as it raises questions on the applicability of ECOWAS law, otherwise referred to as Community law, within the national jurisdictions of member states. What exactly is the status of ECOWAS law vis-à-vis national laws of member states? Can a member state of ECOWAS lawfully renege on its treaty obligation on the basis of its internal (national) law? These are some of the throbbing questions which require answers.

Defining a proper relationship between ECOWAS law and national law is central to the attainment of the region's aspirations of socio-economic and political integration. This article takes the view that a system that recognises regional integration laws and policies as applicable in national jurisdictions rather than subjugating them without fetter under the exercise of state sovereignty is desirable if those aspirations would be achieved.11 This necessarily raises the question of how to delimit the sovereignty of member states without undermining the hallowed principle of state sovereignty in the bid to ensure that ECOWAS law is enforceable in national legal systems. It is instructive to underscore at this point that the ECOWAS Community legal system is a function of the limitation of the sovereignty of member states. This is particularly so, as tacit consent at the least is required of a sovereign state before a ‘foreign’ law can apply or be enforced within its jurisdiction.12 The Revised Treaty accordingly acknowledges that:

… [T]he integration of Member States into a viable regional community may demand the partial and gradual pooling of national sovereignties to the Community within the context of a collective political will.13

A no less important dimension to the conundrum around the applicability of ECOWAS law in national jurisdictions is the extent to which Community citizens can invoke such Community laws in national courts and seek their enforcement.14 In contributing to the extant questions raised above, this article sets out to contextualise ECOWAS law in the Nigerian legal system vis-à-vis its applicability and enforceability in national courts and how such impacts on the regional integration objectives of the region. The article argues that ECOWAS law, being part of international law, does not apply directly in Nigeria being a dualist state, and that the absence of specific acts of ratification in accordance with the Nigerian constitution leaves the ECOWAS treaty and its protocols without legal force in the country, thereby constituting a perpetual risk to the success of the region's integration objectives. Setting the background for the entire discourse, section II of the article briefly reviews the sources of ECOWAS law with a view to underpin their legal character as relevant for the determination of rights of member states under the Revised Treaty. Section III examines the relationship between ECOWAS law (which is part of international law) and the municipal law of member states, whether they are parts of a universal legal order or constitute separate legal orders. Against this backdrop, the section undertakes a comparative scrutiny of constitutional provisions in select member states, relating to the applicability and enforceability of international law within their different jurisdictions. To test the actual situation in practice, that is as far as applicability and enforceability of ECOWAS law in national jurisdictions is concerned, section IV of the article examines the implementation of the Free Movement Protocol by member states in a brief case study and also discusses issues bordering on a Community citizen's right to approach the ECOWAS Court of Justice. Section V sums up the article position and underscores the point that to achieve its integration objectives, the ECOWAS member states will need to put in place a system that recognises Community laws as directly applicable in national jurisdiction and in such a manner that does not undermine the sovereignty of member states SOURCES OF ECOWAS LAW

Article 19(1) of the Protocol Establishing the ECOWAS Court of Justice15 empowers the court to examine disputes in accordance with the Treaty and the Court's rules of procedure, and by application of the body of laws contained in Article 38 of the Statute of the International Court of Justice. In Moussa Leo Keita v. The State of Mali, the ECOWAS Court ruled that the material sources of law relevant for the determination of rights under ECOWAS law are the Revised Treaty, the Protocols and Conventions and subsidiary legal instruments adopted by the highest authorities of ECOWAS.16

The 1993 Revised ECOWAS Treaty

A treaty is an agreement whereby two or more states establish or seek to establish a relationship between them governed by international law.17 Consent to a treaty may be expressed by signature, ratification or accession, and is binding on the parties to it, who shall perform the treaty in good faith by applying the maxim pacta sunt servanda.18 The Revised Treaty is the Grundnorm of ECOWAS. All authority, organs and institutions of the Community derive their legitimacy from the Revised Treaty. The Treaty established a legal system for the sub-regional organisation. Accordingly, Article 88 of the Revised Treaty provides as follows:

The Community shall enjoy international legal personality;

The Community shall have in the territory of each Member State:

the legal powers required for the performance of the functions assigned to it under this Treaty;

power to enter into contracts and acquire, hold and dispose of movable and immovable property.

 Article 88(3) makes clear that in the exercise of its legal personality under this Article, the community shall be represented by the Executive Secretary

Article 44 of the Revised Treaty deals with internal legislation and thus provides that member states shall not enact legislation and/or make regulations, which directly or indirectly discriminate against the same or like products of another member state. The Revised Treaty provides that the Court of Justice shall carry out the functions assigned to it independently of the member states and the institutions of the Community.19 It is further stated that judgement of the Community Court of Justice shall be binding on the member states, the Institutions of the Community and on individuals and corporate bodies.20

 ECOWAS Conventions and Protocols

The Authority of Heads of State and Government (the Authority) which is the supreme institution of ECOWAS is established by Article 7 of the Revised Treaty and enabled by Article 9(1) to act by Decisions. Decisions of the Authority can be reached as a Protocol which has the same force as a treaty.21 Protocols are often used to supplement, amend or extend the scope of the principal treaty establishing the Community...

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