Treaty Law

Under the relevant rules of the law of treaties as provided for in Article 11 of the Viena Convention on the Law of Treaties (VCLT), a state’s consent 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.” It appears from the text of Article 11 of the VCLT that expression of consent to a treaty must generally be by means of an express or overt act, notice of which must be given, or received by, the other parties to the treaty. In contrast to the above legal position, the practice of some ECOWAS Member States in relation to Protocols governing the ECOWAS Court of Justice raises the question of whether a state’s consent to be bound by a treaty may be implied from its conduct. Of particular interest in this regard, is the Republic of Cape Verde. This essay seeks to determine whether the concept of implied consent could offer a conceptual justification for the exercise of the ECOWAS Court’s jurisdiction over Member States that have either not signed or ratified the relevant Protocols governing the Court’s jurisdiction.

I immensely enjoyed reading Dr. Mbori’s piece in Afronomicslaw titled ‘Hidden in Plain Sight: Kenyan Supreme Court Shooting is own Foot on Merits Review and Appellate Jurisdiction in Continuing Supremacy Battle with the East Africa Court of Justice (EACJ). I now have the pleasure of partially disagreeing with him particularly on whether the EACJ has (merit) review jurisdiction over national laws. This comment is not an attempt at exhaustively analysing the Supreme Court Advisory Opinion in Reference No. E001 of 2022. I found that Advisory Opinion to be surface-level, a bit incoherent and internally inconsistent, and devoid of adequate reasoning. As such, I refrain from commenting on other key issues in the Advisory Opinion. Some of those issues are: how the Court determined that it has jurisdiction to issue the opinion; the relationship between international and municipal law; the Court’s repeated failure to distinguish sources of international law and their interaction with municipal law; the court’s (misplaced) discussion on subsidiarity and margin of appreciation, and the apportionment of interpretation and application functions between the EACJ and domestic courts. Rather, my comment is restricted to the question of whether the EACJ has (merit) review jurisdiction over national laws, which the Supreme Court answered in the negative and which Dr. Mbori answers in the affirmative. I partially disagree with both the Supreme Court and Dr. Mbori, but for different albeit related reasons.