Bakassi: The Critical Issues

By

Prof. Itse E. Sagay

The decision of the International Court of Justice on Bakassi has come and gone. Unfortunately we lost, in my view, unfairly. But the matter does not end there. Unlike the normal cases in which a clear cut decision should be followed by clear cut compliance, we cannot just pack our bags and leave Bakassi. In addition to territory, there is a human population in Bakassi who are not merely Nigerians, but Nigerians who are indigenous to Bakassi. In other words, these Nigerians are also the owners of the land of Bakassi. The awful dilemma of this judgment is that we are expected to abandon these people to a foreign sovereign, or transfer them from their ancestral home to another part of Nigeria as 'settlers' with all that connotes in the Nigerian context. In other words, the judgment ignored the right to self-determination of the people of Bakassi; a right that enjoys primacy in international law, which is a principle of the status of jus cogens, that is, a peremptory norm of international law from which no derogation is permitted. These are in the highest category of principles of international law; a category which includes the prohibition of war crimes and crimes against humanity. The failure of the ICJ to take this principle into consideration in the Bakassi case, not only means that the judgment is fatally flawed, but makes compliance and implementation practically impossible. Therefore the response of the Federal Government is understandable and inevitable.
 

Before considering what we must now do in the aftermath of the case, there is need to consider, no matter how briefly, the flaws in the decision since they have a relationship with the way forward. In this regard, I only intend to consider two matters; namely, the 1913 British-German Treaty and the issue of self-determination.

The 1913 Treaty
As many commentators have rightly observed, the purported transfer of Bakassi to German Sovereignty in April 1913 was illegal, null and void. By that date, Bakassi was not British Territory. It was territory under the Kings of Old Calabar. The Bakassi people had rebuffed an attempt by Britain to conclude a protection treaty with them in 1884 wherein they stated thus:

"We, the undersigned King and Chiefs of Tom Shott, declare that we, our people and country, are subject to the authority and jurisdiction of the Kings and Chiefs of Old Calabar, that we cannot, therefore, make any treaty with a foreign power for ourselves, but that any treaty the said Kings and Chiefs of Old Calabar have made, or may hereafter make, is, and will be, binding on us.

Done in triplicate this 11th day of September, 1884, on board the steamship "Trader," Old Calabar River."

Identical declarations were made by other Bakassi communities like the Efut and Idombi.

Although the King and Chiefs of Old Calabar did conclude a protection treaty with Britain, it clearly did NOT involve the transfer of sovereignty or title to their territories, including Bakassi. In its words the treaty's objectives were for the maintenance and strengthening of relations of peace and friendship "which has for so long existed between them", i.e., Britain and Calabar. The important clause was that in return for a British undertaking to extend to the Kings and Chiefs of Old Calabar and their territories British "favour and protection", the Kings and Chiefs agreed not to enter into any relationship with another power without the "knowledge and sanction of Her Britannic Majesty's Government" Basically, the British wanted exclusive trading rights and the protection of their citizens in Calabar territories. The transfer of title was not involved. Indeed, when King Jaja of Opobo was requested by Hewitt the British Consul in that area to sign an identical treaty for his own territory, he refused to do so and wisely requested to be told what 'protection' meant. The response of the Hewitt clearly established that transfer of title to territory or sovereignty was not involved. According to Hewitt,

"I write as you requested with reference to the word "protectorate" as used in the proposed treaty that the Queen does not want to take your Country or your market, but at the same time, is anxious, that no other National should take them. She undertakes to extend her gracious favour and protection, which will leave your country still under your government".

In the light of the above, the so-called cession of Bakassi to the Germans in 1913 was obviously a nullity for nemo dat quod non habet, i.e., no one can give what he does not have. Consequently all the agreements built on this false foundation, including the so-called 1971 Yaounde Agreement and the much talked about Maroua Declaration, collapse with the false foundation, for as Lawyers are fond of saying, you cannot build something on nothing.

When the Chiefs of Old Calabar traveled all the way to London to protest against the treaty, the Colonial Secretary declared in Parliament that the treaty did not affect the status of Bakassi. No title was transferred to Germany.

Why on earth did the court ignore this basic principle? A judgment based on a non-existing treaty is itself obviously void. Unfortunately, there is no higher court to review the judgment of ICJ.

Self Determination
It is remarkable that throughout all the discussions, debates, lectures, seminars, and articles that have been written, organized or given on the pertinent issues arising from the Bakassi dispute, no one had considered the question of the self-determination of the Bakassi population. It has been assumed that once a treaty or declaration is concluded or made, ceding Bakassi, provided this is ratified, then the people of Bakassi who are indigenous to the territory, can be transferred willy nilly from one sovereign to another without their consent or even their being consulted. This assumption is wrong. Even before the development of the current norm of self-determination, i.e., during the era before the establishment of the U.N., it was recognized that as the object of cession was sovereignty over territory, the population domiciled in the affected territory who were citizens of the ceding state were usually given the option of deciding whether they wanted to retain their citizenship of the ceding state or consented to their citizenship being transferred to a new sovereign.

"The hardship involved for the inhabitants of the territory who remain and lose their old citizenship and are handed over to a new sovereign whether they like it or not, created a movement in favour of the claim that no cession should be valid until the inhabitants had by a plebiscite given their consent to the cession. Several treaties of cession concluded during the 19th century stipulated that a cession should only be valid provided the inhabitants consented to it through a plebiscite" In modern law however, the plebiscite has to be seen as a device for securing compliance with principle of self-determination enshrined in the Charter of the United Nations (Oppenheim, 9th. Ed. Volume 1 - Peace, p. 864)

Thus requirement of the consent of the affected population in cases of cession or transfer of peoples and territories from one sovereign to another, became accelerated after the establishment of the U.N. With the adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples in 1960 (G.A. Res. (151 4(xv)) and the subsequent Declaration of the Principles of International Law concerning Friendly Relations amongst states 1970. (G.E. Res. 2625 (xxv), the right of self- determination acquired, not only the status of a principle of international law, but attained the status of Jus cogens. One effect of the development of this principle, is that it has become mandatory for a people to expressly give their consent before they are transferred from one sovereign to the other. This has been particularly manifested in U.N. practice in relation to Trust territories. The Editors of the 9th. Edition of Oppenheim have accurately summarized these modern development s at page 713 as follows:

"Whatever the difficulties of determining what is a 'people' for this purpose, there can be no doubt that so lively a legal principle has a part to play in the determination of territorial sovereignty. It could also lend a new dimension to the old device of the plebiscite, under the aegis of the United Nations. Thus, in 1954, the United Nations General Assembly expressed the opinion, regarding non-self-governing territories, that 'a mission, if the General Assembly deems it desirable, should, in agreement with the Administering Member, visit the Non-self-Governing Territory before or during the time when the population is called upon to decide on its future status'. In accordance with this, the United Nations supervised plebiscites or elections in the British Togoland Trust Territory in 1956, in French Togoland in 1958, in the Northern Cameroons in 1959 and 1961, in the Southern Cameroons in 1961, in Ruanda-Urundi in 1961, in Western Samoa in 1962, and in Papua-New Guinea in 1972. Such action has not been confined to trust territories, however, and the UN Special Committee on the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples has, in the name of self-determination, demanded the same procedures for colonies."

In the Western Sahara case (ICJ Reports, 1975, p. 12) although the questions put to the Court for an Advisory Opinion did not directly refer to the issue of self-determination, the ICJ nevertheless stated that whatever questions had been asked, its answers would have to take into consideration the applicable principles of decolonisation as being an essential part of the framework of questions contained in the request. The Court also referred to Article 1 of the Charter of the U.N. and to the Declaration on the Granting of Independence to Colonial Countries and Peoples, which it stated, "confirm and emphasise that the application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned." (at p. 30) Arising from this Advisory Opinion, both the U.N. General Assembly and the Security Council have since passed resolutions calling for a U.N./O.A.U. conducted referendum in Western Sahara, which the two parties in conflict (Saharawi Arab Republic and Morocco) have accepted. This referendum will require the peoples of Western Sahara to choose between their own independent State, and integration with Morocco. Perhaps one of the most outstanding examples of the mandatory nature of the expressed will of peoples in disputed territories, is the referendum voluntarily conducted by the victorious Eritrea Peoples Revolutionary Front in 1993 by which the peoples of Eritrea were given the choice of deciding whether to endorse the independent State of Eritrea or to return to Ethiopia as part of the latter. Only recently the people of East Timor exercised their right of self-determination to separate themselves from Indonesia in order to establish their own independent state, in accordance with the U.N. Charter.

All this happened in the teeth of fierce and violent Indonesian objection and opposition. But the principle of self-determination as expressed in referenda and plebiscites of peoples is simply too powerful to be resisted. The importance of this principle is well demonstrated in the first three common paragraphs of the U.N. International Covenants on Political and Civil Rights and Economic, Social and Cultural Rights, 1966 as follows:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. .......

3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

In view of these developments in International Law and Practice, it is inconceivable that any Tribunal will endorse the validity of a Treaty or Declaration, on Bakassi, which has no provision for the self- determination of the peoples of that territory, whether or not they accept transfer to Cameroon, or wish to remain in Nigeria. Such a gross violation of International Law and the rights of the peoples of the territory cannot be acceptable to the International Community, much less Nigeria.

It is therefore clear from the above, that in the absence of a referendum in which the peoples of Bakassi have expressed their choice, no Treaty or Declarations transferring them and their territory to another sovereign can be valid.
 

The way Forward
In the first place it was an error on the part of Nigeria to have accepted the jurisdiction of the Court. By Article 36 of the Statute of the Court, states are entitled to declare in advance that they accept the compulsory jurisdiction of the Court, BUT ONLY in respect of other states that accept such jurisdiction in advance. This is known as the "Optional Clause". Nigeria signed the Optional Clause, long before the case, but Cameroun did not. But the latter rushed to accept the Courts jurisdiction opportunistically only in order to bring its claim against Nigeria. At that stage we could have walked away freely by declining the Court's jurisdiction in relation to Cameroun, which was NOT a party to the Optional Clause. Strangely, we did not. We accepted jurisdiction and therefore bound ourselves to submit to the Court's judgment. For by article 60 of the Court's Statute, the Court's judgment "is final and without appeal". We cannot apply for the revision of the judgment as some laymen have suggested because we cannot meet the conditions for revision. An application for revision can only be made, when it is based on 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 the partly claiming revision, always provided that such ignorance was not due to negligence (Art 61). We cannot claim that we did not know that the Kings, Chiefs and peoples of Bakassi, did not give their consent to the so-called cession of Bakassi, or that the inhabitants of Bakassi are Nigerians. Indeed these points were canvassed before the Court and in effect, rejected. Can we or the Court claim not to know the indispensable nature of self-determination? In any case self-determination is not a fact, but a legal principle.

So our next port of call is not the Court again, but the Security Council. By article 94 of the U.N. Charter, each member of the organization undertakes to comply with the decision of the ICJ in any case to which it is a party. However, like any other Court, the ICJ cannot enforce its own judgment. This responsibility is given to the Security Council.

However, the terms of the Security Council's responsibility in this regard are carefully worded, so as to give the Council a further power to judge the rationality, fairness, correctness and justice of the judgment before taking a decision whether to enforce the judgment or refuse to enforce it as given. By Section 94(2) the Charter provides that:

"If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment."

Careful consideration of this provision reveals the extensive nature of the Security Council's discretion. The Council (i) May, (ii) if it deems it necessary (iii) make recommendation or decide upon measures to be taken, to give effect to the judgment.

Thus the Security Council may not deem it necessary to do anything about the complaint of a "victorious" party. Even if it decides to do anything, it may recommend measures different from what is contained in the judgment, e.g. in this case it could very well recommend a referendum for the Bakassi people to enable them determine their own future. So the matters is far from over. The end of the case merely opens a new chapter for fresh initiatives.

We must therefore start knocking at the doors of all members of the Security Council, especially the permanent members, with the exception of France. These are China, Russia, the U.S.A. and the U.K. If we can win one, just one of these four to our side, the people of Bakassi will not be abandoned to a hellish and slavish existence.

In addition to the approach to the Security Council, there are other potent options and strategies with a virtual guarantee of success, but which require careful and detailed consultations and planning. These cannot be openly discussed for obvious reasons. Hopefully the Federal Governments' advisers will be aware of these.

In conclusion, let me say that we must not compound our unfortunate situation by putting our 'third eleven' team forward again in the remaining part of the struggle or in any future matter. We must cease toying with the fate of Nigeria fate by treating crucial and critical state matters casually and as an avenue for patronage and an opportunity for arranging international junketing for political friends. Nigeria is too important for that. In particular, international law is meant to be practiced by international lawyers; it is not susceptible to our "anything goes" or "job for the boys" syndrome.

We must learn to respect merit, quality, qualifications and proven competence in our different disciplines; even when the repositories of these values are our perceived political 'enemies'.

Nov 2002