Treaties between Nigeria and other subjects of international law do not convert into domestic laws unless they are particularly domesticated, that is, legislated into laws by the National Assembly. But the National Assembly has, over the years, shown little welfare in expelling this important constitutional duty; hence, most treaties, to which Nigeria is a party, have not been domesticated many years after their ratification. This has deprived the Nigerian legal system of the requisite backing and complementarity that it ought to derive from those endorsed but domesticated treaties.
The intent of this paper is to explore the relevance of treaties in the development of the Nigerian legal system and the place of treaties in the order of Nigerian law. The paper also examines the rationales for impoverished enforcement of treaties in Nigeria.
Synopsis of International Treaty
A treaty is an international consensus between states in written shape and governed by international law. The phrase treaty is used generically to depict a combination of instruments, including conventions, agreements, arrangements, protocols, covenants, charters, and acts.
In the stringent sense of the term, nonetheless, many such instruments are not treaties.
According to S.3(3) Treaties (Making Procedure) Act, Cap.T20, LFN, 2004, a treaty means any instrument by which an obligation under international law is undertaken between Nigeria and any other country.
The framers of the Act cited above, seem to have ignored the fact that under contemporary international law, both states and international organisations can enter Into treaties as evident in the Vienna Convention on the Laws of Treaties, 1986. The Act should therefore be amended to reflect the current position of international law concerning treaty-making by providing in clear terms that international organizations may enter into treaties in Nigeria.
Usually, a treaty binds only parties that are signatories to it and has ratified it as a domestic law. However, cases abound whereby treaties may enter into force immediately upon signature without it being ratified, and therefore binds the parties automatically.
This usually happens in instances of bilateral treaties. In the case of Cameroon v. Nigeria (2002) I.C.J REPORTS P.264 the court held that international Law provides two-step procedures in the domestication of treaties which include; signature and ratification, there are also cases where a treaty can be domesticated immediately upon signature.
International Treaties that Have Been Entered into in Nigeria.
The following are examples of international treaties that Nigeria is signatory to and has ratified as domestic law.
1. Abolition of Forced Labour Convention, 1957.
2. The Aburi Accord, 1967.
3. Organization of African Youth (OAYouth),2009.
4. Convention on Biodiversity (CBD), 1993
5. African Charter on Human and Peoples’ Rights, 1983.
6. Discrimination (Employment and Occupation) Convention, 1960.
7. International Convention against Doping in Sports, 2007.
8. Employment Services Convention, 1948.
9. Geneva Convention on Road Traffic, 1953.
10. Kyoto Protocol, 2005.
Enforceability of Treaties in Nigeria.
Nigeria adheres to a dualist approach to the application of international law. It must be noted that there are two approaches, that is, the monism and the dualism. The dualist approach is a practice customary to the common law countries, of which Nigeria is one of those countries that has imbibed the practice.
By the the dualist approach, treaties validly concluded between Nigeria and other subjects of international law, do not become Nigeria law automatically, unless there is legislative intervention, where the treaty is enacted into law by the National Assembly, according to Section 12(1) Constitution of the Federal Republic of Nigeria,1999 as amended, which is of the position that; “no treaty between the federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly”.
The issue of whether the African Charter on Human and Peoples’ Rights (an international treaty) is enforceable In Nigeria, using the treaty as a case study, gained judicial recognition in the hallowed case of Abacha v. Fawehinmi (2004) AHRLJ 275 where the Supreme Court held that undomesticated treaties have no force of law in Nigeria.
However, there are instances where, even though such a treaty has not been domesticated, it might still have an indirect effect on the construction of statutes. Thus In the case of Dow v. AG (1999) BLR 233 the Botswana Court of Appeal held that, although treaties and conventions do not confer enforceable rights on individuals until the parliament gives them the force of law, they could still be used as aids of interpretation.
This is so because once any country signs any treaty, it is obligated to refrain from acts which could defeat the objective or purpose of the treaty.
The 1999 constitution leaves no one in doubt that once a treaty is enacted into law by the National Assembly it becomes part of the Nigeria Legal System. Hence in the case of Ogugu v. State (1994) 9 NWLR (PT. 366) P. 47 the Supreme Court held that, the African Charter on Human and Peoples’ Rights, a treaty which was enacted into law by the National Assembly in 1983 formed part of the domestic laws of Nigeria.
However, the question as to the relationship between domesticated treaties and other sources of Nigerian law remains unaddressed by the Constitution.
Furthermore, as the world continues to transform into a global village, the gap between domestic law and international law is increasingly shrinking. This has not only diminished the relevance of dualist theory which emphasizes the complete independent existence of domestic law and international law, but has also led to the growing trend in most dualist states under which domestic courts are gravitating towards applying undomesticated treaties without legislative intervention.
Vienna Convention on the laws of Treaty 1969, Article 1(a)
Treaties(Making Procedure) Act, Cap.T20, LFN, 2004, s. 3(3).
Constitution of the Federal Republic of Nigeria, 1999 (as amended), Cap C23, LFN, 2004.
About the Author
Ogbogo Samuel Adakole is an enthusiastic law student an avid researcher and writer.