International Court Of Justice On Bakassi Peninsula: Cameroun&nigeria

ICJ: CAMEROUN AND NIGERIA IN VIEW OF THE BAKASSI. OLAGUNJU, O.P 122072 This research work is in partial fulfillment of the LL.B Degree in the Faculty of Law, University of Ibadan.

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NOVEMBER, 2009

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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.

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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 ….

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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

5

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 6

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

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84-87

4.4. THE PLACE OF MUNICIPAL LAW

87-89

CHAPTER FIVE RECOMMENDATIONS AND CONCLUSION

BIBLIOGRAPHY

90-99

100-104

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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. 9

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

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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 AngloGerman 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 12

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. 13

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 14

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). 15

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.

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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) .

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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”.

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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. 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 6

8

Latham 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.

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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

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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. 145 Ibid

12

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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 14

15

Ibid at p. 145. Also, Jenks, The Third US Restatement of Foreign Relations Law, rol. I , pp. 133 Ibid Ibid

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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

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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.

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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”.

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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

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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

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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

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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 reestablishment 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

29

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).

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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

31

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 33

Statute, Art. 40, paragraph 1; ICJ Rules, Article 39 Statutes of the International Court

32

(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 33

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 JUDGMENT 34

M'heaton H, Elements of Internationa1 Law, New York, 1836

35

Ibid

34

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

35

inter-alia on earlier agreements. The documents relied on asides the AngloGerman 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

36

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

37

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

38

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. Encarta, op cit

45

46

Shaw Thurstan, op cit

39

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 idem 47 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.

40

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 Chad 49. 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)

50

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).

41

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, CrossRiver 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

42

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.

43

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 State 56. 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 "British Cameroons", 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-German and Anglo-French agreements. Maps from that period show Bakassi peninsula in the Cameroons, not the real Nigeria. 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. 58

44

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 selfgovernment or independence pursuant to Art 76b of the UN Charter which states as follows: "To promote the political, economic, social and educational advancem ent of the inhabitants of the trust territories, and their progressive development towards self-governm ent or independence as m ay be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as m ay be provided by the term s of each trusteeship agreem ent."

1949 -1954 45

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 trusteeship status.61 Britain agreed and implemented separation in 1954, 59

Anene, J.C, The International Boundaries of Nigeria, The Framework of an Emergent African Nation. London: Longman 60 Ibid 61

Ibid

46

making the Southern Cameroons (including Bakassi peninsula) a semiautonomous 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 party's goal was complete secession of southern Cameroons from Nigeria

62

Nigeria Gazette No. 53 vol. 41. B389 - 408

63

Anene J.C, op cit

47

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

The Willink report was published in October 1958 - recommending against the creation of new regions in Nigeria. Shortly thereafter, the

64

Ibid

65

Ibid

48

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 Kumba near the coast. The 5QONR and 3QONR later replaced both

66

Ibid

67

Ibid

49

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.

(ii) the rights and benefits heretofore enjoyed by the Government of the United Kingdom in virtue of the 68

Ibid

69

Exchange of Notes between His Majesty's Government in the United Kingdom and the Nigeria respecting its sovereignty, London, 1960

50

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 AngloGerman border of 191371 was resurveyed at this time by Nigerian military 70

Anene, J.C, op cit

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)

51

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 different questions on the electorate74. In October 1959, General Assembly Resolution 1352 XIV composed the choices as follows75:

72

Miners: The Nigerian Army 1956 - 1966, Methuen 1971, page 73 - 74.

73

Davidson, B, op cit

74

Anene, J.C, op cit

75

Ibid

52

"(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 people living there voted to"achieve independence by joining the independent Republic ofCameroon”77 76

General Assembly resolution 1608 (XV) of 21 April 1961. In conformity with the UN Trust Agreement over French Cameroun, France grated independence to French Cameroun on 1 January, 1960 under the baptismal name of La Republique du Cameroun (LRC). 77

However, by spelling it as "Cameroon", rather than "Cameroun" which was the original spelling, the UN created 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 mind leaves room for ambiquity, on whether the Southern Cameroon intended to join Northern Cameroon or the French Cameroun, because only these two categories existed outside the Southern Cameroon itself. Then

53

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

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 by implication, if they intended to join the Northern Cameroon which decided to join Nigeria, then they have 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 to independent existence". 79

Anene, J.C, op cit

54

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 inviolability of colonial borders 81 . 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

80

Diplomatic Note No. 570 of March 27, 1962 to Cameroun. In addition, in 1964, Nigeria approved the Cairo Declaration of the Organization of African Unity of July 1964, committing African States to the inviolability 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.

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.

55

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 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

83

Nigeria: scale 1:500,000; published by Federal Surveys, Nigeria: sheets 4, 8, 12, 11, and 15 (indicates demarcation pillars). 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

56

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." 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 86

British Admiralty Chart No. 3433

57

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 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

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. 89 90

ICJ, Oct. 12, 2002. “The Bakassi Peninsula Judgment” Vanguard, p.5 www.omoigui.com

58

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. 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 91

Anene, J.C, op cit

92

Ibd

59

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

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 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 etc.

60

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. 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

94 95 96

97

who later bcame a Professor at the University of Lagos Anene, J.C, op cit as far as the 'Rio del Key'

61

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 AkwaIbom 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 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

98

All Africa Reporters, Cameroon: Bakassi - More Than One Place, More Than One Problem

62

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 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

99

Ibid

100

Ibid

63

number of them, an

innumerable squander of the most priceless value of inestimable arithmetic proposition, human life.

64

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).

65

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

66

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:

67

(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 68

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

69

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.

70

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

71

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

72

(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

73

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

74

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

75

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 NorthEast 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

76

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)

77

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

78

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

79

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 Calabar port lies in the Calabar channel and going by the terms of the 1913 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

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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

119

Agreement between Britain and Germany, op cit “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.

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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

82

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.

83

road and there are no schools or health services there and inadequate access to clean water124.

124

All Africa Reporters, Tuesday, 13th November 2007.

84

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 85

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.

86

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.

87

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

88

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.

89

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

90

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

91

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”

92

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

93

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

94

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.

95

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.

96

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, 97

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 135

“Federalism in Nigeria under the Presidential Constitution”, Spectrum, 1983 at p.254.

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not 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;

3.

That the fourth, fifth, sixth and ninth respondents should not remit funds due monthly from the Federation Account and or the Consolidated Revenue

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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 interestyielding 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. Nevertheless, on August 14, 2008, the Bakassi Peninsula was formally handed over to Cameroun.

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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 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,

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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 question of the treatment of Polish nationals or other persons of Polish origin or

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.

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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 Article 27 of the 1969 Treaty.141 The acts of the legislature and other sources of 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 141

Vienna Convention on the Law of Treaties, 1969

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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.

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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

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, 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.

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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: 145 146

U.N. Statute, Art. 61, para. 1 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”

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"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 selfdetermination 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.

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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 selfdetermination 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

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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.

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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].

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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? 112

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.

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“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.

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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.

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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 French Cameroons. London, January 9, 1931. Treaty Series No. 34 (1931), United Kingdom Cmd. 3936 (with map).

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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. 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.

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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. 4143. 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 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

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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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