ICJ Judgment on Bakassi

ICJ Judgment on Bakassi: How enforceable?

Since the judicial sad news of l0/10/2002 by way of the International Court of Justice (ICJ) judgment ceding the Bakassi Peninsula to Cameroon, our nation has once again been thrown into judicial mourning after, with respect, the Onshore/Offshore Judgment of 5/4/2002.

However, like its municipal counterpart (the onshore/offshore judgment), the Bakassi judgment might as well be incapable of enforcement. Pragmatism, they say, is usually the enemy of principles. There is no problem in delivering judgment or decisions, but rather in their enforcement. It is therefore to the unenforceability of the International Court of Justice judgment that I now turn.

The Bakassi Peninsula

The Bakassi Peninsula is an area of some l,000km of mangrove swamp and half submerged islands protruding into the Bight of Bonny (previously known as the Bight of Biafra). Since the 18th Century? the Peninsula has been occupied by fishing settlements most of whose inhabitants are Efik speaking.

Historical Perspective of the Conflict

In addition to the above, the Punch Newspaper of 12/10/2002 at page 4 in its meticulous analysis of these events captioned "How it all started" provided thus:

"June 1884: The German government proclaimed a protectorate over the Cameroon region.

_ October 1884: The German government notified other European powers and the United States of America (USA), in general terms, of the extent of the Peninsula.

_June 23 and September 10, 1884. The kings and chiefs of Old Calabar signed a treaty placing their territories under the protection of Great Britain. Also in September, other kings and chiefs of the region, including those of Bakassi, signed treaties, acknowledging that their territories were subject to the authority of Old Calabar and were therefore also under British protection.

_ 1885: The Berlin conference recognised the validity of the British claim to the Bakasi area as the Oil Rivers Protectorate.

_ 1893: Bakassi became part of the Niger Coast protectorate.

_ 1900; Southern Nigeria, still including Bakassi Peninsula, came under the administration of the Colony of Lagos.

_March 11 and April 12, 1913: Agreements signed redefined the maritime boundary of Akpayofe River, placing the entire Bakassi Peninsula under the German authority. But the kings and chiefs and of the Old Calabar protested to the British parliament that it had no right to sign away their territories. They, however, received the assurance that there was no intention of doing so. Nevertheless, it appeared that the demarcation of the new boundary went ahead.

_ November 1913. The Protectorate of Northern and Southern Nigeria were amalgamated into a single Nigeria Protectorate, though Lagos remained a separate colony. By now, however, the status of Bakassi was already in question.

_ February 1961: The 1913 agreement again came to the fore when the United Nations conducted a plebiscite in the British Trust Territory of Southern Cameroon to allow the local population to decide whether they wanted to form part of independent Nigeria or become part of Francophone Cameroon. The plebiscite included people of Bakassi peninsula, which Nigeria reflecting the 1913 delimination, now claims to be an irregular procedure...........................

_ May 30 to June 1, 1975. Gowon and Ahidjo met in Maroua, by which time the Cameroonian authorities had already passed decrees renaming the settlements on Bakassi. The Maroua accord certainly conceded Cameroon sovereignty over to Bakassi and a lot more besides. But, two months later, Gowon had been ousted by the General Murtala Mohammed military junta, whose Supreme Military Council refused to ratify the agreement.

_ August 1977. Successor to Murtala Mohammed, General Olusegun Obasanjo repeated the repudiation."

Cameroon institutes action in 1994 at the International Court of Justice (ICJ).

On 29th March 1994 after several and persistent violations of our sovereignty and provocation by Cameroon, it lodged an action at the International Court of Justice against Nigeria claiming amongst others, that the Bakassi Peninsula was under Cameroon sovereignty. Specifically, the Cameroonian government requested the International Court of Justice to determine the course of the maritime frontier between the two States in so far as that frontier had not already been established by the Maroua Declaration.

Claims of the parties before the ICJ.

In its final submissions to the ICJ, Cameroon had asked the court to adjudge and declare:

_ That the land boundary between Cameroon and Nigeria was determined by the Anglo-German Agreement of March 11, 1913.

_ That in consequence, sovereignty over the Bakassi Peninsula Is Cameroonian.

Nigeria in its final submissions requested the ICJ to adjudge and declare:

_ That sovereignty over the Peninsula is vested in the Federal Republic of Nigeria.

_ That Nigeria's sovereignty over Bakassi extends up to the boundary with Cameroon.

For these and more, see THISDAY Newspaper of 15/10/2002 at page 30.

Judgment of the International Court of Justice delivered on 10/10/2002.

After nearly eight years of complex and contentious legal proceedings, the International Court of Justice delivered its judgment on 10/10/2002 substantially granting the reliefs claimed by Cameroon, especially sovereignty over the Bakassi Peninsula. In the leading judgment as held by the French President of the Court Justice Guillame and reproduced by the Vanguard Newspaper of 12/10/2002 at page 5 under the caption: "The Bakassi Peninsula Judgment", it was - stated thus:

"The Court determines the boundary between Cameroon and Nigeria from Lake Chad to the sea. It requests each Party to withdraw all administration and military or police forces present on territories falling under the sovereignty of the other Party.

THE HAGUE, 10 October 2002. The International Court of Justice (ICJ),principal judicial organ of the United Nations, has today given Judgment in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening).

In its Judgment, which is final, without appeal and binding on the Parties, the Court determines as follows the course of the boundary, from north to south, between Cameroon and Nigeria:

In the Lake Chad area, the Court decides that the boundary is delimited by the Thomson-Marchand Declaration of 1929-1930, as incorporated in the Henderson-Fleurinu Exchange of Notes of 1931 (between Great Britain and France), it finds that the boundary starts in the lake from the Cameroon- NigeriaChad tripoint whose co-ordinates it defines) and follows a straight line to the mouth of the River Ebeji as it was in 1931 (whose co-ordinates it also defines) and thence runs in a straight line to between Lake Chad and the Bakassi Peninsula, the Court affirms that the boundary is delineated by the following instruments.

i) From the point where the River Ebeji bifurcates, as far as Tamayar Peak, by the Thomson-Marchand Declaration of 1929-1930 (paras. 2-60), as incorporated in the Henderson-Fleuriau Exchange of Notes of 1931;

ii) From Tamnyar Peak to pillar 64 referred to in Article XII of the Anglo-German Agreement of 12 April 1913, by the British Order in Council of 2 August 1946;

iii) From pillar 64 to the Bakassi Peninsula, by the Anglo-German Agreements of 11 March and 12 April 1913.

The Court examines point by point 17 sectors of the land boundary and specifics for each one how the above-mentioned instruments are to be interpreted (paras. 91, 96, 102, 114, 119, 124, 129, 134, 139, 146, 152, 155, 160, 168, 179, 184 and 189 of the Judgment).

In Bakassi, the Court decides that the boundary is delimited by the Anglo German Agreement of 11 March 1913 (Arts. XVIII-XX) and that sovereignty over the Bakassi Peninsula lies with Cameroon. It decides that in this area the boundary follows the mouth of the River Akpakorum (Akwayofe), dividing the Mangrove Islands near Ikang in the way shown on map TLSGS 2240, as far as a straight line joining Bakassi Point and King Point.

As regards the maritime boundary, the Court, having established that it has jurisdiction to address this aspect of the case - which Nigeria had disputed - fixes the course of the boundary between the two States' maritime areas.

In its Judgment the Court requests Nigeria expeditiously and without condition to withdraw its administration and military or police forces from the area of Lake Chad falling within Cameroon sovereignty and from the Bakassi Peninsula. It also request Cameroon 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 Cameroon.

The Court takes note of Cameroon'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 Cameroon's submissions regarding the State responsibility of Nigeria. It likewise rejects Nigeria's counter-claims. "

The judgment is binding but unenforceable in international law.

It must be observed in liming that even though the judgment is binding as augmented by the prior express undertaking of the parties, same appears to be unenforceable in international law. The express undertaking is necessary in international law as Prof. Ian Brownie, QC, submits in his book Principles of Public International Law (infra) at page 720 that:

"States do not submit to the jurisdiction of the Court as a result of signing the Statute, and some further expression of consent is required "

At best, the judgment of the International Court of Justice is advisory; and at worst, academic. I owe no apologies by playing the devil's advocate on this issue. I am deeply propelled by an unflinching loyalty to my country to make sure that "the labours of our heroes past shall never be in vain."

The effectiveness of the judgment of the International Court of Justice has formed a vexed issue in international law. The United Nations most difficult headache has been how to enforce the judgment of the International Court of Justice. In point of fact, its predecessor the Permanent International Court of Justice (PCIJ) founded in 1920 performed better in terms of judgment enforcement. However, the International Court of Justice which was created in 1946 after the Second World War, has completely failed in judgment enforcement. It is in the real word a lame duck or a toothless bulldog.

Accentuating this contention, a doyen of international law, Prof. D.J. Harris in his seminal expose titled "Cases and Materials on International Law" 5th Edition (1998) at page 988 submits thus:

"At the same time it has yet to be established that two other problems with which the Court has been confronted have been resolved In several cases in the 1970s and 1980s, the Court experienced the phenomenon of the "non-appearing" defendant. Iceland boycotted the proceedings in the Fisheries Jurisdiction cases and in five cases since then the defendant state has not appeared This can as in the Nicaragua case present difficulties in ensuring that the Court has all of the evidence it needs in order to decide a case

The other problem is part of the more general weakness of effectiveness that international law faces Whereas the judgments and orders of the P.C.I.J. in contentious litigation were all complied with, the record of the l.CJ. since the Second World War has been less satisfactory. The judgments in the Corfu Channel case, the Fisheries Jurisdiction cases, the U.S. Diplomatic and Consular Staff in Tehran case, and the Nicaragua case, were not respected, and nearly all the orders for interim measures have not been followed. The judgment in the Right of Passage case, ..............was soon negated by the Indian invasion of God.

On the power, as ret unexercised! of the Security Council to enforce decisions of the Court, see Article 94(2) of the Charter. In 1986, the U.S. vetoed a draft Security Council resolution calling for 'full and immediate compliance" with the Nicaragua case judgment " (Underlining supplied for emphasis)

That the International Court of Justice lacks the power of compulsion is embarrassingly buttressed by the fact that it can only assume jurisdiction by consent of the parties. Again, a scion of international law and one of our Lord advocates in this case, Prof. Ian Brownie, QC, in his book Principles of Public International Law, 4th Edition of 1994 at page 718 observed thus:

"The Court has jurisdiction in contentious cases between states on the basis of the consent of the parties The Court has often referred to the fact that the jurisdiction of the Court to hear and decide a case on the merits depends on the will of the parties "

This formed the opinion in the celebrated Anglo-Iranian Oil Case, ICJ Reports (1952) at pages 102-3 and the Monetary Gold Case (1954) at page 32.

Even where its jurisdiction is described as compulsory, it nevertheless requires the consent of the parties to invoke its compulsion. In the International Court of Justice Year Book 1987-1988 at page 52, it was stated that:

"(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 Statute, 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:

(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,"

Nigerian experts speak on the unenforcability of the judgment.

In his contributions, the quintessential Senior Advocate of Nigeria, Chief Afe Babalola, SAN, who for this purpose deservedly earned himself a slot on the "Quotes of the Week" section of the Punch newspaper of 13/10/2002 at page 12, observed thus:

"The World Court's decision is only advisory, it is not binding and cannot be enforced. The World Court has no enforcement powers. It is not like a Nigerian municipal court whose decisions can be enforced by agencies of the state."

Speaking in a similar vein. Prof. Emmanuel Akanki in the Vanguard Newspaper of 13/10/2002 at page 2, stated that:

"....the ICJ decision was more of an advice to both countries and not like a decision of a municipal Court which had stern penalties attached to its default".

From the old testament to the new testament in international law, the above position remains the same. Thus, the legal colossus, L. Oppenheim in his book "International Law: A Treatise" 8th Edition of 1967 at page 440, says that members of the United Nations are obliged:

".............to avail themselves of the advisory jurisdiction of the Court (ICJ).

(Undermining supplied for emphasis).

This is perhaps the reason why the decisions of the International Court of Justice were not followed and enforced in the Corfu Channel case - ICJ Rep, 1948 p.15, Fisheries Jurisdiction cases, ICJ Rep, 1951 p.128, interim measures in Anglo-Iranian Oil case - ICJ Rep, 1952 p.93 and Nuclear Test cases - ICJ Rep, 1960 p.6. For more, see Introduction to International Law, 2nd Edition by Prof. U.O. Umezurike at page 197.

Security Council must consent before the judgment can be enforced.

Indeed, for Cameroon to enforce this judgment of the International Court of Justice, it must get the approval of the Security Council. Thus, Article 94(2) of the UN Charter provides thus:

"2. 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."

J.G. Starke, QC, in his "magnus corpus" as far back as 1967 titled "Introduction to International Law" 6th Edition at page 27, comments on Article 94(2) thus:

".......Also, under Article 94 paragraph 2 of the Charter, if any State, party to a case before the International Court of Justice, fails to perform the obligations incumbent upon it under a judgment rendered by the Court the Security Council may upon application by the other State party to the same case make recommendations or decide upon measures to be taken to give effect to the judgment. ..."

However, the distinguished international scholar concludes thus:

"It must be acknowledged however that the United Nations Charter does not otherwise allow the use of force, collectively or individually, for the enforcement of international law in general "

This is the legal conundrum awaiting Cameroon if it attempts to enforce the judgment instead of opting for a diplomatic solution. The Security Council might not consider the enforcement of this judgment as a priority in view of the tension of imminent war against Iraq and the urgency to fight terrorism worldwide. Above all, since oil is in issue, Nigeria should be able to divide the Security Council or at worst get one permanent member to veto any Cameroonian application for enforcement. A reward of oil for such a member is sufficient inducement! That was how the United States vetoed the judgment of the International Court of Justice against it in the Nicaragua case (supra). Let us apply lobbying. This is the view of the erudite Dr. Edwin Madunagwu in his interview in the Guardian Newspaper of 14/10/2002 at page 2 titled: "We must learn to lobby, says Edwin Madunagwu." The eminent scholar submitted thus:

" I would suggest that the Nigerian government should also learn how to lobby. We have a problem because we have been having military rule for so many years.

They should learn to lobby. The United States is more powerful than all the other powerful countries combined, including Europe, yet it lobbies. It lobbies small countries; Qatar it will lobby, Afghanistan, it will lobby, Pakistan it will lobby and even tiny countries such as the Vatican, it will lobby. Nigeria should also learn to lobby. You don't just sit down and be playing politics and cleriving money in Abuja They should learn some diplomacy and diplomacy does not just mean running round from capital to capital but actually working out positions Having people, intellectuals, think tanks to work out these positions and lobby for these positions. There can still be a political settlement, which can still protect the interests of the people in the Bakassi, protect the interests of the people in Cross River State and protect the integrity of the Nigerian nation through political lobbying "

Implications of the judgment.

It lucidity means that that portion of Bakassi Peninsula as appended to the map of Nigeria with all its rich natural resources both mineral and agricultural, will become that of Cameroon. That portion will be excised from Nigeria. Above all, Nigerians occupying that territory will now owe allegiance to the President of Cameroon as they remain politically bastardized.

In addition, the 1999 Constitution has to be amended to remove Bakassi Local Government from Cross River State as listed in the First Schedule, Part One of the 1999 Constitution. Thus, the Local Government Areas in Cross River State will be reduced from 18 to 17. Above all and more devastating is the one described by the erudite Prof. Bola Akinterinwa, a Senior Research Fellow at the Nigerian Institute of International Affairs (NIIA). In his contribution in the Punch Newspaper of 13/10/2002 at page 19, he stated thus:

"Q: Does that mean that federal lawmakers from the area should resign?

A: Of course, because there is no basis, going by the ruling. Whom are they representing? 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 implications."

The way forward for Nigeria.

(a) Revision of the Judgment.

By virtue of Article 61 paragraph 1 of the 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 conditions. This procedure was highlighted with clarity in the International Court of Justice Year Book 1987-1988 (supra) at pages 53-54, thus:

" (f) 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 negligence (Statute, Art. 61, para. 1). A request for revision is made by means of an application (Rules, Art. 99)."

Thus, if Nigeria can satisfy these conditions, we can further throw in more obstacles in the enforcement of this judgment as we negotiate a diplomatic solution. In this connection, the well-written piece by Mobolaji Sanusi in the Weekend Vanguard of 12/10/2002 at page 9 titled: " What ICJ may not have considered" is very relevant here. As the articulate Chief Femi Falana submits in the Guardian Newspaper of 15/10/2002 at page 4, thus: "Bakassi: Falana wants govt. to seek review of judgment." In that commendable contribution, it was stated thus:

"...He (Falana) advised government to the a suit for a stay of execution of the ICJ ruling, pending the determination of the plea for a review of the judgment "

This is a very viable option as we seek a diplomatic solution to the matter. In addition, it injuncts the parties to maintain the status quo until a determination of the application for review which can take another eight years as the case itself.

(b)Diplomacy.

Nigeria should retain with all its might the physical occupation of the Bakassi Peninsula whilst exploiting the procedural difficulty of enforcing this judgment by Cameroon. Every obstacle must be put in place to further add to the difficulty of enforcing this judgment. At the same time, super powers like Russia, United Kingdom, United States as well as our newly found friend China, should be conscripted to plead our predicament and interest in the Peninsula with a view of negotiating the judgment. In point of fact, the Secretary-General of the United Nations, the tireless Kofi Annan, has offered to help the parties in the implementation of the judgment. Thus, it was reported in the Guardian Newspaper of 12/l0/2002 at page 2 that: "The UN......reaffirmed that the Organization was ready to assist both countries in the implementation of the Court's decision."

(c) Self help as a last Resort.

According to the proficient Prof. Akanbi in the Vanguard Newspaper of 13/10/2002 at page 2 that:

"There is the self help principle in international law and I think we can still go into the area to make sure our people are safe."

This is augmented by Article 51 of the UN Charter which provides thus:

"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."

This provision is our last card! We must be ready, willing and able to use it. This is well demonstrated by the statement of assurance made by Governor Donald Duke of Cross River State as reported in the Punch Newspaper of 14/10/2002 at the front page titled: " We won 't cede Bakassi - Duke. " The Governor addressing our troops, pungently asserted thus:

".......this is your own fight and you should remain vigilant against possible invasion into Bakassi Peninsula."

Constitutional duly of all Nigerians in this matter.

The Constitution 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:

"respect its ideals........the National Flag, the National Anthem, the National Pledge..........."

Conclusion

The Federal Republic of Nigeria and its citizens must therefore rise up to the occasion to defend her territorial integrity by any means necessary. Indeed, it is a duty we owe ourselves since we all:

"Pledge to Nigeria our country, To be faithful, loyal and honest, To serve Nigeria with all our strength, To defend her unity, And to uphold her honour and glory. So help us God!"

_ Mr. Odje, is the Special Assistant on Constitutional Matters to the Hon. Deputy Speaker of the House of Representatives, Abuja.

Dec 2002