The Amalgamation of 1914 could not change the prior status of the Yorubaland as a State under international law.

Bosnia and Herzegovina v Serbia and Montenegro, Judgment, I.C.J. Reports 2007, p. 43 held that failure to maintain effective control over territory does not extinguish the legal entity in the eyes of the United Nations. In other words, although the Yoruba people do not currently have effective control over their territory, the UN is obligated to accept that Yorubaland still belonged exclusively to the Yoruba people.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 held that a state as an entity that had rights and obligations could not cease to exist. In other words, in spite of the amalgamation of 1914, because the Yorubaland had rights and obligations of a state as revealed by the 1888 Britain-Yoruba Treaty, the Yorubaland could not cease to exist as a State in its own right. 

The Yoruba people did not cede to the British the rights and obligations, which international law bestowed on their territory. At Paragraph 5 of the 1888 Britain-Yoruba Treaty, the Alaafin agreed to adjudicate by himself all trade disputes or refer them for adjudication where he saw fit. At Paragraph 6 of the Treaty, the Alaafin agreed to personally provide protection for all the markets in his domain and for all the roads traversing the Yoruba territory. The Yoruba did not ask the British for a ‘protectorate’, neither did the British offer it. The Yoruba did not give the British the right of settlement on their land, neither did the British ask for it. The Yoruba did not ask the British to act as their international mouth piece because the Yoruba themselves were able to enter into international agreements and treaties, such as, the 1888 Britain-Yorubaland Treaty. Indeed, the Yoruba at the material time were about to enter into an agreement with the French when Britain intervened with its own treaty.

Unlike their 1900 Treaty with Tonga, Britain declared ‘protectorate’ without agreement with the Yorubaland, the state it was supposedly protecting. Britain unilaterally shuffled and reshuffled different ‘protectorates’ into new artificial ones without consulting existing ‘protectorates’. In 1885, Britain declared the Oil Rivers Protectorate. In 1893, Britain enlarged that ‘protectorate’ to form the Niger Coast Protectorate with Calabar as its capital. In 1900, Britain absorbed the Royal Niger Company to form the Protectorate of Southern Nigeria with the capital at Lagos. In all cases, Britain used extra-parliamentary prerogative or Crown legislation because the government knew that parliament would not approve. The Berlin 1885 agreement gave the British the excuse to establish ‘protectorates’ in Africa. Indeed, the creation of ‘protectorates’ began life as the optics of the Berlin agreement. The Berlin 1885 agreement, which was a local agreement between some European states, was not international law.

Britain entered into a treaty with a Yorubaland with the status of a State on 3 July 1888. Nigeria is bound by that treaty. Britain recognised the Alaafin’s regime as the de facto government of the Yorubaland State; a de facto government that could create rights for British subjects that the British government could protect under that treaty. The principle of ‘continuity of States’ meant that de facto regimes are able to bind subsequent governments. Amalgamation and the creation of Nigeria on 1 January 1914 could not oust evidence of the de facto character of that Alaafin regime.

Kevin Mgwanga Gunme et al v Cameroon (Communication No. 266/2003) [2009] ACHPR 99; (27 May 2009):

‘The Commission has through its jurisprudence established the principle that violations that occurred prior to the entry into force of the Charter, in respect of a State party, shall be deemed to be within the jurisdiction rationae temporis of the Commission, if they continue, after the entry into force of the Charter. The effects of such violations may themselves constitute violations under the Charter. In other words, this principle presupposes the failure by the State party to adopt measures, as required by Article 1 of the Africa Charter.’

Amalgamation did not mean that the Yorubaland State did not exist or had ceased to exist. The creation of Nigeria could not repudiate contracts/acts of its Yoruba predecessor which had international ramifications. A state was bound by engagements entered into by governments that have ceased to exist (Tinoco Claims Arbitration (Great Britain v. Costa Rica) 1 U.N. Rep. Int’l Arb. Awards 369 (1923)). Accordingly, Britain, Nigeria and the Yorubaland are all bound by the terms of the 1888 Britain-Yoruba Treaty, which had recognised the Yorubaland as a State in its own right.