Nigerian Yearbook of International Law 2018/2019

Table of Contents

1. Frontmatter

2. International Law

   1. Frontmatter

   2. New Reflections on Humankind as a Subject of International Law

      Antônio Augusto Cançado Trindade

      Abstract

      I have been devoting particular attention, along many years, to the condition of humankind as subject of international law. For example, in my General Course of Public International Law, delivered at the Hague Academy of International Law in 2005, I dedicated a whole chapter to the matter. Now that we approach the end of the second decade of the twenty-first century, it is proper to retake my reflections on the issue, in my perception of much relevance to the present and the future of international. May I start with a preliminary precision.

   3. Can the Law Respond to Threatened Apocalypse?

      David Baragwanath

      Abstract

      In Nigerian Yearbook of International Law 2017 17 I argued that the global affliction of terrorism, which has created agony for the people of Nigeria, requires urgent legal response. As Security Council Resolution 2462 (2019) has recognized, it still does. The present paper begins with a focus on two further and related threats, each aggravated by and contributing to that of terrorism. The first is global warming. The second is the global loss of biodiversity, which on 6 May 2019 was the subject of the most comprehensive assessment of the topic ever undertaken. The linkage among global warming, global loss of biodiversity, and terrorism needs to be faced and responded to with imagination and vigour.

   4. The Rule of International Law: Where Are We Going?

      Howard Morrison

      Abstract

      When I became a barrister in the UK in 1977, after military service and working in international development in Africa, I had no idea where the law was going to lead me. I started practising criminal, civil and family law with excursions into courts martial defence, employment law and construction law, indeed anything to make a living in a highly competitive legal environment.

3. Environmental Law and Natural Resources Law

   1. Frontmatter

   2. Coastal State Regulation of the Use of Arms in the Private Protection of Commercial Vessels in the Gulf of Guinea: A Nigerian Perspective

      Osatohanmwen O. Anastasia Eruaga

      Abstract

      Against the background of the prevalence of the threats of piracy and armed robbery against ships in the Gulf of Guinea region, varied shipping interests continue to push the agenda relating to the possibility of the utilisation of armed personnel generally provided by private maritime security companies (PMSCs). A majority of coastal states in the region, including Nigeria, disallow the use of firearms by private security personnel. This article critically examines from a Nigerian perspective, coastal state capacity to regulate the carriage of firearms for the protection of foreign merchant vessel. In sketching out and interpreting the applicable rules, the article argues that coastal state competence over the use of armed personnel onboard foreign vessels cannot be answered with certainty for certain maritime zones because of the varied interpretation attached to the age-longed principle of innocent passage. The article concludes with an emphasis on the need for uniformity in the interpretation of existing and the creation of new norms to govern the use of armed personnel for vessel protection.

   3. Joint Development of Transboundary Natural Resources: Lessons from the Nigeria-Sao Tome and Principe Joint Development Zone

      Adaeze Okoye, Mariam Masini, Alache Fisho

      Abstract

      The Treaty between the Federal Republic of Nigeria and the Democratic of Sao Tome and Principe on the Joint Development of Petroleum and other resources, in respect of Areas of the Exclusive Economic Zone of the Two States was signed 19 years ago in 2001. In 2021, the joint development zone (JDZ) celebrates its twentieth anniversary as a provisional arrangement. The Treaty set an initial duration of 45-years with a mandatory review in year 30.

   4. Implementing Extended Producer Responsibility (EPR)-based Electronic Waste Institutions in Nigeria: Lessons from the Global North

      Irekpitan Okukpon

      Abstract

      Since the 1980s, the exportation of end-of-life electrical and electronic equipment (EEE), also referred to as waste electrical and electronic equipment (WEE) or e-waste from developed to developing countries was decried by the international community. Whilst the trade in WEEE appeared to be substantially controlled by the Basel Convention 1989, it became obvious that the generation and disposal of WEEE had become—not just a developing country problem, but also one which affects the global North (developed countries). Currently, electronic waste has become a global environmental problem, with innovative strategies being developed at global, regional and national levels. Various jurisdictions have adopted various management strategies towards tackling the generation, trade and disposal of this waste stream. One of such strategies is by placing responsibility of the end-of-life management of an electrical and electronic equipment (EEE) on the producer in developed countries, using the extended producer responsibility (EPR) principle. This paper examines the reality of using an EPR-based principle to drive implementation of e-waste institutions in Nigeria. It discusses the effectiveness of EPR-base e-waste institutions in Netherlands and Japan, and how the establishments of producer responsibility organisations (PROs) have compelled effective regulation of e-waste streams in those jurisdictions. This paper analyses existing waste legislation in Nigeria and potentials for the establishment of such PROs to drive adoption of e-waste institutions in Nigeria, and concludes with proposals for effective management of e-waste for future generations in Nigeria.

4. Intellectual Property

   1. Frontmatter

   2. The Participation of Pharmaceutical Drug Industry in Patent Governance and Law-Making: A Case Study of India and Nigeria

      Amaka Vanni

      Abstract

      This paper traces the participation of pharmaceutical drug manufacturers in patent governance and law-making in India and Nigeria. It also highlights the complex interrelationship between state and private actors involved in IP knowledge governance. To do this, it provides an analysis of how both Indian and Nigerian drug makers participate in, and engage with patent discourse. In unpacking the aforementioned engagements, the paper finds that various government policies in India enabled the growth of the sector, which further propelled the participation of indigenous drug makers in patent law and development. Conversely, the paper found that a series of policies by the Nigerian government incapacitated the Nigerian pharmaceutical sector, which weakened the ability of the sector to participate in patent law-making and governance.

5. International Criminal Law

   1. Frontmatter

   2. The International Criminal Court: What Has It Accomplished?

      Chile Eboe-Osuji

      Abstract

      In the story of the International Criminal Court as briefly told in a speech given on 15 October 2019, at the Ghana Institute of Management and Public Administration, Accra, ICC President Chile Eboe-Osuji recounts how the Court so far exemplifies the facility of the rule of law and multilateral cooperation to make the world a little better for humanity.

   3. Improving the Efficiency of International Criminal Courts and Tribunals: The Paris Declaration on the Effectiveness of International Criminal Justice

      Ivana Hrdličková, Adrian Plevin, Amanda Fang

      Abstract

      This article explores how international criminal courts and tribunals (ICCTs) can overcome challenges to efficiency through the recommendations contained in the Paris Declaration on the Effectiveness of International Criminal Justice. It posits that a host of ambiguous expectations placed on ICCTs has contributed to negative perceptions of their pace and cost and overall efficiency. Arguing that, by focussing assessment on core aspects fundamental to criminal justice processes, it is possible to enhance the effectiveness of judiciaries at ICCTs. Against this backdrop, this article assesses how the thirty-one recommendations in the Paris Declaration can serve as a means to this end. The article concludes that, far from being inherently inefficient, ICCTs are capable of self-motivated and self-initiated reform designed at enhancing their efficiency.

   4. The International Criminal Court on the Rohingyas’ Situation and the Early Scholarly Echo of the Decision

      Péter Kovács

      Abstract

      It is often said that a judicial decision should speak for itself and judges participating in the decision making should refrain from explaining it ex post facto.

   5. The Law’s Response to the Plight of Victims of Trauma in the Context of International Criminal Justice

      Daniel D. Ntanda Nsereko

      Abstract

      History is replete with trauma-causing events, and the realities of our times are that such events are on the increase. The effects of those events are inimical to the well-being of the human person and of the international community as a whole. The article discusses the legal framework and protections existing at the international level for preventing or minimizing the incidence of trauma-causing events, and for ameliorating or curing their effects on their victims. It analyses the rules under international conventions, general international law, humanitarian law, human rights and international criminal law and international criminal procedure that benefit the victims of trauma. With respect to participation in international criminal proceedings, the article discusses the legal concept of “victim” and endorses a broad approach to the issue. Concerning reparations, the article calls upon the international community to be ready and willing to assist states do justice to the victims on their territory. It bases the appeal on the theory, among others, that the occurrence of cataclysmic trauma-causing events betokens its failure to discharge its obligation to prevent those events. Unfortunately, beneficial legal responses to traumatic events do not erase the scars, visible and invisible, on the survivors or on the affected states. Certain factors beyond the law continue to impede actions on behalf of victims. Political will and its manifestations as notion of national interest remains a deciding factor. Amidst this, the writer emphasizes that we are all involved in the human race, with responsibilities to each other. The sooner we acknowledge this, the sooner we can avert future suffering and pain.

6. International Human Rights and Humanitarian Law

   1. Frontmatter

   2. TWAILing the Minimum Core Concept: Re-thinking the Minimum Core of Economic and Social Rights in the Third World

      Caroline Omari Lichuma

      Abstract

      The deployment of the minimum core concept in the sphere of Economic and Social Rights (hereinafter ESRs) can be attributed to the treaty body charged with the implementation of the International Covenant on Economic and Social Rights (hereinafter ICESCR). This treaty body, the Committee on Economic, Social and Cultural Rights (hereinafter CESCR) first adopted the minimum core concept in 1990 in its General Comment No. 3 on the Nature of State Obligations [UNCESCR, General Comment No. 3: The Nature of State Parties’ Obligations (Art. 2, Para. 1 of the Covenant), 14 December 1990, E/1991/23 (Hereinafter General Comment No. 3)]. The Committee averred that a failure on their part to introduce such a minimum core obligation would have amounted to depriving the ICESCR of its raison d’être. Since the inception of this concept however, numerous criticisms have been levelled against its normative and conceptual foundations as well as its implementation in practice. This article intends to contribute to this critical reflection on the prospects and challenges of the minimum core concept by utilizing a Third World Approaches to International Law (Hereinafter TWAIL) lens to critique the application of the concept to the Third World. The Article is divided into five sections. Sections 1 and 2 briefly sketch the contours of TWAIL as a critical school of thought, and focus on highlighting its application particularly in the area of international human rights law. Section 3 thereafter takes up the task of tracing the origins and utilization of the minimum core concept by the CESCR in its assessment of compliance with the ICESCR. The penultimate Sect. 4 undertakes an ambitious critical analysis of the minimum core concept from a TWAIL perspective. The paper concludes with Sect. 5 which offers a reconceptualized application of the minimum core concept potentially capable of alleviating the TWAIL concerns raised in earlier sections of the paper.

   3. Health and Development in Africa: How Far Can the Human Rights Jurisprudence Go?

      Olasupo Owoeye

      Abstract

      Poor health can have adverse impact on economic growth and development and the link between health and development has been well accentuated. This paper discusses the international framework for the protection of health rights. The paper argues that beyond the health and development rhetoric, there is a compelling need for African states to devise strategies for the progressive actualisation of health and development rights through the adoption of administrative and judicial measures for the realisation of such rights.

   4. Determining the Termination of a Non-International Armed Conflict: An Analysis of the Boko Haram Insurgency in Northern Nigeria

      Solomon Ukhuegbe, Alero I. Fenemigho

      Abstract

      Much importance has been placed on identifying the markers for the beginning of a non-international armed conflict (NIAC), but not as much for the markers determining the end of NIAC. Yet, the beginning and the end of NIAC together mark the scope of the temporal application of the law of armed conflict. Compared with the fairly settled rules on the termination of an international armed conflict (IAC), those relating to the termination of a NIAC are unclear and no definitive guidance is offered by case law and literature. The ongoing decade-old Boko Haram insurgency in North-eastern Nigeria has been characterised as a NIAC for 6 years. At the end of 2016, the Nigerian government declared the insurgency over, but this is not the reality. At least, not yet. This paper analyses the rules for determining the termination of a non-international armed conflict from the perspective of the Boko Haram insurgency. This is done with a view to finding an objective endpoint, if any, by which the insurgency as a NIAC may be considered over legally. In the view of the authors, the Boko Haram insurgency is a ‘textbook example’ of the problem of determining the end of a NIAC, especially with the current factionalization of the armed group. This paper analyzes the situation up to early 2019.

   5. The United Nations Human Rights Machinery: Too Big to Fail? An Examination of the Flaws of the Machinery and Proposals from a Third World Scholar’s Perspective

      Thamil Venthan Ananthavinayagan

      Abstract

      “[W]hen the fundamental principles of human rights are not protected, the centre of our institution no longer holds.” These are the reverberating words of the outgoing United Nations High Commissioner for Human Rights, Prince Zeid bin Ra'ad Zeid al-Hussein. He leaves his office in a climate of global retreat on human rights. While the United Nations human rights machinery is often praised as one of the strongest developments within the United Nations, it is questionable if the human rights machinery has indeed made any significant impact outside of the institution. The paper will consider these questions: Did the politicisation of the machinery, hinder the impact on respective domestic human rights infrastructures? Is international human rights law invaded by postcolonial policies? To answer these questions, the author will use the case study of Sri Lanka as a research vehicle. The hypothesis is that the United Nations human rights machinery’s failure in Sri Lanka has impacted the United Nations more as an organisation as such—much more than it had an impact on Sri Lanka.

      José-Manuel Barreto argues that: “[R]esisting colonization in the field of human rights can proceed by dismantling the notion that knowledge and material conditions are discrete. (…). The re-contextualization and contextualization of the hegemonic theory of human rights in the material conditions of modern/colonial geography and history paves the way for re-drawing and re-writing the geography and history of human rights.”

      To this end, this paper wishes to highlight the historical antecedents of the machinery, its colonial roots, its postcolonial agenda, submit ideas to decolonise the underpinning power structure of the machinery and propose thoughts to dismantle international human rights law of its paternalistic narrative. Finally, the paper wishes to sketch a vision of making the international human rights machinery truly: international.

7. International Economic Law/International Investment Law

   1. Frontmatter

   2. African Investment Agreement Reform and Its Contribution to Sustainable Foreign Investment

      Gudrun Monika Zagel

      Abstract

      The African Union Agenda 2063 prominently supports that foreign investment and sustainable development are closely linked allies that mutually reinforce each other. International investment law, however, is frequently perceived to impede rather than encourage sustainable foreign investment. Opponents argue that traditional International Investment Agreements (IIAs) prompt a “regulatory chill effect” that prevents host states from adopting environmental, labor, or social policies as they oblige host states to compensate foreign investors for losses caused by such sustainability policies. African states have initiated comprehensive IIA reforms to address this concern, the most prominent result being the Draft Pan-African Investment Code 2017. This article discusses the challenges of traditional African IIAs and the African reform approaches to address the negative effects of traditional IIAs on sustainable development. After an overview of the African IIA landscape and its effects on the regulation of foreign investment, it explores the main substantive IIA provisions affecting the host states’ regulatory sovereignty to implement sustainable development policies and analyzes African approaches to refine traditional IIA provisions—some of which provide novel methods so far largely overlooked in the global IIA debate.

   3. The African Continental Free Trade Area (AfCFTA) and the Imperative of Democratic Legitimacy: An Analysis

      Babatunde Fagbayibo

      Abstract

      The adoption of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) on 21 March 2018 at the extraordinary African Union (AU) summit in Kigali, Rwanda continue to receive overwhelming support across the continent. The number of countries that have thus far adopted the agreement further match this positive outlook. Thus far, 36 member states (54 countries have already signed the Agreement, with Eritrea been the only African country that is yet to sign) and it became operational in January 2021. While the economic benefits of implementing the AfCFTA remain a key discursive focus, there exists very little consideration of the role of democracy within its operational context. This article aims to make a case for enhancing the democratic legitimacy of the AfCFTA. Using existing AU normative frameworks as a guideline, this article argues for a policy mechanism that binds member states to measures that provide for a meaningful participatory, agenda-setting environment.

8. Contemporary Challenges/Emerging Issues

   1. Frontmatter

   2. Technology and the Law: The Impact of Artificial Intelligence (AI) on Litigation and Dispute Resolution in Africa

      Izuoma Egeruoh Egeruoh-Adindu

      Abstract

      Globally, the legal profession and justice delivery system are changing. It is time for the members of the profession to make decisions that will help them adapt to the changing dynamics of the “new trends” or continue on the same historical path. Application of Technology and Artificial Intelligence (AI) in dispute resolution is here to stay, hence members of the profession and most judicial systems have to adjust to this new trend. The profession will however continue to face cost pressure and delays in dispensation of justice, if members fail to embrace these trends and the jurisdictions that continue operating at the status quo are likely to face struggles and uncertain future. While climes that adapt and push their strategies forward will have the opportunity to outperform their lagging competitors, take over their legal space and become viable option for investors who end up being clients and litigants in the near future. To meet the needs of clients and remain in the competitive market, technology and artificial intelligence cannot be overlooked in law practice, litigation and other dispute resolution processes. Consequently, it is important to question the extent of application, role and impact of these emerging trends on dispute resolution in Africa. Is Africa lagging behind or ahead of other climes? Through a comparative perspective, the researcher seeks to answer this question by interrogating the role of AI on litigation and other dispute resolution mechanisms in Africa, with the aim of proffering effective recommendations on the usefulness of AI legal technology in dispute resolution in Africa.

   3. Child Rights Protection, Nigerian Federalism and Culture: Irreconcilable Goals?

      Fife Ogunde

      Abstract

      A prevalent dilemma in human rights discourse is the development of universal standards of rights protection in an international community comprising of states with diverse customs and cultural practices. In federal states comprising of a central government with different constituent governments having a certain degree of autonomy, the prospects of developing universal standards of rights protection may be further undermined by such existent autonomy. Aside from this, there is in addition a notable suggestion, especially in non-Western countries that the concept of rights (in its contemporary form) is antithetical to well-established customary practices that are regarded as fundamental to the preservation of societal order. Nigeria, by virtue of its constitutional arrangement and societal outlook, is an epicentre of the dilemma created by these realities.

9. Case Comment

   1. Frontmatter

   2. Decolonising the Chagos Islands?

      John Reynolds

      Abstract

      The story of the Chagos archipelago is a familiar one in the history of international law and relations between peoples. It is indicative of international law’s complicity in European oppression and dispossession of colonised peoples and places. Yet while much of the machinations of colonial rule were spannered—at least nominally in the form of sovereignty-as-independence—by the national liberation movements of the twentieth century, the Chagos travesty persists into our twenty-first century colonial present. Britain’s refusal to let go of the small group of faraway islands serves as a contradictory symbol of both its self-deluding pretensions of empire on one hand, and its self-abasing servitude to United States imperialism on the other. It reminds us that colonialism is still very much with us, and that self-determination remains contingent. International law’s ode to sovereign equality and territorial integrity is as much about concealing its own colonial foundations as it is about delivering on a promise of liberation. This essay reflects on these themes in light of the 2019 International Court of Justice advisory opinion on the Chagos Archipelago, engaging with critical questions of international law as well as with the insights of Third World thinkers including Kwame Nkrumah, Amílcar Cabral and Eduardo Galeano.