Non-Corrigé
Uncorrected
Cour internationale International Court
de Justice ofJustice
LAHAYE THE HAGUE
Audiencepublique
tenuelejeudi4mars 2002,àIOheures,au PalaisdelaPaix,
sous laprésidencede Guillaume,président,
en Ifaffairede laFrontièreterrestreetmaritimeentrele Camerounet leNigéria
(Camerounc.Nigéria;Guinéeéquatorial(intervenant))
COMPTE RENDU
YEAR2002
Publicsitting
held on Thursday14March 2002,at 10am., at thePeace Palace,
PresidentGuillaumepresiding,
in thecaseconcerningthe LandandMaritimeBoundaty betweenCamerounandNigeria
(Cameroonv. Nigeria: Equatorial Guineaintervening)
VERBATIM RECORDPrésents:M. Guillaume, président
M. Shi,vice-président
MM. Oda
Ranjeva
Herczegh
Fleischhauer
Koroma
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby,juges
MM. Mbaye
Ajibola,juges ad hoc
M. Couvreur, greffierPresent: President Guillaume
Vice-President Shi
Judges Oda
Ranjeva
Herczegh
Fleischhauer
Koroma
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Judgesad hoc Mbaye
Ajibola
Registrar CouvreurLe Gouvernementde la Républiquedu Cameroun estreprésenté par :
S.Exc. M. AmadouAli, ministred7Etatchargéde lajustice,gardedes sceaux,
comme agent;
M.Maurice Kamto,doyen de la facultédes sciencesjuridiques et politiquesde l'Universitéde
Yaoundé II, membrede laCommissiondu droit international,avocat au barreaude Paris,
M. PeterY.Ntamark, professeur àla facultédes sciencesjuridiques et politiquesde l'université de
YaoundéII, Barrister-at-Law,membrede171nneT r emple, anciendoyen,
commecoagents,conseilset avocats;
M. Alain Pellet, professeuà l'universitéde Paris X-Nanterre,membre et ancien présidentde la
Commissiondudroit international,
commeagent adjoint, conseilet avocat;
M. Joseph Marie Bipoun Woum, professeur à la facultédes sciencesjuridiques et politiques de
l'universitédeYaoundéII,ancienministre, anciendoyen,
commeconseiller spécialet avocat;
M. Michel Aurillac,ancienministre, conseillerd7Etathonoraire,avocat en retraite,
M.Jean-Pierre Cot,professeurà l'université deParis 1(Panthéon-Sorbonne)a,ncienministre,
M. MauriceMendelson,Q. C.,professeur éméritd ee l'université deLondres,Barrister-at-Law,
M.MalcolmN. Shaw, professeur à la facultéde droit de l'universitéde Leicester, titulairede la
chairesir RobertJennings,Barrister-at-Lm,
M. BrunoSimma, professeur à l'université de Munich, membre de la Commission du droit
international,
M.Christian Tomuschat, professeur à l'universitéHumbold de Berlin, ancien membre et ancien
présidentde laCommissiondu droit international,
M. Olivier Corten, professeuàla Facultéde droit del'universitélibrede Bruxelles,
M.DanielKhan, chargéde cours àl'Institutde droit internationalde l'universitéde Munich,
M. Jean-Marc Thouvenin, professeur à l'universitéde Paris X-Nanterre, avocat au barreaude
Paris,société d'avocatsysias,
comme conseilset avocats;The Governmentof theRepublicof Cameroonis represented by:
H.E. Mr.AmadouAli,Minister of Stateresponsiblefor Justice, Keeperofthe Seals,
as Agent;
Mr. Maurice Kamto, Dean, Faculty of Law and Political Science, University of Yaoundé II,
memberof the InternationalLawCommission,Avocatatthe Paris Bar,Lysias Law Associates,
Mr. Peter Y. Ntamark, Professor, Facultyof Lawand Political Science,University of YaoundéII,
Bamster-at-Law, memberofthe Inner Temple,formerDean,
as Co-Agents,CounselandAdvocates;
Mr. Alain Pellet, Professor, Universityof ParisX-Nanterre, member and former Chairman of the
InternationalLawCommission,
as DeputyAgent,Counseland Advocate;
Mr. Joseph-MarieBipoun Woum, Professor,Faculty of Law and Political Science, University of
YaoundéII, formerMinister, formerDean,
as SpecialAdviserand Advocate;
Mr. MichelAurillac,formerMinister,HonoraryConseillerd'État, retiredAvocat,
Mr. Jean-PierreCot,Professor,UniversityofParis 1(Panthéon-Sorbonne)f ,ormer Minister,
Mr. MauriceMendelson,Q.C.,EmeritusProfessorUniversityof London,Barrister-at-Law,
Mr. Malcolm N. Shaw, Sir Robert Jennings Professor of International Law, Faculty of Law,
Universityof Leicester,Barrister-at-Law,
Mr. Bruno Simma, Professor, University of Munich, member of the International Law
Commission,
Mr. Christian Tomuschat, Professor, Humboldt University of Berlin, former member and
Chairman,InternationalLawCommission,
Mr. OlivierCorten, Professor, Facultyof Law,Universitélibre deBruxelles,
Mr. DanielKhan, Lecturer,InternationalLawInstitute,UniversityofMunich,
Mr. Jean-Marc Thouvenin, Professor, University of Paris X-Nanterre, Avocat at the Paris Bar,
LysiasLaw Associates,
as CounselandAdvocates;Sir IanSinclair, K.C.M.G., Q.C., Barrister-ut-Law, ancien membre de la Commission du droit
international,
M.EricDiamantis,avocatau barreaude Paris,Moquet, Bordes & Associés,
M.Jean-PierreMignard, avocataubarreaude Paris,sociétéd'avocatL sysias,
M.Joseph Tjop,consultant àla sociétd'avocats Lysias,chercheurau Centrede droit international
deNanterre(CEDIN),UniversitéParisX-Nanterre,
commeconseils;
M.Pierre Semengue, général d'armée,contrôleurgénéradles armées,ancienchef d'état-majordes
armées,
M. James Tataw,général de division,conseiller logistique,ancien chef d'état-majorde l'arméede
terre,
S.Exc.MmeIsabelleBassong, ambassadeur du Cameroun auprès des pays du Benelux et de
l'Unioneuropéenne,
S.Exc.M. BiloaTang, ambassadeurdu Camerounen France,
S.Exc.M. MartinBelingaEboutou, ambassadeur, représentanp termanent du Cameroun auprèsde
l'organisation desNationsUniesàNew York,
M. Etienne Ateba, ministre-conseiller, chargé d'affaires a.à. l'ambassade du Cameroun,
àLa Haye,
M. Robert Akamba, administrateurcivil principal, chargéde mission au secrétariat géndle la
présidencede la République,
M.Anicet Abanda Atangana, attachéau secrétariat généra dle la présidencede la République,
chargé de courà l'universitédeYaoundéII,
M.Emest BodoAbanda,directeurducadastre,membrede la commissionnationaledesfrontières,
M.OusmaneMey, ancien gouverneurde province,
Le chef SamuelMoka LiffafaEndeley,magistrat honoraire, Barrister-ut-Law,membre du Middle
Temple (Londres),ancien présidentde la chambreadministrativedelaCour suprême,
MeMarc Sassen,avocat et conseiljuridique, sociéPetten,Tideman& Sassen(La Haye),
M.Francis Fai Yengo, ancien gouverneur de province, directeurde l'organisation du territoire,
ministèredel'administration territoriale,
M.Jean Mbenoun,directeur de l'administration centrale au secrétaténéradle la présidencede
laRépublique,Sir Ian Sinclair, K.C.M.G., Q.C., Bamster-at-Law, former member of the International Law
Commission,
Mr.EricDiamantis,Avocat at the ParisBar,Moquet, Bordes & Associés,
Mr.Jean-Pierre Mignard,Avocat attheParisBar,LysiasLawAssociates,
Mr. Joseph Tjop, Consultant to Lysias Law Associates,Researcher at the Centre de droit
international deNanterre(CEDIN), Universityof ParisX-Nantene,
as Counsel;
General Pierre Semengue, Controller-General otfhe Armed Forces, former Head of Staff of the
ArmedForces,
Major-GeneralJames Tataw,LogisticsAdviser,FormerHeadof Staffofthe Amy,
H.E.Ms Isabelle Bassong, Ambassador of Camerootno theBenelux Countriesandto the European
Union,
H.E.Mr.Biloa Tang, AmbassadorofCameroonto France,
H.E. Mr. Martin BelingaEboutou, Ambassador, PermanentRepresentative of Cameroon to the
UnitedNations in NewYork,
Mr. Etienne Ateba, Minister-Counsellor, Chargé d'affairea.i. at the Embassy of Cameroon,
The Hague,
Mr. Robert Akamba, Principal Civil Adrninistrator, Chade mission, General Secretariatof the
Presidencyof theRepublic,
Mr. AnicetAbandaAtangana, Attaché to the General Secretariatof the Presidency ofthe Republic,
Lecturer,Universityof YaoundéII,
Mr. Ernest Bodo Abanda, Director of the Cadastral Survey, member, National Boundary
Commission,
Mr. OusmaneMey, former Provincial Governor,
Chief Samuel Moka Liffafa Endeley, Honorary Magistrate, Barrister-at-Lawm , ember of the
Middle Temple (London), former Presidentof the Administrative Chamber of the Supreme
Court,
Maître MarcSassen,Advocate andLegalAdviser,Petten,Tideman & Sassen(TheHague),
Mr.FrancisFai Yengo,formerProvincial Governor, Director,Organisationdu Territoire,Ministry
of Territorial Administration,
Mr. Jean Mbenoun,Director, Central Administration, General Secretarotf the Presidencyof the
Republic,M.Edouard Etoundi, directeur de l'administrationcentrale au secrétariatgénérade la présidence
de la République,
M.RobertTanda,diplomate, ministère desrelationsextérieures
commeconseillers;
M. SamuelBetahSona, ingénieur-géologue, expecro tnsultantdel'organisation des Nations Unies
pour le droitde la mer,
M.Thomson Fitt Takang, chef de service d'administration centrale au secrétariatgénéral de la
présidencede la République,
M.Jean-JacquesKoum, directeurde l'exploration,société nationaledes hydrocarbures (SNH),
M. Jean-Pierre Meloupou, capitaine de frégate,chef de la division Afiique au ministèrede la
défense,
M.Paul Moby Etia, géographe, directeu dre l'Institutnational decartographie,
M.AndréLoudet,ingénieurcartographe,
M.AndréRoubertou,ingénieurgénéral de l'armement, hydrographe,
commeexperts;
Mme MarieFlorence Kollo-Efon, traducteur interprète principal,
commetraducteurinterprète;
Mlle CélineNegre, chercheurau Centrede droit internationaldeNanterre (CEDIN),Universitéde
ParisX-Nanterre
Mlle SandrineBarbier,chercheurau Centre de droit internationaldeNanterre (CEDIN), Université
deParis X-Nanterre,
M. Richard Penda Keba, professeur certifié d'histoire, cabinedtu ministre de la justice, ancien
proviseurdelycées,
commeassistantsde recherche;
M.Boukar Oumara,
M. Guy RogerEba7a,
M.AristideEsso,
M.Nkende Forbinake,
M.Nfan Bile,Mr. Edouard Etoundi, Director, Central Administration, GenerS alecretariat of the Presidency of
theRepublic,
Mr. RobertTanda,diplomat, MinistryofForeign Affairs,
asAdvisers;
Mr. SamuelBetah Sona,Geological Engineer, Consulting Experttothe UnitedNations forthe Law
ofthe Sea,
Mr. ThomsonFitt Takang, DepartmentHead, Central Administration, General Secretariatof the
Presidencyofthe Republic,
Mr. Jean-JacquesKoum,DirectorofExploration, NationalHydrocarbonsCompany (SNH),
Commander Jean-Pierre Meloupou, Head of AfiicaDivisionat the MinistryofDefence,
Mr.PaulMobyEtia, Geographer, Director,Institut nationalde cartographie,
Mr.André LoudetC , artographicEngineer,
Mr. André Roubertou, Marine Engineer, Hydrographer,
as Experts;
MsMarie Florence Kollo-Efon, Principal Translator-Interpreter,
as Translator-Interpreter;
Ms Céline Negre, Researcher,Centre d'étudesde droit international de Nanterre (CEDIN),
UniversityofParis X-Nanterre,
Ms Sandrine Barbier, Researcher, Centre d'étudesde droit international de Nanterre(CEDIN),
UniversityofParis X-Nanterre,
Mr. Richard Penda Keba,Certified Professor of History, cabinet of the Minister of State for
Justice, formerHead ofHigh School,
as ResearchAssistants;
Mr. Boukar Oumara,
Mr.GuyRogerEba7a,
Mr.Aristide Esso,
Mr.Nkende Forbinake,
Mr. NfanBile,M. Eithel Mbocka,
M. OlingaNyozo'o,
commeresponsables de la communication;
Mme RenéeBakker,
Mme Lawrence Polirsztok,
Mme Mireille Jung,
M.Nigel McCollum,
Mme TeteBéatriceEpeti-Kame,
commesecrétairesde la délégation.
Le Gouvernementdela République fédérale duNigériaestreprésenté par :
S. Exc. l'honorableMusa E. Abdullahi, ministred3Etat,ministre de la Justice du Gouvernement
fédéradluNigéria,
commeagent;
Le chef RichardAkinjide SAN, ancien Attorney-General de la Fédérationm , embre du barreau
d'Angleterreetdu pays de Galles, ancienmembre de laCommissiondu droit international,
M. AlhajiAbdullahi Ibrahim SAN, CON, commissairepour les frontières internationales,
commissionnationaledesfrontièresduNigéria, ancien Attorney-Generalde la Fédération,
commecoagents;
MmeNella Andem-Ewa, Attorney-General ectommissaire à lajustice, Etat de CrossRiver,
M. Ian Brownlie, C.B.E., Q.C., membre de la Commission du droit international, membredu
barreau d'Angleterre, membrede l'Institutde droit international,
Sir Arthur Watts, K.C.M.G.,Q.C.,membredu barreau d'Angleterre,membre de l'Institut de droit
international,
M. JamesCrawford, S.C., professeurde droit internationàl'universitéde Cambridge, titulairede
la chaire Whewell,membre des barreaux d'Angleterre et d'Australie, membr dee l'Institut de
droit international,
M. GeorgesAbi-Saab, professeur honoraire à l'Institut universitaire de hautes études
internationalesde Genève,membrede l'Institutde droit international,
M. Alastair Macdonald, géomètre, ancien directeuer170rdnanceSuwey,Grande-Bretagne,
commeconseilset avocats;
M. TimothyH.Daniel,associé,cabinetD.J.Freeman,Solicitors, Cityde Londres,Mr.Eithel Mbocka
Mr.OlingaNyozo'o,
as Media Oficers;
MsRenéBakker,
MsLawrencePolirsztok,
Ms MireilleJung,
Mr.Nigel McCollum,
MsTete BéatriceEpeti-Kame,
as Secretaries.
TheGovernmentoffheFederalRepublicofNigeriaisrepresentedby:
H.E.the HonourableMusa E.Abdullahi, Minister of State for Justiceof the FederalGovemmentof
Nigeria,
asAgent;
ChiefRichard Akinjide SAN, Former Attorney-Generalof the Federation, Memberof the Bar of
EnglandandWales, formerMemberof the International LawCommission,
AlhajiAbdullahiIbrahim SAN,CON, Commissioner, International BoundariesN , ational Boundary
CommissionofNigeria,Former Attorney-General of the Federation,
as Co-Agents;
Mrs.Nella Andem-Ewa, Attorney-General and Commissioner forJustice, CrossRiver State,
Mr. Ian Brownlie,C.B.E., Q.C., Member ofthe International LawCommission, Member of the
EnglishBar,Memberof theInstituteofInternational Law,
Sir Arthur Watts, K.C.M.G., Q.C., Member of the English Bar, Memberof the Institute of
InternationalLaw,
Mr. James Crawford, S.C., Whewell Professor of International Law, University of Cambridge,
Memberof theEnglish and Australian Bars, Membeo rf the Instituteof InternationalLaw,
Mr. Georges Abi-Saab,Honorary Professor,Graduate Institute of International Studies, Geneva,
Memberof theInstituteof International Law,
Mr.Alastair Macdonald, Land Surveyor, Former Director, OrdnancS eurvey, GreatBritain,
as CounselandAdvocates;
Mr.Timothy H.Daniel, Partner,D. J. Freeman, Solicitors, City London,M. Alan Perry,associé,cabinetD.J. Freeman,Solicitors,Cityde Londres,
M. David Lerer,solicitor, cabinetD.J. Freeman,Solicitors,Cityde Londres,
M. ChristopherHackford,solicitor, cabinetD.J.Freeman,Solicitors,Cityde Londres,
Mme CharlotteBreide, solicitor, cabinetD.J.Freeman,Solicitors,CitydeLondres,
M. Ned Beale,stagiaire,cabinetD.J. Freeman,Solicitors,Cityde Londres,
M. GeoffreyMarston, directeur du département des étudejs uridiques au Sidney Sussex College,
Universitéde Cambridge, membredu barreaud'Angleterreet du Paysde Galles,
M. MaxwellGidado, assistant spécial principal du président pour les affaires juridiques et
constitutionnelles,ancienAttorney-Generalet commissaireàla Justice,Etat d'Adamaoua,
M. A. O.Cukwurah, conseiladjoint, ancien conseilleren matière de frontieres(ASOP) auprèsdu
Royaumedu Lesotho,ancien commissairepour les frontieres inter-Etats,commissionnationale
des frontières,
M. 1.Ayua,membre del'équipejuridiqueduNigéria,
M. K. A.Adabale, directeurpourledroit internationalet ledroitcomparé,ministère delajustice,
M. Jalal Arabi,membrede l'équipejuridiqueduNigéria,
M. GbolaAkinola,membrede l'équipe juridique duNigéra,
M. K. M.Tumsah, assistant spécialdu directeurgénérad le la commissionnationale des frontières
et secrétairede l'équijuridique,
commeconseils;
S. Exc. l'honorableDubemOnyia,ministredYEtatm , inistredes affairesétrangères,
M. AlhajiDahiru Bobbo,directeurgénéralc ,ommissionnationaledes frontières,
M. F. A.Kassim, directeur généradlu servicecartographiquede la Fédération,
M. AlhajiS.M. Diggi, directeurdesfrontièresinternationales, commissionnationaledes frontières,
M. A. B.Maitama,colonel,ministèrede la défense,
M. AliyiuNasir, assistantspécialduministred'Etat,ministrede la Justice,
commeconseillers:
M. ChrisCarleton,C.B.E.,bureauhydrographiqueduRoyaume-Uni,
M. Dick Gent,bureau hydrographiquedu Royaume-Uni,
M. Clive Schofield,unitéde recherchesur lesfrontièresinternationales,UniversitédeDurham,
M. Scott B.Edmonds,directeurdesopérationscartographiques,International MappingAssociates,Mr.Alan Perry,Partner,D.J. Freeman, Solicitors, Cityof London,
Mr.DavidLerer,Solicitor, D.J. Freeman, Solicitors,City of London,
Mr.Christopher Hackford,Solicitor,D.J. Freeman, Solicitors, Cityof London,
MsCharlotte Breide, Solicitor, D..Freeman,Solicitors,City of London,
Mr.Ned Beale,Trainee,D.J. Freeman, Solicitors,City ofLondon,
Dr. GeoffreyMarston,Fellowof Sidney SussexCollege,Universityof Cambridge; Memberof the
Bar of Englandand Wales,
Mr. Maxwell Gidado, Senior Special Assistantt the President(Legal and Constitutional Matters),
FormerAttorney-Generaland Commissioner forJustice,Adamawa State,
Mr. A. O. Cukwurah, Co-Counsel, FormerUN (OPAS) Boundary Adviser to the Kingdom of
Lesotho,Former Commissioner, Inter-State Boundaries, National Boundary Commission,
Mr. 1.Ayua, Member, NigerianLegalTeam,
Mr.K. A. Adabale,Director(Internationaland ComparativeLaw) Ministryof Justice,
Mr.Jalal Arabi,Member, NigerianLegalTeam,
Mr.GbolaAkinola, Member, Nigerian LegaT l eam,
Mr. K. M. Tumsah, Special Assistantto Director-General, NationalBoundary Commission and
Secretary tothe LegalTeam,
asCounsel:
H.E.the HonourableDubemOnyia,Ministerof Statefor Foreign Affairs,
AlhajiDahiruBobbo, Director-General, National Boundary Commission,
Mr.F. A. Kassim, Surveyor-General of the Federation,
AlhajiS. M.Diggi,Director(International Boundaries), National Boundary Commission,
ColonelA. B.Maitama,Ministry of Defence,
Mr.AliyuNasir,SpecialAssistantto the Minister ofStatefor Justice,
asAdvisers;
Mr. ChrisCarleton,C.B.E.,United KingdomHydrographicOffice,
Mr.Dick Gent,United KingdomHydrographic Office,
Mr. Clive Schofield, International Boundaries Research Unit, Universiofurham,
Mr. ScottB.Edmonds,Directorof CartographicOperations, InternationalMapping Associates,M.RobertC. Rizmtti, cartographe principal,International Mapping Associates,
M. BruceDaniel,International MappingAssociates, .. .
MmeVictoria J. Taylor,International MappingAssociates,
MmeStephanieKimClark,InternationalMappingAssociates,
M.RobinCleverly,Exploration Manager,NPAGroup,
MmeClaire Ainsworth,NPA Group,
comme conseillersscientifiqueset techniques;
M. Mohammed Jibrilla,experten informatique,commission nationaledes frontières,
Mme CoralieAyad, secrétairec ,abinetD. J. Freeman,Solicitors,Cityde Londres,
Mme ClaireGoodacre, secrétairec ,abinetD. J. Freeman,Solicitors,City de Londres,
MmeSarahBickell, secrétairec ,abinetD.J. Freeman,Solicitors,Cityde Londres,
MmeMichelle Burgoine, spécialisteen technologie de l'information, cabinet D. J.Freeman,
Solicitors,CitydeLondres,
commepersonnel administrat$
M. GeoffreyAnika,
M.MauOnowu,
M. Austeen Elewodalu,
M.UsmanMagawata,
commeresponsablesdela communication.
Le Gouvernementde la Républiquede Guinéeéquatoriale,qui est autorisée à intervenirdans
l'instance, est représenéar :
S. Exc. M. RicardoMangueObamaN'Fube, ministre dYEtat,ministre du travail et de la sécurité
sociale,
commeagentetconseil;
S.Exc. M.RubénMayeNsue Mangue, ministre de la justice et des cultes, vice-présidentde la
*
commissionnationaledes frontières,
S.Exc. M. CristobalMafianaElaNchama, ministre des mines et del'énergie,vice-présidentde la
commissionnationaledes frontières,
M.DomingoMbaEsono, directeur national de la société nationale de pétrole de
Guinée équatoriale, membre d lecommission nationaledes frontières,Mr. Robert C.Rizmtti, Senior MappingSpecialist,InternationalMappingAssociates,
Mr. Bruce Daniel, International Mapping Associates,
Ms VictoriaJ. Taylor, International Mapping Associates,
Ms Stephanie Kim Clark, International appingAssociates,
Dr.Robin Cleverly, Exploration ManagerN, PA Group,
Ms ClaireAinsworth, NPAGroup,
asScientificand TechnicalAdvisers;
Mr. Mohammed Jibrilla, Computer Expert, National Boundar Cyommission,
Ms Coralie Ayad, Secretary,D.J. Freeman, Solicitors, Cityof London,
Ms Claire Goodacre, Secretary, DJ. Freeman, Solicitors,City of London,
Ms SarahBickell,Secretary,D.J. Freeman, Solicitors, Cityof London,
Ms MichelleBurgoine,IT Specialist,D.J.Freeman, Solicitors, Cityof London,
asAdministrators,
Mr.Geoffrey Anika,
Mr. MauOnowu,
Mr. Austeen Elewodalu,
Mr.UsmanMagawata,
as Media Offieers.
TheGovernmentof the RepublicofEquatorial Guinea,whichhasbeenpermittedto intervenein
thecase, is representedby:
H.E. Mr.RicardoMangueObamaN'Fube,Ministerof Statefor Laborand Social Security,
asAgent andCounsel;
H.E. Mr. RubénMaye Nsue Mangue, Minister of Justice and Religion, Vice-Presidentof the
National Boundary Commission,
H.E. Mr. CristobalMafiana Ela Nchama, Minister ofMines and Energy, Vice-President of the
National Boundary Commission,
Mr. Domingo Mba Esono, National Director of the Equatorial Guinea National Petroleum
Company, Memberof theNational Boundary Commission,M. AntonioNzambi Nlonga,Attorney-General,
commeconseillers;
M. Pierre-Marie Dupuy, professeur de droit international publicà l'université de Paris
(Panthéon-Assas)etàl'InstitutuniversitaireeuropéendeFlorence,
M. DavidA. Colson, membre du cabinet LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
Washington, D.C., membre du barreau de 1'Etat de Californie et du barreau du district de
Columbia,
commeconseils et avocats;
Sir DerekBowett,
commeconseilprincipal,
M. DerekC. Smith, membre du cabinet LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
Washington,D.C., membre du barreau du district de Columbia et du barreau de 1'Etat
de Virginie,
commeconseil;
Mme JannetteE. Hasan, membre du cabinet LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
Washington, D.C., membre du barreau du district de Columbia et du barreau de 1'Etatde
Floride,
M. HervéBlatry, membredu cabinetLeBoeuf,Lamb, Greene & MacRae, L.L.P.,Paris, avocàla
Cour,membredubarreau de Paris,
commeexpertsjuridiques;
M. CoalterG. Lathrop,SovereignGeographicInc., Chape1Hill,Caroline duNord,
M. Alexander M. Tait,Equator Graphics,SilverSpring,Maryland,
commeexperts techniques.Mr. AntonioNzambiNlonga, Attorney-General,
asAdvisers;
Mr. Pierre-Marie Dupuy, Professor of Public International Law atthe University of Paris
(Panthéon-Assas) anat the EuropeanUniversity Institutein Florence,
Mr. DavidA. Colson,LeBoeuf, Lamb, Greene & MacRae,L.L.P., Washington,D.C., member of
the California StateBar and Districtof Columbia Bar,
asCounselandAdvocates;
SirDerekBowett,
asSenior Counsel;
Mr. DerekC. Smith, LeBoeuf, Lamb,Greene & MacRae,L.L.P., Washington,D.C.,member of the
Districtof ColumbiaBar and VirginiaState Bar,
asCounsel;
Ms JannetteE. Hasan,LeBoeuf, Lamb,Greene & MacRae, L.L.P., WashingtonD, .C., memberof
the Districtof ColumbiaBar andFlorida StateBar,
Mr. Hervé Blatry, LeBoeuf, Lamb,Greene& MacRae, L.L.P., Paris, Avocàtla Cour, memberof
the ParisBar,
asLegalExperts;
Mr. CoalterG. Lathrop,Sovereign GeographicInc.,Chape1Hill, North Carolina,
Mr. Alexander M. Tait,EquatorGraphics,Silver Spring,Maryland,
as TechnicalExperts. Le PRESIDENT :Veuillez vous asseoir. Laséanceest ouverte. Nous entamons aujourd'hui
le deuxième tourde plaidoiries pourla République Fédérale du NigérJ ie.donne immédiatement
laparole auchef Richard AkinjideSan, coagent de la République Fédérale du Nigéria.
Mr. AKINJIDE:
1. Mr. President, distinguished Members of the Court. It is again my privilegeto address
this honourableand august Courtin openingthe secondroundof oral presentations forthe Federal
Republic of Nigeria. This is a great honourfor me, appearingbefore the most powerful and the
most prestigious courtin the world. 1have been associatedwith this case fiom its outset in
March 1994.
2. Before 1proceed with my presentation 1would like to acknowledge thepresence in court
on my lefi ofHis Majestythe Obong ofCalabarand his Majesty'sQueen,and his seniorEtubul of
Bakassi, who is also Sittingon the left of Her Majesty. To give them their full title, 1state as
follows: HisMajesty Edidem, Professor Nta Elijah Henshaw VI, the Obong of Calabar, Treaty
King, NaturalRuler and GrandPatriarchof theEfiks whereverthey may be,and on His Majesty's
immediate left is Her Majesty Mrs. Grace Henshaw, and immediateltyo the lefi of Her Majestyis
HisRoyal HighnessEtubom,OkonEtimOkon AsuquoIII,who isthe EtinyinAkambaof Bakassi.
3. Mr. President, 1would liketo begin with a comment on some of the remarks madeby
Cameroon'sCo-Agent in his openingof Cameroon'ssecondround presentation. 1will, if1may,
summarize themin English. On the one hand,he criticizes Ourteam for "not playingthe gameat
the public hearings" by repeating matters containedin Nigeria's pleadings. On thother hand,he
said that there were new elements which wouldraise eyebrows. He accusedus of contradictions
and of tryingtoensurethat the Courtdoesnot rule on Cameroon's request. He saidwe claimed to
be consistentbut were inconsistentandthatOurinconsistencies developedthe casein sucha wayas
to bringus closertogetherin certain respects.
4. Mr. President,l1theseremarks leaveme in a state ofsome confusion. Nigeria believesin
givingthe factsto the Courtin an effortto assistthe Courtin reaching adecision. Wehavetriedto
do this in as straightfonvard away as possible and will leaveto the Court the questionof deciding
on the validityof our submissions. Nigeria hasnothingto fearfiom the Court's scrutinyof its case.One strikingfeatureof the oral procedure is that it highlightsthe credibilityof the assertions being
made by eachof the Parties. By credibility, Mr. President,1do not mean relativelyminor matters
such as an incorrect statistic or two- such errors can always be corrected. No, what1 am
referring to is the good faith of the Parties. In this respect it is my sincere belief that the Court,
when it analysesal1thathas been saidand written,will not find Nigeriawanting. Time andagain,
however,Nigeria's advocateshavehad to highlight issues on whichCameroon seemseither to fail
to face up to the truth and inventsnew allegationsor in some cases avoids the truth altogether.1
shall refer to some of these issuesin my presentationtoday: others willbecome apparentduring
the presentationsof my colleagues.
5. It is, however,Cameroonwhich seeksto make outthat Nigeriais a countrywhich cannot
be trusted and fails to keepher word. Nowherewas thismore apparentthan in the closingremarks
of Cameroon'sdistinguishedAgenton Tuesday. He madeit clearthat Cameroonis, in fact,unable
to sit down with Nigeriain the sameroom without third parties being present "to see fair play".
This is a remarkable assertion,Mr.President, and one which has greatly saddenedthe Nigerian
team.
6. It will not haveescapedtheCourt'snoticethat, fortunately,Nigeria's otherneighboursdo
not seem to suffer from the same paranoia. The examples of Nigeria's treaties with Equatorial
Guinea and Sao Tome and Principe give the lie to Cameroon's assertion that Nigeria is an
impossibleneighbour. Yet, Cameroon cannot bearto seethese examplesof Nigeria's willingness
to encourageinternational CO-operation.We are accused of having used threats or worse in order
to bully Ourneighbours into submittingtothesetreaties.
7. Mr.President and Members of the Court, Equatorial Guineawill be able to speak for
herselfduringthe interventionroundnext week. Sao Tomeand Principeis not beforethe Court-
to Cameroon'sapparentregret. Nigeria regretsthat too. IfSaoTome and Principehad been before
the Court shewouldhavebeen ableto tell theCourt how the two countrieshave negotiated oneof
the largestjoint developmentzones inthe world in which resources wilbl e sharedon a60140basis:
that is, 60per cent willgoto Nigeria, with a populationof 120million atleast, and40 per cent will
go to SaoTome andPrincipe whichhas a populationof approximately 120,000. Such generosity
onthe part ofNigeria doesnot sendout the messageof a bullying Stateor a bullying neighbour. 8. In addition to the treaties 1havejust referred to, Mr.President, Nigeria is, as has been
mentioned, negotiating a maritime boundary treaty with her western neighbour, that is, the
Republic of Benin. Whenthe result of those negotiations is seen,Nigeria does not thinkthat she
will be accused of having pressurized her much smaller neighbour into an unfair or inequitable
bargain.
9. As to Nigeria's other boundaries,Nigeria and Benin have a Joint Boundary Commission
which meets on a regular basis and is makingreal progress withresolving issueson theircornmon
boundary. The same goes for Nigeria's northem neighbour,the Republic of Niger. TheNational
Boundary Commissionis tackling these boundaries with al1the benefits of modem technology,
including GPSand satelliteimagery. Mapsthat are being used are at a scaleof 1:50,000and are,
forthe most part,maps producedby DOSand IGN. There are issuesrelatingto villageswhich are
"on the line", yet these issues are being resolved amicably in a constructive atmosphere
unhamperedby fear, despitethe disparityinthe sizesof the respectivepopulations.
10. Mr.President, so where is Cameroon'sproblem? Insteadof Sittingdown withNigeria,
shehas felt it necessaryto come beforethis honourable Courtand involveboth Parties in lengthy
proceedings involvinghuge expenses. At the end of the day, she asks the Court to set up some
kind of arbitration procedureinvolvingthird parties. Mr.President,you willbe hearingmorefiom
my colleaguesconceming these proposals. 1wouldjust like to place on recordthat Nigeriafinds it
extraordinarythat Cameroonseems nownot only to be unable to trust Nigeria but now,also, she
seems unable to tmst the outcome of theseproceedings,at leastin so far as they relateto the land
andmaritimeboundaries.
11. Following theseremarks, 1wouldlike to move on to someof the specific issuesraised in
theseproceedingsand do sonot onlyasamemberofNigeria'slegalteam sincethe inceptionof the
case in March 1994, but alsoas a formerAttorney-Generaland Minister of Justice of the Federal
Republic ofNigeria duringthe last civiliangovemment, that of President ShehuShagari,who was
inpower fiom 1979to 1983.
12. 1 think it is quite true to Say, Mr. President and Members of the Court, that when
President Shagari came to power, Our relations with Our neighbour Carneroon were cordial.
Negotiationsonboundaryissues,manyofwhich were listedbyme duringthe course of thehearingon Nigeria's second preliminary objectio,ere proceedingmuch asthey had alwaysdone. There
were joint committees of technical experts, politicalmeetings and joint confidence-building
measures. Progressmay havebeen relativelyslow, but thisstemmedinpart from thefactthatthere
was no hint of any realtroublealongOurextensivecommonlandboundary.
Bakassi
13. Al1 this changed dramatically in May 1981. The incident of 16May 1981 has been
referredto rightkomthe start of these proceedings. Nigeria,1believe, demonstrated beyondany
reasonable doubt that Cameroonwas the aggressor, yet Cameroon still attempts to paint the
incident in differentcolours. What 1can be sure about, Mr. President,and Membersof the Court,
is the effect it had on PresidentShagari's Govemment. That Governmentwas galvanized. Outof
the blueNigeria had a neighbour, whom shehad previously regardedas friendly, ambushingand
killing members of her armed forces. The outrage in Nigeria was huge: PresidentShagari7s
Cabinet metin urgent session. It was a clear act of provocationon the part of Cameroon which
might have had very serious consequences. But, in the event, Nigeria wasnot provoked. We
decided togive Cameroon the chance toapologize. Cameroon, sensibly, took that chance.But a
marker had been laid down. In my own case, as Ministerof Justice and the Attorney-General1
resolved to probemore deeply into the legalsituation regarding Ourcommon boundary. 1caused
extensive research to be undertaken. That research was still continuing when
PresidentShehu Shagari's Govemmentwas overthrownbythe militaryat the endof 1983.
14. In conducting that research,1 came, in particular, torealize that Cameroon had a
potential claimto Bakassi basedon the 1913Treaty. Atthe sametime, however, 1knew thatthere
was something radically wrong here. Bakassw i as, and so far aswas aware, had always been,
regardedby Nigerians as beingpart of Nigeria. It was inhabitedby Nigerians and was govemed
by Nigerians formingpart of the localgovemment area in that region. There had not, so far as 1
was aware,been a Cameroonian claim toBakassi as such. Over the years that followed,and in
particularduringthe courseof the preparationof Nigeria'swritten pleadin1have becomeaware
of the existenceof one orwo ProtestNotesbut 1can honestlySaythat, at the time1was in office
as Attorney-General,Bakassihadnot, untilMay 1981,beenregarded as aproblem. 15. Mr. President, in retrospectthis seems the more amazing when one considers the
prominencewhich Cameroonhas givento the 1975Maroua Declaration in these proceedings.
16. 1would like, if1may, to give my ownperception of Maroua. In doing so,1shouldSay
that it is,1believe, a perception whichis shared by many Nigerians.The MarouaDeclaration was
made on the 1June 1975. Less than two months later, to be exact in July1975,
General YakubuGowonwas overthrown in a bloodless military coup.
17.Itwas not longbefore Nigerians beganto question the validityof the Maroua Declaration
and, inparticular, GeneralGowon'sabilityunderthe Constitutionto haveboundNigeriato it. You
will hear more on the constitutional positionlater in our presentations. Whatis quite clear,
however, is that in 1978, in the Nigeriancity of Jos, Nigeria had made it absolutely clearto
Cameroon thatshe didnot regard Maroua as being binding upon her.Cameroonhas accepted that
this was theposition.
18. Mr. Presidentand Membersof the Court, 1have to say that there were many practical
reasons for Nigeria not to regard Maroua as a binding instrument, quite apart fiom the
constitutional issues. One glance at the map on the screen andat tab 1of thejudges' folderwill
showthecausesofNigeria's concems.[Graphic1 :map ofCrossRiverIcalabar estuary.]
19. Mr. President,the Court has been shown variations of this map many timesduringthe
course of these proceedings. There arefour majorrivers whichdrain intothe CrossRiver estuary.
There is the Cross River itself, there is the Calabar River, the Kwa River and thereis the Akwa
Yafe River. The estuarygives accessto Calabar,a largeNigerian citywhich was very nearly made
the capital ofNigeria, but Lagos was chosen instead. At CalabarNigeria has a major navalbase.
Nigerian navy vesselsproceed up and down the estuary on a daily basis. The estuary is
approximately20 km wide. Anyvesse1passingup and downthe estuaryis well within gunshotof
eitherbankof the estuary.
20.The implicationsare obvious,Mr. President. CanNigeriaseriouslycontemplate having a
majorpart of her fleetpassing up anddown a narrow stretch ofwater on a regular basis beneath the
guns of Cameroon? It isjust not credibleromapractical,military pointof view.
21. Yet this would be the practical result if the MarouaDeclaration were to be regardedas
conferring sovereigntyover Bakassion Cameroon. 22.Nigeria admitsthat there is,for Cameroon, anaccessproblem asfar as the Akwa Yafe is
concerned. This watercourse forms,for most of itslength,a major landboundary. It wouldseem
obviousthat both Nigeriaand Carneroonshouldhave equalaccess to the river which dividesthem.
In reality,however, themajority of Camerooniantrafficwhich comesup the Cross Riverestuaryis
bound for Calabar. Verylittle Camerooniantraffic,in fact,goes up theAkwa Yafewhich is, in any
event, only navigable for about 50km before reaching the first set of rapids. This is probably
because there is not muchneed for it to do so as Calabar,with al1its markets, is the major local
commercialcentre.
23. Nigeria would have had no objection in principle to access to the Akwa Yafe being
granted to the normalrivertraffic of Cameroonor indeedboats of any other nationality, subjectto
proper controls. 1understandthat the Court in the recent case of Kasikili/SeduduIsland between
Namibia andBotswana recognized,of its own volition,access to the Botswanan southem channel
of the Chobe River by Namibian tourist boats. Nigeriawould have no difficulty with a similar
arrangementgranting accessto the AkwaYafe.
24. 1said earlierthat 1commissioned research intothe legal statusof the Nigeria-Cameroon
boundary. As a result ofmy efforts aconsiderablebodyof documentaryevidence was amassed. 1
was, as 1said, never ableto take the rnattervery rnuchfurther fonvard because of the downfallof
the Government. 1thinkhowever it isworth makingtwopoints here. The first is that, even atthat
early stage, 1 did have cause to look at the earlierTreaties of Protection and 1was stnick by the
same thought that has been articulated so effectivelyby Sir Arthur Watts. As a common-law
lawyer,1was unable to"trace title" fromthe Kings andChiefs to Germany viaGreatBritain. The
Roman doctrine "nemodut quod nonhabet" is a basic concept in every legal system, asfar as 1
know. The second point 1 would like to make is that, with al1 due respect to my learned
predecessor in office asAttorney General,Dr.T. O.Elias, and his statureas a public international
lawyer, 1 have no means of knowing what materialshe had at his disposa1when he wrote that
opinion. A lawyer's opinion is onlyasgood ashisbriefing.
25. Following the military coup at the end of1983,1had effectively to live abroad for the
next ten years or so. Whilst I thought from time to tirne about the Bakassi situation1 was not
aware of outward change. Nigerian citizens continued tolive in peace on Bakassias far as 1 wasaware. No doubtthere continuedto be occasional harassmentby Cameroongendarmes but, in a
way,there wasnothing newinthat. It was well knownthat Cameroon gendarmeswere poorlypaid
and that the Nigerians livingin Bakassi and, indeed, in otherborder regions, were hard working
and,relativelyspeaking,prosperous.
26. Mr. President,one has only to look at thefishing fleetsailing fiom West Atabongto see
thatthese are seriousfishermen- we counted nearly100largecanoes on Ourfield trip in 1997. If
youvisit mainlandAtabong you will seenot onlylarge open ferryboats transfemng peopleto and
fiom the mainlandto the Atabongs on Bakassi - that is WestAtabong and East Atabong- but
also huge quantities of fish being landed and loaded into refiigeratedtrucks to be transported
inland. Fish is,and has always been,an importantstapleintheNigerian diet.
27. By contrast,as 1know fiom having spokento theNigerian fishermenon Ourfield trips,
there is no great activity by Carneroon fishermenalong the Coast. At West Atabong we have
fishermen fiomas far afield as Ghana, Beninand Togo, fishingfreely alongsideNigerians in the
waters in and around Bakassi. Seldom, if ever, do Cameroonfishermen appear. Whenthey do
appearNigeriadoesnot shootthem. Regrettably,that has notbeen the casewithOurneighbours,as
Nigeria's counter-claims have showna,nd by that"neighbour"we mean Cameroon. In any event,
the existence of a peaceful, wellorganized and relatively prosperous community livingnear the
bordersof Nigeria has, over the years, been an irresistible targetfor Cameroonianofficials intent
ontraditionalmethodsof supplementingtheir nodoubtmeagre persona1income.
28. The Courthas seenthe photographs ofBakassiprovided by Nigeria. It has alsoseenthe
short video. The Court will thereforehave some understandingof the topography of the area.
Cameroon's counsel called into questiotnhe descriptionsof Bakassi vegetationgiven byNigeria in
variouspleadings and in her first round speeches. He also called into question the ability of the
areato support the populationclaimed'byNigeria.
29. It is regrettable, but perhaps unsurprising, thatCameroon, although she claimsto
administer theterritory, has not been able to produce any visual evidence of her activiq on
Bakassi, eitherpresent or past. Had Cameroon beenable to see for itself howthe population on
Bakassiis distributed,itwould nothavemadethecommentsthat itdid. 30. Carneroon'scounsel did a rough calculationof the area of Bakassi and came up with
entertaining analogies between Bakassi,the Netherlands and Manhattan. Interestingly,he was
probably closer to the mark with his Manhattananalogy than with the Netherlands, whichhe
described as Europe's mostdensely populated country. One does not have to go very far out of
TheHague, or even within The Hague itself, to seethat houses occupy large sites, many have
gardensand inthecountrythey are fiequentlysurroundedby acresof glasshousesandtuiipfields.
3 1. Mr. Presidentand Membersof the Court, Bakassi isnot like that. The houses,many of
which are built of light materialsuch as cane andpalm leaves, are literallycheek byjowl. It is
difficultoften to tell whereone house endsand thenext house begins. The scarcity of land makes
it necessary to utilizeevery available square metre. If youlook at the Settlementscomprising
houseson stilts, youcan see those housesstretchingfor perhaps 1km or more alongthe riverside
with semed ranks of houses behind. A small exampleof this type of village is shown on screen
now and at tab 2 in the judges' folder [graphic2: stilt village].Each house will contain a
fisherman, his wife or wives and children, grandparentsand perhaps members of the extended
familyas well, inthe Africantradition. Evenon Manhattan theydonot pack people in like that,do
they?
32. Mr.President andMembersof the Court,the same is true of the land utilization on dry
land at places like the Atabongs- that is West Atabong and East Atabong- and at Abana.
Thoseare settlements whichare built on low-lyingsandy promontories. The streets are so narrow
that if you stretchedout both arms you would touchthe buildings on the other side. This is the
realityof the villages nestling inthe mangrovereas.
33. Of course,as one movesnorth,as the Courthas seenfiom the map of Bakassiwhichhas
beenshown so frequently,towns like Archibongareno longerinthe mangrovebelt and thatis why
onesaw extensive areasof greenopen spacesnear theschoolsinthevideo presentation.
34. By the time 1 retumed to Nigeria in late 1993, the situation in Bakassihad.clearly
deterioratedconsiderably. In fact, somuch had it gone bad thatthe Governmentfelt it necessary,
as we know, to send in army detachmentsin orderto protect the local population and inorder to
quel1unrest that had arisen as the resultof the competingclaims of CrossRiver and AkwaIbom
States- both of them inNigeria. In nosensecouldthat be termedan invasion, as Cameroonis sofond of describingit. There had always beenNigerian troops in the area, as the incidentof 1981
demonstrates. The resources were increasedat the end of 1993 because cif'perceivedthreats to
Nigeriansovereigntyover the Bakassi Peninsula.
35. Cameroon'sclaimsto the substantialNigerian populationwhich liveson Bakassiarejust
incomprehensible to Nigeria. Mr. President, as Cameroon has been fondof saying in these
proceedings, she always "offers hospitality" to a substantial Nigerian population in Cameroon.
Why does she want more Nigeriansto join theparty? In particular,why should she want a large
group of Nigerians who clearly feel ver- strongly abouttheir nationality and ties to Nigeria? It
seemsto methat Cameroonwouldonlybe storingup troubleforherself with the people ofBakassi
if shewereto succeedin her claims.
36. Mr. President and Members of the Court, Cameroon, at one point, characterized
Nigeria's so-called "occupation"of Bakassi asbeing motivatedby greed for its minera1resources.
This analysis ignores the tremendous good fortune Nigeria enjoys of the rich hydrocarbon
resourcesto be found in the Niger deltaarea and out to sea wherethe seabed once fomed part of
the samedelta structure. Nigeriarealiy has no need, and commercialcompanies certainlyhave no
desire, to exploit areas on the margin of Mount Cameroonbasalt ridge where oil and gas are
relatively scarceand, what is more, expensiveto extract. The harsh fact is that Bakassi isnot, and
has neverbeen, anarea ofhighprospectivity.
37. We haveseen fiomthe figuresproducedby Cameroon inits final round of pleadings,the
tremendous imbalancein oil reserves between Cameroon andNigeria. This is clearlyunfortunate
for Cameroon. However,evenif any reserves which mightlie under Bakassi were onedaydeemed
to be commerciallyviable, it is hard to imagine that they wouldmake any significantdifferenceto
Cameroon reserves. Any theoreticalgain has to be set againstthe potential disruption of the lives
of manythousandsof Nigeriansin this generation andfor generationsto come.
38. Mr. President,that brings to an end mysubmissionsrelating specifically to Bakassi. 1
would like,however,if 1may,to moveonbrieflyto LakeChad.LakeChad
39. Mr. President and distinguishedMembersofthe Court, Cameroon's claims tothe former
bed of Lake Chadand certain islandsin what currentlyremains of the lake follow a similar pattern
to the claims she has made over Bakassi. As Mr.Brownlie, Q.C.,has so clearly and brilliantly
explained, this isan area over which titlehas yet to be determined. It is, in theeas claimedby
Nigeria, inhabited by a population of farmers and fishermenwho come mainly from Nigeria and
not at al1from Cameroon. When the iegal team visited Darakin 1997 we could not fail to be
impressed by thefact that wewere surroundednot by just a few Nigeriansbut literallyby hundreds
as wewalked towardsthe mainsettlementon the island. As you can see from the photograph now
on screen and at tab3 in thejudges' folder,the Darakcrowds couldbe seen; al1of themNigerians.
[Graphic: Darakcrowds.]
40. Darak is a major populationcentre and it looks to the Nigerian Govemment, both local
and federal,as well as the State Government,for its govemance. This is true of al1the villages
whichwe visitedon Ourtrip across theLakebed. Anyvisitor tothe area will readilyseethat every
village owes its allegiance to Nigeria and,as Ouraccount of the administrationof the area has
shown,it is Nigeriathat looks after the population in terrns of security, healthcare and education,
aswellas collectingtax.
41. Onceagain, Mr. President andMembers of Court, Nigerianever had any causeto doubt
her own sovereigntyover this areauntil it was characterizedas territory whichhad been "illegally
occupied"in Cameroon's protestNote of 11 April 1994. There had, again, beensporadic attempts
by local Cameroonian forcesto raise taxes and even an attempted military occupation. This
military actionby Cameroondoesnot appear to havebeen precededby any diplomatic moves. If
centralgovemment in Cameroon had reallybeen concemedaboutwhat it now claims to be illegal
occupation,one would have expectedto see protests, or,at the very least, the matter being raised
by the Cameroon representativesin the LCBC. Nigeria's legalteam has scouredthe minutes of
LCBCmeetings since the inceptionof the Commissionand those minutes are lodged at the Court
for al1to see. Nowhere in them does Cameroon raise the issue of illegal occupation. On the
contrary, Cameroon's security forces patrol with the Nigerianforces in an evident show of
solidarity in therea. 42. Once again, as with Bakassi, one is at a loss to understand why Cameroon wishes to
absorb this large Nigerian population which is currently being successfully administered from
Nigeriaat no cost to Cameroon. There is,not even, so faras is presentlyknown,the lure of oil in
this particular areaof Lakehad.
43. One is forced also to take note of what is said in the report of the Special Rapporteur
submittedto the UnitedNationsCommissionon HumanRights in November 1999.This document
has been lodged with the Court by Nigeria. The Courtmay have noted inparticular the report of
the lawless situation the Special Rapporteur found especially in Northem Cameroon.
Mr. President, Membersof the Court, 1venture to Saythat private mies operating under local
chiefs are not an attractive prospect for the maintenanceof law and order amongst the Nigerian
populationin Darakand in the surroundingvillages.
Othermatters
44. 1 shall now move on very briefly to the other aspects of this case. Nigeria's eminent
counsel havedemonstratedin a clear, calmway, how Cameroon'sclaims in this case are based on
blusterandunfounded assertion. Theyhaveshown how Cameroon,even in theseproceedings,has
had to backoff when she comesup againstthe harsh realityof the facts. In the memorablewords
of SirArthur Watts,Q.C., onthefinal dayofNigeria's firstroundpresentation:
"Cameroon having abandoned its claim to Tipsan, and having abandoned
individual responsibility claims, and having tried to abandon its request to have the
landboundary specified definitively,and having abandoneda succession of its earlier
maritimeboundary lines,the remnantsof Cameroon's casearelooking rather tattered"
(CR 2002114,p. 31,para. 26).
45.The proposalsmadeby Cameroon'sdistinguishedAgent onTuesday referred tobyme at
the beginningof my speech seemrather to confirmSirArthur'sview ofCameroon'sclaims.
Landboundary
46. 1need not remind the Court that thewhole landboundary issue camebefore the Court,
despite Nigeria's fifth preliminary objection, largely on the basis that there was alleged to be a
disputeover theborder at Tipsan,which nowtums outnotto be so. 47. On our 1997field trip we also visited some locations on the land boundary. We had
hoped to visit Tipsan ourselves but the lengthof thejourney from Yola proved tobe such that we
were only ableto get as far as Toungo, which isabout 24 miles short of Tipsan. The stateof the
roads was so thatfùrtherprogresswould only have resultedin our arrivingat night. We were thus
not able, on that occasion, to take photographs,unlike counsel for Carneroon. However, as the
Court knowsfiom the preliminary objections, we did visit ipand were mistakenby our opponents
for having been a Nigerianraiding Party. We took photographsof the hills surrounding Lipand it
is possible fromthose photographs tosee what complex andremote terrainthis is. As you can see
fiom the photographon screen, andat tab 4 in thejudges' folder, this is rough country. And the
graphicisnow being shown,of the hills beyond Lip [graphic4: Hills beyond Lip]. Mr. President,
it was a two-dayjoumey to Lip and two days back. Al11can Say as a lay person is that, having
seen some of these locations, 1 would hate to see a boundary commission canying out a
demarcationwithout having clear guidance fiomthe delimitationtreaty as to where 1 should start
and finishmydemarcation exercise.
State responsibility
48. Mr. President and Members of the Court, time andagain Cameroon hasasserted that
incidents havetaken place on the border which, onfurther investigation,turn out tobe little more
than what might be termed "cattle rustling". Nigeria comprehensively demolishedthe State
responsibility claims made by Cameroon in its Mernorial and Observations on Nigeria's
Preliminary Objections. She has comprehensively demolished the further claims made in
Cameroon'sReply and she has comprehensively demolishedthe later claims that Cameroonhas
madeby correspondenceand other means.
49.Mr.President,1talked about credibilityat the beginningof this speech. 1dowith respect
submit thatCameroonhasa seriouscredibilityproblernwithregard to theseclaims.
Maritimeboundary
50. 1 do not claim to be a maritime boundary expert. During my period in office as
Attorney-General and the Minister of Justice,1 sat for four years as the leader of the Nigerian
delegationto the Law ofthe Sea Convention negotiating sessionsand 1signedthat treaty as wellasthe Final Act at Montego Bay on behalf of Nigeria. Myunderstanding of Cameroon7sclaims is
that,as presentlyexpressed,theywouldcut into well-establishedNigerian offshoreoilfields. Were
this to be permitted, Mr. President and Members of the Court, Nigeria would presumably face
compensation claims from oil operators running into billions of dollars. This is not something
Nigeria can facewith equanimity. However,we also sawfromProfessor Crawford's presentations
that Cameroon'sclaims do not accordwith any knownpreceptof internationalmaritime boundary
law,so it maybethat Nigerianfears onthis account are unfounded.
Conclusion
51. Mr.President andMembersof the Court,before 1conclude my presentation and inform
the Court how Nigeria proposesto spend the remaining time in this secondround, 1would like,
with respect, to mention that His Majesty the Obong of Calabar, whom 1 introduced at the
beginning of this presentation, will be assisting the Nigerianm with answers to some of the
questionsposedby Judge Kooijmans. The Obongis the GrandPatriarch ofthe Efiks. The loss of
Bakassi would be a serious matter for Nigeria: the loss for the Obong of Calabar would be,
proportionately,of an evengreatermagnitude.
52. Following my presentation, Ian Brownlie, Q.C., will be dealing with Bakassi from
independence. That willcompletethe morningsession.
53. This afternoon,AlastairMacdonaldwill speakagainonthe land boundaryandhe will be
followed by SirArthur Watts,Q.C., alsospeakingon the land boundary and on Bakassi pre1960.
Theafternoon sessionwillfinishwith IanBrownlie, Q.C., speakingon LakeChad.
54. Mr. President and Members of the Court, tomorrowProfessor GeorgesAbi-Saab will
openon Stateresponsibility. Thatsubjectwill againbe takenup by Sir ArthurWatts, Q.C., and he
will be followedby ProfessorJames Crawford,S.C.,on counter-claims. ProfessorsAbi-Saab and
Crawford will then addressthemaritimeboundary,andOurpresentationswillbe broughtto a close
byNigeria's Agent.
Mr. President and Members ofthe Court, thank you for your attention, and1would, with
respect,ask youto cal1uponMr.Brownlie. Thankyou verymuch. The PRESIDENT: Thank you very much. Je passe maintenant la parole au
professeur Ian Brownlie.
Mr. BROWNLIE: Thankyou,Mr.President.
POST-INDEPENDEN BCAEKASSI
1. Mr. President,distinguishedMembers of the Court, it is again a privilege to addressthe
Courtin the secondround. Mr. President, 1have been counsel in more than 30 cases beforethis
Court. No doubt some caseshave moreimportance than others. The more important casesinvolve
major oil resources, or the use of force, for example. The present case is among the more
importanton any scale, and the principalreason is that it concemsthe peoplethe people- of
Bakassi.
2. As the distinguishedAgent of Nigeria pointed out in the first round, this case is seen by
Nigeria as the Bakassicase. Whatevervalue Bakassi may have in resource terms, Bakassi is the
historic homeland of the Efik and Effiat people and is the permanent home- the permanent
home- of 156,000Nigerians. The connectionwithNigeria forms part of the identity ofthe Efik
andEffiat peoples andtheir culture.
3. Against thisbackgroundanychangeof the status quowhichwould leave thepopulationof
Bakassi, as Nigeriannationals of Efik culture, in an alien setting,would be fundarnentally,
andwould be deeplyresented.
4. Mr. President, this case is unique in the Court's caseload in that it concems territory
connected witha particularethnic group, and it is therefore as much about a community as itis
aboutterritory asuch. Andthis essentialfactorplaysa leadingrole in the basis of title relied upon
byNigeria.
5. As 1shalldemonstrate,the Nigerianbasis of title, historicalconsolidation, is particularly
aptin its reflectionof the human factorinthis case.
TheNigerianposition: propositions
6. Mr. President,it will be helpfulto the Cour1re-presentthe key Nigerian position ina
seriesof propositions. 7. First, the claim of Cameroon is treaty-based, exclusively. Cameroon relies uponthe
Treatyof 1913.
8. Second,in the view ofNigeria the Treatyof 1913hasnot been implementedin respectof
Bakassi,and was ineffective toachievethe purported transferof sovereigntyto Germany.
9.Third, in accordance withthis view,Nigeriaretained an original titlein respectofBakassi,
and the title also invokedby Nigeria, historical consolidationof title, has the role of providing a
confirmationofthat original title.
10.Fourth, but Nigeria isalso arguing inthe alternative. Thus, even if itbe supposed that
the Treaty of 1913were effective in relationto Bakassi, in any event, Nigeriahas title onthe basis
of historical consolidationof title as a process which has effected a lawful change in the
treaty-based title.
11.And fifth,it is well recognizedthat a treaty-based title maybe modifiedor displaced by
lawful means. This propositionwould seemto be obvious, butin any case itis confirmedby a
seriesofrespectableauthorities.
12.In an article published in 1957SirGeraldFitzmauricestated thatthe revisionof a treaty
could result fiom practice orconduct: 1referto the British YearBook,Vol. 33 ((1957),p. 203) at
page 225.
13. In a draft article, Article 68, agreed in 1964,the International Law Commission
recognized thatthe modificationof a treaty couldresult fiom subsequent practice. The samedraft
articleappearedasArticle38 inthe finaldraftarticlesof 1966.
14. In the first round1 quoted the opinion of Michel Virallyto the effect that historical
consolidationof title couldproduce a lawfuleffect even if this prevailed over aprior treaty-based
title (Recueildes Cours, Vol. 183(1983-V),pp. 147-148).
15. The opinion of Virally reflects the Award of Judge Huber in theIslandof Palmas case
(RIAA,II, pp. 845etseq.). A keypassage inthe Awardreadsas follows:
"If on the other hand the view is adopted that discovery does not create a
definitive titleof sovereignty, butonly an'inchoate'title, sucha title exists, itis true,
without external manifestation. Howevera,ccordingto the view that has prevailed at
any rate since the 19th century, an inchoate title of discovery mustbe completed
within a reasonable period by the effective occupatioo nf the region claimed tobe
discovered. This principlemust be appliedin the present case,for the reasonsgiven above in regardto the rules determining which ofsuccessive legal systems is to be
applied(the so-calledintertemporal law).Now, no act of occupation nor,exceptas to
arecent period,any exerciseof sovereignty at Palmas by Spain has been alleged. But
even admitting that the Spanish title still existedas inchoate in 1898 and must be
considered asincluded in the cession under Article III ofthe Treaty of Paris, an
inchoate title could not prevail over the continuouasnd peaceful display of authority
by another State; for such display may prevail evenover a prior, definitive title put
forwardby another State." (At p. 846.)
16.In this samegeneral context a title inheritedon the basis of utipossidetisjuris can be
modifiedor displacedby lawfulmeans,suchas acquiescence. 1pointedout beforethat thiswasthe
emphaticview of the Chamber of the Court in the Land,Island and Maritime Frontiercase. The
pertinentpassages will be indicated inthe transcript (paras.67, 80, 81, 169, 176,280, 284, 341,
345,364 and 368).
17.Thus, Mr. President, Membersof the Court, even if,for the sake of argument,the Treaty
of 1913were taken as valid and fully implemented, Nigeria wouldstill have lawful title on the
basis of historical consolidation of title, with particular refereo the post-independenceperiod.
In other words, Nigeria'stitledoesnotnecessarilydependon the legalstatus ofthe Treatyof 1913.
18. 1 take pains to emphasize the freestanding characterof the title by historical
consolidation since the independenceof Nigeria because counsel for Cameroon misreported the
position ofNigeria inthe second round.
19.Thus Professor Shaw statedthat the Nigerian title relatesexclusivelyto the originaltitle
of the Kingsand Chiefsof Old Calabar(CR2002116). This is not the position of Nigeria andthis
has been spelled outon three occasions: in the Counter-Memorial,in the Rejoinder, and again in
my presentationinthefirst round.
20. Professor Shaw also asserted thatthe case for historical consolidationrests exclusively
upon theTreaty of 1884,but againthis is notthe positionofNigeria.The titlebaseduponhistorical
consolidation in the post-independence perioids freestanding and self-sufficient.
The legaloriginsofthe conceptofhistorical consolidationoftitle
21. Atthis stageit is necessaryto recallthe precise legal originsof the conceptof historical
consolidationof title. Nigeria has givena detailed accountof the originsof historical consolidation
of title in the Counter-Memorial, at pages221to 223, andin the Rejoinder, at pages 85to 90. Its
position in the doctrineis well-established. The concepthas been expounded mostthoroughly inthe writings of CharlesDe Visscher, includingthe following: Théories etRealitésen Droit
International Public,first edition, 1953. ThefourthFrench editionwaspublishedin 1970. In 1957
an English editionof the first French editionwas published, in a translation by Professor Corbett.
The second bookis the study entitled Problèmesd'InterprétationJudiciaire en DroitInternational
Public, published in 1967. And thirdly, there watshe monograph entitledLes Effectivitésdu Droit
International Public,publishedin 1967. And itwas, of course,CharlesDe Visscher who didmuch
to makethe termeffectivitécurrent.
22. At thispoint it is worth emphasizingthat the conceptdoes not consistof a new doctrinal
invention,even in 1953. Ratherit has takenthe form of a reflection in the doctrine of thevarious
aspects of the classical decisions,the well-known jurisprudence,on acquisition of titleto temtory.
What CharlesDe Visscher and others were doing in formulating the concept of historical
consolidation was to produce a more preciseand more sophisticated analysis of the process of
adjudicationin such cases,than had previouslyemerged fiomthe doctrine.
23. Thus the concept does not involvea sudden breakin the developments of thelaw or a
casting asideof useful experience. At thesametime, the conceptdoes involve a certain evolution
in legal thinking. This has been recognizedby a former Presidentof this Court. In hismonograph
on The Acquisition of Territory in InternationalLaw, published in 1963,SirRobert Jenningshad
this to say:
"But the idea of historical consolidation is something more than a
terminological reform.It opensthe doorto a mode ofacquiringtitle that is, or at least
may become, subtly different from whatis found inthe old learningabout occupation
and prescription. Prescription,as we have seen, is based upon a peaceable, effective
possession - a possession as of a sovereign extendingover a considerable period.
But such a possession may notbe self-evident ina disputed case. It must, therefore,
be proved,and forthe purposeof thisdemonstration, a greatvariety of evidencesmay
be relevant- particularly the attitude of third States, because repute is always an
important factor in any question concerning rights over land. But the notion of
consolidation introduces something overand above the notion of evidences of
sovereign possession; for these factors of repute, acknowledgementand so on then
become, if1have understood this aright,not merely evidences of a situation apt for
prescription but become themselves decisive ingredients in theprocess of creating
title. Letme remindyou again of thewords [saysJennings]of Professorde Visscher.
Proven use 'is its foundation',but thismerely representsa complex of interests and
relationswhich in themselveshave the effect of attachinga territov or an expanseof
sea to a given State (italics supplied). And again, 'itis these interests and relations,
varying fromone caseto another,andnot the passage ofa fixed term, unknownin any
eventto international law, that aretaken into direct account bythejudge to decidein concreto on the existence or non-existence of a consolidation by historictitle'."
(Emphasisinthe originalunlessotherwise stated; foomotesomitted.) (Atp. 25.)
24. The key point is that "proven use" "merely represents a complex of interests and
relations whichinthemselves havethe effectofattaching aterritory or anexpanseof sea to a given
State". Thisaspectofthe matteris also given prominenceby Jenningsinhis General Course atthe
HagueAcademyin 1967 (Recueil des Cours,Vol.II (1967),p. 421).
25. The acceptance by SirRobert Jennings of the concept and its implications is also
evidenced by the text of the ninth edition of Oppenheim in 1992, edited by Sir Robert and
SirArthur Watts. In a passage which confirmsthe evolutionaryaspectof the concept of historical
consolidation,the editors observe:
"Consolidationof historic titles. Yet continuous and peaceful display is a
complex notionwhen appliedto the flexibleand many-sided relationship of astate to
its territory and in relation toother States. The many and varied factors whichit may
comprise were felicitouslysubsumed by Charles De Visscher under the convenient
rubricof 'consolidationbyhistoric titles'; of whichhe says:
'Proven long use, which is its foundation, merely represents a
complexof interestsand relations which inthemselveshave the effectof
attaching a tenitory or an expanse of sea to a given State. It is these
interests and relations, varying fi-omone case to another, and not the
passage of a fixed term,unknownin any eventto international law,that
are taken into direct account by the judge to decide in concreto on the
existenceor non-existenceof a consolidationbyhistorictitles.'
In an important examination of the criteria applied by tribunals to resolve
territorial disputes, Munkrnan identified inter alia the following: recognition,
acquiescence and preclusion; possession and administration; affiliations of
inhabitants of disputed territory; geographical considerations; economic
considerations; historical considerations.Of these several factors it hasbeen said
that: 'Recognition is the primary way in which the international community has
sought to reconcile illegality or doubt with political reality and the need for
certainty."' (Footnotes omitted.) (9thed., Vol. 1, by Sir Robert Jennings and
SirArthurWatts, 1992,pp. 709-710,para. 272.)
26. And so, Mr. President,historical consolidationof title is the legal basis of Nigeria's
claimto Bakassi. The concept hasbeen familiarto international lawyers for mostof 50 years,and
has attracted the approval of former Members of this Court. Indeed, its leading progenitor,
CharlesDe Visscher,was of course a Member ofthe Court.
27. In face of theigerianclaim counselfor Cameroonhave shown aremarkablereluctance
to discuss the concept or to give a clear indication as to whether they accept it. In the Reply,
however,the applicantState did actually question whetherthe principle of historical consolidationexists, andNigeria duly respondedin the Rejoinderatpages85to 90, citingleading authoritiesand
alsothe First Award in the Arbitration betweenEritrea and Yemen(1998) (ILR,Vol. 114, p. 117,
paras.450-451).
28. Mr.President, Membersof the Court, it has to be asked why Cameroonis so nervous in
face of a well-established concept. 1sit because Cameroon cannot produce the necessaryproof!
Why is it that Cameroonhas failed to respond adequatelyto the evidence,as Professor Mendelson
wouldput it,"piled up" intheNigerianRejoinder?
29. Counsel for Cameroon havesought to solvethe problem in three ways. The first way
wasto ignorehistoricalconsolidationandto discussprescription,whichhasnot beenrelied uponat
any point in the Nigerian pleadings. The second method,and the most popular, was simply to
refuse to respond to Nigeria's evidence. Unfortunately,the Nigerian delegation will leave The
Hague in due course still without knowingwhat the Cameroonianresponseto the evidencemight
be.
30. The third attemptto solve the problemwas to suggest that counsel for Nigeria does not
approveof the concept. Thus,ProfessorCot quotedthe fifthedition ofmytextbookas follows: "it
is probably confusing to overemphasize, and to lump together, this penumbra of equities by
discovering theconcept ofconsolidation" (CR2002115,pp. 33-34,para. 12).
31.This selective quotationwill not do. What the book, Principles of Public International
Law, does is to give a full and appropriatesignificanceto the concept. Thus, under the heading
"Historical Consolidation of Title", there is first a reference to the Anglo-Nonvegian Fisheries
case, whichisthe originofthe doctine. The textthen continuesas follows:
"Charles De Visscher has explained the decision on these lines, and has
proceeded to take the decision as an exarnple of the 'fundamental interest of the
stability of territorial situations from the point of view of order and peace', which
'explainsthe place thatconsolidationby historictitlesholds in internationallaw'. He
[CharlesDe Visscher,that is]continues:
'This consolidation, whichmay have practical importance for
territories not yet finally organized under a State regime as well as for
certain stretches of sea-like bays, is not subject to the conditions
specifically required in other modesof acquiringtemtory. Proven long
use, whichis its foundation, merelyrepresentsa complexof interestsand
relations whichin themselves have theeffectofattaching a territoryor an
expanse of seato a given State."'And the text of my book continues:
.. .
"'Consolidation' differs from prescription, occupation, and recognition, in
De Visscher's doctrine. It is certain that the elements which he calls 'consolidation'
are influential. In the preceding section such elements were examined in relation to
the problems of relative title and the principle of effectiveness. The essence of the
matter is peaceful holding and acquiescence or toleration by other States (but
De Visscher has his own notion of acquiescence). Moreover, special factors,
including economic interests, may be entertained by a court faced with rather
equivocal facts. However, it is probably confusing to overemphasize, and to lump
together, this penumbra of equities by discoveringthe concept of consolidation." And
the last sentence reads: "Apart fiom the concept of consolidation, the role of social,
economic and other 'non-legal' considerations in the application by tribunals of the
more orthodox legal principles is notto be denied." (Foomotes omitted.) (Principles,
5th ed., 1998,pp. 162-163.)
32. This account is identicalwith the account given in the first editionof the book, published
in 1966, at pages 154 to 156. Moreover, 1regret to tell the deiegation on the other side that the
book's treatmentof the subjecthas not discouragedforeignpublishers and these views onhistorical
consolidation are presently available in Portuguese, Russian and Japanese, and will soon be
availablein Chinese and Korean.
33. One other aspect of the matter calls for comment. In so far as counsel for Cameroon
choose to face the music, the view is projected that historical consolidation of title is confined to
effectivités.This is not the case. As Nigeria's previouspleadings have made clear, the concept has
various legal elementsas follows:
(i) The originaltitle ofthe City Statesof Old Calabar.
(ii) The attitude and ethnicaffiliationsof the population ofthe BakassiPeninsula.
(iii) The Efik and Effiattoponymyofthe Bakassitowns andvillages.
(iv) The administration of Bakassi as part of Nigeria in the penod 1913 to the date of
independence.
(v) The exercise of authority overthe towns and clans of Bakassi by traditional rulerseither
based in Calabar or otherwise owing allegianceto Nigeria.
(vi) The exercise ofjurisdiction by customarylaw courts by virtue ofNigerian legislation.
(vii) The long-established settlementof nationals of Nigeria inthe region; and lastly
(viii) Manifestations of sovereigntybyNigeria afier independence in 1960.These elements are examined in detail in the Nigerian Rejoinder, at pages 90 to 175, and a
proportion of these elements were discussed in my first round speech. Mr. President, with your
agreement,that wouldbe a convenientmomentto take the pause café.
The PRESIDENT: Thank you very much, ProfessorBrownlie. La Cour suspend sa séance
pour unedizaine deminutes.
L'audience estsuspenduede II h 20 à II h 30.
Le PRESIDENT: Veuillez vous asseoir. La séanceest reprise et je redonne la parole au
professeurIan Brownlie.
Mr. BROWNLIE : Thankyou verymuch.
The stateof the evidence
34. Mr. President,distinguishedMembers ofthe Court,becauseCameroonfrequentlyavoids
joining issue inthese proceedings, the state of the evidence involves various anomalies. Thus
Cameroon has not troubled to respond adequately to the substantial evidence of effectivités
presentedin the Rejoinderand again, in the firstround. In the secondround ProfessorMendelson
boldly contended thatNigeria had failed todealwith certain peripheralissues whichhe had raised
in the first round. These issues will be dealt with in the appropriate place, but
ProfessorMendelson'scomplaintis in the contextastonishing because,in his secondround speech,
he failedtodeal witha very highproportionofNigeria's first roundpresentation.
35.In particular,ProfessorMendelsondidnot replyto the following:
(a) The demonstrationof the absence ofevidenceof thepeaceful possessionof Cameroonandthe
critiqueof theCameroonianpleadings.
(b) Thedetailed evidencerelatingto the systemofpublicorder in Bakassi.
(c) Theevidence ofthe affiliationsof thepopulationof Bakassi.
(d) Thedetailed evidencerelatingto publiceducation.
(e) Thedetailed evidencerelatingto taxation.
Thedetailed evidencerelatingto publichealth.
36.Mr. President,this listcould easilybe extended.Further evidence confirming the title ofNigeria in relation to the Bakassi Peninsula
37.My next taskis to offerfùrtherevidence confirmingthe title of Nigeria in relation to the
Bakassi Peninsula. The first category offurther evidence is the ethnic relationship between the
people ofthe Bakassivillages andtheNigerianmainland.
38.In the contextof historical consolidation,the editorsof Oppenheimrefer tothe relevance
of the "affiliations ofinhabitantsof disputedtemtory" (Vol.1,pp. 709-710, para. 272).
39.As an aspect of the applicationof the concept of historical consolidationof title to the
social andethnic circumstancesof the Bakassi Peninsula, itis necessaryto examinethe history of
the settlements of theindigenouspeoplesof South-EasternNigeria in the region. This will assistin
understandingthe roleof the Efikand Effiattribes in thepattern ofsettlementand alsothe pattern
of development of localgovemmentadministration in Bakassi.
40.The chieftribes in the region of Old Calabar in the period afier 1700were,and still are,
the Efiks and the Effiat (judges' folder, tab 5). The ethnic map produced in the Rejoinder at
figure 3.1, now on the screen, shows the areas inhabited by these two tribes. Historically the
predominantpeople in the areanorthof Bakassi, in terms ofnumbers andinfluence,were, and still
are, the Efiks, while totheestofthe peninsula,the Effiats predominate.
41. There are extensive oral traditions as to the early migrations of the Efik people before
they came to Old Calabar, and these are discussed in some detail in A. K.Hart, Report of the
Enquiryinto the Dispute overthe Obongshipof Calabar,published in 1964. The Efiks gradually
establishedthemselveson the Coastand becameactive fishermen andtraders, ultimately setting up
somethingof a seabome empire, withCity States up and down the Guinea Coast fromthe Niger
delta to theRio del Rey,and settlements evenbeyond.
42. Many of their towns - Duke Town, Creek Town, HenshawTown, Obutong Town -
were clustered togetherin the heart of the area which became knownas Old Calabar. This area
included otherEfik settlements suchas Arsibon'sTown,now Archibong,near thenorthem edge of
the Bakassi Peninsula. The modem TomShot Island, on the western side of the Cross River
estuary, and Jamestown are traditionally Effiat. Jamestown is situated just to the north of
Tom Shotand was formerly knownas Tom Shot Town. The Chiefof the town wasJamesBassey
and hencethe townbecameknownas Jamestown. 43. The Efiks of this unique polity weregovemed by a patriarchal "House" system, under
which each ofthe abovecommunities was headed byits ownKing or Chief;electedby that House.
The mling oligarchy was united by the highly organizedSociety already referredto in these
proceedings,the Ekpe Society, which playedan importantpart in the religious and civil lifeofthe
Efik polity andis still important today. The local activitiesof the Ekpe Society centre on the
Palaver House. Al1 the major towns of the area have a shrine known as the Palaver House,
including Calabar, Jamestown, Ikot Nakanda, Archibong,Abana and West Atabong Cjudges'
folder,tab 6).
44. The Effiat people have certain culturaland socialtraits in common withthe Efiks. In
particular,bothtribes use Ekpe asa means of social administration.The main EffiatEkpe Palaver
House, and seatof the Effiat clan head, is at Jamestownin Akwa Ibom State. The people of the
southern Bakassi villagesregard this as their ancestral centre and there is still much interaction
between the people living on both sides of the Cross Riverestuary. The Effiats are nonetheless
distinct fiomthe Efiks. Theyoriginally inhabitedthe riverineareas to the Westof the Cross River
estuary. Becoming principally fishermen,they migrated across the estuary to set up fishing
settlementson the creeks of Bakassi, which overthe last 100years have increasedin number and
becomepermanent. ThesesettlementsincludeAbanaand Eastand West Atabong.
45. As the populationon mainlandNigeriagrew, fishermen and farmers fromthe areasouth
of Calabar, around Ikangand IkotNakanda, moved across theAkpa Yafe in increasing numbers.
They settled in the existingvillages of Archibongand Akwa,and created new settlements such as
Ine Akpa Ikang, Mbenmong and Nwanyo. Villages werenamed after the founders or after the
place of origin of the first settlerThe word "Ine" in Efik means fishing settlement. Hence Ine
Akpa Ikang and Ine Ikang were both fishing villages narned after settlers fiom Ikang, and Ine
Effiom isafishingvillagefoundedbythehead ofthe Effiom familyCjudges'folder,tab 7).
46. TheearliestEfiksettlementsin the regionwere sitedfor the most part atthe northemend
of Bakassi. Arsibon's Town, nowArchibong,was referredto as early as 1786 in AnteraDuke's
diary. Itwasrepopulatedby PrinceAsibong EdemIII, a descendant ofDuke Ephraim ofCalabar,
ashis own family colony, inthe early partof the nineteenth century. 47. Thesouthempart of Bakassi,on the otherhand, was mainly settled bythe inhabitantsof
villagesWestof the CrossRiver estuarywho crossedfiom their traditionalhomelandaround Eket,
Oron and Jamestown and founded settlementson Bakassi as bases for seasonal fishing activity.
Abana,for instance, was situated on land which wasgiven by King Orok BasseyDuke to histwo
brothers-in-law,NtuenUmo and Ebe, who migrated fiom EsukMba (present-day Akwa Ibom),
over 100years ago. Abana became the main centre of what colonialists referred to as the Fish
Towns. Thecolonial authorities triedto establisha native court inAbana,but this wasrejectedby
the people who pointed outthat they already had a native court in Jamestown. The practice grew
up of naming these newly-foundedsettlementson Bakassi afterthe Effiat familieswho used them
as a fishing base,such as Ine Atayo, which was named after the Atayo family who founded the
village. Sometimes the founder's namewas used, sometimes thename of thetown fiomwhichhe
came.
48. WestAtabong derives its name fiom the substantial settlementof Atabong Beachon the
mainland. Atabong in Effiat means "place ofcane'?and the village of WestAtabong on Bakassi
was built with cane grown in and around AtabongBeach on the mainland. Atabong Beachhas a
thriving fishmarket at which Bakassifishermen sel1some of their catch. It is a roadhead from
which Bakassifish is transportedal1over Nigeria. As another example, Utanmeans "sand"; thus
IneUtan meansfishing villagebuilton sand. It isthis pattern of settlementand namingof villages
which accounts forthe fact that placenames on Bakassiare linked with thenames of settlements
lying furtherto the Westand north-west,but not to the east or south-east. A list of settlementson
Bakassi togetherwith atranslation oftheirnamesand detailsof their founders appears inthe tables
atthe end ofChapter3 ofthe Counter-Memorial.
49. Set out at page 98of theRejoinderis a table of specifically Effiatvillages in Mbo Local
Govemment Area,in Akwa Ibom state,and their affiliated villages on Bakassi. It also Statesthe
names of the founding fathers of these affiliated villages. This informationwas provided by the
current Effiat clan head, ObongOkon EffiongEtifit, and the Vice-Chairman of Mbo Local
GovemmentArea, AsuquoOkonBassey.
50. The names and affiliationslisted clearly do not derive fiom any settlement, familyor
other association with Cameroon. 51. It is clearthat the settlementofthe villages on Bakassiby Nigeriannationalsof the Efik
and Effiat tribes has been a steady process over the course ofthe last century. This pattern of
settlement has beenreflected in the ever increasing level of administrationover the villages and
their populations.
Internai Nigerian state rivairy in respectof Bakassi
52. Further evidence of the affiliationsof the inhabitantsof the Bakassi Peninsulawith the
peoples and political constituencies ofthe Nigerianmainlandis to be found in a recentepisode of
interna1rivalrybetween twoofthe federalstatesofNigeria in respectof Bakassi.
53. The background is as follows. The northem villages on Bakassi have always been
administered by adifferent local authority to those in the south, but both were withinthe same
subregionof Nigeria. After the division of Cross River stateinto two smallerstates, Akwa Ibom
and Cross River in 1987, the villages were administeredby different local authorities in two
separate Nigerian states. Akpabuyo Local Government Area inCross River state administered
those villages situated in thenorth of the peninsula andEffiat/Mbo Local GovemmentArea and
Okobo Local Govemment Area in AkwaIbom state administered those villages situatedin the
southof the peninsula. 1 refernowto tab 8in thejudges' folder.
54. As a result of this division of authority, there arosesome confusion over which local
authority shouldadministertheBakassi Peninsulaas a whole. Both statesclaimed that the Bakassi
Peninsulawas withinits sphereof administration for a number ot fraditional, cultural andeconomic
reasons. The military administrators of the two states were both increasingly involvedin
promotingthe Nigerianpresenceon Bakassithroughstateadministrativeactivities.
55. The rivalry betweenthe statescontinued throughto 1996,when the States (Creation and
Transitional Provisions) Decree 1996 (Counter-Memorial ofNigeria, Ann. NC-M202) was
promulgated. This Decree created Bakassi Local GovemmentArea, with its headquarters at
Abana, as part of Cross River state. This has gone some way towards resolving the intemal
Nigerian confusionas to which state has the rightful authority over the whole of the Bakassi
Peninsula. 56. In 1999the issues outstanding betweenCross River state and Akwa Ibom state becarne
the subject of proceedings in the Supreme Court of Nigeria (Suit No. SCl12411999)between
Attorney-General of Cross River state and the Attorney-Generalof Akwa Ibom state and five
others. This major litigation can only serve to emphasize the depth of concem relating to the
region of Bakassion thepart of important Nigerianpolitical constituencies. Recently a Presidential
Commissionhasbeen establishedto examine the issueand hasdelivereda firstreport.
57. These political developments within Nigeria inevitably highligh te link between the
affairsof the Bakassi Peninsulaand theintemalpolitics of the neighbouringareas of Nigeria.
The enhancementof public order within theBakassi regionby Nigerian securityforces in
December1993
58. The administrationof the Bakassi Peninsula faced several major challenges inthe late
1980s and early 1990s and it is necessary to examine the responses of Nigeria as a part of the
evidenceof Nigerian exerciseof administrative authority and sovereigntintheregion.
59. The Govemmentof Nigeria has alreadyaffirmed that there has always been a Nigenan
militarypresenceinthe Bakassi Peninsula. In additiont,he Nigeriannavy has a base at Jamestown,
on the mainland, from whichpatrols aresent to thecreeks and coasts of the Bakassi Peninsula. In
spite of the presenceof Nigerian forces, incursionsby Cameroonian agents occurred from time to
time which wentundetectedbecause of the relativelyremote character of theregion and the cover
provided by the mangrove swampsand creeks. These incursions werethe subject of repeated
complaintby Nigerian communities, andsomeof these are referredto in the first round. By 1993,
a further threat topublicorder had emerged in the form of a territorialrivalry between thetwo
Nigerianstatesinrespect of the peninsula,to which1havejust referred.
60. On 31December 1993,the Govemmentof Nigeria sent security forces to the Nigerian
villages of Abana and Atabong on the BakassiPeninsula. The purpose of this operation was
described in the letter dated 4 March 1994from theNigerian Govemmentto the President of the
Security Council,thus:
"1 wish, on the instructionsof my Govemment to refer to the letter dated
28 February1994, addressed to youby the Permanent Representativeof Cameroon
(S/1994/228), and to convey to you the following information. On
31 December1993,Nigerian troops weredispatched tothe Nigerian fishing villages of Abana and Atabong on the Nigerian Bakassi Peninsulain order to avert a violent
clash between those who lay claim to the settlements fromtwo Nigerian States,
namely theAkwa Ibom State andthe Cross River State. The pre-emptive actionhad
the desired effect.However, followingthe concem expressed by the Cameroonian
Govemmenton theNigerian troops' movement, 1visited Yaoundé onthe instructions
of my Head of State, Gen. SaniAbacha,to explain to President PaulBiya the reason
forthe Nigerian move. Early in 1994,the Cameroonian Foreign Ministeralso visited
Abuja with a messageto the Nigerian Head ofState fromPresidentBiya. Both sides
pledged to resolve the issues peacefully." (Counter-Memorialof Nigeria,
Ann.NC-M347.)
61. The same concem was expressed in a letter dated 20 April from the Nigerian High
Commission in London to the Foreign and Commonwealth Office and to al1 the diplomatic
missions accredited to the Court of St. James and to al1 intemational organizations with
headquarters in London (Rejoinder of Nigeria, Ann.NR 29, also Preliminary Objectionsof
Nigeria,Ann. NP0 80).
62. The background to these statementsof a special security problemis provided by the
intemalrivalry between thetwo statesofthe FederalRepublicof Nigeriainrespect of Bakassi, and
1havealreadyexamined thisaspect.
63. However,there was another serioussource ofconcem lyingbehind the measurestaken.
TheClanChiefsof the groupsof villagesinthe Bakassi Peninsula confirm thatduring andafterthe
civil war, from 1970 onwards, the Cameroonian gendarmes consistentlycarried out acts of
harassment in the Bakassi region. The particularsof these acts of harassment are set forth in
Nigerian Counter-Memorial ap tages 267to 269 (paras. 10.157-10.161).
64. This harassment continued episodically until1993. In a Note dated 26 April 1993the
GovernmentofNigeria protested in the following terms:
"The Embassy of the FederalRepublic of Nigeria presents its complimentsto
the Ministryof ExtemalRelationsof the Republicof Cameroonand has the honourto
bring to the attentionof the esteemed Ministry, reports received that Cameroonian
Gendarmes have been harassing Nigerian citizens livingin the disputed areas of
Bakassi Peninsula. Onthe 26thFebruary1993 at Abana in Mbo Local Govemment
Area of Akwa Ibom State, about one hundred gendarmes invadedthe Fishing
Settlements inthe area and harassed and terrorised the Nigerian inhabitants. The
Embassy wishes to point out that these incessant harassmentsdo not augur well for
Ourbilateral relationsand wouldlikethe Ministryto cal1therelevanthostgovemment
law enforcementagentsto order. This matteris creatinggreat anxiety and concemin
Nigeria and the Embassy will therefore want the Ministryto take necessary steps to
arrestthe situation for themutualbenefits of both countries."(Ann.NC-M 356.)
65. Thispattern of harassmentandthe atrocities committedby Camerooniangendarmesand
soldierswere the subject of complaintin the letter of the NigerianGovemmentto the Presidentofthe SecurityCouncil dated4 Marchto which1have alreadyreferred (Ann. NC-M347). This letter
refers to six serious recorded incidents in 1991, six in 1992, and 13 up to September1993.
Referencesto acts of harassment,lunder andmurder alsoappear in the letter dated20 April 1994
f?omthe Nigerian High Commissionin London(see Ann.NR 29).
66.The patternof repression which developed aftetrhe end of theNigerian civilwar canbe
understood by referenceto the report presentedto the Govemor of Cross River state dated
15April 1988 (AM. NR30). Entitled "Report of Persistent Molestations and Intimidation of
AtabongPeople byCamerounGendarmes",the documentincludesthefollowingpassages:
"1. During Nigerian Civil War,the 3rd Marine Command Divisionled by
Brigadier Benjamin Adekunle establishea Militarybase at Atabong Commanded by
the late Major Isaac Adaka Boro and CamerounGendarmes dared not trespass into
Nigeriantemtory. Afterthe withdrawalof MajorBoro and his men from Atabong on
the 10thMarch 1968, Cameroun Gendarmea smved Atabong onthe 19thMarch 1968.
Sincethen Atabongpeople and indeed theentire residents of Bakassi Peninsulahave
had nopeace.
[Seejudges' folder,tab 9.1
3. ECONOMC BLOCIUGE: Cameroun Gendarmes are now forcing
indigeneseof Atabong,Abana,Edem Abasi,Ine Odiong,Ine Atayoand IneAkpak,al1
residentsof Bakassi Peninsulato stop comingto Nigeriato selltheir fish, crayfishand
shrimps but ratherto take themto the Camerounand sell them thereby strangulating
Nigeriaeconomically. Theyalso do everythingpossibleto intimidateOurpeople from
tradingwith Ourlegal tender, thenaira notes in preferenceto the CFA Franc. They
evengo to theextent of seizingnaira notes fromOurpeople andbuming themin fire.
Al1 these actions of Cameroun Gendarmes amount to economic blockade and
strangulation,hencethe scarcityof fishand crayfishin Ourmarkets.
5. MOLESTATIONS,BEATINGS, RAPINGS AND KILLINGS: Cameroun
Gendarmes havea field day molesting,beating, raping and killing Ourpeople. One
Mr. Etim Adem Okon of Atabong was beaten to deathby Cameroun Gendarmes in
1969. On 16thJanuary 1973,one Mr. Mbuk Serekewas beatento the point of death
by Cameroun Gendarmes and was unconscious for three days. Recently, one
Mr. Etim EffiongEkop was severely beatenby CamerounGendarmes tothe point of
death. As at thetime of writing this report, Mr.EtimEffiong Ekop was in a state of
coma. Five Nigerian soldierswere brutally murderedby Cameroun Gendarmes inthe
same area. Two fishermen were cold-bloodedly murdered in that same area by
CamerounGendarmes.
We, the people of the area, have consistently protestedvehemently against
Cameroun atrocitiesandvandalism to the FederalGovemmentofNigeria."
And thenthere is a conclusion. "6. CONCLUSION: Nigerians in Bakassi Peninsulaand indeedthe Atabongs
have suffered untoldhardship in the hands of CamerounGendarmesand the hardship
is weighing veryheavily onus. We do not want to be govemedby therepressiveand
despotic Cameroun Govemment which rules with high-handedness. There is
absolutelyno fieedom of speech, fieedom of expression,fieedom of associationnor
fieedom ofmovementwhich we enjoy inNigeria. Wearetherefore appealingto you,
Sir, to prevail on thePresident andthe ArmedForces RulingCouncilto intervene and
redeemus fromtheseCamerounvandals."
67. This reportis in fact an appealto the Govemor of CrossRiver statefiom the traditional
leader of the community,Chief OkonEtim OkonAsuquo, amemberof the Council of Etubomsin
Calabar, and head of the Atai Ema clan of West Atabong. The initiativesaken by the Nigerian
forces in 1993were a responseto suchappeals. Petitions fiom communities on Bakassihave been
made on various occasions since May 1968: and some of thesewere exarninedin my first round
speech.
68. It is relevant to remind the Court that Nigerian police andsecuriv forces had been
involved on various occasions since independencein the maintenanceof public order in Bakassi
(see Counter-Memorial of Nigeria, paras. 10.59 et seq.,and paras. 25.8 et seq.). It has been
necessary for the Nigerian armed forcesto respond,on the basis of self-defence,to incursionsby
Cameroon armed forces.This has beenrecognizedby the CameroonGovemment,for example,in
its intemal information bulletin in relation to incidents in 1984- 1 refer to AnnexMC 269
(p.2223) of the Memorial of Cameroon. Intemal Cameroonian documentsalso refer to the
presenceofNigerianmarines atAbanain 1990andin 1993(seeAnn. MC 332).
TheCameroonianviewof the administrativestatusquo
69. Further confirmation of the weakness of the Cameroonian title based uponan alleged
possession of Bakassisince the time of Independence can be found in Cameroonian official
sources.
70. By the 1980sCameroon'sattemptsto displace the Nigerian statusquo in the regionhad
producedvery exiguousresults. The evidenceof this appearsinthe officia1archivesof Cameroon.
The Court may recall that inmy first round speech 1referred to the PrefectoralOrder of 1975by
which Cameroon soughtto replacethe existing Efikplace names(CR 200219).
71.Eleven years latera Cameroonianofficia1makes the followingcomplaintin a letterdated
4 November 1986: "As it concemsyour District, manyof the fishingSettlementshave been given
new names but scarcely arethe new namesbeing usedby the Aliens and evensome
Cameroonianssettlingtherein.
It would also appear that some new settlements havebeen made or discovered
that have not been given new names yet, for example, Ine Akariba, reference your
letterof 11 October1983(letterNo. G.40.05.I/ID/45/293).
This endorsement is therefore for your information and necessaryaction.
Please,render to thisoffice anaccount ofyouraction." (Ann. N-CM224.)
72. 1 move on to examine a report of a development committee which met on
15October 1988 to examineissues relating topartsof Bakassi (Ann.RC 180). The prefaceto the
Minutes record that the delay in holding the session "was due to the absence of maritime
transport..."
73. The minutes of the meeting include a briefingby a Cameroonian officia1 on the
considerableinadequacies of the infrastructurein relation to housing, social services, health and
othermatters.
74. That, Mr. President, was in 1988. My third example is an officia1 Cameroonian
document of 1992 (Ann.NC-M 186). The document is dated 21 January 1992 and reads as
follows:
"By a radiomessage under the above reference, the Head of the Provincial
Serviceof the National Security Organisationin the South-West,at BUEA, reports to
you onthe situationat the JABANEfishery.
Accordingto this message,the Community School, openedand directedby the
Local of JABANE (Cameroun),receives subventions from AKPABUYO LOCAL
GOVERNMENT, theStateCommuneof AKWA-BOMIN NIGERIA. Initially itwas
built of temporarymaterials and then in the process of NIGERIA. The situation
remainsas follows:
The Post considers that this situation should be brought to the attention of
MINEDUC of MINAT and of the Secretary General at the Presidency of the
Republic."
75. This documentspeaks for itself. It calls for comparisonwith documentRC 180, which
refers in 1988to the "poor enrolmentin the lone primary school at Idabato". Mr. President, the
1992 document confirmsthe general picture which is that, 30 years afier the independence of
Cameroon andthe alleged transitionto Cameroonian sovereignty, the system of public education
was dominatedby Nigerianpublic authorities.The nationalityofthe inhabitants ofBakassi asan elementin title by historicalconsolidation
oftitle
76. As Nigeriapointed outin the Counter-Memorial,in the formationoftitle by aprocess of
historical consolidation therean be no doubt that the existenceof long-established Settlements of
the nationals of theclaimant Stateplays a significant role. It is helpful in thisrespect to recall the
viewsof Sir GeraldFitzmaurice expressedin his Hague lecturesin 1957:
"The element of racial or national affinity betweenthe population of the
claimantStateand the inhabitants ofthe temtory claimed,can never initself be a legal
ground of title. As withhistorical factors,it might assist in supportinga claim based
on other grounds, oras an evidential factor- for instanceit might assist in showing
that certain acts were carried out animo occupandi with the intention of asserting
sovereignty,but, especiallyif the territory is,or has passedinto the effective controlof
another State, affinitiesof race or country can never be a substitute for effective
control, or for continuity,or in themselves give title." And Fitzmaurice continues:
"Dzfferentconsiderationsarise whereit is not merely a question of racialor national
afinity, butof actual nationalsof the claimantState,for, ifsettlers in a territory have
a certain nationali@ that may be an element (though not necessarily a conclusive
one) in showing the existenceof effective control by theirparent State." (Recueil des
Cours,HagueAcademy,Vol. 92 (1957,II), p. 149; emphasisadded.)
77. The settlement of nationals has been treatedas relevant,though byno means decisive,in
thejurisprudenceof international tribunals. In the Guatemala-HondurasBoundary Arbitrationthe
Special Tribunalwas required to determine the line based onthe uti possidetis of 1821. The
Tribunalwas expressly authorizedto modifythe utipossidetis line to take into account "interests"
acquired by eitherparty beyondthat line. The Tribunal consequently assumed an impliedpower to
take account of interests derivedfi-omactualpossession, including settlement.In the words of the
Tribunal:
"The criteria to be applied by the Tribunal in the exercise of this authority are
plainly indicated. It isnot the functionof the Tribunal to fix territoriallimits in view
of what might be an appropriate division ofthe tenitory merely with reference to
geographical features or potential advantagesof a military or economic character,
apart fiom the historical facts of development. The Treaty cannotbe construed as
authorisingthe Tribunalto establish a definitive boundaryaccording to an idealistic
conception, without regard to the settlement of the territory and existing equities
created by the enterprise of the respective Parties. So far as may be found to be
consistent with these equities, the geographical featuresof the territory indicating
natural boundariesmaybe considered." (Guatemala-Honduras Boundary Arbitration
(1933); ILR,Vol. 7,p. 122; emphasisadded.)
78. 1 tum now to the Land, Island and MaritimeFrontier Dispute. The followingpassage
fiomthe Judgmentofthe Chamberis illustrativeofthe acceptanceby the Charnberof therelevance
of evidence of settlement: "Tuming now to the evidenceof effectivitéssubmittedby Honduras, there is
first some evidence of diplomatic correspondence. .. [and then there is some
irrelevant material and then it goes on]. Secondly, considerable material was
presented as an annex to the HonduranReply toshow that Hondurasalso can rely on
arguments of a human kind, that thereare 'humansettlements'of Honduran nationals
in the disputedareas in al1sUcsectors, and that variousjudicial and other authorities
of Hondurashave exercisedand are exercising theirfunctionsin those areas." (I.C.J.
Reports 1992,p. 471,para. 180; emphasis added.)
79. A similar formulation appears later in the Judgment (I.C.J. Reports 1992, p. 516,
para.265).
80. In the contextof historical consolidation, theexistence oflong-established settlemeofs
nationalsmust haveconsiderableprobativevalue.
Theroleof acquiescenceandrecognition inrelationto historicalconsolidationof title
81. At this point, Mr. President,it is necessary toturn to the questionsof acquiescence and
recognition in the context of historical consolidationof title. The argument of Professor
Mendelsonin thefirst round wasbased upon the assertionthat the conduct ofthe Consuls-General
of Nigeria constituted acceptanceor recognition of Carnerooniantitle (CR200215,pp. 20-24,
paras. 9-16).
82. Professor Mendelson insiststhat Cameroon "has not argued thatthe consuls had the
powerto grant recognitionof Carnerooniantitle to territory" (CR200215,p. 24, para. 16). Counsel
for Cameroon then repeats the same argument thinly disguised as an alleged "administrative
practice"arisingfromthe conductof officialsof both States. But,Mr.President,the reformulation
simply restates theproblem.
83. As a matter of international law the Cameroonian argument lacks foundations. The
activities relied upon involved the actionsof a low-ranking officialwhich were unrelated to the
issue of sovereignty. Consularofficials are not mandatedto deal with issuesof title to territory.
The general characterof the duties of consularofficersis described ina passage fiom the classic
Hall approved by Dr. ClivePany, the distinguished editorof the British Digest of International
Law, as follows:
"Consuls are persons appointed bya state to reside in foreign countries, and
permitted bythe Government of the latterto reside,for thepurposepartly of watching
over the interestsof the subjectsofthe statebywhich theyareappointed,and partlyof
doing certainacts on its behalf whichare importantto it orto its subjects,but to which
the foreign country is indifferent,it being eitherunaffectedby them, or affected only in a remote and indirect manner. Most of the dutiesof consulsare of the latter kind."
(Hall,International Law (4thed., 1895),pp. 330-331 .)
84.The authoritative treatiseby PatrickDaillier and Alain Pellet describesconsulardutiesin
essentiallysimilar terms (DroitInternational Public,6th ed., 1999,pp. 737-738). As these authors
point out: "Les consuls et lespostes consulaires ne sontpas chargésd'un rôle de représentation
s
politique. Leursfonctions revêtenu tn caractèrepurement administratif"
85. This formulation by ProfessorsDaillier and Pellet places emphasis on the purely
administrativenature of consular functions. The functionsof the Consul-General consist only of
routine administrativeacts which are completely divorced from the issues of boundaries. In the
present case the consular officers had no authority, expressor implied, to make assessmentsof
questionsofsovereignty.
86.The Cameroon Reply (p. 3 19, para.5.264) refersto a visit by theNigerian Ambassador
to West Atabong in 1986. The only documentcited in this respect (Ann.RC 149) is an itinerary
for the tourprepared by the staff ofthe Consul-Generalin Buea. There is no evidencethat a visit
to West Atabongactually took placeand no indicationofthe sourceof the itinerary.
87. But, Mr. President, atthis point it is necessary to step back from the Cameroonian
argument relating to the Consuls-General. As we have seen, it is an argument based upon the
concept ofrecognitionby conduct. As such,itmustbe placed within the generalcontextof the title
invoked by Nigeria, that is, historical consolidationof title. In Nigeria's submission such title
cannot be short-circuited by referenceto specific episodesof inconsistent conduct,and this more
especially when the overall evidentialpicture contradicts the inconsistent conduct. Counsel for
Cameroon invoked the Temple of Preah Vihear case (see CR 200215,p. 19, para. 16) and the
principleofrecognitionby conduct.
88.In relation to the argument related to Consuls-General, resortto principles analogousto
recognition or estoppel should in principle be treated with extreme caution. It is one thing to
determinethe title to the uninhabitedsite of anhistorictemple, when the evidenceof Stateactivity
in that casewas exiguous,onthe basisof recognitionor acceptance, but quiteanotherto applysuch
a principleto an area with a permanent population, and a long-establishee dthnic identity, more
especiallywhen there isconsiderable evidenceof Stateactivities. 89. It was Charles De Visscher who pointedto the modifiedrole which recognition playsin
the context of historical consolidation. 1 refer to the English edition of his classical work,
published in 1957,atpages 200to 201:
"Proven long use, which is its foundation, merelyrepresents a complex of
interestsand relations whichin themselves have theeffect of attaching a territory or an
expanse of sea to a given State. It is these interests and relations, varying fiom one
case to another, and not the passage of a fixed term, unknown in any event to
international law,that aretaken into direct account by thejudge to decide in concreto
on the existenceor non-existence of a consolidation byhistorictitles.
In this respect such consolidation differs from acquisitive prescription properly
so called, as also in the fact that it can apply to territories thatcould not be proved to
have belonged formerly to another State. It differs fiom occupation in that it can be
admitted in relation to certain parts of the sea as well as on land. Finally, it is
distinguished from international recognition- and this is the point of most practical
importance- by the fact that it can be held to be accomplished not only by
acquiescence properly so called, acquiescence in which the time factor can have no
part, but more easily by a sufficiently prolonged absenceof opposition either, in the
case of land, on the part of States interestedin disputing possession or, in maritime
waters, on the part of the generality of States." (Theory and Realiy in Public
InternationalLaw, 1957,pp. 200-201 ;footnotes omitted.)
90. In the present case the alleged effect of the actions of the Consuls-General must beset
off against the generalpattem of Cameroonian acquiescence,the evidence for which 1presented in
the first round.
Alternative formulationsof theclaimto titleto Bakassi
91. Nigeria's claim has been based upon historicalconsolidation of title as a generally
recognized legal principle. At the same time the claim could be given other legal forms which
would havesimilar if not identical legal effectsto those of historical consolidation.
92. A fairly obvious alternative formulation would be thecontinuous and peaceful display of
Nigerian sovereignty, together with the acquiescence by Cameroon in Nigerian sovereignty over
the Bakassi Peninsula. This is essentially thebasis of the decision of Judge Huber in the Island of
Palmas case(RIAA,II,p. 831).
93. In a number of well-known cases, the Court concemed has had to balance up the
"manifestations of sovereignty" and produce a determination basedupon the competing activities
of the claimant States. This was essentially the approach of the Court in the
Minquiersand Ecrehoscase (I.C.J.Reports 1953,p. 47). In this Judgment the Court expressedtheopinion that: "What is of decisive importance,in the opinion of the Court, is ... the evidence
which relates directlyto the possessionof theEcrehos andMinquiers groups.".(Ibid.,p. 57.)
94. And in the same Judgment the Court stated that its task was "to appraisethe relative i
strengthof the opposingclaims [ofthe Parties] overthe Ecrehos . .."(ibid.,p. 67).
i
Somespecific rebuttals
95. Mr. President, distinguished Membero sf the Court,my next task is to respondto certain
specificassertionsmadeon behalf of Camerooninthe second round.
96. In his secondround speech Professor Mendelson madea series of assertions relatingto
an alleged Nigerian acknowledgmentof Cameroon's title (CR2002116,pp. 38 et seq.). In an
exercisein forensicoptimism Professor Mendelson,in the firstparagraph of his argument, reveals
its weak legal foundations.
97. In the firstplace counsel uses acknowledgmentto include recognition and acquiescence.
But, Mr. President, there isno such legal categoryas acknowledgment. Secondly,recognitionis a
publicprocess and Cameroon relies upon severalepisodesinvolvingintemal documents.
98. Counsel for Cameroonalso asserts that any acknowledgment by Nigeria would
definitivelyrule out any question of Nigerian title. This reasoning lacksany legal underpinnings.
There is no attempt to establish the legal context,which is, the Nigerian claimon the basis of
historical consolidationof title. Nigeriadoesnot claim on thebasis of effectivitésin isolationfiom
al1the other evidence.
99. In any event, ifwe are to trade in real,publicly made,acknowledgments, the Court will
no doubt take note of ProfessorMendelson's acknowledgment in the first round thatNigeria had
produced more evidence of possession and title than Cameroon. It is there in the record, it was
made in face of the Court, and it was made by counsel having therequisite authority, withthe
Agentof CameroonSittingbeside him.
100. 1 tum now to the more specific points made by Professor Mendelson. His first
reference to an alleged acknowledgment involves Nigeria's diplomatic Note of 27March 1962.
This episode will beexaminedby my fiiend Professor Crawford tomorrow morninga ,nd 1 shall not
dealwith it. 101. Professor Crawfordwill alsodeal with ProfessorMendelson'sreference to thegranting
of hydrocarbon licences(CR2002116,pp. 39-40,paras. 17-18).
102. The next item invoked by counsel for Cameroon was the actions of the Nigerian
Consuls-General(CR2002116,pp. 40-41, para.19). 1have already examinedthis subject in this
speech.
103.However,there is one additional point. In the Gulfof Mainecasethe Courtexpressed
views onthe legal aspectsof activitiesby low-level officials.The Courtsaid:
"The Chamber considers that the terms of the 'Hoffman letter' cannot be
invoked against the United States Govemment. It is true that Mr.Hofhan's
reservation, that he was not authorizedto commit theUnited States, only concemed
the location ofa median line; theuse of a medianline as a method of delimitationdid
not seem to bein issue,but there isnothingto show that thatmethodhadbeen adopted
at govemment level. Mr. Hoffman,like his Canadiancounterpart,was acting within
the limits of his technical responsibilities andnot seem aware that the questionof
principle which the subjectof the correspondence mightimply had not been settled,
and that thetechnical arrangementshe was tomake with his Canadiancorrespondents
should not prejudge his country's position insubsequent negotiations between
govemments. This situation, however, being a matter of United States interna1
administration,does not authorizeCanada to rely on the contents of a letter fiom an
officia1of the Bureauof Land Managementof the Departmentof the Interior, which
concems a technical matter, as though it werean official declaration of the United
States Govemment on that country's international maritime boundaries." (I.C.J.
Reports 1984,p. 307,para. 139.)
104. In my submission thereis a strong analogy with theactivities of the Consuls-General
carrying out their administrative taskswithout any awareness that their actions couldprejudice
major issuesof principlependingbetweenthe two Govemments.
105. 1come now tothe Elias letter,which was invoked by ProfessorMendelsonin his first
round speech (CR200215,pp. 24-25, paras. 17-20). Inthe second round counsel for Cameroon
told theCourtthatthe Eliasletterwasof "the greatestsignificance"(CR 200211 6, p. 41,para. 20).
106. Mr. President, 1 knew President Elias well and he was a good fiiend of
PresidentWaldockwhowas my mentor. Chief RichardAkinjidepaid tributeto Eliasthismoming.
It isnotPresidentElias'sreputation whichis in issue. The issueis the evidentialsignificanceof his
letter. Counsel for Cameroon considersthat it "speaksfor itself". And so itdoes. It wasa piece of
confidentialadvice, formingpart of the Nigerian Govemmentprocess. It was leakedto the press,
or fellintothe handsofthe press, and thus appearsnow inthe Cameroonian pleadings. 107.Counselfor Cameroonnow producesthis as evidenceof recognitionand acquiescence.
But the letter did not form part ofany public transaction or ofany correspondence with Cameroon.
It cannotquali@as evidence ofrecognitionandacquiescence.
108. Mr.President, asChief Richard Akinjidehas pointed out,the contextand legalvalue of
such a document must be related to the totality of the evidence and legal argument presently
available. It would be inappropriate, indeed,it would be grotesque, if such an intemal opinion
were to be held to preclude the public position of Nigeria or theposition of the Court in these
proceedings.
109. And in this general context, it is not surprising thatthe distinguishedTribunal inthe
First Phase of theRed Sea Islands Arbitration, refusedto acceptevidence in the form ofinterna1
documents. Inthewords of theTribunal:
"The former interestin these islandsof Great Britain,Italy and to a lesserextent
of France and the Netherlands, isan important elementof the historical materials
presented to the Court by the Parties, not leastbecause they have had access to the
archives ofthe time, and especially toearly papers of the British Govemmentsof the
time. Much of this material is interestingand helpful. One general caveat needs,
however, tobe made. Some of this material is in the form of interna1memoranda,
fiom within the archives of the British Foreign Office, as it then was, and also
sometimes ofthe Italian Foreign Office.
TheTribunal has been mindful thatthese intemalmemorandadonot necessarily
represent theview or policyof any govemment, and maybe no more thanthe persona1
view that onecivil servantfelt movedto expressto anotherparticular civil servantat
that moment: it is not alwayseasy to disentanglethe personality elementsfiom what
were, after all, intemal, private and confidential memorandaat the time they were
made." (Award,9 October1998,para.94.)
110. In conclusion, 1 would emphasizethe legal absurdity,the forensic distortion, which
would result in according any legal significance to the Elias letter alongside the substantial
evidenceofNigeriantitle which isnow availableto the Court.
111. 1move now to the letter fiom Mr. K. B. Olukolu, ofthe Nigerian Ministryof Justice,
dated 6 June 1985,invoked by Professor Mendelsonin the secondround (CR2002116,pp.41-42,
paras. 21-25).
112. This letter appears to have been prepared by a low-level officia1in the Ministry of
Justice at a time when there was no Attorney-Generalin office. Mr. Olukolu was an AssistantDirector in the International and ComparativeLaw Department of the Ministry of Justice. In any
eventthe actual provenance ofthe documentremains unknown.
113.Mr. President, al1the legal considerations which appliedto the Elias letter apply to the
Olukolu letter. The fact that Mr. Olukolu was more junior than President Elias can make no
differenceto the legalappreciation which iscalled for.
114. And, of course, the same considerations apply to the other document apparently
emanating fiom the Ministry of Justice invoked by Professor Mendelson, which is dated
6 June 1986 (Mernorial of Cameroon, Ann.MC 279). The provenance of this document is also
unknown.
115. In conclusion, onthe legal significanceofthese three intemal documents relied on by
Cameroon, 1would once more recallthe viewexpressed bythe Chamberof the Court in theGulfof
Maine case. If the Chamber did not considerthat the Hoffman letter could be invoked againstthe
United States Government in the context of a correspondence between the United States and
Canada, how can Cameroon expectthe Court to give any legal effect to documents which were
intemal and, by theirvery nature, confidential.
116. It is also to be borne in mind that such Ministry documents are subject to State
immunity .
117.The next subject referredto by Professor Mendelson wasmap evidence. In his second
round speech, counselwas respondingto passages inmy first round speech (CR200219, pp.47-49,
paras. 143-154). Professor Mendelsonwas careful, firstof all, to pick out only a small proportion
of the points which1 had made. Secondly, he avoidedcomment on al1the points of legal substance
(CR 2002116,pp. 43-44, para. 26). As a result counsel for Cameroon failed to comment on the
followingissues:
- first,the relation of maps to the actual basis of title relied upon by Nigeria, namely, historical
consolidationoftitle;
- second,the relation between maps and the administrativeand socialstatus quo on the ground;
- third, the relevance of judicial precedents concerningmap evidence, some ofthem emanating
fromthis Court;
- fourth,the significanceof compiledmaps;- fifih,the expert provenanceorothenviseofthemaps; andlastly,
- the legal significance of the entries in the Gazetteer published by the Nigerian Director of
FederalSurveys in 1965.
118. Mr. President, counsel for Cameroon has not replied to the legal substance of my
1
assessmentof the relevanceof the evidenceintheseproceedings. In particular,likehis colleagues,
he finds itimpossibleto relatehis observationstothe actualbasis of titlerelied on byNigeria.
ThepopulationoftheBakassi Peninsula
119.Our distinguishedopponentsdonothave a veryprecise knowledgeof the geographyof
the Bakassi region, as Nigeria demonstratedto the Court in the first round. The figure for the
populationof Bakassi offeredby Cameroonis4,046persons(CR 2002115, p.26, para.28).
120.Nigeria doesnot findthis figurecredible. Inanyevent, it isnot always easyto produce
figures which relate exactly to the area of Bakassi and do not either include other areas or,
alternatively,exclude areas of Bakassi. At the time when the Rejoinder was prepared Nigeria
produced anapproximateandinterimfigureofapproximately100,000.
121.In the periodleadingup to the oralhearingstheNigerian teammade a calculationbased
upon dataprovided by the National Population Commissionof Nigeria. These figures relate to a
detailed list of villages and the assessmentsof which clan areas fell within Bakassi. The total
figure which emerged from the data was 156,000, the figure presented to the Court in these
proceedings.
122.After a further check on the figuresrelating to clan areas, Nigeria is confidentthat the
figure of 156,000is reliable. This figure is basedupon the six clans areason Bakassiand theseare
referredto in theRejoinder.
123.It is ironical that Cameroonhas seenfitto makesuch an issueofthe population. Onthe
basis of Nigeria's knowledge of Bakassi, which is extensive, the Cameroonianfigure of 4,046
appears ludicrous. Mr. President, the figuresare one thing, the legally relevant factors arequite
-
another. The legally relevantfactorsare as follows: Firstly,the populationis substantialand it is
Nigerian, not Cameroonian. Counselfor Cameroonhave concededthis. Secondly,the population
ispermanent. And thirdly,the clanand ethniclinksarewiththe Nigerianmainland.Thetreatmentofeffectivb itCéameroon
124. Mr. President,as 1 near the end of my speech, 1 find it necessary to return to the
question of efectivités. It is, of course, the prerogative ofthe applicant State to decide on her
strategy and tactics. But,there arecertain limitsto this prerogative, andonehlimit is the duty
toprovideassistance tothe Court.
125.Cameroon,in the personof its counsel,has essentiallyrefusedto examinethe evidence
of efectivités. This evidencewas admitted to be substantial.It was the product of a great deal of
hard work by distinguished Nigerianofficiais, includingAlhajiDahiru Bobbo, Director-Generalof
the National Boundary Commission and Mrs.Nella Andem-Ewa, the Attorney-Generalof Cross
River state. The Nigerian Government receivedthe assistanceof a distinguished firm of London
solicitors, D.. Freeman,who are experiencedin boundarymatters and helped the winningsidein
the last boundary casein whichtheywere involved.
126.Theresults ofthe effort madeby Nigeriato assist theCourtby providing evidence were
impressive. And whatwas the responseof Cameroon? Theresponse wasin three forms. The first
formwas anunattractive dismissivenessand a flippancywhichwas wholly inappropriate.
127.The secondresponse wasto find technical excusesfor not dealing withthe efectivités.
Thus, in the first roundProfessor Mendelsonargued that because Cameroon had titleon the basis
of utipossidetisjuris, therefore efectivitéscouldonly have a confirmatoryrole (CR200214,p. 35,
para. 1). Thisdoes not follow, becauseuti possidetis does not block the Nigerian positionbased
upon lawfulchange. In the same speech otherexcuses are produced,such as the curious argument
that the effectivitéswould not qualiQ in case of prescription, whichhas not been invoked by
Nigeria.
128.And, Mr. President,if Cameroon isrelying on uti possidetis or the 1913Treaty, why
could not Cameroon relyupon evidenceof effectivitésin the mode of confirmationof title? This
would have beenthe naturalresponse. Why wasthis not done? Was itbecause the evidenceofthe
requisiteeffectivitéswassimply notavailable?
129.The third formof responsewas to ignore the evidenceof effectivités. The evidenceof
Nigerian presencewas ignored in theCameroonReply, and in the firstround speechesand, finallyby Professor Mendelson in the second round. Can1 remind the Court what he said in the first
round:
"Nevertheless, inits Rejoinder, Nigeriahas persisted in ignoringthe very real
legal objectionswhich Cameroon hasmade to itsapproach,and has insisted on piling
up examples of its alleged effectivités in order to bolster its spurious claim to
sovereignty over the Bakassi Peninsula by means of its so-called 'historic
consolidationof title'. 1shall thereforesubmitto you thatthe legal frarnework within
which Nigeria seeksto situate its effectivités(and those of Cameroon) is tendentious
and misleading; and further, that the factsrelied upon by Nigeria do not have the
significancewhich it seeks to attachto them. The reliability of at least some of the
evidenceadduced byNigeria is also opento question, but itis unnecessaryto go into
that furthernow, evenif time allowed."
And later on inhis speech,hesays:
"and, wefûrther submitthat theseCameroonianeffectivitésare morethan sufficient to
counter Ouropponents' claim that Cameroon acquiesceid n the exercise of sovereign
authority by Nigeria. 1 shall not repeat the evidence of Cameroonian effectivitésin
exhaustive detail [hesays] inthe limitedtime 1 have: many instances arefound in the
Memorial,and especiallyintheReply." (CR200214, p.36,para. 2.)
Well,he did havefurthertime inthe second round. But nothingmuch happened.
130. Al1referenceto specificswas still avoided. Nigeriahad presenteda detailed critique of
the Cameroonianevidence in the first round (CR200219). DidProfessor Mendelsonfindtime to
dealwith specificsin the secondround? Unfortunately not.Thus,no examinationof the evidence
wasattempted eitherin thefirst orthe second round(CR 2002116,pp. 45-51).
Thepredominance ofthe evidenceof Nigeriantitle on the Basis of historicalconsolidation of
title
131. Mr.President, my argument relates tothe evidence of Nigerianpresence in Bakassi
since independence. If 1 can remind the Court,the elements which constitute the process of
historical consolidation of titlein relationto the BakassiPeninsulaare as follows:
Theoriginal titleof the City Statesof OldCalabar.
(i)
(ii) Theattitude andethnic affiliations of the populationofthe BakassiPeninsula.
(iii) TheEfikand Effiat toponymy ofthe Bakassi townsand villages.
u
(iv) The administration of Bakassi as part of Nigeria in the period 1913 to the date of
independence.
(v) The exercise of authority over the towns and clans of Bakassi by traditional Rulers
eitherbased in Calabaror otherwise owing allegiance to Nigeria. (vi) The exercise ofjurisdiction by customary law courtsby virtue ofNigerian legislation.
(vii) The long-established settlementof nationalsof Nigeria inthe region; and lastly
(viii) Manifestationsof sovereignty by Nigeriaafter independencein 1960.
132. The original title of the City States of Old Calabar is not a necessary condition of title
but it has a confirmatory role. And the same appliesto the evidence concerningthe position inthe
period 1913until independence.
133. Cameroon has not challenged the evidence produced by Nigeria in respect of the
different elements presented above. The evidence of eflectivités has not been effectively
challenged and it will not help Cameroon to argue that this evidence is to be set aside, simply
because Cameroon does not care to recognize the legal status of title on the basis of historical
consolidation. This standing aside from Nigeria's basisof claim is a forensicrisk which Cameroon
has chosen totake.
134. In relation to efectivitésthe pleadings of Cameroon in fact showa radical change of
legal approach. Inthe Mernorial, andalso in the Reply, theGovemment of Carneroon recognized
the legal relevance of effectivités. However, subsequent to the appearance of the Nigerian
Rejoinder, the policy underwent a major change. Accordingly, in the oral hearings counsel for
Cameroon contended, albeit in somewhat obscure language,that for various reasons the evidence
ofNigerian effectivités was legally irrelevant.
135.The evidence overallproduces a predominance ofNigerian administrationin the region,
coupled with evidence of the ethnic and social connections withthe mainland of Nigeria and the
existence afier independence of a Nigerian administrative andsocial status quo which eventually
Cameroon soughtto disturbby variousmeans, includingthe use of force.
136.Mr.President, what is important is the predominance of evidence favourable to Nigeria
andthe failureof Cameroonto challengethe legalstatus of the various categoriesof evidence.
137. It is significant that Carneroon reliesupon items of evidence which are not only
problematical in themselves, but, in evidential terms, peripheral. The necessary result is the
validation of the title by historical consolidationonthe basis of the predominant evidence.
138. And Mr. President, even if,arguendo, the issues relied on heavily by Cameroon, such
asMaroua, orthe map evidence, wereto be resolved, as isolated issues, in favour of Cameroon, thepredominantevidence would still stand in support of Nigeriantitle. It would be illogical in the
extremeto circumvent the major elementsof the evidenceby reference to issues whichare both
peripheraland which, inthe caseof Maroua,are legallyproblematical.
Conclusions
139.In conclusionit is submitted thatNigeria hastitle overBakassi onthe basis ofhistorical
consolidation of titlein theiod sincethe independenceofNigeria, either onthe assumption that
the 1913Treaty was not implementedor, in the alternative, thatthe Treaty was implemented but
was subjectto a process of lawful change constitutedby the process of historical consolidationof
title.Mr. President, that concludesmy presentation this morning. 1would like to thank you and
your colleaguesonce againfor your patience.
The PRESIDENT: Thank you very much, Professor Brownlie. Ceci met un terme
effectivementà la séancede ce matin. La Cour reprendra sestravaux cet après-midià 15heures.
Laséanceest levée.
L'audienceest levéeà 13heures.
Audience publique tenue le jeudi 14 mars 2002, à 10 heures, sous la présidence de M. Guillaume, président