‘International law emphasizes need for consent of communities that may be affected by activity or project’

Damilola Sunday Olawuyi is an international lawyer, professor of law, arbitrator, author and policy consultant, with expertise in petroleum, energy and environmental law. He holds a Bachelor of Laws, first class honours, another first class honours in the Bar Certificate of the Nigerian Law School, Masters of law of the University of Calgary, Canada, another masters of law of Harvard University, United States of America and a doctor of philosophy in law of the University of Oxford, United Kingdom.A Professor of Law at Hamad Bin Khalifa University, Qatar as well as a Chancellor’s Fellow and Director of the Institute for Oil, Gas, Energy, Environment and Sustainable Development (OGEES Institute) of the Afe Babalola University, Olawuyi is a senior visiting research fellow of the Institute for Energy Studies, University of Oxford, UK. The don had also served as a visiting professor at Columbia University, Cambridge University, Oxford University and China University of Political Science and Law.

Ahead of the fifth yearly conference of the Nigerian Branch of the International Law Association (ILA-NG) being held today in Lagos, Prof. Damilola Sunday Olawuyi, who is a vice chair of the ILA globally, the Vice President of the Nigerian Branch, and the chair of the conference organizing committee for this year’s event, spoke with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE on the need for business enterprises in Nigeria to understand, respect and implement international law norms on business and human rights in their operations.

How is the International Law Association different from the International Bar Association? 
The IBA is, in my understanding, a global association for lawyers (in other words, members of the Bar). On the other hand, the ILA aims to bring together lawyers, non-lawyers, scholars, students, advocates and development practitioners interested in public and private international law. Since its establishment in Brussels in 1873, its mandate has been to promote the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law. The ILA has consultative status, as an international non-governmental organization, with a number of the United Nations specialized agencies. The ILA is headquartered in London under the Chairmanship of the Right Honourable The Lord Mance, former deputy president of the Supreme Court of the United Kingdom.

Tell us something about the membership of ILA?
ILA membership is open to anyone interested in international law. Our membership ranges from lawyers in private practice, academia, government and the judiciary, to non-lawyer experts from commercial, industrial and financial spheres and representatives of bodies such as shipping and arbitration organisations and chambers of commerce. The ILA currently has over 4,500 members spread among branches throughout the world. The Nigerian Branch, under the leadership of our distinguished President, Professor Fidelis Oditah, QC, SAN, was inaugurated in 2014 by the then Chief Justice of Nigeria, Hon. Justice Mariam Aloma Mukhtar. We have individual, corporate and student membership categories. We encourage all lawyers, academics, advocates, practitioners, and students who have interests in international law to join the Branch and become involved in this important work of promoting Nigeria’s international law expertise to the rest of the world. Membership information can be easily accessed through our website and online platforms.

What in specific terms do the association set out to achieve?
Nigeria is a major player in international law. Since 1960, Nigerian international lawyers have made significant contributions to the development of international law through publications, practice and commentaries. The Nigerian Branch aims to promote Nigeria’s international law expertise and practice to the rest of the world. The Branch seeks to provide an intellectual space where some of the most important questions in international business law, international diplomacy, and global regulations can be unearthed, analyzed and practically resolved. We regularly organize events and activities that foster the exchange and dissemination of cutting edge knowledge and information on international law in Nigeria. We also have over 500 student members from across the country, who are members of our Young Members’ Committee. Our scholarship programme for students provides them financial support to attend our various events, learn from leaders in the field and enhance their understanding of international law.

You are the chairman of the organizing committee of the ILA’s conference holding today with the focus on business, human rights and corporate obligations in International law. How did you come about the theme?
In choosing the theme for this year’s conference, the conference committee intended to create an opportunity for academics and practitioners to reflect on the nature, scope and practical implications of emerging business and human rights norms in international law. International law is increasingly recognizing the obligations of business enterprises and non-state actors to respect, protect, and fulfil human rights standards in their operations. This conference aims to examine, clarify and unpack the nature, scope and practical implications of emerging business and human rights norms in international law. It will provide an opportunity for stakeholders, especially corporate lawyers, and non-lawyers in business, economic and financial spheres, as well as government and policy leaders, community leaders, experts, researchers and academics, to discuss, debate and clarify how to support businesses in this emerging area. Participants will gain relevant knowledge of the significant contours of the rapidly evolving business, human rights and corporate responsibility norms in international law. It will also discuss how Nigerian businesses can systemically integrate human rights standards into their business practices in order to better accommodate, respect and fulfil the fundamental rights of local communities.

Why is this topic important to Nigerians at this point in time?
Investments and projects in key sectors in Nigeria, such as oil and gas, mining, construction, banking, agriculture and health care amongst others, have often been associated with tensions and conflicts between host communities and businesses that operate in the communities. For example, nearly all cases of conflict in the Niger Delta arise from projects executed without proper consultations with the local communities. These communities are not generally opposed to development projects or investments, but they know and insist upon their rights to social and environmental protection, even if governments and supervisory bodies are unwilling or unable to protect them. International law is therefore recognizing the need to hold business enterprises accountable for human rights violations that occur in their spheres of operations. The release of the United Nations Guiding Principles on Business and Human Rights, an instrument consisting of 31 principles on this issue, underscores the emergence of a rapidly developing set of international law norms in this area.

Similarly, the National Human Rights Commission of Nigeria has recently scaled up efforts to integrate these international law standards into a National Action Plan on Business and Human Rights (NAPBHR). This means the expectation of business enterprises to protect, respect and fulfil human rights in their investments and projects is no longer an option but a necessity. Business enterprises, especially those operating in high risks sectors can avoid the backlash associated with non-compliance by understating their risk exposure and obligations. Furthermore, financial institutions, development banks and credit agencies that finance projects also have obligations to establish mandatory human rights due diligence processes as preconditions for financing infrastructure projects. Aside from stipulating mandatory financing conditions, there is also a need to provide robust monitoring, grievance and enforcement mechanisms to ensure that projects that violate human rights can be blacklisted from financing.

How do business and human rights norms in international laws relate to our corporate governance obligations?  
Understanding human rights responsibilities and socially responsible behaviour is an essential component of corporate risk management in our current world. There is a strong business case, in terms of cost, reputation and effectiveness for doing so. In addition to minimizing litigation and regulatory fines, demonstrating corporate respect for human rights is vital to building trust and integrity amongst local communities, investors and shareholders. Business enterprises in Nigeria, as well as their legal counsel, will therefore need to begin to incorporate human rights due diligence into all spheres of their operations, ranging from ethical sourcing of raw materials, labour and employment standards, to environmental protection. Adopting sound internal human rights screening processes, as part of corporate risk management frameworks, can help business enterprises to build and maintain strong social licence to operate, while also ensuring regulatory compliance. The growing insistence of courts and tribunals on the rights to information, public participation and benefit-sharing for those persons potentially affected by investments and projects should lead lawyers to advise their clients of the wisdom of early compliance with human rights requirements in investments and projects throughout the various stages, including preparation, funding, implementation and monitoring.

You seem to have a very rich faculty. What informed the choice of resource persons in this event?
Our objective was to attract experts from all across Nigeria, and around the world, to share practical and research insights on these issues. The keynote speech by internationally recognized expert in business and human rights law, Professor Ibironke Odumosu (University of Saskatchewan, Canada), together with discussions by senior practitioners, academics and government leaders, such as Branch President, Professor Fidelis Oditah QC, SAN, Dr. Babatunde Ajibade, SAN, FCIArb (Managing Partner, SPA Ajibade & Co), Seni Adio, SAN (Managing Partner, Copley Partners), Miannaya A. Essien, SAN, (Managing Partner, Principles Law Partnership), Professor Yinka Omorogbe (Attorney General and Commissioner for Justice, Edo State Government), Dr. Abdul Karim Kana (Attorney General and Commissioner for Justice, Nasarawa State) amongst other eminent speakers, provide the freshest perspectives possible on this dynamic area of international law.

How can Nigerians take advantage of the federal government’s 2018 Flare Gas Regulations policy?
Nigeria loses over $2.5b yearly to gas flaring. Not only is this a reprehensible economic waste, gas flaring also results in pollution, loss of night time and significant reduction of the quality of life in oil producing communities. For many years, oil companies have focused more on oil and gas production activities and have not adequately invested in technologies and infrastructure to capture and commercialize flared gas. The Regulations aim to address the perennial environmental and social impacts of flaring and venting of natural gas in Nigeria. It adopts a dual approach of increasing the regulatory fine for flaring cases, while at the same time providing incentives for oil producers to commercialize gas that could have been flared. The zero royalty regimes in the Regulations can significantly encourage oil producers to utilize flare gas for other commercially beneficial purposes. If effectively implemented, the Regulations can address the perennial economic, environmental, social and human rights monstrosities of gas flaring in Nigeria.

The Petroleum Industry Bill (PIB) has lingered far too long at the National Assembly. What do you think is the reason we are yet to get it right in our petroleum laws?
When the PIB was introduced in 2000, the legislative aim was to update and replace outdated provisions of Nigeria’s oil and gas legal framework with a more comprehensive and transparent provisions that align with global standards. The PIB could have gone a long way to infuse greater transparency, accountability and respect for international law standards into the Nigerian legal framework on oil and gas. For example, the last iteration of the Bill establishes a Nigerian Petroleum Regulatory Commission, with the authority to evaluate and make recommendations to the Minister on the award, renewal or revocation of any oil licence. The Minister is to act only on the recommendation of the commission. Having an independent regulatory Commission, operating at arms-length from the Ministry of Petroleum, could have gone a long way to address some of the concerns that stakeholders have raised on the need for due process and transparency in licence renewal processes, most especially providing accessible information and data as to whether and how the oil companies that have applied for renewal have met the prescribed legal requirements. 

Unfortunately, the long wait, for the PIB, to become law continues. For Nigeria to stay competitive and attractive in an ever-competitive global oil and gas market, we need to resolve this delay in the passage of the PIB. International best practices on transparency and accountability will have to be clearly understood and implemented in the oil and gas industry without further delay. Also, stakeholder consultation in resource development goes beyond discussing with a few chiefs and village leaders. International law emphasizes the need for free, prior, informed consent (FPIC) of local communities that could be affected by an activity or project. FPIC is a robust and participatory process that means members of a community that could be affected by a project ought to take part in, and influence, decision-making processes on that project, in light of best available information.

Is there anything in International Environmental law that could be replicated in Nigeria, having the Niger Delta region in mind? 
As you know, I have been one of the strongest advocates for a comprehensive review of the environmental law framework in the Nigerian oil and gas sector, especially the Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN). Although the 2018 EGASPIN, in principle, seeks to adopt best practice, using methods and guidelines that are consistent with international standards, you will find that transparency and accountability in implementation remain key concerns. Frontier energy jurisdictions are increasingly moving towards placing environmental enforcement functions in an independent energy regulator that is at arm’s length from the licensing authority for oil and gas activities. I think that this single energy regulator approach can offer an innovative way for Nigeria to effectively prioritize and coordinate environmental protection in oil and gas producing communities in the Niger Delta region.

You have delivered lectures on energy law in over 30 countries. Could you please share your experiences with us?
Energy and environmental law issues have significant global dimensions. Whether you are in Nigeria, Australia, China, or Canada, balancing economic development with environmental protection is a global and crosscutting concern. My works in these fields have therefore provided opportunities for me to share ideas and insights with a wide range of audiences and students in all continents of the world. In addition to assisting countries to understand and address complex energy allocation problems, I have been able to contribute to environmental policy formulation and dispute resolution at different levels. These experiences have significantly shaped my worldview and I can only look forward to contributing more. It also means I get to taste the diverse delicacies and dishes in different parts of the world. I love that aspect.

What is sustainable development law and policy all about? 
Sustainable development is all about balancing economic development with social and environmental objectives. The United Nations Sustainable Development Goals (SDGs) specifically encourages countries to pursue development in its three dimensions—economic, social and environmental—in a balanced and integrated manner.  For Nigeria, this is a direct call to governments at all levels to ensure that economic development projects and activities, such as oil and gas production, infrastructure development and agricultural expansion programmes, do not compromise environmental health and social inclusion. No longer is it tolerable to focus only on economic benefits. Development must be approached and financed through the triple lens of environmental, social and economic sustainability. This area of law therefore focuses on integrating sustainability norms into legislation, policies and frameworks governing development projects in all key sectors. It is an interesting area of law as it cuts across energy, environment, food, agriculture, water, gender justice, climate change and all aspects of development. For example, recently, I have been working on a treatise that examines the nexus between water, energy and food systems and the need for their holistic and systemic management in order to achieve sustainable development.

You lead the Institute for Oil, Gas, Energy, Environment and Sustainable Development (OGEES), what is the primary objective of OGEES in this area?
OGEES Institute was established in 2012 in response to identified research, information and capacity development gaps that hinder the sustainable management of natural resources, environment and conflict resolution in Nigeria and Africa. Despite Nigeria’s oil wealth and position as a leading oil and gas supplier in the world, cutting-edge research and information on how this oil wealth can translate to better standard of living, cleaner environment and safer and healthier Nigerian communities, have not been easily accessible. It was in order to bring relevant best practices and knowledge to stakeholders, students, administrators, community heads, judges, policy leaders and business executives, that the OGEES Institute was established. The President and Founder of Afe Babalola University, Aare Afe Babalola CON, SAN, LL.D established the Institute through a generous professorial endowment. I was appointed in 2012 as the founding director of the Institute.

OGEES Institute pursues a three-fold mandate of research, capacity building and public dialogue. The Institute initiates research projects and responds to request for law and policy advice from stakeholders in public, private and international development sectors. For example, very recently, we conducted a comprehensive evaluation of environmental standards in the Nigerian oil and gas sector and this report has been cited beyond Nigeria. Through book publications, reports and our flagship journal, the Journal of Sustainable Development Law and Policy, the Institute disseminates cutting edge research in this area to global audiences.

What new frontiers can arbitrators in Nigeria explore at this time, to improve the speed of resolving arbitral disputes, taking into consideration the convenience of parties?
Arbitration, which is meant to be a speedy and less complex alternative to litigation, is increasingly criticized for taking too long. International institutions such as the Vienna International Arbitration Centre and the International Chamber of Commerce have responded to this by amending their rules to introduce mechanisms such as appointment of emergency arbitrators to reduce delays in obtaining urgent reliefs at the early stages, adoption of expedited procedures for smaller claims, consolidation of parallel arbitrations in the management of multiple claims, as well as introducing cost penalties for any unjustified delay by arbitrators in issuing final awards amongst others. Nigerian arbitrators can draw insights from these developments to further streamline and improve practices and procedures on arbitration in Nigeria to make them more responsive to users’ needs.

Does the International Law Association provide learning and training opportunities in this area
As a global network, ILA branches and committees worldwide organize seminars, workshops and conferences that are highly useful in these areas. For example, the ILA Committee on International Commercial Arbitration, ILA Committee on Sustainable Use of Natural Resources, as well as the ILA Committee on International Monetary Law amongst others. Reports and resolutions of these ILA committees have been adopted or relied upon by the United Nations and other international lawmaking bodies in developing many of the texts that comprise international law as we know it today.  Nigerian practitioners can benefit from the extensive resources and reports provided by these committees by joining the ILA. The Nigerian Branch also frequently nominates members in good standing to sit on ILA international committees and rub minds with counterparts from across the world. Furthermore, the ILA’s biennial conference, of which 78 have been held in different cities throughout the world, provide a forum for the comprehensive discussion of international law. The next conference will be held in Kyoto, Japan from 23-27 August 2020.