A contention made recently in the course of labor negotiations by A (a Union) to B (an employer) that "...you have no option, you must sign a Conditional Bargaining Agreement (CBA) ..." contending further, that failure to do so puts you "...in contravention of the law", prompts this article. The fact that a third party mediator expressed a view that local laws implied such an obligation, gives it added impetus.
A's position was that seeing as the Nigerian government had ratified two International Labor Organization Conventions (of 871 and 982), that at the end of negotiations between them, B was mandated to sign the CBA. In other words, Nigeria was a signatory to the conventions and consequently, it was immaterial whether the employer desired a relationship with A or not. Another way of stating it perhaps is that from A's perspective, the employers' freedoms to choose had been curtailed to the extent of the two conventions. This, in summary, was the argument put to the employer. It suffices to say the employer did not share those views and took advice.
Leaving aside for the moment the accuracy or otherwise of A's interpretations of the ILO's, our concern is as regards its contention that ratification had designated the ILO's to the status of law and, as a result, sequel to negotiations between itself and the employer, the employer was legally obligated to append its signature to a CBA.
We will return to the ILO's. For the moment, given A's many other statements regarding treaty enforceability, we consider it will help to take a look at the position of the law as it concerns treaties. We hope this will provide a little clarity to an area which, of recent, seems to have become weighed down by some rather peculiar arguments.
Treaties and Conventions
It is sufficient to describe a treaty/convention as an agreement between countries on matters that bring them together, and in respect of which, together, they consider it necessary to have an agreement. Broadly speaking, they embrace all aspects of international relations; to facilitate cross border trade & investment; those to track and prosecute cross jurisdictional criminal activity; human rights, the many environmental related conventions, and others. The International Labor Organization conventions similarly fall for mention. They are usually made directly between governments3; in other words, the powers to sign a treaty in a Presidential system, resides in the President4.
While the foregoing may have conveyed to A an understanding of an immediate force of law, and of benefits falling immediately to private persons5, it would seem it failed to appreciate the further step a country's legislative authority6 is usually always required to take to give a treaty legal effect i.e., the domestication process.
The English case of JH Rayner Ltd v Department of Trade7 underscores the point. Describing treaties as "contracts between governments of two or more sovereign states", the court, per Lord Templeman, held that:
"International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which her majesty's government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated in to the laws...by statute the courts of the United Kingdom, the courts...have no power to enforce treaty rights and the obligations at the behest of a sovereign government or at the behest of a private individual"8.
The position of Nigerian Law
The foregoing, in a word, represents the position under Nigerian law. In Abacha v Fawehinmi9, in which Nigeria's ratification of the African Charter on Human and Peoples Rights was one of the issues for the court, their Lordships, considering section 12 (1)10, of the Constitution held as follows:
"It is therefore manifest that no matter how beneficial to the country or the citizenry, an international treaty to which Nigeria has become a signatory may be, it remains unenforceable, if it is not enacted into the law of the country by the National Assembly"11.
Thus, ratification itself does not by itself alone give a treaty the status of a law; an Act of the National Assembly is required to give it effect locally. The African Charter on Human and Peoples Rights domesticated by the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act Cap A9, LFN 2004, is by way of example.
Looking again at A's arguments
A was adamant as to the accuracy of its statements as regards the applicability of the ILO's - observing that rights had accrued by virtue of the same and, as A put it, B could not now take a position "contrary to what was obtainable across the world [and refuse to sign a CBA]".
However, the truth of the matter is that neither the 89 nor 98 ILO compels signatory countries to CBA's. While both speak to workers rights to organize, etc, and to employers' responsibilities in the recognition of those rights (including the fostering of collective bargaining), this does not equate to a statement mandating the signing of a CBA at the conclusion of any such bargaining (negotiations).
It is trite to say that Nigerian law is the law applicable in Nigeria, and our courts are the arbiter of disputes between its citizenry. While it is accepted that treaties may create expectations of new rights (or of imposing new obligations) as discussed above, a positive act of domestication is a prerequisite to their enforcement in our courts. A's observation of what obtains elsewhere, and of B acting not in compliance with the treaty/Nigerian law in refusing to sign, perhaps suggests some wisdom to an analysis of other jurisdictions and what obtains there as far as treaties are concerned and for a possible explanation A's confusion in its statements as regards their enforceability. Unfortunately however, space within this journal precludes such an analysis being carried out at this time.
Guiding our clients
The fact of a country being at liberty to legislate in a manner inconsistent with a treaty, in other words, a subsequent law not necessarily aligning with treaty obligations, is a point A seems to have missed in the negotiations. Once again the case of Abacha v Fawehinmi (supra) confirms the position of the law in this regard12, as it does as regards the doctrine of privity (of contracts; in relation to treaty obligations)13, which is another point A seems to have missed.
The position of Nigeria law is summarized above. A mandatory requirement to enter legal relations with those who a party might have no desire to enter such relationships with is a not a part of our law. And long may it remain that way. The law is that a treaty must be incorporated (in whole or part14) prior to it attaining enforceability status in our courts.
Negotiating parties do not always reach consensus; indeed that is the ebb and flow of negotiations. While it is hoped of course that they will find a middle point, threats by A to violate the laws of the land should not be the immediate next statement where failure to reach an agreement is not immediately achieved.
The Honourable Minister of Labour and Productivity, in the not too distant past, had reason to observe that "...trade unions are using strikes as a weapon to force government and private sector employers to accede to their demands thereby violating the laws of the land".
The Honourable Minister's concerns were shared by B. It is necessary to note though that the obligation to observe the law is one falling to everyone: union members inclusive. It benefits us all to heed this.
1 ILO Convention 87 Freedom of association and protection of the right to organize.
2 ILO Convention 98 Right to Organise and Collective Bargaining.
3 A treaty entered into between Nigeria and the government of the United States of America for instance.
4 See section 12 of the Constitution of the Federal Republic of Nigeria. "Treaty making is usually in most Presidential Systems one of the powers of the President as part of the external affairs function of the government". Professor J O Akande: The constitution of the Federal Republic of Nigeria. In the United Kingdom of the other hand, that power would rest in the Crown (the Queen) albeit exercised on her behalf by the government (the Prime Minister).
5 For instance, a right of the kind asserted by the party claiming an automatic entitlement to a CBA in the negotiations referred to in this article. His position being that the act of ratification had designated to him a entitlement not previously available under local law.
6The National Assembly in the case of Nigeria. See again section 12 (i) of the Constitution of the Federal Republic of Nigeria. The changes made to the Constitution by the Constitution of the Federal Republic of Nigeria (Third Alteration)Act 2010 (section 254 C) conferring jurisdiction on matters relating to treaties, conventions, protocol (as far as they affect labour, workplace, industrial relations, etc), on the NIC do not undermine or afffect the powers inuring to the national assembly legislative house in matters relating to the domestication of treaties, etc.
7 (1990) 2 AC 418, 477
8 Of course in this context, private individuals would include companies and all other groups and bodies registered under local laws as having legal personality".
9 (2001) WRN vol. 51, 29
10 "No treaty between the federation and other country shall have the force of law except to the extent to which any such treaty has been enacted into the law by the National Assembly". Section 12 (1) the Constitution of the Federal Republic of Nigeria 1999.
11 Per his Lordship Ejiwunmi JSC, at page 165-166; See too per his Lordship Ogundare JCA, as he then was in the case of Oshevirie v British Caledonian Airways Ltd (1990) 7NWLR pt 163 at 507, where he said: "An international treaty...is an expression of agreed, compromise principles by the contracting states and is generally autonomous of the municipal of contracting states as regards its application and construction".
12 Where their Lordships per Mohammed JSC (who although gave a dissenting judgment) said, at 121-122, "...a state is always at liberty if it deems it desirable due to domestic circumstances or international considerations to legislate a law inconsistent with its treaty obligations. I agree that such an exercise will be without prejudice to any remedies available against the state in international law at the instance of other states that have ratified the treaty".
13 The issue being that seeing as a treaty/convention is a contract between states, until they become a part of laws (through an Act of the National Assembly), they do not create enforceable rights in the citizenry such that they can sue upon them.
14 The African Charter on Human and Peoples Rights is by way of example of the former, and the New York "Convention of the Recognition and Enforcement (Arbitral) Awards" the latter; i.e., made a part of our law by the Arbitration and Conciliation Act Cap A18 LFN 2004, section 54 thereof.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.