Treaties represent an important instrument by which States undertake and accept responsibilities in the international arena. Nigeria has in furtherance of its international relations entered into a number of multi-lateral and bilateral treaties. Nigeria has by its constitution expressly provided for the treaty making procedure and how treaties can acquire the force of law in Nigeria. It is however, apposite to note that the applicability of a treaty is dependent on a number of factors beyond the signing ceremonies that usually attend the process of signifying consent to be bound by the provisions of the treaty in question. Ratification and Domestication, which are the central focus of this work, are integral part of that procedure. This work, therefore, examines how treaties acquire the force of law, the inter-relationship between the Executive and Legislative Arms of Government in treaty making, Procedure for ratification and domestication and its challenges for Nigeria.

CHAPTER ONE: INTRODUCTION

1.1       BACKGROUND TO THE STUDY
A great number of laws that make up the Nigerian body of laws emanates from treaties. Consequently in Nigeria, treaties do not automatically have force of law or becomes applicable and enforceable unless enacted into law by the National Assembly. Hence, Section 12(1) of the Constitution provides as follows:-
No treaty between the Federation and any other country shall have the force of law except to which any such treaty has been enacted into law by the National Assembly.1
This Section further provides that where the subject-matter of a treaty falls outside the Exclusive Legislative List, a bill for an Act of the National Assembly to give the treaty the force of law must be ratified by a majority of all the Houses of Assembly in the Federation before it is enacted into law and assented by the President. It follows, therefore, that until a treaty has been domesticated in Nigeria, it cannot be applied within the country.
Treaties are governed by international law embodied in the Vienna Convention on the Law of Treaties signed on 23rd May, 1969 and entered into force on 27th January, 1980. Treaties are known by different names which include conventions, protocols, declaration, charter, covenant, pact, act, statute, agreement, concordat, modus vivendi, exchange of notes (or letters), process verbal, final act and general act. 2
Article 2 (1)(a) of the Convention3 provides:
For the purposes of the present Convention; Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation…
Every State is competent to enter into treaties regarding matters that fall within its sovereignty. This capacity in itself is an attribute of statehood as prescribed in the Montevideo Convention which provides as follows:
The State as a person – i.e. subject of international law should possess the following qualification:-
e)         a permanent population;
f)         a defined territory;
g)         government;
h)         capacity to enter into relation with other States. 4
Treaties may be bilateral or multilateral and have formed an important basis for the determination of rights and obligations of States that are Party to them. According to Prof. M. T. Ladan5; “one of the characteristics of the law of treaty is that the treaty construction is frequently used not only for the conduct of international transaction of various kinds, but it is also used to impose binding rules of precision and details in various areas of international law (eg human rights, environment and humanitarian law)”.
Treaties are usually negotiated by accredited representatives. Under Article 7(2) of the Convention 6, a Head of State, Head of Government or Foreign Affairs Minister is  not required to furnish full powers before negotiating for his State. Similarly, a Head of Mission need not produce full powers before adopting a treaty between his own State and his Host State. Same applies to a representative of international conference or organization. Although under Article 27 of the convention 7, a Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Article 46 of the Convention 8 provides good cause for invalidating a treaty where a representative acted in manifest violation of the provisions of domestic law.
However, the Vienna Convention lays down rules for the adoption of the text of treaty under Article 9. There are different ways in which States can express their will to be bound by the contents of a treaty. Whichever way that is applicable depends on what is agreed upon in the treaty itself. The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed. 9
By ratification, Parties declares their intention to be bound by a treaty they had signed. A bilateral treaty becomes effective on ratification but a multilateral one usually awaits the required number of ratifications and, perhaps, a stipulated time thereafter. Ninety days has been adopted in many treaties. On the other hand, accession (or adherence) is the method by which a State becomes a party to a treaty it is not a signatory.10 Once a treaty becomes operative, it can only be adhered or acceded to by Parties that had not signed it. Thus, adhesion or accession has the effect of signature and ratification combined.11 Some treaties come into force by accession only, for example, the General Act for the Pacific Settlement of International Dispute, 1928 and the Convention on the Privileges and Immunities of the UN, 1946.
In Nigeria, it takes several processes for a treaty (bilateral or multilateral) to be ratified, accepted, approved or acceded to. In some cases, after ratification, the law requires some treaties to be domesticated before they can have force of the law.
Pursuant to the provisions of the second schedule to the Nigerian Constitution12, external affairs, which necessarily involve treaty making power form item number 26 and fall squarely within the Exclusive Legislative List. By virtue of the Constitution,13 only the National Assembly to the exclusion of the State Assemblies is empowered to legislate on matters within the Exclusive Legislative List.
Furthermore, the Constitution provides that “the executive powers of the Federal Government shall be vested in the President and shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has for the time being, power to make laws.”14
This provision seemingly vests in the Executive Arm of Government the power to negotiate, sign and ratify treaties on behalf of Nigeria. In practice, however, individual Ministries, Departments and Agencies (MDAS) with active participation in most cases of the Federal Ministry of Justice and Ministry of Foreign Affairs discharges this responsibility on behalf of the Government of the Federal Republic of Nigeria. Thus, after a treaty had been concluded and signed, a Council Memorandum is expected to be prepared by the focal MDA for presentation to the Federal Executive Council for consideration and approval. Once approved, appropriate instrument is prepared and sent through diplomatic channel to the relevant State in case of bilateral treaty or to the depository in case of multilateral treaty.

1.2       RESEARCH PROBLEM
By virtue of Section 12(1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) before any treaty can have the force of the law and becomes applicable and enforceable, that treaty must first of all be domesticated even though ratified.
This provision is problematic in a number of ways:-
7)         the provision assumes that all treaties must first be domesticated before they can become enforceable and applicable in Nigeria;
8)         it disregards the fact that some treaties, that is to say, self-executory treaties do  not require domestication and would necessarily create international obligation and become binding on the country upon signature and ratification;
9)         it disregards the general principle of international law that a country cannot be allowed to plead its domestic law as a reason for its failure to carry out its international obligation validly created by a treaty;
10)       it did not take into account treaties made between the Federation and other International Organizations;
11)       conflicts with Section 19(d) of the Constitution on Fundamental Objectives and Directive Principles of the State Policy dealing with respect for international law; and
12)       it disregards the principle of “pacta sunt servanda”

1.3       AIMS AND OBJECTIVES
4)         To examine the ratification and domestication of treaties in Nigeria, highlighting the procedural challenges (if any);
5)         To ascertain the role of the executive as well as the legislature in the ratification and domestication of treaties in Nigeria; and
6)         To identify whether there is indeed conflict between the provisions of Section 12 of the Constitution and Section 3 of the Treaty (Making Procedure Etc.) Decree.

1.4       SIGNIFICANCE OF THE STUDY
The significance of this study lies not only in the enormous importance of treaties in international law but also in the challenges being presently encountered in the implementation and effective application of some treaties.

1.5       RESEARCH METHODOLOGY
Doctrinal and Teleological methods will be employed principally in examining and analyzing the topic as well as the relevant laws and work of some authors.

1.6       SCOPE OF THE STUDY
International law can broadly be divided into two categories – classical and contemporary. Classical international law deals with international customs while contemporary international law deals essentially with treaties. The main focus of the research is contemporary international law by examining and analyzing the procedural challenges in our treaty making procedure. Therefore, the proposed research will be limited to the provisions of the relevant statutory and case laws governing treaties, ratification and domestication in Nigeria. Some textbooks on international law will be consulted. Little comparative analysis may be provided particularly from other common law jurisdiction.

1.7       LITERATURE REVIEW
It is a general principle of international law that States must respect the obligations imposed on them by international treaties they are signatory to. To this end, no State is allowed to renege from such obligation by invoking its internal legislation.
Section 46 of the Convention15 provides as follows:-
“(1) A State may not invoke the fact its consent to be bound by a treaty has been expressed in violation of a provision of its internal law...”
On the other hand, Section 4716 provides inter alia:-
“If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe the restriction may not be invoked as invalidating the consent expressed by him unless the restrict ion was notified to the other negotiating States prior to his expressing such consent.”
The summary of the provisions cited above points to the general concept that State Parties are not to rely on their internal legislation to renege from their treaty obligations. However, these sections did not take cognizance of the fact that internal bureaucracy could affect entry into force of such treaties and, thus, affects compliance by such State which this study intends to do.
Commenting on the need for international law to concern itself with the State?s manifestation externally of its will on the international plane to be bound after taking care of its internal bureaucracy, D. J Harris17 in his work said ; “International law leaves to each State the determination of the organs and procedures by which its will to conclude treaties is formed, and is itself concerned exclusively with the external manifestation of this will on the international plane…in consequence, if an agent, competent under international law to commit the State, express the consent of the State to a treaty through one of the established procedures, the State is held bound by the treaty in international law…”
Also in his work, U.O.Umozurike18 said; a party may not invoke its internal law in justification for non-performance unless such violation is manifest. Municipal law may prescribe the process for carrying the treaty in force but this, strictly speaking, is not the concern of international law.
On the other hand, Prof M. T. Ladan19 while contributing to the debate put it this way;
… responsibility exists even in situations where actions are directly contrary to orders given by superior authorities, the State concern cannot take refuge behind the notion that, according to the provisions of its legal system, those actions or omissions ought not to have occurred or ought to have taken different form…
Vienna Convention provided for grounds upon which a State could invalidate its treaty obligation. Be that as it may, invalidity cannot be successfully pleaded unless facts constituting the ground had been communicated to the other party before he expressed his consent to be bound. 20 Some of the grounds provided by the Convention includes; Fraudulent Conduct21, Corruption of a representative22, Coercion of a representative23, and treaty procured by threat or use of force in violation of the principles of the UN Charter.24
The essential principle inherent in the notion of an illegal act as Prof. M. T. Ladan25 aptly put it  is that: reparation must, as far as possible, eliminate all the consequences of the illegal act and restore the situation which would, in all probability, have existed if that act had not been committed.
However, would a constitutional provision calling for ratification only with the advice and consent of the Legislature be relevant to the international validity of an agreement?
The traditional view is that a treaty made in disregard of constitutional prescribed limitations and procedures or by an incompetent State organ, is for that reason void or voidable at the option of the State in whose behalf the treaty was concluded. Unfortunately, there is lack of precedents of such invalid treaties.
Commenting on this issue, FriedMann; Lissitzyn and Pugh26 said: the fact is conspicuous, however, that no treaty has been found that has been admitted to be invalid or held by an international tribunal to be invalid, because concluded by a constitutionally incompetent authority or in an unconstitutional manner, either by an individual government in bilateral relations, or by an international organization, like the League of Nations…
Because of lack of precedents in which “constitutional theory” has been applied to invalidate a treaty, coupled with the need to protect international transactions, what therefore, shall be Nigeria?s argument in the event it reneges from its treaty obligation having recourse to Section
The “constitutional theory” has been subjected to one or more qualification which are as follows:-
1.         A State may be deemed to have waived its rights to assert the invalidity of a treaty if it knowingly neglects over a period of time to repudiate the agreement or if it accepts benefit thereunder. The foregoing rule is sometimes regarded as a corollary of the principle of good faith or as an instance of estoppel. This is the one of the grounds upon which International Court of Justice ceded Bakassi Peninsular to the Republic of Cameroon.29
2.         A State seeking to repudiate an agreement on the ground of its having been concluded in disregard of relevant constitutional provisions must answer in damages to the other Contracting Party if the latter did not know and had no reason to know of the limitations imposed upon the organs of the State; and
3.         A treaty concluded in disregard of relevant constitutional provisions may be binding if the constitutional provisions in question are not “notorious” in the international community.
It could be observed that the literatures quoted above tries to underscore the fact that countries who are State Parties to a treaty cannot rely on their domestic law to invalidate it save for the circumstances adumbrated in the Convention. In Nigeria treaty making has been confronted with a lot of challenges posed by our law and it has persisted because no attempts have been made to address it either by way of amendment to the relevant laws or judicial pronouncements putting to rest the conflict that seemingly exist.

1.8       STRUCTURE OF THE STUDY
This work is divided into five chapters. Chapter one contains an introduction to the law  of treaties and the research.
Chapter Two contains definition of terms that reoccur in the body of the work, a brief discussion on Dualism and Monism and also an analysis of the place of treaties in the hierarchy of norms in Nigeria.
Chapter Three discusses the appraisal of Sections 12 of the 1999 Constitution as well as Section 3 of the Treaties (Making Procedure, Etc.) Act. Furthermore, the Chapter discusses the role of executive in ratification and the role of legislature in domestication.
Chapter Four discusses the position of international law on ratification and domestication, the practices from other states. In the same vein, the judicial opinions on the subject-matter as well as treaties ratified and domesticated by Nigeria.
Chapter Five concludes the study and contains recommendations aimed at proffering solutions to the challenges identified.