Foreign investment protection and environmental governance in Nigeria: a TWAIL analysis

The thesis examines how the international investment law regime impacts Nigeria’s ability, as a Third World State, to regulate for the environment. Adopting a Third World Approaches to International Law (TWAIL) framework, it argues that the rules and mechanisms the of international investment law regime do not favour the interests of Nigeria and its people, and as a result may stifle national efforts to address environmental concerns. To provide an evidence base for the claim that Nigeria’s investment obligations do not represent its interests as a potential host State, the thesis first examines the coherence of the ‘fair and equitable treatment’ (FET) provisions and the adequacy of environmental language in the network of Nigeria’s investment treaties. The thesis finds in the network of Nigeria’s investment treaties that the FET provisions lack coherence, and on aggregate, there is a general lack of treaty provisions addressing environmental concerns. This suggests that the contents of Nigeria’s investment treaties are largely determined by its treaty partners that prioritise foreign investor protection, resulting in inconsistent investment treaty provisions and inadequate environmental language. Second, through the study of selected investment cases, the thesis analyses how investor- State arbitration responds to environmental concerns of the Third World. In this regard, the study finds that investor-State arbitration in adjudicating disputes involving the environment between foreign investors and Third World States are prone to interpret and apply investment rules in a manner that prioritises foreign investor interest over environmental concerns of Third World States and its people. Overall, the findings show that the international investment law regime may stifle environmental governance in Nigeria. Considering this, the thesis recommends textual reforms to Nigeria’s investment treaty provisions and pragmatic policy approaches to address environmental concerns and to accommodate Nigeria’s interests as a Third World State in the international investment law regime.