Dec 5, 2020

Non-domestication of Treaties in Nigeria as a breach of international obligations – Sandra Eke

 


 Introduction

The rationale behind the signing of international treaties is to foster peace, unity and cooperation amongst member states, each member state is expected to enforce the provisions of the treaties in accordance with the modalities prescribed by their laws. However, some state parties have devised a scheme of ratifying international agreements without taking the necessary internal steps to ensure the enforcement of their treaty obligations, while continuing to derive various benefits from these multilateral arrangements. The stringent requirement of domestication of international treaties before enforceability was introduced into the laws of some dualist state parties like Nigeria, causing a hindrance to the speedy enforcement of treaty provisions and also creating a leeway for member states to evade their international obligations.

Nigeria is a signatory to several international agreements but only a fraction of such agreements have been domesticated in our laws.[2] In Nigeria, ratifying or signing a treaty is insufficient to obtain the force of law, there is a requirement for domestication of such treaty before it can be enforceable. Arguments have arisen on the propriety of such actions by state parties as amounting to a breach of international obligations since those same state parties enjoy the benefits of being signatories to international treaties in the territory of other member states but in turn block the enforcement of the provisions of those international treaties in their jurisdiction using the excuse of non-domestication.

 

Understanding Domestication of International Agreements

International agreements are formal understandings between contracting state parties with an intention to be legally bound. They are governed by international law and are codified into single or multiple legal instruments. They could be bilateral or multilateral and are usually arrived at after series of negotiations among member states. A variety of nomenclature has been used to describe international agreements. Some of which include: Treaties, Conventions, Protocols, Pacts, Accord etc.[3]

Domestication of an international agreement is the process of incorporating the provisions of a treaty into the extant laws of a country to give it force of law in that country. It is not all countries that adopt the dualist system of domestication of international agreements before enforceability. For some countries operating a monist system like France, Switzerland and the Netherlands, there is no provision for domestication before enforceability of a treaty.[4] In fact, in France, ratified treaties upon publication prevail over their domestic laws.[5]

In Nigeria, international agreements do not automatically have the force of law after ratification; there is a constitutional requirement for every international treaty to be domesticated before it can have the force of law. Section 12 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) stipulates 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.” As a result of this constitutional provision the figurative hands of justice have been held captive, as judges are usually reluctant to deliver decisions which directly conflict with the provisions of the constitution and would generally refrain from enforcing the provisions of international treaties which have not yet been domesticated. In Abacha v Fawehinmi,[6] the Nigerian Supreme Court held that: “It is therefore manifest that no matter how beneficial to the country or the citizenry, an international treaty to which Nigeria has become a signatory may be, it remains unenforceable, if it is not enacted into the law of the country by the National Assembly.”

 

Some Relevant Provisions in the Vienna Convention on Compliance with Treaty Obligations

Nigeria is a signatory to the Vienna Convention on the Law of Treaties (VCLT)[7] which regulates international agreements between states.[8] Membership of this convention symbolizes Nigeria’s intention to be bound by its provisions, yet it is quite surprising that Nigeria engages in actions that are geared at defeating the objectives of the VCLT by its unreasonable delay or failure to domesticate some of its international treaties. The principle of pacta sunt servanda as incorporated in the VCLT requires that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”[9] This raises a thought provoking question: can the prolonged delay or failure by state parties in domesticating international treaties be termed as actions amounting to bad faith however good their reasons may be? The VCLT provides state parties an opportunity to make reservations if they do not agree with any provision in a treaty.[10] It is therefore quite baffling that a state party would go through the entire process of becoming a party to a treaty only to end up dumping the treaty in its archives under the guise of non-domestication.

Also, Article 27 of the VCLT precludes a party from invoking the provisions of its internal law as justification for its failure to perform a treaty. In this regard, it could be argued that the failure to enforce the provisions of a treaty on the ground of non-domestication amounts to a breach of this provision and a material breach of the treaty in its entirety. Article 60 of the VCLT provides for termination or suspension of the operation of a treaty as a resulting consequence of its breach. It provides that when a material breach of a multilateral treaty by one of the state parties occurs, the other state parties through a unanimous agreement, may suspend the operation of the treaty in whole or in part or terminate it either between themselves and the defaulting State or between all the parties.[11] Though state parties are often reluctant to enforce this provision owing to the length of time required to obtain signatories to most treaties, yet if such measures aren’t enforced against defaulting states, such habits that tend to frustrate the purpose and intention of a treaty would not be discouraged.

 

Some Challenges Caused by Non-Domestication of a Treaty

Failure of a state party to domesticate a treaty causes unreasonable hardship on other member states, as the provisions of the treaty cannot be enforced in the domestic courts of the defaulting states. It not only discourages corporate migration and investment into affected states, it also stunts the growth of the law in the defaulting state. For instance, in the terrain of tax laws, a  number of international double taxation treaties have been signed by Nigeria with other state parties principally to avoid double taxation and prevent evasion of tax obligations, but a handful of them are yet to be domesticated.[12] The resultant effect of this is that persons and entities from those territories who transact business with Nigerian companies or are situated in Nigeria cannot enjoy the privileges and benefits of Nigeria’s treaty with their country for the avoidance of double taxation. They would still be burdened with payment of higher taxes even though Nigeria has signed a treaty with their country to reduce such burden.

In the field of intellectual property law, Nigeria has signed several international IP treaties that are yet to be domesticated. For instance, the WIPO internet Treaties, made up of the WIPO Copyright Treaty[13] and WIPO Performances and Phonograms Treaty[14] were signed since 1996 but have not yet been domesticated. Asides from these, there are still other IP treaties awaiting domestication, like the Beijing Treaty on Audio-Visual Performances,[15] the Marrakesh VIP Treaty.[16] Some of these treaties were signed not only to facilitate access to published works for persons who are blind, visually impaired or print disabled[17] but to also improve the growth of the IP sector in Nigeria, unfortunately they are yet to be domesticated.

Also, in the terrain of immigration law, Nigeria joined other African nations since 2012, to sign and approve the ratification of African Union’s Kampala Convention for the Protection and Assistance of Internally Displaced Persons (IDPs) in Africa to address refugee problems and internal displacement,[18] yet as at the time of writing this article, this convention is yet to be domesticated[19] regardless of the vulnerability of IDPs who became displaced as a result of natural or man-made disasters like armed conflicts, climate change, negative impact of large-scale development projects in Africa etc.

 

The Attitude of International Courts

The International Court of Justice (ICJ) has long frowned at the use of the defence of domestic law as the reason for a state party’s non-performance of its obligations under a treaty. It has become much tougher for member states to evade their liabilities under international law by invoking the provisions of its municipal law as a justification for failure to perform an obligation under a treaty. This was the rationale behind the birthing of section 27 of the VCLT. This principle was further emphasized in the advisory opinion of the Permanent Court of International Justice in Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory,[20] it was emphatically stated that: “It should, however, be observed that…a State cannot adduce as against another State its own constitution with a view to evading obligations incumbent upon it under international law or treaties in force.”

 

Conclusion

The relevance of international agreements to the rapid growth and development of any nation cannot be over emphasized. No state can effectively succeed independently without requiring the assistance of other nations and it is on this premise that bilateral or multilateral treaties are formulated. Over the years, Nigeria has actively participated in the signing of international treaties, but lesser attention has been given to the domestication of such treaties and performance of its obligations under those treaties. As a developing nation, it needs the support of other nations to maintain a robust economy and enhance its development. Therefore, its failure or prolonged delays in domesticating international treaties is a move in the wrong direction and a constructive breach of its treaty obligations. Rather than chickening out of a treaty with the excuse of non-domestication, state parties like Nigeria, should ensure that proper consultations with relevant stakeholders are made before the signing of any treaty. Peradventure, it is interested in signing a treaty that would largely benefit the country but contains some provisions against its interests, it could explore the option of tabling its reservations, as provided under the VCLT[21] before the appropriate bodies, before embarking on signing the treaty to avoid its continuous refusal to domesticate international treaties.[22]

International organisations also share some part of the blame for the habitual misconduct of dualist state parties in failing to domesticate a treaty. Their supervisory bodies need to exert more efforts in ensuring the rapid domestication of treaties by member states. Reasonable country-specific timelines should be set for member states operating the dualist system to domesticate treaties and stiffer penalties should be imposed on defaulting states to discourage misconducts geared at defeating the objectives of international treaties.

 

______________________________________________________________

For further information on this article and area of law,

please contact Sandra Eke at: S. P. A. Ajibade & Co., Lagos

by telephone (+234 1 472 9890), fax (+234 1 4605092)

Mobile: (+234.703.385.7874; +234.811.249. 1286)

Email: seke@spaajibade.com

www.spaajibade.com

 

[1]       Sandra Eke, Associate Intellectual Property & Technology Department, SPA Ajibade & Co., Lagos,

        Nigeria.

[2]       Nigeria is a signatory to various bilateral and multilateral treaties on human rights, international trade, taxation,

intellectual property, women and children’s rights, immigration etc., but only a number of them have been domesticated. See the list of treaties signed by Nigeria and their status here: https://laws.lawnigeria.com/2018/02/23/center-for-treaties-of-nigeria-3/ accessed 27th November 2020.

[3]       Oxford Public International Law, “Treaties” available at: https://opil.ouplaw.com/view/10.1093/ law:epil/9780199231690/law-9780199231690-e1481 accessed 29th November 2020.

[4]       In these countries, ratification of international agreement makes such treaties enforceable without the condition for domestication, however in most cases, treaties are ratified after approval has already been obtained from the parliament.

[5]       See Article 55 of the 1958 French Constitution.

[6]       (2001) WRN vol. 51, pp. 165-166.

[7]       1155 U.N.T.S. 331, reprinted at 8 I.L.M. 679 (1969). The Vienna Convention on the Law of Treaties of 1969

entered into force on 27th January 1980.

[8]       The Convention on Agreements between States and International organisations or between International

Organisations, regulates dealings between states and international legal entities.

[9]       See Article 26 of VCLT.

[10]     See Article 17 – 23 of the VCLT.

[11]     See Article 60(2)(a) of the VCLT.

[12]     Nigeria is a party to about 22 Double Taxation Treaties (DTT) out of which only 15 have been ratified. These include DTTs with United Kingdom, Netherlands, Canada, South Africa, China, Philippines, Pakistan, Romana, Belgium, France, Mauritius, South Korea, Sweden, Italy, Slovakia. The other treaties with UAE, Kenya, Poland, Spain, Qatar, Cameroon and Ghana are yet to be ratified.

[13]     Adopted on 20th December 1996 and entered into force on March 6th 2002, available at:

https://wipolex.wipo.int/en/text/295157, accessed 20th November 2020.

[14]     Adopted on 20th December 1996 and entered into force May 20th 2002, available at:

https://wipolex.wipo.int/en/text/295578, accessed 20th November 2020.

[15]     Adopted June 24th 2012 and entered into force April 28th 2020, available at:

https://wipolex.wipo.int/en/treaties/textdetails/12213 accessed 20th November 2020.

[16]     Signed in 2013, available at: https://www.wipo.int/edocs/pubdocs/en/wipo_pub_218.pdf,  accessed 20th

November 2020.

[17]     Like the Marrakesh Treaty. Ibid 16.

[18]     The Convention was adopted in October 2009 and as of 2015 it had been signed by 40 member states and

ratified by 24 of the 54 member states of the African Union.

[19]     ECOWAS recently begun a two-day in-country engagement meeting with stakeholders to promote the

domestication and implementation of the African Union (AU) Kampala Convention for the protection and

assistance of Internally Displaced Persons (IDP)s in West Africa. The engagement was flagged of virtually on the 11th of November 2020 and piloted in three West African States of Burkina Faso, Mali and Nigeria with sensitization and advocacy on the domestication and implementation of the Convention in Nigeria. See “ECOWAS Engages Stakeholders on Domestication of the Kampala Convention on Internally Displaced Persons” available at: https://www.ecowas.int/ecowas-engages-stakeholders-on-domestication-of-the-kampala-convention-on- internally-displaced-persons/ accessed 27th November 2020.

[20]     (1932) PCIJ SER. A/B, NO. 44 (Polish Nationals in Danzig).

[21]     Ibid 8.

[22]    See generally John Onyido, “Impediments to the Reception of International Treaties and Unintended Impact on the Growth of Nigeria’s Intellectual Property Regime”, (unpublished book chapter, September 2020) [on filewith author].

 Source: SPA Ajibade & Co. 


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