Solomon Ukhuegbe

"The partition of Africa," J.D. Hargraves wrote nearly half century ago, "is one of those historical processes which have been more discussed than studied." A revised edition of the history of the Partition is urgently called for. But the early paragraphs of the new history may have already been supplied by Judge Al-Khasawneh’s separate opinion in the Cameroon-Nigeria Land and Maritime Boundary dispute case’s devastating challenge to some fundamental assumptions of the legal regime that emerged upon the Partition. In spite of the brouhaha generated in Nigeria by the decision of the International Court of Justice, Judge Awn Shawkat Al-Khasawneh is unlikely to be familiar. He is certainly not the "French President of the Court" nor the German or the English judge. Although the Court lost the opportunity in this case to seriously re-consider untidy assumptions that persist in modern law regarding the colonial question, the Jordanian judge was unwilling to let the occasion pass. It would hardly be any comfort for the anguished, but the award of Bakassi to Cameroon was a result not of a recent European "conspiracy" but one of late nineteenth century. The case for Nigeria completely neglected to acknowledge, and therefore failed to attack the most impregnable obstacle: the historic transformation at the very outset of the Partition of Africa of ‘protectorate’ as a legal concept.

Of course, there is no shortage of competing explanations of the decision of the International Court of Justice in this case. In its official statement on the decision, the government of Nigeria claims, "For purely political reasons, the Court, headed by a French President, upheld a legal position which is contrary to all known laws and conventions." This was therefore presumably otherwise an easy, open-and-shut case in favour of Nigeria. Why then did Cameroon run the risk of mobilizing law, not only with respect to Bakassi but the whole of our eastern border? Everything being equal, a rational decision-maker is unlikely to go to law unless the prospects are good, because an unfavourable judgment may significantly delegitimize one’s claims. Added to this is that Cameroon’s own experience with the Court before this case has not been pleasant (Cameroon v. United Kingdom, 1963). Perhaps partly as a result, it was unwilling to accept the compulsory jurisdiction of the Court, until just days before it filed its application against Nigeria in 1994.

The explanation offered by Nigeria’s statement is something like this (though not in as many words): Cameroon got the assurances of their patrons in Paris that they would see to it that their "boy" at the ICJ manipulates the law in favour of Cameroon. The "French President of the Court," aided by his co-conspirators, the German and British judges of the Court, duped the other judges into accepting a vacuous judgment. It is not clear how seriously the statement is intended to be taken, or how much reflection went into each of the issues raised therein. Apparently, going by the text, it is principally with respect to the Bakassi question (i.e. 16 pages of the 150-page judgment) that the 10 October 2002 decision of the ICJ is corrupt, opposed to "all laws and conventions," and contrary to elementary justice.

If the attribution of the judgment to the President of the Court is because it carries his signature, then it is an elementary misunderstanding. Unlike, say, the Supreme Court of Nigeria, where the opinion written by an individual justice is adopted by the others as the "leading judgment," the judgment of the International Court is issued per curiam (hence it always commences thus: ‘THE COURT, composed as above, after deliberation, delivers the following judgment . . . .). The drafting of judgment, including the collation of views of all members of the Court, is entrusted to a three-member committee selected by all the members for a particular case. The President is an ex-officio member of the committee, except where in the case of a split decision, he is not part of the majority. But in every case, whether or not he is part of the majority, the judgement of the Court carries the signature of the President (and the Registrar, for authentication), and he delivers it orally as well. Any Judge, including the President, if she or he wishes, may, however, append an individual opinion (a declaration or separate/ dissenting opinion) to the judgement.

In the "operative part" of the judgment, where the specific decisions of the Court on the requests made to it by the parties are stated, the votes and names of the judges supporting a decision on a particular issue are stated. In the Cameroon-Nigeria case, the votes were thirteen to three on each of the three questions relating to on Bakassi. The thirteen judges are: Guillaume (France); Shi (China); Oda (Japan); Ranjeva (Madagascar); Herczegh (Hungary); Fleischhauer (Germany); Higgins (United Kingdom); Parra-Aranguren (Venezuela); Kooijmans (Netherlands), Al-Khasawneh (Jordan); Buergenthal (United States); Elaraby (Egypt); and Judge ad hoc Mbaye (Senegal). One purpose of a separate opinion is to clarify why a judge may have voted with the majority, or otherwise, on any particular issue. Thus, Judge Al-Khasawneh states,

The main plank of the case of Nigeria for sovereignty over the Bakassi peninsula is deceptively simple. Bakassi historically belonged to the realm of, or owed allegiance to, the kings and chiefs of Old Calabar. A ‘treaty of protection’ of 10 September 1884 between the British government and the Kings and Chiefs of Old Calabar made the entire territory of the latter a protectorate, rather than a colony, of Britain. (This was no doubt a very important agreement. A consul concluded it on behalf of the British Crown, whereas most "treaties" in the Niger Delta were made with the Royal Niger Company.) The only jurisdiction that Britain acquired under the 1884 Treaty, it is stated, was control over foreign relations. Therefore, the dismemberment of the Calabar country by transfer of Bakassi to Germany under the Anglo-German treaty of 11 March 1913 was incompetent, unlawful and void. More often than not, this argument was couched and elaborated as dry legal formalism. Nemo dat quod non habet. Perhaps it was too simple. To accept Nigeria’s argument, the Court must first wrestle with a question far more interesting to the history of the Partition: whether the only colonial treaties that matter are agreements between European Powers relating to African territories. Unfortunately, Nigeria did not offer much assistance to the Court in this area.

The trouble with the decision of the International Court of Justice does not lie in its insistence that colonial treaties matter. Of course they do. They are the reason why roughly 30 per cent of international boundaries in Africa are straight lines, and are, to a much higher degree, arbitrary. The modern African State is a bequest of colonial treaties and claims. Indeed, so far as our southeastern boundary is concerned, it is unavoidable that it must be settled according to one Anglo-German treaty or another. It comes down simply to a choice between the one that fixed the boundary on the Akwayafe River and the other that puts it further east, on the Rio del Rey. Although the Partition of Africa was largely through procurement of treaties of "protection" and of friendship with African kings and chiefs, such as that entered into with Old Calabar, the conventional wisdom that emerged from positivist international law was this class of agreements did not create any legal obligations for the European parties. Even though such status appears inconsistent with the earnestness with which European Powers went about this treaty making business. The Anglo-French dash to Nikki, for instance, was certainly no laughing matter. Moreover, these treaties were the basis upon which European powers claimed against one another a legal right to the African space. An agreement that creates a legal obligation for a third party a fortiori creates obligations between the parties, right-thinking persons would expect. As late as 1926, Sir Lindley insisted that there was no justification for treating the African treaties as less than obligatory. "It is difficult to see how," he wrote in a leading treatise on the subject, "having regard to the universality of the practice of grounding a colonial protectorate upon an agreement with the local authority, and to the importance attached by the European Powers to these agreements in their relations inter se, the requirement for such an agreement can be regarded other than as a rule of law."

Yet in 2002, this was the question upon which the entire Nigerian case, as understood by ICJ, rested. Did the Treaty of 1884 make Calabar a protectorate at international law, as was apparent from its terms? In the view of the International Court of Justice, it did not, the specific title, "treaty of protection" notwithstanding. "In sub-Saharan Africa," it noted, "treaties termed ‘treaties of protection’ were entered into not with States, but rather with important indigenous rulers exercising local rule over identifiable areas of territory. . . . In the view of the Court many factors point to the 1884 Treaty signed with the Kings and Chiefs of Old Calabar as not establishing an international protectorate. It was one of a multitude in a region where the local Rulers were not regarded as States" (paras. 205, 207).

There is a sleight of hand of sort here. A critical distinction has been imported into the argument unannounced. The politics of the Partition of Africa resulted in the transformation, or indeed, deformation, of the classical concept of international protectorate into a juristic mongrel, created practically exclusively for Africa, the colonial protectorate. The classic notion of international protectorate vested only external sovereignty in the protecting power, whereas the colonial protectorate was in fact not a protectorate (except in name) but was rather fully assimilated in the legal regime of colony. Thus, though the expression "protectorate" retained currency it was now completely devoid of content. This transformation was the result of the Berlin West Africa Conference, 1884-1885. Even before the ink was dry on the Treaty of Protection of 1884 a dramatic development was about to the change the course of African destiny.

In November of that year, the Berlin West Africa Conference convened in the German capital. The General Act of the Berlin Conference, adopted in February the following year, legitimated the emerging notion of colonial protectorate. "It was at this point," noted Charles Henry Alexandrowicz, "that the classic Protectorate tended to be converted into a new institution which most of the positivist lawyers at the end of the 19th century and the beginning of the 20th century defined as the colonial Protectorate." To be sure, nowhere in the articles of the Berlin Act is the oxymoron (colonial protectorate) specifically used, and indeed, State practice largely continued to adhere to the "neutral" term protectorate. But even a casual student of the United Kingdom colonial practice in West and East Africa knows that the distinction between colony and protectorate cannot be located. The combined effect of Articles 34 and 35, against the background of the informal understanding among the delegates, showed that the European Powers were claiming under the Berlin Act full sovereignty over Africa. At least, this view prevailed in State practice as well as in legal literature. By the time John Westlake’s Chapters on the Principles of International Law appeared, 1894, the distinct between an international protectorate and a colonial protectorate had become elementary. This was a quarter century before the renowned Swiss publicist, and later judge of the earlier International Court, Judge Max Huber, canonized the principle in the much-cited 1928 Island of Palmas Arbitration.

Judge Al-Khasawneh attributes the change to the inventiveness of legal writers rather than a shift in State practice. Certainly, anyone who reads the early chapters of Nwabueze’s Constitutional History of Nigeria or H.F. Morris’ definitive paper ("Protection or Annexation? Some Constitutional Anomalies of Colonial Rule") may come away with a different impression. Whatever the case, Professor James Crawford, one of Nigeria’s leading counsel in this case, had no difficulty in stating in his widely acclaimed treatise on the creation of states in international law that by virtue of the Act of Berlin, colonial powers had full international powers over an African protectorate, and that, wait for this, ceding away protected territory without the consent of the local kings and chiefs and in breach of the protectorate agreement was lawful! This was still mainstream international law on 10 October 2002 when the ICJ announced its judgment. The Court failed to recognize that was called for was not adherence to but a definitive disclaimer of the post Berlin Act corruption of principle by power. As Judge Al-Khasawneh reminded the Court,

In paragraph 8.27 of Nigeria’s pleadings (countermemorial), it is indicated that the 1913 Anglo-German Agreement was contrary to Article 34 of the Act of Berlin. This point was apparently abandoned during oral argument. In our opinion, it was an error in the first place to unwittingly legitimize the Berlin Act by proposing to rely on it, even in support of our case. Rather, delegitimizing it should have been a major aspect of our strategy, given its historic destiny. It seems to me hopeless to defend the Treaty of Protection of 1884 without attacking the major pillar of the legal regime that completely undermined that treaty and emptied it of all content. Africa was neither represented in Berlin nor, as Judge Al-Khasawneh stated, participated in the formation of the state practice resulting therefrom. Existing treaty commitments of European powers to the indigenous rulers in Africa should not be affected by whatever Europeans decided between themselves in Berlin. Pacta tertiis nec nocent nec prosunt.

Apart from swimming against the current of mainstream international law, the argument about Old Calabar being an international protectorate under the treaty of 1884 was incompletely theorized. For such argument to carry the weight necessary for it to be accepted by the international court, in our opinion, it should, in the least, be coherent. Professor Watts’ oral argument on behalf of Nigeria was repeatedly punctuated with a constant refrain: "who conferred on Great Britain the authority to give away Bakassi? And not just ‘who?’, but also when? And how?" Assuming Old Calabar retained its independence after the conclusion of the treaty (save to the extent affected by the treaty), at what point did this independence cease and the territory incorporated instead into a larger entity, Nigeria? (Such incorporation would either be as much unlawful and void under the terms of the 1884 Treaty as the cession of Bakassi to Germany or is evidence that the obligations under the treaty were subsequently modified by practice.) Silence. It is impossible to comprehend that Nigeria would not have anticipated this line of inquiry.

The litigation strategy employed by Nigeria involved canvassing an alternative basis of legal title to Bakassi independent of a resolution of the conflict between the 1884 and 1913 treaties. Had it been successful, it would have been unnecessary for the Court to decide that other, immensely more difficult, question. These grounds, simply stated, were historical consolidation and adverse possession. As Professor Brownlie’s oral submission on behalf of Nigeria emphasised, they "constitute an independent and self-sufficient title to Bakassi." Given the evidence presented, including the Efik and Effiat toponomy of the settlements as well as health, education and tax activity by the Nigerian government and officials in Bakassi, the principle of effectivity (effective exercise of state functions) overwhelmingly favoured Nigeria. The catch however is that once conventional title, on the basis of the 1913 Treaty, has been established in favour of Cameroon, the Nigerian effectivités would be at best contra legem. In order for this to displace the conventional title vested in Cameroon, according to the Court, the relevant legal question is whether the conduct of Cameroon, as the title holder, can be viewed as an acquiescence in the loss of the treaty title (i.e. abandonment of title). Otherwise, effectivités cannot serve to displace an established treaty title.

It is difficult to see what is meant by the claim in Nigeria’s official statement that this part of the judgment is contrary to the latter part of paragraph 63 of the judgment of the Court in the Burkina Faso/ Mali case. The passage referred to reads:

Judge ad hoc Ajibola, in his dissenting opinion, argued that, the passage "does not mean that the holder of the title is absolutely entitled to sovereignty over the territory. All it indicates is that it should have preference, but this preference is not absolute" (para. 153). "Preference" is a fairly unproblematic word in the English language and in law. In the Burkina Faso/ Mali case, it clearly indicates the priority of legal title.

It has hardly been possible to separate lawyers, as professionals, from politicians in the on-going national dialogue on appropriate post-adjudication responses. Definitely, the law-talk, and whatever else passes under that rubric, has, with occasional exceptions, been shockingly ill informed. Where, for instance, does the idea emerge from that decisions of the International Court of Justice are subject to ratification by the parties? Triadic settlement, especially judicial and arbitral, of international disputes would simply disappear if parties were at liberty to reject decisions or, what is the same thing, to insist that the only acceptable decision is a favourable one. There is clearly a basic legal misunderstanding underlying the claim that President Obasanjo did not sign any "blank cheque" at the Paris meeting to accept the decision the ICJ regardless of outcome. It was not necessary to sign any. A blank cheque, to use the expression, dated 14 August 1965, was delivered to (registered with) the United Nations on 3 September of the same year. This was the instrument by which Nigeria accepted, under Article 36 of the Statute of the Court, the compulsory jurisdiction of the ICJ in cases involving countries that have similarly accepted jurisdiction. It is true that the terms of our acceptance were modified and duly registered by the Abacha administration in 1998, but that would only apply to future cases.

By summer of this year, only sixty-two other countries (a third of which are African) have similarly accepted the jurisdiction of the Court. Our acceptance of compulsory jurisdiction since the 1960s shows that we have a commitment to settlement of international disputes through the Court. In his speech to open oral arguments on behalf Nigeria, on 28 February 2002, the Minister of State for Justice, Musa Abdullahi told the Court, "we in Nigeria have always been proud of the fact that Nigeria has accepted the Court’s jurisdiction for over 40 years" (never mind not quite forty years). "Nigeria has always had confidence in the Court," he continued (CR 2002/8 at para. 2). Once the issue of jurisdiction was settled, when Nigeria’s preliminary objections were dismissed in 1998, Nigeria joined issues by filing a countermemorial. At no point was the likelihood of bias of any of the judges raised.

The confidence Nigeria had in the Court, at least up to 28 February, evaporated instantly when the judgment was announced. According to the government statement, by participating in the case, the "French President of the Court" and the English and French judges, "as citizens of the colonial powers whose action had come under scrutiny, have acted as judges in their own cause and thereby rendered their judgment virtually null and void." This, again, is clearly a misunderstanding of the organization of the international court. The UN General Assembly and Security Council sitting independently elect the fifteen judges of the Court to nine-year terms of office. The judges themselves elect the President of the Court. He presides over all sittings and deliberations of the Court, except, according to Article 32 of the Rules, "if the President of the Court is a national of one of the parties in a case he shall not exercise the functions of the presidency in respect of that case."

Occasionally, a case is decided by less than the full complement of judges where a member is unable to participate because of previous involvement in the subject matter in any capacity or for other special reason. Articles 17 and 24 of its rules regulate ad hoc disqualification of members of the Court. The basic principle, stated in former, is that "No member may participate in the decision of any case in which he has previously taken part as agent, counsel, or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity." Disqualification for other "special reason" is recognized by Article 24. A request that a member of the Court be disqualified is very rare indeed. Apartheid South Africa did so in the South West Africa cases, first in 1965 and again in 1970. On the latter occasion, the Namibia Advisory Opinion case, it objected to the participation of the President of the Court and two other members on the ground of their involvement, in their former capacity as representatives of their government, in United Nations organs dealing with matters concerning Namibia. The Court decided that the complaint could not furnish grounds for invoking Article 17. A fortiori an objection to participation of a judge in a case simply because she/ he is a national of one of the parties before the Court (which was not so any way in the Cameroon-Nigeria case), or because the State of nationality presumably has an "interest" in the case, is untenable. Indeed, such request runs directly contrary to the Rules of the Court. Article 31(1) specifically stipulates, "Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court."

This aspect of ICJ practice sometimes confounds municipal lawyers. A former judge and sometime President of the Court, Sir (later Lord) Arnold D. McNair, himself a pre-eminent English lawyer, once said, "sometimes, an English lawyer has said to me: ‘I suppose you can’t sit in a case to which Great Britain is a party.’ To which my answer is ‘Yes I can, and what is more, if there is at that time no judge having the nationality of the other party, the party may nominate a national judge." The members of the Court are not agents of their States. Indeed, there have been a number of cases where judges have ruled against a submission made by their own State. Take our own experience. Judge Charles Onyeama was a member of the Court from 1967-1976. In the Namibia Advisory Opinion case (1971), unlike the majority of the Court, he did not support all of the grounds canvassed on behalf of Nigeria and the OAU by Professor Elias, Attorney General of Nigeria.

The moral equivalent of the objection indicated in Nigeria’s official statement is this: imagine President Shagari declaring void the Supreme Court decision in the suit brought against the federal government by the government of Bendel State over the 1981 Revenue Allocation Act because two Bendel justices (Obaseki and Idigbe) participated in the decision. It is even more untenable in the case of the ICJ because it is inconsistent with the fact that parties in a matter before the Court without a judge of their nationality on the Court have a privilege of appointing a judge ad hoc of their choice. This is why the ICJ was enlarged by two in this particular case (Nigeria and Cameroon appointed Ajibola and Mbaye respectively as judges ad hoc). It seems mutually inconsistent to exercise this right to appoint a special judge of our choice, because there is no Nigerian judge at present on the Court, and yet complain that the French, English, and German judges, who are permanent judges of the Court, should not have participated because their States are "interested" parties.

With respect, the "option" of disregarding a judgment of a court cannot count as "legal advice." It is difficult to accept that any informed lawyer was involved in drafting the official Nigerian statement. A village community association would most likely be expected to give a more sophisticated response to a customary court ruling in a local land dispute. Frankly, lawyers have not been of much use to the Nigerian case. The best legal advice that Nigeria ever got in the dispute concerning Bakassi was actually given more than thirty years ago by the Professor Elias, as Attorney General of the Federation. With the decision of the ICJ, it is clear that law has, practically, run out. What the government needs now is not the creation of another unlimited legal defence fund but sound political advice and effective diplomatic capacity. We have indeed come full circle. In August 1977, General Obasanjo, then military Head of State had a meeting with the Cameroonian President Ahidjo. He informed the latter that Nigeria was unable to accept the Maroua Agreement, and that since the Supreme Military Council did not ratify it, Nigeria considers it a nullity. What was to be done now, asked Ahidjo. Obasanjo’s reply was that since Ahidjo was not prepared to renegotiate, the matter should be left to be dealt with by their successors. Well, destiny has returned the matter to President Obasanjo’s lap, except that this time Cameroon have in their hands not only the treaty of 1913 and the much regretted Maroua Agreement but also a judgment of the International Court of Justice

Nov 2002