Camerun Chad Dispute

Water, Oil and Blood:
The Cameroon-Nigeria Boundary Dispute regarding Bakassi Peninsula

and Lake Chad and the Threat of War over Water Resources
By Stefan Kirchner
This working paper is available free of charge from
http://www.ssrn.com/author=343201
Water, Oil and Blood: The Cameroon-Nigeria Boundary Dispute
regarding Bakassi Peninsula and Lake Chad and the Threat of War over
*
Water Resources
By Stefan Kirchner**
Foreword
It has often been said that the wars of the future will be a reminder of the wars of the
distance past, when not political ideas were the basis for a conflict, but the need to
survive. The third Gulf War has been seen by some as a war for oil, yet true ressource
wars between neighboring nations over water and oil might not be too far away. Just how
close the world has come to such conflicts shows the boundary dispute between
Cameroon and Nigeria, which has now been brought to an end by the International Court
of Justice in The Hague. This paper has been written before the World Court had
delivered its judgment, and it is admittedly written from a Cameroonian perspective. Yet I
think that it puts some light on some of the issues that might come up again in future
disputes, in particular in areas in which borderlines were drawn by colonial powers
without any regard for the people living in the areas in question.
*
This article is based, with the exception of Chapters 2 and 3, on a memorial submitted during a Moot Court in
the context of a International Law Seminar held by Prof. Dr. Terry Gill at Utrecht University (The Netherlands)
in the early summer of 2001.
**
Stefan Kirchner is a law candidate at Justus-Liebig-University in Giessen, Germany, and currently conducts
research in the field of Public International Law and European Law with a special focus on Human Rights,
Security Issues and International Humanitarian Law. His recent publications which are available online include
Preventing Nuclear Terrorism and a new Nuclear Arms Race, in: Review of International Social Questions, 6
January 2005, available online at http://www.risq.org/article393.html; The Human Rights Dimensions of
International Peace and Security: Humanitarian Intervention after 9/11, in: Journal of Humanitarian
Assistance, 25 October 2004, http://www.jha.ac/articles/a143.pdf and Relative Normativity and the
Constitutional Dimension of International Law: A Place for Values in the International Legal System?, in: 5
German Law Journal 2004, pp. 47 et seq., available online at
http://www.germanlawjournal.com/pdf/Vol05No01/PDF_Vol_05_No_01_47-64_European_Kirchner.pdf.
For further information see http://www.stefankirchner.int.tc
2
Chapter I: The Dispute
I.: Introduction
A. Subject of the dispute

Subject of the dispute between the Republic of Cameroon1 and the Federal Republic of
Nigeria2 is the question of Cameroon's sovereignty over the Bakassi peninsula and over
certain areas in the Lake Chad region. During the last decades, Lake Chad drowned out more
and more and forced local fishermen to either become farmers or to move with the coastline.
By doing so, the local fishermen often crossed the international borders which had been laid
down a long time ago.
B. Facts of the case

In 1884, the Deutsche Reich concluded several agreements with the local Douala Chiefs
which enabled it to annex the hinterland in accordance with the hinterland-doctrine. During
the following decades several agreements were concluded between Germany and the United
Kingdom, then colonial power in neighbouring Nigeria, to determine the boundary between
both colonies. Those treaties were superseded by the agreement of 11 March 1913, which laid
down that even a change in the course of the Akpayafe River shall not affect German
sovereignty over Bakassi.3 After World War I, Cameroon was placed successively under the
mandate and trusteeship systems of the League of Nations (LN) and the United Nations
respectively, leading to the international recognition of Cameroon's boundaries. A
referendum held in the Southern Cameroons on 11 and 12 February 1961 confirmed
Cameroon's title to Bakassi.
In 1964, after both states in question had achieved independence, they agreed to respect
boundaries inherited from the colonial era in accordance with the principle4 of uti possidetis
by agreeing to AGH/Res. 16(I) of the OAU.5 Nevertheless, Nigeria frequently disputed the
frontier which made negotiations between the two states necessary to achieve a peaceful
solution, ending in the Maroua Declaration of 1 June 1975, in which Cameroon's title to
Bakassi was confirmed once more by agreement of both parties.
1
Hereinafter also referred to as "Cameroon" or "the applicant".
2
Hereinafter referred to as "Nigeria" or "the respondent".
3
Art. 20 of the Agreement of 11 March 1913 between the then United Kingdom and Germany.
4
Burkina Faso v. Mali, ICJ Reports 1986, pp. 554 et seq.
5
cf. Point 2 thereof.
3
Despite the 1975 agreement, the Nigerian Government published a map in 1992, which
showed Bakassi as part of Nigeria, which led to subsequent protests by Cameroon. Moreover,
Nigeria caused several frontier incidents and on 21 December 1993 even unlawfully invaded
Cameroonian territory by massive use of force. Cameroon brought the case to the attention of
both the UNSC6 and the Committee for Conflict Management and Resolution of the
Organisation of African Unity.
II.: Admissibility of the Case before the ICJ
A. Jurisdiction of the Court: Art. 36 (1) ICJS and Art. 36 (2) ICJS
As both parties have accepted the compulsory jurisdiction of the Court without any
reservations and before the filing of Cameroon's application on 29 March 1994,7 the Court is
competent to decide on the merits of the case in accordance with Art. 36 (1), (2) ICJS: The
case concerns not only but all possibilities mentioned in Art. 26 (2) ICJS, namely the
question of sovereignty over Bakassi8 but also the question whether there has been a breach
of an obligation under international law by Nigeria9 and the nature and extend of
reparations10 as well as the interpretation of treaties.11
Furthermore is the Court able to decide on the course of the maritime boundary between
Nigeria and Cameroon. It might be argued that there is no actual dispute12 (the term "dispute"
in the application filed by the Republic of Cameroon refers to a military dispute as already
occurring in Bakassi, in so far it is admitted that the language used in the application is
somewhat unfortunate and shall be clarified herewith) between Cameroon and Nigeria on the
maritime boundary but this is for obvious reasons not true, as the area is extremely oil-rich13
6
cf. letter dated 28 February 1994 (Doc. S/1994/228).
7
Cameroon not later than 3 March 1994 and the respondent on 14 August 1965.
8
cf. Art. 36 (2) (a) ICJS.
9
cf. Art. 36 (2) (c) ICJS.
10
cf. Art. 36 (2) (d) ICJS.
11
cf. Art. 36 (2) (a) ICJS.
12
As required by Article 36 (2) ICJS.
13
In Nigeria, oil exploitation is one of the main economic fundaments of the country and in the area in question,
north of Equatorial Guinea's Bioko Island and south of the Bakassi Peninsula, new large oilfields have been
discovered by Mobil in March 1995 (i. a. the huge Zafiro Field) so that the reserves of Equatorial Guinea alone
4
and as the course of the maritime boundary between the three states in the region will
determine which state is allowed to make the best use of the oil reserves, i.e. which state will
have the largest share of the oil-rich maritime area. The dispute is also not only of a political
but also of a legal nature as it concerns the right to exploitation in both the territorial seas and
the exclusive economic zones, both of which are to be determined by international law.
Consequently the Court is competent to decide on all aspects of the case brought before it by
Cameroon. A decision to this effect has already been issued by the International Court of
Justice in The Hague
B. No case of lis alibi pendens

Furthermore, Cameroon's application is not prevented from being admissible by the lis alibi
pendens rule, according to which a case may not be heard which is already heard by another
international court or tribunal. The lis alibi pendens rule is clearly not applicable on
Cameroon's application: In the case at hand, the case has been dealt with by the UN Security
Council and the OAU Committee for Conflict Management and Resolution, neither of which
is a judicial organ, therefore, the "case" is not "pending" elsewhere but only the problem of
Nigeria's illegal occupation of Cameroon's territory has been dealt with by different organs
too and the issue is far from being res judicata.
It would violate moreover the very basic idea of peaceful dispute resolution if this Court, the
most important judicial organ of the UN, was prevented from exercising its main function -
i.e. the protection of world peace, following already from the preamble of the UN-Charter
and Art. 1 (1) thereof - only because its members states already adhered to Article 2 (3) of
the same Charter before seeking the help of the Court to have justice done.
Consequently the principle of lis alibi pendens, even if a rule of international law and even if
applicable on the "proceedings" before the two aforementioned international organs - both of
which is denied by Cameroon - must not be applicable in cases in which international peace
and security are at stake and in which the danger of (further) acts of war is so imminent.
Therefore, Cameroon's application is not hindered by the lis alibi pendens-rule.
amount to 12 million barrels (before the discovery of Zafiro and other Fields the daily production in Equatorial
5
Chapter II: Economic issues
Nigeria is already an oil-rich country and does not necessarily need more oil but a better
management of the already existing oilfields in order to generate more revenue which
then has to benefit not only a few but the entire population.
Corruption and mismanagement are generally the major obstacles between natural
resources and the potentially resulting wealth of the civil population in the respective
countries.
If Cameroon and Equatorial Guinea are also enabled to make use of the regions natural
resources, a relative Zone of prosperity could be established in the Gulf of Guinea region
which in turn could lead to increased trade relations between the nations in the region,
which can - due to Nigeria's sheer size and population - to increased Nigerian exports into
the neighboring countries and eventually the West African Economic Block, which in the
long run could also benefit from a Gulf of Guinea Zone of relative prosperity, in turn
increasing Nigerian exports.
Consequently, Nigeria does not need to have full access to the entire Gulf of Guinea oil in
order to benefit from the region's natural resources. After more than two years of
allegedly democratic rule in Nigeria, one of the worlds most important oil-exporters
cannot even provide sufficient energy for its own people.
A Gulf of Guinea Zone of prosperity will also have to result in increased trade relations
between , eventually leading to a free trade area including Cameroon and Nigeria. The
Lake Chad region could serve as a model for such a free trade zone, enabling free trade,
freedom of cross-border services and workers' (including farmers and fishermen)
movement in a clearly defined area, as a kind of small Schengen zone in Africa, finally
overcoming artificial colonial boundaries and enabling the peoples of the region to built a
better future for themselves without the necessity to seek recourse to armed conflict:
Guinea was only 7,000 barrels), .converger.com/eiacab/eqguinea.htm.

6
Chapter III: Security considerations
Apart from the fact that economic stability and cooperation is the best way to prevent
armed conflict as the Unification of the European Continent and especially French -
German relations after World War II show clearly, a continuing standoff with Cameroon
could easily turn into a shooting war in case the internal situation in Nigeria changes so
that the government sees a foreign enemy as the last chance to unite the country.
Concentrating the nation's armed forced on a war against Cameroon would also mean that
the predominantly muslim northern provinces may consider an attempt to gain
independence, the government may be overthrown, now that by February 2002 already 25
% of the country were under military rule or control in one form or another, or a
concentration Nigerian troops in the Southwest loyal to the Biafran Independence
Movement could force a Second Biafran War, first leading to Biafran Independence,
before then making its own move towards Bakassi and its oil fields.
But also legal issues should convince the Federal Republic of Nigeria to rethink her
ambitions towards Bakassi and the Lake Chad Area:
7
Chapter IV: The merits of the case
A. Sovereignty over Bakassi and the territorial integrity of Cameroon
I. Introduction
Firstly, Cameroon claims the sole sovereignty over the Bakassi Peninsula. In order to have
sovereignty over a territory, the claimant must have title to the territory,14 i.e. evidence of
rights to the territory in question, as this Court held both in Burkina Faso v. Mali15 and El
Salvador v. Honduras16.17 It will now be shown that Cameroon is the only state having rights
with regard to Bakassi or at least has the better rights to Bakassi, which is sufficient to award
title over Bakassi to Cameroon.18 In detail, it will first be shown that sovereignty over
Bakassi was Cameroonian on 21 December 1993, when Nigeria aggressively invaded the
Peninsula, secondly that sovereignty over Bakassi is still Cameroonian today.
II. Before 1993
1. Sovereignty over Bakassi before 1884

To begin, the applicant's title can clearly be based on discovery. According to the rules of
intertemporal international law and especially to the award in Affaire Des Grisbadarna19 the
law in force at the time in question is relevant20 and in the 15th and 16th century, discovery
alone was sufficient to create a complete title.21 Even if the Court follows the later and more
strict approach in Island of Palmas that discovery must be accompanied by occupation,22 the
fact that ethnic groups which are today part of the Cameroonian people settled in Bakassi
since at least the 15th century ensures that this requirement is fulfilled, too:
14
Shaw, p. 334.
15
ICJ Reports 1986, pp. 554 et seq., at p. 564.
16
17
Shaw, p. 334.
18
cf. on the relativity of title to territory Shaw, p. 334.
19
Affaire Des Grisbadarna (Norway v. Sweden), 9 RIAA 147, 23 October 1909.
20
Ipsen, p. 215; Right of Passage over Indian Territory Case, ICJ Report 1960, p. 37.
21
WE Hall, International Law, 8th ed., 1924, p. 126; Ipsen, pp. 252 et seq.; Sharma, p. 40; 3 JHW Verzijl,
International Law in Perspective, p. 325.
22
Island of Palmas Arbitration (Netherlands v. US), 2 RIAA pp. 829 et seq. (1928).
8
Since at least the 15th century the territory in question has been occupied and governed by
populations of Cameroonian origin, especially of the Bakole, Bakweri and Bakossi peoples,
which belong to the larger ethnic group of the Sawa, which today lives in south-west
Cameroon. Moreover, the name known for the territory in question is Cameroonian, meaning
"they have welcomed" in Dualan language. (Today Duala is the most populous city of
Cameroon.) Even the respondent also refers - as the international community does23 - to this
territory as "Bakassi", using only the Dualan, i.e. Cameroonian, terminology.
The Nigerian claim that Bakassi is "Efik" territory in the State of Cross River,24 which is
allegedly based on the results of a UN fact finding mission,25 is of no value whatsoever as it
has also been admitted that the Ndian Creek which is a side-river to the Akpayafe River is the
ethnic boundary between the local Efik speaking (i.e. Nigerian) and Bantu speaking (i.e.
Cameroonian) peoples.26
In Island of Palmas it has furthermore been held that the title must exist over the whole
period between its coming into existence and the time in question,27 i.e. the date of the
Cameroonian application, 29 March 1994, evidence for which will be given in the following
paragraphs, beginning with the pre-colonial agreements concluded by local indigenous
population.
2. Treaty law on the matter during the colonial era
a) Introduction: pre-independence treaties binding on Cameroon and Nigeria

As Cameroon is the legal successor28 of the peoples who first discovered Bakassi,
Cameroon's title over Bakassi is firstly based on discovery. If the respondent should claim
that at the time in question native African peoples were not regarded as subjects of public
international law and therefore were not able to obtain title over territory, the Court's
attention is drawn to the fact that treaties were concluded between the later colonial powers
23
From time to time the term "Bakasi" instead of "Bakassi" is used, mainly in the US and overseas, which
obviously makes no real difference.
24
Akak, pp. vii et seq.
25
Akak, p. ix.
26
Akak, p. 3.
27
Island of Palmas Arbitration (Netherlands v. US), 2 RIAA pp. 829 et seq. (1928).
28
The details of Cameroon's succession to the Duala peoples will be shown in detail below.
9
and the African peoples living in the respective territories. The existence of such treaties is
overwhelming evidence for the fact that both the native African peoples and the colonial
powers were aware of the fact that the other side was able to have and in fact had rights and
duties under international law, although the concept of a nation-state was more advanced in
Europe. If any legal body at this time would have considered the Duala and the other African
peoples not to be able to hold rights under international law, there would have been no need
for any agreements, treaties and cessions by the local rulers in the first place, which by the
way were the most important means of acquisition of territory in Africa,29 what has also been
recognised by the honourable Court in the Western Sahara Case30 as well as by the arbitrator
in Island Palmas.31
Moreover it has been held in Cayuga Indians32 that indigenous tribes in fact do have legal
rights as peoples although they might not have an international status. The Court is therefore
asked to overrule Libya v. Chad33 in which it ignored the interests of the indigenous
inhabitants34 on the basis of Cayuga Indians35 and to accept the legal capacities of the Duala
in the context of this case and the subsequent legal title of Germany to the territory in
question.
b) The 1884 agreements between the Deutsche Reich and the Douala-Chiefs and the
hinterland doctrine
The Duala have concluded valid treaties with the Deutsche Reich and thereby transferred
tittle over the Bakassi territory and other territories to Germany, enabling Germany to annex
the hinterland in accordance with the hinterland doctrine in 1884.
The hinterland doctrine followed from the contiguity principle,36 which was generally
accepted by both scholars37 and by the ICJ in the Land, Island and Maritime Frontier Dispute
(El Salvador v. Honduras, Nicaragua intervening)38 as well as by the PCIJ in the Eastern
29
Shaw, I, p. 33; Sharma, p. 139; O'Connell, International Law I, 2nd ed., p. 470.
30
ICJ Reports 1975, p. 39.
31
2 RIAA, p. 858.
32
6 RIAA 173 (1926).
33
ICJ Report 1994, at p. 38.
34
Sharma, p. 237.
35
6 RIAA 173 (1926).
36
Sharma, pp. 52 et seq.; Greig, pp. 160 et seq.
37
cf. Lauterpacht, 27 BYIL (1950) pp. 428 et seq., at p. 429.
38
ICJ Reports 1992, pp. 351 et seq., at p. 570, there para. 351.
10
Greenland Case39 and was of practical relevance until at least the end of the 19th century,
when the European powers began to determine their colonial boundaries by agreement.40
Although it might be argued that the Island of Palmas Arbitration may preclude the principle
of contiguity as a rule of international law, it is doubtful whether this was the intended effect
of the arbitrary award41 and as the U.S. did not rely solely on the contiguity principle, the
award was in some way obiter.42 Furthermore even in Island of Palmas it was admitted that
contiguity is of some legal value43 and Judge Levi Carneiro even held in Minquiers and
Ecrehos44 that the hinterland doctrine was a rule of international law.45 Furthermore the
hinterland doctrine has been the basis of the decision in the Boundary between British
Guyana and Brazil Arbitration46, 47
and notions to the effect that the hinterland doctrine
would not be part of international law mean nothing more than that a certain relation is
required between the colonial power and the assimilated territory.48
Even if the Court is of the opinion that Article 35 of the Final Act of the 1885 Berlin
Conference not only required a certain form of government49 but also rejected the hinterland
doctrine, what Cameroon denies, this would have no effect on the acquisition of
Cameroonian territory by Germany in 1884, first of all for the reason that the Conference was
held only after Germany had acquired all of Cameroon and secondly the Final Act applied
only between the European powers but not with regard to the direct acquisition of territory
from African sovereigns.50
Furthermore Article 10 of the 1919 Convention of St. Germaine-en-Laye, which superseded

the 1885 Final Act,51 is not applicable as it lacks any retrospective effect.
39
1933 PCIJ Ser. A/B, No. 53, pp. 45 et seq., at p. 46; cf.; Waldock 25 BYIL (1948) pp. 321 et seq., at p. 344.
40
Sharma, p. 53.
41
Lauterpacht, 27 BYIL (1950), pp. 428 et seq.
42
Lauterpacht, 27 BYIL (1950), pp. 428 et seq.; cf. Island of Palmas Arbitration (Netherlands v. US), 2 RIAA
pp. 829et seq., at p. 855.
43
2 RIAA pp. 840 et seq., at p. 855.
44
ICJ Reports 1953, pp. 99 et seq.
45
46
cf. British Foreign and State Papers 99 (1905 - 1906), p. 930.
47
Lauterpacht, 27 BYIL (1950), pp. 428 et seq., at p. 428.
48
D.P. O'Connell, International Law, Vol. I, 2nd ed., 1970, p. 420.
49
Westlake, International Law I (1910), pp. 119 et seq.
50
Shaw, p. 38.
51
Sharma, p. 70.
11
Moreover, the legal value of the contiguity principle and therefore of the hinterland doctrine
has to be determined on a case-to-case basis52 and the hinterland doctrine was a requirement
accepted by both Germany and the UK when defining the boundary between Cameroon and
Nigeria, as the "hinterland boundary was subsequently defined up to Lake Chad".53
c) Treaties between 1884 and 1918

Being the legitimate colonial power over i.a. Cameroon, Germany concluded a number of
treaties with other colonial powers to determine the course of boundaries between several
colonies. With regard to Cameroonian-Nigerian boundary, a number of agreements were
concluded with the United Kingdom, then colonial power of Nigeria.
Even if there has been an agreement to the effect that an alleged River named Rio del Rey,
which as the UK later admitted did not exist as such,54 would be the basis for the boundary in
question, a treaty was concluded in 1886 which determined as boundary between Cameroon
and Nigeria a line from the left bank of the Calabar River (also referred to as Old Calabar55)
to a point nearby and east of Yola,56 what put Bakassi on the German side.
In the Anglo-German Treaty No. 270 of 1 July 1890, the Akpayafe River was considered to
be navigable by both parties57 and a treaty concluded on 11 March 1913, which superseded
all previous treaties in accordance with the lex posterior-rule,58 provided that the boundary
would follow the Akpayafe River and that Bakassi shall remain German, i.e. Cameroonian,
even if the course of the Akpayafe should change to the effect that the Akpayafe would flow
into the Rio del Rey, i.e. the creeks which form the Rio del Rey area.59
Furthermore Germany exercised state functions in the region between Rio del Rey and
Akpayafe as early as 1894.60 Consequently Bakassi remained part of Cameroon.
52
cf. D.P. O'Connell, International Law, Vol. I, 2nd ed., 1970, p. 420.
53
Geary, cited at Akak, p. 16.
54
Anglo-German Treaty No. 270, Article IV (2), 1 July 1890.
55
Ede, p. 294 and Akak, p. 36.
56
Aka, p. 19; Anene, p. 71.
57
cf. Akak, p. 21.
58
cf. Akak, p. 27
59
Art. 20 of the treaty between Germany and the UK concluded in London on 11 March 1913.
60
Akak, p. 24.
12
The 11 March 1913 treaty was affirmed by the 12 April 1913 treaty. The fact that the latter
required ratification by both states parties which due to the outbreak of WW I could no be
achieved any more might affect the validity of the April treaty but not the validity of the
earlier March treaty which clearly made Bakassi a German territory.
Unfortunately the respondent doubts the validity of the aforesaid agreement as there has been
due to the outbreak of WW I no factual demarcation of the boundary in question.61 This
might be of interest in the Common Law tradition in which a contract requires a certain
consideration to be valid,62 but does certainly not apply to international law. To the contrary,
the outbreak of WW I, which has its origin in a Serbian-Austrian and not in an Anglo-
German dispute, constituted no dramatic change of circumstances in the relations between
Germany and the UK to the effect that the 1913 treaty would have lost its validity.63 But
"international law [...] does not preserve treaties or annul them regardless of the effects
produced. It deals with such problems pragmatically, preserving or annulling as the
necessities of war exact. It establishes standards but it does not fetter itself with rules":64 First
of all, the ipso facto termination of treaties should be the exception and not the rule, which
has been accepted for long,65 not to mention the fact that the state practice has in so far been
extremely inconsistent.66 Although it might have been held at the time in question that the
outbreak of war terminated all (bilateral) treaties between the belligerent parties,67 it shall be
borne in mind that both legal scholars68 and the later Vienna Convention on the Law of
Treaties, which in large parts simply declares what has so far been customary law, deny any
effect of a rebus sic stantibus on treaties concerning boundaries,69 which at least is an
indication against a termination of the London Treaty by the outbreak of WW I.
Moreover, the UK occupied Bakassi less then 18 months after the conclusion of the 1913
treaty,70 thereby producing overwhelming evidence for the fact that Bakassi was German and
61
Akak, p. 27.
62
Smith & Keenan, pp. 202 et seq.
63
so claimed by Akak, p. 36.
64
Justice Cardozo, in: Techt v. Hughes, 229 N.Y. pp. 222 et seq. (1920) at p. 241.
65
cf. the Harvard Draft Convention on the Law of Treaties, 29 AJIL 1935, Special Supplement, Part III.
66
Delbrück, 4 EPIL (1982), pp. 310 et seq., at p. 311.
67
cf. Akehurst, pp. 145 et seq.
68
Delbrück, 4 EPIL (1982) pp. 310 et seq., at p. 312.
69
Article 62 (2) a Vienna Convention on The Law of Treaties.
70
Akak, p. 28.
13
not British in 1913 as there would have been no necessity to do so if Bakassi would have
been British in the first place.
Furthermore, even if conquest could confer title over territory in the 19th century, not only
was this no longer possible in 1914 but in order to confer title (if at all), conquest had to be
accompanied by the recognition of other states.71 Otherwise the title would remain inchoate.72
The alleged "conquest" of Bakassi by the UK was not recognised by other states during the
course or after the end of WW I.
Even if this belligerent occupation could constitute title over territory during WW I, what
Cameroon denies, the fact that all of Cameroon was place under the mandate system of the
League of Nations makes clear that the UK did not have any title to the territory in question
as all results of military activities during WW I were overruled by the Versailles treaty,
which, according to the lex posterior rule, the Versailles treaty being the later rule in relation
to the alleged (customary) law which provided for acquisition of territory by conquest. This
view is supported by the fact that peace treaties overrule the suspension of treaties by war,73
if there was any in the first place.
Furthermore, the UN Secretary General allegedly later affirmed the 1913 treaty in so far as
that even a change of the course of the Akpayafe River could not have any effect on the fact
that Bakassi is German, i.e. Cameroonian.74
The view that a lack of change of course of the Akpayafe would mean that Bakassi is British,
i.e. Nigerian,75 cannot be followed for the reason of the clearness of the wording of Article 20
of the 1913 Treaty, which states that Bakassi shall in any case remain German, i.e. that
Bakassi already became German territory at latest on 11 March 1913.
71
Wright, 26 AJIL (1932) pp. 342 et seq.
72
Sharma, p. 146.
73
Westlake, International Law, Vol. 2, 1907, p. ???.
74
cf. Akak, p. 46.
75
so Akak, p. 46.
14
3. Cameroon under the mandate and trusteeship systems
The mandatory and later the administrative powers of both the League of Nations and the UN
mandate respectively trusteeship system reaffirmed the borders as they existed before the
outbreak of WW I.
Consequently both Nigeria and Cameroon are bound to agreements concluded by their then
colonial or administrative powers prior to the independence of both states.
According to the general principle of pacta sunt servanda,76 Nigeria has to comply with the
aforementioned agreements. By disrespecting Cameroon's sovereignty over Bakassi, Nigeria
violated its obligations arising out of the aforementioned treaties.
Even if the Court is of the opinion that former colonies may opt for an alleged "clean slate
doctrine", i.e. that treaties concluded by colonial powers are not binding upon former
colonies after they became independent, Nigeria is bound to respect Cameroon's sovereignty
over Bakassi by both the 1961 referendum and agreements it concluded with both Cameroon
and other states after gaining independence:
4. uti possidetis
First of all, the fundamental interest of the stability of territorial situations every state has and
the principle of quieta non movere77 as well as the principle of uti possidetis clearly confirm
Cameroon's title over Bakassi. Uti possidetis demands the respect for the status quo and the
boundaries inherited from the colonial era78 and therefore also for the boundary between
Cameroon and Nigeria which clearly places Bakassi on the Cameroonian side.
The principle of uti possidetis, although originally applied in Latin America to settle issues of
decolonisation and boundaries, is nowadays generally recognised as a general principle of
international law,79 which has been accepted by both the ICJ in the Case concerning the
Frontier Dispute between Burkina Faso and Mali80 and scholars of international law.81
76
Which has been recognised in general since Roman times and in special in Article 26 VCLT as codified
customary international law.
77
cf. De Visscher, Theory and Reality in Public International Law, (translation by Corbett), p. 209.
78
Simmler, p. 297.
79
Opinion No. 3 of the Badinter-Commission.
80
81
Sharma, p. 121; Simmler, pp. 29, 284 et seq.
15
Consequently, the principle of uti possidetis, to which both Cameroon and Nigeria adhered in
the Cairo Declaration, prevents the respondent from claiming the Bakassi Peninsula.
If the respondent for whatever reason should claim that the principle of uti possidetis should
not only be applied on colonial powers but also on ethnic groups and if Nigeria should bring
forward a claim to the effect that "ethnic Nigerians", i.e. ethnic groups now mainly located in
Nigeria, should be the "historical inhabitants" of Bakassi, what Cameroon denies and will
give evidence against,82 the limits of the principle of uti possidetis are to be noted: Uti
possidetis does neither apply to ethnic groups nor imply a right to secession,83 furthermore
exist neither indications nor evidence that the idea of uti possidetis could be separated from
the idea of the nation state.84
Even if the Court does not hold Cameroon's claim based on the principle of uti possidetis to
be sufficient to entertain out application, Cameroon's claim is also based on relevant and
binding and applicable treaty law, which supersedes the uti possidetis - principle,85 a fact that
follows from Art. 11 of the 1978 Convention on the Succession of States in respect of
Treaties and which has been affirmed by the ICJ in Libya v. Chad.86 A recourse to "equity"87
is therefore excluded and all of Bakassi is to be understood as being part of the territory of
not only the trust area of Cameroon but also of the Republic of Cameroon, as the following
paragraphs will show:
5. The 1961 referendum

Furthermore was the legal status of Bakassi affirmed in the referendum held on 11 and 12
February 1961 by the people of the Southern Cameroons. Despite claims to the contrary by
the so called Federal Republic of Southern Cameroons and the Republic of Ambazonia, non
of which enjoys recognition by the international community, and presumably also by the
respondent, this referendum was a legally valid expression of the self-determination of the
82
This issues will be addressed in more detail in the following paragraphs.
83
Simmler, pp. 294 et seq.
84
Simmler, p. 295; Dinh / Daillier / Pellet, No. 313, p. 460.
85
Shaw, p. 358; Oppenheim, p. 663.
86
ICJ-Reports 1994, pp. 6 et seq. at pp. 38 et seq.
87
cf. Shaw, p. 359 and the ICJ's decision in Burkina Faso v. Mali, ICJ Reports 1986, pp. 554 et seq., at p. 633.
16
people living in the Southern Cameroons: With 94 % of eligible voters attending, 70 % voted
for becoming part of Cameroon. This vote was confirmed by UNGA-Res. 1342 (XIV)88
Furthermore the people of the Southern Cameroons also were the original population as
required by the UNGA in the 1967 Gibraltar Referendum.89
Despite the fact that the Court may until now not have followed a clear line on the use of
referenda,90 referenda are not only accepted91 but also required under international law92 as
means to determine the fate of a people. This requirement may even enjoy the status of ius
cogens to the effect that a boundary determined by means of a referendum must not be called
into question anymore at any time in the future.93 Even if the requirement to hold a
referendum itself is not ius cogens, it follows not only directly from the principle of self-
determination (which itself is both ius cogens94 and even "the new paradigm of international
law"95 after already having been a major political principle during the era of the league of
nations,96 a legal right since the creation of the UN97 and either a general principle of
international law98 or at least customary law99) but also forms the very core thereof.100
Consequently the results of such a referendum should be of an equally binding nature and
therefore this confirmation of the legal status of Bakassi should be respected if not as ius
cogens than at least as directly following from a rule of ius cogens, i.e. the right to self-
determination. Therefore the result of the referendum, giving Bakassi to Cameroon, cannot
by overruled except by other ius cogens, e.g. by a new referendum. It will now be shown that
88
see also Farley, (1986) p. 40; Merle (1961), p. 444; Vignes (1963) pp. 302 et seq.
89
Peters, p. 61; Harris (1991), p. 124.
90
Peters, pp. 71 et seq.
91
Peters, p. 64; Franck (1976) p. 701.
92
UNGA-Res 637 (VII), 16 December 1952.
93
Schätzel, 2 AVR (1950), pp. 1 et seq. at p. 26.
94
Gross Espiell (1979), pp. 167 et seq.; Cassesse (1981), p. 111; Kiss (1986), p. 174; Eyassu (1989), p. 72;
Brownlie4, p. 515; Carreau (1991), pp. 76 et seq.; Seiffert (1992), p. 54; Blumenwitz (1992), p. 123;
Hannikainen (1988), p. 421; Sharma, p. 213, there fn. 111 and p. 327; Shaw, p. 91; Suzuki, 16 Va. J. Int'l L.
(1976), pp. 790 et seq., at p. 841.
95
Gusy (1992), p. 385.
96
Peters, pp. 324 et seq.; Rabl (1973), pp. 96 - 193; Buchheit (1978), p. 4; Klein (1990), p. 19.
97
Doehring (1974), p. 18.
98
East Timor Case, ICJ Communiqué No. 95/19 bis, 30 June 1995, p. 3; Friedlander, in: Alexander /
Friedlander, Self-Dertermination, National, Regional and Global Dimensions, p. 321.
99
Shaw, Title to Territory in Africa, (1986) p. 89; Rigo Sureda, The Evolution of the Right of Self-
Determiniation, pp. 26 et seq.; McDougal / Reisman, p. 164.
100
Heidelmeyer (1973) p. 247.
17
the subsequent treaty law did not only not overrule the result of the referendum but even
confirmed it:
6. The OAU Cairo Declaration of 21 July 1964

First of all, Nigeria is bound by the Cairo Declaration in which the OAU member states
declared to be bound by the de facto boundaries existing at the time the former colonies
achieved independence.101 This agreement has been considered to be a binding rule of
international law by the ICJ in Burkina Faso v. Mali.102
7. The Maroua Declaration 1975

Cameroon's sovereignty over Bakassi was once more confirmed by the Maroua Declaration
of 1 June 1975. The respondent nevertheless claims the invalidity of this agreement.
It may be argued that the 1975 agreement lacked the consent of the Nigerian Supreme
Military Council and therefore has never been ratified.103 But this is more than doubtable in
the case at hand as not only on one but on both sides not mere representatives but the
respective heads of state concluded the treaty themselves in their official function, thereby
expressing their states' intention to be bound. Moreover numerous treaties which would
require ratification are not ratified in praxi as ratification is a very time consuming process,
what nevertheless does not affect the states' will to be bound by the treaty.104
Moreover, although it means an important change for the state as such, ratification is not
always required when states agree to a change of territorial jurisdiction and control.105
Furthermore, it may be claimed that the Nigerian general public was not informed in detail
about the Maroua Declaration. Even if this is the case, what Cameroon denies, it is not
necessary that the general public is informed about each and every treaty concluded by the
state in detail in order to achieve the validity of the treaty in question, mainly because this
might not be possible due to the restricted (financial, communicational etc.) means of the
state or for reasons of secrecy. This is even more true if the Court takes into account the
101
cf. OAU AGH/Res. 16 (I), Point 2.
102
103
Then Nigerian Minister of Foreign Affairs, Bolaji Akmyem, cited at: Akak, p. 56.
104
Akehurst, p. 132.
105
Buerstede, 12 EPIL (1990) pp. 230 et seq., at p. 231.
18
special circumstances in Nigeria at the time in question: The military government had to be
afraid of a violent end to its rule, which was not so far fetched as the killing of Lt. Col.
Gowon showed, and Nigeria therefore already was in a very unstable condition. Had the
general public outside the Bakassi area had learned about the agreement, which by the way
only confirmed the legal status of Bakassi as Cameroonian, it might have been used as a
reason to overthrow the Nigerian government and to destabilise not only Nigeria but the
entire region.
Therefore, even if the Court is of the opinion that the accord should have been made more
public in Nigeria in order to be binding upon the Federal Republic, the conduct of the then
Nigerian government was justified on the grounds of the necessity to uphold the peace of the
nation and therefore the Court is asked no to regard the non-publication as preventing the
validity of the agreement.
Moreover, it has been claimed that the then head of state, Gowon, had acted ultra vires in
signing up to the 1975 Declaration.106 Not only that heads of state, heads of governments and
foreign ministers are always considered to be authorised to conclude a treaty,107 what serves
the interest of all parties concerned in the certainty of the law, Gowon was also military ruler
of Nigeria and as such his supreme powers over the respondent nation were not to be doubted
by neither the Nigerian government nor any state agencies at the time being nor Nigeria's
citizens. It is in this context of special interest that only the later military ruler of Nigeria,
Brigadier General Murtala Mohammed, who came to power after a coup de état against Lt.
Col. Gowon, renounced the 1975 agreement. Furthermore it is more than likely that
Mohammed's attempt to annul the Maroua Declaration was of not the expression of a legal
opinion but only of some propagandistic value as both the coup de état and the declaration
that the Maroua agreement were null and void came very shortly after the actual day Gowon
and then Cameroonian head of state Ahidjo had entered into the bilateral treaty in question.
In this context it shall be noted by the Court that the present head of state of Nigeria,
President Obasanjo, was not only involved in the coup de état against Gowon and Chief of
106
Akak, p. 56.
107
Bronwlie, p. 610, there fn. 24.
19
staff Supreme Headquarter in the Mohammed Regime but also succeeded Mohammed in
ruling over Nigeria after Mohammed had been killed in a failed coup attempt.108
Although a later head of state of Nigeria Murtala Mohammed declared the 1975 agreement to
be "null and void",109 but such a unilateral termination of a treaty without the consent of the
other party is not possible, neither did Cameroon break the treaty, therefore Nigeria was not
entitled to terminate or suspend the treaty. Consequently, the declaration that the 1975
agreement were null and void is of no legal effect whatsoever.
Moreover, Cameroon has exercised state functions in the Bakassi area prior to and after the
1975 agreement, e.g. by issuing Decree No. 71/DF/30 on 17 January 1971 and by exercising
administrative functions relating i.a. to taxation matters, by defending the territory against
foreign occupation and by arresting and expelling illegal immigrants and criminals.110
Although there were some protests by Nigerian individuals and the governor of Cross
River,111 which all had been considered and in one case even led to the generous release of
Nigerian citizens who had entered Cameroonian territorial waters without permission and had
been arrested subsequently,112 the Federal Republic of Nigeria never formally protested.
Consequently, Nigeria is not a persistent objector to Cameroon's claim which on the other
hand is supported by the state practise and opinio iuris of numerous other (African) states.
8. Nigeria is not a persistent nor a subsequent objector to Cameroon's claim

If, what Cameroon denies in the first place, any or all of the treaties and agreements referred
to under 3. were invalid for whatever reason, and, as Nigeria claims and Cameroon denies,
even the Maroua Declaration were invalid, Bakassi is nevertheless part of Cameroonian
territory by virtue of (local) customary international law to the effect that Bakassi is
Cameroonian territory, which also applies to Nigeria, which is neither a persistent nor a
subsequent objector to Cameroon's claim. Cameroon's sovereignty over Bakassi is supported
by both state practice and opinio iuris by - i.a. - Nigeria:
108
cf. Tschentscher, http://www.uni-wuerzburg.de/ law/ni_indx.html
109
Akak, p. 56.
110
cf. Akak, pp. 46 et seq.
111
for details cf. Akak, pp. 48 et seq.
112
Akak, p. 48
20
In 1992, Nigerian Foreign Minister Okoi Arikpo stated that Bakassi were Cameroonian,
referring to the 1913 treaty between the UK and Germany.113 This example of state practise
even includes a reference to the related opinio iuris, i.e. the opinion that Nigeria is bound to
recognise this border as legal successor of the United Kingdom which as already mentioned
above concluded treaties with the Deutsche Reich, the then colonial power of Cameroon, in
1913, to which Nigeria then considered itself to be bound.
Furthermore, Cameroon's claim is supported by Nigerian Law No. 126 of 1954, numerous
official maps of the region issued by Nigeria and clearly showing Bakassi on the
Cameroonian side and diplomatic notes, such as Not No. 570 of 27 March 1962 from the
Nigerian Minister of Foreign Affairs and Relations with the Commonwealth to the
Cameroonian Embassy in Nigeria.
Moreover, the state of Nigeria itself has published maps which clearly show Bakassi as being
part of Cameroon.114
Even if the Court is of an opposing opinion, there is at least no customary international law to
the effect that Bakassi is Nigerian due to the frequent and regular protests by Cameroon.115
For all the reasons referred to above, sovereignty over Bakassi was Cameroonian on 21
December 1993, when the aggression by Nigeria took place. It will now be proven that since
then Cameroon has not lost the sovereignty over Bakassi.
III. 21 December 1993 - 29 March 1994: No Nigerian acquisition of sovereignty
1. Conquest and use of force

Today, the acquisition of territory by use of force is undoubtedly illegal under both relevant,
applicable and binding treaty and customary law. First of all, Art. 2 (4) UN-Charter prohibits
the use of force by Nigeria which as Cameroon is a member of the UN.
113
The Guardian Nigeria, Vol. 6 No. 4, 653, 22 March 1992.
114
Atlas of Nigeria by the Federal Ministry of Works Survey Department, cf. Soyinka.
115
In detail see below.
21
Furthermore, the acquisition of territory by use of force is prohibited by customary
international law: On the side of state practice, attempts to acquire territory by warfare have
been rare in the last decades, showing overwhelming evidence of a state practice to the effect
that title new territory is achieved in more peaceful ways. If we exclude discovery, accretion,
independence movements, referenda, newly formed states etc., which form cases of their own
which are not comparable to cases like the one at hand (in which one state claims title over
territory of another state, both of which already exist for quite a while), we find several
examples of such a state practice, not only in the pre-UN era as with the cession of the Island
of Palmas and Iloilo by the Treaty of Paris 1898, the cession of Alaska by Russia to the U.S.
in 1867, the sale of Danish West Indies Territories of St Thomas, St Johan and St Croix to the
U.S. in 1916, the sale of the Caroline Islands from Spain to Germany in 1899 but also in
relatively recent time, as e.g. with the Mundatwald.116
The state practice, which exists in the form of an absence of claiming territory from another
state by force, is at least for the UN-era based on an according opinio iuris, which found its
expression for example in the resolution 661 by the UNSC. In the 1970 Declaration of
Principles of International Law the UNGA considered acquisition of territory by use of force
as illegal. Furthermore, this view is supported by i.a. Art. 5 (3) of the 1974 UNGA Consensus
Definition of Aggression, and Art. 52 of the VCLT, which by now can well be regarded to be
customary law, too.
2. No prescription
a) No exercise of state functions in Bakassi by Nigeria

The respondent may claim sovereignty over Bakassi due to an alleged effective control of the
territory. Such a claim is obviously unfounded: It is true that in Island Palmas effective
control was considered an indicator for sovereignty but in order to avoid uncertainty as to
who the legal sovereign of the territory in question is and therefore to avoid conflicts over
116
on the French-German Mundatwald-Agreement 10 May 1984 cf. JO (Jounal officiel de la République
Française) 1985, 569; Ipsen, p. 249; Jutzi, Mundatwald und Sequesterland - Bereinigung letzter Kriegsfolgen
zwischen Deutschland und Frankreich, 24 AVR (1986) pp. 277 - 300; Buerstede, Mundat Forest, 12 EPIL
(1990) pp. 230 et seq.; Dünisch, Der Mundatwald - Zur Bereinigung letzter Kriegsfolgen zwischen Deutschland
und Frankreich, 1989; Verdross / Simms / Geiger, Territoriale Souveränität und Gebietshoheit, 1980; J. Myard,
L'accord du mai 1984 sur le Mundat, 31 AFDI (1985), pp. 884 - 892; Bertzle / Denger, Die deutsch-französische
Mundatwaldvereinbarung vom 10. Mai 1984 - ein kaschierter Sonderfriedensvertrag ?, 39 NJW 1986, pp. 1403 -
1044.; Fastenrath, Staatsrechtliche Probleme im Zusammenhang mit der Rückgabe des Mundatwaldes von
Frankreich an Deutschland, 101 DVwBl (1986) pp. 1039 - 1044.
22
disputed territory, only the legal sovereign and not the factual sovereign should be regarded
as having title under international law. A recent example even shows that the decision in
Island Palmas may even encourage the factual sovereign to go to war over such disputed
territory and thereby not only infringe the sovereign rights of the sovereign in law but also
endanger international peace and security: The Falkland / Malvinas - War was a result of the
fact that legal and factual "owner" of the disputed islands are different: The United
Kingdom's claim is based on factual possession and exercise of state functions since the
Argentineans were forced to leave the Islas Malvinas in 1833.117 Argentina's claim to the
contrary is based in discovery by France in 1764, possession since 1764, cession by France to
Spain in 1767 and the fact that for this region Argentina is legal successor of Spain.118 In
order to avoid future wars like the Falkland / Malvinas - War and bearing furthermore in
mind that the exercise of effective control has been regarded as a mere indicator for
sovereignty in Island Palmas, which by the way is only an arbitrary decision which is not
binding upon other parties, the Court is asked not to follow Island Palmas and not to consider
prescription alone a sufficient mode of acquisition of territory: The concept of acquisitive
prescription or usucapio may well work in the private law of different legal systems but there
has been no decision by an international tribunal whatsoever to the effect that the doctrine of
usucapio is endorsed also in the framework of international law.119
Not even in the Chamizal Arbitration,120 which has been cited as supporting prescription as a
rule of international law,121 prescription in fact has been invoked without success.122 Other
cases cited to support prescription as a means of acquiring title to territory under international
law like Grisbadarna,123 Walfish Bay Boundary,124 Alaskan Boundary125 and Eastern
Greenland126 are not strictly related to the topic in the first place and therefore are unfit to
support the idea of prescription as a rule of international law.127
117
Ipsen, p. 256.
118
Ipsen, p. 256.
119
Sharma, p. 113.
120
Chamizal Arbitration (Mexico v. U.S.), 9 RIAA 309 (1911).
121
Lauterpacht, Private Law Sources and Analogies of International Law (1927), pp. 176 et seq.; but cf. also
Blum, Historic Titles in International Law (1965), p. 22.
122
Sharma, pp. 113 et seq., there fn. 332.
123
Norway v. Sweden, 9 RIAA 22 (1909).
124
Germany v. United Kingdom, 9 RIAA 263 (1911)
125
98 British Foreign and State Papers 152 (1903).
126
1933 PCIJ Ser. A/B, No. 53.
127
Sharma, p. 113, there fn. 331.
23
b) No (peaceful and) uninterrupted possession
Even if the Court adheres to the idea that effective exercise of state functions can create a title
despite an earlier title, the Nigerian military presence in Bakassi does not amount to a actual
continuous and peaceful (in relation to other states128) display of state functions, which would
indicate sovereignty over a territory as held 1928 in the Island of Palmas Arbitration by
arbitrator Max Huber:129 Neither can the introduction of armed forces on Cameroonian
territory be considered peaceful, nor can the few weeks between the first day of the Nigerian
invasion and the filing of the Cameroonian application constitute a sufficient time to have a
continuos display of state functions,130 despite the fact that the requirement of a longer period
of control was denied in Island of Palmas.131 Furthermore, frequent protests as the ones
issued by Cameroon may under certain circumstances disturb the peaceful character of the
display of state activity (the existence of which in the case at hand Cameroon denies in the
first place).132
Even if the Court is of the opinion that the exercise of state functions may be different from
case to case - which, might be concluded from the Rann of Kutch133 and Western Sahara134
cases and the Dubai / Sharjah - Border Arbitration135 - and furthermore does in certain
exceptional cases not necessarily have to appear in a peaceful way, what Cameroon strongly
denies, the idea that peaceful and uninterrupted possession can confer title over territory upon
a state, does not apply to Nigeria, which has never "possessed" Bakassi, especially not
peacefully, the latter being at least a requirement for possession.
Even if the Court follows the very generous approach in Eastern Greenland136 and
Clipperton Island137 and therefore not only wishes to ignore the Indian claim in Rann of
128
Sharma, pp. 71, 100
129
2 RIAA pp. 829 et seq., at p. 840.
130
If, what Cameroon denies, the effective exercise of state functions can constitute a title over territory despite
an earlier title, it takes by far longer time intervals as e.g. in the Islas Malvinas-Case: The first British settlement
on one of the Islands close to the West-Falklands dates back to 1765, the French settlement Port Louis even to
1764.
131
cf. 2 RIAA pp. 829 et seq., at p. 867.
132
cf. Sharma, p. 100.
133
Annex I, 7 ILM 1968, pp. 633 et seq. at p. 674.
134
ICJ Reports 1975, pp. 12 et seq. at pp. 43 et seq.
135
91 ILR pp. 543 et seq., at pp. 585 - 590.
136
PCIJ Ser. A/B, No. 53, 1933, pp. 46 et seq.
137
26 AJIL (1932), pp. 390 et seq.
24
Kutch that usage were the main indicator for territorial sovereignty138 and considers such
merely symbolic acts as reference to Bakassi as a "Nigerian Peninsula"139 and the publication
of official maps which show Bakassi as being Nigerian (in combination with the illegal
presence of Nigerian forces), the time elapsed between the stationing of Nigerian forces in
Cameroon on 21 December 1993 and the filing of the application by Cameroon on 29 March
1994 is totally insufficient to establish a title to the territory in question. Furthermore the
applicant's claim has been frequently and regularly been protested against by Cameroon.
Moreover, the presence of a large number of seasonal Nigerian fishermen does not constitute
a legal title of Nigeria over Bakassi as the presence of nationals of a state in a certain area
like any other act of a non-sovereign and therefore "private" character is irrelevant except as
evidence of the fact of settlement and exploitation.140
3. Ex inuiria ius non oritur

Furthermore, one cannot win a right out of an illegal act (ex iniuria ius non oritur) and as the
use of force is in principle prohibited by Art. 2 (4) UN-Charter, Nigeria cannot not base its
claim on the - as will be elaborated in detail below - illegal occupation of the Bakassi
Peninsula. Ex iniuria ius non oritur is widely accepted as a rule of international law, by both
scholars and tribunals, e.g. by Lauterpacht,141 Guggenheim,142 Brownlie143 and others144 and
by the PCIJ in Eastern Greenland.145
4. No acquiescence by Cameroon regarding the Nigerian presence in Bakassi

Effective control of a territory by a state which wishes to acquire the territory in question
requires acquiescence on part of the losing state.146 The frequent and regular protests by
Cameroon show clearly that neither there is any acquiescence by Cameroon nor will there be
in the future.
138
The Indo-Pakistan Western-Boundary Case Tribunal, Award, 19 Febuary 1968, Introduction, Conclusions,
and Three Maps, Government of India Press, 1968, p. 145.
139
cf. the letter by the respondent to the UNSC, 4 March 1994, S/1994/258.
140
O'Connell, International Law, Volume I, 2nd ed., p. 482.
141
Lauterpacht, 62 Hague Recueil (1937, IV), pp. 287 - 296 and Lauterpacht, Recognition in International Law
(1947), pp. 409 et seq.; 421 et seq.
142
Guggenheim, 74 Hague Recueil (1949, I), pp. 195 - 268.
143
Brownlie5, pp. 513 et seq.
144
e.g. Verzijl, 15 RDI (1935), pp. 284 - 339.
145
1933 PCIJ Ser. A/B No. 53.
146
Akehurst, p. 150.
25
5. No recognition of Nigerian sovereignty over Bakassi by other states
Nigeria's alleged sovereignty over Bakassi has not been confirmed by recognition by other
states. To the contrary, in 1998 the U.S. published a document declaring Bakassi to be
located "in the south-west province of Cameroon",147 furthermore the US Energy Information
Administration published a map of Equatorial Guinea and the neighbouring countries which
also shows Bakassi as being Cameroonian.148 The same is true for numerous maps of Nigeria
and Cameroon published by private firms from different countries.
6. Estoppel: non venire contra factum proprium

Moreover, technical concepts as the principles of acquiescence and estoppel have to be
applied in territorial disputes, as the ICJ and the PCIJ already did i.a. in Minquiers and
Ecrehos,149 the Anglo-Norwegian Fisheries Cases150 and the Land, Island and Maritime
Frontier Case.151 Nigeria is prevented from claiming Bakassi as its own territory by the
principle of estoppel. Although aquiescence and estoppel may not be rules of substantive
law,152 what Cameroon denies, both principles are applicable in cases of uncertainty
concerning a boundary as also in Temple of Preah Vihear153 and Award of the King of
Spain154, 155
and are therefore also applicable in the case at hand. As already referred to
above, Nigeria and its legal predecessors have repeatedly accepted the fact that Bakassi is
part of the territory of Cameroon.156 This view has even been codified in a number of legally
binding treaties. Both Cameroon and the international community have an interest in the
certainty of the legal status of Bakassi and therefore the principle of estoppel, or non venire
contra factum proprium prevents Nigeria from now claiming the contrary, namely
sovereignty over Bakassi, especially as there has been no fundamental change of
circumstances.
147
CIA World Factbook 1998; cf. also http://terra. geo.orst.edu/users/tfdd/ register/table_footnotes.html.
148
cf. and http://www.eia.doe.gov/emeu/cabs/eqguinea.htm
149
150
151
ICJ Reports 1992, p. 401, para. 47.
152
so Shaw, p. 352; Jennings, Acquisition, pp. 47 - 51.
153
ICJ Reports 1962, pp. 6 et seq.; see also Johnson, 11 ICLQ 1962, pp. 1183 et seq.; Cot, AFDI 1962, pp. 217
et seq.
154
155
see also Shaw, p. 352.
156
cf. also below.
26
7. No rebus sic stantibus
It might be argued that a fundamental change of circumstances could lead to the invalidity of
the treaties referred to above which clearly determine the course of the boundary in question.
Nevertheless, there are no indications whatsoever for any fundamental change of
circumstances. Firstly, there is no need to say that the military occupation of Bakassi itself
due to its illegality cannot even be considered to be a sufficient reason under international
law. Secondly, it might be argued by the respondent that the comparatively large number of
Nigerian citizens living in the border area on Cameroonian territory might give a sufficient
legal basis to assume a rebus sic stantibus. For three reasons, this view cannot be uphold:
Despite the fact that the large number of Nigerian citizens who live and / or work (often only
temporarily) in the Cameroon-Nigeria border on Cameroonian territory is nothing new and
therefore no real change of circumstances, it is common all around the world that in border
areas a higher percentage of foreign nationals work or live than in other parts of a country
(exceptions being countries the borders of which are sealed off like e.g. between the two
Koreas). In former Yugoslavia ethnic Albanians live close to the Albanian border, ethnic
Hungarians in the Voijvodina; members of German speaking ethnic groups are found in the
French Alsace region which borders Germany and the Italian Alto Adige which borders
Austria; people of Latin American descent live in the Southern part of the U.S., namely
California, Texas etc., bordering Mexico; in the most northern part of Germany, close to the
Danish border, we find a strong ethnic Danish population which is even represented in State
Parliament with a Danish Party; in Northern and Eastern Estonia we even find a Russian
population which in a number of towns even exceeds the Estonian population by far, to name
but a few examples in none of which any change in sovereignty over the territory in question
is considerable.
Moreover, Nigeria itself has excluded prior to the illegal occupation of Cameroonian territory
that even a complete "occupation" of Bakassi by Nigeria would not affect Cameroon's
sovereignty.157 Therefore the principle of rebus sic stantibus does not support Nigeria's claim
either.
157
Nigerian Minister of Foreign Affairs, Okoi Arikpo, in: The Guardian Nigeria, Vol. 6, No. 4, 653, 22 March
1992.
27
8. Equity
Furthermore, it would be inequitable to award title over Bakassi to Nigeria as Cameroonians,
i.e. members of peoples which today live mainly in Cameroon, have settled in the area for
centuries. Moreover, the current status quo should be upheld not only to comply with the uti
possidetis principle but also in order to ensure a certainty of law on which third parties,
especially Equatorial Guinea, depend. Finally it would be inequitable and unjust if Nigeria
would after all benefit from its illegal acts.158
9. Conclusion
For all the reasons referred to above, Cameroon has a the only title to Bakassi or at least a
better title than Nigeria. Therefore the Court is asked respectfully to adjudge and declare that
sovereignty over Bakassi is Cameroonian.
B. Responsibility of Nigeria for unlawful use of force; withdrawal and reparations
I. Internationally wrongful act
1. Breach of international law: prohibition of the use of force and breach thereof
The use of force is prohibited by Article 2 (4) of the UN-Charter, which applies to both
parties, and ius cogens.159 Nigeria send armed troops to Bakassi, which is as said before,
Cameroonian territory. As any form of intervention is prohibited by ius cogens and Art. 2 (4)
of the UN-Charter,160 this deployment of foreign armed forces constitutes a breach of the
non-intervention rule and a breach of the peace in the region, regardless whether there had
been any actual fighting between Nigerian and Cameroonian forces or not.
In the past it has been argued that the "re-conquest" of allegedly own territory by use of force
does not amount to a breach of Art. 2 (4) of the Charter.161 Such an approach is incompatible
with the intention of Art. 2 (4) of the Charter and the historical context out of which evolved.
The UN-Charter is intended to create a comprehensive and globally complete system to
protect peace and security and leaves no disgression to the individual states to determine what
158
see below.
159
Nicaragua Case, ICJ Reports 1986, pp. 100 et seq.; Ipsen, pp. 943 et seq.
160
Ipsen, pp. 931 et seq.
161
e.g. by Iraq with regard to Kuwait, by India with regard to Goa and by Argentina with regard to the Malvinas
/ Falkland - Islands.
28
constitutes a breach of the aforementioned rule.162 It has moreover to be borne in mind that
Art. 2 (4) was included in the text of the UN-Charter on the request of smaller states which
were less capable to defend themselves for the very reason to prevent militarily powerful
states from determining when use of force is legal and when not. The respondent may argue
that in the Kosovo-War exactly this happened that a powerful military union set up its own
rules on when to act and has even been approved by parts of the international community but
as the Kosovo-War case but there has been no recognition of such a rule, not even by
Western states163 or at least only with the limitation to humanitarian intervention.164
Even if there should be a new rule of international law to the effect that states may decide
again on the legality of the use of force, which Cameroon simply considers to be a ridiculous
idea and the predictable end of the UN-system and therefore vehemently denies, such an
alleged rule would have entered into force only after Nigeria's illegal invasion in Cameroon
and is therefore not applicable.
Consequently Nigeria clearly violated its obligation towards Cameroon and towards the
international community which follows from Article 2 (4) UN-Charter and the
aforementioned ius cogens. Thereby the respondent committed an international crime
pursuant to Art. 19 (3) (a) of the Draft Articles on State Responsibility.
Not only did Nigeria use armed force against Cameroon, a 1999 publication which is based
on "studies" requested by the Federal Government, the Cross River State Government and the
Nigeria-Cameroon border dispute Panel of the Nigerian Federal Ministry of Justice even
includes the threat of a greater war involving not only Nigeria and Cameroon but also even
the United Kingdom on behalf of Nigeria. Furthermore this publication considers the
involvement of Germany and the UK in what is already called the "Bakassi War"165 a close
possibility.166
162
Ipsen, p. 937.
163
for Denmark cf. Danish Institute of International Affairs (DUPI), Humanitarian Intervention - Legal and
Political Aspects, 1st ed., Copenhagen, 1999, p. 122.
164
for the Netherlands cf. Adviesraad International Vraagstukken (AIV) / Commissie van advies inzake
volkenrechtelijke vraagstukken (CAVV), AIV Advisory Report No. 13, Humanitarian Intervention, 1st ed., The
Hague, 2000, p.
165
Akak, pp. vii, 1.
166
Akak, p. vii.
29
In the following paragraphs it will be shown that Nigeria is responsible for the illegal use of
force, which is not justified by any rule of international law and furthermore that Nigeria is
under an obligation to withdraw unconditionally and immediately and to pay reparations the
amount of which is to be determined by the honourable Court.
2. Attributable to Nigeria
The internationally wrongful act of using force and invading Cameroon is also attributable to
Nigeria. The armed forces of the Federal Republic of Nigeria are not only state organs, even
if the individual soldiers hold only a subordinate position,167 they also exercise a function for
the state.168
Even if the Court should be of the opinion that the armed forces of Nigeria acted against the
orders of their superiors in invading Cameroonian territory, what Cameroon strictly denies,
the illegal conduct of the Nigerian troops remains nevertheless attributable to the respondent
in accordance with Art. 10 of the 1998 Draft Articles on State Responsibility.
Moreover, if it should be argued by the respondent and held by the Court that the persons
who invaded the Cameroonian peninsula of Bakassi were only private Nigerian citizens and
not members of the regular armed forces, they clearly acted under the control or at least the
direction of the Nigerian government, as the following facts prove:
- the invaders were massively armed on a professional level, using equipment of the Nigerian
Armed Forces,
- the invasion followed numerous claims by Nigeria concerning Bakassi, i.e. the invasion was
intended to give Nigeria what it wanted for long,
- the whole action was well co-ordinated and executed on a highly professional level,
- Nigeria had already accused Cameroon that in the course of the dispute prior to the 1993
invasion several Nigerian troops had been killed by Cameroon's armed forces in 1981, so that
167
cf. Article 6 of the 1996 Draft Articles on State Responsibility.
168
cf. Article 5 (1) of the 1998 Draft Articles on State Responsibility.
30
it can be fairly assumed that the invasion also had the purpose of revenge for the alleged
killings by Cameroon and moreover
- Cameroonian "prisoners of war" were taken by the Nigerians.169
Therefore their acts are attributable to Nigeria under Article 8 of the 1998 Draft articles on
State Responsibility.
Even if this was not the case, what Cameroon also denies, and the "individuals" who invaded
Cameroon were acting e.g. in the context of some kind of Nigerian / Efik insurrection
movement against the legitimate Cameroonian rule in Bakassi, Nigeria is nevertheless to be
held responsibly for their conduct: Not only were the "insurrectors", if they were
"insurrectors" and not simply Nigerian soldiers in the first place, members of the armed
forces of Nigeria, they were at least somehow supported by Nigeria. E.g. the Nigerian claims
on Bakassi might well amount to such a support and as the claims were made by state
officials in their official functions they also are acts of state, which relate to another act by the
"insurrection movement" (if there is any in the first place, which is denied by Cameroon),
namely the invasion of Bakassi, the attributability to Nigeria is not excluded by Article 14 (1)
of the 1996 Draft Articles on State Responsibility as Article 14 (2) of the said Draft Articles
provides for an exception for such cases.
Moreover, even if the occupation had not been by the Nigerian Armed Forces and even if
there had been no aid by any Nigerian officials to the invading individuals, both of which is
denied by Cameroon, not later than since the Teheran Hostages Cases170 it is clear that a state
is also responsible for its failure to control such militant groups,171 especially when such
groups are not directed against the state in question but against third parties as the US in the
Teheran Hostages Cases or Cameroon in the case at hand (always bearing in mind that
Cameroon denies the allegation that the invasion of Bakassi was a "private" and not a state
operation). As the alleged individuals directed their actions not against Nigeria but directly
against Cameroon and as therefore Cameroon and the Cameroonians living in Bakassi were
169
ICRC, Lagos Regional delegation (Nigeria), Annual Report 1998.
170
Case concerning United States Diplomatic and Consular Staff in Teheran, ICJ Reports, 1980, pp. 3 at seq., at
pp. 29 et seq. and pp. 33 et seq.; Short v. Islamic Republic of Iran, 82 ILR pp. 149 et seq.; Yeager v. Islamic
Republic of Iran, 82 ILR pp. 179 et seq.; Rankin v. Islamic Republic of Iran, 82 ILR pp. 204 et seq.
171
Brownlie, p. 455.
31
not third-party-victims, the McNair Rules172 are not applicable in the case at hand as they are
clearly thought to apply if a insurrection movement from and in state A acts against state A
and citizens of state B are affected negatively by activities in this context, what is not the case
here as Nigerian individuals in Cameroon act against Cameroon and its citizens.
Consequently, the illegal use of force in invading Bakassi is in any case attributable to
Nigeria. In the following paragraphs it will be elaborated in the fact that this illegal act is
neither justified not excusable and that its wrongfulness is not otherwise precluded.
3. No consent by Cameroon
As Cameroon's long-time position in the dispute makes clear it did not at any time in the past
nor will it in the future consent173 to the presence of Nigerian forces on its soil. Therefore
Cameroon did not consent to Nigeria's illegal act.
4. No countermeasure by Nigeria
Furthermore the Nigerian aggression does neither constitute a legitimate retorsion or justified
reprisal nor a countermeasure according to Art. 30 of the 1998 Draft Articles on State
Responsibility for the lack of an internationally unlawful act on the side of Cameroon. It is
true and has been admitted by Cameroon that in the context of this dispute Cameroonian
forces accidentally killed five Nigerian soldiers on 16 May 1981 which were believed to have
entered Cameroonian territory despite the fact that the Cameroonians had left Cameroon
without noticing so.
But the time which has been elapsed between the 1981 incident and the use of force by
Nigeria in invading Bakassi in December 1993 makes it obvious that a countermeasure at
such a late stage violates the rule of good faith, which is not only customary law now codified
in Art. 26 of the Vienna Convention on the Law of Treaties and the 1970 UNGA Friendly
Relations Declaration but which also has been recognised in the Temple of Preah Vihear
Case174 and the Right to Passage over Indian Territory Case.175
172
McNair, International Law Opinions, Vol. II, 1956, p. 245 or 452.
173
cf. Article 29 of the 1998 Draft Articles on State Responsibility.
174
175
Portugal v. India, ICJ Reports 1960, pp. 6 et seq.
32
Although there have been cases in the past in which countermeasures, reprisals or retorsions
have not been taken immediately but only after a certain time as in the US response to the La
Belle bombing and the bombings of the US embassies in Kenya and Tanzania and the
subsequent attacks on Libya in the La Belle Case and Sudan and Afghanistan respectively,
but the only reason therefore was the fact that it needed to be determined who was
responsibly for the internationally wrongful act in these cases. In the case of the 1981 killing
of Nigerian troops by Cameroonian forces which accidentally had left Cameroonian territory
without realising so Cameroon did not at any time deny its fault and immediately offered
compensation. Therefore the 1981 incident for which Cameroon apologised cannot be
regarded as a legitimate reason for the 1993 invasion of Bakassi the latter consequently not
constituting a countermeasure and therefore not being justified by Article 30 of the 1998
Draft Articles on State Responsibility.
5. No self-defence
Moreover does the attack against Cameroon not amount to self-defence for the clear lack of
any prior Cameroonian aggression against Cameroon.176
6. No distress
Distress177 also cannot be invoked successfully by Nigeria to justify its use of force against
and invasion of Cameroon. It might be argued that the respondent had to save the lives of its
citizens in Cameroon but neither have the Nigerians nor any other aliens legally living in
Cameroon in danger, especially were they not endangered by the Republic of Cameroon
herself, nor was the respondent's activity not at all aimed at rescuing anybody but only at the
de facto occupation of Bakassi in order to support Nigeria's claim that it is part of her
territory.
7. No state of necessity
Furthermore has there not been a state of necessity out of which Nigeria acted as there has
there been a grave and imminent peril which had threatened any legitimate interest of the
state. It might be argued that an alleged title to territorial sovereignty over Bakassi was the
protected interest of Nigeria, but as such a title does, as has been proven above, not exist, it
can also not be invoked by the respondent.
176
On the 1981 incident see 4.
177
cf. Article 32 of the 1998 draft Articles on State Responsibility.
33
Even if the respondent wants to invoke the Bakassians' right to self-determination (if there is
such a right at as the "Bakassians" are not an ethnic group themselves but only the people
living in the Bakassi area of usually Cameroonian nationality) to justify its actions, the Court
is reminded of the fact that the destruction of states - as envisaged by Nigeria as far as it
concerns Cameroon - is not justifiable, especially not when as in this case the right to self-
determination has already been used,178 namely with the 1961 referendum and subsequently
within the framework of the Republic of Cameroon.
Moreover, even if, what Cameroon denies, there is a legitimate interest of Nigeria in Bakassi
and even if, what Cameroon also denies, there has been a state of necessity, the wrongfulness
Nigerian invasion and thereby the use of force by the respondent cannot be precluded as the
prohibition of the use of force is a peremptory norm of international law (ius cogens)179 and
as Article 33 (2) (a) of the 1998 Draft Articles on State Responsibility makes clear that a
violation of ius cogens cannot by justified by necessity.
8. Conclusion
For all these reasons, the stationing of armed forces on Cameroonian territory amounts to an
internationally wrongful act according to Art. 1 of the Draft Articles on State responsibility
and even to an international crime according to Art. 19 (3) (a) of the same document.
II. Art. 22 Draft Articles on State Responsibility: exhaustion of local remedies

It might be argued by the respondent that, as the invasion of Cameroon by Nigeria concerned
also the treatment of Cameroonians which are aliens in respect to Nigeria, Art. 22 of the Draft
Articles on State Responsibility has to be applied. This is not the case and would contradict
the intention and the meaning of the prohibition of the use of force: If in any case of use of
force, which usually includes some kind of "treatment" of the nationals of the victim state,
said nationals would have to exhaust all local remedies, i.e. bring forward claims against
Nigeria in either or both Nigerian and Cameroonian Courts up to the last instance, before
Nigeria could be held responsible. As the outcome of such proceedings in Nigeria and the
compliance of Nigeria with an eventual Cameroonian decision on this matter are easy to
predict, and as this would be the same in all other potential cases involving the use of force
178
Ipsen, p. 940.
179
Nicaragua Case, ICJ Report 1986, pp. 100 et seq.
34
and thereby the breach of the most fundamental rule of today's international law, it would
make no sense to apply Art. 22 on cases of use of force and especially not on cases of
unlawful invasion. Art. 22 should therefore be understood in so far as it should apply only to
treatment of aliens within the jurisdiction of the acting state, i.e. for the case at hand, the way
aliens are treated in Nigeria and not in Bakassi, which forms as said before an integral part of
the territory of the Republic of Cameroon. The Court is therefore asked to consider Art. 22 of
the Draft Articles on State Responsibility not applicable for the disputed matter and therefore
uphold Nigeria's responsibility under international law.
The following paragraphs will show that Nigeria is under a duty to offer restitution for its
internationally wrongful act as it violated its obligation which consequently leads to a duty to
ensure reparations,180 which has for long been recognised as a principle of international
law:181
III. Duty to withdraw

As the continuing presence of Nigerian armed forces constitutes an internationally unlawful
act of a continuing character, Nigeria is under a duty to withdraw its troops immediately and
unconditionally from Cameroonian territory by virtue of Art. 41 of the 1998 Draft Articles on
State Responsibility.
Not only does said Article 41 impose such a duty, the unconditional and immediate
withdrawal from Cameroon also forms part of the restitutio in integrum the victim state is
entitled to.
IV. Reparations, Compensation, Satisfaction etc.

The aforementioned duty to withdraw does furthermore does not preclude a duty of Nigeria
to pay reparations to Cameroon, to the contrary, the Republic of Cameroon is entitled under
Article 44 of the 1998 Draft Articles on State Responsibility to restitution in kind (restitutio
in integrum), as far as possible and reparation payments for the economic damage,182 both
material and immaterial, from which it suffered during the time of the illegal occupation, no
180
Spanish Zone of Morocco Claims Case, 2 RIAA pp. 615, at p. 641; Coence Bros. v. Germany, 4 Ann. Digest
(1927 - 1928), No. 389.
181
Factory at Chorzów Case, PCIJ Ser. A No. 9 (1927), p. 21; Reparation Case (Advisory Opinion), ICJ
Reports 1949, p. 184; Peace Treaties Case, ICJ Reports 1950, p. 228; Phosphates in Morocco (Preliminary
Objections), 1938 PCIJ, Ser. A/B, no. 74; Corfu Channel Case, ICJ Reports 1949, 1 et seq.
35
precluding further claims by Cameroonian citizens and legal entities on the basis of Nigerian
private law liability. This obligation to make reparation for an unlawful act is furthermore
considered to be a principle of international law and even a general conception thereof183 and
"one of the principles most deeply rooted in the doctrine of international law and most
strongly upheld by State practice and judicial decisions."184 The honourable Court is asked to
determine the amount of the reparations which are to be paid by Nigeria itself.
Moreover, Nigeria is under an obligation arising out of Article 45 of the aforesaid Draft
Articles to provide satisfaction for Cameroon by
- apologizing for the internationally wrongful act committed by its troops,
- the payment of nominal damages the determination of the amount of which is trusted to the
Court
and
- as already mentioned above, the payment of damages, which should reflect the dimension of
the violation of Cameroon's rights by the respondent.
Furthermore an in the light of the duration of the Bakassi conflict and with the intention to
settle the dispute once and for all by peaceful means, the Court is asked to adjudge and
declare that the respondent is under an obligation based on Article 46 of the 1998 Draft
Articles on State Responsibility to assure Cameroon that such unfortunate events like the
ones which had to lead to Cameroon's application will not be repeated.
182
cf. Article 44 (2) of the 1998 Draft Articles on State Responsibility.
183
Factory at Chorzów Case, 1928 PCJI Ser. A, No. 17, p. 47.
184
Ago, ILC Yearb'k, 1971 II / 1, p. 205.
36

Camerun Chad Dispute

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Camerun Chad Dispute

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Water, Oil and Blood:

The Cameroon-Nigeria Boundary Dispute regarding Bakassi Peninsula

This working paper is available free of charge from

A. Subject of the dispute

B. Facts of the case

II.: Admissibility of the Case before the ICJ

B. No case of lis alibi pendens

Guinea was only 7,000 barrels), .converger.com/eiacab/eqguinea.htm.

A. Sovereignty over Bakassi and the territorial integrity of Cameroon

II. Before 1993

1. Sovereignty over Bakassi before 1884

2. Treaty law on the matter during the colonial era

a) Introduction: pre-independence treaties binding on Cameroon and Nigeria

Furthermore Article 10 of the 1919 Convention of St. Germaine-en-Laye, which superseded

c) Treaties between 1884 and 1918

5. The 1961 referendum

6. The OAU Cairo Declaration of 21 July 1964

7. The Maroua Declaration 1975

8. Nigeria is not a persistent nor a subsequent objector to Cameroon's claim

III. 21 December 1993 - 29 March 1994: No Nigerian acquisition of sovereignty

1. Conquest and use of force

a) No exercise of state functions in Bakassi by Nigeria

3. Ex inuiria ius non oritur

4. No acquiescence by Cameroon regarding the Nigerian presence in Bakassi

6. Estoppel: non venire contra factum proprium

B. Responsibility of Nigeria for unlawful use of force; withdrawal and reparations

I. Internationally wrongful act

- Cameroonian "prisoners of war" were taken by the Nigerians.169

II. Art. 22 Draft Articles on State Responsibility: exhaustion of local remedies

III. Duty to withdraw

IV. Reparations, Compensation, Satisfaction etc.

- apologizing for the internationally wrongful act committed by its troops,

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