Audience publique tenue le mardi 3 mars 1998, à 10 heures, sous la présidence de M. Schwebel, président

Document Number
094-19980303-ORA-01-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
1998/2
Date of the Document
Bilingual Document File
Bilingual Content

1 "ln- Corrigé ]
,..,, rrected
d

Cour internationale International Court
de Justice of Justice

LA HAYE THEHAGUE

Audience publique

tenue leardi 3 mars 1998à10 heures, au Palaisde la Paix,

sous laprésidencede Schwebel,président

en l'affairede la Frontière terrestre et maritimeentre le Cameroun etle Nigéria
(Camerounc Nigéria)

Exceptionspréliminaires

COMPTERENDU

YEAR 1998

Public sitting

held on Tuesday 3 March 1998, uam,Out the PeacePalace,

PresidentSchwebelpresiding

in the case concerning the Land andMaritime Boundary betweenCameroonand Nigeria
(Cameroon v. Nigeria)

Preliminas, Objections

VERBATIMRECORDPrésents: M. Schwebel,président
M. Weeramantryv,ice-président
MM. Oda
Bedjaoui
Guillaume
Ranjeva

Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin

Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek,juges
MM. Mbaye
Ajibola,juges ad hoc

M. Valencia-Ospina, greffierPresent: President Schwebel
Vice-President Weerarnantry
Judges Oda
Bedjaoui
Guillaume
Ranjeva

Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin

Higgins
Parra-Aranguren
Kooijmans
Rezek
Judgesad hoc Mbaye
Ajibola

Registrar Valencia-OspinaLe Gouvernementdu Camerounest représenté par :

S. Exc. M. Laurent Esso, ministre de lajustice, garde des sceaux,

comme agent;

M. Douala Moutome, avocat au barreau du Cameroun, ancienministre,

M. Maurice Kamto, professeur à l'universitéde YaoundéII, avocat au barreau de Paris,

M. Peter Ntamark, doyen, professeur dedroit à la faculté de droitet de science politiquede
l'universitéde YaoundéII, avocat,membre de l'InnerTemple,

comme coagents;

S. Exc. M. Joseph Owona, ministre de lajeunesse et des sports,

M. Joseph Marie Bipoun Woum, professeur à l'université de YaoundéII, ancien ministre,

comme conseillers spéciaux;

M. Alain Pellet, professeurà l'universitéde Paris X-Nanterre eà l'Institutd'étudespolitiques
de Paris,

comme agentadjoint, conseil et avocat;

M. Michel Aurillac, avocat à la cour, conseiller d'Etathonoraire, ancien ministre,

M. Jean-Pierre Cot, professeurà l'universitéde Paris 1 (Panthéon-Sorbonne), vice-présidendtu
Parlement européen,avocat aux barreaux de Paris et de Bruxelles, ancien ministre,

M. Keith Highet, Esq., conseil en droit international, vice-présidentdu comitéjuridique

interaméricain de l'organisation des Etats américains,

M. Malcom N. Shaw, Barrister at Law, professeur de droit international,titulaire de lachaire
Sir Robert Jennings,à la facultéde droit de l'universitéde Leicester,

M. Bruno Simma,professeur àl'université deMunich,

Sir Ian Sinclair, Q.C.,arrister ut Law,

M. Christian Tomuschat, professeur à l'universitéde Berlin,

comme conseils et avocats;

S. Exc. M. Pascal Biloa Tang, ambassadeur du Cameroun en France,

S. Exc. Mme Isabelle Bassong, ambassadeur du Cameroun auprès desEtats membres

du Benelux, -3-

The Governrnentof Cameroonisrepresentedby:

H.E. Mr. Laurent Esso, Minister of Justice, Keeperof the Seals,

as Agent;

Mr. Douala Moutome, Member of the CameroonBar, former Minister,

Mr. Maurice Karnto, Professor at the Universityof Yaoundé II, Memberof the Paris Bar,

Dean Peter Ntarnark, Professor of Law at the Inner Temple, Barrister at Law, Faculty of Laws
and Political Science,University of YaoundéII

as Co-Agents;

H.E. Mr. Joseph Owona, Minister of Youth andSport,

Mr. Joseph-Marie Bipoun Woum, Professor at the University of YaoundéII, former Minister,

as SpecialAdvisers;

Mr. Alain Pellet, Professor at the University ofParis X-Nanterre and at the Institut d'études
politique of Paris,

as Depu&-Agent,Counsel and Advocate;

Mr. Michel Aurillac, Advocate at the Court ofAppeal, Honorary Member of the Council of

State, former Minister,

Mr. Jean-Pierre Cot, Professor at the University of Paris1 (Panthéon-Sorbonne),
Vice-President of the European Parliament,Member of the Paris and Brussels Bars, former
Minister,

Mr. Keith Highet, Esq., Counsellor in International Law, Vice-Chairman, Inter-American
Juridical Cornmittee, Organization of American States,

Mr. MalcomN. Shaw, Barrister at Law, Sir Robert Jennings Professor of International Law,
Faculty of Law, University of Leicester,

Mr. Bruno Simma, Professorat the Universityof Munich,

Sir Ian Sinclair,.C., Barrister at Law,

Mr. Christian Tomuschat, Professor at the University of Berlin,

as Counsel and Advocates;

H.E. Mr. Pascal Biloa Tang, Ambassador of Cameroon to France,

H.E. Mrs. Isabelle Bassong,Ambassador of Cameroon to the Benelux Countries,S. Exc. M. Martin Belinga Eboutou, ambassadeur,représentantpermanent du Cameroun

auprèsde l'organisation des NationsUnies,

M. Pierre Semengue, général de corps d'armée,chef d'Etat-majorgénérad les armées,

M. Robert Akamba, administrateur civil principal, chargéde mission au secrétariatgénéral

de la présidence dela République,

M. Etienne Ateba, ministre-conseiller, chargé d'affaires.à l'ambassadedu Camerounaux
Pays-Bas,

M. Ernest Bodo Abanda, directeur du cadastre, membre de la commissionnationale des

frontièresdu Cameroun,

M. Ngolle Philip Ngwesse, directeur au ministèrede l'administrationterritoriale,

M. Thomas Fozein Kwanke,conseiller des affaires étrangères, sous-directeurauministèredes
relations extérieures,

M. Jean Gateaud, ingénieur général géographe,

M. Bienvenu Obelabout, directeur d'administrationcentrale, secrétariat général dlea
présidencede la République,

M. Marc Sassen, avocat et conseiljuridique, La Haye,

M. Joseph Tjop, consultantà la société d'avocats ignard Teitgen Grisoni et associés, chargé
d'enseignementet de recherche à l'universitéde Paris X-Nanterre,

M. Songola Oudini, directeur/administratiocnentrale au secrétariatgénérle la présidencede la
république

comme conseillers;

Mme Florence Kollo, traducteur-interprèteprincipal,

comme traducteur-interprète;

M. Pierre Bodeau, attaché temporaired'enseignementet de recherche à l'universitéde
Paris X-Nanterre,

M. Olivier Corten, maître de conférencesà la facultéde droit de l'universitélibre de Bruxelles,

M. Daniel Khan, assistantà l'universitéde Munich,

M. Jean-Marc Thouvenin,maître de conférences àl'universitédu Maine et à l'Institut d'études
politiques de Paris,

comme assistants de recherche;H.E. Mr. Martin Belinga Eboutou, Ambassador, Permanent Representativeof Cameroon to the

United Nations Organization,

Lieutenant General Pierre Semengue,Chief of Staff of the Armed Forces,

Mr. Robert Akamba, Principal Civil Administrator,chargéde mission, Secretariat of the
Presidency of the Republic,

Mr. Etienne Ateba, Minister-Counsellor,Chargé d'affaires a.i. at the Embassy of Cameroon
to the Netherlands,

Mr. Ernest Bodo Abanda, Director of the Cadastral Survey, Member of the National Boundary
Commission of Cameroon,

Mr. Ngolle Philip Ngwesse, Director at the Ministry of TerritorialAdministration,

Mr. Thomas Fozein Kwanke, Counsellor in ForeignAffairs, Deputy Director at the Ministry of
Foreign Relations,

Mr. Jean Gateaud, Ingénieurgénéral géographe,

Mr. Bienvenu Obelabout, Director of Central Administration,Secretariat of the Presidency of the
Republic,

Mr. Marc Sassen, Advocate and Legal Adviser, The Hague,

Mr. Joseph Tjop, Consultant at the Civil Law Firm of Mignard Teitgen Grisoni and Associates,
Senior Teaching and Research Assistant at the University of Paris X-Nanterre,

Mr. Songola Oudini, DirectorICentralAdministrationat the General Secretariat of the Presidency
of the Republic,

as Advisers;

Mrs. Florence Kollo, Principal Translator-Interpreter,

Mr. Pierre Bodeau, Teaching and Research Assistantat the University of Paris X-Nanterre,

Mr. Olivier Corten, Senior Lecturer at the Faculty of Law, Université librede Bruxelles,

Mr. Daniel Khan, Assistant at the University of Munich,

Mr. Jean-Marc Thouvenin, Senior Lecturer at the University of Maine and at the Institut d'études

politiques of Paris,

as Research Assistants,M. Guy Roger Eba'a,

M. Daniel Nfan Bile,

commeresponsables de la communication;

Mme René Bakker,

Mme Florence Jovis,

Mme Mireille Jung,

commesecrétaires.

Le Gouvernement du Nigéria estreprésenté par :

S. Exc.M. Alhaji AbdullahiIbrahim, OFR, SAN, honorableAttorney-General de la Fédération w
et ministre de lajustice,

commeagent;

M. Richard Akinjide,SAN,

commecoagent;

M. Ian Brownlie, C.B.E., Q.C., F.B.A., professeur de droit international publicversité
d'Oxford,titulaire de la chaire Chichele, membre du barreau d'Angleterre,

Sir Arthur Watts, K.C.M.G., Q.C.,membre du barreau d'Angleterre,

M. James Crawford, S.C., professeur de droit internationaluniversitéde Cambridge, titulaire

de la chaire Whewell,membre du barreau d'Australie,

commeconseils et avocats;

M. Timothy H. Daniel, associé, membredu cabinet D. J. Freeman de la City de Londres,

M. Alan Peny, associé, membredu cabinet D. J. Freeman de la City de Londres,

M. David Lerer, Solicitor,membre du cabinet D.. Freeman de la City de Londres,

M. Christopher Hackford,Solicitor, membre du cabinet. J. Freeman de la City de Londres,

Mme Louise Cox, Solicitor, membre du cabinet D. J. Freeman de la City de Londres,

commeSolicitors;

M. A. H. Yadudu, conseiller spécial duchef de 1'Etatpour les questionsjuridiques,

M. A. Oye Cukwurah, membre de la commission nationaledes frontières,Abuja,Mr. Guy Roger Eba'a,

Mr. Daniel Nfan Bile,

as CommunicationsSpecialists;

Mrs. Renée Bakker,

Mrs. Florence Jovis,

Mrs. Mireille Jung,

as secretaries.

The Governrnentof Nigeria isrepresentedby:

H.E. Mr. Alhaji Abdullahi Ibrahim,OFR, SAN, the Honourable Attorney-Generalof the
Federation and Ministerof Justice

as Agent;

Mr. Richard Akinjide, SAN,

as Co-Agent;

Professor Ian Brownlie, C.B.E., Q.C.,F.B.A., Chichele Professor of Public International Law,
Oxford, Member of the International Law Commission, Member of the English Bar,

Sir Arthur Watts, K.C.M.G., Q.C.,Member of the English Bar,

Professor James Crawford,S.C., Whewell Professor of International Law, Universityof

Cambridge, Member of the International Law Commission, Memberof the Australian Bar,

as Counsel and Advocates;

Mr. Timothy H. Daniel, Partner, D. J. Freeman of the City of London,

Mr. Alan Perry, Partner, D. J. Freeman of the City of London,

Mr. David Lerer, Solicitor,D. J. Freeman of the City of London,

Mr. Christopher Hackford, Solicitor,D. J. Freeman of the City of London,

Ms Louise Cox, Solicitor, D. J. Freeman of the City of London,

as Solicitors;

Professor A. H. Yadudu, Special Adviser to the Head of State on Legal Matters,

Professor A. Oye Cukwurah, National Boundary Commission, Abuja, - 10-

M. 1.A. Ayua, directeur général, NIALS,

M. L. S. Ajiborisha, général debrigade, directeur des opérations,DHQ,

Mme Stella Omiyi, directeur, direction du droit internationalet comparé, ministère féal la
justice,

M. K. Mohammed, conseillerjuridique, NSA,

M. Jalal A. Arabi, conseillerjuridique du secrétairedu gouvernement de laFédération,

M. M. M. Kida, sous-directeur,ministèredes affaires étrangères,

M. Alhaji A. A. Adisa, directeur adjoint du service cartographique, ministère fédéral de
l'équipementet du logement, Abuja,

M. P. M. Mann, chargé d'affairesà l'ambassadedu Nigéria, La Haye,

Mme V. Okwecheme, conseiller àl'ambassade du Nigéria, La Haye,

M. Amuzuei, conseillerà l'ambassadedu Nigéria,La Haye,

commeconseillers;

Mme Coralie Ayad, membre du cabinet D. J. Freeman de la City de Londres,

commesecrétaire. - 11-

Professor 1.A. Ayua, Director-General, NIALS,

Brigadier General L. S. Ajiborisha, Director of Operations, DHQ,

Mrs. Stella Omiyi, Director, International and ComparativeLaw Department, Federal Ministry of
Justice,

Mr. K. Mohammed, Legal Adviser, NSA,

Mr. Jalal A. Arabi, Legal Adviser to the Secretaryto the Governmentof the Federation,

Mr. M. M. Kida, Assistant Director, Ministryof Foreign Affairs,

Mr. Alhaji A. A. Adisa, Deputy-Suweyor, FederalMinistry of Works and Housing, Abuja,

Mr. P. M. Mann, Chargé d'affaires, Embassy of Nigeria, The Hague,

Mrs. V. Okwecheme, Counsellor, Embassy of Nigeria, TheHague,

Mr. Amuzuei, Counsellor, Embassyof Nigeria, The Hague,

as Advisers;

Mrs. Coralie Ayad, D. J. Freeman of the City of London The PRESIDENT: Please be seated. This morningwe resurnethe argument of the Federal

Republic of Nigeria and 1cal1on Professor Brownlie.

Mr. BROWNLIE:

The Court cannot determine the tripoint in Lake Chad

Thank you Mr. President. This morning 1shall complete my presentation by dealingwith

the fourth Preliminary Objection of Nigeria. This can be formulated as follows:

"The Court should not in these proceedings determine the boundary in Lake
Chadto the extentthat the boundaryconstitutesor is constitutedby the tripoint inthe

Lake."

The underpinningsof this objection have been indicated in Nigeria'swritten pleadings and *

it will sufice if 1pick out certain of the key elements.

The observations of Cameroon (pp. 75-78) asserts that the jurisprudence of the Court

sanctionsthe possibility of continuing a delimitation as far as the end-point ofthe boundary.The

Judgrnent ofthe Chamber in the case concerningthe FrontierDispute (Burkina Faso/Republicof

Mali) is representative of this trend of thinking within the Court. The relevant passage is as

follows:

"TheChamberalso considersthat itsjurisdiction isnotrestrictedsimplybecause
the end-point of the fiontier lies on the fiontier of a third Statenot a party to the
proceedings. Therights ofthe neighbouring State,Niger,are inanyevent safeguarded
by the operation of Article 59 of the Statute of the Court, which provides that 'The
decision of the Court has no binding force except betweenthe parties and in respect
of that particular case'."

The Chamber continues:

"TheParties couldatany timehave concluded anagreementforthe delimitation
of their fiontier, according to whatever perception they may have had of it, and an

agreement of this kind, although legally bindinguponthem by virtue of the principle
pacta suntservanda,would not be opposableto Niger. A judicial decision, which 'is
simply an alternative to the direct and fiiendly settlement'of the dispute between the
Parties(P.C.I.J.,SeriesA,No. 22, p. 13),merely substitutesforthe solutionstemming
directly fiom their shared intention, the solutionarrived at by a court under the
mandate which they have given it. In both instances,the solutiononly has legal and
binding effect as between the Parties which have acceptedit, either directly or as a
consequence of having accepted the court's jurisdiction to decide the case.
Accordingly, on the suppositionthat the Chamber'sjudgment specifies a point which
it finds to be the easternmost point of the fiontier, there would be nothing to prevent
Niger fiom claiming rights, vis-à-vis either of the Parties, to territories lying
the point identifiedby the Chamber." (I.C.J.Reports 1986, pp. 577-578, para. 46.)In my submissionthis trend injudicial opinion is not as decisive as Cameroon contends in these

proceedings and further that it is certainly not decisive in the present case.

In the first place, there is considerable evidence of an ambivalence in the attitude of this

Court and this is especially evident in the approach of the Court to the institution of intervention

andto Article 62 of the Statute. It is well remembered howthe Court, havingrefusedto permitthe

intervention of Italy in the LibyaIMalta Continental Shelfcase, carefully avoided a delimitation

whichoverlappedwithItalianclaimswhen thedelimitation decisionwas taken(1C.J. Reports1985,

p. 13 at pp. 24-28, paras. 20-23).

Mr. President,in my submissionthere is a compelling analogy in respect of the situation of

Lake Chad but with a key difference. Within the public order system of Lake Chad, with its

multilateral system of demarcation, the legal position of the four riparian States is directly

implicated. In contrast, the deference of the Court in the LibyaIMalta case was exclusively

preservative. In 1985the Courtrefersto: "Thelimits within whichthe Court, in order to preserve

the rights of third States,will confine itsdecisionin the present case" (I.C.J.Reports 1985,p. 26,

para. 22). In any event,there has always beena respectable body of opinion within the Court to

the effectthat Article 59 may not provide sufficientprotectionfor third States. In this connection,

Mr. President, 1would recall your expressionsof concem in the Italian Intervention case itself

"9. It is no answerto Say- as, in substance,the Court appears to Say - that
Italy'sinterestof a legal naturecannotbeaffected bythe decision in the case because,
by the terms of Article 59 of the Statute,'The decision of the Court has no binding

force except betweenthe parties and in respect of that particular case'."

And you continued:

"If that answer were good, then Article 62 would be pointless: there would
never be a case to which Article 62 should or could apply, since, by reason of
Article 59, a third State'slegal interest never can be affected by a decision in a case.
Article 59 cannot, by any canon of interpretation,be read so asto read Article 62 out
of the Statute.

.
10.The Court endeavoursto meet this evident conclusion by maintaining that
its interpretation of Article 59 actually does not render Article 62 pointless, for the
reason that,while, by the force of Article 59,the legal interest of a third State cannot
be affected by a decision in a case to which it is not a Party, such third State still has
the choice afforded by the conjunction of Articles 62 and 59 either of seeking the
proceduraleconomy of means which the former affords or the legal immunitywhich
the latter ensures. That is to say, the purpose of Article 62, in the logic ofthe Court,
apparently is not to afford third Statesthe facility of intervention in order to protect or promote an interest of a legal naturewhich may beaffected by the decision in the

case, since, by reason of Article 59, no decision of the Court can affect such legal
interest of a third State. It is merelyto allow the third State to Saveitself the burden
of subsequent,direct litigation againstthe principalParties - in the eventthat there
isajurisdictional basis for such litigation- bypermitting itto interveneintheir case,
if the Court so decides. Such an analysis reduces Article 62 to an improbable
procedural conveniencewhich neitherits terms nor its travauxpréparatoiressupport.
Itis virtually tantamount to readingArticle 62 out of the Statute."

And you concluded:

"11.Moreover, itcannotbepersuasivelymaintainedthatajudgment ofthe Court
setting out the appliedules for the division of areasof continentalshelfbetweentwo

Stateswill not even 'affect'the legalinterests of athird Statewhich laysclaimto some
of those same areas. To so maintain is to devalue the legal worth of the Court's
judgments, to which al1members ofthe internationalcommunityshallgivedueweight
as authoritative holdings of international law." (ContinentalShelf (LibyanArab
Jamahiriya/Malta),Applicationfor Permission toIntewene,Judgment, (1C.J.Reports
1984, pp. 134-135.)

Similar opinionswere expressed inthat case by Judge Sette-Camara(p. 87,para. 8l), Judge

Oda (pp. 104-105, para. 29), and Judge Jennings, as he then was (pp. 157-160, paras.27-34).

In the light of these significant expressions of opinion it comes as no surprise to find a

reflection ofsuch views in the latest edition of Rosenne'sauthoritativework onthe Court. The

relevantpassage has a particular resonancein relation to the present proceedings. Rosenne wrote:

"As a result of the attempted interventions in the Nuclear Test cases the two
ContinentalShelfcases, and above al1the non-party interventionof Nicaragua in the
Gulf of Fonseca issue, the topic had become thoroughly aired in pleadings and oral
argument, in judgments of the Court and Chamber, and in individual opinions of
judges. A formidable body of judicial opinion had developed in favour of the view

that ajurisdictional link of the acceptedkind was not needed at least in cases where
the State seekingto intervenewas notasserting a claimagainst eitherof the litigating
States, but at most wanted to protect its own rights, claims and interests against
possible prejudice arising out of the principal proceedings. Nevertheless,for other
reasons in these casesthe Court, by finding that the State seekingto intervenedid not
possess an interest of a legal nature which might be affected by the decision in the
case, never reached the point at which it would haveto take a decision on this issue.
The existenceof this trend indicates,however, thatthe forma1provisionof Article 59
of the Statute,to the effectthat 'Thedecision of the Court hasno bindingforceexcept
betweenthe parties and in respect ofthat particularcase', may notalwaysbe suficient
protection for third States, especially in disputes involving sovereigntyor sovereign
rights overportions ofthe earWs surface,in particulardisputesrelatingto overlapping

claims to maritime areas, and that situations exist in which somethingmore definite
may be required." (Rosenne, TheLaw and Practice of the IntemationaI Court,
1920-1996,3rd ed., 1997,pp. 1540-1541 .)

That is the carefülly considered view of Professor Rosenne. - 15 -

Theseconsiderationsapplybothinrelationto landterritoryandmaritimeboundary cases, and

they arecertainly no less applicable in my submissionto the régime ofCO-ripariansof a lake or

inland sea such as Lake Chad.

The demarcationof boundariesin Lake Chad, and the determinationof the related tripoints,

is in principle opposableto al1four riparian States, because what is involved is a multilateral and

institutionalpublicorder system. The fixing of tripoints forms part ofthis system. And, giventhe

nature and functions of the LCBC, al1four States have an interest in the fixing of bothtripoints.

Thetripoints in this case thus fom part of a régime whichis sui generisin legal terms. And for

this reason alone,the standardauthoritiesrelatingto the determinationof tripoints are not relevant

in this case.

The Statespartiesto the Statuteof the LCBC,otherthanNigeria and Cameroon,arethus not

"third parties"'in relation to the tripoint. They have been, and continueto be, parties to the

processes of boundary demarcation,resource management and dispute settlement, with respect to

the Lake. For Chad and Niger these issuesare not res interalios acta,but part of the multilateral

agenda deriving from the Convention and Statute.

For these reasons, the Court should notdetermine the boundary in Lake Chad to the extent

thatthe boundary constitutesor is determinedby the tripointin theLake. Whether the matter is

considered as onegoingto the Court'sjurisdiction (on the analogyofthe principle in the Monetary

Gold case, (1C.J. Reports 1954, p. 32) as applied by the Court, most recently, in the case

concerningEastTimor(I.C.J. Reports 1995,p. go),or astothe admissibilityof the proceedings(on

the analogy of cases such as the NorthernCameroonscase (I.C.J.Reports 1963, p. 32), in my

submission doesnot affectthe resultdictatedby legallogic andthe publicinterest. Thatcompletes

mypresentationthismoming, Mr. President. 1would ask youto givethe floor to SirArthur Watts.

The PRESIDENT: Thank you Professor Brownlie. Sir Arthur please.

Sir Arthur WATTS:

Thereis no disputeconcerningboundarydelimitationfrom thetripointin LakeChadto the
sea - 16-

Mr. President, Members ofthe Court, 1 should now liketo address Nigeria's fifth andsixth

Preliminary Objections.

These two objectionsare linked, in that they both concem consequenceswhich Cameroon

seeksto draw from a number ofalleged incidentsalong the boundary: both concemfacts - what

happened(if anything),where, when, with what result, andso on. First - and thisis the subject

of the fifth Preliminary Objection- Cameroon says that these incidents show that the whole

boundary is disputed by Nigeria: and then Cameroon says that they involve intemational

responsibility on the part of Nigeri- a matter to be dealt with in Nigeria'ssixth Preliminary

Objection. In relation to matters covered by both Preliminary Objections,of courseNigeria fully

reserves its position as regards legalor factual assertions made by Carneroon.

Nigeria's fifth Preliminary Objection is that there is no dispute conceming boundary

delimitationas such fromthe tripoint in Lake Chadto the sea. Theincidentsallegedby Cameroon

do not establish the existenceof anyuchdispute. Let me begin witha preliminarypoint. Nigeria

denies the existence of any dispute concerning "boundary delimitation as such". Nigeria

acknowledges,of course,that there isa problemabouttitle to theBakassiPeninsula,and also about

title to Darak and certainadjacentareas in LakeChad; and the finaloutcomemayaffectthe course

of the boundary in those areas. But these are not boundary disputes"as such- the disputes are

over territory, and any effects upon the boundary are secondary, and consequential. There is

therefore, Mr. President, no inconsistencybetween the formulationof Nigeria's fifth Preliminary
w
Objectionand Nigeria'sacknowledgementthatproblemsexistovertitle to Bakassiandto Darakand

certain other areas.

In this context, Mr. President, Carneroon has misreadand misrepresented Nigeria'sfifth

PreliminaryObjection. Carneroon chose'to read it as a generaldenial by Nigeriathat any dispute

existed between the two States. But that is not so: Nigeria denies the existence of a dispute

conceming the delimitationof the boundaryas such in the area in question. As to Bakassi and

Darak andadjacent areas,Nigeria acceptsthatthere isa problem, whichisbeinghandledbilaterally

'CO,paras.5.01, 5.02. and multilaterally as the case may be. This problem is not over the boundary line as such, but

rather over the underlying question of title. Consequently most of the elaborate argument which

Cameroonhas constructedin its observationsZabout the Court'sjurisprudence as to the meaningof

a "dispute" is beside the point.

Even so, two aspects of that argument, and of the Court'sjurisprudence, are relevant to

Nigeria's fifth Preliminary Objection. Oneis the Court's insistence- repeated in the Lockerbie

case as recently as last week3- on the existenceof a disputehaving to be manifest, or evaluated

objectively. As 1shallshow,the objectiverecordshows that no disputeexistsas regardsthe course

of the boundary line along its whole length: there are no opposing views of the Parties on that

matter. Second,the Court hasmade clear, and Cameroon accepts4,that an applicantcannot invent

a dispute simply by claimingthat one exists. However, as 1shall also show,that is precisely what

Cameroon is seeking to do in this case with regard to the whole course of the boundary line.

Mr. President, as the map at Tab 22 shows,the stretchof boundary between LakeChadand

Bakassi is long: it runs for some 1,000miles, or about 1,680km. In respect of that boundarythe

position canbe put very starkly. There is infact no dispute over this boundary line; there is no

dzflerencebetween the Parties as to the course of the boundary along that great distance; and

Cameroon has producedno evidencethat there is any such dispute.

Before a case may be brought to this Court there has to be a legal dispute between the

Parties. And that legal dispute must have existed at the timethe Application seekingto institute

proceedingswas filed: it is not enough fora State to create a dispute by the very act of filing its

Application and making in it some assertion with which the other State is bound to

disagree - were it otherwiseany matter could be artificially tumed into a "dispute".

Yet that is precisely what Cameroonhas sought to do in this case. Before March 1994there

had beenno suggestionfromCameroonthattherewas a disputeaboutthis longstretch ofboundary.

2C0, paras.5.03-5.09.

3CaseconcemingQuestionsof InterpretationandApplication ofthe 1971MontrealConventionarisingfrom theAerial
Incidentut Lockerbie (LibArab Jamahiriyav. UnitedStates ofAmerica),Judgment of27 February1998,para.21.

4C0, para.5.05. - 18 -

There is no record of diplomatic correspondence,or bilateraldiscussions,puttingthe delimitation

of this boundary in question. Indeedthe record is quitethe opposite,as Nigeria has shown5in its

Preliminary Objection. As recently as August 1991 the Agreed Minutes - "Agreed",

Mr. President - of a Joint Meetingof Expertson Boundary Matters recordedthat "The two sides

noted with satisfaction that the land border has been well defined and that there are no major

problemsat this levelff6.Even inAugust 1993 - just sevenmonthsbefore Cameroonstartedthese

proceedings - the Agreed Minutesof a furthermeetingof that sarnebody containedno reference

to any dispute concerning delimitation ofthe land boundary7.

Only in Cameroon's amended Application hasthis hitherto stable boundaryhas been called

into question; only then did Cameroon assert that there was a dispute about its whole length, W

notwithstanding its earlier acknowledgementsthat there were no problems. It is Cameroon, not

Nigeria, which is introducing an element of instability into the Parties'common boundary.

1repeat - the allegation that this whole boundarywas in dispute was put forward only in

Cameroon's amendmentto its originalApplication. Andthat in itself isvery telling. AEtermaking

its original Applicationabout Balcassi,in relation to whichNigeria accepts thatthere is a problem

(which is being handled bilaterally), Cameroon, overtwo months later, added that the whole

boundarywas alsoindispute. So,Mr. President, when submittingitsApplicationwhichcouldhave

consequential effects for some 24 miles of boundary, Cameroonsomehow forgot that there was

apparently also a dispute over aurther 1,000miles of boundary, and so,as an afterthought,added
I
it to the case. That alone suggestsvery stronglythat Cameroon did notat the time believe there

to have been any dispute over that additional length of boundary,and that that part of the alleged

dispute is wholly unreal.

Carneroon,it should be recalled,had been preparingfor sometime to bringthis case before

this Court. On Carneroon's sidethere was no great haste. Had there been a genuinedispute over

%PO, para5.10-5.13.

%JPO, para..11,andAnn.82.

%PO, 55. - 19-

that great lengthof boundary, it simplyis not credibleto suggestthat Cameroononly remembered

itlater. The tmth is, Mr. President, that there was and isno such dispute.

Cameroonsaysthat itwas drivento amend, andextend,its originalApplicationby itsreceipt

of the Note of 14 April 1994'fiom Nigeria asserting various rights in the area around Darak, in

Lake Chad. Whatevereffect that Note might have injustifying Cameroonin seekingto addto this

litigationthe situation in Lake Chad,there is absolutelynothingin ittojustify calling into question

the whole length of the boundary south of Lake Chad and as far down as Bakassi. No,

Mr. President: that gratuitous additionwas just "litigationby afterthought".

It is, of course, unsurprising that Cameroon has been unable to show any record of an

existing dispute about the boundary as a whole, for the very simple reason that there is no

differencebetweenthe Parties on this matter. Lest there be any doubtonthis point, Mr. President,

let me be clear. As regards the stretch ofboundary behveenBakassi in the Southand Lake Chad

in the North, Nigeria has not disputed,and does not nowdispute, the course to be taken by that

boundary. That established boundary is accepted in principle by Nigeria. And since Nigeria

accepts the line of the boundary, and if - as we assume to be the case - Cameroon does so as

well, there is and there can be no disputebetween the two Statesabout the line of the boundaryas

such.

Cameroon nowargues in its observationsthatthe disputeovertitle to Bakassiand the Darak

area does not merely affect those particular areas of the common boundary, but has a more

generalized effect9:Nigeria is saidtobe "attackingtheentirelegalstructureonwhichthe boundary

delimitation between the two countries is based"I0 and "challenges the entire boundary

delimitation"". Mr. President, Cameroon is here faced with a serious dificulty. At the time it

Iodged its Application, or even its later amendment, Cameroon had no basis for alleging the

'CM,Ann. 355.

'CO,para.5.01,5.05.

''CO,para.5.13.

"CO, pam 5.14. - 20 -

existenceof a dispute alongthe whole lengthof the boundary,other than somewholly inadequate

mention of alleged border incidents(to which 1shall retum in a moment). It is now constructing

such an argument, but based only on implicationswhich it seeks to see in what Nigeria has said

subsequently: that cannot, Mr. President, establish the existence of a dispute at the time the

Application was lodged. The fact is that Cameroon, when it started these proceedings, was

inventing a dispute, and is now seeking, by invoking these later developments, to give belated

substanceto its invention. Justlastweek,this Court repeatedthat the criticaltime for questionsof

jurisdiction and admissibility is the date when an Application is filed12.

Andthere isyetafurtherdifficultyforCameroon,inthat eventhoselaterNigerian statements

do not set out the full measureof Nigeria'sarguments: and there is no reason whyNigeria should Iri

do so at this preliminary stage. Cameroon,therefore, has to invent what it thinks the Nigerian

arguments might turn out to be. In fact, Cameroon generally seems to confusethese Preliminary

Objections with arguments which are more a matter of the merits of the case". Nigeria is not

preparedto be drawndownthat path. ThisPreliminaryObjection isthat, on thefacts knownat the

timewhenCameroon'sApplicationwasjled, and evenwhen itwas amendedtwomonths later,and

on the basis of what Cameroon said in its Application and later amendment, and, so far as

permissible, its Memorial,there was in fact and in law noexisting disputeas to the delimitationof

the boundary betweenLake Chad and Bakassi.

Letmereturn,Mr. President,to Cameroonqsoriginalargument. Thiswasthatvarious alleged Y

border incidents showed that Nigeria did not accept the present boundary line.

Before looking morecloselyatthe allegedincidentsand the implicationswhichthey are said

to have for Nigeria'sacceptanceof the boundary, it mighthelp the Court if we look again at this

1,000-milestretch of boundary. Tab 22 contains the map. Down at the bottom is Bakassi,just

discemible. And running northwards as far as Lake Chad is the long stretch of boundary about

which Cameroon at first forgot.

1Case concerninQuestionsof InterpretationandApplicationof the1971 MontrealConventionarisingj-orn theAerial
Incidentt Lockerbie (LibyArabJarnahiriyav. UnitedStates ofArnerica),Judgment of27 Februaty,paras.37, 43.

I3E.g.CO,paras.5.18-5.20,5.23. - 21 -

Lookingat the boundaryas it is delineatedon a map is one thing; looking atthe terrain over

which the boundary runs is another. The nature of the boundary terrain was described yesterday

by the Agent for Nigeria. As a reminder let me put on the screen one of the maps shown

yesterday - it is at Tab 4; andnow one ofthe photographsin the Judges' folders,Tab 20, giving

atypical illustration of the kind of terrain through which the boundary runs.

In that sort of countryside, Mr. President, one cannot have the kind of clearly demarcated

boundary which is possible in other circumstances. Even so, there has been some partial

demarcationof the boundary. Evenbeforethe 1914-1918 Warthe boundarybetweenNigeria and

the German territory of Kamerun was demarcated from Yola down to the Akwayafe River by a

seriesof boundarypillars, numbered 1to 114 - this is shownon the map at Tab 15. The northern

part of that stretch of boundary is not relevant to the present boundary between Nigeria and

Cameroon,but southwardsfrom boundary pillar 64the pillars are still relevant. Those 51 pillars,

from 64to 114,cover some 190miles ofthe boundary. Therearealso someother,relativelysmall,

boundary sectorswhich weredemarcatedinearliertimes andthe boundarypillars ofwhich are still

relevant to today's boundary. But overall, Mr. President, it seems that something a little over

200 miles of the present boundary hasbeenclearly demarcatedby the erectionof boundary pillars.

1 should here add that this reference to boundary pillars may give a somewhat misleading

impression of present-day certainty, even in the limited stretches where pillars were placed.

"Misleading"because some pillars have over time fallen into decay,while others have apparently

been removed or destroyed.

But for most of its length, that is some 800 miles, the boundary is,on the ground, aatter

of established local repute. Along its length there are clusters of local settlements,on both sides

of the boundary. For long stretches the boundary runs throughareas where there is little or no

human habitation; given the difficult terrain, this is not surprising.

Mr. President, let me illustratethe pointam making. Let me take the stretchof boundaq

between boundary pillar 64 and Mount Kombon (the map is at Tab 22). The boundary there is - 22 -

delimited by the British Order in C~uncil'~which describesthe boundarybetweenwhat were then

North and SouthCameroons. Thedescriptionisinquite broadterms. But what isimportantishow

the general description in the Order fits the local terrain. On the screen now is a photographof

some of this terrain (Tab 20); look closely and near the centre you will see a man; he stands by

a floweringbush; andthat bushmarksthe boundary- the man knowsit, the localvillagers know

it: that is the reality in this sort of landscape. Another photographlso at Tab 20): again, this

shows the terrain close to where the previous photographwas taken. A third photograph (again,

it is Tab 20). It too is in the same area as the others: you see a group of huts in the centre of the

photograph. Or perhaps it is really two groups of huts, for the boundary runs throughthe gap

between them. d

That, Mr. President, is the reality of by far the greater part of this boundary. The local

communities are well aware of where the boundary runs. At timesthere have been localized

uncertainties over the boundary,but these have been settled locally, between thecommunitieson

both sides of the boundary. Thatis the best way of resolving these local dificulties -between

the communities which, through their own personal knowledge, know where the boundq runs,

what boundary makes practical sense in the iight of local circumstances, and what associated

conditions need to be established.

Giventhe terrain,the locationof settlements,andthe generally undemarcatedcharacterofthe

boundary, it is, in fact, surprising how relatively seldom boundary transgressions have occurred.
w

Given al1the surrounding circumstances,the boundary has in reality been remarkablystable and

incident-free.

Cameroon, however, asserts that border transgressionsby Nigeria have been frequent. The

inadequacyof Carneroon'sinformationabout these incidentsis a matterwhich 1will pursue further

in the context of Nigeria'ssixthPreliminary Objection. For the moment, and withoutprejudiceto

what will be said later, let me take those alleged incidents at face value.

14Nigeria(ProtectoandCameroons)OrderinCouncil,1946,Second Schedule:CM,Ann. 181. -23 -

First, 1 would remind the Court that in its amended Application-in

paragraph 17Ci)- Cameroonofferedonlya vague assertionin supportof its claimthat the whole

boundary was in dispute - just "repeated incursions of Nigerian groups and armed forces into

Cameroonianterritory, al1along the frontier between thetwo countries"": and this assertion was

wholly unsubstantiated- no place names, no dates, no details, nothing. From Cameroon's

Application, withjust that bare assertion,no implicationwhatsoever can be drawn as to Nigeria's

attitudeto the boundary.

Some details are, it is true, given in Cameroon's Memorial. First, we may put on one side

thoserelating to Bakassi or to Darak and adjacent areas: they reflect the acknowledged problems

overtitle, which are already being handledbilaterally or multilaterally as the case may be;hose

incidents are not relevant to the alleged boundw dispute along the 1,000miles of boundary

betweenBakassi and Lake Chad. We then seem to be lefi with a mere five incidentscited in the

Memorial, in apparent amplification of the wholly vague allegation in paragraph 17 Ci)of the

amended Application (1say "seem to", and "apparent",because Carneroonhas been unclear and

unspecific on the matter). One of those five happenedafrerthe filing of Cameroon'sApplication

and later amendment,and so cannotbe invokedas evidenceof the existenceof a disputewhenthe

Application was filed; and in relation to another, concerning Kontcha,the record andthe map, at

Tab 11, shows - as the Agent for Nigeria has already noted - not that there was a boundary

dispute, but the very opposite, for it showsthat Nigeria accepted the boundary in that area and

acceptedthat Kontcha wason Cameroon'sside of itI6. And so in the Memorialwe are left, as the

map at Tab 23 shows,withjust three incidentsbetween 1992 and 1994,over a 1,000-milestretch

of boundary, and told that this shows that Nigeria disputes the whole boundary! Without even

lookingat the nature of those incidents it is apparent that the implication which Cameroonseeks

to draw fi-omthemas to the whole length of the 1,000-mile boundaryis totally baseless.

ISAmendeAdpplication,para.17 @.

'%PO,para.5.7, andAnn.79. - 25 -

so it is evident that the great majority, if not all, do not reflect any inter-Statedispute as to the

boundary at all. Thus, in one case Camerooncites as a boundary incidentthe grazing of cattle by

Nigerian herdsmen in Cameroonian territory19; this is wholly irrelevantto a claim that Nigeria

disputes the boundary. And then there is an incident in the villages of Dadi and Bajezo: the

Cameroonianreportisaboutthe intrusionbyNigerianpeasantsintosomebordervillages - nothing

whatsoever to do with Nigeria as a State challengingthe boundary. And then there is item 23 in

the Repertory. What can one possibly make of this? It consists of two papers. The first, dated

22 January 1988, is solely about the wanderings of nomadic herdsmen- it too has absolutely

nothingto dowith showingthatNigeria disputestheboundary. Thesecondpaper, 7 years later(10

February 1995), is not only nearly a year afrerthe date of Cameroon'sApplication, but is both

incomplete, the second page is missing, and relatesto somethingtotally different.

Mr.President, so far as al1this is relevant at all, it is very localized stuff, often the result of

a lackof effectivedemarcation. Whatever incidentsorproblemsmay arisealongthe boundw, that

is a very differentatter fromthere being a problemoverthe boundaryitself. In no way can petty

localized incidents be seen as raising any issue of principle conceming the alignment of the

boundary as a whole. Even taking a generousviewof the extentof the boundw affected bythese

local incidents(say, 1/of a mile of boundaryfor each "incident")they concem, even if al1of them

were relevant (which they are not), perhaps some10or a dozenmiles of its length. That cannot

be taken as representing doubt or dispute as to the whole length of that 1,000-mileboundary.

Nigeria would also pointout,that local bordertrespasseshave beenas mucha matterof,say,

the Carnerooniangendarmerie crossing into Nigeria as anythinghappening in the other direction.

Ofcourse,Nigeria objects to suchtrespassesont0 itsterritory; butNigeriahas not soughtto inflate

the significance of these minor local events by suggestingthat Carneroon has thereby called the

whole boundary into question.

''CO,Ann. 1, item No. 14.

"CO, Ann. 1, item No. 33. -26 -

On the contrary,Nigeriahas consistentlytaken the positionthat localtransgressions, if they

can be established, are best dealt with locallfl through cross-border CO-operations ,o that local

conditions can be assessed and taken into account. It must be a matter of considerable doubt

whetherthis Court is an appropriatebody to engageupon such localizedmatters by way ofjudicial

enquiry, particularlywhenthe Parties continue- as Nigeria at leastdoes - to upholdthe course

of the boundary lineas it has for many years been understood to run.

There may, of course be weaknesses in the demarcation of the boundary, but Cameroon

agreesZZ withNigeria that demarcation is not a task for the Court. And any deficiency in thejoint

machineryfor supe~ising the boundaryis similarlynot a gap which itwouldbe appropriateforthe

Court to fil]. Nor indeedare these matters which are Nigeria's responsibility alone;they are as .(iI

muchCameroon'sresponsibilityasNigeria's. Cameroondoesnot claimin its amendedApplication

or in its Memorial that it has ever taken the initiative to restore or improvethe state of boundary

demarcation; and indeed,Nigeria's recordsshow,rather, thatthe initiativehas cornefromNigeria,

as in 1991when it was Nigeria whichproposedthat ajoint team of expertssurveyand demarcate

the land bounde. Cameroon has thus acquiesced in the present state of affairs regarding the

demarcation of this boundary, and cannot escape its share of the responsibiliîy for any of the

consequences.

The boundary line as presently and for many years past established on the ground is not

questionedbyeitherParty. DespiteCameroon'sassertion inits "afterthought"amendmentthatthere 'iir

is a dispute about the whole length of the boundary from LakeChadto the sea, a dispute does not

exist justbecause one Party says it does. There was, at the time of the lodging of Carneroon's

amendment,no suggestionthat there was a disputeaboutthewhole lengthof the boundary. In fact,

the Parties agreed in 1991that there were no problems, and as late as 1993, when meeting to

discuss boundary matters,no mention was madeof any dispute. At the critical time,namelywhen

"See NPO, para.5.6.

"CO, para.5.12.

=NPO, 54. -27 -

theApplicationwasfiled, orut latestwhenthe amendmentwaslodged,there simplywasnodispute

between the Parties on this matter as is still the case.

For these reasons, Mr. President and Members ofthe Court, Nigeria invites the Court to

uphold Nigeria's fifth Preliminary Objection, and declare that there is no dispute concerningthe

boundary as such from the tripoint in Lake Chad to the sea, and that that part of Cameroon's

Application, as amended, should be dismissed.

There is no basis for a judicial determinationthat Nigeria bears internationalresponsibility

for alleged frontier incursions

Mr. President, letme now turntoNigeria'ssixthPreliminaryObjection. It relatesto another

aspectof the variousincidentswhich Cameroonallegesoccurred. CamerooncontendsthatNigeria

bears internationalresponsibilityforthem. Nigeria'ssixthPreliminaryObjection isthat Cameroon

has not provided adequateor reliable information whichwould enableNigeria to respondto those

assertions of internationalresponsibility,or enable the Court to make a fair and effectivejudicial

determination of the matter.

As a preliminary point, let me revertto the question of the existence, or otherwise, of a

dispute between the Parties. Cameroonargues that Nigeria bears international responsibility for

certain incidents, and then says that Nigeria denies any such responsibility; accordingly, says

Cameroon, that shows that there is an internationaldispute between the two States24.

But that misunderstands Nigeria's position.Nigeria is at this stage simply sayingthat it has

not beentold enough aboutthe alleged incidentsto be able to decide what its response shouldbe.

More importantly,the Court too has been left in ignoranceof the facts: the Court is left without

anyjudicial or manageablestandardsto applyin makinga fair and effectivejudicial determination

of the allegations of international responsibilityraised by Cameroon. Furtherjudicial pursuit of

them would be futile.

Allegationsthat a State has incurred internationalresponsibility should not be made lightly.

Nigeria certainlydoesnottreat them lightly- but, Mr. President,Nigeria does not knowwhatthe

24C0,paras.5.29,5.30. - 28 -

allegationsreally are. Thatis the problem. A personaccused of wrongdoing is entitledto know

insufficientdetailwhatthe accusationagainsthimis. Cameroonhas signallyfailedto providesuch

information; and thereby, Cameroonhas demonstratedthat, for its part, that it is willing to treat

lightlythe serious matter of making allegationsof internationallywrongful conducton the part of

a neighbouring State.

Nigeria andthe Courtarethusfacedwith awhollyinadequatebasisonwhichto dealproperly

with Cameroon's allegations aboutborder incidents. Mr.President, let me pose two questions:

what does a State need to know before it can effectively respond to an allegation that it is

intemationallyresponsiblefor someviolation of anotherState's territory? What does a court need

to know if it is effectively to exercise itsjudicial functions in relation to such an allegation?

In thelight of an extensive internationaljurisprudence, Nigeria submits that the respondent

State,andthe Court, need, as a minimum,to knowfour things - the essential facts about what is

allegedto have occurred, when it is supposed tohave taken place, preciselywhere it is supposed

to havetaken place (especially in relation to any relevant boundary), and why the Respondent is

thought to bear international responsibility for the incident.

Cameroonsimplydoesnot meetthoseminimumrequirements. Letmespelloutforthe Court

what Cameroon's allegations amount to - first, in its original Application.

(i) This makesa generalizedassertion,in relationto Bakassi andinthe 3-monthperiod from

the end of 1993 to the date of the Application, of "an aggression by the Federal Republic of u

Nigeria, whose troops are occupying several Cameroonian localities in the Bakassi Peninsula"".

No details of any kind are given.

(ii) Second, the Application goes on to sa?, again in relation to Bakassi but this time in

relation toan unspecified period but apparently in the 1960s and 1970s,that "Nigeria ... thus

occasioned a large number of incidents"; and that after Nigeria's denial of the validity of the

ZsPara2..

26Paras8and 9. -29 -

MarouaDeclaration "frontierincidentscontinuedto occur in the disputedarea". Again, no details

of any kind are given.

(iii)Then2',third, comes an incident for which at least has some, although sparse, details:

"on 21 December 1993, Nigeria committed an aggression against Cameroon by invading the

Cameroonian localitiesof Jabane and DiamondIsland in the BakassiPeninsula". So wehave got

a date this time, andtwo locations, but little more.

(iv) Then, fourth, Cameroon refers to Nigeria's conductin "introducing armed troops on a

massive scale into the disputed Bakassi Peninsula and conducting military activities there",

apparently in the periodsince 199228.Once again, this is wholly vague and generalized.

It is solely on the basis of "the actions described in theove account of the facts" that

Cameroon alleges that Nigeria has incurred international responsibility, summarizing those

allegations in ways which add nothing of substanceor detail to what had been said bef~re*~.

And that, Mr. President, is al1the information Nigeria, and theCourt, is provided with by

Cameroon'sApplication. It is demonstrably inadequate. And quite apart from its inadequacy,1

would note that, since Nigeria has no doubt as to its title to Bakassi, the very basis for these

Cameroonian complaintsabout Nigerian activities in Bakassi is, ofcourse, without substance.

Cameroon, by its Additional Application presentedsome ten weeks later, then sought to

extendthe scope of the dispute so as to cover the boundary from Lake Chad to the sea. And in

relation to that long stretch, we are given the following informationabout alleged incidents.

(i) First, there was, apparently in some period before 1994(but we are not told when),

"initially a massive introduction of Nigerian nationals intothe disputed area, followed by an

introductionof Nigerian securityforces"30.The "disputedarea" seemstorefer to locationsin Lake

Chad, but beyond that details are once again wholly lacking.

*'Par a.

28Par a..

'paras. 118, 1920 (c)and(4.

30Par 2.. - 30 -

(ii) Second,this general statement is supplementedby further statementswhich refer to the

incursioninto Cameroonianterritory inLake Chadof "certainNigerian groups,mostlyfi~hermen"~',

followedlaterby "theNigerian security forcesM3*C . ameroon identifiesDarak as a placewhere this

sort of thing is said to have happened, and says that there are "some 20 or more places in

Cameroon"which "theNigerians areo~cupying"~~A . gain,Mr. President,Cameroon,despite some

superficialappearanceofbeing specific,is a longway from beingspecificenough forthe purposes

ofthe present litigation. Cameroonfails to makeit clear whetherthe occupationsto which it refers

are by Nigerian forces orNigerian civilians - severalreferencesto "Nigerian groups", "Nigerian

nationals" and "the Nigerians" suggest the latter. Even the places in question are unclear:

Cameroonglibly refers to "20or more" - Mr. President,doesnot Cameroonknowprecisely how V

manyplaces in what it saysis itsterritorywereaffected? Andeventhen,Camerooncanonly name

nine places, not 20.

(iii) Third, Cameroon goes on to mention "more particularly" four more places where the

presence of "Nigerian nationals" has been obse~ed~~. So, again, this appears to involve only

civilians; and in anyeventthis statement is totally vague and imprecise,as is the relationship of

theeventsat these locationsto thosereferredto earlier: moreover,three ofthem seemto have been

regardedas amistakebyCameroonandweredroppedfrom Carneroon'sMemorialw , hilethe fourth,

whichwas mentioned inthe Memorial,was the curious referenceto Kontcha, whichthe Agent for

Nigeria referredto yesterday.

(iv) Finally, Cameroonrefers to "The prolonged presence,in the Cameroonian partof Lake

Chad, of the security forces of the Federal Republic of Nigeria", and to "the illegal occupation of

those parts of Cameroon'sterritory - including the part located in Lake Chad - by Nigerian

3'Para..

32Para4.

3Para ..

"Para 6. - 31 -

nationals and military per~onnel"~~.In additionto again confusing situations involving civilians

with those said to involvemilitary personnel,these references are wholly unspecific.

Apart from the third allegation, which as 1pointed out involvedonly civilians, al1of this

relates onlyto the Darak area, where Nigeria has sovereignty(and which is in any event withinthe

mandate of the Lake Chad Basin Commission). Therefore, Mr. President,as already noted in

relationto theBakassi incidents,those alleged Darak incidentscan scarcelybe treated as violations

by Nigeria of Cameroon'sterritory.

But leavingthat aside,it is solelyon the basis of "theactionsdescribedinthe above account

ofthe facts"that Cameroonbases itsassertion ofNigeria1sinternationalresponsibilityfor itsactivity

in the Lake Chad area36:the concluding paragraphs3'summarize, withoutaddingto, those earlier

allegations. But then, Mr. President, we do get an addition. In a breathtaking sweep of the

imagination, Cameroon adds3'a reference to there having been "repeated incursions of Nigerian

groups and armed forces into Cameroonian territory, al1 along the fiontier between the two

countries, with consequent grave and repeated incidents". No evidence is given: no dates, no

details, not even a single specific allegation ofNigerian Stateactivity is madeto supportthis wild

and fa-reaching assertion.

If we pausethere, Mr. President, it reallyis impossibleto respondadequatelyto suchvague,

generalized, confused, unreliable and incomplete allegations. Succinctnessis al1very well, but

Article 38, paragraph 2, of the Rules of Court also requires that the nature of the claim must be

"specified precisely". There must be a minimum level of particularity about allegations made

against a respondent State if justice is to be done, and Nigeria submits that Cameroon, in its

Application and amendedApplication, has totally failed to meet that minimum.

3SPara7.

36Para.1.

37Paras1.516, 17 (c) an(d).

38Para17 Ci). - 32 -

Although the present proceedingshaveto be based on the terms of Cameroon's Application,

Carneroon has some latitudein expanding,in its Memorial,upon its case as already presented in

its Application. But the Memorial cannot create a new case. Yet Cameroon's Application and

Additional Applicationmadeno claimastoNigeria'sinternational responsibility inrelationto acts

occurringoutsideBakassiandLakeChad. The original Applicationdealt onlywith Bakassi; and

the request to the Court set out in paragraph 17 of the Additional Application, in referring to

Nigeria's responsibilityfor various alleged internationally unlawful act~~~r,eferred back only to

certainacts which involved Lake Chad,andin particular didnot include a referencefonvard to the

paragraphmentioningactsallegedtohaveoccurred "al1alongthe frontier",that isalongthe frontier

betweenLake Chad and Bakassi40.Bringingthese wider questionsof State responsibilityinto the v

case is an inadmissible attempt to enlarge, in a Memorial, the scope of a case as set out in the

Application.

Moreover,Mr. President,eveninrelationtothosequestionsof Stateresponsibilitywhichmay

properlybe expandedupon in the Memorial,Cameroon'sMemorial is littlebetter than the original

Application. It is still replete with impreciseand unsubstantiatedassertions of unlawful conduct

by Nigeria.

Nigeria hasalreadyreferredin somedetailtothedeficienciesof Cameroon'sMemorialinthis

respect4'. In Nigeria'sPreliminary Objections 12alleged incidentswere examined- two said to

be in Bakassi4*,five at sea in the waters off ~akassi~~,and five along the stretch of boundary
e

betweenBakassi and LakeChad44.The inadequaciesof these incidentsincludedCameroon'squite

ludicrous citation as part of its own case of an incident which had involved the death of five

39Seesubparas.17 (e)and(e3

40Subparas1.7 (e) and (e3 referredback only to subparas.17 (a)-(d), and did not refer to the next following
subparagraph, 17 .

"NPO,paras.6.10-6.13.

4%F'0,para. 6.1O.

43NP0,para.6.11.

'"NPO,para.6.12.Nigerians and for which Cameroonhad apologized and paid compensation4';the lack of facts in

support of the five alleged incidents at sea, which were not evenfollowed by diplomatic protests

by Camer~on~~;and the fact that of the five incidents cited to show the boundary betweenLake

Chad and Bakassi to be indispute,one of them occurredafrerthe filing of the Application and the

later amendment to it, and the other four - quite apart fiom their inadmissibility as regards

internationalresponsibilityat al1- were referredto inwholly inadequatedetail to serveas a basis

for a decision as to internationalresponsibility4'.

Mr. President, Cameroon has repeatedly ~aid~t~ hat there are so many border incidents for

which Nigeria is to blame that Cameroon cannot possibly give an exhaustive list of them.

Mr. President,this is acourt of law,not apoliticalrally. Allegationsof internationalresponsibility

cannotbe dealtwith - eitherbyNigeriaorbythe Court - onthesweepingand insubstantialbasis

advanced by Cameroon. If Cameroon is to invoke the international responsibility of Nigeria,

Cameroon takes upon itself also the obligation to identiQ the circumstances with the necessary

precision. If there really are so many incidentsto choose fiom, it is striking that Cameroon has

mentioned so few in its Application and Memorial, and has only given the most inadequate

information about even those few.

Cameroon'sway of proceeding is this. We get some vagueallegations in the Application,

some more in the subsequentamendment of it,a few more in the Memorial, andthen a few more

in the observations,where we are promisedthat "More examples can be given if necessary when

the Court proceeds to the meritsM4'.Mr. President, 1 have previously referred to Cameroon's

amendedApplicationas "litigationbyafterthought"; inthispresentcontextCameroonisconducting

4?W0, para.6.10.

%PO, para.6.1 1.

47NP0,para.6.12.

48E.g.CO,para.6.04.

49C0,para.6.04. -34 -

"litigationby accretion". That cannot be a permissibleway in which to pursue seriousallegations

of international responsibility.

So much, then, for this aspect of Cameroon's case as deployed in its Application (as

amended) and its Memorial. The case there set out is manifestly inadequateas a basis for fùrther

judicial considerationof questionsof State responsibility. Nothing said in Cameroon's subsequent

observations can make good that inadequacy.

Here it is necessary to develop a point which 1 touched on earlier in relation to the fifth

Preliminary Objection. Central importance has to be given to the terrns ofthe ~pplication~'; and

whileNigeria acknowledgesthat a Statehas somelatitude in expandinglaterupon what it hassaid

in its Application,in particularin its Memorial, it isin essential respectsrestrictedto the case it has W

presented in its Application". Nothing inthis Court'sdecision inPhosphates inMorocco, citedby

Cameroon5*c ,onflictswiththis approach: there theCourtwas concernedwith identifjing thenature

of a State'sclaim not in relation to any possible answer to be given to that claim as a matter of

substance, but solely in relation to the question whether it arose before the date on which the

relevant OptionalClauseDeclarationsof France andItaly took effect. Similarly,the citationsfiom

the work ofProfessorAbi-Saabare concernedwithcorrecting formalimperfectionsor deficiencies

in an Application. Moreto the point isthe Court's decision last week in the Lockerbie case,where

the Court emphasizedagainthe importance,for purposesofjurisdiction andadmissibilip, of the

date on which an Application was filed.

In accordancewithArticle 79ofthe RulesofCourt, it isafterthe submission ofthe applicant

State's Memorialthat the respondent State has to decide whether the circumstances cal1for the

making of Preliminary Objections. It can only do so, accordingly, on the basis of the record as it

"NPO, para 6.9.

"CO,para.6.08.

S3CasceoncemingQuestionsof InterpretationandApplicationofthe 1971MontrealConventionarisingfrom theAerial
Incidentut Lockerbie(Libyan Arab Jarnahiriyuv. United States of AmericJudgment of 27 Februav 1998,
paras.37, 43. - 35 -

stands at that time: that is, the Application and the Applicant'sMemorial. The Applicant can,of

course, comment in its observations on the arguments put forward in the respondent State's

Preliminary Objections. But a distinction has to be drawn between properly commenting on

Objections,and, on the other hand, substantially adding to the case which has to be answeredby

the respondent State. Just as the Memorial cannot enlargethe scopeof the dispute as specified in

the Application (although it can amplifi the case there set out), evenmore so is it improper fora

State'sobservationsto seek to enlarge the substantive scope ofthe dispute yet further by bringing

forward new circumstances not apparent from the Application and Memorial. This, however, is

what Cameroon,by introducing in its observationsyet furtheralleged incidents for which Nigeria

is said to be responsible,has done: Cameroon has sought substantiallyto add to the case set out

in its Applicationas amended, andas elaboratedin its Memorial. Thoseadditions shouldtherefore

be disregarded.

When institutingthese proceedings, Cameroon knew what was required of it - primarily,

in accordancewith the Rules, to "specifi the precise nature of the claim, together with a succinct

statementof the factsnS4.1 draw attentionto the words "specify"and "precise": the very opposite,

Mr. President, of vaguenessand imprecision. And "succinct",equally, does not permit generality

and lack of detail: it simply connotes brevity and clarity. Cameroon'sApplication should have

contained an adequately informative statement: it did not - it wasjust vague, generalizedand

incomplete.

One must also recall that at those initial stages in the proceedings the Applicant is in full

control of its own tirnetable- itdecides whether it thinks it is in possession of sufficient factsto

supporta case to put before the Court, itdecideswhether it needsmore time to gather betterfacts,

itdecides on the timing of the submission of the Application, presumably when it is fully ready,

and if that is not enough,itthen has the furthertime in whichto flesh out in its Memorial the case

advanced in the Application: Cameroon is indeedthe master of the formulation of its own case.

"Rulesof Court,Art.38.2. - 36 -

The respondent State'sposition is different: it must have a firm basis on whichto base the

decisions which,under the Rules, it has to take by a particular time, and it is onlyright that that

firm base shouldbe the stateof the record as it standsat that time. And this. President,

that additionalevidentialterialput beforethe Courtin Cameroon'sobservationsshouldnotaffect

the Court'sdecision on Nigeria'ssixth Preliminay Objection.

Nevertheless, without prejudice to that argument, some comment on therial contained

in Cameroon'sobservationsmay help the Courtto seeit in a fairperspective. Cameroon,as1noted

awhileago,has listedthismaterialinthe "RepertoryofIncidents"submittedwithitobservation^^^.

The first point to make about it is that the relationship between incidents referred to in that
Repertory and those previously referred to, however vaguely, in Cameroon'sApplications and V

Memorial is far from clear; some incidents seemclearly to be repetitions, othersare clearly new,

yet others could be one or could be the other; yet other incidents which were referredto in the

Applicationor Memorialarenownot includedintheRepertory - presumablytheyhavenow been

droppedaltogether. In short,is the Repertorycomplete,or not?If onlyroonhadgiven proper

details we might be better able to know.

However,Mr. President,despite the confusion, let us lookat the contentsofthis document.

One wouldperhaps thinkthat, in an allegedly supportingevidentialdocument submittedby a pariy

some two years after it had filed its application,that party would produce somethingworthwhile.

And ifonethoughtthat Mr. President,onewouldbe seriouslydisappointed. Virtuallyal1the items -

in the Repertory are seriouslydeficient in the information they give. In relation toNigeria's fifth

Preliminary Objection1havealready noted some irrelevantentriesin it: let me nowlook at a few
more.

Take,for exarnple,item 24: it is a brief reporthalf a page long,abouta familyland dispute,

which was al1sortedout atthe local level. Or take item 13: itis aboutthreeNigerianhunters who

entered a Cameroonian village and fired some shots what on earth has that to do with any

possibleNigerianStateresponsibility? Thesamecanbe saidof item 18,aboutsomeNigeriancattle -37 -

thieves. Andthen thereis item 10: that involvedtwo CamerooniangendarmespursuingaNigerian

cyclist and straying across the jkontier into Nigeria! And this, Mr. President, is evidence of

Nigerian intemationalresponsibility? Cameroon,Mr. President,cannotbe serious. The fact isthat

this volume,apart frombeing submittedtoo late,falls far shortof acceptablestandardsof credibiliîy

or probativevalue.

Finally,1need to revert to a point which1put beforethe Court a littlewhile ago. And this

is the distinction to be made between two different situations. On the one hand, there may be

incursions by a State'sauthorities into another State across a boundary which is in principle

accepted and which is clear on the ground.

Onthe other hand,acts bya State'sauthoritiesinterritorywhich is underitsown sovereignty

are lawhl. And Nigeria obviously bears no internationalresponsibilityfor violating Cameroon's

territorial sovereignty in respect of its presence in areas which are in law part of Nigeria. There

may, as in Bakassi, be a problem about sovereignty; but Cameroon having put in issue the

boundaryin certain areas, it isthen inappropriatefor Cameroonat the sametime to raise questions

of internationalresponsibilitysaidto arise from incursionsacross a boundary which,ex hypothesi,

it regardsas in issue. If boundaryand territorialdisputes areto be tumed simultaneouslyinto State

responsibilitycases, the disputeswill be aggravated,not resolved. Both sidesmay feeljustified in

prematurely advancing responsibility claims against the other, and the work of demarcation

commissions could tum into exercises in accountancy, assessing the consequences of prior

transgressions across the boundary which is only now being settled by them.

There is another aspect to this which 1might ventureto draw to the Court'sattention. If

pleadings in boundary dispute cases are to be loaded also with ancillary issues of State

responsibility, the Court's handlingof such cases would clearly be greatly complicated - and

probablyunnecessarilyso, sincethe Court'sfindingsontheboundary questionwill either determine

that someparticular alleged "incursionsacross the boundary"were in truth not an incursion at all,

or it willead the partiesto negotiatea settlementof the matterin the lightof the Court'sdecision

on the boundary: indeed, Mr. President, the Court might at times find it appropriateto sever the

State responsibilityissues raisedby Cameroon fromthe principalboundary issuebefore the Court, - 38 -

andto invite thePartiesto negotiatea settlementof theresponsibilityissuesinthe lightofwhatever

decisionthe Court might reachon issuesthat affect theboundq. Considerationsof effective "case

management", if 1may use such a term, suggest that the whole range of pleadings and evidence

aboutevery alleged bordertransgressionshould not haveto be deployedbythe Parties,and studied

bythe Court, until itis clearto what extent, if at all, there is still any real legaldisputeabout some

particular alleged transgression.

Overall Nigeria is in these proceedings faced with wholly inadequate and unreliable

informationabout allegedincidentsforwhichNigeria is saidto be internationallyresponsible. The

lack of particularity similarly, in Nigeria's submission, precludes theCourt fromrying out an

effective judicial examination of the issues of State responsibility and reparation raised by

Cameroon, and from making a judicial determination of those issues.

For these reasons, Mr.President, Nigeria submits that the Court should dismiss as

inadmissiblethe issues of Stateresponsibilityand reparationraised by Cameroonin the context of

the various incidents allegedto have taken place.

Mr. President, Members ofthe Court, that concludesmy statement in respect of Nigeria's

sixth Preliminary Objection. May 1 now invite you, at a time of your choosing, to cal1upon

Professor James Crawford, SC, to address the Court on Nigeria's seventhand eighth Preliminary

Objections.

Thank you, Mr. President.

The PRESIDENT: Thank you, Sir Arthur. The Court will now suspendfor 15minutes.

TheCourtadjoumed@om 11.15to 11.35a.m.

The PRESIDENT: Please be seated. Professor Crawford.

Mr. CRAWFORD:

TheJurisdiction of the Court in Relation to the MaritimeBoundary

Thank you, Sir. Mr. President, Members of the Court. -39 -

1. 1am chargedwith presenting Nigeria'sseventhand eighthPreliminary Objections,which

relatespecificallyto the maritime boundary. Theseobjectionsmay be characterizedas goingeither

to your jurisdiction over, or to the admissibility of, Cameroon's unilateralapplication for the

delimitation of themaritime zonesof the Parties. Howeverthey are characterized,they are clearly

preliminary issues. If either of these distinct objections is upheld, the consequence will be that

Carneroon'sclaim is to that extent excluded.

2. It shouldbe noted that these PreliminaryObjections are independentof those made with

respect to the case as a whole, and the land boundary,objections which have been dealt with by

my colleagues. The considerationsthat applyto the issue of the Court'sjurisdiction over the land

boundary are different fiom those that apply to the maritime boundary. It is my function now to

outline the latter.

A. The GeographicalSetting

3. (Tab 1)Before doing so, let me first illustrate the rather dramatic geographical setting

offshorethe twocountries. TheGulfof Guineaisa largeconcavegulf, about 590,000squaremiles

in area. It is theninth largestsea in the world, largerthan the Barents Sea,the Sea of Japan or the

North Sea. (Tab 9) But withinthe largerGulfof Guineathere isa smallerareajust wherethe coast

of Afiica changesfrom a predominantlynorth-southto a more westerlydirection,withinthe Bight

of Bonny, also known as the Bight of Biafra. Withinthis smaller area you can see the four gulf

Statesthat figurefor the purposesof the present case, Nigeria, Cameroon,Equatorial Guinea and

Sao Tome and Principe. Lookingat this area, which is the immediate area offshore the Bakassi

Peninsula, the position of EquatorialGuinea is obviously crucial. The islandof Bioko, formerly

known as Fernando Poo, is over 2,000 square kilometres in area, and has a population of about

90,000people, which is about20 per cent of thetotal populationof Equatorial Guinea. It contains

the national capital, Malabo, as well as the country's highest mountain. It is no mere offshore

dependency ofthe mainland; one mightas well Saythat Rio Muni, which is the mainlandportion

of Equatorial Guinea,is a dependencyof Bioko. Biokois 40 nautical miles fromthe nearest point -40 -

onthe Bakassi Peninsula. It is 19.28nauticalmiles fromCameroon,in otherwords, lessthan twice

the distance of a 12-mileterritorial sea.

4. Now the significanceof this situationto the maritime delimitationof the inner part ofthe

Gulf is unmistakeable. From the Cameroon coast one can hardly progress beyond the 12-mile

territorial sea before the influence of Equatorial Guinea, of Bioko begins to be felt. Onecan

certainly not delimit the maritime zones of Nigeria and Cameroon in the Bight of Biafra, as

Cameroon would havethis Court do, withoutfirst determiningnotjust the tripoint, but the extent

of the equitable interests, of the three States.

5. This elemental fact, this fact of the central position of Equatorial Guinea, can equally be

seenfiom the maritime boundary claimedin Carneroon'sMemorial,which you cannowsee on the

screen. (Tab 24) 1need to notethree things about Cameroon'sclaim line. The first thing is that

itwas a first! Because the very first time Nigeria saw that line, or indeed any Cameroon

continental shelf or EEZ claim line, was when it received the Cameroon Memorial. The second

thing is that, evidently enough, Cameroon'sclaim-line is depicted in a rather approximatefashion,

and on a rather approximate map. Our cartographerhas transposed the line, as best as he could,

on to a clearer and less approximate map, which you can now see on the screen. (Tab 25) And

the third thing is that Cameroon'sclaim-line,beyond PointG of the Maroua Declaration,is drawn

well to the west of any equidistance line that might conceivably be drawn simply between the

territories of Nigeria and Cameroon. It would not matter which basepoint on the coastwas used, w

whether it is to the east or Westof the Bakassi Peninsula. Whichever basepoint were to be used,

the Cameroonclaim-lineisthen placedfartotheWestofa simpleequidistancelinebetweenNigeria

and Cameroon. This is obvious. (Tab 26) It can be seenfrom lookingatthe Cameroonclaim-line

on a map from which Bioko has been temporarily removed. The Cameroon claim-lineso drawn

is obviouslyuntenable on a bilateral basis. The only reason for drawing the line the way it is, is

because of Equatorial Guinea. Despite its protestations that this is a merely bilateral boundary,

Cameroonfinds it necessaryto make a claim in relationto areas which are much closerto Nigeria

and to Equatorial Guinea than they are to Cameroon. And the reason is, obviously,Equatorial

Guinea. Unlike Cameroon, this Court cannot treat Equatorial Guinea as if it did not exist.B. The DiplornaticBackground

6. Mr. President, Members of the Court, so much for the geographical background. 1turn

to the diplomatic background.

7. Nowas Cameroondemonstratesin itspleadings,therewas considerablediscussionbetween

the Partiesasto their inshoreboundary,inthe period between1971and 1975. Thatdiscussiontook

place on the basis that al1the areas under discussion were classified by both Parties as territorial

sea. Both Parties then claimed a territorial sea of 18 miles. That was increased by Cameroonto

50 miles in 1974. Nigeria for a time also extended its territorial sea, to 30 miles. (Tab 27) The

Court can observe on the map which is on the screen at present that the radius of those 18-mile

territorial sea claimsoes clearly beyondPoint G; afortiori a 30- or 50-mileradius would do so.

This is concededby Cameroon,which saysin its Memorialthat the MarouaDeclaration "concerne

essentiellement les eaux territoriales" (CM, para. 5.66). But beyond Point G, there was and has

been no discussion, no negotiation whatever.

8. Ofcourse thePartieswere awarethat suchdiscussionswould haveto be held. Theywere

occasionallyreferred to in communiquésorin otherstatements,as somethingwhich shouldhappen

sooner or later. But suchreferencesare no substitutefor actualdiscussions,for actual negotiation,

exchange of positions, exchange of information about positions, let alone of attempts to reach

agreement. They hardly rose to the level of talks about talks.

9. And the reason for this is clear. No sooner do the Parties contemplate the need for

delimitation of areas beyond their territorial sea than they have to confiont:

fîrst, their disagreementover the status of the Maroua Declaration,

secondly, theirdispute over the Bakassi Peninsula, and

thirdly, whereverthe boundary lies between themalongthe coast, the obvious impact of

Equatorial Guinea,especiallyfor Cameroon, andthe evidentneed to involvethat State in

any discussions.

10. TheParties' awarenessofthe legaldistinctionbetweenterritorial seaandcontinentalshelf

delimitation,and of the need to involve Equatorial Guinea, goes back a long way. For example,

attheNigeria-CameroonJointBoundaryCommissionmeetingheldinJune 1971,the partiesagreed: "thatsincethe ContinentalShelvesofNigeria, CameroonandEquatorialGuineawould
appear to have a common areathe attention of the Heads of State of Cameroonand

of Nigeria should be drawn tothis fact so that appropriate action could be taken".
(Ann. NPO, 21, p. 241.)

11. Diffïculties then arose with respect to the inshore boundary,to which al1the attention

tumed. Thusthere was no referenceto the continentalshelf boundaryin thejoint declarationsand

communiquésin the period to 1975. The Cameroon Memorial refers only to meetingsheld in the

years 1971to 1975, in other words, to the period leading upto the Maroua Declaration whichon

Cameroon'sownadmissionessentiallyconcernedonlyterritorialwaters. Butitis instructivebriefly

to review the bilateral exchanges,ch as they have been, in more recent years. (Tab 28)

The matter was raised by Nigeria at the inaugural session of the bilateral Joint
w
Commission in August 1987,when Nigeria "proposed co-operationby the two countries

inhaving a properly delineated boundary",andCameroon gavea non-committalresponse

(AM. NP0 51; NPO, Anns., Vol. II, p. 388).

At the Joint Expert Meeting in Yaoundéin August 1991,Cameroon'sfocus was on the

validityof the MarouaDeclaration; after an exchangeof viewsonthe landboundary,the

Nigerian side proposed the establishment of a Gulf of Guinea Commission, witha view

to"lavalorisation,l'harmonisationet la mise en commundes resourcesde la zonepar

les dzflerentspays en vuede minimiserles risquesde conjlits". The Cameroonsidewas

receptive, suggesting that Nigeria should raise the matter with the other govemments

w
concerned with a view to holding the first meeting in Yaoundéin December 1991(Ann.

NP0 52; NPO, Anns.,Vol. II, pp. 410-411).Againtherewasnotthe slightestdiscussion

at the bilateral level of the substance of any maritime boundary beyondPoint G.

At a ministerial meeting held at the sametime, that is to Say,in August 1991,Cameroon

forrnally agreed to the establishment of the Gulf of Guinea Commission and agreedto

hold an initial expert meeting to draft its basic instrument (Ann. NP0 53;

NPO, Anns., Vol. II, p. 418).

Then, at a Joint Expert Meeting held in Abuja in December 1991,again the focus was

almostentirely on the validity ofthe MarouaDeclaration. TheNigeriandeassertedthat -43 -

"littleor no work had beenjointly undertakenby both countriesin that [thatis to Say,the

maritime]sector",andthis statementwas contradictedby Cameroon onlyby reference to

the negotiations leadingto the Maroua Declaration(Ann. NP0 54; NPO, Anns., Vol.II,

pp. 428-429). Inotherwords,the Cameroonsidedid not denythat "littleor nowork"had

been done on the maritime sector beyond PointG. It did not attempt to deny that fact.

AttheJointMeetingonBoundaryMattersheldinYaoundéinAugust 1993,Nigeriaagain

raised the issue of the Gulf of Guinea Commission. Cameroonreaffirmed its agreement

in principle to the proposal, andemphasized "the need to approachthe other prospective

member States, particularly Equatorial Guinea and Gabon". Their attitude had hitherto

been reserved (Ann. NP0 85, NPO, Anns., Vol.III, p. 842). A fürther quotation from

Cameroon: "It further added that the two delegations should arrange to meet with

Equatorial Guinea with a view to determining the tripoint between the three countries"

(ibid.). The Minutes of the Meeting record that "The two Parties then agreed that a

tripartite meeting should be convened to examine the issue of the determination of the

tripoint" (Ann. NP0 55, NPO, Anns., Vol. II, p. 458, and see the Joint Communiqué,

ibid, p. 465).

At the Second Session of the Joint Commission of Co-operation in Abuja in

November 1993, Cameroon statedthat it was ready to host the proposedmeeting of the

Gulf of Guinea Commission, involving Equatorial Guinea, in order to determine the

tripoint. That meetingwas to be convened by Cameroon beforethe end of March 1994.

(See NPO, Ex 4.)

12. This was the situation when Cameroon lodged its first Application to this Court, on

28 March 1994. That Applicationconcerned not only Bakassi but "themaritime boundary up to

the limit of themaritime zoneswhich internationallaw places undertheirrespectivejurisdictions".

1 repeat, the position at the time of the first Application was as follows. First, no substantive

discussions had been held between the Parties as to the delimitation of any maritime boundary

beyond Point G. Second, ithad been agreedthat suchdiscussionsshould beheld. Third,an initial

requirement was to involve Equatorial Guinea, either in direct trilateral talks or through the Gulf - 44-
of Guinea Commission. Four, Carneroon had agreed to convene an initial meeting of that

Commissionbythe endof March 1994,somethingit hasnever done,then orsince. And fifth,since

1975, every discussion on a bilateral level of the maritime boundary has been dominated by the

controversy over the Maroua Declaration(see e.g. NPO, 82 at p. 820). In effect it has concemed

the delimitation ofshore waters.

C. The State of the Parties' MaritimeClaims

13. Mr. President, Members of the Court, 1haveto refer at this stageto one further matter

(Tab 29), which is the current state of the maritime boundary claims of the Pa1have. As

mentioned, Cameroon claims a 50-mileterritorial You can see now on the screen the effect w
of that claim, in terms of a line drawn50miles fi-omtheCoastof Cameroon. Twothings are clear.

One,the 50-mileterritorial sea cannotstandagainst EquatorialGuinea. Andtwo, the 50-milelimit

bears no relation to Cameroon'scurrentclaim-lineintheseproceedings,norelation whatever. But

Cameroon's 50-mile territorial seaclaim calls for severalfurther observations.

14.The first such observation is this. Cameroon started this case, without notice or prior

negotiation. It claimed the delimitation,inter alia, ofthe exclusiveeconomiczone, but it does not

have anexclusive economiczone.It has madeno claimto such a zone. Youcan see on the screen

the current state of Cameroon's maritimeclaims as publicly The table is taken from the

1998edition ofthennualSummaryofAdmiralîyNoticestoMariners - youwill find it inTab 30
-
of your bundle. As you can see, Cameroonclaims a 50-mileterritorial seaand nothingelse. True,

Article 77, paragraph 3, of the Law of the Sea Convention, to which both States are parties,

confirms that "Therights of the coastal Stateover the continentalshelf do not...anyd on
express proclamation". So Cameroon as a coastal Statehas a continental shelf. But there is no

equivalent provision in the Conventionwith respect to the exclusive economiczone.ne

has to be claimed, and Cameroon hasnot claimed it. Itsking the Court to delimit what is in

law a non-existent zone.

15.Now no doubt Cameroon will say: "We can easily remedy that deficiency. We can

immediately claim an exclusive economic zone". Perhaps they will do it on Thursday, Mr -45 -

President,Members of the Court? But this is noformality; that would bea new substantiveclaim.

As the Court has rather recently had occasion to stress, "the critical date for determining the

admissibility of an applicationis the date on which it was filed" (case concerning Questionsof

InterpretationandApplicationof the 1971MontrealConvention arising from theAerial Incident

at Lockerbie (Libyan Arab Jamahiriya v. United States of America), PreliminaryObjections,

Judgmentof27 February1998,paras. 42-43; ibid. (LibyanArab Jamahiriya v United Kingdom),

paras. 43-44, with referenceto earlier authorities). But this brings meto my second point,which

isthat Cameroon,despite beingthe Applicant inthis case, has madeno effort to bring its maritime

legislation into line either with its current delimitation claimagainstNigeria, or with the rules of

internationallaw. There is a saying that one who seeks equity must behave equitably,but there is

no sign of this from Cameroon. Despite its "Equitable delimitation", it has made no attempt to

comply with its treaty obligations under the 1982Convention. 1 am pleased to Saythat Nigeria,

although it is in the positionof a Respondent inthis case, has put itsuse in order. You will see

on the screen, and you will find in your folders, the Territorial Waters (Amendment) Decree of

1998, signedby the Head of State of Nigeria on 1 January of this year. The Decree establishesa

12-mileterritorial sea; the Head of State evidently works on 1 January. Nigeria, of course, has

long claimed a 200-mile exclusive economic zone. You will find that Decree in Tab 31 of your

folders.

16.This discrepancy between the Parties'conduct is relevant to the issue of delimitation,as

1will show. How can CarneroonSaythat it has madea good faith attemptto negotiatea maritime

zone whichdoes not exist, whichit doesnot evenclaim? But quite apart from that, the Court may

well feel there is an issue ofpropriety here.sit appropriate for the Court in its first case between

partiesto the Law of the SeaConventionto delimita maritimezoneatthe instanceof a Statewhich

ismanifestlyin breach ofthat Convention? 1sthe Courtto delimit a 50-mileterritorial sea? Surely

not.

D. Preliminary Objection7: The Claim to Delimit the MaritimeBoundary is Inadmissible at
this Stage - 46 -

17. Mr. President, Membersof the Court,it is againstthis backgroundthat we must consider

Nigeria's seventhandeighth PreliminaryObjections. Letmedealfirstwith the seventh Preliminary

. Objection, which is that the claim to delimit the maritime boundary is inadmissibleat this stage.

Now this Objection is put in two distinct ways, which 1have to deal with separately. The first

relates to the maritime boundaryas a whole,the second to that part of it which is beyond Point

(1) The maritime boundary as awhole

18. As to the maritime boundary as a whole, it is evident that this depends on the land

boundary. The landboundary inthe area oftheBakassi Peninsulais,Cameroonaccepts, in dispute

in this case. One cannot begin to delimit maritime zones until thebasepoint from which they are
w
to be drawn has been determined.

19. To this Cameroon responds (CO, para. 7.10) that a party could simply assert any land

boundary claim whatever, no matter how implausiblethat claim, as a smokescreento preventthe

Court from determining maritime boundaries. But at the sarne time Cameroonaccepts that there

is a real dispute over the land boundary in the area of the BakassiPeninsula (CO, para. 7.05). So

this hypothetical problem it posesfor the Court does not need to be dealt with. One need only

observe that there is no question here of a merely colourable claim, a mere diversion from the

maritimeboundary - a claim unrelated tothe actual positionstakenby the parties,includingtheir

actual positions on the ground. The Court will have no difficultyin disposing of such colourable

W
claims, if and when they are made.

20. Of coursethe partiesto a specialagreementmightspecificallyacceptthatthe two distinct

operationsof land andmaritimedelimitationwereto be combined,implyingtherebythat theywould

address the maritime issues on the assumption that their opponent'sterritorial claim might be

upheld. But the present case was not broughtby special agreement. It was brought by asudden

unannouncedunilateral applicationunder the Optional Clause. Nigeria certainlynever agreedthat

it wouldaddressthe maritime boundary issuebeforethe Courtonthe basis that itsclaim to Bakassi

was without merit. And Cameroon has certainly not addressedthe maritime boundary in the

alternative, on the basis of Nigeria'sclaim. -47 -

21. The difficultycan be seenvery clearlyfrom Cameroonlsobservations. On the one hand

it deniesthat there is any issue of the Court being called on to act non-judiciall- that is to say,

on the basis of a presumptionthat one party'scase is correct (CO, para. 7.12). On theother hand

it argues that this aspect of the seventh Preliminary Objection should be rejected because, in its

opinion,"the landand maritimeboundaries havealready beendrawn"(CO, para. 7.20). The Court

exists,it seems,onlyto confirmthe opinionof Cameroon(CO,para. 7.20). Yetthis raisesno issue

ofjudicial propriety, so far as Cameroon is concerned (CO, para. 7.12).

22. Mr. President,Members of the Court, surelythis much is clear. The situation presented

by the conjunction of an admittedly controverted land boundary, as well as an adjacent

undetermined maritime boundary,raises a seriouspreliminary question of method. Cameroon

suggeststhat it is not a preliminary question but a question for the merits. Al1the support it can

find is in passages from two decisions of the Court, in the Nottebohmand Nuclear Tests cases

(CO,para. 7.23). But these passages relate to the Court's undoubted discretion to select, from

amongthe legalargumentswhichhavebeenmade ata particularphaseofthe case,thosearguments

it willactually deal with in order to dispose of that case. This has nothing to do with the present

issue. On the contrary,ifthe Court has the powerto determinewhat isthe true object and purpose

of Cameroons' claim,as it said in the NucIearTestscases (I.C.J. Reports 1974, p. 253 at p. 263,

para. 30), it must surely conclude that the true object and purpose of Carneroon's claimis the

determination of the land boundary, and especially sovereignty over the Bakassi Peninsula, and

consequentially,the maritimeboundaryoffshorethe Bakassi Peninsula. No one couldpossiblysay

that this was really a maritime boundary case and that the Bakassi dispute is a smokescreen.

23. Cameroon parodies Nigeria's arguments ,uggestingthatNigeria aims "attotally isolating

the maritime and terrestrialquestions" (CO, para. 7.22). On the contrary, Nigeria argues that the

two are related in the following rather simpleway. The maritime question is dependent upon the

resolutionof the terrestrial, and not vice versa. The maritime question, logically and legally, is a

subsequent question. That does not make it "totally isolated"; international law does not know of

a "totally isolated"maritime boundary claim. In law, al1maritime boundaries are appurtenantto

landterritory. 24. Al1this suggests,atthe very least,apostponementofthe maritimephaseofthe caseuntil

afier the land boundary issues have been dealt with. This may be a question of method, as

Cameroon accepts (CO, para. 7.16). But, to repeat, it is aliminary question of method.

P
(2) Themaritime boundary beyond Point G and the absence of any substantive negotiations

25. 1 turn to the second part of Preliminary Objection 7, which relates to the maritime

boundarybeyond PointG. The position here is,again,quite simple. Internationallawrequiresthat

inthe first instancethe parties should seekto establishtheir maritime boundaryby agreement. But

there has been no substantive discussion between the parties with a view to reaching such an

agreement. In Nigeria'sview, the Court cannotproperly be seised by the unilateral applicationof
w
one State in relation to the delimitation of an EEZor continental shelf boundary,if that State has

made no attempt to reach agreement with the respondent State over that boundary. Anysuch

unilateral application is inadmissible.

26. The applicable rule in this respect is laid down by Articles 74 and 83 of the

1982Convention, to which, as 1have said, both Nigeria and Cameroon are parties. Article 74

applies to the EEZ. Article 83 applies to the continental shelf. The two provisions are in

essentiallythesarneterms. (Tab 32) Under common paragraph(l), delimitationisto be effected

"by agreement on the basis of international law in order to achieve an equitable solution". Under

commonparagraph (2): "If no agreement can be reached within a reasonableperiod of time, the

Statesconcerned shallresort to the procedures providedfor in Part XV". Common paragraph(3) w

dealswith the situation"pendingagreementas providedfor in paragraph 1 ",and without prejudice

to "thefinal agreement". Such arrangements are without prejudiceto the final delimitation. And

commonparagraph (4) deals with the situation "wherethere is an agreementin force betweenthe

Statesconcerned";notsurprisingly,suchan agreementisgoverning. Theword"agreement"appears

in every paragraph of each Article, and a total of 12times altogether.

27. This evidentemphasis upon agreementis fully reflected in the Court'sjurisprudence,as

demonstratedin the citations inNigeria'sPreliminaryObjections(paras. 7.18-7.25). As Cameroon

has made no attempt in its observations to discusshese authorities, 1will not go through them again here. It is suficient to cite the following passage from the GuIfof Mainecase, where the

Charnber stated as the first and "primary" principle of delimitation:

"delimitation must be sought and effected by means of an agreement, following
negotiations conducted in good faith and with the genuine intention of achieving a
positive result. Where,however, such an agreementcannotbe achieved,delimitation
should be effected by recourse to a third party possessingthe necessary competence."
Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment,
I.C.J.Reports 1984, p. 299, para. 112, (emphasis added). Cf. ibid, at p. 311,

para.154,("primary rule").

In similar vein the full Court in the LibydMalta referred "primarilyto the du@of Parties to seek

first a delimitation by agreement, which is also to seek an equitableresult." (Case concerningthe

ContinentalShelf(LibyanArabJamahiriydMalta),JudIg .m.J.te,ports1985,p. 39,para. 46.)

In the words of Prosper Weil, "No one would thinkof challengingthe propositionthat the Parties

may not make a unilateral delimitation and are bound, in the first instance, to seek delimitation

throughagreement." (TheLawofMaritimeDelimitation - Rejlections(Grotius,Cambridge, 1989)

p. 110; inFrench, PerspectivesduDroitde laDélimitation Maritime(Pédone,Paris, 1988)p. 119).

At least, no one would think of doing so, before Carneroonactually did it.

28. Thus the applicable treaty provision, no less than the rule of generalinternational law

consistentlyreferredto bythis Court, refers issues of delimitationprimarilytotheParties, andonly

secondarily,afterattemptsto reach agreementhavefailed, tothirdparty settlement. Statesmaynot

bring maritime boundary issues to Court preemptively, in order to prevent disputes arising. The

questionofthemaritime boundarymustfirst have beensubstantivelydiscussed. But 1have already

shown that there have been no substantive discussions between the Parties as to the maritime

boundary seawards of Point G. As to the exclusive economic zone there could not have been,

because that zone on the Cameroon side does not yet exist. It followsthat attemptsto delimitthat

boundary by third party adjudication are inadmissibleut thisstage.

29. Facedwiththisargument,Cameroonsaysthat conductingnegotiations"isnot anecessary

prerequisite to the admissibility of an application"to this Court (CO, para. 7.27). Devoted as it

purports to be to the law of treaties and to the decisions of this Court, Carneroonseeks to dismiss

both in a singleembarrassedsentence. Accordingto it,apparently,Articles 76and83, paragraph 2,

areto be reformulatedsoasexclude anyreferenceto agreement. Even if no attempthas beenmade - 50 -

to reach agreement, a State may resort unilaterallyto the Court. That is not what the articles Say,

not what the Court has many times said.

30. Altematively,Cameroonarguesthatthe Parties have"sufficientlynegotiated witha view

to achieving delimitationof their respectivemaritime areas"(CO, p. 106). Indeedthis is its main i

argument. It seeksto supportthat argument in three ways.

(1) In the first place, Cameroonsays (CO, para. 7.31)that the Parties havealways

intendedto negotiatetheir entiremaritime boundary,andnot to stopat Point G.

Butwhatevertheir intentionsmayhave been,the Parties have not discussedany

point whatever beyond Point G. Al1 the earlier negotiations related to the

inshore boundary. Al1the negotiations, such as they have been, since 1975,

have equally related to that part of the boundary. Cameroon cites not one

document since 1975,whethera bilateral communiquéor an interna1document,

which indicatesthat the areasbeyond PointG have been discussed. It cites no

such document in its Memorial, as Nigeria pointed out in the Preliminary

Objections (NPO, para. 7.12). It cited no such document in its Observations

(see CO, paras. 7.39-7.40). It can be inferredthat no such document exists.

(2) In the second place, Cameroon says (CO, para. 7.33) that the Maroua

Declaration did not stop at territorial waters, but extendedto the continental

shelf,if not theEZ. Indeedthis is, for Cameroon,the "best illustration"of the

point (ibid.). Mr. President, Membersof theCourt, itmaybe itsbestillustration

but it is a pretty poor illustration nonetheless. For whatever the position may

havebeenobjectively,boththePartiesatthetimeclassifiedthe areasinquestion

as territorialea. Cameroon still does, as 1 have mentioned. And yet this

classification,ontraryto positive law,is ignoredby Cameroon. Cameroonwas

more candid in its Memorial, when it accepted that the Maroua Declaration

"concerne essentiellementleseauxterritoriales" (CM, para 5.66). Sofar asthe

Parties were concemed that was true at the time. And since the question is

whetherthey have engagedinany discussionsdirected atthe delimitationof the -51 -

continental shelfor the EEZ,their own sharedattitude is critical. So far asthey

were concemed, by 1975or 1978, they had not done so. And they have not

done so since.

(3) Inthethird and lastplace,Cameroonassertsthat "anyfurthernegotiationisnow

pointless" (CO, p. 107). 1 pass over the tenn "further negotiation", which

concealsthe factthat there has been nonegotiationat al1beyondPoint G. Now

it may be accepted that if Cameroon was now to cal1 for negotiations on

delimitation beyond Point Gy Nigeria would be bound to reply that it is

necessary first to reach agreement on the land boundary. But negotiations on

a land boundaryare notthe samething as negotiationson an EEZor continental

shelf boundary, and the attempts to reach agreement which are required by

Article76,paragraph 2 andArticle 83,paragraph2, ofthe 1982Conventionare

quite different from any agreement on landboundaries. 1have discussed that

point already. Nigeria would also, no doubt, say that the Parties have agreed

thatany discussions of the offshore boundarymust involve Equatorial Guinea,

in order to determine the tripoint. They so agreed in August and

November 1993. But as we have also seen, the involvement of Equatorial

Guineawas requiredas a practical reality. Theoffshoreareasof thethree States

are so intertwined that they al1need to be involved in the negotiations. But it

cannot excuse Cameroon from not negotiating withNigeria that it has not

negotiated with Nigeria and Equatorial Guinea over an area which affects al1

three States. Cameroon cannot argue that because it is practically requiredto

negotiate withtwo Statestherefore it cannot be required to negotiate with any.

Cameroon has not disclosed to the Court the state of its negotiations with

Equatorial Guinea. It cannotjusti& its failure to comply with Articles 76 and

83of the 1982Conventionvis-à-visNigeria by referenceto negotiations,or the

failure to negotiate, with a third State. Moreovertrilateral negotiations would - 52 -

be far fiom pointless,as the Partieshaveexpresslyagreed. SoCameroon'sthird

argument fails as well.

31. Mr. President, Membersof the Court, for these reasons Cameroon'sunilateral claimfor

the delimitationofthe maritimeareas,and inparticularthose beyondPointG, is inadmissible. And

there are good reasons not to regret that situation.maritime boundary situation beyond

territorialwaters inthe Bight of Biafra is a very specialone. It is notto be resolvedon a piecemeal

basis, on the basis of unannounced unilateral applicationsfrom just one of the States involved.

E. Preliminary Objection 8: This Boundary Delimitation Directly Involves the Rights ofThird
States
W
32.1turnnow to Nigeria'seighth Preliminary Objection.israises a distinct issue,one
which arises not from the general law of maritime delimitation but fiom the special geographical

situationwhich facesthe Parties, and the Court. It is thus logically and legally a sufficient basis

for the dismissal of the claim to offshore maritime delimitation in its own right.

33. Nigeria's eighth Preliminary Objectionis that the Court cannot determine the offshore

maritime boundary of the two States on a bilateral basis in the absence ofEquatorial Guinea,an

intimately involvedthird State. (Tab 24) In order to understand this Objection, itis necessaryto

look to Carneroon'slaim. You can see on the screen its claim-line, as set out on the map

containedin its Memorialand headed ''LaDélimitationÉquitablen(CM, p. 556). For the sakeof

clarity let me use Our transposition of the line. (Tab25) You will see that the Cameroon's-

claim-line runs from Point G directly westwards to Point H, then in a south-westerly direction

through Points 1,J anK and out into the direction ofthe South Atlantic.
34. Now itis importantto notethat inputting forwardthis claim-line,Cameroonisnot acting

as a sortof collectionagent for Equatorial Guinea and SaoTome andPrincipe. It has produced no

power of attorney entitling it to act on behalf of the other two States. It is acting entirely on its

ownbehalf. Cameroonclaims to be entitled to a strip ofterritorial sea and continental shelfto the

east andsouth of the line G throKgand beyond. The areas immediatelyto the east and south

of that lineare in itsview continuouslypart of the maritimeterritory of Cameroon. Andthe Court

iscalledon so tocide. Thisappearsexplicitlyfiom Cameroon'ssubmissions(CM,para. 9(c)), - 53 -

and fiom the text of its Memorial (CM, p. 555, para. 5.127,). In short, Cameroon claims a strip

of maritime territory bordered by that line. It does not Say how wide the strip should be but

obviously it must have some significantwidth, otherwiseit could not beexploited. Perhaps in the

next round Cameroon will tell us howwide it should be.

35. Now, Mr. President, MembersoftheCourt,youcanseethe implicationsoftheCameroon

claim-line fiom the series of maps in your folders which showthe distances of points H, 1,J and

K fiom the various Gulf States as well as fiom the Bakassi Peninsula itself. Let me take you

through them.

(Tab 33) First of all, PointH. This is less than 26 miles fiom Nigeria, more than

34 milesfiomBakassi,41 milesfiomEquatorialGuinea,50 milesfiom Cameroonproper.

As to Point H, the position of Equatorial Guinea, as compared with Cameroon, would

prima faciebe excluded ifand only if Bakassiwere heldto belongto Cameroon. But the

Court as ajudicial body cannotassume ajurisdiction overthe maritime boundary which

it could only exercise, if it hadready decided to reject the legal position of one of the

two Parties in the case before it. That would be to showobvious prejudgment. So even

as to Point H, the admissibility of Cameroon'sclaim is highly questionable. (1 Say

nothing, of course, about the merits of that claim.)

(Tab 34) But, Mr. President, the plot thickens. Look atPointI. This is about 44 miles

fiom Nigeria, more than 52 miles fiom Bakassi, 34miles fiom Equatorial Guinea,

62 miles fiom Cameroon proper. As to Point 1, Cameroon might be slightly more

generousto Nigeriathan it is withPoint H, becausePoint 1is closerto EquatorialGuinea

than it is to Nigeria.But the generosity is not at Cameroon'sexpense! Having taken

around Point H areas relatively clearly appurtenant to Nigeria, Cameroon compensates

Nigeria with areas to the Westof Point 1arguably appurtenantto Equatorial Guinea.

(Tab 35) Now to Point J. This is about 79 miles fiom Nigeria, 67 miles fiom Equatorial

Guinea, more than 115 miles from Bakassi, and 118 miles fiom Cameroon proper. But

now there is a new player in the game, Sao Tomeand Principe. Point J is 80 miles fiom

Principe. In other words, Point J is much closer to Nigeria, Equatorial Guinea and - 54-

Principe than it is to Cameroon. It is obvious that Nigeria and Sao Tome and Principe

could not purport to decide on maritime claims to Point J in the absence of Equatorial

Guinea. How on earth can Cameroon require the Court to do so, as between itself and

Nigeria? Cameroonwhich is respectively37, 50 and 38 milesfùrther awayfrom Point J

than these other three States.

(Tab 36)Mr. President,MembersoftheCourt,letmecompletethedemonstrationquickly.

Look at Point K. It is about 100miles fromNigeria, 103miles fiom EquatorialGuinea,

only 66 miles fiom Principe and around 150 miles fiom Cameroon. 1 should Saythat

these mileages may be slightly approximatebecause of the approximatecharacterof the

original Cameroon map.

36. And not merelyareEquatorialGuineaand SaoTomeandPrincipenot partiestothis case.

The Court has no informationas to their attitudesto Cameroon's extraordinarymaritimeclaims to

offshore areas prima facie appertaining to them. (Tab 24) The Court will recall the attempted

Italian intervention in the Libya/Malta case. There the third State, Italy, sought to intemene to

express an interest in the affected areas. Equatorial Guinea'sinterest in the areas here is much

greater even than Italy's wasin Libya/Malta. On the basis of that decision, imaginethe areas the

Court would have to exclude fiom the delimitation in order to avoid impinging on any areas

potentiallyappertainingto the intemeningState. But is thejurisdictional position ofthe Court any

better becausethe Court has no such intervention,has no information aboutthe claimsof the third
'ciir

State? How could it be?

37. It shouldbe stressedthatthere isno questionhereof declaringa non liquet,as Cameroon

pretends (CO, para. 8.03; also para. 8.25). The question is simply of the Court not directly

prejudicing or prejudging the rights of third States by a delimitation that necessarily callshose

rights in issue. Nor is it a question, directly at least, of the Court being called on to apply the

Monetary Gold principle, althoughthe policies that underlie that decision are certainly engaged.

Whatever the position with respect to land boundaries, and tripoints on land or lacustrine

territory- a matterwhich hasbeendiscussedbymy colleagueProfessorBrownlie - theposition - 55 -

of maritime boundaries is different. That distinction was expresslymade by the Chamber in the

BurkinaFaso/Malicase. In that case the Chamber said:

"a court dealingwith a requestfor the delimitationof a continentalshelfmustdecline,
even if so authorized by the disputant parties, to rule upon rights relating to areas in
which third States have such claims as may contradict the legal
considerations- especially in regard to equitable principles-which would have
formed the basis of its decision"I.C.J. Reports 1986, p. 578,para47).

38. Can it possibly be doubted that this is the case here? Can it possibly be doubted that

EquatorialGuineahasclaimswhich "maycontradictthe legalconsiderations,especiallywith regard

to equitable principles", which would form the basis of any decision of the Court as between

Cameroon andNigeria? (Tab 24) One has only to look at Cameroon's "claim-line"as portrayed

for thefirst time in its Memorial (CM, p556). Cameroon'sclaim calls on the Court to Saythat

the equities require Equatorial Guinea to be deprived ofnificantareas of continentalshelf and

EEZwhich are closerto it than Cameroon. 1remind the Court that the line fiom Points H to 1on

thismap representsadelimitationbetweenNigeriaandCameroon. Wediscover, surprisingly,there

is no tripoint. Thus points to the east of that line are claimed to appertain continuously to

Cameroon. But fiom Point G to Point K most of those points, something between 80 and

90 per cent of them, are closer to Equatorial Guinea and Sao Tome and Principethan they are to

Bakassi or Cameroon, somewhere between 80and 90 per cent of the points. They are therefore

areas to which Equatorial Guinea or Sao Tome and Principe or both of them have perfectly

legitimate claims. The whole of the situation here hinges around Equatorial Guinea, and

Cameroon'smap, "TheEquitableDelimitation"portraysthat realityonlytoo clearly. Theequitable

delimitation. Thebasis for the line fiom Point G through PointH to Point1 and beyond. For

Cameroonto claimthat the Court can decide this case without anyregard to the implications ofits

decision for third States is totally unrealistic. And this claim is belied by Cameroon's own

reasoning in its Memorial, by its own account of how, where and whythe Court should drawthe

line (CM, paras.5.107-5.128). By its own map.

39. Moreover not merely is this true in fact. The two Partieshave agreedthat it is me. 1

havereferred to this already, andneed only quotethe relevant passagefiom the Joint Communiqué

of the meeting held in Yaoundéin August 1993,which reads as follows (Tab 37): "After underscoringthat the determinationof the triple point is essentialto the
delineationofthemaritimebordersbetweenNigeria, EquatorialGuineaand Cameroon,
the two Parties agreed that a tripartite meeting shouldbe convened to examine the
issue of the determination of the triple point and the Gulf of Guinea Commission
project." (Ann. NP0 55, NPO, Anns., Vol. II, p. 865.)

1repeat, "the determination of the triple point is essential". Yet it is now said that the Court can r

decide the full extent of Cameroon'smaritime entitlement,without any adverse implicationsfor

Equatorial Guinea or for that matter Sao Tome and Principe. This is obviously untrue.

40. In its observations, nonetheless, Cameroon seeksto reply to this objection in a number

of ways (CO, paras. 8.05-8.33). 1could count seven of them, andfaute de mieux 1will deal with

them in numerical order.

41. First, Cameroon refers to the line of cases enunciating the Monetary Gold principle, I

arguing that the legal interests of third States do not constitutethe subject-matterof the decision

the Court is askedto reach in a bilateraldelimitation(CO, para. 8.06). In generalthat may betrue

in maritime delimitationcases, even inthose in which the Court is askedto draw a line,as distinct

merely from layingdownthe applicableprinciples. But this is a very specialsituation,quiteunlike

any the Court has previously had to face. It is a situationof almost completeoverlapbetweenthe

offshore claims of the applicant State and a third State. As to the substantial areas claimed by

Cameroon which are closer to EquatorialGuineathan they are to Cameroon,the subject-matterof

the present case does precisely concem the legal interests ofa third State.

42. Secondly,Cameroon repeats,and repeats, that it is only asking for the determinationof w

the boundary as between Nigeria and Cameroon (CM, para. 8.05, para. 8.07 (twice), para. 8.12,

para. 8.23). Thepoint is self-evident. The Courthas no competenceto do anything else. Butwhat

it cannot do in fom, it must not do in substanceeither, andcertainly not in the specificcontext of

maritime delimitation. It cannotattributeby ajudgment havingthe forceof resjudicata as between

Nigeria and Cameroon an areawhich onthe faceof it is amatterof primaryconcem to Nigeriaand

Equatorial Guinea. Any suchjudgment will of coursenot be bindingon EquatorialGuinea,which
I
will be entitled to insist on its legal interests in the areas concemed against both Nigeria and

Cameroon. Assume that Equatorial Guinea decided to bring a case of maritime delimitation

vis-à-vis Cameroonbeforethis Court. In such a case,therewould be onlytwo possibilities. Either -57 -

the Court'sview of the equitieswould be exactlythe same,in which case everyone wouldsee that

the earlier judgment did in truth dispose of "the legal considerations- especially in regard to

equitableprinciples"affectingEquatorial Guinea. Or itwouldbedifferent, inwhichcasethe earlier

judgment would be discredited.

43. Thirdly,Cameroon seeks to demonstrateby a brief analysis of the earlier cases that the

Court has alwaysdrawn a maritimeboundarybetweentwo Stateswhen it hadjurisdiction to do so,

even ifthat linehad implicationsfor a third State(CO, paras.8.13-8.24). As itaccepts,therelevant

casesare onlytwo, TunisidLibya andLibydMalta. Bothwere specialagreementcases, not brought

underthe OptionalClause. Thatitself issignificant,becausewhentwo Statesspecificallyagreethat

a particular area is to be delimited, they cannot subsequentlycomplain if the Court fulfils the

specific mandate they have given it. But nonetheless it is worthwhile discussing the two cases

briefly.

44. The lineindicatedbythe Court in TunisidLibya can be seen on the screen now(Tab 38).

It will be obvious that the Court was carefulto preserve the position of Malta in relation to that

line. It did not indicate the tripoint, and it took account of the approximate areas appertainingto

Tunisia and Libya only with a view to testingthe result, in general terms, under the criterion of

proportionality(1C.J:Reports 1982, p. 91, para. 130). It noted "Howfar the delimitationlinewill

extend north-eastwards will, of course, depend on the delimitations ultimately agreed with third

Stateson the otherside of thePelagian Sea"(ibid.). This wasa wholly different situationfromthat

which confrontsthe Court here, and one far less extreme. In the present case, Cameroon asksthe

Courteffectivelyto ignoretheoffshore State,EquatorialGuinea,andto attributeto Cameroon areas

which are much closer to Equatorial Guineathan they are to Cameroon. The contrast between

Cameroon'sneglect for the position of the offshore third State and the Court'sconcern to protect

the position of Malta in TunisidLibya case is obvious.

45. That concernwas evenmore obvious inLibydMalta. Althoughthe CourtrefusedItaly's

requestto intervene,it took fullaccount ofthepossibilityof the legal interestsof third Statesbeing

affected, and thus only dealt with a part of the area in question. The Court confined itself to thearea which was free of the claims of Italy, and it did so against the urgings of both Libya and

Malta. And the Court noted:

"It is true that the Parties have in effect invited the Cour... not to limit its

judgrnentto the area inwhichtheirs arethe solecompetingclaims; but the Courtdoes
not regard itselfas free to do so, in view of the interest of Italy in the proceedings."
(I.C.J.Reports 1985, p. 25.)

Accordingly the Court confined the area within which it had jurisdiction as between Libya and

Malta to the area you now see shadedon the screen (Tab 39). It shouldbe stressed that the Court

treated this exclusion not as a prudentialmatter but as one that went to itsjurisdiction to decide.

As it said:

"A decisionlimited inthis way .. . signifiessimplythat theCourt hasnotbeen
endowed with jwisdiction to determinewhat principlesand rulesgovem delimitations

withthird States,or whetherthe claimsof the Parties outsidethatareaprevail overthe
claimsof thosethird Statesinthe region." (Ibid.,atp. 26, para. 21(emphasis added).)

Thatwas a decisionby the full Court, by 14votes to 3. Onthe point ofthe geographicalrestriction

of the area within jurisdiction, the majority was larger still.

46. In its observations,Cameroon makes a number of pointsaboutthis decision. It saysthat

the decisionto refusethe Italian requestto intervenewas "a result whichwould hardly becredible

today, following the successful Nicaraguan interventionin the El Salvador/Hondurascase" (CO,

para. 8.17). Well, that remains to be seen. Nicaragua's requestto intervenewas granted only to

a rather limited extent. But the more fundamental pointis this, the Court's jurisdiction over a

dispute cannot be increased or extended by an intervention under Article 62, under which the

intervenerdoes not become a party properly so-called. Thejurisdiction either exists interpartes

or it does not. Non-party interventionmay give the Court more information,but it cannot give it

morejurisdiction, more power. And anyway,there is no indication,no indicationwhatever,of any

intervention on the part of a third State.

47. This leadsto a further argument madeby Cameroon againstthe LibydMalta Judgment.

It says that "the Court did not find that it lacked jurisdiction" (CO, para. 8.17). This is, with

respect, simply wrong. The Court said expressly, that it lackedjurisdiction as to the areas where

delimitation impingedon the legal rights or interests of third States. 1 have cited the passage

already (1C.J: Reports 1985, p. 26, para. 21). To recall, the Court said "it had not been endowedwith jurisdiction to determine what principles and rules govern delimitations with third States".

(Tab 25) And it must be stressed that as compared with the situation in Libya/Malta, the

geographical situation herepresents an even more "exceptional difficulty" - this time 1am using

Cameroon'sown language, "exceptionaldifficulty" (CO, para. 8.17). Indeed, Cameroon itself

admitsthat it is more difficult"afortiori"(CO, para. 8.26). Withina short distance after Point G,

one isin waters to which EquatorialGuinea has legal interests,and may have a valid claim. In its

Memorial, Cameroonwas remarkablyclear about this, although a fit of coyness has corneacross

it for the purposes of the Preliminary Objection. But listen to what it said in its Memorial:

"The line must also take account of the presence of the large island of Bioko,
not in order to establish the rights of Cameroon as compared to those of Equatorial
Guinea ... but rather in order to reflect the existence of that large island as a
geographicalfact, operatingto the detriment of Cameroon in an areawhich shouldbe
equitably divided among al1the States of the region .. .[A] situation Iike the one
prevailinginthepresentcaserequiresa collectivebalancingoftheequities,advantages
anddisadvantagesamongthedzgerentStatesalongtheshoresof theBightofBiafa."
(CM, para. 5.114 (emphasis added).)

Now this passage might be objected to as being redolent of an attempt to correct geography, an

attemptthe Court hasrepeatedlydisavowed. But that is notthe issue at this phase. For Cameroon

inthis passage acknowledgesthe truthofthe situation,which requires a "collectivebalancing",not

a bilateralone, and certainlynot a bilateralone withNigeria. And this is wherethe absenceof any

collective, or for that matter bilateral, discussions of the boundary, despite Cameroon'searlier

agreementthat such negotiation was "essential", is particularly telling.

48. In this context it should be stressed that the principal reasonCameroon is shelf-locked

is not Nigeria's adjacentCoastbut Equatorial Guinea's oppositeone. Cameroon cannot seek to

evade that difficulty by bringing, unannounced and without priornegotiations, a case against

Nigeria.

49. Then, Carneroon argues that if the Court cannot decide this case its role in maritime

delimitationwill decline (CO, para. 8.22). But that completely fails to acknowledge the extreme

and specialcircumstancesof the presentcase, made even more extreme and special by the factthat

Cameroon broughtthe case without prior negotiations as to the offshore boundary andcontraryto

the agreementpreviously reached thatthe Parties would involvethe obviouslyaffected third State. - 60 -

The implications for the Court's generalrole in maritime delimitation are negligible. But in any

event, the Court has to do justice according to international law, including its own previous

decisions asto the extent of its jurisdiction interpartes. That is what will create and sustainthe

faith of govemments in its role.

50.Then, Cameroonpoints out that the line it proposestakes full accountof the rights and

interestsofEquatorial Guineaand evenof SaoTomeandPrincipe(CM,paras. 5.120-5.126,5.135).

(Tab 24) Well, in the light of the maps 1have shown earlier that is simplynot true. But whether

or not it is true, it cannot improve the situation.he Court does not havejurisdiction over the

rights ofthird Statesjust becausetheApplicantproposestotreatthosethirdStatesgenerously! Just

as soon as the rights and interestsofhose Statesare directly in issue,the Court cannot exerciseits W

functions. The pointcanbe seen byconsideringwhatNigeriawould haveto do in orderto respond

to the line presented by Cameroon and entitled"TheEquitable Delimitation",which you can now

see. Nigeria would haveto argue the equities of the situationnot only as against Cameroonbut in

effect as against the other States as well. The Court cannot listen toch an argument, let alone

decide it. Cameroon'sclaim is hopelessly inadmissible.

51. Then Cameroon argues that the Nigerian position is not preliminary(CO, para. 8.28).

Mr.President, Membersof the Court, if it goes to jurisdiction it is preliminary. And as 1have

shown, it goes tojurisdiction. The reason itwas dealt with only at the meritsstage of LibydMaIta

was that the parties to the Special Agreementwere understandablyurgingthe Court to ignorethe w

interestsof the third Statein a case where theyhad both agreedtojurisdiction and wherethere was

no preliminary phase.

52.Then, andtheCourtwill bepleasedtohear, finally,Cameroonsaysthat Statesoftencarry

out by bilateral agreementsdelimitations potentially affecting third States,which can rely on the

non-opposabilityof suchdelimitations(CO, paras. 8.29-8.32). But that hasnothing to do withthe

presentcase,which involvesaclearjudicial determinationof "thelegalconsiderations- especially i

in regard to equitable principles" affecting third States. In the rough and tumble of international

negotiationstwo Statesmay perhaps seek to impingeon the position ofa third State andtry to get

that State to recognize or acquiesce in their agreement. The Court is in a different position,as it - 61 -

made clear both in LibyaIMaltaand inBurkinaFaso/Mali. It is held to the standards ofjudicial

jurisdiction.

F. Conclusion

53. Mr. President, Members ofthis Court, for al1these reasons Nigeria submits that the

Applicationof Carneroon,so far as itrelates to the maritimeboundary, shouldbe dismissed. Such

a dismissal would, of course, be without prejudice to the rights of either Party to commence

independent proceedingsrelating tothe maritime boundary,if and whenthe legalpreconditionsfor

bringing such proceedingshave beenmet. But at present they have not been, andNigeria invites

the Court to draw the necessary conclusions.

Mr. President,Members ofthe Court, that concludesthe argumenton behalf ofthe Republic

of Nigeria in thisirst oral phase. Thank you for your patient attention.

The PRESIDENT: Thank youvery much, Professor Crawford. The Courtwill adjourn and

meet again on Thursday at 10o'clockto hear the argument of Carneroon.

TheCourtrose ut 12.40p.m.

Document Long Title

Audience publique tenue le mardi 3 mars 1998, à 10 heures, sous la présidence de M. Schwebel, président

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