International Law in an Age of Pandemics: Issues and Challenges for International Publicists

Bola A. Akinterinwa

International law refers to both public and private international law. While public international law deals with inter-state relations and therefore often referred to as law of nations, private international law deals more with foreigners in a country who might have been victims of unfairness and injustice and thus requiring diplomatic protection, though quite distinct from the diplomatic protection provided for diplomatic agents under the 1961 Vienna Convention on Diplomatic relations.

International law in an age of pandemics is not only about codification developments in a given period, but also about how the period, in terms of its environmental conditionings, affects international law. Put differently, what is the nexus between international law and the current COVID-19 pandemic which began in 2019, especially in the management of the pandemic?

Answers to this question were provided by the Nigerian Society of International Law (NSIL) during its 43rd Annual Conference on ‘International Law in an Age of Pandemics’, held on Thursday, 17th and Friday, 18th February 2022 at the Nigerian Institute of International Affairs (NIIA). The NSIL, which was founded in 1968 by Judge Taslim O. Elias, a Nigerian by ius sanguinis and a former Judge of the International Court of Justice, has been addressing many aspects of global governance since 1968 through public lectures and conferences.

Two conferences that are a follow-up to the 43rd conference were the 27th Annual Conference held on August 14-16, 1997, and the 32nd Annual Conference held on October 12-14, 2000. The 1997 conference, the proceedings of which were edited by Professor Yinka Omorogbe, the current President of the NSIL, focused on International Law and Development: Strategies at the Threshold of the Twenty-first Century. The Challenge of Peace, Security, and Development in the Twenty-first Century was the theme of the 2000 conference. Thus, the NSIL has always been preoccupied with global developments.

It is from this perspective that the 43rd conference was quite interesting for various reasons: First, the conference enjoyed the active support of many Nigerian governors, past and incumbent. Governor Kayode Fayemi gave N2.5 million while Governor Nyesom Ezenwo Wike, CON, GSSRS, who was represented by his Attorney General, Prof. Zach Adangor, SAN pledged N10m. Governor Babajide Sanwo-Oluof Lagos similarly pledged meaningful support. The fellowship of the NSIL was also conferred on three scholars: Professors Akin Oyebode, Bola A. Akinterinwa, and Momodu Kassim-Momodu. A psychedelic evening characterised by a sumptuous dinner and rendition of old-school songs topped it all. More importantly, the discussion of the issues raised during the two-day conference was very constructive.

Critical Issues and Challenges

The conference was organised into four sessions: opening ceremony, working sessions, Annual General Meeting, and dinner/fellowship awards. The first session, the opening ceremony, was chaired by Major General Ike Omar Sanda Nwachukwu, a former governor, one of the patrons of the NSIL and a Fellow of the Nigerian Institute of International Affairs.

The foundational challenge identified by Professor Omorogbe was the issue of COVID-19 being an obstacle to international law activities. As she explained it in her address, COVID-19 in ‘the last two years has been highly unusual, and for practically all of us, a crash course in adaptation to change and new reality.’ Thus, she is saying that the NSIL 43rd conference could not take place in 2021, and therefore by implication, the pandemic is an obstacle to the mise en oeuvre of international law, but this obstacle will not be in 2022.

And perhaps more interestingly, while Professor Omorogbe was looking at the past, the Governor of Rivers State, His Excellency Nyesom Ezenwo Wike, CON, GSSRS, opted to look forward as a member of the noble profession of law and life bencher to interpret the theme of the conference to imply that ‘in an era of global health emergency such as confronts us presently, international law could provide the needed succour not only for the rich, developed and powerful nations but also the poor, developing and largely dependent nation such as ours.’

Governor Nyesom Nwike identified several issues thrown up by COVID-19 within the context of international law. They included ‘the mutual obligations that states owe to each other during a pandemic; whether there is a right to international solidarity in terms of ‘preventive solidarity, reactive solidarity, and international cooperation, that obligates States and non-state actors to offer assistance to developing and less-developed States that have lesser comparative capabilities’; the extent to which ‘the enjoyment of international human rights by individuals can be curtailed or derogated from by right-restricting measures put in place by different nation-states to manage the spread of COVID-19; and the extent of the impact of COVID-19 on the foundational obligation of nation states to protect the right to life. In the eyes of Nyesom Wike, ‘rights-restricting measures must ensure that the balance of individual and collective interests is compatible with provisions of International Covenant on Civil and Political Rights and other related International Instruments.’

Former External Affairs Minister and chief apostle of economic diplomacy, General Ike Nwachukwu, interestingly pushed Wike’s observations further by drawing the attention of what international publicists should be more concerned with in the age of pandemics. He first noted ‘the weaknesses in international law and conventions wherein the developed countries can hoard the technology (in the guise of protection of intellectual property and/or vaccine diplomacy) for producing and distributing the vaccines needed to save lives and return the world to normalcy.

Much concerned about the need to dissuade ourselves from allowing the mechanistic and mercantile view of human nature from overtaking our most valued humanity – the right to life and to live it to the full and well, even in the face of COVID-19, General Nwachukwu wants the international law practitioners to consider publishing a ‘Nigerian Yearbook of International Law, as well as a compendium of conventions, codes, values and characteristics for international diplomacy and law, sponsored or co-sponsored, authored or co-authored.’

The first working session, which focused on Global Health Security, was chaired by Professor Akin Oyebode, fniia, fnsil. Three papers were listed for presentation: human rights versus global health security under a pandemic in Third World Nations: An Appraisal by Innocent Onohomhen. This paper could not be presented for reasons of force majeure; COVID-19 and Africa: Economic Implications and Policy Responses by Dr. Chinyere Rita Agu, legal practitioner and Research Fellow at the NIIA; and COVID-19 Pandemic, International Law and Women’s Rights in Africa: An Interrogation by Dr Omotola Ilesanmi, a Research Fellow with the NIIA.

Dr. Ilesanmi explicated how the period of COVID-19 served as an opportunity for women’s rights to be infringed upon with increasing violence, regardless of the Maputo Protocol and CEDAW which obligate all States to ensure the protection of rights of women to respect her dignity. As Dr. Ilesanmi further put it, ‘access to healthcare services for women and girls have been stifled and their sexual and reproductive rights largely left to the side-lines with the prioritisation of COVID-19 prevention and treatment resulting in significant increase in stillbirth, maternal depression and maternal deaths. More importantly, she posited that African States have made considerable progress in entrenching the rights of women and girls, however, COVID 19 brought a reversal of the achievements and deepened the pre-existing gender inequalities exposing women to series of human rights violations.’

Dr. Rita Agu raised the issue of bloated numbers of COVID-19 infections and deaths expected in Africa, but which have not come to be. As she explained it, ‘as at 28th October 2021, the global COVID-19 death toll stands at an estimated 4,970,435… Africa has recorded 211,853.’ More important, she drew attention to the economic consequences of the pandemic: how GDP has been affected by national and global lockdowns. The challenge is how to explain the resilience of Africans vis-à-vis COVID-19?

The second session addressed human security and climate change and was chaired by Professor Bola A. Akinterinwa. Like in the first working session, three papers were listed for presentation, but again for reasons of force majeure, one of them could not be presented: The Age of Cyber-Pandemics: An Analysis into the Role of International Law in a Cyber-Pandemic by Temitope, whose paper could not be presented; The place of Human Security in the Progressive Development of a State by Associate Professor Rufus O. Olaoluwa; and COVID-19 Pandemic and Climate Change: The International Legal frameworks by Dr. Chinasa Ohiri.

Associate Professor Rufus Olu Olaoluwa explicated human security from a multidimensional perspective: health security, socio-economic security, cultural security, politico-religious security, and environmental security. In the eyes of Professor Olaoluwa, focus should be more directed to prevention of insecurity than focusing on prosecution and punishment of offenders. It should also be on the need to form alliances against regional security threats and create general awareness in order to ensure human security.

The third working session was on the controversial questions of Self-determination, Secession, and unconstitutional changes of government. The session was chaired by Professor Momodu Kassim-Momodu, fnsil. The first paper written by Professor Debo Olagunju and presented by Associate Professor Rufus Olaoluwa, was entitled ‘An Appraisal of the Role of Regional and International Organisations in Agitations for Self-determination and Secession.

Professor Olagunju provided clarifications on the concepts of self-determination, statehood, and secession. He explicated the extent to which regional and international bodies have been able to uphold the right of self-determination while preventing the disintegration of States. He noted that ‘self-determination is a separate and distinct concept from secession although secession may be an expression of the right to self-determination. However, self-determination doesn’t automatically translate to a right to secede.’

The second paper, on Hopes and Impediments: A Historical Survey of Taiwan’s Diplomatic Relations Across Africa by Charles Terseer Akwen, examined the trends, composition, and intensity of the Republic of China and People’s Republic of China’s bilateral relationship in Africa since independence.

The last paper by Professor Bola A. Akinterinwa addressed the issue of ‘International Law and Unconstitutional Change of Government: The Case of Francophone Africa in an era of Pandemic.’ He raised the issues of relationship between international law and how a government should emerge in a sovereign State; reconciliation of Article 2(7) with the African Union (AU) and ECOWAS’ requirement for good governance and non-constitutional change of government in Africa. He noted that AU and ECOWAS sanctions against coupists in Mali, Guinea, Burkina Faso, Sudan, etc, have been to no avail.

Challenges for the NSIL Publicists

Many challenges were identified in the various sessions but three of them were noteworthy: how to reverse the recidivist character of unconstitutional changes of government in Africa; self-determination, and secession. On unconstitutional change of government, Professor Akinterinwa noted that international law prohibits unconstitutional change of government by force and by manu militari, but silent on other non-forceful means of changing government. Article 4(p) of the 2000 Constitutive Act of the African Union (AU) requires the ‘respect for the sanctity of human life, condemnation and rejection of impunity and political assassination, acts of terrorism and subversive activities.” Unconstitutional change of government can be rightly considered as falling under subversive activities, and therefore unlawful and prohibited.

Additionally, he said, Protocol III on Peace and Security for All in Burundi requires all

Burudian institutions to ensure the ‘protection of all the ethnic communities of the population through specific mechanisms for the prevention of coups d’état, segregation and genocide.’ In other words, the prevention of coups d’état is a condition sine qua non for public protection, which, along with safety, are a desideratum for sustaining non-tolerance of coup-making.

And perhaps more significantly, the ECOWAS and the African Union, which succeeded the Organisation of African Unity (OAU), outlaw unconstitutional change of government. It is recalled here that the OAU adopted a reactive framework to unconstitutional change of government in Algiers in July 1999 (vide Decision AHG.DEC 142 (XXV). The ECOWAS Protocol on Democracy and Good governance was done in December 2001 as a Supplementary Protocol to the 1999 Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security. With these legal frameworks, why are they not adhered to?

More relevant here is the provision of Article 45 of Protocol A/SPI/12/01 on Democracy and Good Governance that ‘in the event that democracy is abruptly brought to an end by any means or where there is massive violation of human rights in a Member State, ECOWAS may impose sanction on the State concerned.’

The African Charter on Democracy, Elections and Governance, done by the Eight Ordinary Session of the AU Assembly in Addis Ababa on 30 January 2007, also provides in its Article 3(10) that all signatories to the Charter should implement the Charter by condemning and rejecting unconstitutional changes of

government. But, all in all, will it be enough to have good governance and expect that coup-making can be nipped in the bud?

But true enough, many reasons are often given for unconstitutional change of

Government. The reasons are generally politico-economic and non-legal. Forceful changes of

government are purportedly to put an end to poor governance, that is, non-transparency non

-accountability, violations of human rights, abject poverty insecurity, social injustice,

unfairness in allocation of national economic resources, etc. When will this challenge be

addressed?

Regarding self-determination and the related question of uti possidetis juris, it is useful to note some developments and limitations. Self-determination as a principle for decolonisation and establishment of national sovereignty has been expanded to include possibility of secession from within an existing sovereign state. While self-determination- driven decolonisation is to stop external exploitation of dependent territories, secession is to also put an end to internal colonisation. The third category of self-determination is provided by the current Russian-Ukraine saga. Ukraine is a sovereign state and is asking that its right of self-determination to determine who it would be associated with be respected.

Ukraine is caught between East-West confrontation: the United States and its NATO allies want Ukraine to remain a member of the NATO while Russia is against. This is a situation of competing sovereignties in which a sovereign state is now insisting on its right to determine its own destiny. Thus, the defining dynamics of self-determination in international politics appears to be changing

As for uti possidetis juris, it is a Latin American principle adopted in 1810 to maintain peace and orderliness following decolonisation and which has become a principle of customary international law to maintain colonially inherited international boundaries. When the OAU Charter was done in 1963, the principle was borrowed, but the problem as of today is the extent to which the principle can be re-defined or done away with. The acceptance of the principle means acceptance of non-review of the international boundaries of an existing sovereign state. This is one important challenge publicists should also address, because the sanctity of colonial frontiers is anti-secession. Consequently, in this regard, contrary to the pretensions of President Muhammadu Buhari, there is nothing like non-divisibility of Nigerian unity or indissolubility of Nigeria. National unity, like any quest for secession, is a resultant of political interest and commitment and not coercion.

Grosso modo, Ike Nwachukwu’s suggestions remind one of what Jean Jacques Rousseau said in his Social Contract that ‘good laws lead to the making of better ones; bad ones bring about worse.’ In the same vein, good suggestions cannot but prompt development, tangible progress while bad suggestions only lead to self-destruction and misapplication of international law. The NSIL will therefore do well to think along the direction of Nwachukwu’s suggestions, with the ultimate objective of not simply publishing a Yearbook of International Law but a Yearbook of International Law and Relations in which commissioned articles on current developments in international law and how they impact on Nigeria, and in which annotated chronology of Nigeria’s foreign policy events will be accommodated. International relations are about interstate ties while international law regulates the relationship. They therefore go pari passu and constitute two sides of the same coin. Because this challenge requires adequate funding, a collaborative entente with the NIIA may be necessary. The NSIL should be saddled with the aspect of international law, while the NIIA should monitor the chronological aspect of Nigeria’s foreign policy.