By David A. Amachundi
1.0 PROEM
Assent refers to the expression of approval, agreement or permission; especially nonverbal conduct reasonably interpreted as willingness.[i] Assent is signified by means of a signature, mark or other symbol with the intent to authenticate it as an act or agreement of the person identifying it.[ii] A signature is the formal indication of agreement with its content.[iii] According to Chirelstein,[iv] the requirement of assent is fundamental to the formation of a binding agreement and implies in a general way that both parties to an exchange shall have a reasonably clear conception of what they are getting and what they are giving up.
2.0 THE AfCFTA AGREEMENT AND ASSENT
The African Union Extraordinary Summit on the 21st day of March, 2018 in Kigali, Rwanda was historic as forty-four African nations assented to the Agreement establishing the African Continental Free Trade Area (the AfCFTA Agreement), pursuant to Article 22 of the Agreement. About eleven months thereafter, fifty-two African nations except Nigeria, Eritrea and Benin assented to the Agreement. Subsequently, on 7th July, 2019, Nigeria assented to the Agreement as discussed in this paper.
Basically, the AfCFTA Agreement seeks to create the world’s largest free trade area by establishing a single continental market for goods and services, with free movement of people and investments across Africa. This will increase trade among African nations (intra-African trade) from its low level of 16% to 60% by the year 2022 according to UNECA. This is necessary because African nations trade more with nations outside Africa than among themselves and as the current COVID-19 pandemic has disrupted such trade and global supply chains, there is no better time than now to look inwards. The AfCFTA will further eliminate trade barriers among African states thereby facilitating free trade in Africa through substantial reduction of tariffs on goods and boost overall growth, create jobs and reduce poverty on the continent.[v] Therefore, the AfCFTA as a form of regional integration (free trade area) will be a catalyst for Africa’s overall economic transformation, diversification and sustainable socio-economic development.
3.0 TYPES OF ASSENT
Generally, assent to an international agreement or treaty may or may not be subject to ratification depending on the intention of the parties. This is pursuant to Articles 14 and 12 respectively of Vienna Convention on the Law of Treaties 1969. The AfCFTA Agreement qualifies as an international agreement or treaty having been negotiated among and completed by all 55 member states of the African Union.
3.1 ASSENT SUBJECT TO RATIFICATION
An international agreement could provide for subjection of the assento ratification, acceptance or approval as seen under Article 23 of the Agreement. Under such circumstance, the signature alone does not establish the consent to be bound, as it is a means of authentication and expression of willingness of the signatory state to proceed with the treaty-making process.[vi] In this regard, the signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and purpose of the treaty.[vii]
3.2 ASSENT NOT SUBJECT TO RATIFICATION
On the other hand, an international agreement could obviate the need for ratification. In such circumstance, the agreement becomes binding on the state party upon assent in what is known as ‘definitive signature.’[viii] Examples include most bilateral agreements (treaties) which deal with more routine and less politicised matters.
3.3 WITHDRAWAL OF ASSENT
It has been said that all trade agreements, whether bilateral, regional or multilateral, are international treaties in nature.[ix] The enforceability of treaties is dependent on being a party to it.[x] It is therefore expedient that international agreements contain provisions for withdrawal as assent is based on volition of state parties. An example of a withdrawal clause is contained under Article 27 of the AfCFTA Agreement which allows a state party withdraw at the expiration five years from the date of entry into force in its respect and further requires that the withdrawal notice be in writing and same shall be effective two years after the receipt of same by the Depository.[xi]
4.0 ENTRY INTO FORCE OF THE AGREEMENT
The AfCFTA Agreement upon its entry into force created a continent wide free trade area with its attendant benefits and prospects for state parties that have assented or acceded to it, ratified and deposited their instruments of ratification. It is therefore ideal that all African nations including Nigeria expressed their intention to be bound by the Agreement having taken such steps to become part of the AfCFTA.
By virtue of Article 23(1) of the Agreement, its entry into force was contingent on the deposit of twenty-two (22) instruments of ratification with the Chairperson of the African Union Commission.[xii] It is a fact that as of 30th April, 2019, the required minimum number of ratifications for the Agreement to come into force in accordance with Article 23(1) was achieved.[xiii] The said article 23(1) provides that ‘this Agreement and its Protocols on Trade in Goods, Trade in Services, and Protocol on Rules and Procedures on the Settlement of Disputes shall enter into force thirty (30) days after the deposit of the twenty second (22nd) instrument of ratification.’ Consequently, the Agreement came into force on the 30th day of May, 2019.
5.0 CONCLUSION
On 7th July, 2019, Nigeria became the 53rd African nation to express her intention to be bound by the Agreement when President Buhari signed the Agreement. This was done during the 12th Extraordinary Session of the African Union and the First Mid-Year Coordination Meeting of the African Union and the Regional Economic Communities (REC’s) in Niamey, Niger Republic[xiv] when the AfCFTA Operational Phase was launched. It is worth noting that accession has the same legal effect as ratification and usually occurs after an international agreement or treaty has entered into force. Accession is done by a nation which did not take part in the negotiations leading to the Agreement.[xv] However, in the case of Nigeria, Nigeria actively participated in the negotiations leading to the AfCFTA Agreement but decided not to sign the Agreement back in March 2018 in Kigali, Rwanda when the Agreement was open for signature to all member states. Based on the foregoing, what the President effectually did in Niamey was the signing of the Agreement and not accession. Therefore, in order for Nigeria to become part of Africa’s biggest free trading bloc and enjoy the potential benefits, Nigeria needs to follow up her assent with ratification and the deposit of her instrument of ratification. Thereafter, there should be domestication of the Agreement by the National Assembly as required by section 12 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).
CONTRIBUTOR’S DETAILS
David Amachundi Adi (Associate, The Firma Advisory). Email: Hello@thefirmaadvisory.com adlloydama@gmail.com. Phone: +2348105847051 +2349074082611 Website: https://www.thefirmaadvisory.com. Address: 1st Floor Gwandal Centre, Fria Close, off Ademola Adetokunbo Crescent Wuse II Abuja.
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[i] B.A. Garner Black’s Law Dictionary (8th edn., Boston: West Publishing Company, 2004), p. 355; C. Soanes and A Stevenson., The Concise Oxford English Dictionary (11th edn, Oxford University Press, 2004).
[ii] Ibid., G.A. Garner, p. 4311.
[iii] D.P. O’Connell, International Law, (Vol. 1, Stevens and Sons Limited, London: 1965), p. 230.
[iv] M.A. Chirelstein, Concepts and Case Analysis in the Law of Contracts, (1st edn., Foundation Press, 1990) p.
66.
[v] Nigerian Office for Trade Negotiations (NOTN) Study Report, ‘An Independent Study on the Potential Benefits of the African Continental Free Trade Area (AFCTA) on Nigeria’ (2018) Africa International Trade & Commerce Research, GIGI and NOIPolls; p. 14.
[vi] Vienna Convention, Articles 10 and 18.
[vii] Ibid., Vienna Convention. See also, United Nations Treaty Collection, ‘What is the Difference between Signing, Ratification and Accession of UN Treaties?’ Available at: <https://ask.un.org/faq/1458> Accessed 28 May, 2019.
[viii] Ibid. Vienna Convention, Articles 12. See also, United Nations Treaty Collection, ‘Glossary of Terms Relating to Treaty Actions.’ Available at: <https://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml> Accessed 28 May, 2019.
[ix] R. Leal-Arcas and C. Grasso and J.A .Rios, ‘Multilateral Regional and Bilateral Energy Trade Governance,’ (2014) Queen Mary University School of Law Legal Studies Research Paper No. 188/2014; p. 27.
[x] E.A. Oji, ‘Application of Customary International Law in Nigerian Courts’, [2010] NIALS Law and Development Journal; p. 154.
[xi] For the purpose of the AfCFTA, the Depository is the Chairperson of the African Union Commission (Article 25). This designation complies with Article 76 of the Vienna Convention on the Law of Treaties 1969.
[xii] AfCFTA Agreement, Article 24(1)-(2), this provision designated the African Union Commission Chairperson as the depository for the custody of this Agreement, transmission of a certified true copy to each Member state and for deposit and notification of instruments of ratification.
[xiii] Trade Law Centre (TRALAC) ‘Status of AfCFTA Ratification’ Available at: <https://www.tralac.org/resources/infographics/13795-status-of-afcfta-ratification.html> Accessed 28 May, 2019.
[xiv] Nigerian Office for Trade Negotiations (NOTN), ‘Nigeria Signs AfCFTA and Reaffirms Leadership on African Trade Integration’ Available at: <https://www.notn.gov.ng/post_action/156> Accessed 7 July, 2019.
[xv] United Nations Treaty Collection, Op. cit.
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