In the course of a moot exercises in my Faculty (Faculty of Law,
Niger Delta University, Wilberforce Island, Bayelsa State), it
distressed my mind to learn that national constitutions have no
legal weight, worth, or quality whatsoever before proceedings in
supranational courts.
During the moot I had cited, to buttress my arguments, a
provision of the Constitution (of the State in the hypothetical
facts) which required that for the accession or ratification of any
international treaty to become valid, it must have the approval of
the national assembly (of the hypothetical state), only to be hit
with the learned professor’s revelation that such provision has no
legal quality before the court (The African Court On Human And
People’s Rights). Conceded, I am not an authority in international
law or jurisprudence, but I merely seek to bring to the fore
certain questions that bothers me and propose answers.
For a better appreciation of these comments, I elect to produce
the paragraph of the aforementioned hypothetical facts:
Under section 200 of the 1973 Constitution, the President
has the power to enter into treaties or agreements on behalf of the
State, but ‘any such undertaking is subject to ratification by an
Act of the National Assembly, supported by the majority of all
MNAs’ (Members of the National Assembly).[i]
The relevant question here is whether it will not be discordant
with the idea of state sovereignty for a supranational court to
disregard the provision of the constitution of a state which
requires that the approval of the law making body be obtained for
any ratification by the president of any international treaty to
create a valid international obligation (as distinct from
enforceability in local courts) and become bound by the
jurisdiction of such supranational court.
Let me start by reiterating that treaties or international
instruments do not automatically bind states. Such
international law, with the exception of customary international
law or jus cogen, can only become binding on states who
are parties to it. It is usual for the procedure for ratification
is contained in the instrument itself as a condition precedent for
state parties to become bound by the terms of the instrument. To
illustrate the above point, the Protocol to The African
Charter on the Establishment of The African Court On Human And
People’s Rights sets out requirements for the ratification
of the protocol. It states that the instrument of ratification
or accession to the protocol shall be deposited with the
secretary-general of the AOU. [ii] In addition, a
state party must have, at the time of ratification or anytime
thereafter, made a declaration accepting the competence of the
court to receive cases…a declaration for it to be bound
by that instrument and be subject to the jurisdiction of the
African court on human and people’s rights.[iii] This is not far from the ratification
procedure of the Rome Statute of International Criminal
Court.[iv][1]
That is to say, in order for a state party to be bound to the
international obligation created and by the jurisdiction and
decisions of a supranational court, it must have ratified the
instrument creating such obligation and jurisdiction of such court.
Naturally, such declaration or instrument of ratification by the
state is deposited by the figure-head, the symbol of government of
the country which, in the case of Nigeria, is the president who is
the head of state, chief executive of the federation and
commander-in-chief of the Federation.[v] The
above point is envisaged in the wordings of section 12(1) of the
Constitution of the Federal republic of Nigeria (which is the only
and most related provision to these comments on the issue).
It provides thus:
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.[vi]
Clearly, the above provision is regards the applicability of
such treaty in Nigeria. That is to say, it can only operate as law
within Nigeria to the extent allowed by the National
Assembly. However, for the international community, an
obligation would have been created in as much as the sovereign has
deposited the instrument of ratification or accession and in
accordance with the treaty and thus the state would be bound. It is
on that note that it must be stated that these comments, though not
unrelated with the theories of dualism and monism[vii][2]
mainly seek to address the manner of creation of an international
obligation.
The proposal here is that such ratification by the president
alone ought not create and impose an obligation on the state, and
for the following reasons. The protection of state sovereignty can
be said to be the hub of international law, ideally at least. The
idea of sovereignty (the complete power to govern a country)
presupposes a supreme national legal order, Constitution (unwritten
as in UK, and written in the case of Nigeria) which is the basic
law defining the manner in which the state is to be governed and
the yardstick for determining where sovereignty lies. While the
argument of where Sovereignty lie is yet settled, it is arguable
that the constitution has a pivotal role in the creation of the
sovereign, the president as in Nigeria, and empowers him to enter
into treaties. To sum it, the sovereign is a creation of the
constitution (written or unwritten).
Having said that, it becomes rather rhetorical to ask that: IF
THE INTERNATIONAL COMMUNITY WILL RECOGNIZE THE SOVEREIGN
(PRESIDENT), THE OFFICE OF WHICH IS A CREATION OF THE SOVEREIGNTY
OF SUCH A STATE THROUGH THE CONSTITUTION, WHY SHOULDN’T IT LIKEWISE
RECOGNIZE THE PROVISION OF THE SAME CONSTITUTION THAT REQUIRES THE
PRESIDENT TO OBTAIN THE APPROVAL OF THE NATIONAL ASSEMBLY TO CREATE
AN INTERNATIONAL OBLIGATION OF THE STATE? It clearly should. This
ought to be the answer where despite such provision in the national
constitution of a state, a supranational court would entertain
jurisdiction over a matter on the basis of the lone ratification by
the sovereign. The mere accessions by the sovereign without
approval of the national assembly (or equivalent bodies) where
required by the constitution of that state should not confer
jurisdiction upon this court. Not to do this is dangerous
disrespect for and robbery of the sovereignty of states. As rightly
said by Bricker & Webb,[viii][3]
that danger was never more accurately described by Mr. John Foster
Dulles in his Louisville, Kentucky when he said:
The treaty making power is an extraordinary power, liable to
abuse. Treaties make international law and also they make domestic
law. Under our constitution, treaties become the supreme law of the
land. They are, indeed, more supreme than ordinary laws for
congressional laws are invalid if they do not conform to the
constitution, whereas treaty law can override the constitution.
Treaties, for example, can take powers away from the congress and
give them to the president; they can take powers from the states
and give them to the federal government or to some international
body, and they can cut across the rights given the people by their
constitutional bill of rights.[ix]
I agree. Interestingly the above comments were made in
opposition to the Senate Joint Resolution 1 which is designed to
prevent abuse of the treaty-making and other international
agreement-making powers in respect of the United States
Constitution.
In the stead of conclusion, it is the writer’s humble opinion
that supranational courts should respect the totality of the will
of the people as voiced in their national constitution and not
merely the lone acts of sovereigns creating obligations. I agree
with US Supreme Court when it said in the Chinese Exclusion
Cases,[x] that the powers of
government are delegated in trust, and are incapable of transfer to
any other parties. They cannot be abandoned or surrendered. The
exercise of these public trusts is not the subject of barter or
contract,”[xi] including treaties.
However, I should warn that care must be taken so as to avoid the
possibility of the above proposition being used by states to
orchestrate confusion and avoid international obligations. This is
because situations could arise where a state, having ratified a
treaty through the President and benefit from it, seek to avoid the
obligations where it would be detrimental on the ground that
certain provisions of the national constitution creating a
condition precedent to the validity of such ratification were not
complied with. Thus, at the point of depositing the instrument of
ratification, there must be sufficient demonstration that all
provisions of national constitution of that state creating
condition precedents have been duly complied with for such
international treaty to bind.
[i] Paragraph 4, Hypothetical Case, 27th
African Human Rights Moot Court Competition, University of Ghana,
6-11 August.
[ii] article 34(2) of the Protocol
[iii][4]
see art. 34(7) of the protocol
[iv] see art. 125 of the Statute).
[v] Section 130 of the Constitution
[vi] Section 12(1) of the Constitution
[vii][5]
Which theories relate to the applicability of international law
within national confines and alongside the domestic laws of a state
as envisaged in section 12 of the 1999 constitution of the federal
republic of Nigeria.
[viii][6]John W. Bricker & Charles
A. Webb, Treaty Law vs. Domestic Constitutional Law, 29
Notre Dame l. Rev. 529 (1954). Available at:
http://scholarship.law.nd.edu/ndlr/vol29/iss4/2)
[ix] Speech Of April 12, 1952 Reprinted In Hearings
Before A Subcommittee Of The Senate Committee On The Judiciary On
S. J. Res. 1 And S. J. Res. 43, 83d Cong., 1st Sess., 862
(1953))
[x] Chan Ping v. United States, 130 U.S.
581, 609 (1889).
[xi] Ibid