An inaugural lecture delivered at the University of LagosMain Auditorium on Wednesday, December 7, 2011 by Professor Akindele Babatunde Oyebode, LL.M. (Kiev), LL.M. (Harvard), D. Jur. (York, Canada) Professor of International Law and Chair, Office of International Relations, Partnerships and Prospects, Department of Jurisprudence and International Law, Faculty of Law, University of Lagos.The third part was published on Thursday, January 5, 2012.The Legal Framework for Treaty-making in NigeriaADMITTEDLY there have been twists and turns in Nigerian treaty-making, very often arising from the personality, power and influence of heads of the various ministries mentioned. However, it is worthy of note that, after a hiatus in the conduct of treaty relations when it appeared as if the right hand did not know what the left hand was doing in terms of treaty-making since there was no clear prescription on the matter, more so as it was most difficult to enunciate the legal position regarding treaty-making in Nigeria, the country has finally arrived at a point when it has been able to stipulate the modalities for concluding treaties. Accordingly, the Treaties (Making Procedure, Etc.) Act of 1993 specifies guidelines for concluding Nigeria's treaties under which treaties have now been classified into three categories, viz.,(a)law-making treaties, being agreements constituting rules which govern inter-state relations and co-operation in any area of human endeavour and which have the effect of altering or modifying existing legislation or which affects the legislative powers of the National Assembly;(b) agreements which impose financial, political and social obligations on Nigeria or which are of scientific or technological import;(c) agreements which deal with mutual exchange of cultural and educational facilities.Furthermore, the legislation defined treaties or agreements as 'instruments whereby an obligation under international law is undertaken between the Federation and any other country and includes 'conventions', 'Act', 'general acts', 'protocols', 'agreements', and 'modi vivendi ', whether they are bilateral or multi-lateral in nature.' Presumably, these would include agreements with international organizations. In addition, it should be pointed out that the Nigerian Institute of International Affairs, which had previously laid claim to being the depositary of Nigeria's treaties, has now been compelled to yield place to the Federal Ministry of Justice as stipulated under the legislation. In addition, it is noteworthy that the law now provides that 'the Federal Ministry of Justice shall, to the exclusion of any other Ministry or authority, have power to give notification on the conclusion of any new treaty to the Federal Government Printer for purposes of publication.'Accordingly, the trend towards centralization of legal counseling in the treaty-making process has now been all but complete, having received legal imprimatur, compared with the decentralized form of treaty-making which hitherto had characterized Nigerian state practice regarding treaty-making generally. This is secured via the usual practice of dispatching lawyers from the Federal Ministry of Justice to other ministries, departments and agencies as legal advisers.Mr. Vice-Chancellor, it now seems apposite to dilate a little bit on the treaty-making process in Nigeria.The Treaty-making Process in NigeriaIn Nigeria, the prevalent practice is for each ministry, if not indeed, department and agency to, as much as practicable, be responsible for the foreign dimensions of its activities, especially the cultivation and development of ties with corresponding ministries of other states and relevant international organizations. Accordingly, any federal ministry, department or agency can initiate action leading ultimately to the negotiation and conclusion of a treaty between Nigeria and another party, in pursuance of matters falling within its competence.This is usually commenced by way of presentation by the ministry concerned of a memorandum containing proposals in respect of the intended treaty to the Federal Executive Council for the purpose of securing Federal Government approval, in principle, of the proposed treaty. Once the approval is granted, officials duly designated members of the negotiating team are then issued with instruments of full powers to enable them commence negotiation with representatives of the other party. In the event that the proposed treaty has a subject-matter cutting across the responsibilities of a number of ministries, an inter-ministerial negotiating team is usually constituted under the leadership of the representative of the ministry that took the initiative of seeking Federal Government approval for the negotiations.Upon completion of the negotiations, the text of the treaty is usually initialed or signed ad referendum and forwarded to the respective minister or the President, as the case may be, for full signature at a later date. However, in case the treaty is a multilateral one and which, ipso facto, is to be concluded by a diplomatic conference specifically convened for that purpose, the members of the country's official delegation to the conference are usually empowered to perform all actions thereto such as adoption of the text and signature of the treaty.To sum up, treaty-making in Nigeria is an open-ended, decentralized activity which permits each and every ministry to take charge of treaty-making in respect of its schedule of duties, despite the potential for conflict and dysfunction embedded in such a hydra-headed approach. However, before any conclusions can be drawn on Nigeria's practice in respect of treaties, it is necessary to consider the question of treaty implementation.Treaty Implementation in NigeriaIf by treaty implementation is meant the execution or fulfillment of obligations assumed by a state under a treaty, it follows that implementation of a treaty can only occur, stricto sensu, after the treaty had entered into force at the international plane. This is, of course, without prejudice to the obligation of the parties not to defeat the object or purpose of the treaty prior to its entry into force.It needs also be pointed out that treaty implementation in a federation is very often beclouded by problems arising from the division of powers between the federal government and constituent units. Unlike a unitary state where the government which concludes the treaty is also the one which sees to its implementation, in a federation, performance of treaties frequently requires co-operation between both levels of government, federal and state, despite the well-established prerogative of the federal government in foreign relations generally.Division of powers in a federation varies from federation to federation. In some federations, legislative power over specific items may be conferred on the federal government, leaving the residue in the hands of the constituent units. Alternatively, specific items are assigned to the constituent units, with the residuary power vested in the federal government. Finally, it is quite possible to have a combination of both approaches such that items falling within the competence of the two levels are separately enumerated, with the understanding that whatever is omitted can be legitimately acted upon by the federal government in consonance with the doctrine of covering the field.However, with regard to the issue of division of powers and treaty implementation, federal constitutions can be classified into two main groups. The first group comprises federations under whose constitutions the federal legislature is empowered to enact laws for the implementation of treaties or which provide that, in certain circumstances, a treaty once made, could have the force of law throughout the federation even if, in the absence of such a treaty, the subject-matter of the treaty would normally have been reserved for the constituent units.The second category includes those federations whose constitutions do not provide for treaties to automatically become the law of the land or allow the federal legislature to alter the distribution of powers enshrined in the constitution by way of treaty implementation.The constitutions of the United States, Australia, India and Malaysia are considered as belonging to the first group while those of Canada and the Federal Republic of Germany lean more toward the second.Nigeria's constitutional arrangement and treaty practice combine attributes of both groups. Thus, under Nigeria's constitutional law and practice, the treaty power has, to all intents and purposes, signified power to implement treaties since it had never been considered necessary to have explicit constitutional provisions regarding treaty-making. However, it should be remembered that if treaty-making had generally been an area conceded to the federal government under the various constitutional arrangements which had operated in the country, treaty implementation is an issue in which some role had been granted to the constituent units, the only point of contention being, perhaps, the extent of their role.It is remarkable that, although Nigeria has been spared the cantankerous experience of some other federations which had witnessed political conflict and misgivings over the exercise of the treaty power by the federal government, Nigeria apprehended the wisdom of accommodating its constituent units in as delicate an issue as treaty implementation. Unlike in Canada, for example, where Quebecois nationalists have found a ready outlet in the foreign arena to ventilate their grievance against Anglophone Canada, local protagonists of 'statism' are yet to discover the foreign arena as a forum to propagate their anti-Abuja sentiments.Accordingly, Nigeria's various constitutions have embodied provisions such as is contained in s. 12 of the 1999 Constitution on treaty implementation thus:No treaty between the Federation and any other country shall havethe force of law except to the extent to which any such treaty hasbeen enacted into law by the National Assembly.The National Assembly may make laws for the Federation or any part. Thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.A bill for an Act of the National Assembly passed pursuant to theprovisions of subsection (2) of this section shall not be presentedto the President for assent, and shall not be enacted unless it isratified by a majority of all the Houses of Assembly in the Federation.However, in line with the Treaties (Making Procedure, ETC) Act earlier referred to, not every treaty concluded by Nigeria warrants implementation by way of enabling legislation. Only those which, one way or another, affect existing legislation or the legislative powers of the National Assembly require implementation by way of legislative enactment. Accordingly, treaties which impose financial, political and social cost or which are strictly of scientific or technological import require legislation for their implementation, while mutual exchange or cultural agreements generally do not necessarily have to be implemented via legislation.Today, there is a growing tendency among countries to adopt less formal methods of treaty implementation, especially in relation to so-called agreements in simplified form which usually take effect upon signature. While the relevant statute to which reference had just been made really fails to distinguish between treaties and agreements, it is safe to assume that Nigerian state practice would still continue to reserve the term 'treaty' for more solemn engagements which, more often than not, are multilateral in form needing to be laid before the National Assembly for their implementation domestically as against those that are usually bilateral in nature and envisaging executive rather than legislative action for their implementation.The loose use in many quarters of the term 'ratification' in relation to actions taken pursuant to treaty implementation should not blur the distinction between ratification and legislative approval. Indeed, ratification which is an executive act communicating to other parties of a country's intention to be bound by the treaty usually follows legislative approval by way of an enabling legislation transforming the treaty into domestic law, thereby opening the door for its implementation.Nigeria has had a chequered history as far as its treaty implementation is concerned. While upon independence, Nigeria had acceded to a number of existing multilateral treaties, it, nevertheless, had to enact laws to bring them into force domestically, in consonance with the country's Independence Constitution. These included the Chicago Convention on International Civil Aviation, 1944, the Berne Copyright Convention, 1952 and the International Convention for the Prevention of Pollution of the Sea by Oil of 1954. As observed earlier, the rather unimaginative acceptance by Nigeria's Prime Minister of all the treaties concluded by Britain in colonial times saddled Nigeria with a considerable amount of treaty obligations for which it now had to take action toward their implementation.TO BE CONTINUED
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