DISSENTING OPINION ON CAMEROON-NIGERIA LAND/MARITIME BOUNDARY (1)
THE LAND AND MARITIME BOUNDARY BETWEEN CAMEROON AND NIGERIA (EQUATORIAL GUINEA INTERVENING)
1. The Court, notwithstanding the usually large request of Cameroon's application has comprehensively dealt with all the submissions presented to it by the Parties. However, I am compelled to write this dissenting opinion because it is difficult for me to agree with some of the Courts decision. There are live main sectors involved m this case, Lake Chad, the land boundary, Bakassi Peninsula, maritime delimitation and the issue of State responsibility I have no difficulty in accepting and voting in favour of the Court's decision on State responsibility (although my separate view on this will be stated later), some aspect of the maritime delimitation and land boundary. My dissenting opinion will therefore centre on the Court's decision as regards the issue of sovereignty over the Bakassi Peninsula and the delimitation of Lake Chad. But before dealing with these points, I intend to touch upon certain issues regarding the genesis of the case, the function of the Court and some general observations about the Judgment.
2. This is a unique case for many reasons; first, because of the unusually large claimed filed by the Applicant, secondly because it is a claim dealing with maritime and land boundary issues at the same time, and thirdly because, apart from the request for land and maritime delimitation, there is also the request involving State responsibility against Nigeria. It is also a case that has taken over eight years before the Court, involving applications for interim measures, jurisdiction and admissibility, and the intervention of Equatorial Guinea on maritime delimitation.
3. On both sides of the boundary, it cannot be denied that incidents involving serious clashes and hostilities have occurred in recent times, On the other hand, a series of efforts have been made to resolve this boundary dispute between the parties at regional and international levels. It can therefore be said that the situation on the ground is volatile and explosive. Added to all this is the fact that Cameroon declared that there are over three million Nigerians in Cameroon. There are about 150,000 Nigerians living in the Bakassi Peninsula alone. In a situation of this nature and in a case of this kind, what is supposed to be the functions of the Court? The Court must primarily concern itself with its judicial function and decide the Applications before it in accordance with its Statutes and with principles of international law.
4. At the same time, the Court must constantly remind itself of its position and obligations as a principal organ of the United Nations (Art.7, para. 1, of the Charter). The Court must therefore ensure that it has a cardinal duty to encourage, by its judgments, all members States of the United Nations to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations (Art. 2, para. 4, of the Charter). The paramount obligation of the Court is to give a decision that will do justice in accordance with the maintenance of international peace and security in any region of the world. The Court is constantly aware of this obligation, for example, the Court took cognizance of resolutions' 731(1992), and 748 (1992) of the Security Council, in the cases of the Questions of Interpretations and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahirya v. United Kingdom) and (Libyan Arab Jamahiriya v. United States),when it refused to order the interim measure requested by Libya Indeed, in the present case, at the interim measures stage, the Court ordered that “both parties should lend every assistance to the fact-finding mission which the Secretary-General of the Untied Nations has proposed to send to the Bakassi Peninsula” (LC.J Reports 1996 (I), p 25). In perfuming this exercise, it is part of the duty of the Court, in its application of international law, to ensure that conflicting considerations are balanced between opposing claims.
5. An aspect of the Award of Judge Max Huber in the Island of Palmas case of October 1924 threw some light on such conflicting interests:
“It is accepted that every law aims at assuring the coexistence of interests deserving of legal protection. That is undoubtedly true also of international law The conflicting interests in this case, in connection with the question of indemnification of aliens, are, on the one hand, the interest of the State in the exercise of authority in its own territory without interference or supervision by foreign States, and, on the other hand, the interest of the State in seeing the rights of its nationals in a foreign country respected and effectively protected”
(H Lauterpacht, The Function of Law in International Community, p. 121)
6. The balancing of conflicting interests in a very sensitive case of this nature is not strange to the Court and this has reflected in some of its recent judgments, like the case concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen (Denmark v. Norway) delimitation of the maritime boundary; the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (I.C.J. Reports 2001), a case decided in such a manner as to ensure peace and stability between both parties, to the extent that both felt satisfied with the judgment of the Court; the Kasikili/Sedudu Island (Botswana/Namibia) case (I.C.J. Reports 1999 (II), which encouraged both parties to settle their disputes amicably.
7. In matters of land and maritime boundaries such balancing of conflicting interests or adjustment in cases involving different legal or conventional title cannot be considered as non-judicial. As will be mentioned later, these are cases where effectives or historical consolidation have been given consideration over and above legal title. Some examples were given by A.L.W Munkman in her article:
“It is perhaps necessary to consider at this point the view that arbitrators dispose of wider powers of adjustment or minor legislation, a greater discretion in taking account of the 'equities' of the particular situation, than do strictly judicial tribunals, that is, permanent courts. There seems to be no real basis for any suggestion that the scope of considerations which judicial, as opposed to arbitral, tribunals may take account of is narrower: a wide range of social, economic and geographical criteria were explicitly taken account of in the Anglo-Norwegian Fisheries and North Sea Continental She lf cases, and historical and cultural considerations were not of themselves described as irrelevant in the Temple case, In the Jaworzina case, the Permanent Court explicitly involved the notion of the historic boundaries of the States in dispute, and the ethnographical factors presuming in their favour.” (The British Year Book of International Law, 1972-1973, “Adjudication and Adjustment International Judicial Decision and the Settlement of Territorial and Boundary Disputes”, p. 113).
8. There are other cases decided by the Court or its predecessor, the Permanent Court of International Justice, that may also be mentioned, which lend credence to the fact that international permanent courts are determined to ensure that at the end of the day both parties to such disputes are happy about the decision and that it is not a case of giving judgment in favour of any of the parties considered to be the “title-holder”. Recently, the Eritrea/Ethiopia Boundary Commission gave its decision in the land boundary dispute which has for many years been cause of serious armed conflict between the two parties. On 14 April 2002, when the decision was delivered, both parties returned to their respective capitals rejoicing that they were satisfied with the decision of the commission.
9. Munkman went further to enumerate some other cases:
“In the British Guiana Boundary cases decisions on 'allocation' of substantial portions of territory and on the 'delimitation' of the boundary between the areas awarded to each party were combined as also in the Rann of Kutch award. In the Jaworzina Boundary case, the Permanent Court in effect gave a decision on the allocation and delimitation of a boundary on the basis of the status quo ante. The North Atlantic-Fisheries and Gulf of Fonseaca cases (in so far as they related to bays) and the Anglo- Norwegian Fisheries case involved decisions n the allocation of sea areas and their delimitation and, in the later case, the technical problems of base-line demarcation”.(Ibid, p 115).
10. In a case of this nature, the proper course for the Court to follow is not only one of mere legal formalism in favour of one party. It must weight and balance the legal titles of both parties and take also into consideration the situation on the ground, particularly in Lake Chad and the Bakassi Peninsula. It will be difficult, if not impossible, for the Court not to recognize the status quo. To overlook such a situation will not ensure justice in this case. Such an oversight might have contributed to the protracted and judicially unsatisfactory course of the Hungarian Optants dispute between Romania and Hungary of 1927. A learned author (who was once a judge of this Court) offered a solution:
“But the course which is believed to be the proper one, and which is suggested by the position adopted by international tribunals in other cases, would be to evolve a legal rule constituting ajudicial compromise between the legally recognized claims of territorial sovereignty, on the one hand, and the internationally recognized rights of aliens, on the other hand”.(H. Lauterpacht, The Function of Law in the International Cominunity,p. 122.)
11. As regards the Lake Chad Basin, I voted against the decisions of the Courts as stated in paragraph 3251 (A) and (B) of the Judgment, because they fall to take into consideration the submission of Nigeria based on effectives and historical consolidation; hence my decision to write a dissenting opinion. Admittedly, the Thompson-Marchand Declaration of 1929-1330 as incorporated in the Henderson-Fleuriau Exchange of Notes of 1931 is relevant, but that is only one aspect (but not all) of what the Court should consider in order to effect the necessary judicial delimitation. In the Court's interpretation of the Declaration it must effect the necessary adjustments of the boundary to give room for the situation on the ground as recognized by international law.
12. The Court, in reaching its decision on Lake Chad, relied very heavily or perhaps solely on certain instruments that formed the bedrock of Cameroons case. These instruments are:
- The Mimer-Simon Declaration of 10 July 1919, with the annexed Moisel map;
- The Thompson-Marchand Declaration of 1929-1930, as confirmed by the Henderson- Fleurian Exchanger of Notes of 9 January 11 (paragraphs 50 and 58 of the Judgment);
- The LCBC Reports and the agreements emanating from them.
13. The Court, in its Judgment, rejects Nigeria's claim to the 33 villages in Lake Chad which is based on effectivites. The Court examines and relies on the Moisel Map annexed to the Milner-Simon Declaration of 1919 and the map attached the Henderson-Fleuriau Exchange of Notes of 9 January 1931. It concludes that the co-ordinates of the tripoint must be 14°04' 59”9999 longitude east, rather than at approximately 14°05” longitude east, thus virtually reaching the same conclusions as the LCBC (para. 57 of the Judgment). On the question of the location of the mouth of the Ebeji, the Court decides (para. 58- 60 of the Judgment) that it is located where the river bifurcates into two branches, with the geographical co-ordinates of 14°12' 03” longitude east and 12°13' 17' latitude north. However, the Court rejects the claim of Nigeria based on the historical consolidation of its title (para 62 of the judgment). Apparently, the Court rejects the contention of Cameroon that the proposals of the LCBC as regards the tripoint and the location of the location of the mouth of the Ebeji constitutes an authoritative interpretation of the Mimer- Simon Declaration of 10 July 1919 and the Thompson-Marchand Declaration of 1929-1930, as confirmed by the Exchange of Letters of 9 January 1931. Yet, it appears to me that the ultimate conclusion reached by the court amounts to a difference without distinction because the court, in finding the coordinates of the tripoint, reaches virtually the same conclusions at the LCBC having taken into consideration the same Moisel map and the Thompson-Marchand Declaration of 1929-1930, as confirmed by the Henderson-Flueriau Exchange of Notes of 9 January 1931. This opinion therefore touches on all these instruments, the LCBC Report and agreements emanating therefrom, as well as the issue of effectivites and historical consolidation.
14. In its Additional Application to the Court, dated 6 June 1994, Cameroon asked the Court to confirm Cameroonian sovereignty over the disputed parcel in the area of Lake Chad. Cameroon failed to describe with certainty what it described as the disputes area in the Lake Chad regions. However, in its submission, the claim was further amplified in that it is seeking for sovereignty over the areas of Lake Chad and, in particular, over Darak. In addition, Cameroon claims more specifically;
“that the land boundary... takes the following course:
- From the point at longitude 14° 04'59”9999 E of Greenwich and latitude 13� 05' 00'0001 N, it then runs through the point located at longitude 14° 12'11”7005 B and latitude 12°32'17”4013 N (ReplyofCameroon,Vol.I,p.591,para13.01).
15. The nature of the dispute can partly be gleaned from the pleadings of Cameroon:
“The instrument of conventional delimitation is not in dispute. That instrument is the Exchange of Notes between Henderson and de Flueriau of 9 January 1931..., the validity of which is recognized by Nigeria, even f it disputes its applicability to Lake Chad... (Ibid. Vol. I, P. 101, para3.04).
“Initially, the boundary was delimited by the Mimer-Simon Declaration of 10 July 1919... However this delimitation, while undergoing no change in relation to Lake Chad, was rendered more precise in 1931 by the two governments concerned on the basis of a survey conducted by the two High Commissioners, the results of which are set out in the Thompson-Marchand Declaration of 29 December 1929 and 3 January 1930... (Ibid., 102, para. 3.05)
16. The position of Nigeria is reflected in its pleadings as follows:
“The purpose of the present Chapter is to demonstrate that there has been no final determination of the boundary within Lake Chad between Nigeria and Cameroon. This demonstration involves the following elements:
First: the colonial boundary agreements of the period 1906 to 1931 did not produce a conclusive delimitation in the Lake Chad region.
Second: the uncertainties remained after the Independence of Nigeria and Cameroon.
Third: the work of the Lake Chad Basin Commission did not produce delimitation which was final and binding on Nigeria “. (Counter-Memorial of Nigeria, Vol. II, P. 379, para. 16.1.)
17. What then is the nature of Cameroon's request to the Court? In this area of the boundary, Cameroon is asking for a confirmation of its sovereignty over Lake Chad and, in particular, Darak. In this case, going through the oral and written pleadings, there appears to be a disagreement between the parties on the issues of delimitation and demarcation. The argument of Cameroon is that the area of Lake Chad has been delimited and demarcated while, on the other hand, Nigeria asserts that the area had neither been so delimited nor demarcated.
18. Cameroon simply bases its claim on the Mimer-Simon Declaration of 1919 and the Thompson-Marchand Declaration as confirmed by the Henderson-Fleuriau Exchange Notes of 1931. These are the documents, according to Cameroon that delimit the boundary in Lake Chad. Nigeria, on the other hand, whilst accepting the relevance of those instruments in principle, argues that the boundary is not delimited by these instruments as such. Nigeria goes further to state that these instruments related only to the land boundary between Lake Chad and Bakassi and do not apply to the boundary in Lake Chad. In addition, Nigeria concludes that
“Thus, as at 1 June 1961, the date upon which Northern Cameroon was incorporated into the independent Federation of Nigeria, the process of delimitation and demarcation of the boundary in Lake Chad was still at an embryonic stage”. (Ibid., Vol. II, p. 376, para.15.99.)
Cameroon partially or tacitly agrees with this conclusion of Nigeria by responding that:
“The observation (of Nigeria) is partially correct, concerning the demarcation of the lake boundary, since Nigeria has not formally accepted that result of the works carried out within the framework of the LCBC. It is without foundation for the delimitation, which was effected with satisfactory precision by the Exchange of Notes of 9 January 1931, in a manner which was not in the least 'embryonic' ''. (Reply of Cameroon, Vol., 1, p. 103, para.3.11.)
19. Unfortunately, all the attempts made to effect a delimitation and demarcation of the boundary in the Lake Chad area failed. Before World War 1, all the correspondence, notes declarations and agreement entered into between Great Britain and Germany failed to achieve the purpose of delimitation. Similarly, all the attempts made between France and Great Britain after World War 1 equally failed. Subsequent attempts made at the beginning of World War II did not achieve the purpose of delimiting the boundary, let alone demarcating it. The following are the attempts:
Before World War I
(a) Agreement between Great Britain and Germany Respecting Boundaries in Africa, signed at Berlin, 15 November 1893 (Counter-Memorial of Nigeria, Vol. IV, Ann. NC-M 28); Convention between the French Republic and Germany for the Delimitation of the
Colonies of French Congo and of Cameroon and of French and German Spheres of (a) Influence in the Region of Lake Chad, signed at Berlin 15 Mach 1894 (Ibid., Ann. NC-M 29);
(b) Convention between the United Kingdom and France for the Delimitation of their Respective possessions to the West of the Niger, and of their Respective possession and Spheres of Influences to the East of that River, signed at Paris 14 June 1898 (Ibid., Ann. NC-M 30);
(c) Anglo-German Agreement signed 12 December 1902 (Ibid., Ann NC-M 33);
(d) Anglo-German Protocol signed at Ullgo, Lake Chad, 24 February 1904 (Ibid., Ann.NC-M34);
(e) Convention between the United Kingdom and France respecting Newfoundland and West and Central Africa, signed at London, 8 April 1904 (Ibid., Ann NC-M 35);
(f) Agreement between the United Kingdom and Germany respecting the Boundary between British and German Territories from Yola to Lake Chad signed at London, 19 March 1906 (Ibid., Ann. NC-M 38);
(g) Convention between the United Kingdom and France respecting the Delimitation of the Frontier between the British and French Possessions to the East of the Niger, signed at Lon don, 29 May 1906 (Ibid., Ann NC-M 39);
(h) Convention between France and Germany confirming the Protocol of 9 April defining the Boundaries between French Congo and the Cameroon, signed at Berlin, 18 1908 (Ibid Ann. NC-M40);
(i) Agreement between United Kingdom and France respecting the Delimitation of the Frontier between the British and French Possessions East of the Niger (approved by Exchange of Notes, 17May/1 July 1911) signed at London, 19 February 1910 (Ibid., Vol. V, Ann NC-M 43);
Since World War I
(a) The Picot/Strachey Lines, February 1916 and the Crewe/ Cambon Exchange of Notes, March 1916 (Ibid., Vol. IX, Ann NC-M 228 and NC-M229);
20. If we leave for the moment the two crucial Declarations of 1919 and 1931, which failed to delimit the boundary, all subsequent attempts to effect the delimitation from 1931 to 1938 equally failed. Even by that time, the boundary Commission, under the Permanent Mandates Commission did not make any tangible progress to effect the proposed task of demarcation. Based on the preliminary study of the boundary that they had provisionally defined, it was in 1937 that the Joint Commission started its work.
However, the outbreak of World War II put a halt to the Commissions work. A report of 15 January 1942, communicated to the Colonial Office by the Governor of Nigeria indicated that the commissioner had executed only 135miles of the boundary out of a tot length of approximately 1,200 miles (ibid., Vol.
21. Going back to the 1919 MilnerSimon Declaration, it is described as an agreement
“to determine the frontier separating the territories of the Cameroon placed
respectively under the authority of their Governments, as it is traced on the map
Moisel 1:300,000, annexed to the presented declaration and defined in the description in three articles also annexed hereto” (ibid., Vol. V, Ann NC-M 50, p. 481; emphasis added);
The boundary as described by the Milner-Simon Declaration is patently inaccurate, unreliable and deficient. It is admitted by both Parties that the Moisel map attached to the Declaration is unreliable, even as regards the coordinates (i.e. latitude 13 05' N and longitude 14 05' E), which was only drawn to approximation. In some aspects, the Agreement itself is vague. It is no surprise that that the Declaration anticipates “further local delimitation”. Article 2, paragraph 1, of the Declaration reads thus:
“it is understood that at the time of the local delimitation of the frontier where the natural features to be followed are not indicated in the above description, the Commissioners of the two Governments will, as far as possible, but without changing the attribution of the villages named in Article 1, lay down the frontier in accordance with natural features (rivers, hills or watershed).
The Boundary Commissioners shall be authorized to make such minor modifications of the frontier line as may appear to them necessary in order to avoid separating the villages from their agricultural lands. Such deviation shall be clearly marked on special maps submitted for the approval of the two Governments. Pending such approval, the deviations shall be provisionally recognized and respected'. (ibid., Vol. VAnn NC-M 50, p. 483; emphasis added.);
22. In fact, with regard to this Declaration the letter of Lord Curzon, in its first paragraph, indicates that Great Britain only agreed with the French government as “provisional entry into force pending the definitive settlement of the regime to be applied in these territories” (ibid., Vol. IX Ann NC-M 239, p. 1865; emphasis added.). Hence, by2'7 May 1921, a suggestion was made by France to Great Britain, that it was preferable to leave the delimitation until after the mandates have been obtained from League of Nations. The letter of the British Ambassador of 23 October 1921, in its second paragraph, gave a very clear indication of the problems with the Mither-Simon Declaration. In that letter, he suggested that Article 1 of the Draft Mandate should be recast to contain the following provision:
“This line may however be slightly altered by agreement between His Britannic Majesty's Government and the Government of the French Republic where an examination of the localities shows that it is undesirable, either in the interests of the inhabitants or by reason of any inaccuracies in the map (Moisel 1:200,000) annexed to the declaration to adhere strictly to the line laid down therein.)”(ibid., IX, Ann NC-M 243, p. 1881; emphasis added.)
23. The article of the British Ambassador, Hardinge of Penshurst, referred to above, was accepted by the League of Nations in July 1922, in order to effect the necessary amendments to the Milner Simon Declaration. There again, in Article 1 of the League of Nations instrument, the interest of the inhabitants was to be taken into consideration as well as correcting the inaccuracies of the Moisel map of 1:300,000 scale which incidentally is relatively too small for boundary delimitation exercises. The important point in all this is that the Court fails to give consideration to the interests of the Nigerian inhabitants in all 33 villages claimed by Nigeria in this sector of Lake Chad.
It can therefore be observed that even during the Mandate there is a tacit consideration given to effectives in terms of the interest of the inhabitant in any of the localities where this is desirable.
24. The Thompson-Marchand Declaration was an improvement on the Milner-Simon Declaration because it introduced an improved map that was annexed to that Declaration. Furthermore, it mentioned the identification of a straight line as far as the mouth of the Ebeji. Here again, we find that the process had not yet reached the delimitation stage, let alone demarcation. In the same paragraph of the letter of de Fleuriau of 9 January 1931, he remarked:
“Your Excellency will no doubt have received the text of same Declaration and will certainly have obser'ed that it concerns a preliminary survey only. This is intended to describe the line to be followed by the Delimitation Commission, more exactly than was done in the described line to be followed by the Delimitation Commission, more exactly than was done in the Mimer-Simon Declaration of 1919 “. (ibid., Vol. VAnnNC-M54p. 538; emphasis added.);
In reply to de Fleuriaus letter, Arthur Henderson correspondingly replied that a boundary commission would have to be constituted in order to take over a preliminary survey than had been conducted in order to carry out actual delimitation of the boundary.
25. Under the United Nations Trusteeship in 1946, attempts were also made at delimiting the boundary in Lake Chad, which did not materialize up to 1948, and after. The report presented by the United Kingdom Trusteeship for the Cameroon touched on the boundary issues vis-à-vis the ThompsonMarchand Declaration and states as follows:
“The Territory to which thisAgreement applies comprises that part of the Cameroon lying to the west of the boundary defined by the Franco-British Declaration of 10 July 1919, and more exactly defined in the Declaration made by the Governor of the Colony and Protectorate of Nigeria and the Governor of the Cameroon under French mandate which was confirmed by the exchange of Notes between His Majesty's Government in the United Kingdom and the French Government of 9 January 1931. This line may, however be slightly modified by mutual agreement between His majesty's Government in the United Kingdom and the Government of the French Republic where an examination of the localities shows that it is desirable in the interest of the inhabitants”. (ibid., Vol. VAnn NC-M 56, p. 579-58; emphasis added);
26. One remarkably persistent issue that kept recurring in many of the agreement just mentioned is the interest of the inhabitants, whenever delimitation or even demarcation had to be effected. Unfortunately, this modification has not been carried out till today. It started with the British Ambassador in 1921;was engrafted into the League of Nations instruments as Article 1; and was again contained in Article 1 in
the Trusteeship Agreement of 13 December 1946, all clearly expressing the need to modify the boundary by “mutual agreement between His Majesty' Government in the United Kingdom and the Government of the French Republic where examination of the localities shows that it desirable in the
interests of the inhabitant” (ibid., Ann NC-M 56, p. 581);
27. Has this modification ever been carried out? Can that problem be ignored or dismissed, especially now that Nigeria is claiming 33 villages in Lake Chad? In any attempt to delimit this area of the boundary in the Lake Chad area, should this not be taken into consideration? Yet the Court fails to consider this claim of Nigeria regarding its inhabitants in Lake Chad.
28. In effect therefore, the judicial assignment of the Court entails a conclusive settlement of this dispute first, by interpreting the instruments involved, then take into consideration the interest of the inhabitant's effective and historical consolidation. A similar assignment was performed by this court in the case
concerning the Territorial Dispute (Libyan Arab Janahiryal/Chad) in 1994 on what constitutes the initial task of the court. The Court therein described its assignment thus:
“The Court will first consider Article 3 of the 1995 Treaty, together with the Annex to which that Article refers, in order to decide whether or not that Treaty resulted in a conventional boundary between the territories of parties. In the 1955 Treaty did result in a boundary, this finishes the answer to the issues raised by the parties:
it would be a response at one and the same time to the Libyan request to determine the limits of the respective territories of the parties and to the request of Chad to determine the course of the frontier The Court's initial takes must therefore be to interpret the relevant provisions of the 1955 Treaty, on which the Parties have taken divergent positions”. (I.C.J Reports 1994, p. 20 para. 38; emphasis added.);
29. In view of the claim of Nigeria over certain specific place, where the inhabitants are affiliated to Nigeria and are being administered by Nigeria, this provision in the Agreement ought to have been seriously taken into consideration by the Court is its interpretation of the boundary line, hence my disagreement with the decision of the Court.
30. The Parties' concept and arguments aside, it is important to determine the duty of the Court as regards the dispute in Lake Chad. Clearly, the Court is not called upon to demarcate and, quite obviously, this is outside the assignment of the Court. Is this therefore a case of delimitation or attribution for the Court? In a case of this nature, where are conflicting claims by the parties as to the location of the boundary and disputed territorial sovereignty, the cardinal assignment of the Court is, first do deal with the determination of the boundary by way of judicial delimitation and subsequently to deal with the conflicting territorial claims of the parties.
31. As indicated earlier, there are claims and counter-claims as to whether the Lake Chad basin had been delimited or demarcated. Presumably, if both parties had definitely concluded the agreements on delimitation and a fortiori demarcation, this Application might not be filed by Cameroon. The preliminary objection of Nigeria on this point was rejected by the Court. The duty of the Court here therefore is to determine whether the boundary in Lake Chad had been delimited or not, if it had not been delimited, it is the Court's duty to carry out such an exercise as a judicial function. Even if the Court finds that it had already been “delimited” by certain instruments, the Court will still need examine those instruments and then carry out its own definitive determination of the boundary. The court ought to ascertain the true legal line in terms of interpreting those instruments in relations to descriptive content of such boundary which, Interalia, must relate not only to its toponomy, geography, topography and human factors, but also apply the rues of interpretation in accordance with the Vienna Convention on the Law of Treaties of 1969, particularly its Article 31. With respect to this Convention, the Court is bound to take consideration not only ordinary meaning of the instruments but also the conduct and practice of the parties which, unfortunately, the court fails to do in Judgment.
Lake Chad and the Work of LCBC
32. There is a curious turning point in the boundary dispute between Cameroon and Nigeria which is quite remarkable and worthy of mention here. The 8th Summit Meeting of the LCBC we held on 21-23 March in 1994 in Abuja, Nigeria. At the meeting, the four Head of States including that of Cameroon were present. The decision of the Summit echoes the consensuses reached as follows:
A. Boundary Demarcation
-To approve the technical document on the demarcation of the International boundaries of members States in the Lake Chad, as endorsed by the national experts and the Executive Secretariat of the LCBC.
-That each country should adopt the document in accordance with its national laws;
-That the document should be signed latest by the next summit of the commission.
-To instruct state/local administration of each country to mount social mobilization campaigns to educate the local populations on the demarcation and their rights and the privileges on the Lake.
-Congratulated the Commissioners, the national experts, the Executive Secretariat and the Contractors IGN-France for a job well done”. (Counter-Memorial of Nigeria., Vol. II, pp.407-408,para.16.57.)
33. Yet, precisely five days after this apparently cordial meeting of Heads of states in Abuja where they expressed the view that the work of the LCBC had been satisfactorily carried out, Cameroon filed the Application for the confirmation of its sovereignty over certain areas of Lake Chad and over Darak. This was the same areas of boundary that the Cameroon Head of State, along with his Nigerian counterpart had, only recently, endorsed:
34. The second unfortunate aspect of this litigation is that the LCBC, its Executive Secretary, members, experts and the IGN labored from 1983 to ensure the final determination of the border in this sector between Cameroon and Nigeria. However, it appears that this has now become an exercise in futility much ado about nothing with colossal waste of time, effort and money, since neither Nigeria nor Cameroon ratified the boundary agreement (Cameroon later ratified in 1997). Cameroon has now applied to the Court to start de novo what was close to agreement between the parties. Must Cameroon approbate and reprobate? The findings of the LCBC are not binding either directly or indirectly on the court and neither is LCBC bound by whatever may be the decision of the Court on this area of the boundary. The Jurisdiction of the Court is consensual and it cannot bind other members of the LCBC, such as Niger and Chad, who are not parties before the Court (Art. 59 of the Statue of the Court). The Court is entitled to deal with the bipoint between Cameroon and Nigeria not the tripoint between Cameroon, Chad and Niger.
35. The Court had already expressed its view and made some observations during the jurisdictional phase of this case as regards the dispute between both Parties in the Lake Chad area. It is pertinent to refer to the observations of the court herein before we proceed further.
“the court notes that, with regard to the whole of the boundary, there is no explicit challenge from Nigeria. However, a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need to necessarily be stated expressis verbis. In the determination of the existence of a dispute, as in other matters, the position or the attitude of a party can be established by inference, whatever the professed view of that party. In this respect, the Court does not find persuasive the argument of Cameroon that the challenge by Nigeria to the validity of the existing titles, to Bakassi, Darak and Tipsan, necessarily calls into question the validity as such of the instruments on which the course of the entire boundary from the tripoint in Lake Chad to the sea is based, and therefore proves the existence of a dispute concerning the whole of the boundary.”(I.C.J. Reports 1998.p.315,para. 89).
36. The assignment given to the LCBC's Sub- Committee on Boundary Matters, which started in 1983, was completed in March 1994. IGN of France was engaged to carry out the work which it completed in July- 1993 and submitted to the Executive Secretary; eventually all the experts of the member States signed the report. Subsequently, at the meeting of Heads of State in Abuja in March 1994, all the Heads of State signed the boundary documents, subjects to ratification by each member States. Cameroon did not ratify until 1997 and Nigeria had not ratified to date. The IXth Summit of Heads of State was held in Chad in 1995. At that time, the Application of Cameroon was already pending before the Court and both Cameroon and Nigeria were absent from the meeting.
37. What then Is the legal effect of the work of the LCBC, with its report and documents not ratified by all the member States before the IXth Summit of Heads of State in 1995? Although all the Heads of state present during the VIII Summit signed it, each country still had to adopt it in accordance with its own national laws. The document had to be ratified no later than the next Summit of the Commission in 1995, in order to give it legal force. Cameroon and Nigeria failed to ratify before the “next Summit” even though the Cameroon ratified subsequently. Since the other two countries, Niger and Chad, are not before the Court, the are not bound by the decision of the court. This is a fundamental principle that the court has pronounced upon many occasions, in the jurisdictional phase of case, this principle was once again reiterated thus:
“The court recalls that it has always acknowledged as one of the fundamental principles of its States that no dispute between States can be decided without their consent to its jurisdiction” monetary Gold removed from Rome in 1943, Judgment ,I.C.J. Reports 1954. p.32)
Nevertheless, the court has also emphasized that it is not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not party of the case; and the court has only declined to exercise jurisdiction when the interests of the third state 'constitute the very subject-matter of the judgment to be rendered on the merits' ( Certain phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment I.C.J. Report 1992,p. 61para.55;East Timor ( Portugal. V. Australia), Judgment, I.C.J. Reports 1995, pp 104-105,para.34)”. (I.C.J. Reports 1998, 312, para79).
38. In the above circumstance, and as the Court rightly decided, the Agreement is not opposable to Nigeria and hence Nigeria is not bound by it. Similarly, it cannot be said that this Agreement must be recognized by all the member States of the LCBC. In minutes of the VIIIth Summit of the Heads of State and Government in Abuja 1994, the decision reached was:
“- that each country should adopt the document in accordance with its national laws.
- that the document should be signed latest by the next summit of the commission”
In the absence of any evidence that these decision have been carried out by Cameroon and Nigeria, the document obviously will not be binding on the parties in this case.
39. Article 46 of the Vienna Convention on the Law of Treaties is relevant here. Although all the Heads of State signed the documents in Abuja in 1994 (which Art. 7 seeks to protect and validate), it is clear from their decision that before the Agreement could enter into force, it must be adopted and ratified by all the LCBC member States.
41. Cameroon puts emphasis on the stage of the work of the contractor in 1990. It referred to the Report on the Marking-Out of the International Boundaries in Lake Chad. The expert of the LCBC introduced this Report in the following terms:
“We the undersigned, experts for the Member States of the CBLT/LCBC (Cameroon, Niger Nigeria and Chad), duly designated by our States to supervise and monitor the work on the demarcation of our boundaries in accordance with resolution No. 2 adopted by our Governments at their Sixth Summit Meeting held in N'Djamena on 28 and 29 October 1987. have proceeded from 13 June 1988 to 12 February 1990, to effect the delimitation and marking-out of the said boundaries and submit to the approval of the respective Governments the following description of the boundaries that we marked out” (Ibid, Vol.II.p. 403, para. 16.50; emphasis added.)
42. The argument of Cameroon as stated above can be faulted on five ground: firstly, the document complete and to be submitted is a mere report and not a binding agreement; secondly, not all the experts from member States signed; thirdly, the Report was still incomplete; fourthly, the Report itself states that it was being submitted to the Heads of State for approval; and fifthly, the task of the experts was not to approve the work of IGN of France: they were only mandated to supervise and monitor the work. As regards the nature of the document as a report, even the memorial of Cameroon referred to above expressly described it as such. It was introduced as the Report on the Marking-Out of the International Boundaries and no more.
43. The task of the Commission on the Boundary was not concluded in 1990 but continued through 1991, 1992 and 1993. This was because IGN International of France had not completed the technical task and the expert of Nigeria and, at another stage, the expert of Chad, were not satisfied with the Report and they insisted on some technical amendments. The comment of Nigeria on this point is very illuminating;
“At a meeting of LCBC Experts in January 1992, Nigeria indicated that it was now ready to implement the resolution of the 39th Meeting and to sign the 'report on demarcation' (NFO 75). The Commission noted the intention of the experts to implement the resolution by June 1992 (page 715 of NPO 75), at the 41st Session
of the Commission in April 1993 (see extractor of Minutes at NC-M 284), it was
reported that the experts has gone back to the field, finalized the technical aspects
of the job and all signed the demarcation document. However, because of a dispute regarding the location of Beacon VI on the Chad/Cameroon boundary, the Chad Commissioner stated that he was unable to endorse that aspect of the work, and as a result of there being a lack of consensus, it was resolved that the 'documents regarding the demarcation exercise' be signed by the Executive Secretary and made available to the Commissioners for presentation to their Governments so that the issues could be finalized at the next summit”. (Ibid., Vol. II, p. 406, para. 16.54.)
44. As reflected in the memo of Nigeria in November of 1990 at the 39th meeting of the Commissioners, the Nigerian delegation refused to sign the report for the reason that was expressed thus:
“In November 1990, at their 39th meeting the Commissioners resolved that the national experts should go back to the field to complete some specific jobs relating to two intermediate beacons... In the course of the discussions of the relevant sub commission, the position of the Nigeria delegation as recorded in the Minutes was as follows:
“For its part, the fourth delegation, i.e. that of NIGERIA, considered that the project was not fully completed (the failure to number beacons 11-111.1, substandard quality of numbering by LCBC, non-demolition of beacon II-VI which was wrongly erected (the failure to number beacon 11-111.1, substandard quality of numbering by LCBC, non demolition of beacon If-VT which was wrongly erected, non stabilization of GPS and Azimuth station on lines I-Il and Il-V and disappearance of two GFS station on line I-Il), In consequence, Nigeria refused to sign the Report of the experts on the beaconing. At a June 1991 meeting of experts, Nigeria rejected this resolution of the 39th meeting. . (Ibid., Vol. II, p. 405, para 16.5s).
45. As referred to earlier, the experts of number States were not mandated to sign the final agreement for or on behalf of the Governments or Heads of State. They were instructed to prepared and submit a report for the approval of the Heads of State at their Summit, which they did at the VIIIth Summit, for their signature. That precisely was their undertaking as stated in the Report. They unequivocally expressed the duty that they were called upon to carry out- “to supervise and monitor”. Therefore whatever was signed by the experts of member States cannot bind the parties in this case. It cannot, therefore be said that the mission entrusted to the LCBC and the manner in which it was carried out resulted in the recognition by the LCBC member States that a delimitation in the Lake Chad area already existed. The Commission was not so mandated. The ultimate decision lies with the Heads of State. In 1994, the Report was accepted and approved by the Heads of State signing the document that was to be subsequently ratified. That ratification did not happen, at least as far as Nigeria is concerned. Hence my view is that the Court ought to reject Cameroon's submission that the parties are bound by the LCBC's report is valid. However, the Court ought to have taken into consideration other factors, such as effectivites and historical consolidation in order to come to a determination on the delimitation of Lake Chad.
Delimitation and Demarcation
46. Reading through the oral and the written pleadings in this case one must admit that there is a degree of misunderstand or even confusion in the use of the words delimitation and demarcation. Perhaps, for the purpose of elucidation and to clear the apparent convolution, we may borrow a definition of these two terminologies from a textbook on international law:
“The distinction sometimes made between artificial and mutual boundaries is geographical rather legal, for so-called natural boundaries, making use of natural features such as rivers or mountains usually need further definition in order to produce a precise boundary line. The common practice for land boundary is, in a boundary treaty or award, to describe the boundary line in words, i.e. to 'delimit' it; and then to appoint boundary commissions, usually joint, to apply the delimitation to the ground and if necessary to mark it with boundary posts or the line, i.e. to 'demarcate' it.” (Oppenheim's International Law, 9th Ed., Vol. 1 (Peace), part 2-4, edited by Sir Robert Jennings and Sir Arthur Waltts, P.662).
47. The claim of Cameroon is that the LCBC has delimited the boundary with the aid of the relevant instruments already mentioned. The view of Nigeria is that nothing has been delimited or demarcated conclusively. Nigeria agrees that certain instruments are relevant for the purpose of delimitation but the area of Lake Chad is not part of it. Cameroon argues that the demarcation had been fully and finally effected by the LCBC and the same sanctioned by the Heads of State. For the reason already given above, I disagree with Cameroon, as the Court has also done. However, since delimitation precedes demarcation, and delimitation in this case is not just simply confirming the instruments that delimit, but these instruments must be given judicable interpretation having regard to the conflicting view of the Parities, the Court is therefore called upon to determine the issue of delimitation, whilst the Parties will undertake that of demarcation. But in doing so the court fails to take into consideration factors other than the instruments.
· Judge (Prince) Bola Ajibola is a former Judge of the World Court at The Hague