Comments And Questions On The Legal Quality Of National Constitutions Before Supra-National Courts By Koikoibo Jasper
Posted: 18/Oct/2018

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]

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] 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] 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] 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] 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]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


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