Public sitting held on Monday 9 March 1998, at 10 a.m., at the Peace Palace, President Schwebel presiding

Non-Corrigé

Uncorrected

Cour internationale International Court
de Justice of Justice

LA HAYE THE HAGUE

ANNEE 1998

Audiencepublique

tenue le lundimars 1998à 10 heures, au Palais de la Paix,

sous laprésidencedM. Schwebel,président

en l'affaire delantiéreterrestreetmaritime entrele Camerounet le Nigéria

(Camerounc. Nigéria)

Exceptionspréliminaires

COMPTE RENDU

YEAR 1998

Publicsitting

held on Monday 9 March 1998,at 10 am, at the Peace Palace,

PresidentSchwebelpresiding

in the case conceming the Land and MaritimeBoundaïy between Cameroonand Nigeria
(Cameroonv. Nigeria)

Preliminary Objections

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

Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin

Mme Higgins
MM. Pana-Aranguren
Kooijmans
Rezek, juges
MM. Mbaye

Ajibola,juges ad hoc

M. Valencia-Ospina, greffierPresent: President Schwebel
Vice-PresidentWeerarnantry
Judges Oda
Bedjaoui

Guillaume
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma

Vereshchetin
Higgins
ParraA- ranguren
Kooijmans
Rezek
Judgesad hoc Mbaye

Ajibola

Registrar Valencia-OspinaLe Gouvernementdu Cameroun est représentépar :

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

comme agent;

M. Douala Moutomé, avocat aubarreau du Cameroun, ancien ministre,

M. Maurice Kamto, professeur à l'université deYaoundéII, avocat au barreau de Paris,

M. Peter Ntamark, doyen;professeur de droià la facultéde droit et de science politique de

l'universitéde Yaoundé II, avocat, membre de1'InnerTemple,

commecoagents;

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

M. Joseph Marie Bipoun Woum, professeur à l'universitéde Yaoundé II,ancien ministre,

commeconseillers spéciaux;

M. Alain Pellet, professeàrl'universitéde Paris X-Nanterre eàl'Institutd'étudespolitiques
de Paris,

commeagent adjoint, conseil et avocat;

M. Michel Aurillac, avocatàla cour, conseiller d'Etathonoraire, ancienministre,

M. Jean-Pierre Cot, professeuàl'université de Paris1 (Panthéon-Sorbonne),vice-présidentdu

Parlement européen, avocataux barreaux de Paris et de Bruxelles, ancien ministre,

M. Keith Highet, conseil en droit international, vice-présidentdu comitéjuridique interaméricain
de l'Organisationdes Etats américains,

M. MalcolmN. Shaw, Barrister at Law,professeur de droit international,titulaire de la chaire

Sir Robert Jenningsà la facultéde droit de l'universitéde Leicester,

M. Bruno Simma,professeur à l'universitéde Munich,

Sir Ian Sinclair, Q.C.,rrister at Law,

M. Christian Tomuschat, professeuràl'universitéde Berlin,

commeconseils et avocats;

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

S. Exc. Mme Isabelle Bassong, ambassadeur du Camerounauprèsdes Etats membres
du Benelux,The Governmentof Cameroonisrepresented by:

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

asAgent;

Mr. Douala Moutomé,Member of the Cameroon Bar,former Minister,

Mr. Maurice Karnto, Professor at the University of YaoundéII, Memberof the Paris Bar,

Dean PeterNtamark, Professor of Law at the Inner Temple, Barrister at Law, Faculty of Laws
and Political Science,University of Yaoundé II

as Co-Agents;

H.E. Mr. Joseph Owona, Minister of Youth and Sport,

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

as Special Advisers;

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

as Deputy-Agent,Counsel and Advocate;

Mr. MichelAurillac, Advocate at the Court of Appeal, Honorary Memberof the Council of
State, former Minister,

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

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

Mr. MalcolmN. Shaw,Barrister at Law, Sir Robert Jennings Professor of International Law,
Faculty of Law, University ofLeicester,

Mr. Bruno Simma, Professor at the University of Munich,

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

Mr. ChristianTomuschat, Professor at the University of Berlin,

as Counsel andAdvocates;

H.E. Mr. Pascal Biloa Tang, Ambassador of Cameroon toFrance,

H.E. Mrs. Isabelle Bassong, Ambassador of Carneroon to the Benelux Countries,S. Exc. M. Martin Belinga Eboutou, ambassadeur, représentant permanentdu Cameroun
auprès de l'organisation desNations Unies,

M. Pierre Semengue, générad le corps d'armée,chef d'état-major générdals armées,

M. Robert Akamba, administrateur civil principal, chargé demission au secrétariatgénéral
de la présidencede la République,

M. Etienne Ateba, ministre-conseiller,chargéd'affairesi.à l'ambassadedu Cameroun aux
Pays-Bas,

M. Emest Bodo Abanda, directeur du cadastre, membrede la commission nationale des

frontièresdu Cameroun,

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

M. Thomas Fozein Kwanke,conseiller des affaires étrangèress,ous-directeurau ministèredes

relations extérieures,

M. Jean Gateaud, ingénieurgénérag léographe,

M. Bienvenu Obelabout, directeur d'administrationcentrale, secrétariatgénéle la
présidence dela République,

M. Marc Sassen, avocat et conseil juridique,La Haye,

M. Joseph Tjop, consultantà la sociétd'avocatsMignard Teitgen Grisoniet associés,chargé
d'enseignement et de rechercheà l'universitéde Paris X-Nanterre,

M. Songola Oudini, directeurladministrationcentrale au secrétariatgénéral de la présidde la
république

commeconseillers;

Mme Florence Kollo, traducteur-interprèteprincipal,

commetraducteur-interprète;

M. Pierre Bodeau, attaché temporaire d'enseignementetde rechercheà l'universitéde
Paris X-Nanterre,

M. Olivier Corten, maître de conférenceà la facultéde droit de l'université librede Bruxelles,

M. Daniel Khan, assistantà l'universitéde Munich,

M. Jean-Marc Thouvenin, maître de conférences à l'universitédu Maine età l'Institutd'études
politiques de Paris,

commeassistantsde recherche;H.E. Mr. Martin Belinga Eboutou,Ambassador, Permanent Representative of Cameroonto the

United Nations Organization,

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

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

Mr. Etienne Ateba, Minister-Counsellor,Chargéd'affairesa.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 Territorial Administration,

Mr. Thomas Fozein Kwanke, C:ounsellorin Foreign Affairs, Deputy Director at the Ministry of
Foreign Relations,

Mr. Jean Gateaud, Ingénieurgénéral géographe,

Mr. Bienvenu Obelabout, Director of Central Administration, Secretariat of the Presidencyof 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, Director1C:entralAdministration at the General Secretariatof the Presidency
of the Republic,

asAdvisers;

Mrs. Florence Kollo, Principal Translator-Interpreter,

as Translator-Interpreter;

Mr. Pierre Bodeau, Teaching and Research Assistant at the Universityof Paris X-Nanterre,

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

Mr. Daniel Khan, Assistant at the Universityof Munich,

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

politiques of Paris,

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

M. Daniel Nfan Bile,

comme responsables dela communication;

Mme RenéBakker,

Mme Florence Jovis,

Mme Mireille Jung,

commesecrétaires.

Le Gouvernementdu Nigériaest représentp éar :

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

comme agent;

Le chef Richard Akinjide, SAN, FCIArb, ancien ministre, membre des barreaux d'Angleterreet

de Gambie,

comme coagent;

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

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

M. James Crawford, S.C., professeur de droit international'universitéde Cambridge,titulaire
de la chaire Whewell, membre de la Commission du droit international, membredu barreau
d'Australie,

comme conseils et avocats;

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

M. Alan Peny, associé, membredu cabinetD. J. Freeman de la Civ de Londres,

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

M. Christopher Hackford, Solicitor, membredu cabinet D. J. Freeman de la City de Londres,

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

comme Solicitors;

M. A. H. Yadudu, conseiller spécialdu chef de 1'Etatpour les questionsjuridiques,Mr. Guy Roger Eba'a,

Mr. Daniel Nfan Bile,

as CommunicationsSpecialists;

Mrs. RenéeBakker,

Mrs. Florence Jovis,

Mrs. Mireille Jung,

as secretaries.

The Governrneniof Nigeria isrepresented by:

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

as Agent;

Chief Richard Akinjide, SAN, FCIArb, former Minister, Member of the EnglishBar, Member of
The Gambian Bar,

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 Professorof International Law, University of

Cambridge, Member of the International Law Commission,Member of the AustralianBar,

as Counsel and Advocates;

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

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

as Solicitors;

Professor A. H. Yadudu, SpecialAdviser to the Head of State on Legal Matters, - 10-

M. A. Oye Cukwurah, membre de la commissionnationale des frontières, Abuja,

M. 1.A. Ayua, directeur général, IALS,
$

M. L. S. Ajiborisha, générale brigade, directeur des opérations, DHQ,

Mme Stella Omiyi, directeur, direction du droit internationalet comparé,ministèrefle lad
justice,

M. K. Mohammed, directeur de la recherche et de l'analyse, Présidence,

M. Jalal A. Arabi, conseillerjuridique du secrétaire duernementde la Fédération,

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

M. Alhaji A. A. Adisa, adjoint du directeur génélu service cartographiquede la Fédération,
Abuja,

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

Mme V. Okwecheme, conseillerà l'ambassadedu Nigéria,La Haye,

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

M. Clive Schofield, géographe,unité derecherche sur les frontièresinternationales,Université
de Durham,

M. Arthur Corner, cartographe, Universitéde Durham,

Mlle Michelle Burgoine, assistant pour les techniques de l'information,

commeconseillers;

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

commesecrétaire. - 11 -

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

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

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

Mrs. Stella Omiyi, Director, Internationaland Comparative Law Department, FederalMinistry of
Justice,

Mr. K. Mohammed, Director of Research and Analysis, the Presidency,

Mr. Jalal A. Arabi, LegalAdviser to the Secretaryto the Govemment of the Federation,

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

Mr. Alhaji A. A. Adisa, Deputy Surveyor-Generalof the Federation, Abuja,

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

Mrs. V. Okwecheme, Counsellor, Embassy ofNigeria, The Hague,

Mr. Amuzuei, Counsellor, Embassy ofNigeria, The Hague,

Mr. Clive Schofield,Cartographer, International Boundaries Research Unit,Durham University,

Mr. Arthur Corner, Cartographer,Durham University,

Ms Michelle Burgoine, Information TechnologyAssistant,

as Advisers;

Mrs. Coralie Ayad, D. J. Freeman of the Ciîy of London

as secretary. - 12-

The PRESIDENT: Please be seated. Todaywe begin the second round of hearings and1
should likefirst of al1to cal1upon the Agent of Nigeria.

Mr. IBRAHIM: Mr. President, distinguished Members ofthe Court,

1. In this second round of speeches 1 will begin by dealing with some relatively general
matters that do not1underany particularheadingofNigeria'sPreliminaryObjections. Counsel

will then deal with further points specificallydirected to individualobjections.

2. In my opening speech on behalf of the Federal Republic of Nig1rinvited Our
opponentsto conductthese hearings in a spiritof respect forthe Court andmutual respectbetween

fraternal States'. Nigeria got its answer on Thursday and Friday last,when Cameroonpresented
-
amass ofprejudicialmaterialwhich Ouropponentsmustknowisirrelevantto thesehearings. There

is a great deal of it. Giventhe time available, it would clearlybèimpossible for Nigeria to deal
with it all, Mr. President, and in any event it would be inappropriateto do so, because we are

confidentthat the Court willnot permit itselfto be influencedbyal. However, and for

the record,Nigeria reserves its position andrights on al1allegationsof fact and law that Cameroon
has seen fit to make.

3. Nigeria is entitled to adduce evidencein supportof itsPreliminary Objections, and it has

done so. Carneroonhas responded, in a rather contradictory manner,in three main ways. Al1of

them are attempts toistract attention fiom the real issues, namely the content of Nigeria's
Preliminary Objections andthe evidence Nigeria has adduced in support of them. -

4. First, Cameroon suggests that Nigeria's Preliminary Objectionsembody material which

relates to a putative merits phase ratherpreliminary objections2.This is simply not true.
5. And it is not at al1clear that Ouropponents really believeit either.this

Cameroon's secondapproachto the question, Cameroon also says,contradictorily,thatNigeria has

concealed itsposition on themerits3. This is not so. Nigeria'sposition has been clearly stated.

'CR9811,p. 28, 45.a.

2CR9813,p. 31,para.33.
'CR9814,pp.2eseq., paras.10et seq. - 13 -

6. The third Cameroonian position, which contradicts both the others, is to pretend that

Nigeria'stheory of the boundary mustbe an aggressiveand destabilizingone. Cameroonprovides

a self-serving interpretationof the views it attributesto Nigeria, indicating,with no justification,

that Nigeria's legal theories as to the boundary necessarily challenge the legal architecture of the

entire border4. Mr. President, it ought to be possiblefor one State to perceive that its neighbour

holds a different legal theory about the boundarywithout making spurious charges that the latter

State is challenging the entire boundary, letalonethe claim, which Cameroon has indeed made5,

thatNigeria is imperillingthevery existenceof Cameroonandthepeaceand stabilityofthe African

continent.

7. Mr. President, beforethese hearingsbegan,itwas apparentthatCameroonthought itcould

strengthen its case on Bakassi by pretending that Nigeria is trying to destabilize the entire

Cameroonian State through aggression al1along the boundary. No evidence worthy of the name

is deployed in support ofthis fiction, for which, as Cameroon well knows, Nigeria could haveno

conceivable motive.

8. The pretence continued on Thursday and Friday of last week. And in so far as new

allegations are now levelled at Nigeria for the first time, they are for the most part doubly

irrelevant,given that the Court must examinethe issues ofjurisdiction and admissibility as at the

dateofthe Applicationsthemselves. Thealleged attack at Sangreon 24 February 19986 isjust one

example of such an allegation.

9. Mr. President,Nigeria has acknowledgedthat there are problemsin the Darak area andin

Bakassi,but there are no real problems elsewhere. Cameroon knows this very well. It saysthat

there are disputes al1along the border. But, in relation to such matters, Nigeria contends that an

itemwhich a State wishes to cal1a dispute does not constitute a dispute unless certain criteriaare

satisfied. In this case they are not. In essence, Cameroon hasconsistently failed to articulatethe

4Seefootnote3.

'CR 9813,p. 20, para.35, andCR 9814,p. 28, Para.15.

'CR 9813,p. 14, para.20.existence of any dispute as to the delimitation of the boundary, by involving such matters as

overflights, miscellaneous incidentssuch as "police vehicles" andthe like.
Ir
10. The mere assertion "There is a dispute" is simply not enough. Nigeria believes that

Cameroon understands this perfectly well. It says as much in paragraph 5.05 of its observations,

but fails to follow the logic of its words. SirArthur Wattswill develop this subject further, by

referenceto the alleged incidentssaid by Cameroonto haveoccurred al1along the border. 1will

not anticipate what he is goingto Say. But Cameroon'swillingnessto assert facts unsupported by

anycredible evidenceand presentthem as ifthey were evidence goes well beyond its repertoryof

so-called incidents. In pursuing this course, Cameroon underminesits own credibility.
w
1 1. Mr. President,distinguishedMembersof the Court,thankyou foryour attention. 1would

ask you to call upon Sir Arthur Watts.

Mr. PRESIDENT: Thank you very much Mr. Ibrahim,1call now on Sir Arthur.

Sir Arthur WATTS:

The Court has no jurisdictionto entertain Cameroon'sApplication

Mr. President,Membersof the Court, 1 havethe honourto presentNigeria's replyon itsfirst

Preliminary Objection, in the light of the comments made by Cameroon on 5 and 6 March.

Let me restate, in very summary form,three essential elements in Nigeria'sargument:

- first,Nigeriawas deliberatelykeptunaware of Cameroon'srealintentionsaboutreferring j

this dispute to this Court;

- second,within the fi-ameworkof the Optional Clausesystem, Cameroon'ssubmissionof

anApplicationon29 March 1994didnot complywith therequirementsofArticle 36ofthe Statute

of the Court, read with Nigeria's own Declaration acceptingthe Court'sjurisdiction under that

Article; and

- third, the RightofPassagecase is not a compellingprecedent for the Court to follow in

al1respects, given the circumstances of the present case,and legal developments in the 40 years

sincethat case was decided.

Let me take each of those elements in tum. - 15 -

1. Cameroon'sconduct, and Nigeria's lack of knowledge

Nigeria has demonstratedthat in the period when Cameroon was preparing to come to the

Court, several high level meetings were held at which it would have been possible, and indeed

appropriate, for Cameroon to have informed Nigeria ofwhat it was doing'. Cameroonhas not

denied that those meetings took place; nor has Cameroon denied that it did not tell Nigeria

anything at those meetings about Cameroon'sintentionto refer the Bakassi dispute to this Court.

The only point which Cameroon took in this context was that President Biya had alerted

General Abachato Cameroon's intentions,by way ofa passage in his letter of 19 February 19942.

1 dealt with that letter on 2 March3. But let me do so again. The relevant part of the text is now

onthe screen. It is at Tab 40 inthe folders. As canbe seen, PresidentBiyawas exhortingGeneral

Abacha to perseverewith the negotiatingefforts whichwere alreadyunder way - and notjust to

persevere with them, but even intensifi them. And one of the objectives of that on-going

negotiatingefJortwas the findingof a solutionthroughrecourse tojudicial channels - thesewere

unspecified: they could for example include an agreedreference to arbitration, or the conclusion

of a specialagreementupona referenceto this Court. But certainly,at a time when Cameroonwas

in no position tostart a case in this Court (and this is, 1would recall, still February 1994),why

shouldNigeriabe expectedto understandthis generalreference to negotiateabout - that is, reach

bilateral agreement about- inter alia recourse to judicial proceedings, as an indication that

unilateral recourseto this Court was what Cameroonhad in mind? And if President Biya was so

set on informinghis Nigerian colleague,why not tell him directly? No, Mr. President, Cameroon

was bent on concealment, nottransparency.

'CR9811,pp. 29-30.

2C~9813,pp.25-26(Kamto)and48-49 (Ntamark).Theletteritselfis at MC 337.

3CR9811,pp.30-31, 32. - 16-

Then there is the OAU meeting on 11March. 1mentionedthis on2 March4,this year, that

is. Professor Ntamark also referred to it, on5 March5. He said that it showed that the OAU

Secretary-General said that Nigeria was awarethat Carneroonhad started proceedings beforethe

Court. Mr. President,1would first note thatthis report, which waspartof Cameroon'sMemoria16,

was not an extemal, impartial record of the OAU meeting, but Cameroon'sown intemalreport of

it. There are three grounds for regarding Professor Ntamark'swords as a travesty of the truth.

First, the "fact" which the report is said to show that Nigeria was aware of, couldno?have been

knowntoNigeria (oranyone else),sinceon 11 March - thedate ofthemeeting - Cameroonhad

not startedproceedings. Second(and here 1 showProfessorNtamark'swords onthe screen - and

they are at Tab 41 in the Judges' folders),Professor Ntarnark'squotation shows, if it shows w

anything,not that Nigeria knew of Cameroon'sproceedings,but thatNigeria did not! - "Nigeria

did no?seem to appreciate ...". But by far the most serious point is the third, which reveals

Cameroon's unbelievableattempt to mislead both Nigeria, and the Court. Professor Ntamark's

words are still on the screen. Let me show you, beneath them, what the actual document he is

relyingon says - andthe relevant part hasbeenretyped, asthe originalwas notterriblyclear, but

they areboth on the screen. It clearly says,not that Nigeria was not aware of something,but that

it was the Secretary-Generalof the OAU who was not aware of it (andthat is preciselythe point

made by Nigeria on 2 March, in demonstratingthe error in Cameroon'sassertion that "al1African

officiais"knew of Carneroon's initiationof proceedings)'. Such a grosslyinaccuratedistortion of 1

a document before this Court is, Mr. President, regrettable: but apart fiom that1would only

observe that Cameroon cannot even be reliedon to read itsown reportsproperly.

Professor Ntamark also gave us a catalogueof media reportss. And as 1 saidon 2 March9,

4CR9811,p. 33.

'CR98/3, p. 50.

6MC349, p. 71.

'CR9811,p. 33.

*CR9813,pp.49-50. - 17-

diplomacy by journalism is an unreliable, unusual and inappropriate channelfor the conduct of

internationalbusiness. ProfessorNtamark evenrepeated in front of the Courtthe propositionthat

it should treat,aseriousevidencethat Cameroonhad "officiallyannounced"its intentions,a report

from a radiostation in a third State,Gabon. If there wassuchan "officia1announcement",where

is it? Why is the text not included in the documents beforethe Court? Mr. President,two things

are striking about al1these miscellaneous mediareports (apart,of course, from their unreliability,

and unofficial character): first, Cameroonhasnotbeen ableto refer to a singleofJicial,Cameroon

pronouncementonthis matter (so, onwhat wereal1thesejournalisticreportsbased - speculation?

or must we add to "litigationby afterthought",and "litigationby accretion",the furtherconcept of

"litigationby inspired leak"?). 'Thesecond pointisthis: whyrely onal1this media reportingat all?

If Carneroonwas happy for the mediato knowwhat was goingon, andto broadcast thefacts, why

not make an officia1announcement, or tell Nigeria directly?

Because,Mr. President,CameroonwishedNigeria to believethat al1efforts shouldcontinue

to be focusedonthe bilateral, negotiatingchannel. And thatisevident fromthe CameroonForeign

Minister'smessagedeliveredto General Abachaon 13 January,proposingajoint committeeto look

atthe whole borderquestion", andfromthe previouslymentionedmessagefrom PresidentBiya on

19February - just two weeks before Carneroon deposited its Optional Clause

Declaration - emphasizing the need to persevereand intensifi on-going negotiations.

Cameroon has tried to show that al1this talk of Nigeria'slack of knowledge aboutwhat

Cameroon was doing was really besidethe point, since therewas no obligationupon Cameroonto

have told Nigeria what it was doing". So let me explain the relevance of this issue.

(i) First, Cameroon'sfailure to inform Nigeria, and indeedCarneroon'swilful misleading of

Nigeria, are directly relevant to Cameroon's obligationto conduct itself in good faith both in

9CR 9811,p.33.

''CR9811,p.30.

"CR 9813,p.36. - 18-

general, and, specifically, in relation to the jurisdiction of this Court under the Optional Clau~e'~

and, given that Optional Clause declarationsare treated as treaties, in relation to the performance

of those declarations, by virtue of the clear obligation now imposed in terms by Article 26 of the

Vienna Convention on the Law of TreatiesI3 - a Convention the significanceof which, 1notice,

Cameroon avoideddiscussing.

(ii) Second,Nigeria'slack of knowledge,and particularlyCarneroon'smisleadingof Nigeria

asto the tme position, arealso directlyrelevant tothe establishmentof mutualitywhichforms part

ofNigeriafsOptionalClauseDeclaration. Withoutknowledgetherecanbe nomutuality,nomeeting

ofminds, no consensualrelationship; and withoutthat there can be no satisfactionofthe condition

of reciprocity incorporatedin Nigeria's Declaration.

II. The Optional Clause

Let me nowtum tothe secondessentialelement inNigeria'spositiononthis first Preliminary

Objection, which concems the operation of the Optional Clause system.

Professor Simmabeganwith a plea not to destabilizethe "fragile"OptionalClausesystem14.

A system which has lasted for three quarters of a century, and has since 1990.attracted 13 new

adherents, can hardly, Mr. President, be called "fragile"! And if anything is going to destabilize

that system, it ismore likelyto be givingencouragementto sharppracticeand lack oftransparency

in its operation.

Professor Simmaalsoraisedthequestionofwhat a "reasonabletime"mightbeyinthecontext I

ofonlyallowinga Stateto invokeits Declarationafier the lapse ofa reasonabletime inwhich other

States might leam of its deposit. This Court, Mr. President, pointed the way in the Nicaragua

caseI5.There, inthe contextof determiningwhatwas reasonable noticeforpurposesofterminating

lSMilitaryandParamilitaryActivitiesinandagainstNicaragua(Nicaraguav. UnitedStatesofAmerica),I.C.J.Reports

1984. - 19-

a declaration,the Court said that it did not needto decide what that period was, but only whether

the date on which noticehad been given in the instant case wastoo soonI6. That is the approach

which, Nigeria submits, would be appropriate for the Court to adopt in the present case, and

conclude that, in the circumstances of this case, the delay ofjust over three weeks between the

deposit of the Declaration andthe filing of the Application did not allow a reasonable periodto

elapse. But in a sensethis is an artificial question: if Cameroonneededto ensurethat Nigeria had

the necessary knowledge, Cameroon simply had to tell Nigeria.

Professor Simmaalso criticized the notion of "reasonableness"on the groundthat it would

vary with the circurnstances. Yesit would - because circumstances vary: that is the essence of

flexible adjectives like "reasonable"and "equitable"- they enable differing circumstancesto be

dealtwith within thefrarneworkof the sarnerule so as to produceajust and acceptableend-result.

But Professor Simma said that it would be "absurd" for Cameroonto have been expectedto have

made an assessmentof the extent to which the United Nation'sfinancial crisis might have caused

delays in the communication of declarations to other States". But why should not

Carneroon - and other States - make some enquiries, Mr. President?- for example, into the

patternof the Secretary-General's communicationof declarationsatthattime? Indeed,no enquiries

were needed: Carneroonwill have received such communications,like al1other member States.

And Carneroonmusttherefore have knownthat in the four years before it made its Declaration in

March 1994 the standard delay for such communicationsvaried betweentwo and two-and-a-half

monthsafterthedeclarationwasmade. TheTableat Tab 42 intheJudges'foldersshowsthe details

(andthe Tableistheresult of enquiriesNigeriamade lastweekfromthe UnitedNations Secretariat

in New York); it alsoshows details for the years after Cameroon's Declarationwas made: the

general pattern of delay remainedthe same.

Now let me tum to Article 102 of the Charter. The Parties are of one mind on one

thing - Optional Clause declarations are treated as if they were treaties, for the purposes of

I6Atp.420,para.63.

"CR 98/3, p. 35. - 20 -

Article 102; and they are therefore registered by the Secretary-General. At that stage they take

legaleffect: they are,soto speak, "inforce". But from there on,the Partiesdiffer. Cameroonsays

that thismeans that, onceregistered,the declarant State is entitled to invokeits declaration". But

with respect, that is not so. Registration under Article 102 does not confer a right to invoke a

treaty; it merely removesthe particularbarto invokingthe treaty which Article 102,paragraph 2,

imposes on an unregisteredtreaty. Removingthat one bar, says nothingabout any other reasons

which might prevent a treaty - or declaration- being invoked. To give a simple example,

assume that State A has lodged a declaration which says that it will not apply against any other

State until 12 monthsafter such other State has deposited its declaration; and now let us Saythat

State B deposits its declarationwiththe Secretary-General. In those circumstances itis clearthat w

eventhough State B'sdeclarationmaybe registeredforthwith,and may be legally in force, it does

notgive State B an instantright to invokeitagainst State A. State B mustwait a yearbefore ithas

the right to invokeitsdeclarationagainst StateA. And whyisthat, Mr. President?- it is because

State A's declaration imposes that condition. And the same is true with respect to Nigeria's

Declaration. Nigeria'sDeclarationimposesa conditionofreciprocity,the practicaleffectofwhich

is equivalent to the delay imposed by StateA: Nigeria's Declarationsays that State B cannot

invoke its declaration against Nigeria untilNigeria'scondition of true, mutual reciprocity is met.

Carneroon'sfailure to appreciate the difference betweena declaration taking legal effect, and the

right to invoke it, makes its argument based on Article 102of the Charter entirely misplaced.

At the heart of Nigeria's argumenton the proper operation of the Optional Clause systemis

the condition of reciprocity includedin Nigeria'sDeclaration.

Nigeria has submitted that reciprocity requires there to be a meeting of minds. And

Professor Simma accepted thisI9. However,he saw that meeting of mindsin the interactionof the

two Declarations. But that, Mr. President, ignoresthe element of reciprocity, which is part of

Nigeria'sDeclaration - that is an essentialpart of Nigeria's "mind",and only if that element is - 21 -

satisfied can the required meeting of minds exist, and the two Declarations be regarded as

themselves constituting the necessary meeting of minds. No wonder that Cameroon showed no

further dispositionto discuss the various "consensual"arguments advanced by Nigeriazo.

Never mind,saysCameroon,therewas still "perfectequality"betweentheParties, sinceboth

had accepted the Optional Clause2'. Not only doesthis wholly ignorethe tems in whichNigeria

had conditioned its acceptance, it also ignores the real world. Consider the position on

28 March 1994,the day before Cameroonlodged its Application. Both Statesknew that Nigeria

haddeposited aDeclarationacceptingthe OptionalClause.Cameroonhad alsomade a Declaration,

and of course knew that it had done so: Nigeria did not know. Nigeria, because of its known

Declaration, was at risk of having proceedings institutedagainst it; Cameroon as a matter of

practical reality, faced no such risk. Cameroon knew that it was in principle in a position to

institute proceedingsagainstNigeria at anytime it chose; Nigeria had no equivalentknowledgeas

to its possibilities against Cameroon. And these last two differences in their positions was, of

course, notjust significant in relation to the institution of proceedings beforethis Court, but also

affected the relative position of the Parties in their ordinary bilateral relations and negotiations,

clearly working to the disadvantageof Nigeria. In no way, Mr. President, canthe position ofthe

Parties be described as "perfectly equal".

Cameroonarguesthal itmetthecondition ofreciprocitystipulatedinArticle 36, paragraph 2,

of the Statute. And if by that Cameroonmeans simply that Cameroon had made a Declaration

under that Article, and so had Nigeria, then that advances matters not at al]: it is clear that the

"sameobligation"commitmentinArticle 36, paragraph2,(not,asnotedon 2 "reciprocity"

interms) the "sameobligation"commitment,requiresa reading of that provisiontogether with the

two States'Declarations. Camerooncannotbe saidto havemet the "sameobligation"commitment

unless it alsotakes intoaccountNigeria'scondition, in its Declaration,of reciprocity: that isto Say

--

20~tCR 9811,pp.43-44.

"CR 9813p. 43.

22CR 9811p. 34. -22 -

that Cameroon can only meet the requirementsof Article 36, paragraph 2, if Camerooncan show

that the requirement of mutuality- the requirement of a "meeting of minds", which Professor

Simmahas accepted - has also been met.

Mr. President,1beganthe last halfofthat sentencewiththe words "that isto say". It clearly

illustrates the error in Professor Simma'snext point. This was that Nigeria'sDeclaration, by

introducingthe reference to reciprocity withthe words "that is to say", addedthingZ3.But as 1

have shown, the more usual practice is to use "that is to say" as a phrase indicatingan additional

nuance, or gloss, or embellishment, or emphasis, or clarification being added tosome preceding

words. The additionalwords were farfrommere surplusage: indeed,by introducingthem withthe

*
words "that is to say", the speaker is flaggingthat they involve a qualificationto the preceding

passage. Taken together with the well-established legal principle that if words are used they are

intended to have some meaning and effect, it is clear that the additional phrase introducing an

expresselement of reciprocity cannot be dismissedas mere surplusage,of no effect. Those words

were intended to have some effect additional to the repetition of words from Article 36,

paragraph 2, of the Statute; andthat additionaleffect isthe emphasis on the needfor reciprocity,

giving that term its normal meaning. In that context, 1 must repeat that Nigeria gives to

"reciprocity" its normal, dictionarymeaning,not some special meaning, as Carneroonalleges: 1

notice with interest that Carneroon did not dissent from Nigeria's submissionas to the correct,

normal, dictionary meaning of "re~iprocity"~~:Carneroon did noteven discussthe point.

Cameroon adds that, however, thejurisprudence of the Court shows that "reciprocity" is

regularlygiventhemeaningof "reciprocal invocati~n"~~A. lthoughProfessorSimmasuggestedthat

my list of the various senses in which the concept of reciprocity was used in Article 36 only

confusedmatters, that list nevertheless doesillustrate the fact that the jurisprudence of the Court

to which Professor Rosenne (whowas citedby Cameroon)was referring was concemedonlywith - 23 -

one aspect of the concept - the fourthto which 1referred, namely the extent to which one party

may rely on the terms of the other party's declaration. The Court'sviews on the meaning of

"reciprocity"in that contextare notto betaken asgoverningal1the othervarious contextsin which

that concept might be employed.

The last of Carneroon's argumentson reciprocity which 1need to address is that to accept

Nigeria'smeaningof reciprocitywould mean thatNigeriawould havethe opportunityto reconsider

its positionin the light of new Declarationsbeing submittedby other States. This, Carneroon says,

would tear down a "cornerstone"of the whole ~ystem~~i;t was, it was said, "essential"that States

cannot reconsider their positions. Mr. President, this is a surprising argument.1need only offer

two comments. First, a dozen Stateshaveincludedintheir declarationsreservationsallowingthem

a specifictime period in which to reconsidertheir positions when facedwith new declarationsby

other States: does Cameroon argue that al1 these States - Cyprus, Hungary, India, Mauritius,

Spain, the United Kingdom, and so on - are they al1upsetting the fundamental structure of the

OptionalClause system? Are their declarationsto be held improper - perhaps eveninvalid? The

second comment is this. Cameroon upholds the merits of a system which allows for, and even

encourages,the "surprise"institutionofproceedingsbefore this Court against unsuspectingStates;

Nigeria upholds a system which allowsfor a genuineconsensual approachto the OptionalClause

system. Nigeria submitsthat there can be no doubtthat it is the latter which has the better claim

to representthe "cornerstone" of the system.

As a final point on this aspect of my statement, let me address the argument that, despite

Nigeria's Preliminary Objections,Nigeria has somehow already accepted the jurisdiction of the

Court. This argument was dealt with by Nigeria on 2 MarchZ7,when it was pointed out that

referencesto proceedingsbeforethis Courtbeing pendingnecessarilyincludedthe ancillaryaspects

of thoseproceedings, includingsuchmattersas preliminaryobjections. 1 notice that Cameroondid

not refer to that treatrnent of that point at all; al1that Cameroon did was to add yet another new - 24 -

referenceZ8,this time to General Abacha's letter of 27 May 1996" to the United Nations

Secretary-General3'.It is at Tab D in the Judges' folderssubmitted by Carneroon. Despite its

lateness, Nigeria is entirely happy to comment on it. General Abacha was saying that the

"subject-matterof the dispute is alreadybeforethe ICJ", andhe referredinthe very nextlineto the

need to avoid conduct "prejudicialto the on-going processes atthe Court". Again, as with earlier

documents of this kind, to refer to the fact that a matter is before the Court is to refer to it as it

stands with al1its incidental proceduralattributes- particularlywhen thedocument comes long

after Nigeria had lodged its Preliminary Objections, and the letter itself refers to the "on-going

processes at'theCourt" - what are they, Mr. President, if not the processes which include and

follow from the lodging of preliminary objections? General Abacha's letter, far from being an w

acceptanceof the Court'sjurisdiction,is an affirmationthat the PreliminaryObjections have to be

dealt with.

III. The Right ofPassage case

When it comes to the Right of Passage case, Cameroon notedthat Article 36 imposedno

requirement other than the deposit of a declaration with the Secretary-Genera13'.But neither the

Templenor theNicaraguacases reliedon by cameroon3'as evidence of the Court'sjurisdiction in

support of this aspect of the Right ofPassage case has more than obliquerelevance - in neither

casewas the Courtaddressingargumentsabout the Secretary-General'squasi-depositaryrole under

*I
Article 36, paragraph 4. Moreover,treatyprovisionsarenot to be looked atin isolation,butwithin

the context of which they form part - and that includes inparticular the other provisions ofthe

sameArticle. Sowhataboutthe significanceof Article 36,paragraph 4,ofthe Stat~te~~? Andwhat

"CR9813,p. 52.

29Carneroorneferredto the letteras beingdated29 May: itscoris 27 May.

30SubrnittdsTabD in the Judgesf'olderspresented byCarneroo5 Mmch.

"CR9813,p. 38.

32CR98/3,p.39.

33SeeNigeria'sviews at CR9811,p. 44. - 25 -

aboutArticle 78 (c) of the Vienna Conventiononthe Lawof Treatie~~~ w,hich imposesobligations

on depositaries and stipulates that communications ffom depositaries do not take effect until

received by addressees; this must apply to Cameroon's Declaration,given that Cameroon accepts

that its Declaration is to be treated as a treaty,and that the Convention entered into force before

Cameroon lodged its Declaration and that Cameroon is a party to it. Carneroonhas chosen to

ignore both those questions.

Cameroon further noted that the Courtsaid that other Statesmust be ready for a same-day

applicationofa declaration3'.But, inNigeria'ssubmission,thepossibilityof "same-day"invocation

of a declaration must, as a general proposition,be wrong. Likethe exarnple 1gave a short while

ago, if aState'sdeclarationsaysthat a new declaration cannotbe invoked against it for 12months,

then a new State making a declaration is not entitled to invokeit on the same day, or indeed any

day before the expiry ofthe 12months. In otherwords, the possibility of same-day invocationis

subjectto the terms of existingdeclarations: thetime whenCamerooncould invokeits Declaration

againstNigeria is inextricablyand inevitablyboundup withtheterms ofNigeria'sDeclaration,and

in particular its condition of reciprocity.

The point was also n~ted~t~hat Nigeriahad not withdrawnor modified its Declaration. But,

why should Nigeria do so? Its Declarationwasmade someeight years after the Rightof Passage

case, and by includingin its Declaration a specific condition ofreciprocity Nigeria did enoughto

protect itself adequately fromthe effects of that decision. Nigeria was, in fact, beingsdrastic

than some other States: they have tended to impose a specifictime-limit of so many months,but

Nigeria has been contentto rely ona requirementof reciprocity,which couldbe satisfied in auch

shorter period, once the necessary mutuality and meeting of minds had anopportunity to exist.

34SeeNigeria'sviews at CR981144.

35CR9813,pp. 40-41.

36CR9813,p. 41. - 26 -

Carneroonalsotouched brieflyonthe blossoming of theprinciple ofgood faith since 195737.

It was arguedthat the law on this was really nothing new, sincegood faithhad always been a part

of the operationof internationallaw. Nigeriadoes not Saythat good faith is a new concept since

1957: onlythat it has emerged and developedsincethen into- as it hasbeen said3*- a "notable

element inthejudicial armoury". It is a factthat up to andcludi hegRightofPassage casethe

Court itself had not referred to good faith. And against that background,theacts - namely the

pleadingsandJudgment in that case - showthat good faithwas touched on only lightly by India

(andnot at al1by the Court), andfullyjustified the commene9thatthe waythat aspectof the matter

was dealt with in the case could only, by today'sstandards, be regarded as perfunctory. What is

more if we are lookingfor factual differences in this area,would drawattention to the fact that w

India made no argument that in that case Portuguese misrepresentationshad misled India in the

same way as Nigeria was misled in 1994.

The fact is that Right of Passage was a case ofirst impression, and has remained, for the

41 years since 1957 and until now, the only case to address the issues now raised.

Finally,Mr President, 1must take up the reference by Professor Simmato the fact that in

municipal law no one would think it any way strange for a party to instituteproceedings without

first informingthe otherparty40.Parallels with municipal laware very dangerous: it is,in many

fields, very different from international law. Perhaps in norea is this more true than in that of

judicial jurisdiction. In municipal law, jurisdiction is truly compulsory; if a party feels badly 1

treated by the other party, it nevertheless cannot avoid the generaljurisdiction of the courts. But

in international law, despite the reference in Article 36, paragraph 2, to the "compulsory"

jurisdiction ofthis Court,it istrite lawthatjurisdiction is essentiallyvoluntary, andalways a matter

of consent onthe part of States. This Court has always bornethis fundamentallyimportant point - 27 -

in mind. That is why it has been at painsnot to interpretdeclarationsexpressinga State'sconsent

to the Court'sjurisdiction morewidely than the State intended41.Precisely because intemational

jurisdiction is aatterof consent, freely given,the impositionof thatjurisdiction, by stealth, upon

a State against the declared extent of its consent shouldbe neither permitted nor encouraged. In

Nigeria'scase, its consent was expresslyconditioned by the need for reciprocity, real reciprocity:

without it, Nigeria'sconsent, as expressed in its Declaration,isacking.

Mr. President,Members ofthe Court,that concludesNigeria'sreply onthis first Preliminary

Objection. Thank you for your patient attention. 1invite you now to call upon Chief Richard

Akinjide, SAN, to address the Court. Thank you, Mr. President.

The PRESIDENT: Thank you, Sir Arthur. 1call now on Chief Akinjide.

Chief AKINJIDE:

The duty of the Parties to settle al1boundary questions by means
of existing bilateral machinery

Mr. President,distinguishedMembersof the Court, 1havethe honourto replyto Cameroon's

response on Nigeria's second Preliminary Objection. My speech will be short. The Court has

before it the history of the bilateral negotiations and it hasheard what each side has had to Say

about that history. The bilateral machinery, in al1its component parts, is still in existence and

available at any time as fat-as Nigeria is concemed.

ProfessorShaw saidthat bricks cannotbe madewithstrawalone. Mr. President, 1wouldlike

to remind the Court that the majority of Ourpopulation live in houses built not of brick, but of

straw. This does not make them any less satisfactory dwelling places and amongstthe many the

virtues of using straw are not only that it is an easily renewable material, it is also durable and

flexible.

Professor Shawseeks to diminishthe statusof the bilateralmachinerybycharacterizingit as

intermittentand diffuse. Based onthis analysis,he questionswhether any bindingcommitrnentcan

possibly be said to have arisen betweenthe Parties as Nigeria maintains. He used the analogy of

4LCR9811,p. 35;NPO, paras1.20-1.21. - 28 -

his relationship with his local newsagent. He demonstratedthat he has freedom of choice as to

where he purchaseshis newspapers. Mr. President, we do not seek to deny Professor Shawthe

fieedom of choice which Cameroon seeksto deny Nigeriaby its reference to the Court.

But we are not talking about a commercialrelationshipin this Court. We are talking about

a relationship between neighbours. It is different in character and in kind fiom a commercial,

contractual relationship. Neighbours have obligations to one another. They cannot simply walk

away fiom each other,wherever they may choose to buy the Daily Telegraph. At a State level,

govemmentshavea responsibilityto theirpeoples. Oneway inwhichthat responsibilitymanifests

itself is the maintenanceof adequatelydefined boundaries.

Nigeria's lariciboundq with Cameroon is approximatelythe same distanceas Land'sEnd 9

to John O'Groatsinthe United Kingdomor Calais to Nice in France. Imaginetryingto demarcate

a boundary the lengthof either of those two countries. Would you do it by askingthe House of

Lords or the Courde Cassationto cany out the exerciseor would you have a national boundary

commission empoweredto interviewand make enquirieswith the local populace? Mr. President,

the answer is obvious, as it should be obvious to Cameroon in this case.

It is also, in Nigeria's submission, obvious that such bodies as the OAU and the United

Nations would be equally ill-fitted to carry out the task which Cameroon is asking the Court to

embark upon. That is why Nigeria has never approachedthird parties in relation tothe boundary.

Nigeria does not need to Say that third parties are excluded from the process, common sense I

precludes them.

The point whichseems to elude Cameroonis that, so far as the land boundaryis concerned,

we are talking about a demarcationexercise, not a delimitationexercise. If Nigeriatalks in terms

of there being a duty on the Parties to utilize bilateral machinery, it is in part because Nigeria

sincerelybelievesthat this is the onlypractical way forwardin relation to the landboundary. We

should not forget that in the25 years of the League ofNations Mandate and 15years of United

Nations Trusteeship,no detailed demarcation exercise relevant to the present boundary was ever

carried out. This was, Mr. President, despite the fact that there are repeated references to thenecessity for carrying out such an exercisecontained in the annual reports both to the League of

Nations and to the United Nations.

Yet Professor Shawstated: "No bilateral machinery wascreated to deal with thetotality of

land and maritime boundaryissues" (CR 9813,p. 53, para. 3). That is a curious statement. The

Joint Boundary Commissionfollowing its meeting in Yaoundéin August 1970 recommendedto

their respective governmentsthat the delimitation of the boundariesbetween the two countries be

carried out in three stages, the first of which was the maritime boundary and the secondtwo of

which involvedthe entirety of the land boundary'.

Thatrecommendationwas clearlyacceptedby both sides becauseboththe openingspeeches

atthe next meetingheld inLagos in October 1970confirmthat they are followingup theYaoundé

meeting.

Of course one would not expect every subsequent meeting of the Joint Boundary

Commission,let alone those of the subsequentmeetingsof experts, to addressthe entireboundary

ateach meeting. What onewould expectwaswhat actuallyhappened,namelythat differentsectors

of the boundarywere to be exarnined. The fact that the maritime boundary came to dominatethe

first years of the Commission's work was very much due to Cameroon's insistence. The

shortcomingsofthat approachare apparent fromProfessor Crawford'sargumenton ourPreliminary

Objections No. 7.

To return to grass huts however. Professor Shaw did not deal at al1with the loss to the

Parties of the flexibility inherent in the bilateral work. Yet that flexibility is at the heart of the

bilateral process. As Sir Gerald Fitzmaurice said:

"Governmentsprefer to deal with disputes by political means rather than by
submissionto adjudicationand fightshyof the commitment involvedby going to law:
they dislikethe lossof control that is entailed overthe future of the case, the outcome

of whichthey can no longer influence politicallyonce it is before a court of lawW2.

'Sir Gerald Fitzmaurice,"TheFutureof PublicInternation-l Institut deDroit International:LivreduCentenaire
1873 to1973,at p279. -30 -

As we have heard, Article 33 of the United Nations Charter lists negotiation, enquiry,

mediation,conciliation,resorttoegional agenciesor arrangements,or other peacefulmeansof the

parties' ownchoice as ways of solving disputes. The Parties here, Mr. President, chose the Joint

BoundaryCommissionroute. The othermeansmentionedarefarfrombeing exhausted. Article 33

also includes arbitration andjudicial settlement. Nigeria continues to maintain that, for the job

which needs to be done in relation to its boundary with Cameroon,judicial settlementis the least

appropriatemechanism.

ProfessorShaw may feelthat Nigeriais clutchingat strawsbut those strawscan, inthe right

hands, be woven together to form lasting and, dare 1Say,quite impressive structures.

Carneroon'sdeparturefrom the bilateral mechanism, withoutnoticeto Nigeria, was a breach w

of the principle of good faith. It was alsoan act which has causedandwill cause great detriment

to the prospectsof a mutuallysatisfactory land boundary being demarcated. Nigeria asksthat the

Court upholdsthe second Preliminary Objection.

Mr. President,would ask you now to cal1upon Professor Ian Brownlie, Q.C.

The PRESIDENT: Thankyou, Chief Akijinde. Professor Brownlie, please.

Mr. BROWNLIE: Thank you Mr. President.

The exclusive cornpetenceof the Lake Chad Basin Commission

Mr. President,distinguishedMembersof the Court, inthe secondround it is my task to deal
w
with the third and fourth Preliminary Objections of Nigeria. For the purposes of this round the

fourth Preliminary Objectionwill be treated as ancillary to the third.

The necessary preface to the issues relating to the boundary within Lake Chad is the

substantial legal entitlements and national interests which Nigeria has in the area of Lake

As the distinguished Agent ofNigeria has pointed out in the first round,the peaceful status quo

within Lake Chad includesthe existence of a well-establishedpopulationof Nigerians andothers

living in villages sited either on the bed of the Lake or in islands in the inundated - 31 -

My distinguished opponent, Professor Cot, has suggested that there are certain problems

concerning the characterization of Lake Chad (CR 9814,p. 16, para. 12) as a land area or as a

maritime feature. For present purposes and at this stage, such suppositions haveno relevance.

The major legal elements are in my submissionas follows.

First: the issue of boundq demarcation was recognized in the practice of the Lake Chad

BasinCommissionas a part of a common frameworkwithin whichthegeneralsecurityofthebasin

area would be sustained andjointly guaranteed by al1member States.

Secondly: the procedure of demarcation on Lake Chad involvesfour States and is still on

the agenda of the Lake Chad Basin Commission.

Thirdly: in the circumstances the fixing of the tripoints in Lake Chad, and the associated

delimitationprocess, involvesthe legal interests not only of Nigeria and Cameroon but also Chad

andNiger, two Stateswho will not have consentedto the exercise ofjurisdiction by the Court if

the Court decidesthat it does havejurisdiction inthe proceedingswhichCameroon seeksto bring

before this Court.

Fourthly: in the circumstances in which the process of demarcationwithin the area of Lake

Chadwill take place,the Court shouldexercise a policyofjudicial restraintof essentiallythe same

character as that exercised in the Libya-Malta Continental SheIfcase in respect of geographical

areas claimed by Italy.

Fifthly: the Court would have no power to reviewthe final decisionof the LCBC in respect

of demarcationwithin LakeChad and itmust followthatthe Courthasno powerto intervenewhen

the procedure of demarcation is still in the course of operation.

The General Characterof the Lake Chad Basin Commission

The position ofNigeria is that the issues of demarcation have beenwithin the competence

of the LCBC since 1983. Whether or not it is necessary to describe this as an "exclusive"

competence,the fact isthat the LCBC andthe fourmember Stateshad clearlyhad the opinion that

the issues were within the sphere of competence of the LCBC. -32 -

Mydistinguishedopponent has not actuallydenied thatthe LCBC isa regionalorganization,

although he seeks to reduce its significance by describing it as a "modest and useful organ of

technical CO-operation"(CR 9814,p. 20, para. 23).

But Mr. President,this modest organ, thismodest organizationis concemedwith matters of

security and boundary delimitation, and modest organizations of technical CO-operationare not

usuallyconcemedwithsuchmatters. Both theCameroonAdditionalApplicationandtheCameroon

Memorial give prominence to the procedures and documents of the LCBC. Moreover, the

functioningof the LCBC wascloselyrelated tothe regular summitmeetings ofthe Heads of State

of the Members. How can Professor Cot reconcilehis positionwith the content of paragraphs 12

to 15of the Additional Application,which are replete with referencesto the LCBC and its role in w

boundary-making?

ThePowers of the LCBCin respectof DisputeSettlement

In my first round speech1 set forth the extensive documentaryevidence to the effect that

since 1983the LCBC has been concemed with the related problems of border demarcation and

security (CR 98/1, pp. 67-72). The views of the member States are clear from the Final

Communiquéof the Sixth Conference of Heads of State in 1985. There it is recordedthat:

"The Heads of State noted with satisfaction the measures beingaken by the
Commission to find permanent solutionsto the issues of border demarcationand
security on Lake Chad, and to this effect instructed the Commission to intensify its

efforts"

The documentaryrecord clearly establishesthat the questionof boundary demarcation was

within the competence of the LCBC. This was the view of the member States and there is a

presumption, deriving from the principle of effectiveness, and from commonsense, that such a

competencewould be exclusive.

The Practice of the MemberStates

Whilstcounselfor Cameroonpurportedto examine thepracticeofthe memberStates,he did

not in fact carry out this exercise, but complained that1 had made too many references to

documents,without reading them al1out (CR 9813,p. 69, para. 27). Counsel for Cameroon howeveromitted to examinethe decisions adoptedby the Heads of

State at the Ninth Summit in 1996, two-and-a-half years after the filing of the Application. In

particularhe didnotreferto DecisionNo. 2, which isat Tab 43 ofthe Judges'folder. If 1maytake

the liberty of refreshingthe Court'smemory. The text is as follows:

"CountryReports on the Adoption and Signing
of Document on Boundary Demarcation

Consideringthe item on adoption of the document on boundary demarcation;

- Noting the sensitivity of the issue in view of recent developments;

- Consideringthe necessity for peace and tranquillity in the sub-region;

- Noting the absence of the Heads of State of Cameroon and Nigeria,

The Heads of State decided:

- to defer discussions on the issue.

- to mandatethe President of the Summit to interveneeither through consultations
or meeting with the two Heads of State of Cameroon and Nigeria, to find an
amicablesolutionto the problemin the spiritofAfricanbrotherhood." (NP0 108,
pp. 1071-1072.)

Mr. President,this document establishes beyonddoubt that Chad and Niger, two Statesnot

beforethe Court, regardthe issue of boundarydemarcationas a persisting partof the agenda ofthe

LCBC. This is the evidence of the conductof the Parties which Carneroon cannot explain away.

In relationto theNinth SummitoftheLCBC Statesthere is nomutualitybetween Cameroon

andNigeria. The Court has heard the views of Nigeria but Cameroon has not commented on the

decision taken. It is true my learned colleague, Professor Cot, did refer to one passage from the

Minutes of the Ninth Summit,as follows:

"II.Consultations beforethe closed-door meeting:

5. In view of the absence of the President of Cameroonand the Head of State

of Nigeria,the first Commissionersfrom those countrieswere invitedbythe Heads of
State to a Pre-Summit discussion. There was a stalemate at the Ministerial level on
the issue of inclusionof the item on ratification of the border demarcationdocument
on the proposed SummitAgenda. While Cameroon insistedthat it was necessary to
include it onthe groundthat the ratification was a pre-conditionfor the establishment
of a Joint Security Force, Nigeria, on the other hand,maintained that the issue was
before the International Court of Justice hence it would be prejudicial todiscuss the
matter at all. TheNigerian Ministermaintainedthat his delegationhad nomandate to discuss the issue but the Heads of State could decide, at their level, to include iIt
was so decidedthat it shouldbe onthe agendaand they could handle it at their level.

6.AskedwhetherthetwoFirstCommissionershadwrittenmandatestorepresent
their Presidents, bothsaid, No. The Heads of State unanimously decided thatthey
could represent their Heads of State. In addition, the Prime Minister ofChad and al1
the other Commissionerswere invited to assist the Summit." (NP0 108,p. 1062.)

Now, my colleague,Professor Cot, considersthis passage to be a decisive blow (CR 9813,

pp. 69-70, paras. 27-32). In fact al1that happened was that the Nigerian representative leftthe

matter to the Heads of State. What the Nigerian representative did not do was to propose the

removal of the item from the agenda of the LCBC.

In any event theNigerian statementcould notin any way detractfrom the effect ofDecision

No. 2 of the Heads of State accordingto which boundary demarcation remainedon the agenda.

Inthe result, the issue ofdemarcationremainedon the agenda ofthe LCBC duringand after

the Ninth Summit of 1996,in spite of the fact that Cameroon had filed its Application leading to

the present proceedings. This was the effect of Decision No. 2 of the Ninth Summit, which

representedthe positions of Niger and Chad.

Professor Cot has not sought to challenge the legal status of this decision.

Demarcation in Lake Chad involves a Multilateral Process

In his speech on Friday last week Professor Cot stated that the line in Lake Chad was the

subjectof delimitationby agreement (CR 9814,pp. 14-19, andhe citedvarioustreaties. However,

my distinguished opponent neglectedto draw the attention of the Court to two highly significant

aspects of the matter.

First,the technicalprocessof establishingthe demarcationhasbeencomplex,to Saythe least.

In particular,the fixingof thetwo tripoints involvedan integrated processand nottwo independent

processes.

Secondly,the entireprocedure ofdemarcationwasmultilateralandinvolvedtheLCBCacting

as an agency of the four States.

In brief, Mr. President,the significantfeature was not whether a given pointwas a bipoint

or tripoint, but the fact that theocedure for establishingthepoint invoived four States. - 35 -

The Court has to face the legal consequencesof the fact that the decision requested in the

AdditionalApplicationofCamerooninvolvesthe legal interestsoftwo States,ChadandNiger,who

have not consentedto the jurisdiction of the Court. The exposition of the "legal grounds upon

which the Republic of Carneroonbases its case" provides unequivocal evidence that Cameroon

relies upon various data derived fromthe procedures of the LCBC which remain to be finalized.

The fact that the process was not finalized within the Commission was accepted by

Professor Cot last week. After referring to the decision of the Heads of State in 1994to approve

thetechnical report signedbythe national expertsin 1990,ProfessorCot continued: "Ilsestimèrent

néanmoinsqu'uneratification au niveau nationalétaitnécessaire." (CR 9813,p. 69, para. 23.)

The Legal Consequencesof the Decision Requested in Cameroon's AdditionalApplication

What then, are the legal consequences ofthe decision requested in Cameroon'sAdditional

Application which appears in the folder at Tab 44?

The issue of demarcationremains on the agenda of the LCBC as the Minutes of the Ninth

Summit establish beyond doubt. The question of demarcation is controversial and in the

circumstances it is no less significant, legallyand politically,an delimitation.

And the institutional fiamework of the process of demarcation involves two States not

presently before the Court. Moreover, in the context of Lake Chad, the actual legal interestsof

Chad and Niger are involved and not merely their participation in the procedure.

Certain possibilitiesan be laid aside. First of all, the.issues are certainly not moot (sans

objet) but remainon the agenda ofthe LCBC. Secondly,there is no suggestionthat the affairs of

the LCBC as such are non-justiciable. And thirdly, it is not suggested either by Nigeria or by

Cameroon that Article 103of the Charter can provide a solution.

This having been said, there remain three legal principles which should in my submission

preclude theexerciseofjurisdiction bythe Court. These principlesare independentlyoperativeand

mutually compatible.

The first ofthese isthe principle derivingfiom the MonetaryGold case (I.C.J. Report 1954,

p. 19). In my submission, in the circumstances of Lake Chad, and given the legal issues aspresented in Cameroon'sAdditional Application, the legal interests of Chadand Niger inthe area

of Lake Chad "would not only be affectedby a decision,but would formthe very subject-matter

of the decision" (ibid, p. 32). And as the Court stated in Monetary Gold: "In such a case, the

Statute cannot be regarded, by implication, as authorizing proceedingsto be continued in the

absence of Albania." (Ibid.)

And so in my submission, the decision requested by Cameroon in the present case would

directly implicatethe interestsof ChadandNiger andthe legal interestsofthese two Stateswould

form the very subject-matter of the decision of the Court in relation to Lake Chad.

And inthe circumstances Article 59 would provide even less protectionthan usual.

1 now come to the second of the three principles which in my submission should induce

judicial restraint.

Inthe Libya-MaltaContinentalShelfcase the Courtappliedthe principlethat it shouldlimit

the area in which its power of delimitationoperated by reference to the claims of a third State of

which it had been informed. In the words of the Judgrnent:

"Thepresent decision must .. .be limited in geographical scopeso as to leave
the claims of Italy unaffected, that is to Saythat the decision of the Court must be
confined tothe area in which, as the Court has been informed by Italy,that Statehas
no claims to continental shelf rights. The Court, having been informed of Italy's
claims, and having refised to permit that State to protect its interests through the
procedure of intervention, thus ensures Italy the protection it sought. A decision
limited in this way does not signi@either that the principles and rules applicable to
the delimitation within this area are not applicable outside it, or that the claims of

either Party toexpanses of continental shelf outsidethat area have been found to be
unjustified: it signifies simplythatthe Court has not been endowedwithjurisdiction
to determine what principles and rules govern delimitations with third States, or
whetherthe claimsofthe Parties outsidethat areaprevailoverthe claimsof thosethird
States in theregion." (I.C.J. Reports 1985, p. 26, para. 21.)

Counselfor Cameroon sees objectionsto the application ofthis principleof restraintto land

areas or lakes (CR 9814,pp. 17-19,paras. 14-21). Withal1respect, none ofthese objections have

anyjustification either in principle or inpolicy. It isifficultto see why the policy outlinedby the

Court should not apply to Lake Chad. Whilst there may be significant differences betweenthe

delimitation of land and maritime boundaries,the geographicaldifferencesbetween the two cases

are not relevantto the policy of restraint. - 37 -

The fact that coincidentallythe Court hadbeen informedof Italian claims by Italy herselfin

a previousproceeding shouldnot in my submission make a difference,providedthat the Courthas

reliable information as to the nature of the legal interests of Chad and Niger. And in the

circumstances of this case it clearly does.

Moreover, intheMonetaryGoldcasetheCourt was clearlyofthe viewthattherelevantthird

State should not be penalized because it has not submitted a request to be permitted to intervene

(see I.C.J. Reports 1954,p. 32).

It is, of course,true that inthe LibydMaItacase the Court wasto someextent influencedby

the terms of the SpecialAgreement but there is no good reason for thinking that the principle of

restraint would not have beenjustified in any case.

In the LibydMalta case no third party settlement procedurewas in place involvingthe third

State. In the present situation there is and consequently the case for judicial restraint must be

considerably enhanced.

This brings me to the third principle, which is last but by nomeans least. This is that the

Court cannot either revise the decision of another tribunal or determine the compétence dela

compétenceof anotherjudicial body or decision-makingbody.

In my submissionthe LCBC has the power to act and is currently acting as a third-party

settlement procedure. In such circumstancesthe Court cannot, by acceding to the terms of the

decisionrequested intheCameroonianApplication,determinethe competenceof abody which has

a concurrentjurisdiction.

This principle has been formulated for exarnple by Sir Gerald Fitzmaurice in his

commentaries on the work of the Court (see TheLaw andProcedureof theInternational Courtof

Justice,Cambridge, 1986,Vol. II, pp. 457-488).

Fitzmaurice(at p. 467)pointsto therelevanceinthis connection ofa passageinthe Advisov

Opinion in the Peace Treatiescase (First Phase). After referringto the fact that the merits ofthe

disputesconcernedwerenot involvedby therequestfor the advisoryopinion,the Court in thatcase

observed: "Furthermore, the settlement of these disputes is entmsted solely to the
Commissions provided for by the Peace Treaties. Consequently it is for these
Commissionstudecide upon anyobjections . ..tutheirjurisdiction inrespect ofany
ofthesedisputes,andthepresent Opinioninno wayprejudices thedecisionsthatrnay
be takenon thoseobjections. It followsthat the legalposition of the parties to these
disputes cannot be inany way compromisedby the answers that the Court may give
to the Questions put to it." (I.C.J.Reports 1950, p. 72; emphasis added.)

Mr. President, as Dr. Rosenne has pointedout, the UnitedNations Charter does not "confer

anyjurisdictional pre-eminenceon the Court" (TheLaw andPractice of theInternationalCourt,

1920-1996,Vol. II, 1997,p. 530).

And it isuseful in this contextto recall the terms of Article 95 of the Charter:

"Nothing in the present Charter shall prevent Members of the United Nations
fiom entnisting the solution of their differences to other tribunals by virtue of
agreements already in existence or which may be concluded in the future."

If the Court were to respond to the Additional Application it would be in breach of the

principle of the autonomyofjurisdictional competence. Thework of the LCBC is seento be still

proceeding,the Court would then prevent the LCBC fiom exercising its existing competence. If

the work of the LCBC is seen to be completed, the Court would be exercising an appellate

jurisdiction which it clearly does not have in respect of courts of arbitration or bodies with

analogous functions.

Thenature of thejudicial activityenvisagedby Cameroonis revealedbythe observations of

Professor Cot. In his words:

"39.Jfajouteque la décisiondela Cour dans laprésenteaffaire n'entraveraiten

aucunemanièrelestravauxde démarcationengagésausein de laCBLT. Au contraire,
en constatant de manière incontestable la délimitationde la frontière, la Cour
préciserait le cadre de ses travaux et illustrerait ainsi la complémentaritéde
l'interventiondes deux institutions.

40. En somme, la Cour, n'a aucune raison dene pas se prononcer sur la
délimitation dans la région du lac Tchad. Le Cameroun pense même,
respectueusement,qu'elle ale devoir de se prononcer." (CR 9814,p. 13).

In my submissionthis constitutesa clearadmissiononthe record of the role expectedof the

Court by Cameroon. The use of the concept of complementarity does not alter the substance of

things. -39 -

Conclusion

Mr. President, there are the strongestpossible indications ofthe need forjudicial restraint in

relation to the process demarcation in the Lake Chad area.

As 1 have indicated there are three independentlyoperating principles, which are clearly

applicablein the presentcircumstances,andwhich militatestronglyinfavour of apolicyofjudicial

abstention.

Their application is supported both by important legal principles and also by an extensive

documentary record, the relevance of which 1explained in my first round speech.

Mr. President, 1can now present Preliminary Objections 3 and 4.

Preliminary ObjectionThree

Without prejudice tothe second Preliminary Objection,the settlement of boundary disputes

within the Lake Chad region is subject to the exclusive competence of the Lake Chad Basin

Commission (LCBC), established in 1964pursuant to the Convention and Statute Relating to the

Development of the Chad Basin. In this context the procedures of settlement within the

Commission are obligatoryfor the Parties. The operation ofthe dispute settlement procedures of

the LCBC involved the necessary implication,for the relations ofNigeria and Carnerooninter se,

that the jurisdiction of the Court by virtue of Article 36, paragraph 2, would not be invoked in

relation to matters within the exclusive competence ofthe Commission.

The substance of this Preliminary Objection is confirmed by the principle affirmed in the

MonetaryGold case,bythe policy ofjudicialrestraint appliedin favourof Italy intheLibydMalta

Continental Shelf case, and by the fundamental principle that the Court cannot determine the

compétencede la compétenceof anotherjudicial or decision-making body.

This objection pertains both to jurisdiction and to admissibility.

Preliminary Objection Four

TheCourt shouldnot intheseproceedingsdeterminethe boundaryin Lake Chadtothe extent

that the boundary constitutes or is constitutedby the tripoint in the Lake. - 40 -

The legal bases of this objection are essentially similar to those of the third Preliminary

Objection.

This objection also pertains both tojurisdiction and to admissibility.

1 would thank the Court once more for its patience. Mr. President1 am in your hands.

Perhaps you would care to call on my colleague, Sir Arthur Watts once more, after the coffee

break?

The PRESIDENT: Thankyou, Professor Brownlie. The Court will suspendfor 15 minutes.

TheCourtadjoumedfrom 11.30tu 11.45 a.m.

The PRESIDENT: Please be seated. 1now call on Sir Arthur.

Sir Arthur WATTS:

There is no dispute concerning boundary delimitation from the tripoint

in Lake Chad to the sea

Mr. President and Members of the Court, 1 shall now present Nigeria's reply on its fifth

Preliminary Objection, and 1 shall follow straight on with the reply on the sixth Preliminary

Objection.

Let me beginby recallingthat, whileNigeria doesnot considerthere to be anydispute about

the boundaryas such inthe Bakassiand Darakareas,Nigeriaacknowledgesthatthereare problems

w
about sovereigntyin those areas and that there is a consequentialeffect upon the boundary there.

Nigeria regards itself as having sovereigntyin those areas. And accordingly,Nigeria'sconduct in

those areas is,inNigeria's view, a manifestationofNigeria'stitle over theterritory inquestion, and

is in no way evidence of a dispute as regards the boundaryper se.

The onlyoutstandingquestionaffectingthe boundaryas such concerns, therefore, therest of

the two States' commonboundary, namely the long, 1,000-milestretch between Lake Chad and

Bakassi. Nigeriamaintainsthat atthetime Cameroonlodgedits Application,therewas in fact, and

in law, no dispute about thatength of boundary. Cameroon however says that Nigeria is challenging the whole legal architecture of the

boundary'. What evidence of this was there when this Application, and its amendment, were

lodged? None, Mr. President: and Cameroon hasadvanced none. It has sought,instead,to create

evidence by relying on what it thinh Nigeria's arguments on the merits might be: as

Professor Tomuschat admits, Cameroon has only what it believes to be "a taste of [Nigeria's]

argument"'. But Nigeria has said nothing about its possible future arguments; and Nigeria is not

to be drawn intoprematureargumenton the merits. There is onlyspeculationon Cameroon'spart,

and inanyeventthe speculationcomesafterthe institutionof theseproceedings - it cannot show

that at the time they were instituted that there was a dispute.

Cameroon, Mr.President, must appreciate(as it so often fails to do) that these are hearings

on preliminaryobjections. Before Cameroon canget to the merits, both Parties have to be got to

the starting post. Getting them there depends onvarious preliminaryconsiderations; and one of

these is the prior existenceof a disputeabout the matter in hand. And that must be determinedon

the basis of the position as it stood, objectively determined,on the date when the Applicationwas

lodged - a proposition which the Court reinforcedin its most recent Judgment, in the Lockerbie

case3.

Of course, Cameroon has notrelied on the supposed intellectual architecture of Nigeria's

possible case, andforgottenaboutthe alleged "incidents" saidto showthat the whole lengthof the

boundaryisindispute. On 3 March4,Nigeria demonstratedthattheseallegedincidentswerewholly

inadequateto support Cameroon'sview; Cameroon, however, hasreturned to the charge5. So let

us look at what Cameroon now says.

'CR98/4, pp. 22-23.

'CR9814,p. 26 (unofficialtranslation).

'SeeCR98/2,p. 20.

4CR98/2, pp.22-25.

5CR9814,pp.24-25. - 42 -

In relationto the 1,000-milestretchof boundary,Professor Tomuschatreferred to incidents

injust three location- just three, Mr. President. First,thereisarepetitionofthe Kontcha-Typsan

confusion. Although Nigeria has alreadytwice referred to this6, it seemsthat 1 must refer to it

again. On the screen (and at Tab 45 in the Judges' folders) is a satellitephotograph of the area,

showing Typsan andKontcha. At the bottomof the text is the relevant partof the 1931Exchange

of Notes aboutthe boundary: the wordsdirectly in pointare underlined: and1shouldjust Saythat

the word "Maio" simply means river, andTypsal eventhen had various spellings, andthe river is

now known as the Typsan. Thosewords showthat the boundarycomesdownto a pointjust north

of the present village of Typsan, andthence follows "thecourse of the River Typsa[nIw.Nigeria

accepts - 1said it in general on 3 Mach7, let me now Sayit in particular- Nigeria acceptsthat w

the river is the boundary line in the area; the river is clearly visible on the map; and Typsan is

equally clearly on the Nigerian side of the river- just as Kontcha, equally clearly, is on the

Cameroonian side of it. 1 hope, Mr. President,that we will hear no moreof this absurdso-called

"incident". But if Cameroon persists in the assertion that the village of Typsans in Cameroon,

Nigeria hopes that the Court will then notethat it is clearly Cameroon,notNigeria, which seeks

to challenge the well-established boundaryalong the River Typsan.

Now, afterthat mistaken Typsanreference,we aregivensome "incidents"at Yang,lastyear.

Its location is beingpointed out on the map(Tab 8 in the Judges' folders).Those incidents are, of

course, al1too lateto be of anyrelevancewhatsoeverto theallegedexistenceofa boundarydispute w

in 1994; and theyare, equally, being broughtto Nigeria'snotice forthe firsttim- despitebeing

said to be a source of "very grave preoccupati~n"~to Cameroon, notone ofthem was, apparently,

grave enough to have been the subject of anydiplomatic cornplaint. Moreover,Mr. President, it

would not be unreasonable, 1hope, to takethe number ofdeaths occurringduring "incidents"as a

measure of their gravity. Indeed, on 6 March,Maître Aurillacreferredto "bloodyincidentswhich

'CR 9811,pp. 24-25,andCR 9812,p. 23.

'CR 9812,p. 19.

'CR 9814,p. 3, para.7. - 43 -

have causedthe death of people al1alongthe boundaryW9W . hat facts are we givento support this

assertion of Nigerian-caused carnage "al1along the boundary"? None by Maître Aurillac. But if

we lookatthe belated Repertoryof Incidents,we find just three which involveddeaths- items 7,

9 and 15. And two things are striking: more Nigerians were killed (five) than Cameroonians

(three - or possibly four); and al1 the deaths were the result of actions by private

persons - recorded by Cameroon as a poacher, cattle rustlers, brigands, and robbers.

Becausethe recent events have onlyjust been brought forward,Nigeria cannotbe expected

to have a response to offer. However,it so happensthat Nigeria can make a response to two of

them. Let me take the last, on 26 June 1997- an alleged incursion of Nigerian police in

seven vehicles. By good fortune, several of those "policemen"are in Court today: perhaps they

would begoodenoughto standforamoment. Mr.President,this "incident"was intruth a sitevisit

on that very date to that very area by members of the Nigerian legal team, instructing solicitors,

accompaniedby relevantNigerlan officials, and also a goodnumber of curious onlookers. That is

typical of the sort of "incident" which Cameroon invents in this context.

Then there is the "incident" said to have occurred at Yang. This is what Cameroon says

about it:

"On 24 April 1997 the Prefect of the Department of Donga Mantung was
arrested midway between the village of Yang (destroyed) and the Makwe, the
watercoursewhich is the internationalboundary between Cameroon and Nigeria.'"'.

The first point to make, is that Yang was not destroyed, as Cameroon alleges: on their site

visit instructingsolicitors were able to see somethingof the village of Yang and there was indeed

somethingto see,andno signof its"destruction"whichCameroonrefersto. Mr. President, nothing

of the sort! But even more noteworthy,is the real story of that incident. You can now see on the

screen (andat Tab 46 inthe Judges'folders)a group of - of what? A groupof officials: Nigerian

and Cameroonian officials. And why are they together? They were meeting at Yang on

24 April 1997- the datecited by Cameroon. Theyweremeetingto have some negotiations; and

9CR9814, pp.40-41.

''CR 9814pp.24-25. - 44-
they were meeting atNigerian request. And what hadhappened? At somepoint awayfiom Yang

Nigerian policestoppedthe Camerooniandelegationandasked them to returnto Yang. And there
in due course the Nigerian delegation joined them, and the talks And that is it,

Mr. President, no "arrest" atcertainly nothing to cal1 in question the whole boundary

delimitation. 1should addjust one morething. HowdoesNigeria knowthe abovefacts? Because,
thosefacts aretaken fiom Document 3submittedbyCameroon itselftotheCourt afewweeksago!

If 1 might just add some more details, the two sides'delegations we-e 14 on theal

Nigerian side, and 16 on the Cameroonian. The meeting had been convened to discuss a wide
range of local issues. And the communiqué agreedat the end of the meeting concludedthat the
-
"meeting which took place in a friendly and cordial atrnosphere expressed profound appreciation
andgratitude to the Govemments of both countries formaking it a huge su~cess"~'.That was the

"incident" referred to. No "incident": just a foolish attempt toice.

Finally, Cameroon says that there was an overfiight of the boundary in March 1993,and
"recently"the destruction of a boundarypost and somefrontier forestexploitation. These "recent"

events aregain obviously too late to be relevant (even if true, which Nigeria does not accept).

And as to the overflight, it calls for three comments. First, it was only includedin the Repertory
of Incidents, and is therefore too late to be relied on12;second, it was followed by no diplornatic

protest, but only a mild enquiry13; and third, if every overflight like this was to be treated as
evidence that the boundary was disputed, there would hardly be an undisputed boundaryin the
-
world!

Cameroon does admit, Mr. President, that some of its "incidents"concemed" only private
persons, to the exclusion of the Nigerian public authorities"14. Nigeria is duly grateful that

Cameroon,after having hadal1the time it wanted at itsdisposa1toprepareand presentits case, has

"Minutesof ReconciliationMeeting,24 April1997,atYang,para.4.
'*C9812,p.24.

I3SeeOC, 1,p. 345.
14C98/4, p. 5 (unofficialtranslation). - 45 -

acknowledged even at thislate stage that it included considerableirrelevanciesin its dossier. Yet

Cameroon seeks to argue that this at least shows that there is "marked insecurity" about the

boundary", and that, in their totality, they "illustratethe Nigerian challenge to the relevant legal

But Mr. President, what has to be shown isnot "insecurity", but the existence of

a dispute, in 1994; and how alleged events involving admittedlyprivate persons can illustrate a

challenge by the Nigerian State to the relevant agreementsis beyond comprehension - at least

some minimum referenceto the problem of attributability might have been expected.

Then to go on fromthat and blithely Saythat there can be no closingdate for events which

showNigeria'salleged attitude to the boundary, is to demonstrate howfar Cameroon is trying to

walk away fiom the issuewhich is here in question - wasthere, in fact, on 29 March 1994,or at

lateston 6 June 1994,a disputebetweenthe two Statesasto theboundarybetweenLake Chad and

Bakassi? The situation may still be "evolving", asCameroon puts it: time does indeed not stand

still. But the dispute, if there was one, must have existedin 1994,and no amount of subsequent

evolution can affect the need for events to have crystallized by then. But they had not,

Mr. President: no such dispute existed atthat time - or now.

Cameroon purportsto see in Nigeria'sconduct in relationto Bakassi andDarak evidence of

legal challenge affectingthe whole lengthof the boundary". Itmakes Cameroonfear that events

in those two areas "could be repeated in no matter what other part of the border region"l8.

Cameroon says it feels threatened (at least potentially)19,and apocalyptic consequences are

foreseen2'. Nigeria must, however, again bring Cameroonback to the practical question now in

issue: was there in 1994an existing dispute about the 1,000-mile stretchof boundary - not a

"CR9814,p.25 (unofficialtranslation).

161bid.

"CR9814,pp.26-28.

"CR9814,p. 28, para.14 (unoficial translation).

''CR9814,pp.28 (para.15),and30 (para.20).

20CR98/4,p. 28. -46 -

"fear",not a "potentialthreat", not a risk of "disastrous consequencesfor al1~frica"~',there must

have been an actual dispute at that time. And there was not.

Finally, Mr. President, let me address Cameroon'sassertionthat Nigeria believes that facts

make the law. Thisis simply not so. Nigeria believes itself to have good title to the Bakassi

Peninsula and the Lake Chad areas where there are admitted problems betweenthe two States.

Becauseof that goodtitle, Nigeria, of course, hasengaged in the variouskinds of behaviourwhich

al1Statesengage in their own territories: the factsfollwigeria'sbelief in the law, they do not

createthe law. Cameroonmay notyet knowwhatNigeria's fulllegalargumentsare; butthat does

not meanthat their existence can be ignored,or that they purport to create law out of the facts in

the way in which Cameroon suggests is the case. But this isal1a matter of speculation,and a ww

questionof merits, and have nothing to do with the present proceedings, which Nigeria mustyet

againemphasizeareconcemedonlywith certainpreliminaryissues. Thefifth ofthose issuesisthat

at the time Cameroon institutedhese proceedingsthere wasno disputeaboutthe boundaryas such,

and nothing that Cameroonhas said in these oral proceedings has established the contrary.

There is no basis for a judicial determination that Nigeria bears
international responsibilityfor alleged frontier incursions

Mr. President, Members of the Court, let me now turn to Nigeria's reply on its sixth

Preliminary Objection. That Objection, the Court will recall, is that Cameroon has not provided

adequate or reliable information which would enable Nigeria to respond to the assertions of W

international responsibilitysaidto arise fromthe various incidentscitedby Cameroon,orto enable

the Court to make a fair and effective judicial determination of the matter. In that situation,

Mr. President,to combinequestionsof Stateresponsibilitywith adisputeaboutterritorywouldnot

only be somewhat unusual, but would also be to embark upon considerable complicationsin the

handling and management ofthe litigation by the Parties and by the Court.

Nigeria has submittedthat Cameroonhas, in its Memorial, improperlysoughtto extendthe

"international responsibility" casewhich it originally put before the Court in its Application, as

"CR 9814p. 28, para.15(unofficialtranslation). -47 -

amended. Cameroondeniesthis2'. Nigeria's submissionin this respect hastwo aspects. The first

isthat Cameroon,in its Application(asamended), madeno claim as regardsNigeria's international

responsibilityfor any events outside theBakassi andLake Chad areaswhich, by now, areregarded

asdistinct problems. The second isthatCameroonhasrepeatedlysoughtto extendthe number and

nature of "incidents" which itsays giverise to internationalresponsibilityon the part of Nigeria.

Let me take these two elements in tum.

Cameroon'soriginalApplicationconcernedonlytheBakassiarea. Theclaims ofinternational

responsibility in that Application accordingly related only to Bakassi. So, turning then to the

amending ~p~lication, it is paragraph 17 in which Cameroon sets out what it is askingthe Court

to do. Paragraph 17 is now on the screenand is at Tab 44 in the Judges'folders. The Court will

see, Mr. President,that the claim of internationalresponsibility and reparations is advanced only

in paragraphs 17 (e)and 17 (e7. Andthey refer backto earlier subparagraphsin that paragraph,

and those earlier subparagraphsconcem only events in Lake Chad. The reference to events said

to have occurred "al1alongthe fiontier" appears in paragraph 17 0: there is no requestmade to

the Court in that paragraphfor a findingof internationalresponsibility in respect ofthose events,

nor is there in earlier paragraphs 17(e)and (ei)any referenceforward to paragraph 17 0. It is

abundantlyclear, from the terms of Cameroon'sownApplication, as amended,that Cameroondid

notmake anyclaim as to Nigeria'sinternational responsibilityin respectof those eventsoccurring

between Bakassiand Lake Chad. Consequentlyit followsthat for Cameroonnow to be saying, in

its Memorial and subsequently,that Nigeria does bear internationalresponsibilityfor those events

isan attempt to extend the scope of Cameroon'soriginal Application as amended, and is to that

extent inadmissible.

Turningthen to the second aspectof this part of Nigeria'ssubmission,there is very little to

add to what was said in this connectionon 3 MarchZ3.As there set out in some detail, Cameroon

hasconsistently practised "litigationbyaccretion". Someeventsare referredto in the Application,

UC~9814,p. 31, para.4.

=CR 9812,pp.28-34. - 48 -
some more in the amending Application, some more in the Mernorial, some more in the

observations, and so on even, as already noted in relation to the fifih Preliminary Objection,

somemore only lastweek. It isnot enoughfor Cameroonto think that theyl1come underthe one

heading of "international responsibility", therefore it is permissible to go on adding further

events- without affecting the scope of the claim being advanced. International responsibility,

Mr. President, has to be determined incident by incident. And Cameroonlsassertion that "at no

moment . ..has it sought to modiQ the scope of iapplication^"^s demonstrably incorrectin
this respect, as in the previous one:perpetually seekingto add more incidents, Cameroon is,

again, seeking to extend the case presented against Nigeria.

Mr. President,the primacy of theposition as it stood at the time of, andas expressedin the

Application, has been excepted by the Court most recently in the Lockerbie case. There was

nothingnew in that. It waslearly set out by the PermanentCourt in 1933inthe case concerning

the Prince vonPless Administration,and the Court said "under Article 40 of the Statute it is the

Application whichsets out the subjectofthe disputeandthe case though itmayelucidatetheterms

of the Application, must not go beyondthe limits of the claim as set out therein". Inthe Nauru
case in 1992the Court while noting that a new claim had some links with the general context of

the Application before the Court, decidedthat that was not enough, and saidthat for the claim to

be held to have been asmatter of substanceincludedinthe original claim,it is not sufficientthat

thereshouldbe links betweenthemof a general nature,anadditionalclaimmusthave beenimplicit -

in the Application or must arise directly out of the question which is the subject-matterof that

Application. InOurpresent casethe new matters were not only not implicitinthe Application and

did not arise directly out of it, but they were in terms not part of it.

However, Mr. President, Nigeria's principal concern is that Cameroon has been too

economical with the facts toenable either Nigeria or the Court to take these matters of State
responsibility any furtherIn this context, Cameroon seems to be labouring under a grave

misapprehension - it appears to thinkthat Nigeria is demandingthatfuII detailsof al1the various - 49 -

alleged events said to give rise to responsibility must be given in the Application. Not so at all,

Mr. President: Nigeria has never said that. Nigeria'sdetailed exposition of the inadequate facts

given by Cameroonwas intentionally taken stage by stage, dealingwith each stage separatelyand

in detailz5.Startingwith the Application,moving on to its amendment,andthen its Memorial,and

then its observationseven the "Repertory of Incidents", despite the unacceptable lateness of the

disclosure of many ofthe events recorded in it, Nigeria demonstratedthat bothat each stage taken

by itself, and cumulatively as a whole, those documents were wholly inadequate,and unreliable,

as a basis forfurtherjudicial considerationbythis Court. AndNigeriawouldremindthe Courtthat

while Cameroon could regard its Application as an initial statement of its case to be fleshed out

later, its Memorial was the first of its pleadings on the merits: there can be no excuse for

inadequacies of information in that pleading.

It is necessaryto add that this is nothing to do with questionsofproof: proof, as Cameroon

accepts, isa matter forthe meritsZ6.Nor is it a question of foreseeingthat evidencewillbe lacking

at some laterstage,which this Court accepted in the Nicaragua casewas not a goodenoughreason

for declaring an argumentinadmissiblein Iiminelitisz7.It is a question of identification, knowing

enough nowto havea reasonablyclear ideaof what the chargesare againstNigeria, enoughforthe

Court to be ableto bringto bear appropriatejudicial standards; itis a question of beingableto rely

on such allegedfactsas are given, of knowingthat there are allegationsbeingadvanced whichcan

be taken seriously as potentially giving rise to international responsibility. Mr. President, 1have

lostcount ofthe number ofalleged "incidents"which have been identifiedbyNigeria in these oral

proceedingsasbeingtotally - totally - withoutanystandingwhatsoeverasabasisforallegations

of international responsibility. That is the inadequacy ofwhichNigeria cornplains,and which in

Nigeria's submissionprecludes these matters from being taken any further.

ZSCR 9812,pp.28-33, 36-37.

26CR 9814,p. 33.

27SeeCR 9814,p. 34. -50 -

Cameroondismissesas unsoundNigeria'sreading ofthe StatuteandRulesof Court. Nigeria

emphasizes those texts, however, because they are the basis for al1proceedingsbefore this Court,

andtheir importance was emphasizedin the earliercases to which1havejust referred. Of course,

it is easy to caricatureNigeria'sposition by suggestingthat Nigeria claims thatfactual details

should be included in the Application, and then to show that such a claim is unfounded. But

Nigeria has never claimed that. Nigeria submits that it is the applicationwhich startsoff a case,

andwhich determines its essential limits; butNigeria also accepts that an applicant can ampli@

itsapplication in its memorial,withincertain lim-tssuchas that, for example,the character and

scope of the case is not changed. It is a misreading of Nigeria's position to argue, as did

W
Professor Kamto2*,that Nigeria rejects the amplification in a memorial of incidentsreferred to in

an application: in the passage fromNigeria's PreliminaryObjection which he cited,Nigeria was

onlyrejecting Cameroon'sabilityto givedetailsaboutcertain previously totally unidentijed events.

Nor is there any inconsistency in requiring an application to be sufficientiy particularized, and

acknowledging at the same time that a memorialmay further elaborate.on the application: it is

simplyto Saythatthe first stage - the applicationdoesnothaveto be fullydetailed,but it does

at least have to Sayenoughto identiQ what the accusation againstNigeria is, and if it is, then the

memorial can add further details.

Cameroon suggeststhat Nigeriahas espouseda curiousconceptof Stateresponsibilip, but

Carneroon's explanationof thiscuriositywoulddisappear if only Cameroon would remember that w

these present proceedingsare concerned withpreliminaryobjections,and notwith the merits. As

already explained in relation to the fifth PreliminaryObjection, and was explained on 3 Mach3',

events in Bakassi and Lake Chad reflect differentpositions taken by the two States. It is simply

no good Cameroon saying now that the Court could not possibly decide that Bakassi belongs to

Nigeria, and that therefore Nigeria could not possibly justifyits acts there as manifestations of its

28CR9814,p.36.

29CR98/4,pp.37-38.

30CR98/2, p37. - 51 -

sovereigntyin the area3': that is al1about the merits, and has no place here. What one can Say,

at this stage, is that if the Court were to get to the stage of deciding the question of title to that

area, then the acts in that area of whichever State is held to have title over it cannot involve

trespasses into the other State'sterritory. But it is important to note, Mr. President, that the

converse is not necessarily true: it does not necessarily follow that if the title of one State is

established, then al1 acts of the other in what is determined to be the first State's area are

automaticallyto be regarded as illegal acts against its territorial sovereignty one would,rather,

have to consider those acts to see what possiblejustifications for them might exist.

The situation is in fact not at al1straightfonvard. As Nigeria notedlast ~eek~~i ,f boundary

andterritorial disputesareto be turned simultaneouslyintoStateresponsibilitycases,the problems

will be aggravated, not resolved. Moreover, not only will problems of substance be likely to be

made worse, but also, if pleadings in boundarycases are to be loaded alsowith contingent issues

of State responsibility,the Court's - and the parties'- handling of such cases would clearly be

greatlycomplicated. The Court'sability in al1the circumstanceseffectivelyto exercise itsjudicial

function would, in Nigeria's submission,be severely prejudiced.

Mr. President, Members of the Court, that concludesNigeria'sreply on the fifth and sixth

PreliminaryObjections. 1now invite you to cal1upon Professor JamesCrawford, S.C.,to address

the Court on Nigeria's seventh and eighth Preliminary Objections.

Thank you, Mr. President.

The PRESIDENT: Thankyou so much, Sir Arthur. Professor Crawford.

Mr. CRAWFORD: Mr. President, Members ofthe Court.

A. The Factual Background

In dealing with PreliminaryObjections 7 and 8, relating to the maritime boundary, let me

begin with a number of issues of fact.

3 1 ~98/4, pp.37-38.

3 2 ~98/2, pp. 37-38. - 52-

Factnumber1. There isnorecord of anyactual negotiationsbetweenthe Parties withrespect

to the delimitation of their maritime zones beyond Point. Last week 1 pointed out that no

document recording such negotiationshad beentendered (CR 9812,p. 50). Mr. Bipoun Woumon
I
Friday mentioned none. So the Court may proceed on the basis that no such document exists.

There is no evidence whatever of any such substantivenegotiations.

Fact number 2. Cameroon has not repealed its Law No. 74/16, of 5 December 1974,
proclaiming a 50-mileterritorial sea. Nor has itenacted a lawproclaimingan exclusiveeconomic

zone. On Friday, counselarguedthat these twothings wereto be consideredas having beendone,

notby any legal actonthe part of Carneroon,butby the combinedoperationof its Constitutionand

its ratification of the 1982 Law of the Sea Convention. Let me deal with the two zones in turn. -

As to theterritorialsea: 1am accused of misrepresentingCameroon's position. Section45

of its Constitution, Mr. Highetid, did al1the necessary work in lieu of the legislator (CR 9814,

p. 55; also CR 9814,p. 47 (Mr.Bipoun Woum)). The British AdmiraltyNotice of 1998,which

1cited last week, was simply in error.

- Well, that error is common. It is a communiserror. It is a generalerror. The UnitedNations

Division for Ocean Affairs and the Law of the Sea makes the error'. Sodoes the Office of

Ocean Affairs in the United States Departmentoftate2. So do publishedtexts dealingwith

maritime claims3. The Court will find the references in the transcript.

- And moreover this "common error''seemsto reflect the position under Cameroon law.

Mr. Highet purportedto cite the text of the relevant constitutionalprovision, Article 45,

but in doing so he missed out an important qualifj~ingphrase (CR 9814, p. 55).

Mr. Bipoun Woum, for his part, paraphrazedthe text, likewise avoiding the potentially

(United Nations,NY 1995)p. 78.islationonthe Tl ea, theRightofInnocentPassageand theContiguousZone

'Departmentof State,Office of OceanAffairs, Limitsin the SeasN. 36 (? revision),NationalClaims to Maritime
Jurisdiction(Washington,1995)p. 22.

3Seee.g., J.A. R&aR.W. Smith,UnitedStatesResponsesto ExcessiveMaritimeClaims(Nijhoff,TheHague,1996)
pp. 154, 161. dificult qualification (cr 9814,p. 47). So let me make up for the deficiency. [SHOW

ARTICLE 451 Article 45 reads, in full:

"Duly approved or ratified treaties and international agreements shall,
followingtheirpublication,overridenationallaws,[sofar,Mr. Highest's quote,but

with the additionofthe words] provided theotherparty implementsthesaidtreaty
or agreement."

And the French text is, as one would expect of the language of Corneille, even clearer:

"Les traités ouaccords internationauxrégulièrement approuvésou ratifiés
ont, dèsleur publication,uneautorité supérieureàcelledes lois,sousréservepour

chaque accordou traité,de son applicationpar l'autrepartie."

Thewords 1have emphasizedwereomittedbycounsel forCameroon,eachselectivein his own

language. But it is clear from this reciprocityclause that there is no question of automatic

unconstitutionalityhere. At best,the situationis one of reciprocal non-applicationof a law as

between the Statesparties to a treaty which is inconsistent with that law, to the extent of the

inconsistencyand subjectto a determinationofthe other State'scompliance. As against non-

parties to the 1982Convention,such as the United States, Cameroon's 50-mileterritorial sea

still exists. It existedga omnesat the time Cameroon lodged its first Application,because

the 1982 Conventionhad not then entered intoforce4. What the position is now, as between

Cameroon and other States parties to the 1982Convention which do not claim more than

12miles, is unclear, and apparently no Cameroon court has considered the issue. Does

Cameroon assert a territorial sea against other such parties on a basis of reciprocity? That is

to Say,does it assert a 3-mile territorial sea against a State which claims 3 miles, a 6-mile

territorial sea against a State which claims6 miles, and so on? The matter is shrouded in

obscurity; indeed it hardly makes sense to talk about reciprocalterritorial seas. The rest of

the world proceeds on the basis that each Statemakes a determinateclaim to a territorial sea

of a determinate breadth. And, as 1 have said, Cameroon's legislation still contains a law

asserting a territorial sea of miles in breadth. No other State to my knowledgehas relied

on the 1982 Conventionto determine the breadth of its territorial sea, still less to repeal an

earlierexcessive claim bythat State. MoreoverStates partiestotheLaw ofthe SeaConvention

The first Applicationwaslodged29 March 1994.The 1982Convention cameinto force on 16Novembe1994. maintain their own territorial sea legislation even if under their constitutionstreaties havethe

force of law. It is no doubt foruchreasonsthattheUnited States,forexarnple,hasrepeatedly

pressed Cameroon to pass "affirmative legislation" to repeal its 1974Law. However,

%
Carneroon has so far refused to do so, citing "political difficulties".

- 1 should note a further difficulty in the way of the "cherished error" which Mr. Highet and

Mr. Bipoun Woum continued to make on Friday. 1 mean, the error that Article 45 of the

Constitution creates a 12-mile territorial sea, overriding the 1974 Law. For Carneroonhas

never had a 12-mile territorial sea; in 1967 it jumped straight from 6 to 18 miles, before

jumping again in 1974to 50 miles,thereby, incidentally,confoundingZeno'sparadoxbygoing

faster ratherthan slower as it went along5. Now the 1982 Conventionallows, but it doesnot 1

require, a 12-mileterritorial sea. Ifthe 1974Lawwereunconstitutional,presumablyCameroon

would have a 6-mile territorial sea, the legal status quo ante. But that Law is not

unconstitutional, as 1have shown,and as the French Conseil Constitutionnelhas repeatedly

held in relation to the analogous provision of the French Constitution6.

- Mr. President, Members of the Court, perhaps one day Cameroon will recognize its error,

perhaps Wednesday. Butalas, it is usually the case that "Qui chéritsonerreur ne laveut pas

connaîtreM7i,f 1may quote Corneille.

As to the exclusive.economic zone: Mr. Highet asserted that al1 States parties to the

Convention have such a zone whether theywant it or not (CR 9814,p. 56). This contradictsthe

practice, of course. Hitherto States have claimed specific zones, fisheries zones or EEZs, by

specificlegislation,and have not reliedonthe 1982Convention. One crucialreason for thisisthat

theprovisions of the 1982Conventionare not self-executing. They requireto be implemented by

specific legislation. Under Article 57, the 200-mile breadth is a maximum, not a mandatory

'Theprogression was:6 n miles, Decree62-DF-216,25 June 1962;18n miles, LawNo. 67/LF/25,13November1967;

50n miles, LawNo. 74/16, 5 December 1974.

%eee.g. the Conseil'sdecision in theAbortionLawcase, 15January 1975,Rec CC 1975,p. 19;in English, 74ILR523.
Thedecision has been many timesreaffinned.

'Corneille,Polyeucte,acte III sc III. - 55 -

breadth. Andmoreover a Statewhichclaims an EEZassumesimportantduties,forexample under

Articles 61, 62, 71, 72 and 75 of the Convention. There is no legislative or other sign that

Cameroonhas assumedthese duties,outto 200 milesor at all. Legislatively,al1ithas is a 50-mile

territorialea.

Mr. President, Members of the Court, 1turnto Fact number3. The Parties have made no

attempt yet to define an agreed tripoint between the maritime zones of Nigeria, Cameroon and

Equatorial Guinea. This is despite repeated calls by Nigeria for such negotiations. 1referred to

these in my speech last week (:CR9812,pp. 42-43), butneither counsel for Cameroon chose to

respond. Perhaps the reason why there have been no discussions is that, although Carneroonhad

previouslyagreedthat it was essentialto define thetripoint, it now says,for theveryfirst time,that

there is no tripoint at al1 between the three States. Instead there is a continuous band of

Cameroonianmaritime territory separatingNigeria and Equatorial Guinea al1the way out intothe

Atlantic Ocean. Far frombeing essentialto definethe tripoint, Cameroon now says for the first

time that it is unnecessary, indeed impossible.

Now to Fact number4. This is, as1said lastweek, that more than 80 per cent of the points

along Cameroon'sclaim-line beyond PointG are closerto EquatorialGuinea, or to Sao Tomeand

Principe, than they are to Bakassi or to Cameroon. This was another matter which counsel for

Cameroon did not attempt to refute. Indeed they didnot address Ourmaps at all.

That brings me, finally, to Fact number5. Mr. Highet complained aboutthe colour of the

Bakassi Peninsulaon Ourmaps (CR 9814,p. 54). 1can assure him that it is very green. And he

cannot really complain that Nigeria, in the context of these proceedings, continuesto rely on its

publicly declaredposition aboutthe Peninsula,infactthat position is at the base ofanyjurisdiction

the Court may have between the Parties. [SHOW TRIPOINT] But on the assumption - quod

non - that Bakassi were consideredor held to belongto Cameroon,the Court may be interested

to know roughlywhere the geographicalor cartographicaltripoint betweenthe three States is. You

can see it on the screen now, its about 28 nautical miles from the nearest points on the Bakassi

Peninsula, the rest of Nigeria and Equatorial Guineaand the map is at Tab 48 in your bundles.

This cartographical tripoint is also about 13 nauticalmiles south of Point G. [SHOWTRIPOINT -56 -

IN RELATIONTO CLAIM LINE BEYONDPOINT G] Its location bears norelationshipto the

Cameroonian claim line, whichyou can now see transposed on to the map.

D. Preliminary Objection 7: The Claim to Delimit the Maritime Boundary is Inadmissible at
this Stage

Mr. President, Members of the Court, 1 tum then to Carneroon'sresponse to the seventh

Preliminary Objection.

(1) TheMaritimeBoundary as a Whole

First, as to the maritime boundary as a whole, there is very little to add. The Parties agree

there is a serious problem of judicial method, where thire are independent disputesabout the

location ofthe landboundaryandthe adjacentmaritimeboundary. Cameroonarguesthatthe Court

should decide on the issue of method afterthe Parties have completedtheir written consideration

ofthe merits(CR 9814,pp. 52-53,Mr. BipounWoum). To putitat its lowest,this isaninefficient

way to proceed, and unless the Parties have expressly so agreed,Nigeria submits that - even in

a case where there isjurisdiction to determineboth the land andthe maritime boundary,which is

not so here for other reasons - but even in such a case considerationsof efficiency andjudicial

proprieîy favoura severanceof the two phases. That is whatthe parties agreedto do inthe current

arbitrationbetweenEritrea andYemen. ButNigeria hashadnoopportunityto agree; thiscase was

brought withoutnotice andwithoutnegotiation,whether astothe method of proceedingoranything

else. Even if the Court were to uphold its jurisdiction over the sector out to Point G, Nigeria

submits that the land and the maritime zones should be dealt with in separate phases.

(2) The MaritimeBoundary beyond PointG

1tum then to the issue of the continentalshelf beyond Point G.

First, let merecallProfessorCot'sargumentthat thereisadifferencebetween thedelimitation

of land and maritime boundaries, and that the difference is of particular significancewhere there

has been no attempt to delimit the boundaryconcemed by treaîy, as is incontestablythe case with

the maritime boundary beyond Point G (CR 9814,p. 17). 1only wish Professor Cot had told his

co-counsel of this distinction. For Mr. Bipoun Woum cited as his principal authoritieson the - 57 -

question of the duty to negotiate a maritime boundary, two eminently terrestrial cases

(CR 9814,pp. 45-46). The firstwasthe Right ofPassage case itself (I.C.3:Reports 1957,p. 125).

But there was no issue of maritimedelimitation in that case, which concernedenclaves on Indian

territory. The second was Railway Trafic between Lithuania and Poland, (1931,

P.C.I.J., Series dB, No. 42), a decision of the PermanentCourt that, so far as the record shows,

concerned a terrestrial ratherthan a maritime railway.

What Mr. Bipoun Woum could not bring himselfto face, another cherished error he could

not recognize, is that Articles 74, paragraph 1, and 83, paragraph 1, of the 1982 Convention

establish a substantive rule of delimitation. That rule binds the parties as a matter of treaty law,

but it is anyway the applicable mle of general international lawas well. Article 83, paragraph 1,

says that the delimitation of the continental shelf "shall",1Say,"shall"be effected "by agreement

on the basis of international law . . .in order to achieve an equitable solution". And this is the

relevant substantive rule. It is only if no agreementcan be reached withina reasonable timethat

Article 83, paragraph2, refers the parties to the relevantprocedures for thepeaceful settlementof

the dispute. Moreoverthis is nothingnew. It was the mle proposed in the Truman Proclamation,

endorsed by the Court in the seminalNorth Sea Continental Shelfcases, endorsed again by the

Charnber in the Gulfof Maine case, and repeatedly referredto sinces. It is not the same thing as

saying that a maritime delimitationcannot be achievedunilaterally,though that is also me. It is

a positive, not a negative rule; delimitation "shall be effected by agreement". When the 1982

Convention wants to formulate a negative rule it knows how to do so, for example in Article 57,

which says that the EEZ "shall not extend beyond 200 nautical miles" fiom the baseline, or in

Article 3,which gives Statestherightto establisha territorialsea, 1Sayto establishaterritorialsea,

"up to a limit not exceeding 12nauticalmiles". Article 83,paragraph 1,doesnot containtheword

"not". Neither, if it is relevant,oes Article 74, paragraph 1. Both Article 83, paragraph 2, and

Article 74, paragraph 2, are also formulated in positive terms. The position is quite clear.

'SeeNPO,paras.7.18-7.25; CR9812,pp.48-49. - 58 -

Mr. BipounWoumaskedwhat wouldbe the sanctionfor violationof the obligation imposed

byArticle 83,paragraph 1(CR9814,p. 48). He seemedto thinkthatthe only rules of international

law are those rules which involve sanctions, in other words that the whole of international law

involvesthe law of State responsibility. Mr. President, Members ofthe Court, fortunatelythis is

not so. Thereare large areas of internationallaw which concern to regulatethe relations between

States but which are not concerned with State responsibility,with issues of delict and damages.

This is true for exarnpleof the law relating toterritorial sovereignty. Whether StateA or State B

has sovereignty over particular territory has not hitherto been seen as part of the law of State

responsibility; if it were, the settlement ofndary disputes wouldbe enormously complicated,

1
asSir Arthur has pointedout. The same istrueof the enormousnumber of proceduralrequirements

assumed by States in modem international law: these are real requirements, real procedural

obligations. Take, for exarnple,Article 102of the Charter. This requires registration oftreaties;

areStateswhichdo notregistertheir treatiesinternationallyresponsibleforthe failure? No one has

ever said so; the procedural obligation entails procedural consequences. So it is with the

procedural obligation contained in Articles 74, paragraph 1, and 83, paragraph 1, of the 1982

Convention; a reasonable attempt to agree on maritime delimitation is expressly stated to be a

preconditionfor peaceful settlement underArticles 74,paragraph 2, and 83, paragraph2. And as

1have shown,there has been no negotiationabout the areasbeyond PointG, no negotiationabout

the location of any agreedtripoint, let aloneabout the vastareas beyondthe tripoint, title to which W

Cameroon now claims.

Mr. Bipoun Woum further argued that the need to reach an agreement was "niune voie

exclusive,ni unevoie obligatoirede délimitation,et ellepeut ou noncoexister avec laprocédure

judiciaire"(CR 9814,p. 47). No one has eversaid itwas exclusive, ofcourse, and Article83 does

not Saythat. ButArticle 83, paragraph 1,does Sayit is obligatoryas a$rst step, andthe Court in

the NorthSeacasesexplainedwhy. It maybethat the obligationto negotiatethe continental shelf
1
is in the words of the Court in 1969 "a special application of a principle which underlies al1

international relations" (1C.J. Reports 1969, at p. 47, para. 86), but it is precisely a special

application, fomulated specifically in the sources from the Truman Proclamation to the 1982 - 59 -

Convention and since. And the idea that open negotiationsbetweentwo States can coexist with

litigationbetween those same States is implausibleandunrealistic. On the contrary, for one party

to commence litigation,preemptivelyand without negotiation,is virtually certain to preclude any

meaningfulnegotiationsthereafter. Thejudicial procedurewill take over; initial, perhaps extreme

positionswill become even more entrenched, andthe process of delimitationwill degenerate into

a dash for the courthouse door.

Mr. Bipoun Woum argued that this position amountedto a prohibitionagainst recourseto a

thirdparty "enl'absencedediscussionsprécisessur chaqueportion de cettedélimitation" (CR 9814,

p. 51). But the record shows, beyond Point G, not merely that there have been no precise

discussionson eachportion of the delimitation; it showsthere havebeenno discussionsaboutany

portionof it at all, and in particular about any portionof Carneroon'scurrent claim-line, from the

very instant of the tortoise'sdeparture along the Cameroon claim-linein a direction due west of

PointG. Not a word of discussion in the documents. Notthe trace of a record. That is the simple

fact. And it follows from that fact, Mr. President, Members of the Court, and from the clear

languageof Articles 74 and 83 of the Convention,that the Cameroonianclaim to maritime zones

beyond Point G is inadmissible.

E. Preliminary Objection8: ThisBoundary DelimitationDirectlyInvolves the Rights of Third
States

1 now turn to Nigeria's eighth Preliminary Objection, which concerns the impacts of

Cameroon'smaritime delimitation claim for third States,and in particular for Equatorial Guinea.

1havealready analysedthe claim-line,entitled "Theequitabledelimitation",with its consequences

for the areas prima facie appertainingto third States. No commentswere made on Friday, either

by Mr. Bipoun Woumor Mr. Highet, on the maps we showed. Thesecan thus be taken to reflect,

in a general way, the consequences of the Cameroon'sclaim. [SHOW MAP WITH TRIPOINT

SUPERIMPOSED]Nor was it deniedthat Cameroonis seeking a stripof maritime territory to the

south and east of the claim line, although we are still not told how wide it should be.

In this respect Mr. Highet'sspeech on Friday was as remarkable for its wealth of classical

allusion,as it was for its lack ofrelevancetorproblem. And perhapsthe mostremarkableaspect -60 -

of it was his failureto use two words, the word "Equatorial"and the word "Guinea". It is true he

didonce use the word Guinea, as a compound word alongwith "Bissau". Guinea-Bissauis a long

way away. Perhaps Zeno'stortoise would get there eventually, but it would take a long time.
.
The positionwithEquatorialGuinea,Mr. Highet'sforbiddenphrase, isquiteothenvise. Even

thetortoise would reach the environsof Equatorial Guineavery quickly, not to mention Achilles.

Andthe questioniswhetherthere is anybasis in the Court'sjurisprudence andpractice for deciding

on a bilateral delimitation ineas directly affecting Equatorial Guinea, areas around the limited

zonebetween Point G and the tripoint. [SHOW TUNISIA-LIBYA MAP]

Mr. Highet'sargument on this crucial point took two forms. First, he said there was an

impossible logical contradiction. Andhen he said the logical contradictioncould be resoived at *

the merits phase. Let me deal with the two arguments in tum.

First, the logical point. Lawyerswho are in difficulty over the facts are fond of logical

arguments. It is as if it helps to cover the fact that they have no clothes.l, Mr. Highet's

argument wasbased onZeno's paradoxof Achilles and the tortoise (CR 9814,p. 58). The Court

will no doubt recall that this is a mathematical paradox based on the propositionthat the sum of

thecontinued halvingof any number willnever reachthat number. So for example,if the number

is one, a half and a quarter and an eighth anda sixteenthand a thirty-second toinfinity will never

reachone - 1have alwayswantedto be a mathematicsteacher. Achilles will never, accordingto

this paradox, reach his tortoise because he will have to go first half way, and then half the
*
remaining distance,and so on to infinity. It is a charrningparadox,and al1we needed to knowon

Fridaywas its relevanceto Ourproblem. Because Ourproblem is that, within a very short distance

fromPoint G, we are in areas which veryprobably appertainto Equatorial Guinea,and whichthe

Court cannot havejurisdiction to delimit in these proceedings. It was from that brute fact that

Mr. Highet took refuge in his paradox. [SHOW CLAIM-LINEWITH TRIPOINT]

Now it may be accepted that this objection does not apply to the determination of Point G
*
itself,assuming for the moment that al1the other objectionsto the determinationof the maritime

boundary were overcome. It may also be accepted that itdoes not apply to the determination of

PointG plus 1 m, or 100m, areas still clearly much closer to either of the Parties on certain -61 -

assumptions than they are to any third State. But that does not justify Mr. Highet pursuing his

tortoise doggedly to the end of Cameroon'sclaim-line or anywhere remotely close to it. The

problem is quite different and it is revealed with perfect clarity in a key passageof Cameroon's

Memorial which 1cited last week, and which Mr. Highet completelyfailed to address. Carneroon

then said, and 1 repeat, that "a situation like the one prevailing in the present case requires a

collective balancingofthe equities,advantagesand disadvantagesamongthe differentStates along

the shores of the Bight of Biafra" (MC, para.5.114). If that is true, it followsthat Cameroon's

claim-line is globally inadmissible. The one thing the Court cannot do in these proceedings is to

engage in a collectivebalancing ofthe equities. For the Courtto assumejurisdiction over this case

would be to announce to the other States involved that the Court intends to engage in such a

"collective balancing"exercise, whatever the attitudesofhose States might be, whatever effect a

delimitation might have on them. It would very likely force those States to intervene, something

which the Court should not do and which it has repeatedlysaid it cannot do.

1stress, Mr. President, Members of the Court, that we are talking about the inadmissibility

of Cameroon's claim as formulated in its Application and Memorial, a claim to the global

delimitation of the waters beyond Point G out to 200 miles. Thatclaim is inadmissible;it goes

way beyond theCourt'sjurisdictionto determine as betweenNigeria and Cameroon. And it is too

late for Cameroon to withdraw that claim and to substitute a much more modest claim to the

delimitation of the waters clearly pertaining to Nigeria and Cameroon and falling short of any

version of the tripoint. Such a modestexercise, a sort of miniatureversion of whatthe Court did

in Tunisia/Libya,a cameo performanceoffshoreBakassior wherever,would be onething. [SHOW

CAMEROON'S OWNCLAIM-LINE]But what Cameroon seeksissomethingelseagain, a starring

role for the Court in the whole of the Gulf of Guinea, in which, however, Nigeria and Cameroon

would be two charactersin searchofthe rest of the cast. The Court cannot compelthe attendance

of the keyplayersinthatperformance,Equatorial Guineaand SaoTomeand Principe,and it should

not embark on a production that would require their attendance, if it was to be undertaken at all.

Thatbringsme to Mr.Highet'ssecond argument,which isthat al1this pertainsto the merits,

or at least is not exclusively preliminary. Accordingto Mr. Highet a claim to delimit a maritime - 62 -

zone can never, ever be inadmissible; itwill always pertain to the merits because it will always

require a considerationof the merits as between the parties,and third Stateswill never be affected

because of Article 59 of the Statute and their status as third parties (CR 9814,pp. 60-62). This

shows the extrernitiesto which Mr. Highet was driven in his search for an argument that would I

allow the Court to examine Cameroon's claim lineto engage in the collectivebalancing exercise.

It required him virtually to abolish the whole law of admissibility in relationto maritime claims.

It also required himto explain away the Court's approachin the LibyaIMaltacase. [SHOW

LIBYAMLTA MAP] Forthe Courtthere heldthat ithadnojurisdiction, 1repeat,nojurisdiction,

to delimit maritime areas claimed by a third State. And it did so in a much less extreme

geographicalcontextthan that of the Bight of Biafra. So whatdid Mr. HighetSayaboutthat case? w

Onlythat the Courtdealtwith the issue atthe merits phase(CR 9814,p. 61). He did not denythat,

sofar as areas claimed by Italy were concemed, the Court'sjurisdiction was at issue. He simply

said that the Court could protect third States (States whose names he could not bring himself to

pronounce) at the merits. But this ignores the obvious point that the Court cannot deal with the

merits in theseoverlapping areas. It is not a case of protecting; itinvolvesabstaining. The Court

should not, must not,agree to enterthe arena when it is clearthat, having done so, it must decline

to perform the role in which the Applicant has cast it. And there is absolutelyno reasonwhy the

Court should not take that decision now.

By way of illustration, let us assume that inLibydMalta, the only areas that the Court had i

beenasked to dealwith were the areasclaimed by Italy. Letus assumethatthe parties hadalready

delimited by agreementthe central area with which the Court actually dealt in its Judgment, and

thatthey wereaskingthe Court to dealwith the areasdisputedby Italy. 1sthere any doubtthat the

Court would have refused to do so, in the absence of Italy? [SHOW CAMEROON'SOWN

CLAIM-LINE] And in a case such as the present where that objection is properly made, in

accordance with the Statute and Rules, at a preliminary stage, why cannotit now be dealt with?

Cameroon'sclaim line is hopelessly inadmissible, is as such beyond the Court's jurisdictionto

decidein theseproceedings,forthereasons1gave lastweekand whichMr. Highet barelyattempted

to refute. But,he said, let us deal with it anyway, letus argue about the whole of that line for the - 63 -

next three years, let us deal with the interventionsfrom the othertwo States, if andwhen they are

made (Cameroonhas nottold us what its attitude would beto such interventions). And then letthe

Courtdeclineto decideas, followingLibya/Malta,it must,intheabsenceofthetwoaffectedStates.

That would be an exercisein futility. The lawof admissibilityexists precisely toenablethe Court

to avoid such exercises.

F. Conclusion

Mr. President, Members of the Court, for these reasons it is submitted thatthe issue of the

delimitation of the maritime boundary is inadmissible at this stage, and in particular, that it is

inadmissible as to the areas impinging on the potential claims of third States.

1 would now ask, Mr. President, that you call on the distinguished Agent for Nigeria to

conclude Ourpresentation. Thank you,Members of the Court.

The PRESIDENT: Thankyou, Professor Crawford. 1call on the distinguished Agentof

Nigeria, Minister Ibrahim.

Mr. IBRAHIM: Mr. President, distinguished Members ofthe Court.

Nigeria has doneitsbest to presentto the Courtthe arguments and evidencethat arerelevant

to its examination of the Preliminary Objections, and to avoid being drawn intodebates on other

matters that are not relevant.

Judge Guillaumeasked a questiononFriday afternoon,andwe will respondinwritingwithin

the time-limit then indicated.

Mr. President, distinguished Members of the Court, for the reasons that have been stated

either in writing or orally,Nigeria submits:

First Preliminary Objection

1.1.that Cameroon,by lodgingthe Application on 29 March 1994, violatedits obligations

to act in good faith, acted in abuse of the system established by Article 36, paragraph2, of the

Statute, and disregardedthe requirement of reciprocity establishedby Article 36, paragraph2, of

the Statute and the terms of Nigeria'sDeclaration of 3 September 1965; - 64-

1.2.that consequentlythe conditionsnecessaryto entitleCameroonto invokeitsDeclaration

under Article 36, paragraph 2, as a basis for the Court's jurisdiction did not exist when the

Application was lodged;

1.3.that accordingly, the Courts withoutjurisdiction to entertain the Application;

Second Preliminary Objection

2.1. that for a period of at least24 years prior to the filing of the Application,the Parties

have in theirregular dealingsaccepteda dutyto settle al1boundaryquestionsthroughthe existing

bilateral machinery;

2.1.1. that this course ofjoint conduct constitutesmplied agreementto resort exclusivelyto w

the existing bilateral machinery and notto invoke the jurisdiction of the Court;

2.1.2. that in the alternative, in the circumstancesthe Republic of Cameroon is estoppedom

invoking the jurisdiction ofthe Court;

Third Preliminary Objection

3.1. that without prejudice to the secondPreliminary Objection,the settlementof boundary

disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad

Basin Commission, and in this context the procedures of settlementwithin the Lake Chad Basin

Commission are obligatory for the Parties;

3.2. that the operation of the dispute settlement procedures of the Lake Chad Basin

Commissioninvolvedthenecessary implication,forthe relations ofNigeria and Camerooninter se,

that the jurisdiction of the Court by virtue of Article 36, paragraph2, would not be invoked in

relation to matters within the exclusive cornpetenceof the Commission;

Fourth Preliminary Objection

4.1. that the Court shouldnot in these proceedingsdeterminethe boundary in Lake Chad to
.
the extent that that boundary constitutes or is constituted by the tripoint in the Lake; -65 -

Fifth Preliminary Objection

5.1. that, without prejudice to the title of Nigeria over the Bakassi Peninsula, there is no

disputeconcemingboundarydelimitationas suchthroughoutthewhole lengthofthe boundary from

the tripoint in Lake Chadto the sea, and in particular:

(a) there is no dispute in respect of the boundary delimitationas such within Lake Chad, subject

to the question of title to Darak and adjacent islands inhabited by Nigerians;

(3) there is nodisputerelatingto theboundarydelimitationas such fromthetripoint in Lake Chad

to Mount Kombon;

(c) there isno disputerelatingto the boundary delimitationas such betweenboundarypillar 64 on

the Gamana River and Mount Kombon; and

(4 there is no dispute relating to the boundary delimitationas such between pillar 64 on the

Gamana River and the sea;

Sixth Preliminary Objection

6.1. thatthe Application(and sofaras permissible,subsequentpleadings)filedby Cameroon

does not meet the requiredstandard of adequacyas to the facts on which it is based, includingthe

dates,circumstancesandprecise locationsof the alleged incursionsand incidentsbyNigerian State

organs;

6.2. that those deficiencies make it impossible

(a) for Nigeria to have theknowledge towhich it is entitledof the circumstanceswhich are said

by Cameroonto resultin Nigeria's internationalresponsibilityand consequentialobligationto

make reparation; and

(b) for the Court to carry out a fair and effective judicial examination of, or make a judicial

determination on, the issues of State responsibility and reparation raised by Cameroon;

6.3. that accordinglyal1the issuesof Stateresponsibilityand reparation raisedby Cameroon

in this context should be declared inadmissible; 6.4. that, without prejudice to the foregoing, any allegations by Cameroon as to State

responsibility or reparation on the part of Nigeria in respect of matters referred to in

paragraph 17 03 of Cameroon'samendingApplication of 6 June 1994are inadmissible;

Seventh Preliminary Objection

7.1.that there is no legaldisputeconceming delimitationof the maritimeboundarybetween

the two Parties which is at the present time appropriate for resolution by the Court, for the

following reasons:

(1) no determination of a maritime boundary is possible prior to the determination of title in

respect of the Bakassi Peninsula;
w
(2) in any event,the issues of maritimedelimitation are inadmissible in the absenceof sufficient

action by the Parties, on a footingof equality, to effect a delimitation "by agreement on the

basis of international law";

Eighth Preliminary Objection

8.1.that the question of maritimedelimitationnecessarilyinvolvesthe rightsand interestsof

third States and is inadmissible beyondPoint.

Accordingly,Nigeria formally requests the Court to adjudge and declarethat:

(1) it lacksjurisdiction over the claims brought against the Federal Republic of Nigeria by the

Republic of Cameroon; andlor

(2) the claims brought against the FederalRepublic of Nigeria by the Repubiic of Cameroon are

inadmissibleto the extent specified in the Preliminary Objections.

Mr.President,that completesNigeria's presentationof its PreliminaryObjections. Wethank

the Court for its attention and courtesy.

ThePRESIDENT: Thankyouverymuch. ThatconcludesNigeria'spresentation. TheCourt

will adjoum and meet on Wednesdayfor the reply of Cameroon. The Court is adjourned.

TheCourt rose at I p.m.