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CHAPTER ONE

INTRODUCTION

BACKGROUND TO THE STUDY

A great number of laws that make up the Nigerian body of laws emanates from treaties. Consequently in Nigeria, treaties do not automatically have force of law or becomes applicable and enforceable unless enacted into law by the National Assembly. Hence, Section 12(1) of the Constitution provides as follows:-

No treaty between the Federation and any other country shall have the force of law except to which any such treaty has been enacted into law by the National Assembly.

This Section further provides that where the subject-matter of a treaty falls outside the Exclusive Legislative List, a bill for an Act of the National Assembly to give the treaty the force of law must be ratified by a majority of all the Houses of Assembly in the Federation before it is enacted into law and assented by the President. It follows, therefore, that until a treaty has been domesticated in Nigeria, it cannot be applied within the country.

Treaties are governed by international law embodied in the Vienna Convention on the

Law of Treaties signed on 23rd May, 1969 and entered into force on 27th January, 1980. Treaties are known by different names which include conventions, protocols, declaration, charter, covenant, pact, act, statute, agreement, concordat, modus vivendi, exchange of notes (or letters), process verbal, final act and general act.

Article 2 (1)(a) of the Convention provides:

For the purposes of the present Convention; Treaty means 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…

Every State is competent to enter into treaties regarding matters that fall within its sovereignty. This capacity in itself is an attribute of statehood as prescribed in the Montevideo Convention which provides as follows:

The State as a person – i.e. subject of international law should possess the following

qualification:-

a) a permanent population;

b) a defined territory;

c) government;

d) capacity to enter into relation with other States.

Treaties may be bilateral or multilateral and have formed an important basis for the determination of rights and obligations of States that are Party to them. According to Prof. M. T.

Ladan; “one of the characteristics of the law of treaty is that the treaty construction is frequently used not only for the conduct of international transaction of various kinds, but it is also used to impose binding rules of precision and details in various areas of international law (eg human rights, environment and humanitarian law)”.

Treaties are usually negotiated by accredited representatives. Under Article 7(2) of the Convention, a Head of State, Head of Government or Foreign Affairs Minister is not required to furnish full powers before negotiating for his State. Similarly, a Head of Mission need not produce full powers before adopting a treaty between his own State and his Host State. Same applies to a representative of international conference or organization. Although under Article 27 of the convention, a Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Article 46 of the Convention provides good cause for invalidating a treaty where a representative acted in manifest violation of the provisions of domestic law.

However, the Vienna Convention lays down rules for the adoption of the text of treaty under Article 9. There are different ways in which States can express their will to be bound by the contents of a treaty. Whichever way that is applicable depends on what is agreed upon in the treaty itself. The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

By ratification, Parties declares their intention to be bound by a treaty they had signed. A bilateral treaty becomes effective on ratification but a multilateral one usually awaits the required number of ratifications and, perhaps, a stipulated time thereafter. Ninety days has been adopted in many treaties. On the other hand, accession (or adherence) is the method by which a State becomes a party to a treaty it is not a signatory. Once a treaty becomes operative, it can only be adhered or acceded to by Parties that had not signed it. Thus, adhesion or accession has the effect of signature and ratification combined. Some treaties come into force by accession only, for example, the General Act for the Pacific Settlement of International Dispute, 1928 and the Convention on the Privileges and Immunities of the UN, 1946.

In Nigeria, it takes several processes for a treaty (bilateral or multilateral) to be ratified, accepted, approved or acceded to. In some cases, after ratification, the law requires some treaties to be domesticated before they can have force of the law.

Pursuant to the provisions of the second schedule to the Nigerian Constitution, external affairs, which necessarily involve treaty making power form item number 26 and fall squarely within the Exclusive Legislative List. By virtue of the Constitution, only the National Assembly to the exclusion of the State Assemblies is empowered to legislate on matters within the Exclusive Legislative List.

Furthermore, the Constitution provides that “the executive powers of the Federal Government shall be vested in the President and shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, power to make laws.”

This provision seemingly vests in the Executive Arm of Government the power to negotiate, sign and ratify treaties on behalf of Nigeria. In practice, however, individual Ministries, Departments and Agencies (MDAS) with active participation in most cases of the Federal Ministry of Justice and Ministry of Foreign Affairs discharges this responsibility on behalf of the Government of the Federal Republic of Nigeria. Thus, after a treaty had been concluded and signed, a Council

Memorandum is expected to be prepared by the focal MDA for presentation to the Federal Executive Council for consideration and approval. Once approved, appropriate instrument is prepared and sent through diplomatic channel to the relevant State in case of bilateral treaty or to the depository in case of multilateral treaty.

1.2 RESEARCH PROBLEM:

By virtue of Section 12(1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) before any treaty can have the force of the law and becomes applicable and

enforceable, that treaty must first of all be domesticated even though ratified.

This provision is problematic in a number of ways:-

1) the provision assumes that all treaties must first be domesticated before they can become enforceable and applicable in Nigeria;

2) it disregards the fact that some treaties, that is to say, self-executory treaties do not require domestication and would necessarily create international obligation and become binding on the country upon signature and ratification;

3) it disregards the general principle of international law that a country cannot be allowed to plead its domestic law as a reason for its failure to carry out its international obligation validly created by a treaty;

4) it did not take into account treaties made between the Federation and other International Organizations;

5) conflicts with Section 19(d) of the Constitution on Fundamental Objectives and Directive

Principles of the State Policy dealing with respect for international law; and

6) it disregards the principle of “pacta sunt servanda”

1.3 AIMS AND OBJECTIVES

1) To examine the ratification and domestication of treaties in Nigeria, highlighting the procedural challenges (if any);

2) To ascertain the role of the executive as well as the legislature in the ratification and domestication of treaties in Nigeria; and

3) To identify whether there is indeed conflict between the provisions of Section 12 of the

Constitution and Section 3 of the Treaty (Making Procedure Etc.) Decree.

1.4 METHODOLOGY

Doctrinal and Teleological methods will be employed principally in examining and analyzing the topic as well as the relevant laws and work of some authors.

1.5 SOME OF THE MAJOR FINDINGS

1. Treaty making has been confronted by a lot of challenges posed not by our law but by bureaucracy.

2. Treaty relating to residual matters, the Act of the National Assembly must be sanctioned by majority of the States before it can have the force of law.

1.6 SOME OF THE RECOMMENDATIONS

1. Treaties that require legislative action for its implementation must receive the approval of the National Assembly.

2. There must be synergy between the Executive and the National Assembly.