By Kolawole Olaniyi Emmanuel
The status of international treaties vis-à-vis municipal laws, cum its relationship, has been a subject of polemics amongst scholars, writers and votaries of different schools of thoughts. Their arguments suggest the following possibilities viz.: International law has primacy over municipal law in international courts; Municipal law has primacy over International law in international and municipal courts; international law has primacy in international courts and municipal law in municipal courts; while some others posited that there are necessarily no conflicts between the two.
This article is not a disquisition about theories of the relationship between International law and Municipal law, it, rather, beams a light on the attitude of Nigerian courts on this subject, which will be discussed under three heads to wit: firstly, the status of international treaties that have not been ratified by Nigeria; secondly, the status of international treaties that have been ratified by Nigeria but not been domesticated; and lastly, the status of international treaties which have been ratified and domesticated into Nigerian laws.
It is imperative, before we delve into the heart of this discourse, to point out that Nigeria operates a dualist system, whereby treaties, including those dealing with human rights, cannot be applied domestically unless they have been incorporated through domestic legislation as laws. This is compliant with Section 12 (1) of the 1999 constitution of the Federal Republic of Nigeria which provides that ; “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”.
- The Status of International Treaty Not Ratified by Nigeria. As it is an immutable principle of International law that treaties are only binding on their signatory parties, exemplified by the maxim, ‘pacta tertiis nec nocent nec prosunt’, it is safe, therefore, to aver that such treaties as do not include Nigeria as a signatory cannot create rights and obligations in Nigeria. There is no judicial authority known to this author where the court considers treaties not ratified by Nigeria. However, this does not mean that a treaty which has not been ratified by Nigeria is totally bereft of any significance. In A.G Botswana v Unity Dow (1998) 1 HRLA 1, a Botswana court of appeal held that a country that is not party to an international treaty may only employ it as an aid to the interpretation of a domestic law, or the construction of a similar treaty. In common law countries, like most jurisdictions are, international customary law is treated as part of the law of the land and the court can apply it proprio motu and refer to it in texts and other sources. In essence, international customary laws are automatically incorporated into domestic law and are therefore enforceable in domestic courts and tribunals. This is known as the theory of incorporation, which holds that customary international law is part of the municipal law and, consequently, does nor require any additional procedure to transition it into domestic law. The supreme court of the United States of America in The Paquete Habana case, 175 U.S. 677,700 (1900) held that customary international law is part of the U.S. laws and must be asserted and administered by the courts of appropriate jurisdiction as often as questions of rights depending upon it are duly presented for their determination. The United States Constitution’s employment of both the dualist and monist approaches when engaging treaties has often been described as remarkably complex. Under Article VI (2) of the Constitution of the USA, treaties are part of the supreme laws of the land and are applicable provided they are self-executing, that is, can be applied without further legislation. A non-self-executing treaty can only be applied after necessary legislation. In the U.S., customary international law supersedes inconsistent state and local laws. The position is, however, unclear concerning federal laws. The British position is different on the point that Acts of parliament and judicial decisions predominate customary international law. This position was given judicial imprimatur in the case of Chung Chi Cheung v R where Lord Atkins explicitly explained the English position on the question saying ” the courts acknowledge the existence of a body of rules which nations accept among themselves. On any judicial issue, they seek to ascertain what the relevant rule is, and having formed it they will treat it as incorporated into the domestic law so far as it is not inconsistent with the rules enacted by Statutes or finally declared by their tribunals”. However, the status of customary International law in Nigeria is not so clear as there are no pronouncement as regards this in any Nigerian court, but the writer is of the view that the Nigerian Court pronouncement on the status of Customary International Law may tilt favouring the English position hinged on the supremacy clause embodied in her constitution by virtue of Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria.
- International Treaties Ratified But Not Domesticated : Most of the treaties ratified by Nigeria fall under this categorization, some of which includes: The Red Cross Convention of 1949, The International Covenant on Civil and Political Rights, International Convention on the Elimination of All Forms of Racial Discrimination Against Women (CEDAW). The Convention on the Political Rights of Women, the Slavery Convention, as amended by the protocol of 7 December 1953, The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, et.c. The question arising here is: to what effect are these instruments ratified but not domesticated into the corpus of Nigerian laws? A treaty is simply an agreement creating binding obligations between subjects of international law of which States remain the typical and primary subject. It is an established principle of international law that a treaty ratified by a state becomes binding in that state at the international level. The maxim is ‘pacta sunt servanda’ which is a customary rule of international law. In International law, the relationship between treaties and national law is governed by well known principles; to wit , a state which is a party to a treaty is under an obligation to ensure that its national laws conform to its international obligations.
As earlier stated, Nigeria operates a dualist system, hence, treaties signed and ratified, no matter how beneficial to the citizens are not enforceable within Nigeria if they are not domesticated by virtue of Section 12 of the Nigerian Constitution. The rationale behind this seems to be that treaties are entered into by the head of the executive arm of the government who is the personification of the state’s sovereignty. Consequently, if treaties shall become enforceable in domestic courts without legislative intervention, then by implication the executive will be making laws for the country. Lord Atkin in A.G Canada v A.G Ontario, (1937) A. C. 326 opined that ” there is a well-established rule that the making of a treaty is an executive act, while the performance of its obligations…” Suffice it to point out, any international treaty not domesticated does not constitute part of the law of the land merely by virtue of their conclusion by their country. However, treaties not domesticated can be applied indirectly in an effective manner by infusing their normative contents into constitutional and statutory standards.
- The Status of International Treaties Ratified and Domesticated in Nigeria: Pursuant to Section 12 of the 1999 Constitution of the Federal Republic of Nigeria, once an international treaty has been domesticated by the National Assembly, it forms part of the corpus of the Nigerian legal system and becomes enforceable in Nigerian Courts. However, the same constitution has failed to delimit the status of such domesticated treaties with other sources of law. This lacuna has generated controversy in a number of Nigerian cases. In the case of Constitutional Rights Project (CRP) v President of the Federal Republic of Nigeria and others (1990) 7 NWLR (pt 163) 489-502, the Lagos High Court held that the African Charter on Human and People Rights, being an international treaty, is superior to local legislation, including the Decree of the past military Government of Nigeria. In the case Chief J.E Oshevire v British Caledonian Airways Limited,  7 NWLR (Pt.163) 507 , the Court of appeal, in this case, held the position that any domestic legislation in conflicts with a domesticated international treaty is void. Similarly in Fawehinmi v Abacha (1996) 9 NWLR 719, the Court of Appeal held that since the human rights of the African Charter was protected by international law, the Federal Military Government is not legally permitted to legislate out of its obligations . In the case of Chima Ubani v Director of State Security & Anor, (1999) LPELR-11177(CA), the Court of Appeal while referring to Fawehinmi’s case re-emphasised that the African Charter is superior to all Nigeria domestic legislation including the military decrees and by implication, the constitution. The controversy was laid to rest by the Supreme Court, when the case of Abacha v Fawehinmi (2000) 6 NWLR (660) 28, went to appeal. In the Abacha case, the Supreme Court justices were divided on the issue of the status of domesticated treaty legislation (including human rights treaties) vis-a-vis subsequent legislation of the National Assembly . The justices were divided between the liberal constructionists (Ejiwunmi, Iguh, Ogundare and Uwaifo JJSC., the majority) and the strict constructionists ( Achike, Belgore and Mohammed JJSC., the minority). So far as the liberal constructionists were concerned, since the legislature would be presumed not to intend to breach Nigeria’s international obligations, the courts should interpret a conflict between a domesticated treaty and subsequent municipal law in such a way that the former would prevail, unless specifically repealed by the latter. However, they were careful to emphasize that this view should not be taken to give the domesticated treaty law any superior status over the constitution, the paramount municipal law. Neither should it be taken to debar the legislature from subsequently enacting municipal legislation that would expressly repeal the domesticated treaty law. The majority liberal constructionist justices were also quick to emphasize that such domesticated treaty legislation could not be used to determine the validity of a subsequent act of the National Assembly. One of the justice, Per Uwaifo JSC., pointed out as follows: ‘‘The application of this principle [principle of interpretation that there is a rebuttable presumption that the legislature does not intend to violate rules of international law] does not imply that a statute will be declared ultra vires as being in contravention of a treaty or of an international law, or that the treaty is superior to the national laws (a completely erroneous concept), but that the courts would desist from a construction that would lead to a breach of an accepted rule of international law’’.
The purport of this liberal constructionist view is that, although there is a presumption in favour of domesticated treaty law, in the event of conflict with other municipal laws, such presumption may be rebutted if it is explicitly repealed, modified or varied by a subsequent municipal law. From this decision, there is, therefore, nothing ‘‘sacred’’ about a domesticated human rights treaty law since it can be repealed, modified or varied by the legislature. The only responsibility the liberal constructionist view appears to put upon the legislature is that it can only repeal, modify or vary a domesticated human rights treaty law explicitly, rather than implicitly. This clearly differs from the position of the Court of Appeal which put domesticated human rights laws on a higher pedestal than other municipal laws. The strict constructionists, on the other hand, took the position that the domesticated treaty legislation had no special status and was on par with any other act of the National Assembly. Neither were they inclined to presume that the legislature does not intend to breach international obligations, by holding that domesticated treaty legislation still applies if it is not expressly repealed, amended or varied by a subsequent act. Achike JSC, reading the decision of the strict constructionists, vehemently opposed to the position of the Court of Appeal, stated: ‘‘No authority was given in support of this far-reaching proposition. On the contrary, the proposition is manifestly at variance with section 12(1) of the 1979 Constitution …” Indeed, enacting the African Charter as an Act of our municipal law and as a schedule to the only two sections of the Act, ie Cap 10 LFN 1990, a close study of that Act does not demonstrate, directly or indirectly, that it had been ‘elevated to a higher pedestal’ in relation to other municipal legislations (sic). The provisions of the only two sections of Cap.10, LFN 1990 incorporating the African Charter into our municipal law are conspicuously silent on a ‘higher pedestal’ to which the learned Justice of the lower court arrogates to the African Charter vis-vis the ordinary laws. The general rule is that a treaty, which has been incorporated into the body of the municipal laws, ranks at par with the municipal laws. It is rather startling that a law passed to give effect to a treaty should stand on a ‘higher pedestal’ above all other municipal laws, without more, in the absence of any express provision in the law that incorporated the treaty into municipal law.’’ The Supreme Court held in this case, inter alia, that the African Charter, which has been so enacted into Nigerian domestic law, is a statute with international status that possesses greater vigour and strength than any other domestic statute. Being so, if there is a conflict between it and another statute, its provisions will prevail over the other statute’s.
The position of Nigerian Law with reference to domesticated international treaties is hinged on the supremacy clause contained in Section 1 of the 1999 Constitution of the Federal Republic of Nigeria, which is borne out of the need to preserve her sovereignty and maintain her territorial integrity. Where international law has been domesticated, the terms of the treaty become directly enforceable in domestic courts. A treaty ratified but not domesticated may be indirectly applied if their normative contents are infused into domestic legal standards or aid in the interpretation of a domestic law, or the construction of a similar treaty. It also provides guidance to the National Assembly in the process of law – making even as it borrows a lot from them. However, the relationship of the treaty to municipal law depends on the legal system of the concerned states. Section 12 (1) of the 1999 Constitution does not in any way distinguish between treaty legislation and other municipal laws rights under domesticated human rights treaties. The arguments of both the constructionist and the liberalist have brought to the fore the deficiency of Section 12 (1) of the constitution, especially as regards domesticated human rights treaty legislation. The government may ratify human rights treaties for the benefit of its citizens, enact them as law and then subsequently repeal, modify or amend the laws to deprive its citizens of the benefits of the treaties. Since the Constitution did not make provisions for the status of domesticated treaties viz a viz municipal laws, it is recommended that this Section be amended to delimit the status of domesticated international law or treaty vis-à-vis municipal law.
However for resolving cases of clash between treaty legislation i.e domesticated legislation and municipal laws, the case of Akintokun V LPDC is apt. In Akintokun v LPDC (2014) LPELR-22941@62, where there are two inconsistent statutes, the latter in time prevails. Moreso, based on the principle of lex specialis derogat generali ( meaning specific law prevails over general law in the event of conflict ) a domesticated treaty which regulates specific matter, should supersede an ordinary statute conversely , an ordinary statute which regulates a specific matter should supersede a domesticated treaty.
The current position of Nigerian of the Supreme Court on the status of domesticated International treaties viz a viz municipal law is consistent with the provision of Article 27 of the 1969 Vienna Convention on the Law of Treaties which provides that ‘ a party cannot invoke the provision of its internal law as basis or excuse for its failure to perform a treaty obligation’, hence the position of the supreme court that international treaties possesses greater vigour and strength than any other domestic statute is compliant with international standards.
Kolawole Olaniyi Emmanuel is a legal practitioner and he writes from Lagos. He is an International Law enthusiast, who also has keen interest in Intellectual Property, Corporate Practice, Entertainment and Media law. He can be reached at Kolaniyi86@gmail.com.
- Edwin Egede (2007). Bringing Human Rights Home: An Examination of the Domestication of Human Rights Treaties in Nigeria. Journal of African Law, 51, pp 249-284 doi:10.1017/S002185530700029
- Osita Nnamani (2004). Nigerian Courts and Domestic Application of International Human Rights Instruments. International Law, Human Rights and Development, pg 89- 103.