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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
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.
Hereinafter also referred to as "Cameroon" or "the applicant". 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
as the area is extremely oil-rich13 6 7 cf. Art. Jurisdiction of the Court: Art. 36 (2) (a) ICJS. 36 (2) (a) ICJS. which led to subsequent protests by Cameroon. letter dated 28 February 1994 (Doc. 8 cf. S/1994/228). 10 cf.: Admissibility of the Case before the ICJ A. 11 cf. Moreover. oil exploitation is one of the main economic fundaments of the country and in the area in question. 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. Cameroon not later than 3 March 1994 and the respondent on 14 August 1965. new large oilfields have been discovered by Mobil in March 1995 (i. the huge Zafiro Field) so that the reserves of Equatorial Guinea alone 4 . (2) ICJS: The case concerns not only but all possibilities mentioned in Art. 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.7 the Court is competent to decide on the merits of the case in accordance with Art. 26 (2) ICJS. 13 In Nigeria. north of Equatorial Guinea's Bioko Island and south of the Bakassi Peninsula. Art. Nigeria caused several frontier incidents and on 21 December 1993 even unlawfully invaded Cameroonian territory by massive use of force. which showed Bakassi as part of Nigeria. Art. 36 (2) (d) ICJS. Art. 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. 12 As required by Article 36 (2) ICJS. 36 (1). a. II. 36 (2) (c) ICJS. 36 (1) ICJS and Art. 9 cf. the Nigerian Government published a map in 1992. 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. 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 1994.11 Furthermore is the Court able to decide on the course of the maritime boundary between Nigeria and Cameroon.Despite the 1975 agreement.
e. neither of which is a judicial organ.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. following already from the preamble of the UN-Charter and Art. both of which are to be determined by international law. amount to 12 million barrels (before the discovery of Zafiro and other Fields the daily production in Equatorial 5 . Consequently the principle of lis alibi pendens. Cameroon's application is not prevented from being admissible by the lis alibi pendens rule. A decision to this effect has already been issued by the International Court of Justice in The Hague B. Consequently the Court is competent to decide on all aspects of the case brought before it by Cameroon. No case of lis alibi pendens Furthermore. according to which a case may not be heard which is already heard by another international court or tribunal. It would violate moreover the very basic idea of peaceful dispute resolution if this Court. the most important judicial organ of the UN. the case has been dealt with by the UN Security Council and the OAU Committee for Conflict Management and Resolution. The lis alibi pendens rule is clearly not applicable on Cameroon's application: In the case at hand.e. Cameroon's application is not hindered by the lis alibi pendens-rule. was prevented from exercising its main function i. 1 (1) thereof .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. which state will have the largest share of the oil-rich maritime area. even if a rule of international law and even if applicable on the "proceedings" before the two aforementioned international organs . the protection of world peace. 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. i.both of which is denied by Cameroon .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. 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. therefore.
converger. which in the long run could also benefit from a Gulf of Guinea Zone of relative prosperity. 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. Corruption and mismanagement are generally the major obstacles between natural resources and the potentially resulting wealth of the civil population in the respective countries. A Gulf of Guinea Zone of prosperity will also have to result in increased trade relations between .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.com/eiacab/eqguinea. in turn increasing Nigerian exports. one of the worlds most important oil-exporters cannot even provide sufficient energy for its own people. as a kind of small Schengen zone in Africa.to increased Nigerian exports into the neighboring countries and eventually the West African Economic Block. 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. Consequently. which can . 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. If Cameroon and Equatorial Guinea are also enabled to make use of the regions natural resources. enabling free trade.due to Nigeria's sheer size and population . freedom of cross-border services and workers' (including farmers and fishermen) movement in a clearly defined area. 6 . eventually leading to a free trade area including Cameroon and Nigeria. .000 barrels). After more than two years of allegedly democratic rule in Nigeria.htm. The Lake Chad region could serve as a model for such a free trade zone.
first leading to Biafran Independence.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. But also legal issues should convince the Federal Republic of Nigeria to rethink her ambitions towards Bakassi and the Lake Chad Area: 7 . 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. before then making its own move towards Bakassi and its oil fields. the government may be overthrown.
Right of Passage over Indian Territory Case. 325. pp. ICJ Reports 1986. p. at p. 21 WE Hall.Chapter IV: The merits of the case A. p. US). 22 Island of Palmas Arbitration (Netherlands v. which is sufficient to award title over Bakassi to Cameroon. 3 JHW Verzijl. p. International Law in Perspective. pp.. 564. 2 RIAA pp. Introduction Firstly. 40. p. 215. 8 15 14 . 126. 252 et seq. pp. Sovereignty over Bakassi and the territorial integrity of Cameroon I.e. 8th ed. p.14 i. as this Court held both in Burkina Faso v. Cameroon claims the sole sovereignty over the Bakassi Peninsula. 37.18 In detail. 351 et seq.. when Nigeria aggressively invaded the Peninsula. on the relativity of title to territory Shaw. Sovereignty over Bakassi before 1884 To begin. ICJ Report 1960. II. secondly that sovereignty over Bakassi is still Cameroonian today.21 Even if the Court follows the later and more strict approach in Island of Palmas that discovery must be accompanied by occupation. the claimant must have title to the territory. Sharma. it will first be shown that sovereignty over Bakassi was Cameroonian on 21 December 1993.17 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. 23 October 1909. In order to have sovereignty over a territory. too: Shaw. 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. 18 cf. 20 Ipsen. Ipsen. 19 Affaire Des Grisbadarna (Norway v. p. 1924.. Mali15 and El Salvador v. the applicant's title can clearly be based on discovery. at p. discovery alone was sufficient to create a complete title. 334. 334. evidence of rights to the territory in question. 9 RIAA 147. Honduras16. 334. Sweden). 388. 829 et seq. International Law. 554 et seq.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. (1928). p.. 16 ICJ Reports 1992. p. 17 Shaw. Before 1993 1.
e. US). 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.e. Cameroon's title over Bakassi is firstly based on discovery. Cameroonian.27 i. ix. Nigerian) and Bantu speaking (i. Bakweri and Bakossi peoples. The Nigerian claim that Bakassi is "Efik" territory in the State of Cross River. 26 Akak. 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. (Today Duala is the most populous city of Cameroon. i.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. pp. 3. 28 The details of Cameroon's succession to the Duala peoples will be shown in detail below. evidence for which will be given in the following paragraphs. 25 Akak. using only the Dualan. (1928). which belong to the larger ethnic group of the Sawa. p. which obviously makes no real difference. 27 Island of Palmas Arbitration (Netherlands v.Since at least the 15th century the territory in question has been occupied and governed by populations of Cameroonian origin.e. 2. 829 et seq. especially of the Bakole. the date of the Cameroonian application.24 which is allegedly based on the results of a UN fact finding mission. vii et seq. which today lives in south-west Cameroon. 9 . Cameroonian) peoples.as the international community does23 . p.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.e. 2 RIAA pp.) Even the respondent also refers . the name known for the territory in question is Cameroonian. 24 Akak. Moreover. terminology. beginning with the pre-colonial agreements concluded by local indigenous population. mainly in the US and overseas. 29 March 1994.to this territory as "Bakassi". meaning "they have welcomed" in Dualan language. 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.
Island and Maritime Frontier Dispute (El Salvador v. at p.. 27 BYIL (1950) pp. there para. 33. 858. pp. pp. The Court is therefore asked to overrule Libya v. which by the way were the most important means of acquisition of territory in Africa. 37 cf. 38 ICJ Reports 1992. at p.. International Law I. Sharma. p. 33 ICJ Report 1994. 470. Lauterpacht. 139.36 which was generally accepted by both scholars37 and by the ICJ in the Land. 32 6 RIAA 173 (1926). O'Connell. 10 . 31 2 RIAA. 351 et seq. Nicaragua intervening)38 as well as by the PCIJ in the Eastern 29 30 Shaw..and the African peoples living in the respective territories. 35 6 RIAA 173 (1926). Greig. 429. at p. 570. 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. I. treaties and cessions by the local rulers in the first place. 2nd ed. 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. enabling Germany to annex the hinterland in accordance with the hinterland doctrine in 1884. although the concept of a nation-state was more advanced in Europe. 36 Sharma. 52 et seq.29 what has also been recognised by the honourable Court in the Western Sahara Case30 as well as by the arbitrator in Island Palmas. pp. there would have been no need for any agreements..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. Honduras. 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. 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. 351. 38. 160 et seq. p. 34 Sharma. 237. The hinterland doctrine followed from the contiguity principle. p. ICJ Reports 1975. p. p. 428 et seq. p. 39.
S. which superseded the 1885 Final Act. No. 27 BYIL (1950). 49 Westlake. 420. at p. 321 et seq. Germaine-en-Laye. Vol. what Cameroon denies. 44 ICJ Reports 1953.. pp. pp.Greenland Case39 and was of practical relevance until at least the end of the 19th century. at p. 46 cf.. International Law. p. I. 2nd ed. 428 et seq. 27 BYIL (1950). British Foreign and State Papers 99 (1905 . cf. Island of Palmas Arbitration (Netherlands v. 45 et seq. 38. 840 et seq.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. A/B. pp. International Law I (1910).51 is not applicable as it lacks any retrospective effect. the award was in some way obiter. US). p. 27 BYIL (1950).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. 43 2 RIAA pp. O'Connell..P. 70. 46.. 119 et seq. 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. 344. at p. 428 et seq. 53. 2 RIAA pp. 45 ICJ Reports 1953. 47 Lauterpacht.50 Furthermore Article 10 of the 1919 Convention of St. 855. 930. 42 Lauterpacht. pp. 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. 1970. at p. it is doubtful whether this was the intended effect of the arbitrary award41 and as the U. 428 et seq. p. this would have no effect on the acquisition of Cameroonian territory by Germany in 1884. 428.. 855. 50 Shaw.. 48 D. cf.1906). did not rely solely on the contiguity principle. 99 et seq. 829et seq. 51 Sharma. pp. when the European powers began to determine their colonial boundaries by agreement. 99 et seq.. Waldock 25 BYIL (1948) pp. 53. pp.45 Furthermore the hinterland doctrine has been the basis of the decision in the Boundary between British Guyana and Brazil Arbitration46. at p. p. 41 Lauterpacht.. Sharma. pp. p.40 Although it might be argued that the Island of Palmas Arbitration may preclude the principle of contiguity as a rule of international law. 39 40 1933 PCIJ Ser. 11 .
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. 54 Anglo-German Treaty No. In the Anglo-German Treaty No. 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. 19.56 what put Bakassi on the German side. 20 of the treaty between Germany and the UK concluded in London on 11 March 1913.59 Furthermore Germany exercised state functions in the region between Rio del Rey and Akpayafe as early as 1894.53 c) Treaties between 1884 and 1918 Being the legitimate colonial power over i.Moreover. 71.e. Akak. 58 cf. p. 12 . Cameroon. 27 59 Art. I. p.. Even if there has been an agreement to the effect that an alleged River named Rio del Rey.58 provided that the boundary would follow the Akpayafe River and that Bakassi shall remain German. Vol. i. i. 36. 57 cf. 270. International Law. D. 1970.60 Consequently Bakassi remained part of Cameroon. O'Connell. p. a number of agreements were concluded with the United Kingdom. then colonial power of Nigeria.P. p. 16. Cameroonian. 24. Germany concluded a number of treaties with other colonial powers to determine the course of boundaries between several colonies. 52 53 cf. p. cited at Akak. p.e. the Akpayafe River was considered to be navigable by both parties57 and a treaty concluded on 11 March 1913. 56 Aka. Article IV (2).54 would be the basis for the boundary in question.a. Akak. p. 55 Ede. p. which as the UK later admitted did not exist as such. 294 and Akak. Geary. even if the course of the Akpayafe should change to the effect that the Akpayafe would flow into the Rio del Rey. which superseded all previous treaties in accordance with the lex posterior-rule. Anene. 60 Akak. 1 July 1890. With regard to Cameroonian-Nigerian boundary. p. as the "hinterland boundary was subsequently defined up to Lake Chad". 420. the creeks which form the Rio del Rey area. 21. 270 of 1 July 1890. 2nd ed.
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. 311.65 not to mention the fact that the state practice has in so far been extremely inconsistent. Moreover..69 which at least is an indication against a termination of the London Treaty by the outbreak of WW I. Hughes. 310 et seq. 229 N. 222 et seq. 64 Justice Cardozo. 67 cf. 241. p.. 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. To the contrary.The 11 March 1913 treaty was affirmed by the 12 April 1913 treaty.63 But "international law [. at p. the Harvard Draft Convention on the Law of Treaties. 13 . It deals with such problems pragmatically. Special Supplement. 69 Article 62 (2) a Vienna Convention on The Law of Treaties. which has been accepted for long. Akehurst. 66 Delbrück. 70 Akak. 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. pp. 29 AJIL 1935. pp. preserving or annulling as the necessities of war exact.Y.. pp. p. 36.61 This might be of interest in the Common Law tradition in which a contract requires a certain consideration to be valid. (1920) at p. p. 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. 4 EPIL (1982). It establishes standards but it does not fetter itself with rules":64 First of all. which in large parts simply declares what has so far been customary law. Smith & Keenan. the outbreak of WW I. 28. 27. 145 et seq. at p.62 but does certainly not apply to international law. deny any effect of a rebus sic stantibus on treaties concerning boundaries.. 4 EPIL (1982) pp.67 it shall be borne in mind that both legal scholars68 and the later Vienna Convention on the Law of Treaties. 310 et seq. which has its origin in a Serbian-Austrian and not in an AngloGerman dispute. the UK occupied Bakassi less then 18 months after the conclusion of the 1913 treaty.] does not preserve treaties or annul them regardless of the effects produced. 65 cf. 63 so claimed by Akak. pp.70 thereby producing overwhelming evidence for the fact that Bakassi was German and 61 62 Akak. in: Techt v. 312. 202 et seq. 68 Delbrück. Part III. the ipso facto termination of treaties should be the exception and not the rule.
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. p. Sharma.74 The view that a lack of change of course of the Akpayafe would mean that Bakassi is British. Cameroonian. not only was this no longer possible in 1914 but in order to confer title (if at all). 46. 342 et seq. the Versailles treaty being the later rule in relation to the alleged (customary) law which provided for acquisition of territory by conquest. Furthermore. according to the lex posterior rule.75 cannot be followed for the reason of the clearness of the wording of Article 20 of the 1913 Treaty. i.e. p.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. 1907. 146.not British in 1913 as there would have been no necessity to do so if Bakassi would have been British in the first place. Vol. 73 Westlake. 74 cf. Even if this belligerent occupation could constitute title over territory during WW I. ???. Nigerian. i.73 if there was any in the first place. p. 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. International Law. even if conquest could confer title over territory in the 19th century.e. 46. i. p. 71 72 Wright. Akak. This view is supported by the fact that peace treaties overrule the suspension of treaties by war. 2. that Bakassi already became German territory at latest on 11 March 1913. 14 . Furthermore. what Cameroon denies.e. 75 so Akak. which. conquest had to be accompanied by the recognition of other states.71 Otherwise the title would remain inchoate. which states that Bakassi shall in any case remain German. 26 AJIL (1932) pp.
i. is nowadays generally recognised as a general principle of international law. 121.e. 79 Opinion No. The principle of uti possidetis. Nigeria violated its obligations arising out of the aforementioned treaties. According to the general principle of pacta sunt servanda. 284 et seq. uti possidetis First of all. (translation by Corbett). Theory and Reality in Public International Law. Even if the Court is of the opinion that former colonies may opt for an alleged "clean slate doctrine". 554 et seq. 209. 80 ICJ Reports 1986.3. 77 cf. 297. that treaties concluded by colonial powers are not binding upon former colonies after they became independent.76 Nigeria has to comply with the aforementioned agreements. p. 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. 15 . p. 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.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. 3 of the Badinter-Commission. De Visscher. p. 78 Simmler. 81 Sharma. Simmler. 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. pp. although originally applied in Latin America to settle issues of decolonisation and boundaries. By disrespecting Cameroon's sovereignty over Bakassi. pp. 29. Consequently both Nigeria and Cameroon are bound to agreements concluded by their then colonial or administrative powers prior to the independence of both states. 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.
e. pp. as the following paragraphs will show: 5. pp. 6 et seq.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.principle. p. Shaw. 633. 295. p.Consequently. i. 38 et seq. Simmler. 359 and the ICJ's decision in Burkina Faso v. 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. ICJ Reports 1986.83 furthermore exist neither indications nor evidence that the idea of uti possidetis could be separated from the idea of the nation state. 84 Simmler. which supersedes the uti possidetis . 87 cf. at pp. non of which enjoys recognition by the international community. 85 Shaw. 663. 86 ICJ-Reports 1994. this referendum was a legally valid expression of the self-determination of the 82 83 This issues will be addressed in more detail in the following paragraphs. prevents the respondent from claiming the Bakassi Peninsula. and presumably also by the respondent. what Cameroon denies and will give evidence against. Oppenheim. Despite claims to the contrary by the so called Federal Republic of Southern Cameroons and the Republic of Ambazonia. 294 et seq. Chad. p. 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".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. 554 et seq. Dinh / Daillier / Pellet. p. 313. at p. p. 460. 358. Mali. No. to which both Cameroon and Nigeria adhered in the Cairo Declaration. should be the "historical inhabitants" of Bakassi. Cameroon's claim is also based on relevant and binding and applicable treaty law. pp.. 16 .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.85 a fact that follows from Art. ethnic groups now mainly located in Nigeria. the principle of uti possidetis. 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.
Blumenwitz (1992). 123. p.e. Title to Territory in Africa. 93 Schätzel. Harris (1991). Brownlie4. Franck (1976) p. 324 et seq. there fn.g. 247. Kiss (1986). Regional and Global Dimensions. 16 December 1952. 16 Va. 790 et seq. 100 Heidelmeyer (1973) p. 213. 111. 97 Doehring (1974). pp. 421. 72. 515. p. pp. Merle (1961). Eyassu (1989). 19. Seiffert (1992). Suzuki. Hannikainen (1988). 327. Klein (1990). 18. 167 et seq.. Therefore the result of the referendum.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. This vote was confirmed by UNGA-Res. p. 98 East Timor Case. 321.193. Friedlander. by a new referendum. 26. J. p. 841. National. at p. at p. (1976). 76 et seq. (1986) p.90 referenda are not only accepted91 but also required under international law92 as means to determine the fate of a people.. 95/19 bis.89 Despite the fact that the Court may until now not have followed a clear line on the use of referenda. 91 Peters. pp. pp. It will now be shown that see also Farley. Sharma. p. p. Vignes (1963) pp. it follows not only directly from the principle of selfdetermination (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. the right to selfdetermination. p. 64. pp. 444. 174. 26 et seq. 111 and p. 70 % voted for becoming part of Cameroon. 96 . Self-Dertermination. 385. 302 et seq. 124. 3. 164. p. p. 71 et seq. Carreau (1991). 701. ICJ Communiqué No. 4. p. 61. p. 2 AVR (1950). p. 40. 17 89 88 . Cassesse (1981).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. p. 1 et seq. The Evolution of the Right of SelfDeterminiation. 89.people living in the Southern Cameroons: With 94 % of eligible voters attending. p. 92 UNGA-Res 637 (VII).93 Even if the requirement to hold a referendum itself is not ius cogens. p. i. 94 Gross Espiell (1979). p. 30 June 1995. Peters. in: Alexander / Friedlander. pp.. (1986) p. 54. Rabl (1973). McDougal / Reisman. p. Buchheit (1978). p. 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. 90 Peters. p. e.. 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. Shaw. pp. pp. 96 Peters. 95 Gusy (1992). giving Bakassi to Cameroon. 99 Shaw.. p. Rigo Sureda. Int'l L. 91. cannot by overruled except by other ius cogens.
554 et seq. 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. 103 Then Nigerian Minister of Foreign Affairs.. 231. p. 12 EPIL (1990) pp. although it means an important change for the state as such.) means of the state or for reasons of secrecy.105 Furthermore. Mali. 104 Akehurst.the subsequent treaty law did not only not overrule the result of the referendum but even confirmed it: 6.101 This agreement has been considered to be a binding rule of international law by the ICJ in Burkina Faso v. pp. Even if this is the case. 565. what Cameroon denies. mainly because this might not be possible due to the restricted (financial. This is even more true if the Court takes into account the 101 102 cf.. 230 et seq. 16 (I). communicational etc. what nevertheless does not affect the states' will to be bound by the treaty. cited at: Akak. 132. It may be argued that the 1975 agreement lacked the consent of the Nigerian Supreme Military Council and therefore has never been ratified. Point 2. 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. OAU AGH/Res. at p. 105 Buerstede. at p. p. ICJ Reports 1986. 18 . The respondent nevertheless claims the invalidity of this agreement. 56. ratification is not always required when states agree to a change of territorial jurisdiction and control.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.102 7.104 Moreover. The Maroua Declaration 1975 Cameroon's sovereignty over Bakassi was once more confirmed by the Maroua Declaration of 1 June 1975. thereby expressing their states' intention to be bound. Bolaji Akmyem. Moreover numerous treaties which would require ratification are not ratified in praxi as ratification is a very time consuming process. it may be claimed that the Nigerian general public was not informed in detail about the Maroua Declaration.
Bronwlie. In this context it shall be noted by the Court that the present head of state of Nigeria. was not only involved in the coup de état against Gowon and Chief of 106 107 Akak. which by the way only confirmed the legal status of Bakassi as Cameroonian. Had the general public outside the Bakassi area had learned about the agreement. 24. there fn. Therefore. which was not so far fetched as the killing of Lt. 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. it might have been used as a reason to overthrow the Nigerian government and to destabilise not only Nigeria but the entire region. renounced the 1975 agreement. p. Brigadier General Murtala Mohammed. who came to power after a coup de état against Lt. 19 . It is in this context of special interest that only the later military ruler of Nigeria. President Obasanjo. Moreover. p. Gowon.107 what serves the interest of all parties concerned in the certainty of the law. Col. heads of governments and foreign ministers are always considered to be authorised to conclude a treaty. 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.special circumstances in Nigeria at the time in question: The military government had to be afraid of a violent end to its rule. it has been claimed that the then head of state. 56. Col. 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. 610. Gowon. and Nigeria therefore already was in a very unstable condition.106 Not only that heads of state. Gowon showed. had acted ultra vires in signing up to the 1975 Declaration.
Nigeria: 108 109 cf. any or all of the treaties and agreements referred to under 3. e. which is neither a persistent nor a subsequent objector to Cameroon's claim. pp. pp. and. 110 cf. to taxation matters.a. what Cameroon denies in the first place. by issuing Decree No. 8.111 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. Cameroon has exercised state functions in the Bakassi area prior to and after the 1975 agreement. 48 et seq. p. Tschentscher. even the Maroua Declaration were invalid. p. Akak. Cameroon's sovereignty over Bakassi is supported by both state practice and opinio iuris by .html Akak. Bakassi is nevertheless part of Cameroonian territory by virtue of (local) customary international law to the effect that Bakassi is Cameroonian territory.110 Although there were some protests by Nigerian individuals and the governor of Cross River.a. were invalid for whatever reason. 46 et seq. Consequently. 56.i. as Nigeria claims and Cameroon denies. by defending the territory against foreign occupation and by arresting and expelling illegal immigrants and criminals. http://www.de/ law/ni_indx. 111 for details cf.108 Although a later head of state of Nigeria Murtala Mohammed declared the 1975 agreement to be "null and void". Akak.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.uni-wuerzburg.109 but such a unilateral termination of a treaty without the consent of the other party is not possible. the declaration that the 1975 agreement were null and void is of no legal effect whatsoever. therefore Nigeria was not entitled to terminate or suspend the treaty. Nigeria is not a persistent nor a subsequent objector to Cameroon's claim If. which also applies to Nigeria. 71/DF/30 on 17 January 1971 and by exercising administrative functions relating i.g. Consequently. neither did Cameroon break the treaty. 112 Akak.112 the Federal Republic of Nigeria never formally protested. Moreover. . 48 20 . 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.
570 of 27 March 1962 from the Nigerian Minister of Foreign Affairs and Relations with the Commonwealth to the Cameroonian Embassy in Nigeria. First of all. 4.29 March 1994: No Nigerian acquisition of sovereignty 1. Nigerian Foreign Minister Okoi Arikpo stated that Bakassi were Cameroonian. 22 March 1992. the acquisition of territory by use of force is undoubtedly illegal under both relevant. when the aggression by Nigeria took place. Furthermore.114 Even if the Court is of an opposing opinion. cf. Conquest and use of force Today. 6 No. i. referring to the 1913 treaty between the UK and Germany. Cameroon's claim is supported by Nigerian Law No. It will now be proven that since then Cameroon has not lost the sovereignty over Bakassi. the then colonial power of Cameroon. numerous official maps of the region issued by Nigeria and clearly showing Bakassi on the Cameroonian side and diplomatic notes.In 1992. Vol.115 For all the reasons referred to above. Atlas of Nigeria by the Federal Ministry of Works Survey Department. the state of Nigeria itself has published maps which clearly show Bakassi as being part of Cameroon. Art. 115 In detail see below. 113 114 The Guardian Nigeria. applicable and binding treaty and customary law. 126 of 1954. such as Not No. Moreover. in 1913. there is at least no customary international law to the effect that Bakassi is Nigerian due to the frequent and regular protests by Cameroon.113 This example of state practise even includes a reference to the related opinio iuris. 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. 653. 21 . III.e. to which Nigeria then considered itself to be bound. sovereignty over Bakassi was Cameroonian on 21 December 1993. 2 (4) UN-Charter prohibits the use of force by Nigeria which as Cameroon is a member of the UN. Soyinka. 21 December 1993 .
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 on the French-German Mundatwald-Agreement 10 May 1984 cf. 277 .g. accretion.Zur Bereinigung letzter Kriegsfolgen zwischen Deutschland und Frankreich. both of which already exist for quite a while). the cession of Alaska by Russia to the U. 24 AVR (1986) pp. 569. 31 AFDI (1985). Bertzle / Denger.a. pp. Der Mundatwald . showing overwhelming evidence of a state practice to the effect that title new territory is achieved in more peaceful ways.. which by now can well be regarded to be customary law. pp. JO (Jounal officiel de la République Française) 1985. this view is supported by i. Mundat Forest. L'accord du mai 1984 sur le Mundat. 39 NJW 1986. and Art. in 1916. Territoriale Souveränität und Gebietshoheit. Mai 1984 . In the 1970 Declaration of Principles of International Law the UNGA considered acquisition of territory by use of force as illegal. not only in the pre-UN era as with the cession of the Island of Palmas and Iloilo by the Treaty of Paris 1898. 5 (3) of the 1974 UNGA Consensus Definition of Aggression. too. 1980.S.300. referenda. 101 DVwBl (1986) pp.. 230 et seq. Die deutsch-französische Mundatwaldvereinbarung vom 10. which exists in the form of an absence of claiming territory from another state by force. the sale of Danish West Indies Territories of St Thomas.892. Jutzi. with the Mundatwald. 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. Fastenrath. as e. Staatsrechtliche Probleme im Zusammenhang mit der Rückgabe des Mundatwaldes von Frankreich an Deutschland. which found its expression for example in the resolution 661 by the UNSC. If we exclude discovery.. Art. 52 of the VCLT. 1989.116 The state practice. in 1867. Ipsen. p. the sale of the Caroline Islands from Spain to Germany in 1899 but also in relatively recent time.Furthermore. Furthermore. we find several examples of such a state practice. St Johan and St Croix to the U. is at least for the UN-era based on an according opinio iuris.1044. 12 EPIL (1990) pp. independence movements. the acquisition of territory by use of force is prohibited by customary international law: On the side of state practice. Verdross / Simms / Geiger. Buerstede. 22 116 . Myard. 2. 1403 1044. 249. newly formed states etc. Mundatwald und Sequesterland .Bereinigung letzter Kriegsfolgen zwischen Deutschland und Frankreich. J. 884 .S. 1039 . attempts to acquire territory by warfare have been rare in the last decades.ein kaschierter Sonderfriedensvertrag ?. Dünisch. 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.
Private Law Sources and Analogies of International Law (1927). No. there fn.119 Not even in the Chamizal Arbitration.123 Walfish Bay Boundary.122 Other cases cited to support prescription as a means of acquiring title to territory under international law like Grisbadarna. 53. A/B. 124 Germany v. pp. 127 Sharma. 113. p.127 117 118 Ipsen. possession since 1764. 9 RIAA 22 (1909). p. 120 Chamizal Arbitration (Mexico v. 256.).. 22. cession by France to Spain in 1767 and the fact that for this region Argentina is legal successor of Spain. 9 RIAA 263 (1911) 125 98 British Foreign and State Papers 152 (1903). which by the way is only an arbitrary decision which is not binding upon other parties.117 Argentina's claim to the contrary is based in discovery by France in 1764.disputed territory. 119 Sharma.War and bearing furthermore in mind that the exercise of effective control has been regarded as a mere indicator for sovereignty in Island Palmas. 113. 121 Lauterpacht. U. 126 1933 PCIJ Ser. also Blum.118 In order to avoid future wars like 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 1833.124 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. but cf. 176 et seq. p. 23 . 332. 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 . there fn. 331. 9 RIAA 309 (1911). p. United Kingdom. 122 Sharma. pp.121 prescription in fact has been invoked without success. Ipsen. only the legal sovereign and not the factual sovereign should be regarded as having title under international law.. 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. 256.120 which has been cited as supporting prescription as a rule of international law. Sweden. p. 123 Norway v.S. 113 et seq. Historic Titles in International Law (1965).
71. 867.131 Furthermore. 2 RIAA pp. p. 100 2 RIAA pp. the effective exercise of state functions can constitute a title over territory despite an earlier title.and furthermore does in certain exceptional cases not necessarily have to appear in a peaceful way. at p. at pp. 133 Annex I. 43 et seq. 585 . 829 et seq.132 Even if the Court is of the opinion that the exercise of state functions may be different from case to case .g. 7 ILM 1968. pp. 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. pp. pp.. 390 et seq. 674.Border Arbitration135 . the idea that peaceful and uninterrupted possession can confer title over territory upon a state. pp. at p. 1933. might be concluded from the Rann of Kutch133 and Western Sahara134 cases and the Dubai / Sharjah . 131 cf. A/B..130 despite the fact that the requirement of a longer period of control was denied in Island of Palmas. the latter being at least a requirement for possession. at pp. 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 Sharma. 100. No. 46 et seq. 130 If.. the French settlement Port Louis even to 1764. 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). what Cameroon denies. 12 et seq.590. pp. at p. especially not peacefully. in the Islas Malvinas-Case: The first British settlement on one of the Islands close to the West-Falklands dates back to 1765. the Nigerian military presence in Bakassi does not amount to a actual continuous and peaceful (in relation to other states128) display of state functions. 829 et seq. 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. Sharma. 840. 135 91 ILR pp. 136 PCIJ Ser. 53. does not apply to Nigeria. 137 26 AJIL (1932). what Cameroon strongly denies. 24 129 128 . which has never "possessed" Bakassi. 543 et seq. it takes by far longer time intervals as e. 132 cf.which.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. 633 et seq. 134 ICJ Reports 1975.
15 RDI (1935). Introduction. 145.illegal occupation of the Bakassi Peninsula. 287 .. p. Award. 2nd ed. Ex iniuria ius non oritur is widely accepted as a rule of international law. 1968. pp. Verzijl. by Lauterpacht. 195 . 142 Guggenheim. Moreover. 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. Volume I. p. Conclusions. 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. 144 e. 513 et seq. I). 143 Brownlie5. 409 et seq. Ex inuiria ius non oritur Furthermore. 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. Recognition in International Law (1947). e. Nigeria cannot not base its claim on the . 138 The Indo-Pakistan Western-Boundary Case Tribunal. 4 March 1994.268.146 The frequent and regular protests by Cameroon show clearly that neither there is any acquiescence by Cameroon nor will there be in the future. 53. pp. by both scholars and tribunals. p. 145 1933 PCIJ Ser.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)..296 and Lauterpacht.141 Guggenheim. pp. and Three Maps. Government of India Press.145 4. 139 cf. 421 et seq.g. S/1994/258. pp. Furthermore the applicant's claim has been frequently and regularly been protested against by Cameroon. 19 Febuary 1968. 482. 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. International Law.142 Brownlie143 and others144 and by the PCIJ in Eastern Greenland. 284 . the letter by the respondent to the UNSC. pp.339. 150. 141 Lauterpacht. 140 O'Connell. 146 Akehurst.g. A/B No. IV). 62 Hague Recueil (1937.as will be elaborated in detail below . 2 (4) UN-Charter. 25 . 74 Hague Recueil (1949.140 3.
151 Nigeria is prevented from claiming Bakassi as its own territory by the principle of estoppel.147 furthermore the US Energy Information Administration published a map of Equatorial Guinea and the neighbouring countries which also shows Bakassi as being Cameroonian. 352. Estoppel: non venire contra factum proprium Moreover. 352. cf. geo. pp. Although aquiescence and estoppel may not be rules of substantive law. 153 ICJ Reports 1962. Both Cameroon and the international community have an interest in the certainty of the legal status of Bakassi and therefore the principle of estoppel.5. namely sovereignty over Bakassi. and http://www.orst.html.149 the Anglo-Norwegian Fisheries Cases150 and the Land. 47 . p. 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.. 156 cf. Island and Maritime Frontier Case. 150 ICJ Reports 1951. cf. published a document declaring Bakassi to be located "in the south-west province of Cameroon".148 The same is true for numerous maps of Nigeria and Cameroon published by private firms from different countries. 147 148 CIA World Factbook 1998. in 1998 the U.doe. pp. also below. 155 and are therefore also applicable in the case at hand. as the ICJ and the PCIJ already did i. also http://terra. pp. 116 et seq. especially as there has been no fundamental change of circumstances. 217 et seq. pp. pp. pp. in Minquiers and Ecrehos. pp. AFDI 1962. 26 . 6. As already referred to above.51. 11 ICLQ 1962. or non venire contra factum proprium prevents Nigeria from now claiming the contrary. 47 et seq. para. 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. Acquisition. 1183 et seq.eia. 192 et seq. Cot. 151 ICJ Reports 1992. 154 ICJ Reports 1960. 155 see also Shaw.156 This view has even been codified in a number of legally binding treaties.edu/users/tfdd/ register/table_footnotes. Nigeria and its legal predecessors have repeatedly accepted the fact that Bakassi is part of the territory of Cameroon. 401. technical concepts as the principles of acquiescence and estoppel have to be applied in territorial disputes. 47.htm 149 ICJ Reports 1953. p. p.gov/emeu/cabs/eqguinea. To the contrary. 6 et seq..152 what Cameroon denies.a. see also Johnson. Jennings. 152 so Shaw.S.
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. Texas etc. Secondly.. 157 Nigerian Minister of Foreign Affairs. 27 . 22 March 1992. 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. people of Latin American descent live in the Southern part of the U.157 Therefore the principle of rebus sic stantibus does not support Nigeria's claim either. 653.g. Firstly. bordering Mexico. Vol. close to the Danish border.S. namely California. Nevertheless. 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. in the most northern part of Germany. 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..7. Okoi Arikpo. in Northern and Eastern Estonia we even find a Russian population which in a number of towns even exceeds the Estonian population by far. For three reasons. 4. 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. 6. 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. Moreover. we find a strong ethnic Danish population which is even represented in State Parliament with a Danish Party. to name but a few examples in none of which any change in sovereignty over the territory in question is considerable. there are no indications whatsoever for any fundamental change of circumstances. In former Yugoslavia ethnic Albanians live close to the Albanian border. 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. in: The Guardian Nigeria. No. between the two Koreas).
B. which applies to both parties. pp.Islands. pp. As any form of intervention is prohibited by ius cogens and Art. Therefore the Court is asked respectfully to adjudge and declare that sovereignty over Bakassi is Cameroonian. Equity Furthermore. have settled in the area for centuries. by Iraq with regard to Kuwait. and ius cogens. regardless whether there had been any actual fighting between Nigerian and Cameroonian forces or not.8. Ipsen. members of peoples which today live mainly in Cameroon. Responsibility of Nigeria for unlawful use of force. by India with regard to Goa and by Argentina with regard to the Malvinas / Falkland . depend. 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 158 159 see below.e. it would be inequitable to award title over Bakassi to Nigeria as Cameroonians. 28 . Cameroonian territory. Nicaragua Case. i. 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. Internationally wrongful act 1. 2 (4) of the UN-Charter. 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.160 this deployment of foreign armed forces constitutes a breach of the non-intervention rule and a breach of the peace in the region. 2 (4) of the Charter and the historical context out of which evolved. 161 e. 943 et seq. Moreover. Finally it would be inequitable and unjust if Nigeria would after all benefit from its illegal acts. withdrawal and reparations I. 100 et seq. 931 et seq. ICJ Reports 1986.g.161 Such an approach is incompatible with the intention of Art.158 9.159 Nigeria send armed troops to Bakassi. pp. which is as said before. 2 (4) of the Charter. 160 Ipsen. especially Equatorial Guinea. Conclusion For all the reasons referred to above. Cameroon has a the only title to Bakassi or at least a better title than Nigeria.. 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.
vii. Not only did Nigeria use armed force against Cameroon.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. for Denmark cf.166 Ipsen. p. p. 19 (3) (a) of the Draft Articles on State Responsibility. Furthermore this publication considers the involvement of Germany and the UK in what is already called the "Bakassi War"165 a close possibility. such an alleged rule would have entered into force only after Nigeria's illegal invasion in Cameroon and is therefore not applicable. Humanitarian Intervention . 166 Akak.. AIV Advisory Report No. 1. Adviesraad International Vraagstukken (AIV) / Commissie van advies inzake volkenrechtelijke vraagstukken (CAVV). 164 for the Netherlands cf.constitutes a breach of the aforementioned rule. 2000. 1999. 1st ed. 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. Humanitarian Intervention. p. 937. which Cameroon simply considers to be a ridiculous idea and the predictable end of the UN-system and therefore vehemently denies. 1st ed.162 It has moreover to be borne in mind that Art. The Hague. pp. Danish Institute of International Affairs (DUPI). not even by Western states163 or at least only with the limitation to humanitarian intervention. Copenhagen. p.. 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. vii. a 1999 publication which is based on "studies" requested by the Federal Government.Legal and Political Aspects. 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. 13. Thereby the respondent committed an international crime pursuant to Art. 122. 165 Akak. 29 163 162 .
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.167 they also exercise a function for the state. Attributable to Nigeria The internationally wrongful act of using force and invading Cameroon is also attributable to Nigeria. 10 of the 1998 Draft Articles on State Responsibility. the illegal conduct of the Nigerian troops remains nevertheless attributable to the respondent in accordance with Art. they clearly acted under the control or at least the direction of the Nigerian government.e. .the invasion followed numerous claims by Nigeria concerning Bakassi. Article 6 of the 1996 Draft Articles on State Responsibility. as the following facts prove: .In the following paragraphs it will be shown that Nigeria is responsible for the illegal use of force. i. even if the individual soldiers hold only a subordinate position. Article 5 (1) of the 1998 Draft Articles on State Responsibility. 30 .the invaders were massively armed on a professional level. 2. 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. so that 167 168 cf. 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.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. cf. the invasion was intended to give Nigeria what it wanted for long. . what Cameroon strictly denies. . Moreover.the whole action was well co-ordinated and executed on a highly professional level. using equipment of the Nigerian Armed Forces. The armed forces of the Federal Republic of Nigeria are not only state organs.
33 et seq. they were at least somehow supported by Nigeria. which is denied by Cameroon). and pp. members of the armed forces of Nigeria.. 3 at seq. 82 ILR pp. 455. Islamic Republic of Iran. both of which is denied by Cameroon. 82 ILR pp. 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. Islamic Republic of Iran. 1980. which relate to another act by the "insurrection movement" (if there is any in the first place. in the context of some kind of Nigerian / Efik insurrection movement against the legitimate Cameroonian rule in Bakassi. 29 et seq.. Rankin v. Islamic Republic of Iran.. Even if this was not the case.Cameroonian "prisoners of war" were taken by the Nigerians. 82 ILR pp. pp.g.169 Therefore their acts are attributable to Nigeria under Article 8 of the 1998 Draft articles on State Responsibility. Nigeria is nevertheless to be held responsibly for their conduct: Not only were the "insurrectors". Annual Report 1998. if they were "insurrectors" and not simply Nigerian soldiers in the first place. what Cameroon also denies. ICJ Reports. 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. Moreover. Lagos Regional delegation (Nigeria). 171 Brownlie. at pp. p. 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. 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 ICRC.it can be fairly assumed that the invasion also had the purpose of revenge for the alleged killings by Cameroon and moreover . 149 et seq. and the "individuals" who invaded Cameroon were acting e. Case concerning United States Diplomatic and Consular Staff in Teheran. Yeager v..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). namely the invasion of Bakassi. Short v. 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. 31 170 169 . E. 179 et seq. 204 et seq.g.
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. the illegal use of force in invading Bakassi is in any case attributable to Nigeria. 3. 175 Portugal v. 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. 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. 1956. p. which is not only customary law now codified in Art. II. 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. 32 . Consequently.175 172 173 McNair. India. ICJ Reports 1960. pp. 30 of the 1998 Draft Articles on State Responsibility for the lack of an internationally unlawful act on the side of Cameroon. 6 et seq.not third-party-victims. what is not the case here as Nigerian individuals in Cameroon act against Cameroon and its citizens. 4. Article 29 of the 1998 Draft Articles on State Responsibility. cf. No countermeasure by Nigeria Furthermore the Nigerian aggression does neither constitute a legitimate retorsion or justified reprisal nor a countermeasure according to 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. 245 or 452. Vol. International Law Opinions. 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. 6 et seq. Therefore Cameroon did not consent to Nigeria's illegal act. 174 ICJ Reports 1962. pp.
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. 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. 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. 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. 176 177 On the 1981 incident see 4. It might be argued that an alleged title to territorial sovereignty over Bakassi was the protected interest of Nigeria. it can also not be invoked by the respondent. 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. No distress Distress177 also cannot be invoked successfully by Nigeria to justify its use of force against and invasion of Cameroon. 33 .176 6.Although there have been cases in the past in which countermeasures. not exist. cf. 7. especially were they not endangered by the Republic of Cameroon herself. as has been proven above. but as such a title does. 5. Article 32 of the 1998 draft Articles on State Responsibility. 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 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. 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.
as envisaged by Nigeria as far as it concerns Cameroon .is not justifiable. 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. what Cameroon also denies. Conclusion For all these reasons. 34 . II. Art. ICJ Report 1986. bring forward claims against Nigeria in either or both Nigerian and Cameroonian Courts up to the last instance. 1 of the Draft Articles on State responsibility and even to an international crime according to Art.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 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. as the invasion of Cameroon by Nigeria concerned also the treatment of Cameroonians which are aliens in respect to Nigeria. Moreover. the Court is reminded of the fact that the destruction of states . pp.178 namely with the 1961 referendum and subsequently within the framework of the Republic of Cameroon. 8. Art. what Cameroon denies. and as this would be the same in all other potential cases involving the use of force 178 179 Ipsen. Nicaragua Case. p. 22 of the Draft Articles on State Responsibility has to be applied. there is a legitimate interest of Nigeria in Bakassi and even if. 940. 19 (3) (a) of the same document. 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.e. the stationing of armed forces on Cameroonian territory amounts to an internationally wrongful act according to Art. even if. before Nigeria could be held responsible. 22 Draft Articles on State Responsibility: exhaustion of local remedies It might be argued by the respondent that. especially not when as in this case the right to selfdetermination has already been used. there has been a state of necessity. 100 et seq. said nationals would have to exhaust all local remedies. i.
9 (1927). ICJ Reports 1949. Coence Bros. Art. from which it suffered during the time of the illegal occupation. Ser. 35 180 . p.e. Reparation Case (Advisory Opinion). p. Duty to withdraw As the continuing presence of Nigerian armed forces constitutes an internationally unlawful act of a continuing character. 22 should therefore be understood in so far as it should apply only to treatment of aliens within the jurisdiction of the acting state. Peace Treaties Case. 74. 1938 PCIJ. A No. the Republic of Cameroon is entitled under Article 44 of the 1998 Draft Articles on State Responsibility to restitution in kind (restitutio in integrum).182 both material and immaterial. 21. to the contrary. Germany. 181 Factory at Chorzów Case. Phosphates in Morocco (Preliminary Objections). ICJ Reports 1950. 184. 228. 615. Not only does said Article 41 impose such a duty. 22 of the Draft Articles on State Responsibility not applicable for the disputed matter and therefore uphold Nigeria's responsibility under international law. the way aliens are treated in Nigeria and not in Bakassi. A/B. 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. no Spanish Zone of Morocco Claims Case. ICJ Reports 1949. 1 et seq.180 which has for long been recognised as a principle of international law:181 III. which forms as said before an integral part of the territory of the Republic of Cameroon. Nigeria is under a duty to withdraw its troops immediately and unconditionally from Cameroonian territory by virtue of Art. 2 RIAA pp. v.1928). No. 22 on cases of use of force and especially not on cases of unlawful invasion. p. 389. Corfu Channel Case. 641. The Court is therefore asked to consider Art. Satisfaction etc.and thereby the breach of the most fundamental rule of today's international law. for the case at hand. it would make no sense to apply Art. IV. Reparations. PCIJ Ser. i. no. Digest (1927 . at p. The aforementioned duty to withdraw does furthermore does not preclude a duty of Nigeria to pay reparations to Cameroon. Compensation. the unconditional and immediate withdrawal from Cameroon also forms part of the restitutio in integrum the victim state is entitled to. 41 of the 1998 Draft Articles on State Responsibility. 4 Ann. as far as possible and reparation payments for the economic damage.
"184 The honourable Court is asked to determine the amount of the reparations which are to be paid by Nigeria itself. Nigeria is under an obligation arising out of Article 45 of the aforesaid Draft Articles to provide satisfaction for Cameroon by . 184 Ago. 182 183 cf. 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. . Factory at Chorzów Case.precluding further claims by Cameroonian citizens and legal entities on the basis of Nigerian private law liability. Moreover. 17. A. 1971 II / 1. 205. 47.apologizing for the internationally wrongful act committed by its troops. ILC Yearb'k. Article 44 (2) of the 1998 Draft Articles on State Responsibility. p.the payment of nominal damages the determination of the amount of which is trusted to the Court and . 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. p. 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. 1928 PCJI Ser. the payment of damages.as already mentioned above. No. 36 . which should reflect the dimension of the violation of Cameroon's rights by the respondent.