London We must be ready to dare all for our country. For history does not long entrust the care of freedom to the weak or the timid. – Dwight D. Eisenhower
There
is no doubt that after the initial post-Abacha hurrahs that heralded
Nigeria’s return as a responsible member of the comity of nations, ours
has been a foreign policy collapse of the worst kind. The incredibly
shrinking Giant of Africa today occupies no more than a footnote in
international affairs as every opportunity keeps being squandered by
those who are adept at playing statesmen without the requisite
substance. There is no better example of how much we’ve fallen than our
handling of the Bakassi affair.
Just
before he left to genuflect before George W. Bush in America, President
Umaru Yar’Adua (supposedly playing to his image as a peace-loving,
rule-of-law-enthusiast) wrote the Senate to ratify the Greentree
agreement, shortly after the same Senate had thoughtfully questioned it.
Of course, it would have been difficult to question Yar’Adua’s action if
all he did was send the Agreement to the Senate to look at and make of
it what they deem fit. But presenting them with what seems like a fait
accompli and urging them to ratify it under the spurious notion that
such an act would indicate we are “a responsible member of the comity of
nations” smacks not only of intellectual vacuity, but patriotic
deficiency as well. With such action, it’s obvious that Nigeria is
sleepwalking into surrender; but the pain is not in the surrender
itself, rather it’s in the manner of it.
Now,
it is not my intention to present the case here as anti-ICJ nor should
it be seen as a call to arms against Cameroon in defence of our
territorial integrity. Rather, it should simply be seen as a
pro-Nigerian view, based on what I consider to be the true
responsibility of the Nigerian government to the people of Nigeria in
this affair. It is not a view supportive of a violation of international
law, but one that takes into cognizance the complexities of
international relations and the reality that only nations that pursue
enlightened self-interest invariably make progress and earn the respect
of others. I’m of the view that rather than explore fully our rights
under international law in pursuit of our claims over the Bakassi
peninsula, including pulling our weight amongst our friends and partners
in the international sphere, we are chickening out too early after such
monumental waste of national emotions and billions of dollars of public
fund.
In
addressing this issue, I wouldn’t be getting into the nitty-gritty of
the politics of the World Court and why we lost or the mistakes that
have been made over the years by successive Nigerian administrations and
so on. Enough has been said on all that already. Instead, I’d want to
concentrate on now and advance reasons why I think we can still rescue
the Bakassi chestnut from the fire without breaching international law
and without losing face. It is important that we acknowledge that
international law and international relations are not governed by simple
moralities or sentiments and also that nations are not individuals
capable of such feelings. Nonetheless, a nation is the most active
symbol of a people’s corporate character not only to the extent that it
represents their yearnings and aspirations, but also because it
represents their true strength and contemporary stature as a people.
History tells us that nations are what great men and women live and die
for. A nation defines its people.
The
first mistake those who criticize the Senate are making is the
assumption that we would be breaching international law if the Senate
does not ratify the Greentree agreement. Nothing can be further from the
truth. International law is not imposed or forced on nations; it is
accepted or consented to by them freely. This is the principle that
governs treaties and that is why countries are given the last say before
agreements become international treaties properly-so-called. This
principle is enshrined in Section 12(1) of the Constitution of the
Federal Republic of Nigeria (1999) which states: “No treaty between the
Federation and any other country shall have the force of law except to
the extent to which any such treaty has been enacted into law by the
National Assembly”. Clearly, the aim of this provision is to restate the
primacy of the National Assembly in law-making and to discourage
executive impunity in the conduct of international affairs and national
commitment to international agreements. Indeed, the Supreme Court, in
the case of General Sani Abacha & Ors V Chief Gani Fawehinmi (2000)
has given judicial authority to this position in its interpretation of
the ratification provisions of Section 12(1) of the Constitution.
Bola
Ajibola, one man who has contributed and who is still contributing to
the Bakassi debacle in an advisory and functional capacity, suggested
that the Senate action was in violation of the 1969 Vienna Convention on
the Laws of Treaties (VCLT) and that the requirement of ratification is
only a formality. Again, these are misconceptions because, to start
with, the Convention is limited in scope and application to only those
agreements between states that have been concluded. In other words, no
treaty is concluded until it goes through the ratification process –
that is the process of being nationally accepted by the state showing an
intention to be bound by the agreement. Furthermore, Article 14(1)(c) of
the same 1969 Vienna Convention on the Law of Treaties makes it clear
that the consent of a state to be bound by a treaty is expressed by
ratification when “the representative of the State has signed the treaty
subject to ratification”. Apart from the fact that our Constitution
clearly makes provision for ratification by the National Assembly, the
conduct of the former president, Olusegun Obasanjo, in asking the last
Senate for ratification and the present act of President Yar’Adua in
also asking the present Senate for ratification clearly show that
Obasanjo as the then “representative of State” signed the Greetree
treaty subject to ratification and that the national consent to be bound
is to be expressed through ratification by the National Assembly. Thus,
Bola Ajibola is just being disingenuous when he claims that ratification
is supposed to be a mere formality. Indeed, ratification represents the
most important legal and conclusive step to be taken before a nation is
bound to an international agreement. It therefore requires the most
thorough examination of the agreement before a decision to ratify or not
to ratify is taken.
It is
crucial to know that treaties are contracts between states. But unlike
contracts between individuals where signatures may be conclusive, with
treaties, signatures are mere declarations of intentions to enter an
agreement on terms stated. To be bound and to make the contract/treaty
conclusive, every state signatory must ratify the treaty. Every state
has its own ratification or equivalent process and requirement and for
Nigeria, such ratification has to be done by the National Assembly under
the provision of Section 12(1) of the 1999 Constitution. Thus, as far as
the Greentree Agreement is yet to be so ratified by the National
Assembly, it remains only an intention, which on its own imposes no
legal obligation on the state since the condition precedent hasn’t been
met. This is not a case of domestic law overruling international law,
but the agreement not yet being law in international or national sense,
even though intention to enter into agreement on terms stated has been
shown by representatives of States through their signatures to the
‘agreement’. A good example of what we are talking about here is the
Kyoto Treaty, which today is not binding on the United States (even
though it’s been signed by the Clinton administration since November
1998) simply because it is yet to be ratified by the United States’
Senate.
Having
said the above, it is also important to point out that in practice it is
not necessary for every agreement or treaty to be ratified formally by
the National Assembly before they can be implemented since states enter
into several agreements yearly and it would take up a huge chunk of
legislative time to formally ratify each and every one. In other words,
conventions, rules of convenience and common sense have been developed
which allows for certain categories of agreements to take effect without
formal ratification, though their continued implementation will be
deemed to have the consent of the National Assembly since Section 12(1)
of the Constitution implies that even where a treaty has not been
formally enacted into law by the National Assembly, but has come into
force by mere convenience or executive fiat, the National Assembly can
always resort to its powers under Section 12(1) to declare such a treaty
not binding. Agreements that fall into this category are usually minor,
bilateral or trade agreements with other states requiring performance of
certain obligations by each party for mutual benefit. But where the
agreement is of such importance as the ceding of a part of the nation to
another country or a demarcation of borders, there is no doubt that
ratification is and should be an absolute necessity. There is nothing in
modern international law or the interpretation of the provisions of the
Vienna Convention on the Law of Treaties that negates this requirement.
Another mistake is the assumption in some quarters that to not hand over
Bakassi now would be contemptuous of the ruling of the ICJ to which our
country is bound. They say this will invite severe sanctions from the
international community, including the possibility of the use of force
against Nigeria. They base their reasoning on the fact that we’ve
willingly accepted the compulsory jurisdiction of the Court without
reservation under the optional clause and that since it is the first and
last Court with no provision for appeal, we simply have to take our
medicine and get on with it. Again, these views are based on lack of
understanding of how the International Court of Justice works and its
position as only one organ of international mediation and adjudication,
which in the hierarchy of the United Nations, does not have the last say
over any issue it’s adjudicated on. Yet, inasmuch as the Court has no
appeal provisions, it does recognize the need to correct a wrong
judgment at a latter date. Article 61 of the Statute of the Court
provides for an application for revision of a judgment to be made within
ten years of the judgment being delivered by the court, though “only
when it is based upon the discovery of some fact of such a nature as to
be a decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming revision, always
provided that such ignorance was not due to negligence” (see also
Article 99, Rules 1-5, ICJ Rules of Court).
Naturally, one must expect that the terms to welcome any application for
revision must be strict. But, for our purpose, what we need to note is
that we have a ten-year period from October 2002 to investigate and look
for new facts to bring before the court to compel a revision. Though
Article 61(3) of the Statute of the Court mentions that the Court may
require previous compliance with terms of the judgment before it admits
proceedings in revision, this is not an obligation, only a possibility.
And clearly, it would depend on the nature of the case and the potential
effect of the decision on the people concerned. No one would reasonably
expect Nigeria to gladly give up her nationals and a piece of her
territory to another country when she’s yet to exhaust every available
processes and options within the international system. At any rate,
Nigeria, having partly complied with the Court’s decision by handing
over part of the peninsula to Cameroon, cannot be said to be in breach
if it halts further cession of Bakassi while it pursues this angle of
revision. We may not have that new and decisive fact now, but we’ve had
10 years since 2002 and still have almost 5 years from now to seek and
find it. All I’m saying here is that there was and still is no reason
for the precipitate action of handing over Bakassi to Cameroon by the
Nigerian government in purported compliance with the Court’s judgment as
far as the judicial angle is still very much open.
Another
huge point that our government seems to be ignoring is the fact that
considering the way the United Nations Organization works in practice,
the Court is not the de facto court of last resort and its decisions are
usually not final. First, it cannot enforce its decisions because it has
to depend on the Security Council to do this. More importantly, Article
94(2) of the United Nations Charter itself gives the Security Council a
type of review power over the decision of the Court (however, in terms
of de jure hierarchy, both are regarded as institutionally equal, yet
the Security Council is clearly at the de facto apex of the hierarchy).
Obviously, the Security Council is not explicitly given the power to
review the Court’s decision, but this is in effect what it does in
exercising its discretion under Article 94(2). Analysis of the wordings
of the Article, history of the provision and a comparison with the
equivalent provision in the Covenant of the League of Nations, including
the way the Security Council has exercised the discretion since the
establishment of the UN, will reveal clearly this fact.
Though,
Article 94(1) states that
each Member of the United Nations undertakes to comply with the decision
of the International Court of Justice in any case to which it is a
party, Article 94(2) states: “If any party to a case fails to perform
the obligations incumbent upon it under a judgment rendered by the
Court, the other party may have recourse to the Security Council, which
may, if it deems necessary, make recommendations or decide upon measures
to be taken to give effect to the judgment”. The above is quite
different in tone from the original Article 13(4) of the Covenant of the
League of Nations, which states: “The Members of the League agree that
they will carry out in full good faith any award or decision that may be
rendered and that they will not resort to war against a Member of the
League which complies therewith. In the event of any failure to carry
out such an award or decision, the Council shall propose what steps
should be taken to give effect thereto”.
Indeed, during the discussions in San Francisco at the United Nations
Conference on International Organization (leading up to the signing of
the UN Charter in 1945), issues were raised over the final version of
Article 94(2), especially with the phrase “if it deems necessary”. The
argument was that this might jeopardize the independence of the Court
vis-à-vis the Security Council. But in the end, it was resolved that
“the action to be taken by the Security Council was permissive rather
than obligatory and that the addition of the aforementioned phrase
merely made more clear the discretionary power of the Security Council”.
In effect, the provision grants the Security Council the power to use
political means to undercut the Court’s decision where necessary. In
fact, in practice, the Security Council has further reinforced this view
by its action and inaction over cases of non-compliance brought before
it since the establishment of the United Nations Organization. For
instance, in 1951, the Security Council refused to enforce the orders of
the Court against Iran over the nationalization of the Anglo-Persian Oil
Company. Again, in 1986, it could not enforce the Court’s decision
against the US in the Case of the Military and Paramilitary Activities
in and Against Nicaragua and in 1993 the same tendency was exhibited in
the case of Bosnia-Herzegovina against Yugoslavia. Indeed, no case of
the decision of the ICJ is on record to have been enforced by the
Security Council. The reason, of course, is clear. The Security Council
recognizes that the Court’s decision will always have to play second
fiddle to political settlements.
The
legal processes enumerated above apart, it would seem Nigeria is not
focusing on the realpolitik of the situation as well. For instance, the
way the Nigerian government impliedly claimed responsibility for the
reported killing of 21 Cameroonian soldiers is precipitate and
ill-advised. While it was quick to say our soldiers are not involved, it
leaves people with the impression that the attack was by Nigerian
militants of the Niger-Delta. Yet, in Cameroon, the revelations coming
out seem to suggest it was a problem within Cameroon firmly rooted in
some internal infighting and struggle for control of the finance and
arms meant for “Operation Delta” in Bakassi. Even as President Paul Biya
was replacing Captain Oyono Mveng with Colonel Hyppolite Ebaka, some
Cameroonian military survivors of the attack are claiming those who
attacked them were dressed in the uniform of the Cameroonian military
and spoke fluent French. Indeed, the Cameroonian Minister of Defence
Remy Ze Meka has been under huge pressure to respond to claims made by a
group of non-commissioned officers in an open letter to Paul Biya
stating that the Bakassi killings were engineered by Captain Oyono Mveng
and Lt Colonel Akah Robinson. The Cameroonian authorities have been very
keen to keep things hush-hush, promising an investigation that a lot of
Cameroonians are skeptical about. Yet, Nigeria s name has been dragged
in the mud with our government helping them along!
There’s also something to say about Yar’Adua gaffe over AFRICOM and the
relationship of that with the Bakassi situation. In reviewing the whole
Bakassi debacle, I have come to believe that the ‘mistakes’ made by our
national leaderships over the years were/are deliberate. There are so
many reasons to suspect their roles, not least their eagerness to
protect and advance the interests of their international ‘friends’ even
to the seemingly eternal detriment of fellow Nigerians and Africans.
There is so much to do with oil and security in that region that it is
quite possible that the ‘international’ support for Cameroon’s claim
over Bakassi may have more to do with these international interests
preferring a weaker African state than Nigeria to nominally control that
vital part of the Gulf of Guinea. Clearly, the United States, France,
Germany and the United Kingdom will have bigger say in what happens in
the area under Cameroon than if it were to be under Nigeria. Also,
considering that President Bush announced the establishment of AFRICOM a
week after President Hu Jintao of China landed in Cameroon for his
African tour, it is not impossible that the move is aimed at checkmating
an equally oil-hungry China, especially with the latter’s successful
economic incursions into the continent. All this of course does not
spell anything good for Africa. What Yar’Adua has done by caving in over
the AFRICOM issue is to throw away a vital bargaining chip over Bakassi.
Not only are we leaving our Eastern outlet to the Atlantic at the mercy
of Cameroon, we have effectively given the United States and its western
allies a good base to overlook our own oil-rich but volatile
Niger-Delta. Our Eastern naval command would have their work cut out as
Cameroonian and other foreign guns will watch our vessels through the
corridor thereby further compromising our national security.
The
Nigerian government must now wake up to its responsibility towards
Bakassians and Nigeria by halting all manner of cession of Bakassi. The
Yar’Adua government must stop forthwith all manner of pressures it’s
putting on the Senate to ratify an agreement that was reached without
consultation with Nigerians and the people that matter - an agreement
that is clearly not in the interest of our nation. Our government must
now take the moral high ground by resorting to one of the most hallowed
provisions of the United Nations Charter, which was indeed one of the
first principles espoused by the world body in Article 1 of the Charter.
Indeed, one of the Purposes of the UN listed in Article 1 of the Charter
is the development of friendly relations among nations “based on respect
for the principle of equal rights and self-determination of peoples”.
Article 1(1) of the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights
also recognize all peoples’ right to self-determination. This means by
virtue of that right “they freely determine their political status and
freely pursue their economic, social and cultural development”. Article
1(3) of the Covenants enjoins states to “promote the realization of the
right of self-determination” and to also “respect that right, in
conformity with the provisions of the Charter of the United Nations”.
Countless international instruments, apart from the ones mentioned
above, recognize this right.
Therefore, Nigeria does not have to continue making the case that
Bakassians are overwhelmingly Nigerians to support its claim to the
territory. This fact has been accepted by everyone. However, if for
reasons of some questionable ‘colonial’ treaty our people are now being
denied a right to be part of a country they’ve always been, the
principle of self-determination affords them the right to freely
determine their political and national status and development. Nigeria
should be calling on the United Nations to organize a plebiscite in the
region to determine what the people themselves want for themselves. With
the natural and human resources in the area, the Bakassi people can
sustain a nation of their own, if that’s what they want. Nigeria should
be in the vanguard of giving voice to the UN Charter in this regard
without necessarily fighting that these people should be Nigerians. Let
them decide for themselves what they want in line with the principle of
self-determination and let the international community give backing to
whatever decision they take as a people.
Let me
end this by reiterating my basic point. The argument that the October
10, 2002 World Court judgment on Bakassi should mark the end of
Nigeria’s agitation for the peninsula is short-sighted. While the
decision is final, it is only final in the judicial sense (and, even
then, there’s still provision for review within 10 years). But in
international relations, the decision of the Court is not final, because
political and extra-adjudicatory processes can be put in place to
address a recurrent problem that defies judicial solution. The UN
understands that they’re dealing here with a people’s heritage, culture
and their right to self-determination. The Security Council understands
that there is no judicial authority that can defeat a people’s
inalienable right to self-determination. They recognize that the Bakassi
people are protected under the UN Charter itself from the adverse
judgment/decision of any of its organs. But if the Nigerian government
does not get out there and make our case, nobody will make it for us. We
still have the opportunity to save our nation from this monumental
embarrassment by exploiting the provisions of international law and
deploying the right strategies in our dealings with others
internationally. This isn’t about going to war with Cameroon over
Bakassi. We can win back and retain our land without firing a shot. What
we need is for our government to simply act less timid and be more
proactive internationally. Nigeria should simply pull her weight.
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