NSIL and International Law at a Crossroad: The Critical Foreign Policy Implications for Nigeria

Prof. Bolaji Owasanoye

By Bola A. Akinterinwa

When the Nigerian Society of International Law (NSIL) focused its attention on ‘Security, Human Trafficking and International Law’ at its 41st Annual Conference, held in Benin, Edo State, in 2018, it did not quickly foresee that International Law might be moving fast towards a crossroads. The concerns then were essentially about human trafficking and the involvement of people of Edo State in it. In 2019, the world is witnessing changes within continuity. While the challenge of human trafficking is still staring the international community in the face, changes in the areas of threats to global peace and security, to globalisation, multilateralism, and continuity of global controversies, the problems have deepened beyond human trafficking.

One of the critical problems is the determination of the extent to which International Law can continue to ensure orderliness, harmonious relationships or peaceful coexistence, guarantee justice and protection of fundamental human rights. The criticality of the problem has prompted the NSIL to ask whether International Law is not now at a crossroad. Put differently, the 42nd Annual Conference of the NSIL addressed the question and place of International Law in global governance, by asking ‘Is International Law at a Crossroad?’

The conference, which was held at the Nigerian Institute of International Affairs, an institutional member of the NSIL, from Wednesday, 13th to Friday, 15th November, 2019, generated much interest and debates, because of the various issues covered and their implications for domestic and foreign policies.

For instance, many complex issues were raised, including anti-corruption struggle, climate change, state sovereignty, child protection, territorial and continental-shelf resources, extradition treaties, issues in regional integration, the nexus between constitutionalism and democratic governance, Niger Delta’s quest for resource control, self-determination, terrorism, the challenge of labour migration, violent non-state actors, prevention of and punishment for crimes of genocide, gay rights, and Muslim perspectives on global human rights questions. All these issues not only have implications for Nigeria’s foreign policy but also raise concerns about international law being at a crossroads.

There were five working sessions, during which four papers were scheduled for presentation in each session. Of the many issues raised in the papers presented, some issues were noteworthy for further analysis: anti-corruption efforts, self-determination and status of International Law, and particularly international Criminal Law, at a crossroads.

Nigeria and Anti-Corruption Struggle
Professor Bolaji Owasanoye, Chairman of the (ICPC) and keynote speaker at the conference, noted in his address entitled, ‘Interrogating International Law and Global Collective Action Against Corruption: Return of Stolen Assets in Perspective,’ that ‘international law, in contemporary history, has direct connection to the global collective action against corruption and, therefore, underscored the return of stolen assets in the context of global collective anti-corruption effort in his statement.

In this regard, he differentiated between and among four types of collective actions: a) anti-corruption declarations (such as UNGA resolution 51/191 on the United Nations Declaration Against Corruption and Bribery in International Commercial Transactions; and the Naples Political Declaration and Global Action Plan Against Organised Transnational Crimes); b) principle-based initiatives (such as the Resolution (99) 5 of the Committee of Ministers of the Council of Europe, done to establish The Group of States Against Corruption; and the Twenty Guiding Principles for the Fight Against Corruption, provided for in the Resolution (97) 24 of the Committee of Minister of the Council of Europe); c) certifying business coalitions (such as the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions) and d) integrity pacts (such as African Union Convention on Preventing and Combating Corruption.

He underscored other international legal instruments against corruption, especially the UNGA resolution 58/4 on United Nations Convention against Corruption, ECOWAS Protocol on the Fight against Corruption, and Organisation of American States’ Convention against Corruption.
And perhaps more significantly, as required by the UN Convention against Transnational organised Crime, that parties to the Convention should take necessary measures to enable confiscation of proceeds of crime derived from offences, the Independent Corrupt Practices and other Related Offences Commission (ICPC) boss did not fail to expatiate on Nigeria’s leading role in the articulation of the African position on Asset Recovery; organisation of the Conference on Promoting International Cooperation to Combat Illicit Financial Flows and Enhancing Asset Recovery to Foster Sustainable Development, held on June 5 and 6 2017; hosting of the Roundtable of the AU Champion on Anti-Corruption on July 11th, 2018; reaffirmation of Nigeria’s commitment to advocate for unconditional asset return, by President Muhammadu Buhari, on Wednesday, 25th September, 2019 on the margins of the United Nations General Assembly, etc.
In really giving more meat to the fight against corruption, Professor Owasanoye joined the proponents of extending the mandate of the International Criminal Court to cover grand corruption or the creation of an International Anti-Corruption Court ‘that would wield powers like the various Tribunals that the international community constituted to punish war crimes after World War II, Yugoslavia and Rwanda.

International Law at a Crossroads

One major rationale for the choice of the theme was given by Professor Yinka Omorogbe, Honourable Attorney-General and Commissioner of Justice of Edo State, as well as the first female and sixth President of the NSIL. As she put it, ‘bearing in mind the tumultuous happenings over the last few years in various countries of the world, coupled with the rise of superpower leaders with attitudes and activities that appear to show an increasing tendency to promote domestic interest over and above international commitments and obligations,’ there is no way international law will not be impacted upon. With the subjectiion of international law to the whims and caprices of domestic interest, International Law is necessarily at a crossroads.

The NSIL president explained the point further thus: ‘even as the structures and forms of municipal law are being tested to their limits, the strength of the international legal system – particularly in areas of security and economic integration – are having to adapt to the realities of the 21st century. Presently, conflicts abound, different from those that led to the emergence of the United Nations, after the collapse of the League of Nations and the Second World War…’ In this regard, she asked: ‘what does all this portend for international law? Is international law at a crossroads? If it is, what direction should it take? What should be its chosen path?

As suggested by Barrister Elias in his paper entitled, ‘International Criminal Court at a Crossroads,’ Dr. Olufemi Elias, UN Assistant Secretary-General drew attention to a viewpoint a bit different from that of Professor Owasanoye in the area of a new leeway, that is, in the context of a possible need for either expanding the powers of the International Criminal Court or creating a new African International Court. He noted ‘a trend away from establishing new international criminal tribunals to deal with various situations that have arisen in recent years.’

He also drew attention to the many challenges of the International Criminal Law, such as ‘the execution of sentences imposed by international judicial bodies, addressing the situation and needs of victims, the protection of witnesses and the financial cost of administering international criminal justice. With these challenges, the international functionary was not left in any scintilla of doubt that, indeed, International Criminal Law, is currently at a crossroads.

For purposes of illustrating that International Law is at a crossroads, Portia Ozioma Chigbu, Obinna James Edeh and Uche Erinne, all of the University of Nigeria, Enugu Campus, noted in their paper on ‘Checkmating the Rising Level of Enforced Disappearance in Africa,’ the roles regional bodies could play in addressing the problem enforced disappearance.

Dr. Aliyu Ibrahim of the Faculty of Law, Umaru Yar’Adua University in Katsina, looked at International Law at a crossroads by asking whether the advocacy for the legalisation of Gay Rights by Western States can lead to the fragmentation of International Human Rights Law. In this regard, Western records have been asking for legalisatioin of Gay Rights across the globe and the enactment of special laws that will protect homosexuals. Several African and Asian countries have been against that quest for legalisation for reasons of religion and culture. In creating a balance, the authors have suggested that Western countries should concentrate more on promoting human rights of individuals generally and allow States to choose the status of homosexuality within their territories.

In this same vein of International Humanitarian Law, Dr. Iyabode Ogunniran, Associate Professor and of the Faculty of Law of the University of Lagos, investigated child protection in International Humanitarian Law and Human rights, using the children and armed conflict in North East of Nigeria as a case study. She not only assesed Nigeria’s commitments to international and regional frameworks protecting children during armed conflict, but also drew attention to Section 12 of the 1999 Constitution, which stipulates that ‘no treaty between the Federation and any other country shall have the force of law except to the extent to which such treaty has been enacted into law by the National Assembly.’ Put differently, Associate Professor Ogunniran underscores the point that it is the ‘enabling statute enacted, pursuat to implementation of a treaty, rather than the treaty per se. which is considered by the Courts as source of law.’

More important, even though Nigeria signed the UN Child Rights Act in January 1990, and ratified it in April 1991, it could not be domesticated for the Federal Capital Territory until 2003, using Section 299 of the 1999 Constitution. Objections to the domestication were largely predicated on beliefs that the Chilld Rights Act contradicts customary and Sharia laws, hence another case of Interntaional Law being at a crossroads.

Climate Change was presented as another manifestation of International Law being at a crossroads by Osahon Livewell Omoregie of the Department of Commercial and Industrial Law of Ambrose Alli University, Ekpoma. In his paper, ‘Climate Change at a “Tipping Point: an Examination of the Role of International Law, Osahon has it that the complexity of global warming climate change is always in the increase and “it is having a severe impact on the responses of international law.” Consequently, further rounds of negotiations might be hard as occasion demands. He opined, “there is need to move towards a new cooperation paradigm that addresses, inter alia, the international ‘asymmetry between emissions and vulnerability … It is time to shift from negotiations to implementation of a normative legal order under the UNFCC.”

Dr. Felix E. Eboibi asked whether national extradition laws are in conflict with International Law in his paper entitled, “Are National Extradition Laws Applicable under the Rome Statute of the International Criminal Court? Legal implications and Travails.” Even though the ICC has the complementary role of investigating and prosecuting perpetrators of gross human rights abuses, especially where the systems at the domestic level fails to do or support domestic systems to investigate and prosecute in its place. Eboibi has observed that “despite the establishment of the ICC, its genuine success in bringing most perpetrators of international crimes to justice is seriously in doubt this is arguably because the Rome Statute that creates the ICC accommodates provisions that may significantly thwart the arrest of defendants accused of international crimes by the ICC.”

Besides, even though, thematically, “the ICC is equipped with jurisdiction over cases of aggression, genocide, war crimes, and crimes against humanity, practically, the ICC’s capability to bring perpetrators of these crimes is laboriously curtailed by national laws concerning extradition. indeed, Internaational Law cannot but be at a crossroads.

From the perspective of Associate Professor Rufus Olu Olaoluwa, Solicitor and Advocate of the Supreme Court of Nigeria and former Acting Head, Department of Jurisprudence and International Law, “the territorial sea, continental shelf and the limits of International Law” constitutes another important issue. in other words, the mere fact that there are limitations to the jurisdictions of international law, necessarily implies that Iinternational Law cannot but be at a crossroads.

In this regard, Olaoluwa, a former Secretary General of the NSIL for ten years, has noted that the sea, which is the larger part of the earth covered by water, “is a wonderful creation of God as composite part of the world to complement the ecosystem of the earth. The land is dependent on the sea and the sea needs the land for its balance.” In this regard, Associate Professor Olaoluwa not only observed that there is a relationship between the territorial sea and the Continental Shelf and that “these areas are needed for the survival of the international economic, political and security balance for the benefit of both coastal states and other users of the territorial sea and the continental shelf.”

And more important, he noted that International Law has done well with the adoption of UNCLOS 1982, which has articulated the guidelines for the exploration and exploitation of the world oceans and seas. however, he has encouraged all nations to continue to strive to complement International Law in reducing global tension and conflicts.

And perhaps most importantly, he noted that “Nigeria has not done enough to harness its national endowments for the benefit of its people.” In this regard, he called on the Government of Nigeria, to start, as a matter of urgency, invest in sea business of fishing, massive exploration and exploitation of natural resources and sea transportation. As he put it, “if these opportunities are put in place, there will be massive transformation in Nigeria, where sea food will be available and affordable to Nigerians, job opportunities will be available to our teaming unemployed youth and more foreign currency and wealth will accrue to the coffers of the Nigerian government and its people.”

While Professor Osy Ezehukwunyere Nwebo of the Faculty of Law of Imo State University examined the “promotion of Constitutionalism and Democratic Governance in Africa: The Challenge of State Sovereignty,” in his submission to the conference, Professor Bola A. Akinterinwa, former Director General of the Nigerian Institute of International Affairs (NIIA) and current President and Director General of Bolytag Centre for International Diplomacy and Strategic Studies (BOCIDASS), focused his own attention on “Regional Integration and International Law at a Crossroads: the Case of Brexiteerings and the Flexitension Fever.”

The thrust of Professor Nwebo’s paper was that developing countries will need ‘to promote constitutionalism, rule of law and good governance as a condition for achieving sustainable development, that the involvement of international institutions is a desideratum for modulating and influencing states,’ constitutionalism and democratic governance in order to achieve sustainable development and that, as postulated by Professor Akinterinwa, International Law is not only at a crossroads, but will continue to remain so mainly for reasons of conflicting national interests.

Professor Akinterinwa drew attention to many of these conflicting interests: differing perspectives between the European and ACP countries on the matter of Economic Partnership Agreements, non-attainment of objectives of several international agreements, the rise of nationalism and bilateralism to the detriment of multilateralism, the declining interest in regionalism as a model for fast sustainable development, as being witnessed with the politics of Brexit and Flexitension, United States foreign policy under President Donald Trump, the AEC Treaty as being challenged by national security and self-protectionist interest, etc. The direction of deliberation generally pointed to IL being at a cross road. The submissions on the question of self-determination are not in any way different.

Self-determination Issues

The issue of self-determination was specifically raised in the context of the quest for an Independent State of Ambazonia to unify the Anglophone Cameroonians and become a separate state. The Government of Cameroon, under Paul Biya, has been very ruthless with the Anglophone insurgency. Records have shown that more than one thousand people have been killed.

As observed again by Obinna James Edeh and Portia Ozioma Chigbu, ‘a more disturbing issue is the rising level of targeted killing, enforced disappearances and outright terror visited on the civilians of English-speaking Cameroon.’ In like manner, the authors also have it that ‘in neighbouring Nigeria, an attempt by the people of the South East to reopen their crusade for a Biafran state was met with brute force from the Nigerian army. In a bid to constitutionally seal the agitation, the Nigerian government, through the Court, invoked some provisions of the Terrorism Act to label the group as a terrorist organisation.’

Will this put an end to the existence of MASSOB (Movement for the Actualisation of the Sovereign State of Biafra) or to MEND (Movement for the Emancipation of the Niger Delta)? This question is prompted by the argument of the Government of Nigeria when the United States under President Ronald Reagan described those fighting apartheid in South Africa as terrorists and was proposing his policy of Constructive Engagement, rather than Africa’srebellion against apartheid. At that time, Nigeria simply responded that they were liberation movements and that, under no circumstance would apartheid be considered as an internal affair of South Africa, and that Nigeria’s policy would remain ‘no compromise with Apartheid.”

Explained differently, self-determination is a basic rule of international law and relations, not only for decolonisation purposes but also in the post-colonial era. The point being made here is simply that International Law legalises the right to self-determination but state practice is hostile to it. In fact, in the context of Africa, it should be noted that the crossroads at which International Law is located, is that of very serious confusion simply because the OAU Charter and the Constitutive Act of the African Union upholds the Principle of Uti Possidetis as enshrined by the Latin Americans in 1810, on the one hand, meaning that inherited international boundaries cannot be altered. On the other hand, International Law not only proclaims the right to self-determination, the United Nations also does not want the dismemberment of any of its Member States. The foregoing is nothing more than an expression of International Law being at a crossroads.

In terms of foreign policy implications, therefore, the Government must quickly begin to learn how to balance the right to self-determination and the conflicting provision of uti possidetis. The truth of the matter is that uti possidetis is only important and relevant when it is acquiesced to. When there is outbreak of law and order, more often than not, international law, and particularly international humanitarian law, is hardly respected. Rather than confronting the alleged Biafran terror with the Terrorism Act, another expression of terrorism in a different form, a more Solomonic wisdom approach should be to re-strategise and seek political solution to the problem. For more than three hundred years now, the struggle of Catalans for separation from Spain has not been resolved by governmental force. Lessons can be learnt from that.