Colonialism has its many vestiges in Africa, some good, some bad, and some terrible. One lamentable vestige, was the resulting dispute between Nigeria and Cameroon as regards territorial sovereignty over the previously colonially occupied Bakassi Peninsula, which nearly led to armed confrontation. This article serves to give context to Nigeria’s application of international agreements as guided by its domestic laws through the use of a historical event, which will serve to highlight how national regulation may possibly have an impact on international obligations, namely those encompassed in undomesticated space treaties.
The United Kingdom, per judgement of the International Court of Justice, had, by virtue of the Anglo-German Treaty of 1913, transferred ownership of Bakassi Peninsula to Germany. Similarly, in 1975, via the Maroua agreement, General Yakubu Gowon, acting on behalf of the Federal Republic of Nigeria, transferred the peninsula on to his Cameroonian Counterpart, Ahmadou Ahidjo. Both parties signed this agreement.
Nigeria would ultimately rescind this agreement, citing procedural irregularity, despite rendering it an international obligation, by signing the agreement. Nigeria’s argument was that the signatory had not possessed the requisite authority to sign on behalf of the state.
The International Court of Justice was now tasked with settling the conflict between Nigeria and Cameroon, as regards ownership of this same peninsula. Nigeria’s argument was premised on the (then) Nigerian constitution (now section 12 of the 1999 Constitution of the Federal Republic of Nigeria, as amended) which stipulated that such agreement could not have been binding on Nigeria because it was not ratified by the Supreme Military Council (equivalent of the constitutional National Assembly). Such a council is vested with the requisite powers to sign binding international agreements. Section 12 of Nigeria’s 1999 constitution provides as follows;
“No treaty between the Federation and any other country shall have the force of law except to the extent which any such treaty has been enacted into law by the National Assembly” this provision was solidified in the seminal case of Abacha v Fawehinmi  9 NWLR (Pt 475)710.
This section highlights one of Nigeria’s international law characteristic; dualism. Dualism is the notion of law that, in matters requiring legal application, places national law as superior in position, to international law, and consequently requires; that for any international law agreement to be binding and enforceable in such domestic state, it must be domesticated or translated to domestic law, necessarily by the National Assembly. Dualism is in contradistinction to monism which asserts the opposite, which is that international laws become automatically binding on domestic affairs, regardless of whether it is translated into national laws. By virtue of section 12 of Nigeria’s 1999 constitution, Nigeria is clearly a dualist state.
Of the results of this philosophy, one significant effect is that unless a law has been domesticated (meaning the law has been transformed into local law, and is no longer merely an international law), such international law has no legal force in Nigeria.
This article thus intends to analyse section 12 in light of the five treaties that make up space law, in addition to the general agreement of on treaty interpretation – that is, the Outer Space Treaty, the Registration Convention, the Rescue and Return Agreement, the Liability Convention, and the Moon Agreement, – as well as the Vienna Convention on the Law of Treaties.
The Nigerian National Assembly has domesticated the Outer Space Treaty. However, the 4 other space treaties are yet to be domesticated. This would mean that the liabilities in any of the undomesticated treaties would consequently not have the force of law in Nigeria, as was advanced by Nigeria in the case against Cameroon. It is however interesting to note that in the international scene, despite undomestication, Nigeria is still a party and signatory to 4 of the 5 treaties, excluding the Moon Agreement. Nigeria acceded to the 4 treaties, which signifies agreement with their provisions and voluntary consent to be bound by the provisions of the treaties. The conundrum becomes clear; in the international scene, Nigeria is bound to the provisions of space law, by virtue of a fundamental principle of international law; pacta sunt servanda (meaning all agreements entered into in good faith are binding on the party), but in domestic courts, Nigeria is not bound, by virtue of its dualist propagated section 12 provision.
The question now becomes; what is the status of duties and obligations provided for by the treaties of space law in Nigeria. Can Nigeria avoid international obligation and liability on the basis of its dualist nature? To answer this question, one must make recourse to the Vienna Convention on the Law of Treaties. Article 46 of the Vienna Convention on the Law of Treaties provides that “a State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”.
In other words, in such a case where Nigeria has an obligation under space law, Nigeria cannot excuse such obligation by asserting that the consent given, by accession, to the 3 undomesticated treaties is non-enforceable due to the National Assembly not yet having domesticated the treaties. The question consequently becomes whether section 12 is an internal rule of fundamental importance. The answer being in the negative, the ICJ dismissed the aforementioned argument of Nigeria, against Cameroon, in the prior case involving the Bakassi Peninsula.
To give a further example illustrating the intricate application of international liability, Article 2 of the Liability Convention provides that “a launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”. For the purposes of the Liability Convention, a launching state Is any state that launches or procures the launching of a space object.
From the above, we see a clear obligation to pay compensation where damage has been caused on the surface of the earth. By virtue of the article, Nigeria would not be able to evade liability for damage caused in outer space, even more so to the extent that the ICJ has pronounced that section 12 cannot be regarded as a rule of fundamental importance in order to evade international obligations. Despite Nigeria not having domesticated the Liability Convention, they will resultantly, as a cause of the above, take active steps to mitigate damage in outer space.
A final clarification as to the status of undomesticated international provisions of space law is found in article 27 of the VCLT. This article provides that
This is in line with a principle of international law that a state cannot rely on municipal laws in justification of non-performance of international law, also provided in article 27 of the VCLT
“A party may not invoke the provision of its internal law as justification for its failure to perform a treaty”
With the dualist nature of Nigeria being a feature of internal law, it could be said that this prohibition applies to it, and subsequently, any argument from Nigeria, stating that it could not be bound to obligations because such obligations have yet been domesticated in accordance with internal law, will not stand, based on this provision. This principle was asserted in the case; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory Advisory Opinion (1932) PCIJ SER. A/B, NO. 44 (Polish Nationals in Danzig), the Permanent Court of International Justice 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.”
Thus, if Nigeria is responsible for such a damage, and consequently liable to pay compensation, the mere fact that Nigeria did not, by virtue of section 12 of the 1999 constitution, as amended, domesticate the provisions of the Liability Convention, will not, in normal circumstances, excuse Nigeria’s international obligation to pay compensation for such damage it has occasioned, as evidenced by the decision of the ICJ in the case between Nigeria and Cameroon. This goes for the other 3 undomesticated treaties in turn.
Also, the crux of the Liability Convention, that is, that a launching state is responsible for damage caused by its space object, is considered a customary international law. Furthermore, such general customary law binds all states, with the exception of a persistent objector. Consequently, Nigeria, not being a persistent objector to the aforementioned customary international law, is also bound to it as a general customary law.
From the above, the conclusion to be drawn is that if an issue of the obligations of Nigeria comes up for adjudication in a Nigerian court, the undomesticated obligations of space law may not be backed by the courts. However, if such a case fortuitously gets to the ICJ for adjudication, Nigeria will have no choice but to fulfil such obligations, or risk international law sanctions. Summarily, in spite of the constitutional supremacy of the 1999 constitution, the provisions of the constitution will not be, under normal circumstances, excuse Nigeria’s space law obligations.
***Update: The author replaced the words such as ratified or unratified to domesticated or undomesticated, for clarification purposes.
Faleti Joshua is a space enthusiast, an amateur astronomer, an LL.B degree holder and a Manfred Lach’s alumnus. He has an unbridled interest in the physical as well as the legal attributes of space.
Very well structured argument to support the conclusion. But in other words, what does this mean for Nigeria on a grander scale, and section 12 of the constitution?
The dualistic notion has simply been decided to be ineffective. I guess my question is, isn’t this a case of two different bodies of law coming around to declare one is more superior, international law itself declaring international law cannot be ousted by national law?
What do you think?
That is exactly what it means, Mr Tux. Nigeria via section 12 tries to assert its sovereignty, but in the end, it’s sovereignty is to the extent that it does not give Nigeria the power to shy away from international obligations.