Assent refers to the expression of approval, agreement or permission; especially nonverbal conduct reasonably interpreted as willingness. 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. A signature is the formal indication of agreement with its content. According to Chirelstein, the requirement of assent which is fundamental to the formation of a binding agreement, 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.
ASSENT TO THE AFCFTA:
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 (AfCFTA or the Agreement), pursuant to Article 23 of the Agreement. Presently, fifty-two African nations except Nigeria, Eritrea and Benin have assented to the Agreement. The Agreement seeks to create the world’s largest free trade area which will increase intra-African trade from the current 19% to 52.3%, eliminate trade barriers among African states thereby facilitating free trade in Africa, reduce tariffs on goods by 90% and boost overall growth, create jobs and reduce poverty on the continent.
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.
ASSENT SUBJECT TO RATIFICATION:
An international agreement could provide for subjection of the assent to 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. 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.
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.’ Examples include most bilateral agreements (treaties) which deals with more routine and less politicised matters.
WITHDRAWAL OF ASSENT:
It has been said that all trade agreements, whether bilateral, regional or multilateral, are international treaties in nature. The enforceability of treaties is dependent on being a party to it. It is therefore expedient that international agreements contain provision for withdrawal as assent is based on volition of state parties. An example of a withdrawal clause is contained under Article 28 of the AfCFTA 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 effective two years after the receipt of same by the Depository.
The AfCFTA 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 (through accession) having taken such steps to become part of the AfCFTA.
By virtue of Article 24 (1) of the Agreement, its entry into force is contingent on the deposit of twenty-two (22) instruments of ratification with the Chairperson of the African Union Commission. 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 24 (1) has been achieved. The said article 24 (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. In the circumstance, Nigeria became the 53rd African nation to express her intention to be bound by the Agreement on 7th July, 2019 when President Buhari acceded to 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 when Nigeria also deposited her instrument of accession with the African Union Commission [the Depository according to Article 25(2) of the Agreement. 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. In this vein, the Agreement came into force in respect of Nigeria on the date of her deposit of her instrument of accession, 7th July, 2019 as stated above.
• G.A. Garner Black’s Law Dictionary (8th edn., Boston: West Publishing Company, 2004), pp. 355; 4311. C. Soanes and A Stevenson., The Concise Oxford English Dictionary (11th edn., Oxford University Press, 2004).
• D.P. O’Connell, International Law, (Vol. 1, Stevens and Sons Limited, London: 1965), p. 230.
• M.A. Chirelstein, Concepts and Case Analysis in the Law of Contracts, (1st edn., Foundation Press, 1990) p. 66.
• 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.
• Vienna Convention on the Law of Treaties, 1969; Articles 10, 12 and 18.
• 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.
• 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.
• 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.
• E.A. Oji, ‘Application of Customary International Law in Nigerian Courts’,  NIALS Law and Development Journal; p. 154.
• 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.
• AfCFTA Agreement, Article 25(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.
• 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.
• Punch Online, ‘Buhari Signs AfCFTA Agreement in Niamey’ Available at: <https://punchng.com/breaking-buhari-signs-afcfta-agreement-in-niamey/> Accessed 7 July, 2019.
This article was previously published at the Firma blog; available at: https://thefirmaadvisory.com/new-blog/2019/6/13/legal-effect-of-assent-under-international-law-a-case-for-the-afcfta-1
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