international court of justice on bakassi peninsula: cameroun&nigeria
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A look into the ICJ judgment on the Bakassi peninsula and its aftermath....TRANSCRIPT
ICJ: CAMEROUN AND NIGERIA IN VIEW OF THE BAKASSI.
OLAGUNJU, O.P
122072This research work is in partial fulfillment of the LL.B Degree in the Faculty of Law, University of Ibadan.
NOVEMBER, 2009
1
DEDICATION
To the glory of GOD and the blessing of humanity, this work is
dedicated to all those; Camerounians and Nigerians alike, who died as a
consequence of decades of conflict, so as to pierce through the inhumane
conscience of those who orchestrated such evils, and to many who have been
affected by the insensitivity of a few, who failed in the duty of care as to due
diligence and skill on the Bakassi issue, as well as those who were displaced
from the oil rich region.
2
ACKNOWLEDGEMENT
To my Father, I take my hearty bow,
To my own beautiful mother, I owe my due,
To my lecturers and supervisor, Mrs. Olomola, may your patience and sagacity never diminish,
To the resilient Damilola Bolajoko, Mrs. Adewunmi, The Popoolas, Fashie-Fizzie, Governor Dike, , Kennedy, Mark de Duke, Nas, Oke, Demola, Folarera Senator Yerima, All zikites; past, present and future, All Uites, and All my friends; old and young, in Nigeria and beyond, you are a wonderful experience,
To my colleagues and prospective colleagues, the sky is your platform, God your limit,
To my admirers and well wishers, I say ‘MERCI BEAUCOUP’,
To Nigeria, your time is now,
To Africa, Yes we can,
Beyond the realm of words,
To all the world,
LET YOUR LIGHT SHINE ….
3
TABLE OF CONTENT
Title Page i
Certification
Dedication ii
Acknowledgement iii
Table of Content iv-vi
Table of Cases vii-viii
Table of Statutes ix
Introduction ix-xi
CHAPTER ONE 1-21
1.1. THE BAKASSI PENINSULA 13
1.2. THE INTERNATIONAL COURT OF JUSTICE 3-18
1.2.1. HISTORY 314
1.2.2. JURISDICTION OVER THE CAMEROUN v. NIGERIA
DISPUTE 14-21
4
1.3. PARTIES TO THE DISPUTED TERRITORY 21-25
1.3.1. CAMEROUN 21-23
1.3.2. NIGERIA 23-24
CHAPTER TWO 25-49
2.1. LEGAL & POLITICAL ISSUES BEFORE
THE ICJ’S JUDGEMENT 25-44
2.1.1. PRE-INDEPENDENCE 25-39
2.1.2. 1840-1948 25-30
2.1.3. 1949-1954 30-32
2.1.4. 1955-1960
32-39
2.2. POST INDEPENDENCE
39-44
2.3. COMMERCIAL INTIGUES BEHIND THE ANGLO-GERMAN
TREATY 1913 44-45
5
2.4. CONSEQUENT CRISES IN THE REGION 46-49
CHAPTER THREE 50-69
3.1. THE JUDGMENT OF THE INTERNATIONAL COURT
3.1.1 SUMMARY 50-55
3.1.2. DISSENTING OPINION 56-59
3.1.3. AREAS COVERED BY THE ICJ JUDGMENT 59-64
3.2. IMPLICATION OF THE DECISION 64-69
CHAPTER FOUR 70-89
4.1. FULL PROVISIONS OF THE GREEN TREE AGREEMENT 70-75
4.2. ANALYSIS OF THE AGREEMENT 75-90
4.2.1. CRITICISM ON THE AGREEMENT 75-77
4.2.2.THE LEGAL POSITION ON THE GREEN TREE AGREEMENT 77-84
4.3. LEGAL CLAIMS BY THE BAKASSI INHABITANTS 84-87
4.4. THE PLACE OF MUNICIPAL LAW 87-89
6
CHAPTER FIVE
RECOMMENDATIONS AND CONCLUSION 90-99
BIBLIOGRAPHY 100-104
7
TABLE OF CASES
1. International Court of Justice” Land and Maritime Boundary between Cameroun and
Nigeria. “ICJ Press release 2002/26, October 10, 2002
2. Indigenes of Bakassi Local Council & 8 ors. v. Federal Republic of Nigeria, Suit No.
FHC/ABJ/M/143/08
3. Carthage and Manouba cases (1913
4. The Timor Frontiers (1914)
5. Sovereignty over the Island of Palmas (1928) cases
6. Rayner Ltd v. Department of Trade & Industry [1990] 2 AC p.418
7. Canada v. AttorneyGeneral for Ontario [1937] AC 326
8. Maganbhai Ishwarbhai Patel v. Union of India
9. The Wimbledon (1923), P.C.I.J., Ser. A, no. 1, p. 29
10. Mavrommatis, (1925) P.C.I.J., Ser. A, no. 5.
11. German Interests in polish Upper Silesia (1926), P.C.I.J., Ser. A, no. 7, p. 19.
12. Chorzow Factory (Meritis) (1928), P.C.I.J., Ser. A, no. 17, pp. 33, 34.
13. Jurisdiction of the Courts of Danzing (1928), P.C.I.J., Ser. B, no. 15, pp. 26,
27.
14. Free Zones Case (1929), P.C.I.J., Ser. A, no. 24, p. 12.
8
15. The Fisheries Case, I.C.J. Reports (1951), p. 116 at p. 132.
16. The Nottebohm case, I.C.J. Reports (1955), p. 4.
17. Polish Nationals in Danzig (1931), P.C.I.J., Ser. A/B no. 44, p. 24.
18. Exchange of Greek and Turkish Populations (1925). P.C.I.J., Ser. B, no. 10,
p.20
9
TABLE OF STATUTES
1. Anglo- German Agreement of April 14, 1893
2. Article 33 of the United Nations Charter
3. The Constitution of the Federal Republic of Nigeria, 1999
4. Statutes of the International Court of Justice
5. Cairo Declaration on Border, Organization of African Unity
6. The New Territorial Waters (Amendment) Act 1998
10
INTRODUCTION
The long historical and legal river of conflict had flown and is still subtly
flowing through two sovereign nations and closely knitted neighbours: Cameroun and
Nigeria, over the oil rich region of the Bakassi, starting from the Treaty between
England and Old Calabar in 1884 sailing intellectually all the way through to the
International Court of Justice judgment of October 10, 2002, after crossing the hurdles
of the Anglo_Germans treaty of 1913 (which abrogated Article 3 of the old Anglo-
German agreement of April 14, 1893; inter-alia), the Nigerian-Cameroun political
experience, Nigeria and Cameroun's Independence, The 1971 Gowon-Ahidjo
contractual romance and prolonged sportsmanship and the judicial submission under
the Administration of Paul Biya of Cameroun and Olusegun Obasanjo of Nigeria to
the intervening jurisdiction of the International Court of Justice.
The bi-national imbroglio and transactions over the possession of Bakassi for
some years, leading to protracted tension between the two countries, which though
judicially settled seem to be shrouded in mysticism and mystery to the present
generation of Nigerians, Camerounians and even occupants of the Bakassi, which is
aimed to be intellectually and historically demystified and legally unraveled analytically
for the consumption of the ordinary minds in the law’s eyes, Nigeria at heart, to the best
11
of abilities without compromising the language aesthetics and intellectual flavour as may
arise.
1981 has it on history books that the two countries were at the brink of war over
Bakassi and another area around Lake Chad, at the other end of the two countries common
border. The flow of armed clashes rose again in the early 1990s. In response, Cameroun
took the matter to the International Court of Justice on 29 March 1994.
The case was extremely complex, and shrouded in historical and legal mysticism
for even the International Court of Justice, requiring the court to review diplomatic
exchanges dating back over 100 years. Nigeria relied largely on Anglo-German
correspondence dating from 1885 as well as treaties between the colonial powers and the
indigenous rulers in the area, particularly the 1884 Treaty of Protection (the Treaty
between England and Old Calabar in 1884). Cameroun, on the other hand pointed to the
Anglo-German treaty of 1913, which defined spheres of control in the region, as well as
two agreements signed in the 1970s Gowon-Ahidjo/Coker-Ngo compromise between
Cameroun and Nigeria. Inclusive were the Yaounde II Declaration of 4 April 1971 and
the Maroua Declaration of 1 June 1975, which were devised to outline maritime
boundaries between the two countries following their independence. The line was drawn
through the Cross River estuary to the west of the peninsula, thereby implying
Camerounian ownership over Bakassi.
12
It is currently in the territorial custody of Cameroun following the transfer of
sovereignty from neighbouring Nigeria, as a result of the judgment by the International
Court of Justice. On 22 November 2007, the Nigerian Senate rejected the transfer, since
the Green Tree Agreement ceding the area to Cameroun was contrary to Section 12(1) of
the 1999 Nigerian Constitution, although erroneously, as may be opined by some legal
analyst that, the green tree agreement was a product of the ICJ’s judgment (and not a
treaty voluntarily entered by the two parties" agreement) and that the ICJ’s judgment was
not a treaty to be ratified as provided by the Nigerian Constitution. Regardless of
resistance from Nigeria, the territory and a quantum of her people was formally
transferred to Cameroun on August 14, 2008. Consequently, the verdict caused
consternation in Nigeria and aroused vitriolic comments from Nigerian officials and the
Nigerian media alike. Chief Richard Akinjide, a former Nigerian Attorney-General and
Minister of Justice who had been a leading member of Nigeria's legal team, described the
decision as "50% international law and 50% international politics", "blatantly biased and
unfair", "a total disaster", and a "complete fraud".
The Nigerian newspaper, The Guardian went further, declaring that the judgment
was "a rape and unforeseen potential international conspiracy against Nigerian
territorial integrity and sovereignty" and "part of a Western ploy to foment and
perpetuate trouble in Africa". Although, some Nigerian scholars in response to the
13
position opined that the Nigerian team on the issue were not fully armed with a convincing
position. However, the outcome of the controversy was a de facto Nigerian refusal to
withdraw militarily from Bakassi and transfer sovereignty. The Nigerian government did
not, however, openly reject the judgment but instead called for an agreement that would
provide "peace with honour, with the interest and welfare of our people".
The ICJ judgment having the backing of the United Nations, via the United
Nations Charter which makes permissible sanctions or even the use of force to enforce
the court's ruling, cannot be contested since parties agreed to its jurisdiction. In
furtherance, Secretary-General Kofi Annan stepped in as a mediator and chaired a
tripartite summit with the two countries' presidents on 15 November 2002, which
established a commission to facilitate the peaceful implementation of the ICJ's judgment.
A further summit was held on 31 January 2004.
In response, Bakassian leaders threatened to seek independence if Nigeria
renounced sovereignty. This secession was announced on 9 July 2006, as the "Democratic
Republic of Bakassi". The decision was reportedly made at a meeting on 2 July 2006 and
The Vanguard newspaper of Nigeria reported the decision to secede, reportedly made by
groups of militants including Southern Camerouns under the aegis of Southern Camerouns
Peoples Organisation (CAPO), Bakassi Movement for Self-Determination (BAMOSD),
and the Movement for the Emancipation of the Niger Delta (MEND).
14
Consequently, this research work centres on the judgment of the International
Court on the Peninsula and the consequent, Green Tree Agreement and seeks to provide
solutions to avert the circumstances of such a nature in the future, particularly with
reference to the humans that dwell within the confines of the disputed region. Despite all
these, it is evident that the judgment has come to perpetually stay, but the lessons can
never depart from the minds of all involved for intellectual appraisal and dialectical
consideration.
Chapter one seeks to consider the background to the issue as well as an overview
of important points relevant to the work.
Chapter two centres on the legal and political issues from which the Nigeria and
Cameroun dispute over Bakassi originated.
Chapter three takes an in-depth look at the International Courts decision on the
Bakassi issue, with cursory analysis of the ICJ’s decision.
Chapter four provides a critical appraisal of the Greentree agreement as well as
other legal issues consequent upon its inception.
Chapter five, without hesitation provides recommendations for future
consideration.
15
CHAPTER ONE
THE BAKASSI PENINSULA
The Bakassi peninsula which consists of a number of low-lying, largely
mangrove dominated islands, overwhelming an area of around 665 km2
aesthetically and strategically situated roughly between longitudes 8°20’,
9°08’E and latitudes 4°25’,5°10’N4, 400 square miles and 1,000 square
kilometers, on the Cameroun-Nigeria border, at the South-Eastern end of the
Gulf of Guinea11. The population of Bakassi has been a subject of controversy,
but is generally put at between 150,000 and 300,000 people. Bakassi is situated
at the extreme eastern end of the Gulf of Guinea, where the warm east-flowing
Guinea Current meets the cold north-flowing Benguela2 Current. These two
great ocean currents interact creating huge foamy breakers which constantly
advance towards the shore, and building submarine shoals rich in fish, shrimps,
and an amazing variety of other marine life forms. However, considerable
1 Nair K.K, Politics and Society in Southern Eastern Nigeria, Heinmann, 1977, p.1
2 The city and capital of Benguela District,on the Atlantic coast of Western Angola,with population of about 155,000 (Microsoft Encarta 2009) .
16
pecuniary interest from the region seem imminent for the oil companies in the
scavenging pursuit for rich reseves of high grade crude oil.3
The Bakassi Peninsula, the oil rich and fishermen populated extension of
the Nigerian territorial jurisdiction of Calabar into the Atlantic Ocean, in
possession and title claim of the Camerounian Government with formal transfer
of the long-aged disputed territory on August 14, 2008, as a consequence of the
Judgment of the International Court of Justice on 10th October, 2002, as a legal
foundation; the Greentree Agreement as the extra-legal structure and the formal
transfer as the final roof, which is a product of the Nigerian and Camerounian
Presidents’ agreement, a legal romance of peace meticulously orchestrated by
former President Olusegun Obasanjo of Nigeria (later handed over to his
successor, Umar Musa Yar’Adua to perfect) and President Paul Biya of
Cameroun (with the intervention of the then Secretary General of the United
Nations, Kofi Annan as the Umpire)4, despite unequivocal agitation from the
Bakassi people, as well as the Nigerian Senate on 22nd November, 2007 with a
claim that the ceding was contrary to Section 12 (1) of the 1999 Constitution of
3 Ibid at p. 2
4 ‘According to Annan, “With today’s agreement on the Bakassi peninsula, a comprehensive resolution of the dispute is within our grasp. The momentum achieved must be sustained”.
17
Nigeria5. The 2002 International Court of Justice ruling was claimed to have
been based on the 1913 treaty between Britain and Germany6.
Historically, around 1450 AD., a kingdom was founded by the Efik of
coastal South-Eastern Nigeria, and was geographically incorporated into the
political jurisdiction of Old Calabar Kingdom along with Southern Camerouns.7
Queen Victoria signed a Treaty of Protection with the King and Chiefs of
Calabar on the 10th of September, 1884 during the European’s desperate
pursuit in the possession of Africa, which ‘legally’ facilitated the United
Kingdom’s exercise of control over the entire territory of Calabar, including
The Bakassi, which consequently became a de facto part of Nigeria, although
the border was never permanently delineated8.
Interestingly, even after Southern Cameroun voted in 1961 to leave
Nigerian and become part of Cameroun, the Bakassi remained under Calabar
administration in Nigeria until the International Court's verdict of 2002 and the
consequent signing of the Green-Tree Agreement.
5 BBC New report on Bakassi handover, August, 2008.6 Treaties between Britain and Germany dating back to 1913, official Nigerian regional border delineation (e.g The Legal Notice No. 126 of 1954).7 Nair K.K, op cit
8Latham A.J.H, Old Calabar 1600-1891, Heinemann, 1977. The swampy peninsula and associated small islands before the handover, were strategically located in such a way as to control access to the Nigerian port of Calabar.
18
THE INTERNATIONAL COURT OF JUSTICE HISTORY
The creation of the Court represented the culmination of a long
development of methods for the pacific settlement of international disputes, the
origins of which can be traced back to classical times. Article 33 of the United
Nations Charter lists the following methods for the pacific settlement of
disputes between States: negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, and resort to regional agencies or arrangements;
good offices should also be added to the list. Among these methods, certain
involve appealing to third parties. For example, mediation places the parties to a
dispute in a position in which they can themselves resolve their dispute with the
intervention of a third party.9 Arbitration goes further, in the sense that the
dispute is submitted to the decision or award of an impartial third party, so that
a binding settlement can be achieved. The same is true of judicial settlement
(the method applied by the International Court of Justice), except that a court is
subject to stricter rules than an arbitral tribunal, particularly in procedural
matters. Mediation and arbitration preceded judicial settlement in history, for
instance, the former was known in ancient India and in the Islamic world, whilst
9 Jennings R.Y. , The Role of the International Court of Justice: 68 BYIL, 1999
19
numerous examples of the latter are to be found in ancient Greece, in China,
among the Arabian tribes, in maritime customary law, in medieval Europe and
in Papal practice.10
The modern history of international arbitration is, however, generally
recognized as dating from the so-called Jay Treaty of 1794 between the United
States of America and Great Britain.11 This Treaty of Amity, Commerce and
Navigation provided for the creation of three mixed commissions, composed of
American and British nationals in equal numbers, whose task it would be to
settle a number of outstanding questions between the two countries which it had
not been possible to resolve by negotiation.12
Whilst it is true that these mixed commissions were not strictly speaking organs
of third-party adjudication, they were intended to function to some extent as
tribunals, which consequently, reawakened interest in the process of inter-state
arbitration. Throughout the nineteenth century, the United States and the United
Kingdom had recourse to them, as did other States in Europe and the
10 Ibid
11 Mann F.A, International Corporations and National Law, 42 BYIL, 1967, p. 14512 Ibid
20
Americas.13
The Alabama Claims arbitration in 1872 between the United Kingdom
and the United States marked the start of a second, and still more decisive,
phase. Under the Treaty of Washington of 1871, the United States and the
United Kingdom agreed to submit to arbitration claims by the former for
alleged breaches of neutrality by the latter during the American Civil War14.
The two countries stated certain rules governing the duties of neutral
governments that were to be applied by the tribunal, which they agreed should
consist of five members, to be appointed respectively by the Heads of State of
the United States, the United Kingdom, Brazil, Italy and Switzerland, the last
three States not being parties to the case.15 The arbitral tribunal’s award ordered
the United Kingdom to pay compensation and it was duly complied with. The
proceedings served as a demonstration of the effectiveness of arbitration in the
settlement of a major dispute and it led during the latter years of the nineteenth
century to developments in various directions, namely: sharp growth in the
practice of inserting in treaties clauses providing for recourse to arbitration in
13 Ibid at p. 145. Also, Jenks, The Third US Restatement of Foreign Relations Law, rol. I , pp. 13314 Ibid
15 Ibid
21
the event of a dispute between the parties; the conclusion of general treaties of
arbitration for the settlement of specified classes of inter-State disputes; efforts
to construct a general law of arbitration, so that countries wishing to have
recourse to this means of settling disputes would not be obliged to agree each
time on the procedure to be adopted, the composition of the tribunal, the rules
to be followed and the factors to be taken into consideration in making the
award; proposals for the creation of a permanent international arbitral tribunal
in order to reduce the need to set up a special ad hoc tribunal to decide each
arbitral dispute.16
In 1899, The Hague Peace Conference, convened at the initiative of the
Russian Czar Nicholas II, marked the beginning of a third phase in the modern
history of international arbitration. The chief object of the Conference, in which
— a remarkable innovation for the time — the smaller States of Europe, some
Asian States and Mexico also participated, was to discuss peace and
disarmament.17 It ended by adopting a Convention on the Pacific Settlement of
International Disputes, which dealt not only with arbitration but also with other
16 Jennings R.Y. , op cit
17 Schermers and Blokker, International Institutional Law, Cambridge Press,1st Edition, p. 992
22
methods of pacific settlement, such as good offices and mediation.18 With
respect to arbitration, the 1899 Convention19 made provision for the creation of
permanent machinery which would enable arbitral tribunals to be set up as
desired and would facilitate their work. This institution, known as the
Permanent Court of Arbitration, consisted in essence of a panel of jurists
designated by each country acceding to the Convention — each of such country
being entitled to designate up to four — from among whom the members of
each arbitral tribunal might be chosen. The Convention further created a
permanent Bureau, located at The Hague, with functions corresponding to those
of a court registry or a secretariat, and it laid down a set of rules of procedure to
govern the conduct of arbitrations. It will be seen that the name “Permanent
Court of Arbitration” is not a wholly accurate description of the machinery set
up by the Convention, which represented only a method or device for
facilitating the creation of arbitral tribunals as and when necessary.
Nevertheless, the system so established was permanent and the Convention as it
were “institutionalized” the law and practice of arbitration, placing it on a more
18 Ibid
19 Finnis, Natural Law and Natural Rights, Oxford, 1980, and R. Tuck, Natural Rights Theories, Cambridge, 1979.
23
definite and more generally accepted footing. The Permanent Court of
Arbitration was established in 1900 and began operating in 1902.
A few years later, in 1907, a second Hague Peace Conference, to which
the States of Central and South America were also invited, revised the
Convention and improved the rules governing arbitral proceedings. Some
participants would have preferred the Conference not to confine itself to
improving the machinery created in 1899. The United States Secretary of State,
Elihu Root20, had instructed the United States delegation to work towards the
creation of a permanent tribunal composed of judges who were judicial officers
and nothing else, who had no other occupation, and who would devote their
entire time to the trial and decision of international cases by judicial methods.
The United States, the United Kingdom and Germany submitted a joint
proposal for a permanent court, but the Conference was unable to reach
agreement upon it. It became apparent in the course of the discussions that one
of the major difficulties was that of finding an acceptable way of choosing the
judges, none of the proposals made having managed to command general
support. The Conference confined itself to recommending that States should
20 According to Root “These judges should be so selected from the different countries, that the different systems of law and procedure and the principal languages shall be fairly represented”.
24
adopt a draft convention for the creation of a court of arbitral justice as soon as
agreement was reached "respecting the selection of the judges and the
constitution of the court"21. Although, this court was never in fact to see the
light of day, the draft convention that was to have given birth to it enshrined
certain fundamental ideas that some years later were to serve as a source of
inspiration for the drafting of the Statute of the Permanent Court of
International Justice (PCIJ).
Notwithstanding the fate of these proposals, the Permanent Court of
Arbitration, which in 1913 (the year the Anglo-German Treaty was signed) took
up residence in the Peace Palace that had been built for it by Andrew Carnegie.
Among the classic cases that have been decided through recourse to its
machinery, mention may be made of the Carthage and Manouba cases (1913)
concerning the seizure of vessels, and of the Timor Frontiers (1914) and
Sovereignty over the Island of Palmas (1928) cases. 22
Article 14 of the Covenant of the League of Nations gave the Council of
the League responsibility for formulating plans for the establishment of a
Permanent Court of International Justice (PCIJ), such a court to be competent
21 Journal of the History of International Law, 2001, p. 1.22 Ibid
25
not only to hear and determine any dispute of an international character
submitted to it by the parties to the dispute, but also to give an advisory opinion
upon any dispute or question referred to it by the Council or by the Assembly.
At the second session early in 1920, the Council appointed an Advisory
Committee of Jurists to submit a report on the establishment of the Permanent
Court of International Justice (PCIJ).23 The committee sat in The Hague, under
the chairmanship of Baron Descamps from Belgium. In August 1920, a report
containing a draft scheme was submitted to the Council, which, after examining
it and making certain amendments, laid it before the First Assembly of the
League of Nations, which opened at Geneva in November of that year. The
Assembly instructed its Third Committee to examine the question of the Court’s
constitution. In December 1920, after an exhaustive study by a subcommittee,
the Committee submitted a revised draft to the Assembly, which unanimously
adopted it. This was the Statute of the (Permanent Court of International Justice
) PCIJ.
The Assembly took the view that a vote alone would not be sufficient to
establish the PCIJ and that each State represented in the Assembly would
23 Ibid
26
formally have to ratify the Statute. In a resolution of 13 December 1920, it
called upon the Council to submit to the Members of the League of Nations a
protocol adopting the Statute and decided that the Statute should come into
force as soon as the protocol had been ratified by a majority of Member
States.24 The protocol was opened for signature on 16 December. By the time of
the next meeting of the Assembly, in September 1921, a majority of the
Members of the League had signed and ratified the protocol. The Statute thus
entered into force. It was to be revised only once, in 1929, the revised version
coming into force in 1936. Among other things, the new Statute resolved the
previously insurmountable problem of the election of the members of a
permanent international tribunal by providing that the judges were to be elected
concurrently but independently by the Council and the Assembly of the League,
and that it should be borne in mind that those elected “should represent the
main forms of civilization and the principal legal systems of the world”. Simple
as this solution may now seem, in 1920 it was a considerable achievement to
have devised it. The first elections were held on 14 September 1921.25
Following approaches by the Netherlands Government in the spring of 1919, it 24 Ibid
25 Ibid
27
was decided that the PCIJ should have its permanent seat in the Peace Palace in
The Hague, which it would share with the Permanent Court of Arbitration. It
was accordingly in the Peace Palace that on 30 January 1922 the Court’s
preliminary session devoted to the elaboration of the Court’s Rules opened, and
it was there too that its inaugural sitting was held on 15 February 1922, with the
Dutch jurist Bernard C. J. Loder as President.26
The outbreak of war in September 1939 inevitably had serious
consequences for the PCIJ, which had already for some years known a period of
diminished activity. After its last public sitting on 4 December 1939, the
Permanent Court of International Justice did not in fact deal with any judicial
business and no further elections of judges were held.
In 1942 the United States Secretary of State and the Foreign Secretary of
the United Kingdom declared themselves in favour of the establishment or re-
establishment of an international court after the war, and the Inter-American
Juridical Committee recommended the extension of the PCIJ’s jurisdiction.27
Early in 1943, the United Kingdom Government took the initiative of inviting a
number of experts to London to constitute an informal Inter-Allied Committee 26 Ibid
27 Ibid
28
to examine the matter. This Committee, under the chairmanship of Sir William
Malkin from the United Kingdom, held 19 meetings, which were attended by
jurists from 11 countries.28 In its report, which was published on 10 February
1944, it recommended: that the Statute of any new international court should be
based on that of the Permanent Court of International Justice; advisory
jurisdiction should be retained in the case of the new Court; acceptance of the
jurisdiction of the new Court should not be compulsory; and that the Court
should have no jurisdiction to deal with essentially political matters.29
JURISDICTION OVER THE CAMEROUN AND NIGERIA DISPUTE
The Statutes of the International Court of Justice derive its functionality
from the United Nations Charter. The jurisdiction of the Court in contentious
proceedings is based on the consent of the States to which it is open30. The form
28 Ibid
29 Ibid
30 In the following eight cases, the Court found that it could take no further steps upon an Application in which it was admitted that the opposing party did not accept its jurisdiction: Treatment in Hungary of Aircraft and Crew of the United States of America (United States of America v.Hungary) (United States of America v.USSR) ; Aerial Incident of 10 March 1953 (United States of America v. Czechoslovakia); Antarctica (United Kingdom v. Argentina) (United Kingdom v.Chile); Aerial Incident of 7 October 1952 (United States of America v.USSR); Aerial Incident of 4 September 1954 (United States of America v.USSR); and Aerial Incident of 7 November 1954 (United States of America v.USSR).
29
in which this consent is expressed determines the manner in which a case may
be brought before the Court and its further jurisdiction31. Cases may be
entertained by the International Court of Justice, on the following:
(a) SPECIAL AGREEMENT
Article 36, paragraph 1, of the Statute provides that the jurisdiction of the
Court comprises all cases which the parties refer to it. Such cases normally
come before the Court by notification to the Registry of an agreement known as
a special agreement and concluded by the parties especially for this purpose.
The subject of the dispute and the parties must be indicated.
(b) CASES PROVIDED FOR IN TREATIES AND CONVENTIONS
Article 36, paragraph 1, of the Statute provides also that the jurisdiction
of the Court comprises all matters specially provided for in treaties and
conventions in force. In such cases a matter is normally brought before the
31 Article 38, paragraph 5, of the present Rules of Court which came into force on 1 July 1978 provides that:" When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court's jurisdiction for the purposes of the case
30
Court by means of a written application instituting proceedings; this is a
unilateral document which must indicate the subject of the dispute and the
parties32 and, as far as possible, specify the provision on which the applicant
founds the jurisdiction of the Court
(c) COMPULSORY JURISDICTION IN LEGAL DISPUTES
The Statute provides that a State may recognize as compulsory, in
relation to any other State accepting the same obligation, the jurisdiction of the
Court in legal disputes. These cases are brought before the Court by means of
written applications. The conditions on which such compulsory jurisdiction
may be recognized are stated in paragraphs 2-5 of Article 36 of the Statute33,
which read as follows:
"2. The States parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other State
accepting the same obligation, the jurisdiction of the Court
in all legal disputes concerning:
32 Statute, Art. 40, paragraph 1; ICJ Rules, Article 3933 Statutes of the International Court
31
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach
of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an
international obligation.
3. The declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain States, or for a
certain time.
4. Such declarations shall be deposited with the Secretary-General of the
United Nations, who shall transmit copies thereof to the parties to the
Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent
Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be acceptances
of the compulsory jurisdiction of the International Court of Justice for
the period which they still have to run and in accordance with their
32
terms."
(d) FORUM PROPOGATUM
If a State has not recognized the jurisdiction of the Court at the time
when an application instituting proceedings is filed against it, that State has the
possibility of accepting such jurisdiction subsequently to enable the Court to
entertain the case: the Court thus has jurisdiction as of the date of acceptance in
virtue of the rule of forum prorogatum.34
(e) THE INTERNATIONAL COURT OF JUSTICE’s DISCRETION
Article 36, paragraph 6, of the Statute provides that in the event of a
dispute as to whether the Court has jurisdiction, the matter shall be settled by
the decision of the Court. Article 79 of the Rules lays down the conditions
which govern the filing of preliminary objections35
(f) INTERPRETATION OF A JUDGMENT34 M'heaton H, Elements of Internationa1 Law, New York, 1836
35 Ibid
33
Article 60 of the Statute provides that in the event of dispute as to the
meaning or scope of a judgment, the Court shall construe it upon the request of
any party. The request for interpretation may be made either by means of a
special agreement between the parties or of an application by one or more of the
parties.36
(g) REVISION OF A JUDGMENT
An application for revision of a judgment may be made only when it is
based upon the discovery of some fact of such a nature as to be a decisive
factor, which fact was, when the judgment was given, unknown to the Court
and also to the party claiming revision, always provided that such party's
ignorance was not due to negligence37
Consequently exercising its jurisdiction based on consent by the two
parties to submit to the International Court of Justice's jurisdiction, the ICJ
delivered its judgment on 10th October 200238, on finding based principally,
36 ICJ Rules, Art. 98
37 Statute, Art. 40, par. 1 and Rules, Art. 38, Art. 61, par. 1. In addition, a request for revision is made by means of an application as provided in Rules, Art. 99.
38 International Court of Justice” Land and Maritime Boundary between Cameroun and Nigeria. “ICJ Press release 2002/26, October 10, 2002
34
inter-alia on earlier agreements. The documents relied on asides the Anglo-
German Treaty of 1913 were the Yaounde II Declaration of 4th April 1971 and
the Maroua Declaration of 1 June 1975, which were devised to outline maritime
boundaries between the two countries following their independence.39 The line
was drawn through the Cross River estuary to the west of the peninsula, thereby
implying Camerounian ownership over Bakassi. However, Nigeria claimed she
never ratified the agreement while Cameroun regarded it as being in force, with
the implication that sovereignty over Bakassi did indeed rest with Cameroun.
The ICJs judgment instructed Nigeria to transfer possession of the peninsula but
did not of necessity require the inhabitants to move or to change their
nationality.
PARTIES TO THE DISPUTED TERRITORY
1.3.1. CAMEROUN
The Republic of Cameroun (République du Cameroun) is a unitary
republic of central and western Africa. It is bordered by Nigeria to the west;
Chad to the northeast; the Central African Republic to the east; and Equatorial
39 Anene, J.C, The International Boundaries of Nigeria, The Framework of an Emergent African Nation, London: Longman
35
Guinea, Gabon, and the Republic of the Congo to the south40. Cameroun's
coastline lies on the Bight of Bonny, part of the Gulf of Guinea and the Atlantic
Ocean. The country is called "Africa in miniature" for its geological and
cultural diversity. Natural features include beaches, deserts, mountains,
rainforests, and savannas. The highest point is Mount Cameroun in the
southwest, and the largest cities are Douala, Yaounde, and Garoua. Cameroun is
home to over 200 different ethnic and linguistic groups. The country is well
known for its native styles of music, particularly makossa and bikutsi, and for
its successful national football team. English and French are the official
languages41.
Early inhabitants of the territory included the Sao civilisation around
Lake Chad and the Baka hunter-gatherers in the southeastern rainforest.
Portuguese explorers reached the coast in the 15th century and named the area
Rio dos Camarões ("River of Prawns"), the name from which Cameroun
derives. Fulani soldiers founded the Adamawa Emirate in the north in the 19th
century, and various ethnic groups of the west and northwest established
powerful chiefdoms and fondoms. Cameroun became a German colony in 1884. 40 Encarta 2009
41 Ibid
36
After World War I, the territory was divided between France and Britain as
League of Nations mandates. The Union of the Camerounian Population (Union
des Populations du Cameroun) political party advocated independence but was
outlawed in the 1950s. It waged war on French and Camerounian forces until
1971. In 1960, French Cameroun became independent as the Republic of
Cameroun under President Ahmadou Ahidjo.42 The southern part of British
Camerouns merged with it in 1961 to form the Federal Republic of Cameroun.
The country was renamed the United Republic of Cameroun in 1972 and the
Republic of Cameroun in 1984.Compared to other African countries, Cameroun
enjoys relatively high political and social stability. This has permitted the
development of agriculture, roads, railways, and large petroleum and timber
industries. Nevertheless, large numbers of Camerounians live in poverty as
subsistence farmers. Power lies firmly in the hands of the president, Paul Biya,
and his Cameroun People's Democratic Movement party, and corruption is
widespread. The Anglophone community has grown increasingly alienated
from the government, and Anglophone politicians have called for greater
decentralization and even the secession of the former British-governed
42 Ibid
37
territories.43
1.3.2. NIGERIA
Nigeria officially the Federal Republic of Nigeria, is a federal
constitutional republic comprising thirty-six states and one Federal Capital
Territory.44 The country is located in West Africa and shares land borders with
the Republic of Benin in the west, Chad and Cameroun in the east, and Niger in
the north. Its coast lies on the Gulf of Guinea, a part of the Atlantic Ocean, in
the south. The capital city is Abuja. The three largest and most influential ethnic
groups in Nigeria are the Hausa, Igbo and Yoruba.45
The people of Nigeria have an extensive history, and archaeological
evidence shows that human habitation of the area dates back to at least 9000
BCE[3]. The Benue-Cross River area is thought to be the original homeland of
the Bantu migrants who spread across most of Central and Southern Africa in
waves between the 1st millennium BCE and the 2nd millennium CE46.
43 Ibid
44 Shaw Thurstan, Nigeria: Its Archaeology and Early History, 2007.45 Encarta, op cit
46 Shaw Thurstan, op cit
38
The name Nigeria was created from a combination of the words Niger
and Area, taken from the River Niger running through Nigeria. This name was
coined by Flora Shaw, the future wife of Baron Lugard, in the late 19th century.
Nigeria is the most populous country in Africa and the eighth most populous
country in the world, and with a population of over 148 million it is the most
populous 'black' country in the world. It is a regional power, is listed among the
"Next Eleven" economies, and is a member of the Commonwealth of Nations as
well as the United Nations.
CHAPTER TWO
THE PRE-ICJ's JUDGMENT
Pre- Independence:
1880-1948
As at the material time the Obong of Calabar signed a “Treaty of
Protection’ with Britain on September , 1884 Britain agreed to “extend its
protection” to the Obong and his Chiefs, with the unequivocal and consequent
reciprocal 'consensus ad idem47 by the Obong accepting to withdraw from
47 This type of contractual relation, many have described as a subterfuge was carried out with many African territory, with particular reference to Nigeria.
39
entering into any agreement with foreign nations or Powers without the
prior approval of the British Government, meaning, in simplistic terms, that
he signed away the Kingdom as a British protectorate47. Subsequent to the
above, on November 15, 1893, Britain and Germany defined their
boundaries in Africa48, supplemented by another agreement on March 19,
1906, which inclusively, covered British and German Territories straight
from Yola to the borders of lake Chad49. Voyaging through, from the 1900,
1903 and 1906, key declarations made - and militarily enforced - which
created the colonies of 'Northern Nigeria' and 'Southern Nigeria 50 (inclusive
of the Colony of Lagos).
Furthermore, in 1913, Britain, on one hand, in charge of the colonies of
"Southern" and "Northern" Protectorate of Nigeria and Germany on the
other hand for "Kamerun" presently called Cameroun, reached an agreement
48 Davidson, B. Old Africa Rediscovered, London: Longman, 1967. Further, the agreements between metropolitan powers, these so called protectorate agreements with African Kingdoms did not have precise definitions of boundaries.
49 Arrangement between Great Britain and Germany April-June, 1885. (BFSP, Vol. 76, 1884-5, p. 772)
50Arrangement between Great Britain and Germany, supplementary to the Arrangement of April-June 1885, relative to the respective Spheres of Action of the two countries in the Gulf of Guinea. London, July-August, 1886.(BFSP, Vol. 77, 1885-6, pp. 1049).
40
on their border from Yola to the Sea. The first of these agreements was signed
in London on March 11,191351. The second was signed at Obokum on April
12,1913 by Hans Detzner, representing Germany, and W. V. Nugent,
representing Britain.
It addressed the succinctly specific demarcation of the Anglo-German
Boundary between Nigeria and 'Kamerun' from Yola to the Cross River52.
Furthermore, on the next year 1914 during which the First World War
broke out, Britain in 1916, under the umbrella of the war invaded German
"Kamerun", with the aid of troops and carriers fighting for Britain among
whom were natives of Nigeria, not excluding some from present day, Cross-
River State.53 At the end of the war, all German territories were divided
between France and Britain by the Treaty of Versailles. The League of
Nations, in institutional orchestration of consensus meant to save the world
51 The settlement of the Frontier between Nigeria and the Cameroons. from Yola to the Sea
52 The Regulation of Navigation on the Cross River. There were eight accompanying maps.
53 Davidson B, op cit
41
from the monumental destruction of the war, inter-alia, placed them under
British or French mandate. The boundaries between British and French
mandated "Kamerun" was defined by the Franco-British Declaration of July
10, 1919 by Viscount Milner, the British Secretary of State for the Colonies,
and Henry Simon, the French Minister for the Colonies. In this agreement
Bakassi and the rest of what became known as British Cameroon were
placed under British mandate and administered coterminous with "Nigeria"
but not actually merged54.
To codify this further, another agreement was signed December 29,
1929 and January 31, 1930 between Sir Graeme Thomson, Governor of the
Colony and
Protectorate of Nigeria, and Paul Marchand, Commissioner for the
French
54 The old 1913 border as provided for the by the Anglo-German Treaty was retained.
42
Republic of Cameroun55. This Declaration was ratified and incorporated in an
Exchange of Notes on January 9, 1931 between the French Ambassador in
London and the British Foreign Minister.
After, the Second World War broke out in 1939; native Nigerians also
fought for Britain, empathetically underscoring the fact that this did not
exclude some from present day, Cross- River State56. After the war, the
mandates demarcation of British and French by the League of Nation, were
replaced by trusteeship agreements under the United Nations orchestrated in
1945, which replaced the ailing League of Nations, as approved by the
General Assembly on December 13,194657.
On 2nd of August, 1946, Britain divided the Cameroons into two, called
"Northern Cameroons" and "Southern Cameroons"58. On 13 December 1946
55 In French this translates as 'commissaire de la Republique Francaise au Cameroun'
56 Surprisingly, neither the maps from that period show the Bakassi peninsula was within "BritishCameroons", not the "Colony and Protectorate of Nigeria". Neither the Obong nor his people, nor any other"native Nigerians" were consulted or protested.
57 These United Nations agreements re-ratified the prior borders as codified by the previous Anglo-Germanand Anglo-French agreements. Maps from that period show Bakassi peninsula in the Cameroons, not thereal Nigeria.
58 Africa Research Bulletin, May 1973, p. 2845. These United Nations agreements re-ratified the prior borders as codified by the previous Anglo-German and Anglo-French agreements. Maps from that period show Bakassi
peninsula in the Cameroons.
43
Her Majesty's Government of Great Britain executed a Trust Agreement
over a clearly defined territory known as British Cameroons. A similar
Agreement was executed with France over the neighbouring territory of
French Cameroun. The terms of the trust agreements were similar, for the
Administering Authorities, viz: Britain and France, contracted to prepare the
respective trust territories and The 1946 'Order in Council’ contained detailed
provisions describing the border separating these two their inhabitants to self-
government or independence pursuant to Art 76b of the UN Charter which
states as follows:
"To promote the political, economic, social and educational
advancement of the inhabitants of the trust territories, and
their progressive development towards self-government or
independence as may be appropriate to the particular
circumstances of each territory and its peoples and the freely
expressed wishes of the peoples concerned, and as may be
provided by the terms of each trusteeship agreement."
1949 -1954
44
Following the Second World War, Dr. E. M. L. Endeley became
President of the Cameroon National Federation in 1949, at a time Southern
Cameroons (including Bakassi Peninsula) was administered with Nigeria.59
Following a dispute within the Eastern House of Assembly in Enugu in May
1953, nine out of thirteen delegates from the Southern Cameroons, who
had originally been elected on the platform of the National Council for
Nigeria and the Cameroons (NCNC), opted for 'neutrality', claiming that they
were not Nigerians.60 Mr. S. T. Muna, the only Southern Cameroonian in the
Eastern Executive Council at that time was actually dismissed. This crisis led
to the name change from "National Council for Nigeria and the Cameroons",
as the NCNC was then known, to "National Council of Nigerian Citizens".
During the July 1953 London Constitutional Conference, Endeley,
citing fear of "Nigerian domination", requested the unconditional
withdrawal of the Southern Cameroons from the Eastern Region of Nigeria,
and its transformation into a separate region of its own in line with its
59 Anene, J.C, The International Boundaries of Nigeria, The Framework of an Emergent African Nation. London: Longman60 Ibid
45
trusteeship status.61 Britain agreed and implemented separation in 1954,
making the Southern Cameroons (including Bakassi peninsula) a semi-
autonomous quasi-region of the Nigeria Federation with its own House of
Assembly and Executive Council located at Buea. Endeley was called the
Leader of Government Business, not Premier, primarily because Southern
Cameroons was not yet a full region. Importantly, the Bakassi peninsula
which was part of Cameroon since 1913, as inherited in the league of Nations
mandate after World War 1, was also excised from co-administration with
the eastern region along with the rest of the southern Cameroons at that
time62.
1955 -1960
In 1955 there was a split in Endeley's party which was then allied with
the Action Group (AG) and John Ngu Foncha emerged as his rival on the
platform of the new Kamerun National Democratic Party (KNDP).63 This
61 Ibid
62 Nigeria Gazette No. 53 vol. 41. B389 - 408
63 Anene J.C, op cit
46
party's goal was complete secession of southern Cameroons from Nigeria
and eventual reunification with Francophone Cameroun.64 Endeley was
accused of abandoning his former stance of pro-unification in favor of
integration with Nigeria. At about the same time the 'Union des Populations
Camerounaises (UPC)', a radical leftist party in Francophone Cameroun led
by Fetix Moumie was being banned by the French Governor.
In mid 1957, there was a Constitutional Conference in London to resolve
issues preparatory to Nigeria's independence which was initially proposed for
a date in 1959, but "not later than April 2, I960." In August that year,
Tafawa Balewa became Premier in an All Nigeria Federal Executive
Council. On September 25th of that year, the Willink Commission was set up
to deal with the case of Nigerian minorities. Interestingly, no submission was
made to the panel regarding the case of Bakassi peninsula, considered then to
be part of southern Cameroons.65
64 Ibid
65 Ibid
47
The Willink report was published in October 1958 - recommending
against the creation of new regions in Nigeria. Shortly thereafter, the
Constitutional conference resumed in London - and once again the Bakassi
issue was not discussed, nor was the status of Calabar as a former
"protectorate" rather than "colony" as some scholars have opined, an issue.66
In the January 1959 Southern Cameroons election (in which Bakassi
residents participated), Endeley was voted out of power and replaced by
Foncha. In October that year, the Enugu based 1 st Queens Own Nigeria
Regiment (1QONR) was temporarily deployed to southern Cameroons for
"Training". However, 'Union des Populations Camerounaises' (UPC)
meaning The Union of the Camerounian population, sympathizers in
Bamenda viewed this as a counter-insurgency deployment in support of the
hated French colonial administration.67
In early 1960, responding to more violence in the area, the 1QONR
again returned to Bamenda area in full force, followed shortly
thereafter by the 4QONR from Ibadan who were deployed further south to
66 Ibid
67 Ibid
48
Kumba near the coast. The 5QONR and 3QONR later replaced both
battalions respectively - followed later by the 2QONR.68 This show of
military force did not endear Nigeria to certain opinion leaders in the local
population.
On October 1, 1960 Nigeria became independent. The first Prime
Minister, Alhaji Tafawa Balewa signed an exchange of notes69 with the
United Kingdom saying (inter alia), that "....it is the understanding of the
Government of the United Kingdom of Great Britain and Ireland that the
Government of the Federation of Nigeria agree to the following provisions:
(i) all obligations and responsibilities of the Government of the
United Kingdom which arises from any valid international instrument
shall, henceforth, in so far as such instrument may be held to have
application to Nigeria, be assumed by the Government of the Federation of
Nigeria.
68 Ibid
69 Exchange of Notes between His Majesty's Government in the United Kingdom and the Nigeria respecting its sovereignty, London, 1960
49
(ii) the rights and benefits heretofore enjoyed by the
Government of the United Kingdom in virtue of the
application of any such international instrument to
Nigeria shall henceforth be enjoyed by the
Government of the Federation of Nigeria "
By customary international law, therefore, “Nigeria” inherited (and
agreed without question) all the present international boundary regimes
of Nigeria - with Dahomey (Benin), Niger, Chad and Cameroon - as
originally defined by various colonial Anglo-French and Anglo-German
Treaties.70 Therefore, the southern Cameroons (inclusive of the Bakassi
peninsula), which was now under separate direct British rule as a
trusteeship territory, asked Nigerian troops to leave. A British Battalion
replaced them.
However, 1QONR, supported by the new Unit of the newly
independent Nigerian Army were then deployed in an internal security
precaution along the frontier to prevent spill-over of violence. The old Anglo-
70 Anene, J.C, op cit
50
German border of 191371 was resurveyed at this time by Nigerian military
foot patrols to confirm the location of old beacons and new Police Posts
were constructed along it for clarity72
It was against this background that most southern Cameroonians
favored self-determination - independent of 'both' Nigeria and Francophone
Cameroun. However, conflicting interests on the international scene subverted
their political will. The pan-Africanist movement, led by Nkrumah, for
example, was opposed to the emergence of small African states.73 Britain was
initially afraid that an allegedly economically unviable "Southern
Cameroons" would be an albatross around its taxpayers and thus preferred
that it join with large Nigeria next door. Although southern Cameroonian
leaders preferred that the plebiscite provide a simple choice between
"integration with Nigeria or secession and independence", the UN imposed
71 Agreement between Great Britain and Germany respecting (1) the Settlement of the Frontier between Nigeria and the Cameroons, from Yola to the Sea; and (2) the Regulation of Navigation on the Cross River. Signed at London, March 11, 1913, BFSP, Vol. 106, 1913, pp. 782-787; also Treaty Series No. 13 (1913)
72 Miners: The Nigerian Army 1956 - 1966, Methuen 1971, page 73 - 74.
73Davidson, B, op cit
51
different questions on the electorate74. In October 1959, General Assembly
Resolution 1352 XIV composed the choices as follows75:
"(I) Do you wish to achieve independence by joining the
independent Federation of Nigeria?
or
(II) Do you wish to achieve independence by joining
the independent Republic of Cameroon?"
The population of Northern Cameroons had earlier in 1959 "decided to
achieve independence by joining the independent Federation of Nigeria", while the
population of Southern Cameroons, whose plebiscite could not be done in
1959 for security reasons, now "decided to achieve independence by joining
the independent Republic of Cameroun"76. More interesting, was the fact that
there were 21 polling stations on the Bakassi peninsula itself and 73% of the
74 Anene, J.C, op cit
75 Ibid
76 General Assembly resolution 1608 (XV) of 21 April 1961. In conformity with the UN Trust Agreementover French Cameroun, France grated independence to French Cameroun on 1 January, 1960 under thebaptismal name of La Republique du Cameroun (LRC).
52
people living there voted to "achieve independence by joining the independent
Republic of Cameroon”77
In 1954, the Secretary of State for the Colonies issued a legal order
defining the border between Nigeria's "Eastern region" and the "Southern
Cameroons”. This division of the Eastern region and the Calabar province
became indicated in maps from that period showing this very clearly78.
In March 1959, the UN asked Britain to clarify the wishes of the
people living in Northern and Southern Cameroons trusteeship territories in
the run up to the independence of Nigeria and Cameroon. 79
77 However, by spelling it as "Cameroon", rather than "Cameroun" which was the original spelling, the UNcreated an opening, a lacunae for the people of the "Southern Cameroons" to say they never voted to join"Cameroun" which was claimed to be the former French Territory, but rather Cameroon, which to my mindleaves room for ambiquity, on whether the Southern Cameroon intended to join Northern Cameroon or theFrench Cameroun, because only these two categories existed outside the Southern Cameroon itself. Thenby implication, if they intended to join the Northern Cameroon which decided to join Nigeria, then theyhave decided to join Nigeria.
78 Section F of the Legal Notice 126 of 1954 - 58. Article III, paragraph 3 of the founding Charter states:"'Respect for the sovereignty and territorial integrity of each state and for its inalienable right toindependent existence".
79 Anene, J.C, op cit
53
Post-Independence
On October 1st I960, Nigeria became independent instruments
creating the new country and exchange of notes between Britain and Nigeria
rehashed all its colonial boundaries as defined by previous colonial
agreements. Maps dated 1960 show that the Bakassi peninsula was clearly
within the "Southern Cameroons", not "Nigeria proper' as I stated earlier80.
In 1962, after the government under the then Prime Minister, Alhaji
Tafawa Balewa and Nnamdi Azikiwe, as Ceremonial President, diplomatic
notes were exchanged with Cameroun acknowledging the fact that Bakassi
was not Nigerian territory, maps from that period show Bakassi peninsula in
Cameroun, following the results of the 1961 plebiscite. Nigeria, in ratifying
instruments which established the OAU in 1963, agreed to respect the
80 Diplomatic Note No. 570 of March 27, 1962 to Cameroun. In addition, in 1964, Nigeria approved theCairo Declaration of the Organization of African Unity of July 1964, committing African States to theinviolability of colonial borders. Specifically, RESOLUTION 16(1) states: "Solemnly declares that all Member States pledge themselves to respect the borders existing on their achievement of national independence.
54
inviolability of colonial borders81. This was reflected in the 1964 OAU
Cairo Declaration on Border Disputes among African States82.
In January 1966, Major General Aguiyi Ironsi came to power in
Nigeria. He committed his government to respect all prior international
agreements made by the previous Balewa and Azikiwe led government before
coup d’état.
In July 1966, then Lt. Col. Gowon ascended power in Nigeria. He too
committed his government to respect all prior international agreements made
by the Ironsi and Balewa governments. Maps in that period stilled showed
Bakassi peninsula in Cameroun.83
In 1970, moves began to be made by independent Cameroun and
post-civil war Nigeria after the colossal heat and inferno of collapse from the
Nigerian Civil war, to clarify their maritime border which was vaguely
defined by the 1913 Anglo-German Treaty. Maps from that period show
81 Anene, J.C, op cit
82 As at then, the status of the Bakassi peninsula proper was still not an issue within the purview of their
discussion, in other words, no conscious effort was made to define the Bakassi peninsula.
83 Nigeria: scale 1:500,000; published by Federal Surveys, Nigeria: sheets 4, 8, 12, 11, and 15 (indicates demarcation pillars).
55
Bakassi peninsula in Cameroun, but the offshore boundary was unclear since
there was no detailed demarcation of the "navigable portion" of the approach
channel to the Calabar estuary.84 Then Attorney General, Teslim.O.Elias85
advised the Gowon government that post-colonial Nigeria had no legal basis
for contesting the Bakassi peninsula itself, but that work to delimit the
offshore boundary and vague sections of the land boundary should proceed
at full speed in accordance with the original Anglo-German Treaty of 1913.
The technical problem thus became deciding exactly what part was
"navigable" and what was not.
Consequently, this matter that was addressed on April 4th, 1971 at
Yaounde when Nigeria's General Gowon and Cameroun President Ahidjo,
accompanied by large delegations, signed the "Coker-Ngo" Line86 on which
states as thus:
"as far as the 3-nautical-mile limit."
84 Nugent, W.V, The Geographical Results of the Nigeria-Kamerun Boundary Demarcation, Geographical Journal, p. 630-51.
85 Later became a justice of the International Court in Hague, Netherlands
86 British Admiralty Chart No. 3433
56
On June 1st, 1975, Gowon and Ahidjo signed the Maroua Declaration for
the partial extension of the 1971 maritime boundary. Again, the status of the
Bakassi peninsula proper was not even an issue for discussion and maps from
that period still showed the Bakassi peninsula within the precincts of Cameroun.
On July 29, 1975 General Gowon was overthrown by General Murtala
Muhammed. One of the first acts of that regime was to begin to question all the
domestic and foreign policy decisions made by General Gowon - including the
offshore maritime border with Cameroun.
The rest of what transpired in 1981, 1994, 199687 and since then is well
known - including General Sanni Abacha's moves to formally create an
administrative set up there and all the consequent military clashes.
Surprisingly, on October 10, 200288 the International Court at The Hague
confirmed what T. O. Elias had said in 1970 and reiterated almost a century of
87 The decision to renege on Gowon's agreements with Ahidjo resonated with a section of the population which had been hoping for a way to get of its commitments to Cameroun deriving from the 1961 plebiscite and the colonial heritage dating back to 1884. Still, Nigerian official maps from that period and continuing till today except a few that were reprinted on orders from the General Ibrahim Babangida government in 1991 show Bakassi peninsula in International Court of Justice.
88 International Court of Justice. "Land and Maritime Boundary between Cameroon and Nigeria". Press Release 2002/26. October 10, 2002.
57
colonial agreements which had repeatedly placed Bakassi peninsula inside
Cameroun.89 It also went further to provide guidelines for the final clarification
of the offshore border - which if anything, is the only issue about which
General Gowon, acting on advice from some civil servants, some scholars
opine may not have been as aggressive as he could have been.90
COMMERCIAL INTRIGUES BEHIND THE BAKASSI
As it is opined by historical scholars that the Nigeria-Cameroun
dispute can be traced to the so called July 23 and September 10,1884 treaty
which Queen Victoria of Great Britain entered with the king and chiefs of old
Calabar province with King Honesty VII and Edward Hyde Hewett
representing Bakassi and Britain respectively. Other kings and chiefs in the
region also signed singularly on the platform of acknowledging the protection
of their territories from external aggression by Britain.91 In reciprocity, it
means in commercial terms, the British were granted the rights of trade over
the administration of justice and taxation.
89 ICJ, Oct. 12, 2002. “The Bakassi Peninsula Judgment” Vanguard, p.590 www.omoigui.com
91 Anene, J.C, op cit
58
For Bakassi as case study, the peninsula in particular, the Germans
were interested in shrimps and an undertaking that Britain would not seek to
expand eastwards.92 In reciprocity, the British were interested in
uninterrupted and secure sea lane access to Calabar, a key trading post. Since
the Germans already had the option of using Douala environs as a port, they
conceded the navigable portion of the offshore border to Britain, hi
exchange, Britain conceded the Bakassi peninsula properly so called to
Germany. In other words, as a consensus to get Germany's cooperation not to
threaten access to Calabar, Bakassi peninsula was conceded by Britain,
which did not receive the resistance, express or implied, of the Obong, at a
time when the conceptualization of Nigeria was not even in the embryonic
stage, that is, not yet created or thought to be. As was the practice then, it
was done for British economic reasons - to extend the railway system of
"Northern Nigeria" called Northern Protectorate to the sea and to use excess
tax revenues - derived from spirits - from "Southern Nigeria" designated
Southern Protectorate to correct a budget deficit in the Northern Protectorate.93
92 Ibd
93 Subsequently, on January 1914, "Nigeria" was created by amalgamation by Sir Lord Luggard, British and German maps of "Nigeria" from January 1914 clearly show Bakassi peninsula in Cameroon. All French Speaking African countries refer to their police and army in this manner e.g Benin Republic, Togo, Cote D'lvoire
59
CONSEQUENT CRISES IN THE REGION
In 1965, a number of border incidents took place between two villages
-Boudan and Danare - near Ikom, in a forested area of the old boundary. A
joint Nigeria-Cameroun boundary demarcation team was set up and sent to
the area94. The late Surveyor O.A. Aqua as well as Surveyor Dennis Mbata
represented Nigeria. Cameroun was represented, among others by late
Surveyor G. Obenson95. As had previously been confirmed in 1960, the area
was well demarcated by the colonial administration (based on the 1913
Treaty) but the beacons were too far apart. Thus the purpose of the exercise
was to place indivisible beacons along the old 1913 boundary. This exercise
was suspended on account of the military coup of January 1966 - and never
resumed until after the civil war96.
Furthermore, in 1981 when the world woke up to hear of the killings of
six Nigerian soldiers by Camerounian 'gendarmes' in the Bakassi peninsular.
etc.94
95 who later bcame a Professor at the University of Lagos96 Anene, J.C, op cit
60
Although, a Cameroun national radio news report claimed that a
Nigerian military patrol army violated Cameroun's territory by penetrating
the Bakassi peninsula97 and opening fire on the Cameroun Navy. Cameroun
troops in returning fire killed five Nigerian soldiers. Cameroun alleges
that this incident has provided the Nigerian authorities the pretext for
exploiting the incident politically and for trying to put the blame on
Cameroun.98
On February 6,1996, the most violent of such hostilities took place,
history has it that fighting broke out when some Camerounian 'gendarmes'
stationed at Atabong, East of the Bakassi peninsular seized the catch of a
Nigerian fisherman off the coast and ordered him to return to Ibaka in Akwa-
Ibom state of Nigeria. A Nigerian Army officer who witnessed the act
regarded it as an affront and beckoned on the fisherman to return to Atabong
west for debriefing. The 'gendarmes' were then reported to have opened fire
on both the Nigerian soldier and the fisherman wounding the Army officer
97 as far as the 'Rio del Key'
98 All Africa Reporters, Cameroon: Bakassi - More Than One Place, More Than One Problem
61
seriously. Further reported was that the 'gendarmes' who were in patrol boat
returned to base within minutes and were stated to have opened fire again on
Nigerian positions.
In May 1996, 13 Nigerian soldiers who ran into the ambush of
Camerounian gendarmes along the creeks of Bekoro and Gidigo escaped
death while some, of them were seriously wounded. Still the Nigerian
military were reported not to have taken proportionate reciprocal actions.99
Again in May 1997, the Nigerians who lived on the northern side of
the Bakassi peninsular reported how Camerounian gendarmes who also
took over their villages afflicted and tortured them. July 1997, Camerounian
gendarmes were reported to have captured some 300 Nigerians living in the
territory and detained them in their underground prisons in Manaje under
inhuman cnditions.
In 2007, reports had it that some armed men in the peninsular
driven in gunboat opened fire killing six Camerounian soldiers.100 While
the Camerounian government insistently claimed that Nigerian soldiers
99 Ibid
100 Ibid
62
were responsible for the killing, the Nigerian government would deny this
shifting the blame to the Niger-Delta militants who also denied the
allegation. Cameroun, in reciprocity the following day opened fire on
Nigerian soldiers killing an undisclosed number of them, an
innumerable squander of the most priceless value of inestimable
arithmetic proposition, human life.
63
CHAPTER THREE
THE JUDGMENT OF THE INTERNATIONAL COURT
The International Court of Justice (ICJ), sitting in The Hague,
Netherlands, the principal judicial organ of the United Nations, the 10th of
October 2002 gave Judgment in the case concerning the Land and Maritime
Boundary between Cameroun and Nigeria. In its Judgment, the Court
determined as follows the course of the boundary, from North to South,
between Cameroun and Nigeria, without the option of appeal for the parties
involved and with binding authority as provided under the United Nations
Charter101, although, the jurisdiction of the Court in contentious proceedings is
based on the consent of the States to which it is open102.
In its Judgment, the Court by thirteen votes against three declared
inadmissible Nigeria's request for interpretation of the Judgment delivered by
101 Article 33 of the United Nations Charter ,Article 36, 37 of ICJ Statute, inter-alia. "Collection of Texts governing the Jurisdiction of the Court" ,P.C.I.J., Series D, No. 6, 4th edition,1932, "Annual Reports P.C.I.J.", Chapter X, Series E, Nos. 8-16. Article 60 of the Statute also provides: "The judgnment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment,the Court shall construe it upon the request of any party."
102 Article 36, paragraph 1, of the Statute provides that the jurisdiction of the Court comprises all cases which the parties refer to it. Such cases normally come before the Court by notification to the Registry of an agreement known as a 'special agreement' and concluded by the parties specially for this purpose.The subject of the dispute and the parties must be indicated ( ICJ Statute, Article 40, paragraph 1; ICJ Rules, Art. 39).
64
the Court on 11 June, I998 in the case concerning the Land and Maritime
Boundary between Cameroun and Nigeria (Cameroun v. Nigeria)103.That was
the first time that the Court was called upon to rule on a request for
interpretation of a judgment on preliminary objections. In its Judgment, the
Court further rejected unanimously Cameroun's request that Nigeria bear the
additional costs caused to Cameroun by the request for interpretation.
The Court began by recalling that, on 28 October 1998, Nigeria instituted
proceedings whereby, referring to Article 98 of the Rules of The International
Court, it requested the Court to interpret the Judgment delivered by the Court
on 11 June 1998 in the case concerning the Land and Maritime Boundary
between Cameroun and Nigeria. Nigeria's request was communicated to
Cameroun, which filled written observations on the request within. Nigeria
chose Mr. Bola Ajibola and Cameroun and Mr. Keba Mbaye represented
Cameroun to sit as judges ad hoc in the case.104
The Parties presented the following submissions. On one hand, Nigeria
submitted:
103 ICJ Press Release, op cit
104 Ibid
65
On the basis of the foregoing considerations, Nigeria requests the Court
to adjudge and declare that the Court's Judgment of 11 June 1998 is to be
interpreted as meaning that: so far as concerns the international responsibility
which Nigeria is said to bear for certain alleged incidents:
(a) the dispute before the Court does not include any alleged incidents other
than (at most) those specified in Cameroun's application of 29 March
1994 and additional application of 6 June 1994;
(b) Cameroun's freedom to present additional facts and legal considerations
relates (at most) only to those specified in Cameroun's application of 29
March 1994 and Additional Application of 6 June 1994; and
(c) The question whether facts alleged by Cameroun are established or not
relates (at most) only to those specified in Cameroun's Application of 29
March 1994 and additional Application of 6 June 1994."
Having regard to the request for interpretation submitted by the Federal
Republic of Nigeria dated 21 October 1998, the Republic of Cameroun made
the following submissions:
66
(a) The Republic of Cameroun leaves it to the Court to decide whether it has
jurisdiction to rule on a request for the interpretation of a decision handed
down following incidental proceedings and, in particular, with regard to a
judgment concerning the preliminary objections raised by the defending
Party;
(b) To declare the request by the Federal Republic of Nigeria inadmissible;
to adjudge and declare that there is no reason to interpret the Judgment of
11 June 1998;
(c) To adjudge and declare that the Republic of Cameroun is entitled to rely
on all facts, irrespective of their date, that go to establish the continuing
violation by Nigeria of its international obligations; that the Republic of
Cameroun may also rely on such facts to enable an assessment to be
made of the damage it has suffered and the adequate reparation that is
due to it."
In its Judgment the Court requested Nigeria expeditiously and without
condition to withdraw its administration and military or police forces from the
area of Lake Chad falling within Camerounian sovereignty and from the
67
Bakassi Peninsula.105 It also requested Cameroun expeditiously and without
condition to withdraw any administration or military or police forces which
may be present along the land boundary from Lake Chad to the Bakassi
Peninsula on territories which pursuant to the Judgment fall within the
sovereignty of Nigeria. The latter has the same obligation in regard to territories
in that area which fall within the sovereignty of Cameroun. The Court takes
note of Cameroun’s undertaking, given at the hearings, to "continue to afford
protection to Nigerians living in the [Bakassi] peninsula and in the Lake Chad
area". Finally, the Court rejects Cameroun’s submissions regarding the State
responsibility of Nigeria. It likewise rejects Nigeria’s counter-claims.
In reaching the decision, the Court was composed as follows: President
Guillaume; Vice-President Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer,
Koroma, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby; Judges ad hoc Mbaye, Bola Ajibola; Registrar
Couvreur.Judge Oda appends a declaration to the Judgment of the
Court;Judge Ranjeva appends a separate opinion to the Judgment of the Court;
Judge Herczegh appends a declaration to the Judgment of the Court;
105 Ibid
68
Judge Koroma appends a dissenting opinion to the Judgment of the Court;
Judge Parra-Aranguren appends a separate opinion to the Judgment of the
Court; Judge Rezek appends a declaration to the Judgment of the Court;
Judge Al-Khasawneh and Judge ad hoc Mbaye append separate opinions to the
Judgment of the Court; Judge ad hoc Ajibola appends a dissenting opinion to
the Judgment of the Court.106
3.1.2. DISSENTING OPINION
The Vice-President of the Court expressed agreement with the Court that
the Application of Nigeria met the conditions laid down in Article 60 of the
Statute giving the Court jurisdiction to entertain Nigeria's request for
interpretation of the Court's Judgment of 11 June 1998. However, he stated that
he disagreed with the Court's conclusion that Nigeria's request for interpretation
106 The dissenting judgments received analytical appraisal in ICJ, Oct. 12, 2002. “The Bakassi Peninsula Judgment.” Vanguard, p.5.
69
was inadmissible. He points out that there is a distinction between subsequent
facts and subsequent incidents. Subsequent facts relating to an incident already
pleaded would be admissible, but not subsequent facts in the sense of
subsequent incidents. Nigeria was therefore enlisted to seek a clarification of
this aspect. The critical date for determining what incidents may be pleaded is
the date of filing of the application. If later incidents could be brought in, this
would pose major obstacles to the proper presentation and conduct of the case.
In addition. In his dissenting opinion, Judge Koronla regretted that he could not
support the Judgment, as in his view the Court should have acceded to the
request and found it admissible since it met all the criteria and conditions
necessary for the interpretation of a judgment. He maintained that the Court's
Judgment of 11 June 1998 had laid itself open to possible misconstruction by
the Parties leading to confusion, which, if not clarified, could be at variance
with the provisions of the Statute and Rules of Court. In his view, the real
purpose of an interpretation is for the Court to give precision and clarity of the
meaning and scope of the Judgment in question and when the Court stated that
70
it had not distinguished between "incidents" and "facts" in its Judgment of 11
June 1998 and had found that "additional incidents" 107
Judge Koroma also stated that the request should have been declared
admissible, as the Applicant had established its interests, both in law and in
fact, which were worthy of legal protection and would ensure that the other
Party observed the obligations imposed by the Statute and Rules of Court.
Judge Bola Ajibola, in his dissenting opinion, first explained why he is of the
opinion that the Court, in view of the clearly contentious nature of Nigeria's
Application108, should have allowed for a second round of pleadings.
He then stated that he agreed with the Court's Judgment insofar as the
questions of jurisdiction and of costs were concerned; but that he was of the
view that the Court should have considered the Nigerian Application
admissible.
The Court should have interpreted its Judgment of 11 June 1998 because in the
two paragraphs that Nigeria is requesting the Court to interpret, the Court has
decided on the issue of the procedural right of Cameroun to:
107 ICJ Press Release, op cit
108 Vanguard, op cit
71
(a) Develop what is "said" in its "Application" and
(b) Present "additional facts". But quite clearly to him the Court has
accordingly not determined the issue of additional incidents or new
incidents.
The Court should therefore, in Judge Ajibola's view, have clarified the
category of incidents alleged by Cameroun to be relevant: are they pre-1994
incidents only, or pre- and post-1994 incidents? The issue of what additional
facts are required from Cameroun should equally have been spelt out very
clearly by the Court: are these additional facts in relation to the incidents before
the applications of Cameroun in 1994 or do they include additional facts
concerning incidents subsequent to the year 1994. He stated that if the Court
agrees that Cameroun may file facts, is the Court also saying that Cameroun can
file particulars of additional incidence after 1994?109
3.2. AREAS COVERED BY THE ICJ JUDGEMENT
3.2.1. ACCESS TO CALABAR
109 ICJ Press Release, op cit
72
The Court also held that the, Maroua Declaration of June 1, 1975 was a
valid international treaty binding on both Cameroun and Nigeria. The Maroua
Declaration purported to delimit, the maritime boundary between Nigeria and
Cameroun from the point where the relevant; colonial treaty ended, down the
Calabar and Cross River estuaries and out to sea to a point south of Bakassi.
Whilst the effect of the Courts decision is to grant sovereignty over Bakassi to
Cameroun, it does not affect the right of innocent passage enjoyed under
international law by all vessels, including Nigerian vessel, travelling to and
from the sea to the west of Bakassi110, whether on the Nigerian or the
Camerounian side of the Maroua line.
3.2.2. OFFSHORE OIL AND THE LAND BOUNDARY
The Court, in its ruling, has indicated to Nigeria and Cameroun the
direction of their international boundary south of the Maroua line. The line to
be drawn between them will rapidly reach the outer limits of Equatorial
Guinea's maritime Space. The effect of this line is to cut Cameroun off
completely from access to Nigeria's offshore fields. Cameroun of her own
volition put in issue 1800 kilometres of land boundary between Lake Chad and
110 Yemi, K, Far-Reaching Political, Economic Implications of Bakassi Peninsula, Punch, Oct. 12, 2002, p. 7
73
Bakassi; Nigeria made detailed submissions which identified areas of
uncertainty and dispute, Nigeria did this in order to settle once and for all the
outstanding boundary issues between the two States. In the event, the Court
examined some 17 areas along the boundary, in each case ruling exactly where
the boundary should run. The net result of this exercise has been that some
17,000 hectares of land have been affirmed as being Nigerian territory,
including some significant Nigerian settlements, such as Sapeo, Tipsan, Lip and
Mberogo.111 By contrast, some 4,000 hectares of disputed territory were held to
be within Cameroun. In Some areas, such as at Turu in Adamawa State, the
Court found that there has been substantial encroachment by Cameroun into
Nigerian territory. The Court directs Cameroun to withdraw her administration
and military or police forces from all the areas along tf1e land boundary which
are now confirmed as being under the sovereignty of Nigeria, including Turu,
Bourha Ouango and Nyaminyami.
3.2.3. LAKE CHAD
111 Ibid
74
The main problem with Lake Chad has been the gradual drying out of
the lake, which has taken place over the last 30 years. The lake, exceeding
25,000 square kilometres in area (previously the fourth largest fresh water lake
in Africa), has been reduced to less than 2,000 square kilometres.112 The drying
out of the Lake has had a huge impact on the local population. Many people
depend on the lake for their livelihood, both for the fish it provides and on the
farmlands of the region. The Nigerian Local Government Areas in the North-
East have traditionally provided administrative services and infrastructure for
the 60,000 or so Nigerians living in this area. Nevertheless, the Court has ruled
that the colonial boundaries are to be respected. In the Lake Chad area, an
international body, the Lake Chad Basin Commission (LCBC), comprising
Nigeria, Cameroun, Chad, Niger and the Central African Republic has long
been established. Representatives of the five States meet on a regular basis in
order to coordinate efforts to preserve and protect the environment and people
of this ecologically fragile area, The people are well used to cooperation under
the leadership of the LCBC. Nigeria provides over 50% of the budget of the
112 Ibid
75
LCBC and looks forward to continued cooperation between the member States,
including Cameroun in managing this area.
In the Lake Chad area, the Court decided that the boundary is delimited
by the Thomson-Marchand Declaration of 1929-1930113; it finds that the
boundary starts in the lake from the Cameroun-Nigeria-Chad tripoint and
follows a straight line to the mouth of the River Ebeji as it was in 1931 and
consequently, runs in a straight line to the point where the river today divides
into two branches.
Between Lake Chad and the Bakassi Peninsula, the Court confirmed that the
boundary is delimited by the following instruments:
(i) from the point where the River Ebeji seperates, as far as Tamnyar Peak,
by the Thomson-Marchand Declaration of 1929-1930 (pars. 2-60), as
incorporated in the Henderson-Fleuriau Exchange of Notes of 1931;
(ii) from Tamnyar Peak to pillar 64
(iii) from pillar 64 to the Bakassi Peninsula, by the Anglo-German
Agreements of 11 March and 12 April 1913.
113 As incorporated in the Henderson-Fleuriau Exchange of Notes of 1931 (between Great Britain and France)
76
The Court examined point by point 17 sectors of the land boundary and
specifies for each one how the above-mentioned instruments are to be
interpreted.114 As concern Bakassi, the Court decides that the boundary is
delimited by the Anglo-German Agreement of 11 March 1913 (Article XVIII to
XX)115 and that sovereignty over the Bakassi Peninsula lies with Cameroun. It
decides that in this area, the boundary follows the thalweg116 of the River
Akpakorum (Akwayafe), dividing the Mangrove Islands near Ikang.
As regards the maritime boundary, the Court, having established that it
has jurisdiction to address this aspect of the case, which Nigeria disputed, fixed
the course of the boundary between the two States’ maritime areas.
3.2.4. REPARATIONS
114 ICJ Press Release op cit (paras. 91, 96, 102, 114, 119, 124, 129, 134, 139, 146, 152, 155, 160, 168, 179, 184
and 189)
115 Anglo-German Treaty,1913, Article XII referred to it as invoked by the British Order in Council of 2 August 1946;
116 Encarta 2009,describes it as a line connecting lowest points: a line connecting the lowest points of successive cross sections through a river channel or valley
77
In addition to her territorial claims, Cameroun made substantial claims:
against Nigeria for reparations to be paid on the basis that Nigeria has
encroached on sovereign Camerounian territory. Nigeria made corresponding
claims against Cameroun. Both claims were rejected by the Court. The Court
ruled that it was sufficient for both Nigeria and Cameroun peacefully to return
territories and did not require the parties to pay any compensation to one
another. 117
3.3. IMPLICATION OF THE ICJ JUDGMENT
The court decision based on the Anglo-German agreement of 11 March
1913, was that the boundary follows the mouth of the River Akpakorum,
dividing the Mangrove Island near Ikang as far as a straight line joining Bakassi
point and king point. In that judgment, the court requested Nigeria to
expeditiously and without condition to withdraw its administrative and military
or police force from the area of Lake Chad falling within the Camerounian
Sovereignty and from the Bakassi peninsula. It also requested Cameroun to
expeditiously and without condition to withdraw any administrative or military 117 Yemi K, Punch, op cit
78
or police forces which may be present along the land boundary from Lake Chad
to the Bakassi peninsula on territories, which pursuant to the judgment fall
within the sovereignty of Nigeria.118
My attempt to consider the implications of the ICJ judgment would be
pivoted on socio-economic, political and geographical pedestal in ready
consideration of its implication to legality.
As Nigerians grapple with the import of the landmark ruling by the
International Court of Justice (ICJ) ceding the oil-rich Bakassi Peninsula to
Cameroun, much of the concern in the oil industry has been and is still the
political and economic implications of the judgment as no fewer than six
acreages are affected by the politics of the age-long feud between the two
countries. 119
Without perfidy, losing Bakassi to Cameroun meant the loss of the
entrance to the Calabar port to Cameroun.120 This is because the entrance to the
118 A. T. Aghemelo and S. Ibhasebhor, Department of Political Science, The World Court Judgement on the Bakassi Pennisula and its Implications for Nigeria.
119 Ibid
120 Ibid
79
Calabar port lies in the Calabar channel and going by the terms of the 1913
agreement121 between Britain and Germany which the World court relied upon
as the authority for Cameroun’s claim to Bakassi, the channel belongs to
Cameroun.
Secondly, the loss of Bakassi, as a product of Nigeria and Cameroun’s
International obligation, has also placed the multi-million Naira Export
processing zone (EPZ) in serious danger, because the Calabar EPZ depends
largely on this important segment, it would only mean that the port belongs to
Cameroun out rightly or Nigeria will have to pay charge, which had brought
with it the subsequent danger of having lost 100 million barrels of oil deposit
and also four trillion cubic feet of gas deposits in the peninsula, a result of the
oil companies having to leave the area and relinquish the oil wells to the
Camerounians, the implication of this is that the huge revenue got from
“Bakassi oil” will be lost to Nigeria119. Although at present, claims have been
made contrary to this prediction120
121 Agreement between Britain and Germany, op cit
119“Nigeria: Bakassi - Why Country's Committed to ICJ Verdict”, This Day, 7 July,2009
120 According to Mr. Austin Avuru of Allied Energy Services,an indigenous oil producing company “None of the oil fields will be affected”. His view was backed by Mr. Tunde Afolabi, CEO of Amni International Petroleum on a prestigious Nigerian newspaper’s interview.
80
Most important to the human faculty of reason and humane concern is the
social implications of the ruling, Nigerians who had lived in Bakassi all their
lives were face with the pathetic reality of having to evacuate a region that is
part and parcel of them immediately. Most people living in that area have their
businesses located there and so leaving the area will mean detaching them from
their source of income. Moreover, all infrastructural facilities, including
hospitals, schools, recreational centres, that were originally put in place by the
country were faced with the undeniable risk of being forfeited resulting in a
fruit less effort and loss of income. Another far-reaching implication of the
judgment is the strategic or security implication for the Nigerian state. The
victory of Cameroun will make the nation lose its eastern access to the Atlantic.
This implies that without Cameroun’s approval, Nigeria’s naval ships cannot
move freely to southern Africa.
In addition, the 1999 Constitution has and is still to be amended to
remove Bakassi Local Government from Cross River State as listed in the First
Schedule, Part One of the Constitution.121 Thus, the Local Government Areas in
Cross River State will be reduced from 18 to 17, as described by the erudite
121 The Constitution of the Federal Republic of Nigeria, 1999
81
Prof. Bola Akinterinwa122 as thus: "When you are in the Senate, you represent a
state and in a state, you have three senatorial constituencies. The implication for
Cross River State this time around is that they would no longer have three
senatorial districts as other states have, but two. These are some of the
constitutional implications123." However, this assertion of the loss of a local
government had been constantly debunked by Nigerian Government officials
who claim the creation of a New Bakassi. Although, this has and is still raising
consternation, as critics claimed evidently, that the new Bakassi is not even on
the Bakassi peninsula and is currently more an idea than a reality. Some 30
kilometres away inside Nigeria the new Bakassi local government area was
recently carved out of Akpabuyo local government area, raising further
constitutional issues as concerns delimitation of constitutionally defined
boundaries without appropriate adherence to procedure. This was created by the
Nigerian government as a refuge for people on the peninsula who did not wish
to live under Camerounian rule. It has also been claimed that despite assurances
of investment from the federal government to invest some one billion naira
(US$8.3 million) in the new Bakassi, the area still cannot even be accessed by 122 A Senior Research Fellow at the Nigerian Institute of International Affairs (NIIA)
123 Punch Newspaper, Sunday, 13 October, 2002, p. 19.
82
road and there are no schools or health services there and inadequate access to
clean water124.
124 All Africa Reporters, Tuesday, 13th November 2007.
83
CHAPTER FOUR
FULL PROVISIO OF THE GREEN TREE AGREEMENT
The Agreement between the Republic of Cameroun and the Federal
Republic of Nigeria concerning the modalities of withdrawal and transfer of
authority in the Bakassi Peninsula shall read verbatim as follows:
“The Republic of Cameroun (hereinafter referred to as “Cameroun”) and
the Federal Republic of Nigeria (hereinafter referred to as “Nigeria”),
reaffirming their willingness to peacefully implement the judgment of the
International Court of Justice, Commending the Secretary-General of the
United Nations for his efforts made in this respect in organizing the tripartite
summits and establishing the Cameroun-Nigeria Mixed Commission,
considering that the question of the withdrawal from and transfer of authority
over the Bakassi Peninsula should be treated in a forward-looking spirit of
goodwill in order to open new prospects for cooperation between the two
countries after decades of difficult bilateral relations, determined to encourage
the consolidation of confidence and peace between their two countries for the
84
well-being of their peoples and for stability in the sub region, have decided to
conclude the present Agreement.
Article 1
Nigeria recognizes the sovereignty of Cameroun over the Bakassi
Peninsula in accordance with the judgment of the International Court of Justice
of 10 October 2002 in the matter of the Land and Maritime Boundary between
Cameroun and Nigeria. Cameroun and Nigeria recognize the land and maritime
boundary between the two countries as delineated by the Court and commit
themselves to continuing the process of implementation already begun.
Article 2
Nigeria agrees to withdraw all its armed forces from the Bakassi
Peninsula within sixty days of the date of the signing of this Agreement. If
exceptional circumstances so require, the Secretary-General of the United
Nations may extend the period, as necessary, for a further period not exceeding
a total of thirty days. This withdrawal shall be conducted in accordance with the
modalities envisaged in Annex I to this Agreement.
85
Article 3
1. Cameroun, after the transfer of authority to it by Nigeria, guarantees to
Nigerian nationals living in the Bakassi Peninsula the exercise of the
fundamental rights and freedoms enshrined in international human rights
law and in other relevant provisions of international law.
2. In particular, Cameroun shall:
(a) force Nigerian nationals living in the Bakassi Peninsula to leave the Zone
or to change their nationality;
(b) respect their culture, language and beliefs;
(c) respect their right to continue their agricultural and fishing activities;
(d) protect their property and their customary land rights;
(e) no levy in any discriminatory manner any taxes and other dues on
Nigerian nationals living in the Zone; and
(f) take every necessary measure to protect Nigerian nationals living in the
Zone from any harassment or harm.
86
Article 4
Annex I and the map contained in Annex II to this Agreement shall
constitute an integral part thereof. No part of this Agreement shall be
interpreted as a renunciation by Cameroun of its sovereignty over any part of its
territory.
Article 5
This Agreement shall be implemented in good faith by the Parties, with
the good offices of the Secretary-General of the United Nations, if necessary,
and shall be witnessed by the United Nations, the Federal Republic of
Germany, the French Republic, the United Kingdom of Great Britain and
Northern Ireland and the United States of America.
Article 6
1. A Follow-up Committee to monitor the implementation of this
Agreement is hereby established. It shall be composed of representatives
of Cameroun, Nigeria, the United Nations and the witness States. The
Committee shall monitor the implementation of the Agreement by the
87
Parties with the assistance of the United Nations observers of the Mixed
Commission.
2. The Follow-up Committee shall settle any dispute regarding the
interpretation and implementation of this Agreement.
3 The activities of the Follow-up Committee shall cease at the end of the
period of the special transitional regime provided for in paragraph 4 of
Annex I to this Agreement.
Article 7
This Agreement shall in no way be construed as an interpretation or
modification of the judgment of the International Court of Justice of 10 October
2002, for which the Agreement only sets out the modalities of implementation.
Article 8
This Agreement is concluded in English and French, both texts being
equally authentic.
Done at Green tree, New York on 12 June, 2006.
88
For the Republic of Cameroun: Paul Biya, President
For the Federal Republic of Nigeria: Olusegun Obasanjo, President
Witnesses
For the United Nations: Kofi Ata Annan
For the Federal Republic of Germany: H.E. Gunter Pleuger
For the United States of America: H.E. Fakie Sanders
For the French Republic: H.E. Michel Duclos
For the United Kingdom of Great Britain and N. Ireland: H.E. Koren Pierce
CRITICISM OF THE AGREEMENT
The Nigerian Senate on Thursday, November, 22, 2007, rejected the
transfer of the oil-rich Bakassi Peninsula to Cameroun by the administration of
former President Olusegun Obasanjo.It was staed that the decision to sign the
August 14, 2006 Green Tree Agreement ceding the area to Cameroun, was
89
unilateral and contrary to Section 12 (1) of the 1999 Constitution125. It was
claimed that the Nigerian President made an error of judgment by the
ratification of the Agreement, because, successive Nigerian Government before
1999, have all avoided the Bakassi , even as at when the President was the head
of state from 1976 to 1979126. Some critics stated further that, Bakassi formerly
called Bight of Biafra from 1469 to 1970, was part of Biafra, which General
Yakubu Gowon,former Nigerian Head of State, changed from Bight of Biafra to
Bight of Benin and considering the fact that ninety percent of the inhabitants of
Bakassi are Nigerians of Efik tribe127 and consequently the Green Tree
Agreement could hold no sway in the light of historical and constitutional
considerations. The argument also went forth that, the International Court of
125 1. Section 12 reads thus:
(1) No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.
(2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the he Exclusive Legislative List for the purpose of implementing a treaty.
(3) A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the House of Assembly in the Federation.
126 In Babangida’s regime, at the material time, General Domkat Bali was the Chief of Defence staff, General Abacha was the Chief of Army Staff, Vice-Admiral Nyako was the Chief of Naval Staff and Air Marshal Ibrahim Alfa was the Chief of Air Staff, there was a subtle report of planned invasion to protect the territorial integrity of Nigeria in the Bakassi Peninsula, tagged “operation sea-dog”
127 Nair K.K, op cit
90
Justice’s ruling in favour of Cameroun shouldn’t have been a factor in
justifying the ratification of the Green Tree Agreement or the quick fix
approach as applied against due the santimony of due procedure and the
welfare of human beings within that jurisdiction, as The International Court’s
Judgment are not binding on any country, as even The United States, Britain,
Israel and host of other countries have at one time or the other ignored the ICJ´s
rulings without any penalty paid for that.
LEGAL POSITION ON THE AGREEMENT
Contrary to popular claims, it is argued that Section 12 does not give the
National Assembly any legal role in the ratification of treaties, but rather
involves it in the implementation, that is domestication, of treaties128,as there is
exist a border of distinction between ratification of a treaty, on the one hand,
and its implementation (or domestication) on the other. To justify this line of
thought, ratification is viewed as the process by which a State (in this case
Nigeria) establishes in the international realm its unequivocal consent to be
128 According to Encarta dictionary, 2009, Ratification means “to give formal approval to something, usually an agreement negotiated by somebody else, in order that it can become valid or operative” whereas Domestication means “to accustom”
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bound by a treaty129 ,while domestication is the process by which a treaty
validly entered into by a State is enacted (or domesticated) as legislation so it
can have effect within the domestic realm, to which Section 12 applies, along
with Item 31 of the Exclusive Legislative List, Schedule 2 of the 1999 Nigerian
Constitution.130
It is further posited that in Nigeria, a treaty may be ratified by the
President without the National Assembly because it still operates the inherited
system from the UK whereby the executive is able to ratify a treaty without the
Parliament. Stating the UK position, the House of Lords in J.H. Rayner Ltd v.
Department of Trade & Industry131 said,
“The Government (i.e. the executive) may negotiate,
conclude, construe, observe, breach, repudiate or
terminate a treaty. Parliament may alter the laws of the
United Kingdom”
129 Article 1 of the Vienna Convention on the Law of Treaties 1969.
130 Supra
131 [1990] 2 AC p.418 at p.476
92
The Privy Council also, in the earlier case of Attorney General for
Canada v. AttorneyGeneral for Ontario132, commenting on the UK practice, as
carried out in the then British Empire, had the following to say:
“It will be essential to keep in mind the distinction between
(1) formation, and (2) the performance, of the obligations
constituted by a treaty, using that word as comprising any
agreement between two or more sovereign States. Within
the British Empire there is a well-established rule that the
making of a treaty is an Executive act, while the
performance of its obligations, if they entail alteration of
the existingdomestic law, requires legislative action. ..
Parliament, no doubt, has a constitutional control over the
Executive; but it cannot be disputed that the creation of the
obligations undertaken in treaties and the assent to their
form and quality are the function of the Executive alone.
Once they are created, while they bind the State as against
132 [1937] AC 326 AT 347-348
93
the other contracting parties, Parliament may refuse to
perform them and so leave the State in default.”
Professor B.O. Nwabueze pointed out that section 12(1) of the 1979
Nigerian Constitution identical to section 12(1) of the 1999 Nigerian
Constitution reflects the inherited common law position that treaty-making is a
purely executive act that requires subsequent implementation, that is
domestication, within the country by way of legislation enacted by the
legislature. He explains that treaty-making and its implementation are two
separate functions, the former for the executive and the latter for the
legislature132, which is unlike the system operating in certain other jurisdictions,
such as the USA and Ghana where the Constitutions specifically requires with
strict provisions and no iota of prevarication that no treaty be ‘ratified’, unless
it is approved by a specified majority in the Federal Legislature133 .This
argument that the executive, through the President, has the competence to make
and ratify treaties without the input of the National Assembly, is supported by
132 “Federalism in Nigeria under the Presidential Constitution”,1983, Sweet & Maxwell, London, p.255-256.
133 Article II, section 2 of the United States Constitution and Section 75 of the Constitution of Ghana.
94
the Indian case of Maganbhai Ishwarbhai Patel v. Union of India134 with similar
provisions as Nigeria. In this case a border dispute between India and Pakistan
was referred to international arbitration. The award of the arbitration held that
that certain villages which were thought to fall under Indian territory actually
belonged to Pakistan. When the central government of India sought to give
effect to the award a suit was filed contesting the power of the central
government to cede the territory of India to a foreign power. The majority
decision of the Supreme Court of India held that this did not amount to a
cession of the territory of India. The learned Chief Justice of India at that time,
M. Hidayatullah, who read the majority decision of the Court, said:
“The precedents of this Court are clear only on one point,
namely, that no cession of Indian Territory can take place
without a constitutional amendment... Must a boundary
dispute and its settlement by an arbitral tribunal be put on
the same footing? ... A settlement of a boundary dispute
cannot, therefore, be held to be a cession of territory. It
contemplates a line of demarcation on the surface of the
134 (1970) 3 SCC 400.
95
earth. It only seeks to reproduce a line, a statutable
boundary and it is so fixed. The case is one in which each
contending State ex facie is uncertain of its own rights and
therefore consents to the appointment of an arbitral
machinery. Such a case is plainly distinguishable from a
case of cession of territory known to be home territory”.
Consequently, the above case would appear to support the position that
the Green Tree Agreement is not a treaty of cession. In Article 1 of the Green
Tree Agreement stated above, it states that Nigeria recognizes both the
sovereignty of Cameroun over Bakassi and the land and maritime boundary
delineation as between Nigeria and Cameroun by the ICJ decision.
According to Professor Nwabueze:
“…the President, as the chief executive of the federal
government, is designated head of state…As head of state,
he represents the country in ‘the totality of its international
relations, acts for his State in its international intercourse,
96
with the consequence that all his legally relevant
international acts are considered to be acts of his State…It
comprises in substance chiefly: reception and mission of
diplomatic agents and consuls, conclusion of international
treaties, declaration of war, and conclusion of peace.
These powers are not conferred upon the President by the
Constitution in explicit terms, apparently upon the theory
that the power is inherent in every independent, sovereign
State, and is held on its behalf by its head…135”.
Further, under the Article 27, Vienna Convention on the Law of Treaties,
a party to a treaty (in this case the Green Tree Agreement), “may not invoke the
provisions of its internal law as justification for its failure to perform a treaty”.
In essence, the fact that the National Assembly has failed to domesticate the
Green Tree Agreement will not void Nigeria’s international obligation under
this treaty. In addition, it is pertinent to mention here Article 46 of the Vienna
Convention on the Law of Treaties which states that a party to a treaty “may not
135 “Federalism in Nigeria under the Presidential Constitution”, Spectrum, 1983 at p.254.
97
invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude
treaties as invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance”.
LEGAL CLAIMS BY THE BAKASSI INHABITANTS
On July 31, 2008, the Federal High Court under The Honourable Justice
M.G. Umar, sitting in Abuja ordered the Federal Government of Nigeria to
maintain status quo over the hand-over of Southern Bakassi to the Republic of
Cameroun which was scheduled to take place on August 14, 2008. It is against
this backdrop that the following appraisal became imperative.
BACKGROUND FACTS:
In the suit136 instituted by eight applicants for themselves and on behalf of
all the citizens, indigenes and families of Bakassi Local Council Area of Cross
136 Suit No. FHC/ABJ/M/143/08
98
River State, affected by the Greentree Agreement between the Federal Republic
of Nigeria and the Republic of Cameroun, they claimed several reliefs against
the Federal Government, ranging from declarations and damages to orders
restraining the Government of the Federation and of Cross River State from
handing over the Southern part of Bakassi Peninsula to Cameroun.
It should be noted that at the time the applicants were granted leave to
enforce their fundamental human rights under Sections 43 and 44 of the 1999
Constitution, they sought for other prayers which the trial court refused. The
following were the prayers they sought for but were refused by the court:
1. That the first and second respondents shall not ratify the “Greentree
Agreement” between Nigeria and Cameroun in respect of Bakassi Local
Council Area of Cross River State of Nigeria;
2. That the first, second and third respondents should not cede the
remaining part of Bakassi Local Council Area (not yet ceded in line with
the “Greentree Agreement”, that is, Abana and Atabong Zones) to
Cameroun;
99
3. That the fourth, fifth, sixth and ninth respondents should not remit funds
due monthly from the Federation Account and or the Consolidated
Revenue Fund to Cross River State and Local Council Joint Account in
respect of Bakassi Local Council Area of Cross River State, but put same
into an interest-yielding account to be maintained by the Central Bank,
while funds already remitted should not be paid to officials of the “New
Bakassi” Local Council or otherwise dissipated, but put in an interest-
yielding account and communicated to the Registrar of the Court; and
4. The respondents jointly and severally should not relocate the
administrative Headquarters of Bakassi Local Council Area from Abana
to any other place. The court, in granting an application for adjournment,
directed all the parties to maintain status quo pending the hearing and
determination of all applications and objections filed before it, and
adjourned the matter to October 20, 2008, for hearing. The order granted
by the Lower Court are as follows:
5. That parties should maintain a status quo as at today pending the hearing
and determination of all applications filed before this court,
6. That the case be adjourned to October 20, 2008 for hearing.
100
Nevertheless, on August 14, 2008, the Bakassi Peninsula was formally
handed over to Cameroun.
THE PLACE OF MUNICIPAL LAW
If a decision of a national or municipal court or a legislative measure
frustrates any international obligation, such decision or measure constitutes
evidence of a breach of a treaty or a rule of customary international law. This
makes it a difficult task to reconcile the ruling of the Federal High Court, Abuja
delivered on July 31, 2008, with the commitments of the Nigerian government
to the Greentree agreement, which was drawn up in compliance with the
direction of the International Court of Justice.
The consideration of the High Court ruling, it is argued would have been
viewed by the international community as a deliberate attempt by the Nigerian
government to frustrate the logical and full implementation of the decision of
the International Court of Justice, as Nigeria reserved the rights to either
refrained from submitting to the ICJ’s jurisdiction or voluntarily withdrawn at
the onset of the case. It is strongly argued, for instance that, The Falkland
101
Islands was a source of conflict between Britain and Argentina, for which both
countries actually went to war in 1982. Despite the strong Argentina claims to
the Island, Britain has maintained an intimidating military control of the Island,
knowing full well that if she accepted to go to the court, any outcome would be
fraught with landmines that might embarrass her.
National or municipal courts have the power to void local legislations on
the ground that they are contrary to international law but they cannot void a
decision of the International Court of Justice as given per incuriam because it
cannot be validly enforced without breach of a local legislation137.
The same principle applies where the provisions of a constitution are
relied upon. In the words of the Permanent Court: “It should… be observed
that…a state cannot adduce as against another state its own constitution with a
view to evading obligations incumbent upon it under international law or
treaties in force. Applying these principles to the current case, it results that the
137 This is the opinion of Judge Lauterpacht in the Norwegian Loan Case ICJ Reports (1957), pp. 40 – 41.On this issue, The permanent Court of Arbitration, the Permanent Court of International Justice, and the International Court of Justice have produced a consistent jurisprudence, in the Wimbledon (1923), P.C.I.J., Ser. A, no. 1, p. 29; Mavrommatis, (1925) P.C.I.J., Ser. A, no. 5; German Interests in polish Upper Silesia (1926), P.C.I.J., Ser. A, no. 7, p. 19; Chorzow Factory (Meritis) (1928), P.C.I.J., Ser. A, no. 17, pp. 33, 34; Jurisdiction of the Courts of Danzing (1928), P.C.I.J., Ser. B, no. 15, pp. 26, 27; Free Zones Case (1929), P.C.I.J., Ser. A, no. 24, p. 12; the Fisheries Case, I.C.J. Reports (1951), p. 116 at p. 132; the Nottebohm case, I.C.J. Reports (1955), p. 4.
102
question of the treatment of Polish nationals or other persons of Polish origin or
speech must be settled exclusively on the basis of the rules of international law
and the treaty provisions in force between Poland and Danzig”.138
Arising from the nature of treaty obligations and from customary
international law, there is a general duty on states to bring internal law into
conformity with obligations under international law.139 In accordance with the
ICJ’s judgment, the Republic of Cameroun has acquired title over the Bakassi
Peninsula. If she is now confronted with a prohibitive ruling of the Federal
High Court, Abuja, she is bound to plead and plead successfully too that it has
obtained adequate remedies before the ICJ, and so a re-visit of that issue in a
municipal or national court undoubtedly is unarguably unacceptable.
The law is well settled that a state cannot plead provisions of its own law
or deficiencies in that law in answer to a claim against it for an alleged breach
of its obligations under international law140. This principle is enshrined in
138 12. (1925). P.C.I.J., Ser. B, no. 10, p.20
139 Boggs, S.W, International Boundaries A Study of Boundary Functions, New York: Oxford University Press.140 Ibid
103
Article 27 of the 1969 Treaty.141 The acts of the legislature and other sources of
internal rules and decision-making are not to be regarded as acts of some third
party for which the state is not responsible, and any other principle would
facilitate evasion of obligations. The Nigerian Judiciary is part and parcel of the
Federal Republic of Nigeria and, therefore, cannot review the judgment
pronouncement or decision of the ICJ, just as the Camerounian Judiciary cannot
do so. After all, the delineation of international boundaries is a matter beyond
the jurisdiction of domestic courts.
141 Vienna Convention on the Law of Treaties, 1969
104
CHAPTER FIVE
RECOMMENDATIONS
Having studied the judgment this far, it is evidently clear that the
International Court’s decision on the Cameroun and Nigeria, maritime dispute,
delivered by the Justices of the Court in 2002 142, was a consequence of the
voluntary choice of the parties to submit to the ICJ’s jurisdiction.143 However,
may resort to considering the Revision of the Judgment, in which by virtue of
Article 61 paragraph 1 of the United Nations Statute, a party which is
dissatisfied with a judgment of the International Court of Justice may apply for
a review of same if it satisfies some conditions144.In relation to revising a
judgment, an application may be made only when it is based upon the discovery
of some fact of such a nature as to be a decisive factor, which fact was, when
the judgment was given, unknown to the Court and also to the party claiming
revision, always provided that such party's ignorance was not due to
142 International Court of Justice. "Land and Maritime Boundary between Cameroon and Nigeria". Press Release 2002/26. October 10, 2002.143 Supra
144 This procedure was highlighted with clarity in the International Court of Justice Year Book 1987-1988 (supra) at pages 53-54.
105
negligence145.A request for revision is made by means of an application as
stipulated in Rules, Art. 99. According to Chief Femi Falana, “government is
advised to have asked for a suit for a stay of execution of the ICJ ruling,
pending the determination of the plea for a review of the judgment "146.
Some school of thought also advocated for Self help as a last Resort.
According to the Prof. Akanbi in a Vanguard Newspaper interview he stated
that there exists the self help principle in international and could be applied to
make the Nigerian inhabitants in the Bakassi safe, as stated by Article 51 of the
UN Charter147. It was further argued that the Nigerian Constitution, 1999, in
Section 24 lists out the duties of Nigerian citizens to include inter alia:
"(c) Help to enhance the power, prestige and good name of
Nigeria, defend Nigeria and render such national service
as may be required." It specifically obliges us to:
145 U.N. Statute, Art. 61, para. 1146 Bakassi: Falana wants govt. to seek review of judgment, Guardian Newspaper, 15 October, 2002, p. 4
147 “ Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”
106
"respect its ideals........the National Flag, the National
Anthem, the National Pledge..........."
This above position is questionable, as the role of the United nations as
well as Nigeria in brokering peace in the Sub-Sahara region after the entire
mess is commendable within limits, as Nigeria could have refrained from
entertaining the jurisdiction of the International Court5 and the case is the first
time the International Court ever handled African centred boundary disputes6.
However, I am of the position that since the OAU Charter, to which Cameroun
and Nigeria is a party and the United Nations Charter unequivocally recognizes
the right to self determination, there was a gross neglect of the principle of self-
determination on the Cameroun and Nigeria case. Consequently, Resolution
1514 (XV), the Declaration on the Granting of Independence to Colonial
5 For instance, Article 36 of the ICJ statutes makes the acceptance by States of the ICJ jurisdiction of the ICJ optional. This is why, as at 31 May 1976, only 45 out of 144 State parties to the ICJ Status accepted the mandatory jurisdiction of the court. As well, United States, Britain, Israel and host of other countries have at one time or the other ignored the ICJ´s rulings without any penalty paid for that.6 The dispute over a part of the frontier between Burkina Faso and Mali was taken to an ICJ Chamber for delimitation and this was done in 1986. Libya and Chad also referred their territorial dispute to the ICJ in 1990. Tunisia and Libya in 1982, and Libya and Malta in 1985, sought "the principles and rules of international law applicable to the delimitation of the areas of the Mediterranean continental shelf appertaining to each of them respectively." Guinea Bissau and Senegal also referred their dispute over Maritime boundaries to the court in 1993.
107
Countries and Peoples, adopted in 1960 by eighty-nine votes to none, with nine
abstentions, stressed that:
“All peoples have the right to self-determination; by virtue
of that right they freely determine their political status and
freely pursue their economic, social and cultural
development”
In addition, The United Nations formulations of the principle from the
1960 Colonial Declaration to the 1970 Declaration on Principles of
International Law and the 1966 International Covenants on Human Rights
stress that it is the right of 'all peoples'.7 Such determination may result in
independence, integration with a neighbouring state, free association with an
independent state or any other political status freely decided upon by the people
concerned. Consequently, navigating this line of thought, the right to self-
determination would have served a veritable platform for a referendum or
7 Cassese, “Self-Determination of peoples”, Cambridge, 1995; K. Knop, “Diversity And Self-Determination in International Law, Cambridge, 2002; Umozurike, “Self-determination in International Law”, Hamden, 1972; A. Rigo-Sureda, “The Evolution Of the Right of Self-Determination”, Leiden, 1973; M. Shukri, “The Concept of Self-Determination in the United Nations, Leiden, 1967; M. Pomerance, “Self-Determination in Law and Practice”, Leiden, 1982; The General Assembly, the International Court and Self-Determination' in Fifty Years of the Intern; Law of Self-Determination; M. Koskenniemi, 'National Self-Determination
108
plebiscite conducted in the region to avoid the Bakassi people, God’s own
creation of that region becoming subjects of power tussle to which they owe no
guilt. As that would not be the first time such a democratic approach would
have been adopted to salvage the situation, in fact, in 1961, a Cameroun and
Nigeria referendum or plebiscite was conducted by the United Nations in the8.
If the issue had been handled with respect for human dignity as contained
in the Constitutions of Nigeria and Cameroun, The OAU Charter as well as the
UN Charter, the Bakassi issue would have successfully presented a window of
opportunity for the people of the Southern Cameroons in particular, and the
region in general, to address in the interest of justice, the decolonization
question of the Former United Nations Trust Territory of the Southern
Cameroons under United Kingdom Administration, the aborted decolonization
of this former United Nations Trust Territory in 1961 and its subsequent
annexation by France as “ La République du Cameroun”(the Republic of
Cameroun).
8 Nugent, W.V., "The Geographical Results of the Nigeria-Kamerun Boundary Demarcation Commission," Geographical Journal, 1914, pp. 630-51.This is fairly easy to confirm either from the UN itself or Ambassador BA Clark who was Deputy Permanent Secretary External Affairs in 1970/71. In the Cameroun and Nigeria plebiscite of 1961, 21 polling stations were physically located in the Bakassi peninsula. United Nations records clearly show that approximately 73% of the people living there at that time voted not to be administered under independent Nigeria.
109
Considering, the Nigerian’s Senate earlier rejection of the transfer of the
Bakassi Peninsula to Cameroon by the administration of former President
Olusegun Obasanjo and the later show of acceptance. It is quite evident that the
Senate approbated and reprobated at the same time, which paints an illogical
picture of apparent contradiction. However, the concern here is not to raise dust
or give life to buried and interred bones of the past, but to draw the Nigerian
Legislative attention to a fundamental constitutional issue calling for
unequivocally amendment or addition. It is opined that the legislative arm of
Government look into the provisions of Section 12 of 1999 Nigerian
Constitution, which provides for the domestication of Treaty and make amends
by making provision for the section to incorporate “ratification” of treaties,
inclusive to domestication, as provided by the United States of America and
Ghana where the Constitutions specifically requires with strict provisions that
no treaty be ‘ratified’, unless it is approved by a specified majority in the
Federal Legislature in Article II, section 2 of the United States Constitution and
Section 75 of the Constitution of Ghana respectively9.
9 “The New Territorial Waters (Amendment) Act 1998 – Comments on the Impact of International Law on Nigerian Law”(2000) African Journal of International and Comparative Law, p.84-104. As well as, “Bringing Human Rights Home: An Examination of the Domestication of Human Rights Treaties in Nigeria”(2007) Journal of African Law,p.249-284].
110
On the issue of the so called “New bakassi” Local Government created
from the Akpabuyo Local government area, as a refuge for people on the
peninsula who did not wish to live under Cameroonian rule via the Nigerian
maneuvering around that legal argument of constitutional amendments of the
bakassi local government area ceded, by simply moving the physical location of
the local government area, the Federal government needs to avert its mind to
the plight of the peole considering their stake in the issue. As reports according
to Guardian, 14th August, 2009, states in Dr. Reuben Abati’s words:
“Exactly a year ago, a portion of Nigerian territory known as Bakassi was ceded to Cameroon…. But there is a disturbing residue that lingers and it is the plight of the people of Bakassi who have been treated so badly and whose right to dignity continues to be violated. The Cross River state government and Abuja had made all kinds of promises about helping to relocate the people and provide for their needs. Senator Florence Ita Giwa, popularly known as Mama Bakassi, for her defence of the rights of the people in the public domain was also most vocal at the time. The Federal Government took the additional step of earmarking a sum of N3 billion to cover relocation and resettlement expenses, later a sum of N1 billion was allegedly provided for in the 2008 budget and there was information that a sum of N1 billion was given to the Cross River state government. The management of the Bakassi Fund, as it was called, is now one of the mysteries of the entire episode. Where is the money? How was it spent?
111
Where is the evidence that the money was used for the assigned purpose? One year later, these questions need to be asked. There should be proper accounting by both the Cross River State Government and the National Boundary Commission, more so as it was once reported that the money had been declared missing. The people of Bakassi continue to be treated shabbily. They had three options: to retain their Nigerian citizenship by moving to a resettlement camp, or remain in Bakassi as immigrants or opt for Cameroonian citizenship, No serious effort has been made to re-integrate the over 300, 000 persons who chose to stay in Nigeria. They are not wanted by Cameroon; they are ignored by Nigeria. At the Mbo and Ikang Resettlement Centres, the people are having difficulties adjusting to a new environment and a new way of life. Essentially a riverine group, they are now compelled to learn a new mode of survival on land. Many of them who used to be landlords in their old homesteads are now refugees in their own country. They cannot be blamed for seeing themselves as "victims" of "dirty local and international politics". The Cross River state government has reportedly built a number of houses for the resettlement of the people, but a whole year later, those houses remain uncompleted and no allocations have been made”.
The Federal Government of Nigeria is obliged to defend the constitution
and its people as provided for in Section 1610, Section 17 as well as other
provisions of the 1999 Nigerian Constitution. Section 16(1)(d)provides thus:
10 Not justiciable, that is, an aggrieved cannot institute an action to invoke its provisions in the Nigerian Court of Law. The entire chapter II of the Constitution of the Federal republic of Nigeria, 1999 falls within this category.
112
“without prejudice to the right of any person to participate in areas of the
economy within the major sector of the economy, protect the right of every
citizen to engage in any economic activities outside the major sectors of the
economy.”
CONCLUSION
The entire case showed a vigorous pursuit of two distinct interest over
one chattel, that is the oil rich region, which leaves doubt as to the real intention
of International law and Sovereign governments meant to protect the rights of
human beings from the social contract perspective, rather than pecuniary
interests. Consequently, the United Nations, as the world’s custodian and its
organs should in future times, take such cases in the light of the consideration
for human beings and generations unborn.
113
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and the French Government respecting the Boundary between British and
115
French Cameroons. London, January 9, 1931. Treaty Series No. 34 (1931),
United Kingdom Cmd. 3936 (with map).
17. Order in Council providing for the Administration of the Nigeria Protectorate
and Cameroons under British Mandate. London, August 2, 1946. BFSP, vol.
146, 1946, pp. 298-303.
18. Akanmode, V. 2002. Oct. 12, “Bakassi Peninsula: NigeriaV. Cameroun at last,
the Judgment.” Punch, p 4.
19. Arrangement between Great Britain and Germany, relative to their respective
Spheres of Action in portions of Africa (coast of Guinea; Cameroons: Victoria,
Ambas Bay: Santa Lucia Bay; Coast between Natal and Delagoa Bay;
Customs; and etc.), April-June, 1885. British and Foreign State Papers
(BFSP, Vol. 76, 1884-5, pp. 772-778.
20. Arrangement between Great Britain and Germany, supplementary to the
Arrangement of April-June 1885, relative to the respective Spheres of Action
of the two countries in the Gulf of Guinea. London, July-August, 1886. BFSP,
Vol. 77, 1885-6, pp. 1049.
116
21. Agreement between Great Britain and Germany, respecting Zanzibar,
Heligoland, and the Spheres of Influence of the two countries in Africa.
Signed at Berlin, July 10, 1890. BFSP, Vol 92, 1899-1900, pp. 35-47.
22. Agreement between Great Britain and Germany, respecting the Rio del Rey on
the West Coast of Africa. Signed at Berlin, April 14, 1893. BFSP, Vol. 85,
1892-3, pp. 38-39.
23. Agreement between Great Britain and Germany, respecting Boundaries in
Africa. Signed at Berlin, November 15, 1893. BFSP, Vol. 85, 1892-3, pp. 41-
43.
24. Agreement between Great Britain and Germany respecting the Boundary
between British and German Territories from Yola to Lake Chad (Nigeria and
Cameroons). Signed at London, March 19, 1906, BFSP, vol. 99, 1905-6, pp.
366-370; also United Kingdom Treaty Series No. 17 (1906), Cd. 3260 (with 4
maps).
25. Exchange of Notes between the United Kingdom and Germany confirming
Protocols defining Boundaries between British and German Territories in
Africa: (1) Gorege to Lake Chad (February 12, 1907), (2) Uba to the Maio
117
Tiel (March 11, 1907). February 22-March 5, 1909. Treaty Series No. 17
(1909).
26. Agreement between Great Britain and Germany respecting (1) the Settlement
of the Frontier between Nigeria and the Cameroons, from Yola to the Sea; and
(2) the Regulation of Navigation on the Cross River. Signed at London, March
11, 1913. BFSP. Vol. 106, 1913, pp. 782-787; also Treaty Series No. 13
(1913). United Kingdom Cd. 7056 (with maps).
27. Oxford Dictionary of Law, 5th Ed., 2003
28.Shaw, Malcolm N, International Law, 5th Edition, Cambridge University
Press.
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