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Bakassi: What Nigeria Should Have Done, And, What It Should Do By Fatihu A. Abba
Now that the “resource rich” Bakassi peninsula has been formally ceded to Cameroon by Nigeria, and considering the validity of Dr. Sergei Vinogradov’s statement over ten years ago that “every square kilometer ‘obtained’ or ‘lost’ in boundary demarcation or delimitation could mean millions of dollars of ‘gained’ or ‘lost’ resources”; The question is, “what should have been done to have averted ceding Bakassi and its enormous natural resources to Cameroon as a result of the Decision in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (2003, ICJ Rep. 272 hereinafter the “Case” or “Instant Case”)? On the other hand, what should Nigeria do to avoid similar occurrence in the future considering the strategic resources in some of its outstanding territorial issues with neighboring States. The land territory in the case was until the judgment, under Nigeria’s effective occupation although ceded to Cameroon by several instruments concluded by the respective colonial powers. While the Award respecting the first segment of the disputed maritime area was based on the parties’ bilateral declarations, the second part was equitably delimited by the International Court of Justice (hereinafter “ICJ” or the “Court”) based on the emerging customary international law principles of maritime delimitation i.e. “equidistance.” The paper commenced with a summary examination of the orthodox methods of acquiring a territory by state and the effect of the doctrine of ute possidetis on these methods. The paper proceeds to restate the principles adopted by the ICJ to determine or delimit the maritime boundary between the parties. The paper then analyzed what Nigeria should have done to avoid the compulsory jurisdiction of the Court with a view to suggest how to overcome similar situations in the future. The paper concluded that unlike municipal law, the effectiveness of respecting the decision of the ICJ is underpinned by a decisive “voluntary” factor in the form of the “political will” of a sovereign state to respect such decisions notwithstanding and irrespective of how it was reached. Finally, the paper contends that the fundamental effect or implication of this political will, is the limitation of Nigeria’s municipal judicial jurisdiction from interfering with the implementation of the judgment so long as Nigeria as a sovereign State was the Party before the ICJ and not, its component state (s) or its citizen (s). The Acquisition of Territory The territory of a state comprises all land areas, including subterranean areas, waters, including national rivers, lakes, the territorial sea appurtenant to the land and the sea-bed and subsoil of the territorial sea and the airspace over the land and the territorial sea. Conceptually, the territory of a state is the foundation of its factual existence and the basis for the exercise of its legal powers. Traditionally, a territory is acquired by five methods, (a), Occupation;(b), Prescription;(c), Accretion;(d), Cession and (e), Conquest. Of relevance to our discourse is occupation and for occupation to be valid under international law, certain ingredients must be established by the party relying on the criteria. These requirements are; (a), Apparent or effective display of authority or sovereignty (b), Intention to acquire sovereignty (c), Peaceful display of authority, (d), Continuous display of authority up to the “critical date” (i.e. the date on which the display of authority is to be assessed). Therefore if actual occupation as evidenced by legislation, governance and judicial administration are critical to establishing sovereignty as evidenced by the several re-statements of the Court, then Nigeria was the sovereign over the disputed land areas at that “critical date”. But, Nigeria’s effective occupation was not peaceful because of Cameroon’s persistent objections and, Secondly, Nigeria’s effective occupation was also undermined by the doctrine of ute possiditis. The concept of ute possiditis means that the frontiers of newly independent states are to follow the frontiers of the old colonial territories from which they emerged and, importantly, such frontiers cannot be easily altered by unilateral action. This principle which originated from South America was reaffirmed by the ICJ as a principle of general application in the Frontier Dispute Case (Burkina Faso V Mali, hereinafter Burkina Faso and Mali case). The principle was adopted by the Organisation for African Unity (now African Union) in its Resolution of Intangibility of Frontiers in AHG Res. 16(1). The wisdom behind this principle is that, reversion of colonial frontiers will result into chaos. The application of the principle beyond the colonial situation is an important development if stability among the international community is to be preserved. In El Salvador V Honduras case, the Chamber of the ICJ relied heavily on ute possiditis in settling the boundary dispute between the parties, and it is clear that the Chamber regarded the rules as of the utmost importance. In fact, the Chamber made it clear that neither effective display of state functions in disputed areas nor the economic inequality generated by old boundaries was sufficient to displace the uti possiditis principle, though acknowledging the problems associated with the principles application in contentious cases. Furthermore, in 1992, the EC Arbitration Commission on Yugoslavia ((1993) 92 ILR 162), decided that the principle also applied to newly independent states formerly part of a federation. However, it is obvious that some might argue that ute possiditis is contrary to the principle of effective occupation enunciated in the Island of Palmas Arbitration (The Netherlands V United States, (1928 RIAA 829) hereinafter “Island of Palmas case”) to the extent that it may be considered as a retreat from effectiveness as the guiding and underlining principle in territorial matters. But this retreat from effectiveness as the guiding principle in territorial matters when there are competing rules of international law, is underpinned by the dynamics of international law itself as it moves towards a system of sovereignty based on principle rather than power. It is thus on the basis of ute possiditis that the ICJ ceded the land areas around Lake Chad and Bakassi peninsula to Cameroon. In the delimitation of the maritime boundary, two sectors were distinguished. In respect of the first part of this boundary, the ICJ endorsed the several Declarations made by the parties respecting the first segment despite Nigeria’s argument that the Declarations were not ratified by it. The last part of the maritime boundary was established by the ICJ. This part does not depart from the emerging case and treaty law applicable to maritime delimitations as it was based on “equidistance” which “in the absence of agreement”, is the applicable principle in delimiting maritime areas between opposite or adjacent coastal States so long as the breadth of such area between the States is less than 400 nautical miles. (See Articles 74 and 83 of the 1982 United Nations Convention on the Law of the Sea) What Nigeria Should Have Done Although it may seem absurd asking this question, it is nevertheless imperative if lessons of history are relevant at influencing future events. The decisive incident regarding this case occurred on the 14th August, 1965 when Nigeria declared for the compulsory jurisdiction of the ICJ under Article 36 (2) of the ICJ Statute. Although the Declaration was extensively amended with far reaching “reservations” aimed at insulating Nigeria from the jurisdiction of the Court on the 30th of April 1998, it did not inhibit the ICJ from assuming jurisdiction after disposing Nigeria’s preliminary objections. Unlike the conventional method of assuming jurisdiction by the ICJ i.e. by “consent” of the parties as stipulated by Article 36 (1) of the ICJ Statute, the “optional” procedure under Article 36 (2) of the ICJ Statute, automatically confers jurisdiction on the Court to determine a case if the parties have a reciprocal declaration on the Article. Nigeria should have opted for a cautious approach as was pragmatically articulated by Professor Anthony I. Asiwaju over ten years ago that the controversy over the Bakassi Peninsula can only be adequately addressed by “problem solving approach” because to Asiwaju, fugacious resources in overlapping areas “…cannot fully be tackled simply by drawing or re-drawing of maps or the making or re-making of boundaries in order to separate or divide the inherently inseparable and indivisible.” Professor Asiwaju’s suggestion could have been achieved if Nigeria had pre-empted Cameroon by withdrawing from the compulsory jurisdiction of the Court before Cameroon submitted its Application to the ICJ in 1994. Cameroon would have been compelled to the negotiating table and probably on Nigeria’s terms. This is just what Australia did to East-Timor in respect of their disputed Timor Gap Area. Realising that on its independence on 20th May 2002 East-Timor may likely resort to the compulsory jurisdiction of the International Tribunal for the Law of the Sea (hereafter “ITLOS”) for the delimitation of the Timor Gap, Australia quickly withdrew its consent from the compulsory submission of the ITLOS in respect of maritime disputes. East-Timor had to accept a long moratorium in the region of 100 years respecting the disputed area although the new Joint development regime is more favourable to it. Experience has shown that when a respondent is unwilling to submit to the jurisdiction of the Court, the Court will display prudence and caution in dealing with that type of situation, and not allow the system of the compulsory jurisdiction to be abused so as to compel a state to the jurisdiction when it is clearly not obliged to do so. In such cases, the ICJ simply “de-lists” the case from its General List. Thus, if this was the case, several practical and equitable options were available to Cameroon and Nigeria in the form of “do nothing” which is an old remedy to any dispute, Joint Development of the hydrocarbons in the disputed area as is the ongoing arrangement between Nigeria and Sao Tome & Principe and finally, among others, referendum. This was done after Nigeria’s independence respecting territories with Cameroon and the U.N. organized referendum for East-Timor on 30th August, 1999 where East-Timor overwhelmingly elected to be independent of Indonesia. This option would have been the most effective in assessing the overall wishes of the inhabitants of the disputed areas Since Nigeria has declared for the compulsory procedure of the Court, and the Court has rejected Nigeria’s preliminary objections, there was no turning back. Even if Nigeria did not participate in the proceedings by appointing an Agent to represent it, the Courts decision is nevertheless binding on Nigeria so long as the Court “satisfy itself” and not merely “be satisfied” that the claim is well founded in fact and in law. Before exiting from this section I must state that from my understanding, the 1998 amendment was perhaps inevitable if Nigeria was desirous of redeeming its global diplomatic outlook which was then at its lowest points since independence. Because, “opting out” at that “time” was critical to Nigeria’s national interest. Furthermore, the then government certainly took that pragmatic decision in the overall interest of the nation in general and the inhabitants of the area in particular because of the wider negative implications of doing otherwise, considering the strategic resources of the Bakassi Peninsula which is a part of the Gulf of Gunea. In other words, this point will be appreciated more if it is disclosed that the Gulf of Gunea is projected to supplement substantial United States energy needs by 2015-2025. These concerns were apparent from the speeches of government officials when the Bakassi territory was formally handed over to Cameroon in August, 2006. Nevertheless, it must be pointed out that Nigeria did its best under the confines of international law to avoid the submitting the case before the ICJ through the extensive reservations made in 1998. Enforcement or Compliance with the Judgments of the International Court of Justice The basic principle underlining ICJ Judgments in any contentious case is that it is final and without appeal and it is only applicable to the parties in respect of that case. This ground rule was enunciated in Articles 59 and 60 of the ICJ Statute. These provisions are further augmented by Article 94 (1) of the UN Charter which obliges states to comply with the decisions of the Court and Article 94 (2) which provides that if any party to a case fails to comply with a judgment, the other party may have recourse to the Security Council ‘which may, if it deems necessary, make recommendations or decide upon measures to give effect to the judgment’. It must be pointed out that until now, “enforcement” action has never been undertaken by the Security Council as a result of non compliance with Courts Judgment although there are quite a few instances of complete or alleged failure to comply with a final judgment of the Court.(Details of these incidents is beyond this paper). However, an example of such incident was the Nicaragua V United States case where the United States failed to comply with Courts orders. In this case, the United States utilized its veto in the Security Council resulting in the inability of the Security Council to demand compliance with the Judgment by the United States. But, generally, parties comply with the Courts decisions. A few examples closer home and akin to the present case was handing over by Libya to Chad of the considerably important region of “Aouzu Strip”. Another outstanding example was resolution of the territorial dispute between Burkina Faso and Mali where the two heads of states publicly thanked the Court after the Judgment. However, with respect to a recalcitrant party, there is practically nothing that can be done to enforce the judgment especially in situations where the Security Council lacks the political will (and the General Assembly lacks the legal power) to deal with the disobedient party as happened in the Nicaragua’s case. But in situations where a non party to the suite before ICJ attempts to enforce or inhibit the implementation of the ICJ decision for example, by his Government, it has been held that such a party cannot maintain any action in the municipal courts because it is not a party to the proceedings before the ICJ (Generally, only States are parties before the ICJ as stipulated by Article 34 (1) of the ICJ Statute). This principle was enunciated in Socobels case (1951, 18 ILR 3). The case arose from a judgment of the PCIJ (Permanent Court of International Justice, hereinafter “PCIJ”) obtained by Belgium which determined that Greece was obliged by an arbitral award to pay compensation to the Belgian company Socobel. The Belgian courts held that Socobel could not enforce the judgment because, among other things, it was not a party to the case in the PCIJ. The cornerstone of the respect for the decision of the Court is however the “political will” of the state. So long as there are no institutional mechanisms to enforce the Courts decision, it rests with the State to do so. Therefore, in most cases where the parties submit to the jurisdiction of the Court through consent, it has been evident that they are not likely to fail to comply with an unfavorable decision. Nevertheless, despite the lack of effective mechanism (s) of ensuring compliance and notwithstanding some notable exceptions, the Courts decisions, like international law in general, have been complied with. Conclusions In conclusion, if the government is desirous of among other things, averting a recurrence of this incident, it is necessary for it to:- (1), Re-examine with a view to withdrawing from the compulsory jurisdiction of the ICJ as was done by France and United States. In fact, China and the Russian Federation have never made such a Declaration. It is only the United Kingdom among the five Permanent Members of the Security Council that is still obliged by the compulsory jurisdiction of the ICJ. Nigeria’s withdrawal from this procedure is imperative since its “extensive reservations” could not shield it. In other words, the “reservations” did not serve their purpose. And, it is the precarious outcome of this procedure that resulted to states apprehension with it. This is evident from the less than 70 countries that made Declarations recognizing the compulsory jurisdiction of the ICJ. Failure to consider and adopt this suggestion is an incentive or it will prompt states like Sao Tome & Principe resorting to the compulsory jurisdiction of the ICJ to determine their disputed maritime area with Nigeria notwithstanding the Joint Development Treaty. And, it is probable that the ICJ may delimit the area equally so long as in state relations and practice, a giant is no more a man than a dwarf. The multiplier implications of such delimitation, is the termination if not instant but, in the future of any developmental framework that was founded on the dispute. (2) In similar situations in the future, Nigeria should adopt caution and functional approach rather than appeasement to addressing such resource related disputes. Such approaches will automatically relegate the dispute to the background for the overall mutual benefit of the parties. This relationship may in the long run build and consolidate the “confidence blocks” needed for eventual delimitation or demarcation of such disputed areas to the reasonable satisfaction of the parties concerned. (3) Nigeria must also ensure that a “Unitization” clause is included in the Treaty ceding the territories to Cameroon. (The Treaty is currently before the National Assembly for Ratification-THIS DAY online 08.16.2006). However, if such a clause is not part of the Treaty, then it is imminent that Nigeria should conclude a protocol with Cameroon to accommodate it. Otherwise, Cameroon will not be inhibited from developing our resources from their side. Finally, from the circumstances surrounding this case, it is apparent that law is “disconnected” from “common sense.” This being the case, the outcome of the case has consolidated what is most predictable about the ICJ processes, their “unpredictability.” Sad.
* Is Researching his PhD on “The Principles Governing the Development of the Resources of the Outer Continental Shelf” at the Centre for Energy, Petroleum, Mineral Law & Policy, University of Dundee-United Kingdom.
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