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

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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

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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.

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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

BIBILIOGRAPHY

1. Anene, J.C. 1970. The International Boundaries of Nigeria, The Framework of

an Emergent African Nation. London: Longman.

2. Boggs, S.W. 1940. International Boundaries, A Study of Boundary Functions.

New York: Oxford University Press.

3. Davidson, B. 1967. Old Africa Rediscovered. London: Longman.

4. East, W.G. and A.E. Mody. 1956. The Changing World

5. London: Allen and Unwin, Mobolaji, S., Oct. 12, 2002 “Bakassi: What Next.”

Weekend Vanguard, p. 9.

6. Murdock, G.P. 1959. African, Its People and Their Culture History. New

York: Cambridge University Press.

7. Rouke, J.J. 1997. International Politics on The World Stage. New York:

Dushkin/McGraw Hill.

8. Rudin, H.R. 1938. Germans in the Camerouns, 1884- 1914. London: Claredon

Press

9. Talbot, P.A. 1926. The Peoples of Southern Nigeria. Longman: London.

114

10. Olumide, I. Oct. 12, 2002. “Letter From The Attorney General of the

Federation to the Ministry of External Affairs.” Punch, p.7

11. ICJ, Oct. 12, 2002. “The Bakassi Peninsula Judgment.” Vanguard, p.5. Yemi,

K. Oct. 12, 2002. “Far-Reaching Political.

12. Nugent, W.V., "The Geographical Results of the Nigeria-Kamerun Boundary

Demarcation Commission," Geographical Journal, 1914, pp. 630-51.

13. British Mandates for the Cameroons, Togoland and East Africa.  January,

1923.  United Kingdom Command (Cmd.) 1794.

14. . British Order in Council providing for the Administration of the Mandated

Territory of the British Cameroons.  London, June 26, 1923.  BFSP, Vol. 117,

1923, pp. 60-63.

15. . Declaration made by the Governor of the Colony and Protectorate of Nigeria

and the Governor of the French Camerooms defining the Boundary between

British and French Cameroons. France No. 2 (1930), United Kingdom Cmd.

3612.

16. Exchange of Notes between His Majesty's Government in the United Kingdom

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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