The 1888 Briain-Yorubaland Treaty cemented preferential trade between Britain and Yorubaland, the proceeds of which were to be used to develop Yorubaland. The treaty which was concluded on 23 July 1888 between Queen Victoria, on behalf of Great Britain, and Alaafin Adeyemi, on behalf of Yorubaland, was ratified on 16 June 1890. The British government brought the treaty into operation by making a treaty-related payment of £31,5s to the Alaafin from the public purse. Nothing has been heard of the treaty from then on. The treaty however remains live under international law. The question is how to enforce it.
The existence of the treaty is not in doubt. Indeed, its existence was made public in government publications in London at the time. The treaty document has been archived, and today, members of the public can easily obtain copies. Because of a built-in imbalance of power between the parties to the 1888 Britain-Yorubaland Treaty, Britain hitherto treated the treaty with utter contempt. Britain’s behaviour however is not permissible under the international law of treaties. No nation is above the international law. The Yoruba are entitled to seek enforcement of the 1888 Britain-Yorubaland Treaty. Members of the Yoruba Party in the UK (YPUK) being heirs to the Yoruba legacy are entitled to represent the Yoruba on this matter.
YPUK believes that there are no legal impediments to implementing the 1888 Britain-Yorubaland Treaty in full. Parliamentary legislation was not needed at the time of its making because domestic law did not have to be changed or made to implement the treaty. The treaty made no changes to Britain’s constitutional arrangement. The treaty did not include any escape clause or provisions for termination or withdrawal from it by either party. The treaty had a dedicated dispute resolution provision in its Article 4 that Britain could have used if unhappy about any aspects of the treaty. The treaty had elements of a contract in its Article 8, which brought it under the English law of contract. Also applicable may be Article 66 of the 1969 Vienna Convention on Treaties, which provides procedures for ‘judicial settlement, arbitration and conciliation’.
YPUK believes that under international law, the 1888 Britain-Yorubaland Treaty binds the British government, but that the government hitherto has not acted in good faith over its implementation. Unfortunately, there is no overarching compulsory judicial system or cohesive penal system for YPUK to use to make Britain comply with its obligations under
the terms of the treaty. There are tribunals in the international legal arena to which YPUK could turn. There is, for example, the International Court of Justice (ICJ) established by the United Nations, which could give judgments, but cases can only be brought before it by countries that accept its jurisdiction. YPUK is not a country. YPUK cannot access the ICJ unless it can persuade a member state to litigate on its behalf. Only the UNGA, the UNSC, or the highest national courts could ask the ICJ to give an advisory opinion concerning questions of principle relating to the interpretation or application of the rights and freedoms defined in the treaty.
International dispute resolution mechanisms, such as, the Permanent Court of Arbitration (PCA), established in 1899, provide YPUK with a ray of hope. The PCA facilitates arbitration and other forms of dispute resolution. The PCA has 124 Contracting Parties including Britain, which have acceded to one or both of the PCA's founding conventions. The PCA provides services to various combinations of states, state entities, international organisations, and private parties. YPUK could avail itself of the services of the PCA. YPUK is entitled to declare a dispute over the 1888 Britain-Yorubaland Treaty because the British government has consistently rebuffed attempts by one Yoruba group or another to start a dialogue. YPUK could make a formal application to the PCA for its arbitration services. The downside is that YPUK may have to pay for these services, the cost of which would be considerable.
Judicial review is possible under British domestic law, but it would cost YPUK at least £25,000, if not more. Judicial Review is a type of court case concerned with how a decision was made, not the rights or wrongs of the decision. A ‘failure to act’ is potentially challengeable in Judicial Review. The complaint here is the failure of the British government to honour the 1888 Britain-Yorubaland Treaty. The legal challenge is based on irrationality (as defined in the GCHQ case), that is, the British government’s ‘failure to act’ by not implementing the treaty in full was so ‘unreasonable that no reasonable government could ever have come to it’. There is no obvious defence. First, Britain requested for this treaty in the first place. Second, Britain itself wrote the text of the treaty and is responsible for the entire content. Third, Britain inserted a dispute resolution clause in Article 4 of the treaty, which was available to use if Britain had been unhappy with any aspects of the behaviour of Yorubaland. Fourth, Britain did not include in the treaty an escape clause or provisions for termination or withdrawal, which means that Britain was forever locked into the treaty as is.
This is a treaty of great importance. It is not possible to overemphasise its enormity and implications. The Yoruba cannot afford to let the treaty continue to lie fallow. All Yoruba should wholeheartedly and unconditionally support enforcing the 1888 Britain-Yorubaland Treaty.