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

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.

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