In the application for UN Membership, the Yorubaland was claiming that it had sovereignty, that it was exercising that sovereignty when Britain forcibly usurped it.

The lapse of time allegedly constituted an obstacle to establishing a ‘right’ in law in the here and now. It was over a hundred years, and several generations, since Britain committed breach of the various Britain-Yoruba Treaties. The Yoruba directly affected were long gone; the present generation lived in ignorance of the Treaties; there was the matter of the principle of ‘finality’ (interest rei publicae ut finis litium sit). Those who sought to ‘let bygones be bygones’, regarding the issue of responsibility for historical wrongs, relied on the Intertemporal Rule (tempus regit actum). The essence of the rule in lay man’s terms was that the law did not work backward (lex retro non agit). In the case of the Yorubaland, the two parts the Intertemporal Rule looked like this:

      i.         the law when the sovereignty of the Yorubaland was established was the law by which the sovereignty should be assessed and understood, and

     ii.         the Yorubaland sovereignty, after it had been established under the international law, was exercised over a reasonable period of time before its usurpation by Britain.

International Law Commission 17th Session, 2018, Draft Conclusion 8(2):

‘Provided that the practice is general, no particular duration is required.’

The Intertemporal Rule was a secondary, not a substantive rule, merely indicating which law to apply to the facts. CJ Max Huber, the originator of the rule, stated in the Palmas Arbitration case (Islands of Palmas Arbitration, Netherlands v US, 1928)[3] that:

‘…a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time such a dispute in regard to it arises or falls to be settled.

As regards the question which of different legal systems prevailing at successive periods is to be applied in a particular case (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights.

The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of the law.’

The Intertemporal Rule could be applied to the facts of treaties. Institut de Droit International in The Intertemporal Problem in Public International Law; Session at Wiesbaden – 1975 resolved:

‘1. Unless otherwise indicated, the temporal sphere of application of any norm of public international law shall be determined in accordance with the general principle of law by which any fact, action or situation must be assessed in the light of the rules of law that are contemporaneous with it.

4. Wherever a provision of a treaty refers to a legal or other concept without defining it, it is appropriate to have recourse to the usual methods of interpretation in order to determine whether the concept concerned is to be interpreted as understood at the time when the provision was drawn up or as understood at the time of its application. Any interpretation of a treaty must take into account all relevant rules of international law which apply between the parties at the time of application.’

In the Grisbadarna case (Sweden v Norway; Case No. 1908-01, Permanent Court of Arbitration), the terms of a 1661 Treaty between Sweden and Norway were resolved in 1908. In the North Atlantic Coast Fisheries case (Britain v United States of America; Case No. 1909-01, Permanent Court of Arbitration), the terms of a 1783 treaty were resolved in 1909.

In the case of the Yorubaland, the relevant dates were:

·      23 July 1888 – Britain (Queen) and the Yorubaland (Alaafin) entered into a non-cession, favoured-partner Treaty.

·      16 June 1890 – the Queen ratified the Britain-Yorubaland Treaty, and used a payment to the Alaafin to signify that the treaty had come into force.

·      27 December 1899 – the Queen proclaimed the Southern Nigeria Protectorate which included the Yorubaland.

Applying the principles of law applicable at the time, the sovereignty right for the Yorubaland was created on 23 July 1888 and, at the latest, came into force on ratification on 16 June 1890. There was no clause in the 1888 Treaty or anything else necessitating retroactive interpretation. The proclamation of protectorate by the Queen was not supersession, since this required consent, which the Alaafin had not been asked to give, and which the Alaafin had not given. The Yorubaland sovereignty could not be nullified unless the parties to the 1888 Treaty agreed that the proclamation should have that effect. The terms of the agreement was ‘subject to the approval of Her Majesty’ (Clause 9), which she gave on 16 June 1890, meaning that the agreement came into force unfettered immediately on ratification. There then followed nearly a decade of exercise of the Yoruba sovereignty before usurpation.

The Intertemporal Rule frequently had been used to conceal or legitimise colonial crimes and historical injustices. However, extension of sovereign rights over a territory by a State at the expense of the sovereignty of another had not been accepted by international law. The colonisation of the Yorubaland in the 19th century was illegal; that illegality had not been annulled by the evolution of the law. In other words, the colonisation of the Yorubaland still contravened international law even in the here and now. Colonisation was an act that did not meet the standards of international law. Simply put, Britain disregarded ownership of, and sovereignty over, the Yorubaland by the Yoruba people, Britain committed breach of its treaty obligations to the Yoruba, and Britain violated international law. Retroactive legal evaluation of the factual situation thus was not required.

In the case of the Yorubaland, the injured party was clearly identifiable as the Yoruba people and the wrong-doer as Britain. The Yoruba polities existed today as they did in the 19th century, and have not materially changed. The relationship between the wrong-doer, that is to say, Britain, and the injured, that is to say, the Yorubaland, had been established in the non-cession treaty of 1888 (signed 23 July 1888, ratified 16 June 1890); the parties to the 1888 Treaty remained the same. The Yoruba of today being directly continuous with those that were injured by colonisation, had standing to represent their ancestors in legal proceedings. The culture and tradition of the Yoruba imposed duties on the present generation in respect to past and future generations. The injured party, that is to say, the Yorubaland, as previously argued, was a State actor in the 19th century. The Yorubaland and the Yoruba directly suffered the wrongful act. The continuing incorporation of the Yorubaland in Nigeria meant that the injury was still continuing.

The Applicants have here demonstrated that application of the Intertemporal Rule meant that the sovereignty rights of the Yorubaland were, 

               i.         established as valid in accordance with the law in place at the material times, so that there was no necessity for retroactive interpretation, and

              ii.         exercised constantly, continuously and validly until Britain illegally usurped it with its protectorate proclamation, so that the terms of the 1888 Treaty remained extant and unfettered.