Public sitting held on Thursday 14 March 2002, at 3 p.m., at the Peace Palace, President Guillaume presiding

1 ~ok~orri~é ,1
Uncorrected

CR2002/19

Courinternationale InternationalCourt
deJustice ofJustice

LAHAYE THEHAGUE

Audiencepublique

tenuelejeudiars200à15heures, au Palais delaPaix,
souslaprésidencedeM. Guillaume,président,

en l'affairedelaFrontièreterrestreetmaritime entrele Camerounet leNigéria
(Camerounc. Nigéria;Guinéeéquatoriale(intervenant))

COMPTERENDU

YEAR2002

Publicsitting

held on Thursday14March 2002,at3p.tn.1,atthePeace Palace,

PresidentGuillaumepresiding,

inthe caseconcerningthe Land andMaritimeBoundarybetweenCameroonandNigeria
(CamerooNigeria: EquatorialGuineaintervening)

VERBATIMRECORDPrésents M. Guillaume,président
M. Shi,vice-président
MM. Oda

Ranjeva
Herczegh
Fleischhauer
Koroma
Mme Higgins
MM. Parra-Aranguren
Kooijmans

Rezek
Al-Khasawneh
Buergenthal
Elaraby,juges
MM. Mbaye
Ajibola,juges ad hoc

M. Couvreur,greffierPresent: President Guillaume
Vice-President Shi
Judges Oda

Ranjeva
Herczegh
Fleischhauer
Koroma
Higgins
Parra-Aranguren
Kooijmans

Rezek
Al-Khasawneh
Buergenthal
Elaraby
Judgesad hoc Mbaye
Ajibola

Registrar CouvreurLe Gouvernemend t ela Républiquedu Camerounestreprésentépa r

S. Exc.M.Amadou Ali, ministredYEtatchargéde lajustice, gardedessceaux,
*

commeagent;

M. MauriceKamto, doyen de la facultédes sciences juridiques et politiques de l'université de
YaoundéII, membrede la Commissiondudroit international,avocatau barreaude Paris,

M. PeterY.Ntamark,professeur a la facultédessciencesjuridiques et politiquesde l'universitéde
YaoundéII, Barrister-ut-Law,membrede171nneT r emple, anciendoyen,

commecoagents,conseilsetavocats;

M. AlainPellet, professeuràl'universitéde Paris X-Nanterre, membre et ancienprésidentde la
Commissiondudroit international,

commeagent adjoint, conseilet avocat;

M. Joseph Marie Bipoun Woum,professeur à la facultédes sciencesjuridiques et politiques de
l'universitédeYaoundéII,ancien ministre,ancien doyen,

commeconseillerspécialetavocat;

M. MichelAurillac,ancienministre,conseillerd'Etathonoraire,avocaten retraite,

M. Jean-PierreCot,professeural'universitéde Paris 1(Panthéon-Sorbonne)a,ncienministre,

M. MauriceMendelson,Q. C., professeuréméritede l'universitédeLondres, Barrister-ut-Law,

M. MalcolmN. Shaw, professeur à la facultéde droit de l'université deLeicester,titulaire de la
chairesir RobertJennings, Barrister-ut-Law,

M. BrunoSimma, professeur à l'université deMunich, membre de la Commission du droit
international,

M. ChristianTomuschat, professeuràl'universitéHumbold de Berlin, ancien membre et ancien
présidentde la Commissiondudroit international,

M. OlivierCorten,professeurà laFacultédedroit del'universitélibrede Bruxelles,

M. DanielKhan, chargéde cours à l'Institutde droit internationaldel'universitédeMunich,

M. Jean-Marc Thouvenin, professeur à l'université de Paris X-Nanterre, avocat au barreau de
Paris,société d'avocatsysias,

commeconseilset avocats;TheGovernmentof theRepublicof Camerounis representedby:

H.E.Mr.Amadou Ali,Minister of State responsible forJustice,Keeperof the Seals,

asAgent;

Mr. Maurice Kamto, Dean, Faculty of Law and Political Science, University of YaoundéII,
memberof the InternationalLawCommission,Avocatat the Paris Bar,Lysias Law Associates,

Mr. PeterY. Ntarnark,Professor, Faculty of Law and Political Science,University of YaoundéII,

Barrister-at-Law, memberofthe Inner Temple,formerDean,

as Co-Agents,CounselandAdvocates;

Mr. AlainPellet, Professor,University of ParisX-Nanterre,member and former Chairman of the
InternationalLawCommission,

as DepuîyAgent,Counseland Advocate;

Mr. Joseph-Marie Bipoun Woum,Professor, Faculty of Law and Political Science,University of
YaoundéII, former Minister, formerDean,

as Special Adviserand Advocate;

Mr. MichelAurillac, formerMinister, HonoraryConseillerd'État, retiredAvocat,

Mr. Jean-Pierre Cot,Professor,UniversityofParis 1(Panthéon-Sorbonne), formeM r inister,

Mr. Maurice Mendelson, Q.C.,EmeritusProfessor Universityof London,Barrister-at-Law,

Mr. Malcolm N. Shaw, Sir Robert Jennings Professor of International Law, Faculty of Law,
Universityof Leicester,Barrister-at-Law,

Mr. Bruno Simma, Professor, University of Munich, member of the International Law
Commission,

Mr. Christian Tomuschat, Professor, Humboldt Universiw of Berlin, former member and

Chairman,InternationalLawCommission,

Mr. OlivierCorten, Professor,Facultyof Law,Universitélibre de Bruxelles,

Mr. DanielKhan, Lecturer, InternationalLawInstitute,UniversityofMunich,

Mr. Jean-Marc Thouvenin, Professor, University of Paris X-Nanterre, Avocatat the Paris Bar,
LysiasLaw Associates,

as Counsel andAdvocates;SirIan Sinclair, K.C.M.G., Q.C., Barrister-ut-Law, ancien membre de la Commission du droit
international,

M. Eric Diarnantis,avocataubarreaudeParis,Moquet,Bordes & Associés,

t
M.Jean-PierreMignard, avocataubarreaudeParis, sociétéd'avocatL sysias,

M. Joseph Tjop, consultanà la société d'avocasysias, chercheurau Centrede droit international
de Nanterre(CEDIN), UniversitéParis X-Nanterre,

commeconseils;

M.Pierre Semengue,générad l'armée,contrôleurgénérad les armées,ancienchef d'état-majordes
armées,

M. James Tataw, générad le division,conseillerlogistique, ancienchef d'état-major de l'aeeéd

terre,

S.Exc. MmeIsabelle Bassong, ambassadeur du Cameroun auprès des pays du Benelux et de
l'Union européenne,

S.Exc. M.BiloaTang, ambassadeurdu Camerounen France,

S.Exc. M.MartinBelingaEboutou, ambassadeur, représentanp termanentdu Cameroun auprès de
l'organisation desNationsUnies àNew York,

M.Etienne Ateba, ministre-conseiller, chargéd'affaires a.i. à l'ambassade du Cameroun,
à La Haye,

M. Robert Akamba, administrateur civil principal, charde mission au secrétariat générdle la
présidencede la République,

M. Anicet Abanda Atangana, attaché au secrétariagténérad l e la présidencede la République,
chargédecours à l'universitédeYaoundéII,

M.Emest BodoAbanda, directeurducadastre,membredelacommissionnationaledesfrontières,

M.OusmaneMey, anciengouverneurde province,

Le chef SamuelMoka LiffafaEndeley,magistrathonoraire, Barrister-at-Law, membre du Middle

Temple (Londres),ancienprésidentde la chambreadministrativedelaCour suprême,

MeMarc Sassen,avocat etconseiljuridique, sociétéPetten,Tideman & Sassen(La Haye),

M. Francis Fai Yengo, ancien gouverneur de province, directeur de l'organisation duterritoire,
ministèrede l'administration temtoriale,

M. Jean Mbenoun, directeurde l'administrationcentrale au secrétariatgénérle la présidencede
la République,Sir Ian Sinclair, K.C.M.G., Q.C.,Barrister-at-Law, former member of the International Law
Commission,

Mr.Eric Diamantis,Avocatat the ParisBar, Moquet, Bordes& Associés,

Mr.Jean-PierreMignard,Avocatatthe ParisBar,Lysias LawAssociates,

Mr. Joseph Tjop, Consultant to Lysias Law Associates, Researcher at the Centre de droit
international de Nanterre (CEDIN),Universityof Paris X-Nanterre,

asCounsel;

General Pierre Semengue, Controller-Generalof the Armed Forces, former Head of Staff of the
Armed Forces,

Major-GeneralJames Tataw, LogisticsAdviser,FormerHeadof Staff ofthe Army,

H.E.Ms IsabelleBassong, Ambassadorof Cameroonto the Benelux Countries and to theEuropean
Union,

H.E.Mr. BiloaTang,Ambassadorof Cameroonto France,

H.E. Mr. Martin Belinga Eboutou, Ambassador, PermanenR t epresentative of Cameroon to the
United NationsinNewYork,

Mr. Etienne Ateba, Minister-Counsellor, Chargé d'affairesa.i. at the Embassy of Cameroon,
The Hague,

Mr. Robert Akamba, Principal CivilAdministrator,Chargéde mission, General Secretariatof the
Presidencyof the Republic,

Mr.Anicet AbandaAtangana,Attachéto the GeneralSecretariatof the Presidency of the Republic,

Lecturer,UniversityofYaoundéII,

Mr. Emest Bodo Abanda, Director of the Cadastral Survey, member, National Boundary
Commission,

Mr.OusmaneMey,former ProvincialGovemor,

Chief Samuel Moka Liffafa Endeley, HonoraryMagistrate, Barrister-at-Law, member of the
Middle Temple (London), former President of the Administrative Chamber of the Supreme
Court,

MaîtreMarcSassen,AdvocateandLegal Adviser,Petten,Tideman & Sassen(TheHague),

Mr.FrancisFai Yengo, formerProvincial Govemor,Director, Organisation du Territoire, Ministry
of TerritorialAdministration,

Mr. Jean Mbenoun, Director,CentralAdministration,General Secretariatof the Presidency of the
Republic,M. Edouard Etoundi, directeur de l'administration centraleau secrétariat générdle la présidence
de la République,

M. Robert Tanda,diplomate,ministèredesrelations extérieures

commeconseillers; *

M. Samuel Betah Sona, ingénieur-géologue e,xpert consultantde l'organisation des NationsUnies
pour le droitde lamer,

M. Thomson Fitt Takang, chef de service d'administration centraleau secrétariatgénéralde la
présidencede la République,

M. Jean-JacquesKoum, directeur de l'exploration, sociétéationale deshydrocarbures(SNH),

M.Jean-Pierre Meloupou, capitaine de frégate, chef dela division Afnque au ministèrede la
défense,

M. Paul MobyEtia, géographe,directeurde l'Institutnationalde cartographie,

M.AndréLoudet,ingénieurcartographe,

M.AndréRoubertou,ingénieurgénérad le l'armement,hydrographe,

commeexperts;

MmeMarie FlorenceKollo-Efon,traducteurinterprèteprincipal,

comme traducteurinterprète;

Mlle CélineNegre, chercheurau Centrede droit internationalde Nanterre (CEDIN),Universitéde
Paris X-Nanterre

Mlle SandrineBarbier, chercheur auCentrede droit internationalde Nanterre(CEDIN),Université
de Paris X-Nanterre,

M. Richard Penda Keba, professeur certifié d'histoire,cabinet du ministre de la justice, ancien
proviseurde lycées,

comme assistantsderecherche;

M. Boukar Ournara,

M. Guy RogerEba'a,

M. Aristide Esso,

M.Nkende Forbinake,

M.Nfan Bile,Mr. Edouard Etoundi, Director, Central Administration,General Secretariat of the Presidency of
theRepublic,

Mr. RobertTanda, diplomat,Ministryof Foreign Affairs,

asAdvisers;

Mr. SamuelBetah Sona,Geological Engineer, ConsultingExpert to the UnitedNationsfor the Law
oftheSea,

Mr. Thomson Fitt Takang, DepartmentHead, Central Administration, General Secretariat of the
Presidencyof theRepublic,

Mr. Jean-JacquesKoum,Directorof Exploration,NationalHydrocarbonsCompany (SNH),

CommanderJean-Piene Meloupou, HeadofAfrica Divisionat the Ministry ofDefence,

Mr. PaulMoby Etia,Geographer,Director,Institut nationalde cartographie,

Mr. AndréLoudet,CartographieEngineer,

Mr. AndréRoubertou,MarineEngineer,Hydrographer,

asExperts;

Ms MarieFlorenceKollo-Efon,PrincipalTranslator-Interpreter,

as Translator-Interpreter;

Ms CélineNegre, Researcher, Centre d'études de droit international de Nanterre (CEDIN),
Universityof Paris X-Nanterre,

Ms Sandrine Barbier, Researcher, Centre d'étudesde droit international de Nanterre (CEDIN),
Universityof Paris X-Nanterre,

Mr. Richard Penda Keba, Certified Professor of History, cabinet of the Minister of State for

Justice,formerHead of HighSchool,

asResearchAssistants;

Mr. BoukarOumara,

Mr. GuyRoger Eba'a,

Mr. AristideEsso,

Mr. NkendeForbinake,

Mr. NfanBile,M. Eithel Mbocka,

M. Olinga Nyozo'o,

commeresponsables de la communication;

Mme RenéeBakker,

Mme LawrencePolirsztok,

Mme MireilleJung,

M.Nigel McCollum,

Mme Tete BéatriceEpeti-Kame,

commesecrétairesde la délégation.

Le Gouvernement dela Républiquefédérale du Nigériaestreprésentépar :

S.Exc. l'honorable Musa E.Abdullahi, ministred7Etat,ministre de la Justice du Gouvernement
fédéradluNigéria,

commeagent;

Le chef RichardAkinjideSAN, ancien Attorney-Generalde la Fédération,membre du barreau

d'Angleterreet dupays de Galles, ancien membrede la Commissiondu droit international,

M.Alhaji Abdullahi Ibrahim SAN, CON, commissaire pour les frontières internationales,
commissionnationaledes frontièresduNigéria,ancienAttorney-Generalde laFédération,

commecoagents;

MmeNella Andem-Ewa,Attorney-Generalet commissaire àlajustice, Etat de CrossRiver,

M. Ian Brownlie, C.B.E., Q.C.,membre de la Commission du droit international, membredu
barreaud'Angleterre,membre del'Institutde droit international,

SirArthur Watts, K.C.M.G., Q.C.,membre du barreau d'Angleterre,membre de l'Institut de droit

international,

M.James Crawford,S.C.,professeurde droit internationalà l'universitéde Cambridge, titulairede
la chaire Whewell,membre des barreauxd'Angleterreet d'Australie, membre de l'Institutde
droit international,

M. Georges Abi-Saab, professeur honoraire à l'Institut universitaire de hautes études

internationalesde Genève,membrede l'Institutde droit international,

M. AlastairMacdonald,géomètrea ,ncien directeurde 170rdnanceSuwey, Grande-Bretagne,

commeconseilset avocats;

M. Timothy H. Daniel, associé,cabinetD. J. Freeman, Solicitors, Cityde Londres,Mr. EithelMbocka

Mr. OlingaNyozo'o,

as Media Oflcers;

Ms RenéBakker,

Ms LawrencePolirsztok,

Ms MireilleJung,

Mr. NigelMcCollum,

Ms TeteBéatriceEpeti-Kame,

as Secretaries.

TheGovernmentoftheFederalRepublicofNigeriais representedby:

H.E. theHonourableMusaE. Abdullahi,Ministerof State forJusticeofthe Federal Governmentof
Nigeria,

asAgent;

Chief Richard AkinjideSAN, Former Attorney-Generalof the Federation, Memberof the Bar of
Englandand Wales,formerMemberof theInternationalLaw Commission,

AlhajiAbdullahi IbrahimSAN, CON, Commissioner,International Boundaries, National Boundary
CommissionofNigeria,Former Attorney-General ofthe Federation,

as Co-Agents;

Mrs.NellaAndem-Ewa, Attorney-GeneralandComrnissionerforJustice,CrossRiverState,

Mr. Ian Brownlie, C.B.E., Q.C.,Member of the International Law Commission, Member of the

EnglishBar, Memberof the Instituteof InternationalLaw,

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

Mr. James Crawford,S.C., Whewell Professor of International Law, University of Cambridge,
Memberof the Englishand AustralianBars,Memberof the Instituteof International Law,

Mr. Georges Abi-Saab, Honorary Professor,Graduate Institute of International Studies, Geneva,
Memberof the Instituteof InternationalLaw,

Mr. Alastair Macdonald,Land Surveyor,FormerDirector,Ordnance Survey,Great Britain,

as Counsel andAdvocates;

Mr. TimothyH. Daniel,Partner, D.J. Freeman, Solicitors,City of London,M. Alan Perry,associé, cabinetD.J.Freeman,Solicitors,City deLondres,

M. David Lerer, solicitor, cabinetD.J. Freeman,Solicitors,Cityde Londres,

M. Christopher Hackford,solicitor, cabinetD.J.Freeman,Solicitors,Cityde Londres,

MmeCharlotteBreide, solicitor, cabinetD. J. Freeman,Solicitors,City deLondres,

M.Ned Beale,stagiaire,cabinet D.J.Freeman,Solicitors,Cityde Londres,

M.GeoffreyMarston, directeur du départementdes études juridiquesau Sidney Sussex College,
Universitéde Cambridge,membredu barreaud'Angleterreet du Pays deGalles,

M. MaxwellGidado, assistant spécial principaldu président pour les affaires juridiques et

constitutionnelles,ancienAttorney-Generaletcommissaire à la Justice,Etat d'Adamaoua,

M. A. O.Cukwurah, conseil adjoint, ancien conseilleren matièrede frontières(ASOP) auprèsdu
Royaume du Lesotho,ancien commissairepourles frontières inter-Etats, commission nationale
des frontières,

M. 1.Ayua,membre del'équipe juridique du Nigéria,

M. K. A. Adabale,directeurpour ledroit internationalet le droitcomparé,ministèredelajustice,

M. Jalal Arabi,membre de l'équipejuridique duNigéria,

M. Gbola Akinola,membrede l'équipe juridique duNigéra,

M. K. M.Tumsah, assistantspécialdu directeurgénéral de la commissionnationale des frontières

et secrétairede l'équipe juridique,

commeconseils;

S.Exc. l'honorableDubemOnyia,ministre d'Etat,ministre desaffaires étrangères,

M. Alhaji DahiruBobbo,directeurgénéralc ,ommissionnationaledes frontières,

M.F. A. Kassim,directeurgénérad lu service cartographiquede la Fédération,

M.Alhaji S.M.Diggi, directeurdesfrontièresinternationales,commissionnationale des frontières,

M. A. B.Maitama,colonel,ministèrede la défense,

M. Aliyiu Nasir,assistantspécialduministre d7Etat,ministrede la Justice,

commeconseillers:

M. Chris Carleton,C.B.E.,bureau hydrographiquedu Royaume-Uni,

M.Dick Gent,bureau hydrographiquedu Royaume-Uni,

M. Clive Schofield,unitéde recherchesur lesfrontièresinternationales,UniversitédeDurham,

M. Scott B.Edmonds,directeurdesopérationscartographiques,International MappingAssociates,Mr.Alan Perry,Partner,D.J. Freeman, Solicitors, Cityof London,

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

Mr.ChristopherHackford,Solicitor,D.J. Freeman,Solicitors,City of London,

MsCharlotteBreide, Solicitor,D. J. Freeman, Solicitors, City ofLondon,

Mr.Ned Beale,Trainee,D.J. Freeman, Solicitors, Cityof London,

Dr. GeoffreyMarston, Fellowof SidneySussex College, Universityof Cambridge; Memberofthe
Bar of Englandand Wales,

Mr. Maxwell Gidado, SeniorSpecialAssistantto the President(Legal and Constitutional Matters),

Former Attorney-Generaland CommissionerforJustice, Adamawa State,

Mr. A. O. Cukwurah, Co-Counsel, FormerUN (OPAS) Boundary Adviser to the Kingdom of
Lesotho, FormerCommissioner,Inter-State Boundaries, National Boundary Commission,

Mr. 1.Ayua, Mernber,Nigerian LegalTeam,

Mr. K. A. Adabale,Director(Internationaland Comparative Law) Ministryof Justice,

Mr.Jalal Arabi, Member,Nigerian LegalTeam,

Mr.Gbola Akinola, Member, Nigerian LegaT l eam,

Mr. K. M. Tumsah, Special Assistantto Director-General, NationalBoundary Commission and
Secretarytothe LegalTeam,

as Counsel;

H.E.the Honourable DubemOnyia,Ministerof Statefor ForeignAffairs,

AlhajiDahiruBobbo, Director-General, NationaBl oundw Commission,

Mr. F.A. Kassim, Surveyor-Generalofthe Federation,

AlhajiS. M.Diggi,Director(International Boundaries), National oundaryCommission,

Colonel A. B.Maitama,Ministry of Defence,

Mr.Aliyu Nasir,SpecialAssistantto the Ministerof State for Justice,

asAdvisers;

Mr.Chris Carleton,C.B.E.,United KingdomHydrographic Office,

Mr.Dick Gent, UnitedKingdomHydrographicOffice,

Mr.Clive Schofield,InternationalBoundaries ResearchUnit,Universityof Durham,

Mr.Scott B. Edmonds,Directorof CartographicOperations, InternationalMappingAssociates,M. RobertC. Rizzutti,cartographeprincipal,International MappingAssociates,

M. Bruce Daniel,International MappingAssociates,

MmeVictoriaJ.Taylor,International MappingAssociates,

MmeStephanieKim Clark,International MappingAssociates,

M. RobinCleverly,Exploration Manager, NPAGroup,

MmeClaire Ainsworth,NPAGroup,

commeconseillersscientifiquesettechniques;

M. MohammedJibrilla, experten informatique,commissionnationaledes frontières,

MmeCoralie Ayad,secrétaire,cabinetD. J. Freeman,Solicitors,Cityde Londres,

MmeClaire Goodacre,secrétaire, cabineD t . J. Freeman,Solicitors,City de Londres,

MmeSarahBickell, secrétairec ,abinetD.J. Freeman,Solicitors,City de Londres,

MmeMichelleBurgoine, spécialiste en technologie de l'information, cabinet D. J.Freeman,

Solicitors,Cityde Londres,

commepersonnel administratif;

M. GeoffreyAnika,

M. MauOnowu,

M. Austeen Elewodalu,

M. UsmanMagawata,

commeresponsablesde la communication.

Le Gouvernementde la Républiquede Guinéeéquatoriale,qui est autorisée à intervenirdans
1'instance,estreprésentépar :

S. Exc. M. Ricardo MangueObamaN'Fube, ministre dYEtat,ministre du travail et de la sécurité

sociale,

commeagent et conseil;

S.Exc.M. RubénMaye NsueMangue, ministre de la justice et des cultes, vice-présidentde la
commissionnationale desfrontières, C

S.Exc. M. CristobalMafianaEla Nchama,ministre des mines et de l'énergie,vice-présidentde la
commissionnationaledesfrontières,

M. DomingoMbaEsono, directeur national de la société nationale de pétrole de
Guinée équatorialem, embrede la commissionnationaledesfrontières,Mr.RobertC.Rizzutti, Senior Mapping Specialist, InternationaMl apping Associates,

Mr.Bruce Daniel, InternationalMappingAssociates,

MsVictoria J.Taylor, International Mapping Associates,

MsStephanieKim Clark,InternationalMappingAssociates,

Dr.Robin Cleverly, Exploration Manager, NPA Group,

MsClaireAinsworth, NPA Group,

as Scientificand TechnicalAdvisers;

Mr. MohammedJibrilla, Computer Expert, NationalBoundary Commission,

MsCoralieAyad,Secretary,D. J. Freeman, Solicitors,City of London,

MsClaireGoodacre, Secretary,D. J.Freeman, Solicitors, Cityof London,

MsSarahBickell, Secretary,D. J.Freeman, Solicitors,City of London,

MsMichelleBurgoine, ITSpecialist,D.J. Freeman,Solicitors,City ofLondon,

as Administrators,

Mr.GeoffreyAnika,

Mr. Mau Onowu,

Mr..4usteenElewodalu,

Mr.Usman Uagawata,

as .\iedia Officers.

TheGovernmentof theRepublicofEquatoria1Guinea, whichhas beenpermitted tointervenein
ritcase, isrepresentedby:

H.E.hlr.RicardoMangueObarnaN'Fube,Minister ofStateforLabor and Social Security,

as .Agentand Counsel;

H.E. Mr. RubénMaye Nsue Mangue, Minister of Justice and Religion, Vice-President of the
NationalBoundaryCommission,

H.E. Mr. Cristobal Mafiana Ela Nchama, Ministerof Mines and Energy, Vice-President of the
NationalBoundaryCommission,

Mr. Domingo Mba Esono, National Director of the Equatorial GuineaNational Petroleum
Company, Memberof the National Boundary Commission,M. AntonioNzambi Nlonga,Attorney-General,

commeconseillers;

M. Pierre-Marie Dupuy, professeur de droit international publià l'université de Paris
(Panthéon-Assas)etàl'InstitutuniversitaireeuropéendeFlorence,

M. DavidA.Colson, membre du cabinet LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
Washington,D.C., membre du barreau de I7Etat de Californie et du barreau du district de
Columbia,

commeconseilset avocats;

Sir DerekBowett,

commeconseilprincipal,

M. DerekC. Smith, membre du cabinet LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
Washington,D.C., membre du barreau du district de Columbia et du barreau de 1'Etat
de Virginie,

commeconseil;

Mme JannetteE. Hasan, membre du cabinet LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
Washington, D.C., membre du barreau du district de Columbia et du barreau de 17Etatde
Floride,

M. HervéBlatry, membredu cabinet LeBoeuf,Lamb, Greene& MacRae,L.L.P.,Paris, avocaàla
Cour,membredu barreaude Paris,

commeexpertsjuridiques;

M. CoalterG.Lathrop,SovereignGeographicInc., ChapelHill, CarolineduNord,

M. AlexanderM. Tait,Equator Graphies,SilverSpring,Maryland,

commeexperts techniques.Mr. AntonioNzambi Nlonga,Attomey-General,

asAdvisers;

Mr. Pierre-Marie Dupuy, Professor of Public International Law at the University of Paris

(Panthéon-Assas)andat the European UniversityInstitutein Florence,

Mr. David A. Colson, LeBoeuf, Lamb, Green& MacRae, L.L.P.,Washington,D.C., member of
the CaliforniaStateBarand Districtof ColumbiaBar,

asCounseland Advocates;

SirDerekBowett,

asSenior Counsel;

Mr. DerekC. Smith, LeBoeuf, Lamb,Greene& MacRae, L.L.P.,Washington,D.C.,memberof the
Districtof ColumbiaBarand VirginiaStateBar,

asCounsel;

Ms JannetteE.Hasan, LeBoeuf,Lamb,Greene & MacRae, L.L.P., Washington,D.C., member of
the Districtof ColumbiaBar andFloridaStateBar,

Mr. HervéBlatry, LeBoeuf,Lamb, Greene& MacRae, L.L.P.,Paris, Avocàtla Cour, memberof

theParisBar,

asLegalExperts;

Mr. CoalterG. Lathrop, SovereignGeographicInc.,Chape1Hill,NorthCarolina,

Mr. AlexanderM. Tait,EquatorGraphics,SilverSpring,Maryland,

as TechnicalExperts. Le PRESIDENT :Veuillezvous asseoir. La séanceest ouverte etje donnela parole au nom

de laRépubliquefédérale dN uigéria,a M. AlastairMacdonald.

Mr. MACDONALD: Merci,Monsieur le président.

LAND BOUNDARY

1. Mr. President, distinguishedMembers of the Court, it is a great honourfor me to address

you again for a second time. On this occasion, 1have only nine simple mapsto show you, and1

willkeepmy feetfirmlyplantedonthe ground.

2. My first speech last week demonstrated why Nigeria believes that there are serious

problemsof delimitationon thoseparts of the landboundary coveredby the 1931Declarationand

the 1946 Order in Council. In the course of Cameroon's second round oral pleadings on

Monday11March, ProfessorSimma paid me the compliment of a prolonged attack on this

demonstration. However, the Agent for Cameroon, in his speech to the Court on Tuesday,

acknowledgedthat Cameroon would no longer seek to oppose Nigeria's claim that parts of the

delimitation instruments are defective and require amendment, by saying: "Nous nous en

remettons,Madameet Messieursde la Cour,entièrement à votrejugement sur .cepoint.'

3. Mr. President, distinguishedMembers of the Court, facedwith this changeof position by

Cameroon,1will tryto reassureyouthat you dohavethe materialsat your disposa1for this task. In

the courseof doingso, 1proposeto dealwith the criticismsmadeby ProfessorSimmaofNigeria's

maps and its boundary alignmentand his claim that the existingboundary instruments provide a

sounddelimitation. 1am sony that he has had to leave and cannot hear my response in person.

First,however, 1would liketo explainthe confusionthat M.Pellet identified2,about the length of

the boundq used byNigeria initspleadings.

4. Let me Say straightaway that in including an overall length of the boundary in its

pleadings, Nigeriawas only providingthe context forthe Court. Nigeria didnot considerthat this

length would be a determining factor in the case. Our first length of 1,600km was a rough

estimatemade at the time of OurCounter-Memorial. This converts to 1,000miles. Our second

'CR 2002117p. 65, para.4 (Mr.Ali).

2~~ 200215,pp.24-25,para23(Mr. Pellet).estimate at the time of the Reply resultedfiom Ourmore detailedinvestigations which took into

accountthe twistand tums of the boundarywhen exarninedonmapsat 1:50,000scale. Thisgave a

greater distanceof 1,840 km. Because we were only using the length of the boundary in an

indicativesense,we rounded it downto the nearest 100km as 1,800km- but we convertedthe

original figure of 1,84kmto 1,150milesand roundedthat up. Nigeria can only apologizefor the

confusion thishas causedand suggestwith respectthat the Courtuse the figure of 1,800 km as a

generaland approximateindicationof boundary length.

Cameroon's clairnto have not submitted an alignment itself

5. 1now tum to Professor Simma'scriticismsof my firstround speech. First, he3referredto

Nigeria's boundary line setout in detailin the atlassubmittedwith its Rejoinder. He went on to

remindthe Court that:

"Cameroon onits part hasnever considered offeringthe Courtany similar line,

because Cameroon,as the Applicant in thepresent proceedings, has formulated its
claim as not to go beyond an authoritative confirmationby the Court of the validity
and applicability ofthe boundary instruments".

Mr.President,may 1referthe Courttothe table in Chapter6 ofthe CameroonReply, a copyof the

secondpage of which isattab 10of the judges' folder. Thetext in Chapter6 explainsthe contents

ofthe table. Inparticular,paragraph 6.04says this:

"The mapsreferred to in column 7 are the officia1maps to which the relevant
legal instruments refer. Thus, the representations onthese maps- in particular,the
line of the boundary- express the agreementof the contracting Parties. The lasttwo

columnsofthe tablesummarizethe respectivepositionsofthe Parties."

6. Though the columnsare not numbered, column7 appearsto be the colurnnheaded "Atlas

Carte No". And what dowe find in this column, Mr. President?A list of Cameroon'sown atlas

maps extracted fromits 1 :200,000mapseries. Andwhat doesCameroonSayof them? It saysthat

the representations onthese maps- in particular the boundary line- express the agreementof

the contracting Parties.That is a very sweeping claim, Mr. President,which, of course, Nigeria

disputes. 1sit any wonderthat Nigeria felt the needto submitits own line to the Court with its

Rejoinder?

3~~ 2002115, p. 49, p15(Mr. Simma).Cameroon's criticism of the maps used by Nigeria

7. Professor Simma then suggested4that Nigeria'suse of "composites", "topographic maps"

and its references to Nigerian and Cameroonian rnap sources were both contradictory and

misleading. Mr.President, 1welcomethe opportunityto clarifj thesematters forthe Courtand for

Ouropponents.

8. Here onscreen is anexarnpleof a compositernapproducedfiom Nigerian and Cameroon

rnapsources andsubmittedin Our~ejoinder'. It is alsoat tab 11. Let me now deal with counsel's

questions. How was it produced? By scanningboth the DOS and the IGN maps, mergingthem

together using computersoftwareand then printing out the resulting combination. To what end?

Mr.President,thereis no mystery. The mapsof one countryportraythe otherin limited detail. So

Ourpurpose wassimply to showthe Courtwhere we believe the boundary torun, in the contextof

the bestpossible portrayal of the terrain on both sides of the line. Nigeria believes thatthisbroad

viewhelps boththe Court andthe Partiesto better understandthe circumstances.

9. Did we display compositemaps merged fiom the two sources in Ourdisplay lastweek?

Of course we did. If the Courtwould be kind enoughto look again at the rnap on screen- and

now compareitwiththis rnapfrom last week'spresentation- alsoat tab 12,you will seethatthey

arebasicallythe same. Al1wedid was to enlargelastweek'srnapforgreater clarity.

10. What did 1 mean by "topographic maps"? 1 used the tenn to describe al1the maps,

whethercompositedor simply taken fiomNigerian sourcesalone,which 1used inmy presentation.

Theterm is a genericone andwas used assuch.

11. Mr. President, counsel's questionshave simple and transparent answers which Nigeria

has been happy to give. Thesequestions in no way "seriously diminishthe evidentialvalueof the

entirepresentation"6as ProfessorSimmawouldhave youbelieve.

12. But before 1 move on, can 1 ask the Court to look at the area at an even greater

enlargement- this is at tab13- and to note how detail fiom both maps matches across the

divide between the two sources. Both rivers and roads are in good agreement at the points

arrowed. Althoughsome individual contour lines do not fit precisely because of the different

4~~ 2002115,p. 50, para. 16(Mr.Simma).

'RejoinderofNigeria, fig1,opp. p. 336(Mr. Simma).
6~~ 2002115,p. 50, para. 16.units- metric and imperial- yet, nevertheless, the generalagreement of reliefportrayal is also

striking. This correspondenceis a very impressive tribute to both the Directorate of Overseas

Surveys andthe InstitutGéographiqueNational. Two sets of employees fiom differentcultures

and training schemes,two sets of aerial photography fiom different contractors, possibly using

differenttypes of camerasand flyingat different altitudes,two types of plotting machinesused to

draw themaps- and they come up with the same result. Mr. President, couldthere be a better

independent check? And Professor Simmatries to worry you with thoughts that these maps are

"falla~ious"~!No, Mr. President,these mapswere madeby two ofthe finest map-makingagencies

inthe world. Theycanbe reliedupon.

13. ProfessorSimma showed the Courttwo examplesof Nigeria's maps,one at Narki and

one at the source of the Tsikakiri, and claimed thatthe lack of river or stream channels on these

mapsnot only introduces concerns about thequality ofthe maps but also invalidatesNigeria's line

itself. Mr. President, 1 am afiaid this leads into a short discussionon cartographic procedures.

When producing maps at a scale of 150 000, it is not always possible or even, some would Say,

desirable to show every detail that is visible on the aerial photography. Keates, a well-known

authorityon cartography, States8:

"Small topographic features ... may be omitted on thegrounds that they are

unimportantat map scale. The difficulty forthe map user- and this is particularly
true of medium-scale topographicmaps- is that some features are shown while
others are not,even though there is asymbol to representthem. An obvious exarnple
isthe networkof drainage channelspresent in ahillyregion,in areas with anabundant
rainfall andextensivesurface drainage. On medium-scale mapsthe inclusionof al1of

them would lead to a mass of short lines which would provide little useful
information, and might interfere withthe legibility of other detail. So some are
omitted, but some are kept to indicatethe generalcharacteristics and distribution of
the drainage."

14. Here is an acknowledged expert explaining that the selective display of watercourses

forms a normal part of the design process for medium-scalemaps such as those we are discussing.

The lackof a riveronthe map at Narki or of a streamasthe sourceofthe Tsikakiridoes not leadto

'CR 2002115,p.62,para. 40 (Mr.Simma).
s~artographic~esi~nand Production,J.SKeates1989,ISBN0-582-30133-5,p. 41, Chap.4.the sweeping conclusion that the maps are, as ProfessorSimma would have you believe,

"erroneous, incompleteand inacc~ate"~or even"fallacious" 'O.

15.Whatthen doesthe experiencedmapuser do whenhe needs more detail? Hetums to the

aerial photography fromwhich themap was constmcted. Therehe finds al1the detailthat existsin

reality andhe can easilyrelate thisinformationto the map.

16. Here is the aerial photograph that wasused for the construction of the DOS map at

Narki - it is at tab 14and has alreadybeen seenby the Court. On this photograph,we are looking

at a largeriver,powerful,wide anddeep whenin flood, but quitedry for a large part ofthe year. It

flows in fiom the lef?and splits into a series of channels before disappearing into the Agzabame

Marsh offto the right. It does not,as Professor Simmahadit, flow outofthe marshfiom theright.

17. And if 1 may be permitted to make an aside here, Mr. President, can 1 reply to the

Professor's worry about the directionin which rivers flow on these mapsl'? 1am sure the Court

knows that as rivers flow downhill,you can ascertain their direction very simply by reading the

contour values. The great majority of the maps that we have submittedpossess contours- it is

just a questionof ProfessorSimmausing al1theinformationavailableto him.

18. To return to the issue at hand, we have a large river splitting up into a multitude of

channels beyondBanki. Over theyears, channelswill growand wane in size and importance,as in

any delta. Itmay wellbe that channelsthat the Directorate cartographersdid not, in 1965,think

wonhy of inclusion,were much biggerin 1931. We cannotknow for surebut we cansee these old

channelson the aerialphotographyhere, runningnorth ofNarkiand again,smallerbut still visible,

to the south. However,the DOS cartographerdecidednotto showthem. That doesnot meanthat

they donotexist nor doesit meanthatthe mapis"falla~ious"'~.

19. 1 now tum to the Tsikakiri and 1 will use an enlarged map of the same area as

Professor Simma- it is now on screen and is also at tab15. At this point, Mr. President,Nigeria

wanted to locate the highest possible source of the southem branch of the river. Once again, the

9~~ 2002f15,p. 52,para. (Mr.Simma).

''lbipd.62, para.40.
"lbidp..55,para.27.

I2lbipd.62,para.40.experienced rnap userturned to theaerial photographs, whichare identified onthe rnap andare still

available. They give a three dimensional view- the same used by the cartographers in the

original constniction- and, from this view, it becomes clear that there is a smallStreamvalley

runninguptowardsthepeak, andshown inblue. This valleyis also shownby small indentationsin

the contours on the rnap- and 1 am sure Ourmountaineer fromSavoie will recognize their

significance. 1wouldemphasizethat Ourpurposewith this rnapin Ouratlas was notto show where

the exact source of the Tsikakirilay but to indicate the alignment ofthe boundary as Nigeria

believeditto run.

20.Nigeria submitsthat thealleged discrepanciesonNigeria's maps submitted byCarneroon

cannot in any way be taken as evidence that theyare "fallaci~us"'~or that theypossess any other

defectwhich makes them suspectin this case. There is no reason whatever forthe Court to doubt

that themapsproducedby DOSandIGN meetal1appropriatetests of accuracy.

Cameroon's criticisms of Nigeria'sboundary alignment

21. Mr. President,distinguished Members of the Court, 1 tum now to the criticisms that

counsel for Cameroon made of the reliability of Nigeria's boundary alignment. First,

ProfessorSimma criticized the appearance of two locations for Mada on rnap 19 in the atlas

submittedwith Nigeria's Rejoinder.It is now onscreenandat tab 16. One location - arrowed-

is in the eastand one in a blackbox adjacentto Nigeria's line inthe west. The provenanceof the

black box containing the name Mada on the Westof the sheetis based onthe rnap attached tothe

1931Declaration, whichyou cannow see on screenand in enlargement attab 17. This rnap clearly

shows a settlementof Mada to the south of Sale. No pointerwas includedon Ouratlas rnapas the

positionwas considered approximate - it wasjust intendedas an additionalguideto the Court,no

more thanthat. As forthe villageof Mada intheeast, it iswell insideCameroonand 1amnot sure

that 1 can help Professor Simma. However, anyoneconversant withdry areas in this part of the

world wouldknow that villages often move to seek water or improvedgrazing and they taketheir

village name with them. It is quitepossible thatthe 1931village had,by 1964,moved to this new

location.

''CR2002115,p.62para.40 (Mr.Simma). 22. ProfessorSimmaseemsvery worriedabout thefateof Djarandoua- seenonthe mapon

screen and at tab 18. Mr.President, he neednot worry. Nigeria can give him a categorical

assurance thatthe map is correct; the GPS position is correct; Djarandoua is a Cameroonian

villageon Cameroonianland. Here itis, seen fromthe GPSpoint on theboundary. In fact,Nigeria

has allowed Cameroon to construct this dam, viewed here from the same GPS point, on the

Nigerian side of the boundary to provide water for the Cameroonian inhabitants' cattle. Both

photographs arein tab 18. This is a good example of international CO-operation,which1am sure

the Court willbe pleased to see.

23. Then we come to the confluence ofthe Benue andthe Tiel. ProfessorSimma refers

againto this matter, first raisedby his friend Mr.Khan in the first round. Nigeria did not respond

thenbut let me do so now. Mr. Khan submitted amap extract14 taken fromsheet 197of the 1:100

000series of Nigeria published in 1960. Itis at tab 19. He told you'5that Article29 of the

193 1Declarationsaid: "Thencethe Mayo Tielas far as itsconfluencewiththe Faro."

24. 1am afi-aidthat Cameroon has onceagain got the geography wrong. What Article29

says isthis: "Thence the course of the Mayo Tiel as far as its confluence withthe Benue." It is

Article30 thattakes us to theFaro River. Mr. Khangoeson later to talk ofthe Tiel emptyinginto

theFaro Riverbut he shouldhave saidtheBenue - andthisisnot some obscure,minorStreambut

thesecondlargestriver inNigeria, with a large catchmeni tnCameroon!

25. Having sortedoutthe geography, letus look at Mr.Khan's complaint. This was thatthe

more easterlyboundary lineshown onmap43 in Nigeria's atlas - now onscreen and attab 19 -

is in "sharp contrast"to the earliermapand in "clear contradiction with theexpress wordingof the

Declaration". He also tellsus that the "topographical situation"at thejunction of thesetwo major

riversflowingin wide floodplains is "unambiguous". Mr.President, the Court willbe well aware

of the power of African rivers in floodand their abilityto shift channels. Inthe case of the Tiel,
,
this means taking the boundary withthe channel. In noway can the situation be describedas

"unambiguous".

I4~ab3414(b)judges'folder,19Feb.2002.
"CR 200212, 59,para.30(Mr.Khan). 26. Nigeria,in its atlas,has usedanalignmentthat it now believesto be current inthis highly

unstablearea but it acknowledges thatit is a difficultarea. It is fertilefarming land andany shifts

of themain channelof the Tiel can playhavoc with farmers7livelihoods. Nigeria acceptsthat this

will cal1for skilfuland statesmanlike boundary management, especially a dtemarcation. It doesnot

acceptthat the line on map43 of its atlasis in "clearcontradiction withthe express wordingof the

Declaration".

Cameroon's claim that thedelimitationis sound

27. Mr. President, distinguished Members of the Court,morethan one counselfor Cameroon

has suggested that the problem areas raised in Nigeria's Rejoinder are simple matters for

demarcation anddo not require any further delimitation- althoughtheir position is now much

more muted. In fact, Cameroon's pleadings contain many geographical inaccuraciesand

contradictions and theyfiequently showa complete inabilityto understand the limitations of the

1931Declarationand the 1946 Order in Council. They refuse to see their own inconsistencies,

eveninthe very simple caseslike Maio Senche- to which 1referred lastweek- wheretheir line

followstwo streamsin spiteof aclear instructionto remain onthe watershed.

28. Counselfurthersuggestedi6thatthe following statement bySirArthur Wattsis nonsense,

and 1quotefiom hisown paper:

"It is true that in 1931 the United Kingdom and France thought that the
Thomson-Marchand Declarationwas sufficiently clear to make provision for
demarcation .. .But thatwas 1931 : today is 2002,and quitea lot moreis now known
ofthe local topography."

29. Forgive me, Mr. President,but are these not two very self-evidentfacts? He goes on to

claimthat, because 135milesof demarcation wassuccessfullycanied out in 1938-1939onthe very

southemmostpart of the Anglo-Frenchboundary17,it follows that the rest of the boundary- over

800miles - would automaticallybe troublefree. That surely is notthe case. If you drive fiom

here toRome and meetno trafficjams inHolland,canyou be confidentthat as a result youwill not

meetanyin Germany, Switzerlandor Italy? Of coursenot.

' 6 2002115,p. 57, par1.3
"~emorial of Cameroon,Ann.MC 185,p.1416.Comments on the deficienciesof the boundary instruments

30. Let me now turn to somespecific locationsmentionedby Professor Simma. He sensibly

said very little about ~i~san" and there is noneed for me to Sayany more either. 1think Nigeria

has effectively disposed of that problem, the primary reason for including the land boundary in

these proceedings. On the "incorrect watershed",he appeared19to approve without reservation

Nigeria's transpositionof the incorrect lineto themodemmap, thoughnot of our efforts to makeit

more comprehensibleto the localpopulation. His condemnation ofthe shift "up 4 km to the east"

was strange. First,becauseNigeria suggesteda movementof 4 km to the eastin only one location,

at Amsa, midway between MountKuli and Muti. Second,because the shift of the boundaryfiom

the "incorrect watershed" tothe eastin this area simplybrings it into alignmentwith the boundary

shownon Cameroon's ownmap*'.

3 1.In spite of Nigeria'scareful demonstrationof the "incorrect watershed" problem,he still

felt he had to Saythat he was "in the presence of a delimitation problem where none exists in

reality". Mr. President, 1 cannot believe that this Court has ever had to confiont such an

extraordinarytext requiringsucha sophisticatedtreatmentto get anywherenear a solution. It cries

outfor a proper delimitation.

32. Again, Mr. President,he had not gotvery much to Sayabout Mount Kombonor, as we

cal1it, Itang ~i11~'except to speculate on Nigeria's purpose in putting fonvard its line. Are we

seeking to grab al1of Tamnyar,he asked? No, we are not, Mr. President. Tamnyar is a village

largely onthe Nigerian side of the watershedbut that part of it that is on the Cameroonsideof the

watershed is without questionin Cameroon, and remains there under Ourproposals. One might

wishthat Cameroonwereas honest inthe matterof Turu. But, beforewe leavethis area,can 1just

draw the attention of the Court to item 1.15in Cameroon's writtenreply to JudgeFleischhauerof

10March. 1am afiaid we havehere yet anotherof thoselittle Cameroongeographicalinaccuracies

which have occurred regularly throughout these proceedings. Cameroon says that TonnHill is

18 km fiom ItangHill. It isnot: it is 1.8km.

"CR 2002115,p. 58, para.33(Mr.Simma).

1Ibid., p. 59,para.34.

20~eplyof Cameroon,atlas,ma7.
2 ' ~2002115,p. 60, para.36(Mr.Simma). 33. Mr. President, distinguishedMembers of the Court, we are pleased that counsel now

acceptsZ2that the watershed criterion willgovem the course of the boundary wherever the legal

instrumentsrefer to it. But his idea thatwatersheds in mountainousareas can change becauseof

drought is ludicrous. What happens whenno rain falls? Do the mountains shrink in someway?

Do the ridgelinesmelt in the heat? Of coursethey don't. River basinsby and largestay the same

whether rain falls ornot - and so do watersheds. Of course,in extremesituationsand withheavy

and continuousrainfall,the occasional breachfrom onebasin to anothermay occur. But not onthe

Mandara Mountains- itisjust not possible. They are solid granite. Nigeria waspleased tosee

that counseladded a cautionary note23to the effectthat "[nlature mayunder specific circumstances

even preventthe watershed lineto follow the most obvious natural feature in this regard, namely

the crestline". Nowthis is exactlywhat weare sayingat ItangHill.

Conclusions

34. Mr. President, distinguishedMembers of the Court, having refuted the unfounded

criticismsof our opponents,Nigeria wishesto emphasizethreepoints:

(i) First, Cameroon did proposean alignment for the land boundary in its atlas at Chapter 6

of its Reply,in spiteofits claimto the contrary.

(ii) Second, Nigeria's cartographicalevidence and its suggestionsin relation to the 22 land

boundary issues and the alignmentof the land boundary as a whole are sound and

Cameroonhas failedto makeout any adequateargumenttothe contrary.

(iii) Third,the issues arisingin relationto al122 of the boundaryissues identifiedinNigeria's

writtenandoral pleadingsare indeedissuesof delimitationand notjust demarcation.

35.Before 1close, Mr. President, may1record one last disagreementwith Professor Simma.

He referredZ4 to thisboundary as runningthrough "very remote and virtually uninhabitedtemtory,

difficultto access" andhe wentonto Say: "The environmentwe facehere is wildernessinthetrue

meaning ofthe word." These areseriouslymisleadingstatements. Tobe sure,somesectionsofthe

boundary are uninhabited and difficultto access, but the greater length is inhabited by peopleon

"CR 2002115,pp.61-62,paras.37-38(Mr. Simma).

23~bid,62,para.38.
24~bid,. 64, pa44.both sides- farmers,traders, families, childrento whomthis isnot a wildemess butjust home.

They live at places like KodoMugdo, Banki,Tum, Madaguva, Gembu,which is a little way from

the borderbut close enough,Lip, andMberogo. You will findthesephotographsattab 20.

36.Al1these people need certaintyin theirlives. TheCourtnowhas aunique opportunityto

remove the uncertaintiesthat surroundthe 1931Declarationand the 1946Order in Council andto

provide a definitive specification. Nigeriaurgesthe Courtto grasp that opportunityin the context

of both international law and the lives of the many, many people that live on bothides of the

boundary .

37. Mr.President,1thankthe Court fortheir patienceand 1askyou to cal1Sir Arthur Watts

to continueNigeria's pleadingsinthe secondround.

The PRESIDENT: Thank you very much,Mr. Macdonald. J'appele maintenant à la barre

sir Arthur Watts.

SirArthurWATTS: Thankyouvery much,Mr. President.

LAND BOUNDARYAND BAKASSI

1. Mr.President and Members of the Court, in following Mr. Macdonald's compelling

refutation of Carneroon's arguments on a number of specific matters relating to the land

boundary - a refutation which, if 1may Sayso, owes not a little to his coincidentalpossessionof

an expertisewhich counsel for Cameroonwasunwise to belittle - 1 shall now offersome general

observations on the arguments which Cameroon has put fonvard in recent days on the land

boundary. This will lead me on to a treatmentof certain aspectsof the Bakassi problem. In the

course of this pleadingwill also seek to offerat least a preliminaryresponse to questionsput by

Judge Elaraby,Judge Fleischhauer,andJudgeKooijmans.

2. Letme start,then, with the land boundary. Counselfor Cameroonacknowledgedthat the

Partiesagreeon which instrumentsarerelevantto the determinationof the land boundarybetween

Lake Chadand Bakassi- they arethe instrumentsto whichthe Partieshave regularly referred and

with which the Court will by now be very familiar. Cameroonhas several times inthese present

hearings accusedNigeria of being belated in itsacceptanceofhose instrumentsas the instruments

which delimit the land boundary. This is far fiom being the case. Nigeria, in its~ounter-~emorial", identified the instruments in question, and said that it accepted them in

principle; and Nigeria has made it clear that that qualification only covered certain specific

inadequacies of delirnitati~n~~. That has al1 along been Nigeria's position, which by now

Cameroonshould understand.

3. Indeed, Mr. President andMembers ofthe Court, between Lake Chad and Bakassi, there is

not only agreement that those instruments are relevant, butalso that they do effectively delimitthe

boundary in al1 but the 22 specific locations which Nigeria has identified. So, for the land

boundary as a whole, the delimitationof by far the greater part of that boundary is agreed. There

are differencesbetween the Parties onlywith respectto those few specificlocations.

4. Before tuming to some particular aspectsof those locations, let me make a general point.

As Nigeria showed, there is no substantial difference betweenthe kind of task which is before the

Court in this part of the case and the task which this Court, and other international tribunals, have

performed in other cases involvingboundary disputes. Othercases have often consisted solely ofa

dispute of precisely the kind which is in issue inhese proceedings- only here we have 22 of

them, al1at once, andjust as part of amuch widercase involvingmany other issues.

5. Cameroon createdthe occasion for an examination ofthose locations in these proceedings

by its original request that the Court should "specifi definitively" the land boundary. But it is

noteworthy that Cameroonhas refi-ainedfrom giving the Court any assistance in carrying out the

very task which Cameroon asked theCourt to undertake.

6. Nigeria does not wish to dwell unduly on this question of the request to the Court to

"specifi definitively" the land boundary. Thereis no doubt that Carneroon used those words, in

paragraph 17 Ur )f its Additional Application. Cameroonnow says that it did not mean what

Nigeria thought it meant, and accusesNigeria of "unilaterally" interpretingCameroon's words -

as if that were some sort of crime. But how else is Nigeria to interpret th-m? it can only do so

for itself. And as1 explained last week, Nigeriatook Cameroon's words exactly intheir context

when seeking to interpret them- the suggestion that Nigeria hadtaken them out of context or

interpreted them in bad faith is as false as it is time-wasting. Cameroon can scarcely blame

'5~ounter-~ernorial of Nigeria, pp.486-487, paras. 18.26-18.28.
26~ejoinderofNigeria, pp. 311-314,paras. 6.42-6.49; CR 2002111,pp. 43-44, paras. 6 and 7 (SirArthur Watts).Nigeria, or the Court, for taking Cameroon7swords at face value, as meaningthat the Court was

seisedof a requestto delimitthe landboundarywith exactitude2'.

7. Counsel for Cameroon yet again quibbled over Nigeria's acceptance of the boundary

instrumentsonly "in principle"28,but counsel knows perfectlywell that this issue is utterly dead.

Nigeria'sposition has beenrepeatedly explainedwith abundantc1a1-i~~~T .here is nojustification

for Cameroonto waste yet moretime onthe issue.

8. Similarly with counsel's repetition of Cameroon'sview that Nigeria was attempting to

rewrite the boundary instruments, andto interpret them unilaterally. As explained last week3',

Nigeria has simply submittedits views as to the proper interpretation of various texts which give

rise to difficultiesof delimitation; unless Cameroonthinks that words canusefully be interpreted

by using exactlythe same words again,it is evidentthat a process of interpretationinvolvesusing

different words from thosebeinginterpreted.

9. It is a misrepresentation of a similar kind for Cameroon to refer toNigeria's suggested

interpretationof the defectiveprovisions as establishinga "claim lineW3'.Nigeria is notseeking to

claim any territory: it is seeking simplyto identiQ, and then subsequentlyto apply, the correct

interpretationofthe relevantboundaryinstruments.

10.Indeed, Mr. President,it is a curious fact that it is probably just that which both Parties

seek: both Parties accept that the boundary is delimitedby the four relevantinstruments, and the

Parties only disagree aboutthe correct interpretationof a specific and relatively smallnumber of

those provisions. Nigeria says that those disagreements are evident on the face of the relevant

texts,that they matter, andthatthey shouldbe sortedout in theseproceedings,since it is important

to concludethis litigation. Moreoverany future demarcationcommission must have a clear idea

what it is meantto be demarcating, andin the meantimethe local populationsneed to have a clear

idea of where the boundary runs. Cameroon says, in principle,that those disagreements do not

matter at this stage; they can be sorted out at the demarcation stage. But even Cameroon now

27~.~.Reports 1998, para.98.

2 8 ~2002115,p. 46, par7(Mr. Simma).

2 9 ~2002111,pp. 43-44, paras.6-7 (Sir Arthur Watts).
301bid,. 53,paras. 42-44 (SirArthur Watts).

3 1 ~2002115,p. 49, para. 15(Mr. Simma).admits that theremay in practice be delimitationproblems which the Courtmay pronounce on if

ne~essary~~A . ndthat is precisely Nigeria's poin-t and nowisthe time for itto be done,not later.

11. Cameroon's positionis in factvery curious. Counselfor Cameroon mocked Nigeria for

having presented a consistentcase throughout these proceedings33.Mr. President, consistencyin

the presentation of its case is the one thing whichCameroon certainlycannotbe accusedof! It is

particularly striking in thepresent context. Throughouttheseproceedings Cameroonhas declined

to discuss the detailsof the evidently defectiveboundary delimitations to which Nigeriahas drawn

attention, dismissingthem as only a matter for demarcation. Nigeria it was said - and was said

eventhis ~eek~- ~ was simply trying to complicatematters. Butnow even Cameroonhas had to

recognize that Nigeria wasright and thatsome atleast of thosedefectivedelimitations were indeed

defective, and may indeedbe too difficult to be solved by a demarcation commission,so may

indeedbe better dealt withby this Court.

12.Butof course, havingleft it so late beforewaking up, Cameroonfinds that it has omitted

to argue its caseon these matters of detail. So now it is Cameroon which,after years of accusing

Nigeria of causing interminable delaysin these proceedings, contemplatescausingyet further delay

itself- and al1just becauseit has leftituntil this verylastmomentto acknowledgethe factswhich

have been staring it in theface al1along. Nigeria submits, Mr. Presidentand Members ofthe

Court, that any such attemptto securefurther delay should be dismissed outof hand. Cameroon

has chosen not toargue its case, even thoughit hashad plenty of opportunityto do so. It made its

choice of its own fiee will: it must livewith the consequences,and not put Nigeria to yet further

delayand expenseas a consequenceofCameroon's ill-advisedstrategy.

13. It isatthis point that it wouldbe appropriatefor meto respond tothe proposa1put before

the Court at the end of Tuesday morning by the Hon. Agent for cameroon3'. Let me set out what

that proposa1 amounted to.And it seemedto haveseven mainelements:

3 2 ~2002115 ,. 62, para.40 (Mr.Simma); p.34,par17 (Mr.Cot); CR 200212p. 59,para.30 (Mr.Khan).
3 3 ~2002115 ,p.19-20,paras.4-8 (Mr.Pellet).

34~bip d.27,para.34.

3 S ~2002117,pp.64 etseq., para1etseq.- first,if the Court considersthat certainof the defective delimitationsraisedby Nigeria can be

dealtwith by the Court,Cameroonwouldsee nothinginappropriateinthat;

- second, if on the other hand the Court does not feel able to deal with those matters and if

therefore its judgment leaves certain matters uncertain, Cameroon does not want to have to

discuss those mattersbilaterally with Nigeria;

- third, in that event- that is, if the Court feels that it has to leave certain matters still

uncertain- Cameroonis ready to refer those matters for decisionto an organ establishedby

an impartialthird party in the course of the necessary demarcationof the as yet undemarcated

frontiersectors;

- fourth, this organ should, in Cameroon's strong preference,be established by the Court or

underits auspices;

- fifth, failing that, and in the absence of agreement between the Parties, the organ could be

establishedbythe UnitedNations;

- sixth, in either case, it could include representatives of Germany, France and the United

Kingdom; and

- seventh,this organ wouldhave to havepowers of demarcation,extended so faras necessaryto

encompassthetask nowbeing envisagedfor it.

14.Mr. President,it is difficult forNigeriato knowquite howto understandthisproposal. 1s

it a proposa1for negotiation? Or is it a proposa1 - that is, a submission- regarding actionto be

taken bythe Courtin deliveringitsjudgmenton the casewhich Cameroonbrought before it?

15.Since it cannot be a submissionas to what the Court should do- for reasons which 1

will explainin a moment - it would seemto be a proposa1for negotiation. But it cannotbe that

either,since Cameroonmakesit clear, withemphasis,that it is not prepared to negotiatebilaterally

withNigeria. Andaproposa1of this kind,even if meant asa proposa1for negotiation,comesrather

late inthe day, atthe very endof Cameroon'ssecondround pleading. And in any event,theParties

are presently engagedin these proceedings before the Court, and we are al1here as litigating

parties,not as potentialparticipantsin an intergovemmentalnegotiation.

16.So let meturn to theother, andperhapsmoreobvious, alternative,namely that Cameroon

is making a proposal, a submission,as to what the Court should do in its judgment in this case.And here Cameroon'sproposa1is, in effect, in two parts. First, says Cameroon, if the Court can

decide theproper interpretationof thoseparts of the boundaryinstrumentswhich containdefective

or uncertaindelimitations, al1well and good: Cameroonwill accept such a decisionof the Court.

Second, if the Court feels that it cannot decide some of those matters, let there be an impartial

organ establishedto sort those mattersoutas part of an eventualdemarcationprocess.

17.Let me take the first aspect- Cameroon'sreadinessto accept the Court's decision on

those mattersof defective or uncertaindelimitationwhichthe Court feels able to deal with. But

that, Mr.President, is what Cameroon is committed to in any event. Having come before this

Court as the Applicant, Cameroon has alreadybound itselfto accept the Court'sjudgment on al1

the matterswhich Cameroonput before the Court for adjudication: the Court'sjudgment will be

binding for Cameroon. So this part ofCameroon'sproposa1adds nothing to the situation which

existsanyway.

18.There is, however, somethingnew in the secondelement of Cameroon'sproposa1 - the

establishmentof what is in effecta demarcationand disputesettlement organ, to deal with those

matters ofdefective delimitationwhich the Courtfeels unableto dealwith. Mr. President,thereis

at the outset a very simple questionto be asked- what power does the Court have to establish

such an orpan? For that is what Cameroon seeks: it says of this proposed organ that it would

strongl).wishto seeit set up bythe Courtorunder its auspices36.

19.The Courtin fact, as the Courtwill bewell aware,does not have the poweras part of its

jurisdiction in contentious proceedings to set up subsidiary organs, and certainly not ones

involvins. as Cameroon insists, third Statesnot othenvise before the Court- for it is an essential

part of Cameroon's proposa1that it must not be left to face Nigeria in a tête-à-tête.Quite apart

from that. the Court's jurisdictionin the present casedoes not extend to the management and

controlofthe demarcationphaseofwhateverboundarysettlementmaybe decided.

20. Perhaps Cameroon is aware of al1this, because Cameroon's proposa1envisages the

possibility of this organ being established either byan agreement between the Parties or, in the

absence of such an agreement, by the UnitedNations. Since Cameroon so adamantly refusesto

3 6 2002117,p. 66, para. 8 (Mr.Kamto).negotiate bilaterally withNigeria, the first option is obviously a sham. So we are left with the

UnitedNations. But what hasthat to dowiththe Court, in amving at itsjudgment? Nothingat all,

Mr.PresidentandMembersof the Court.

21. But whether this organ is to be set up by the Court or by the United Nations, in either

casethere arethreeothervery substantialpointstobe made.

- First, it will not necessarily be straightfonvardto secure the participation in the prospective

organ of Germany, France,and the United Kingdom - or indeed any other three Stateswhich

might be acceptable to both Parties, for clearly their agreement will be needed to whatever

outside Statesareto be involved.

- Second,whois goingto establishthe organ'sterms of reference? Clearlythis will not be easy,

given that Cameroon contemplatesthe organ having dispute settlement functions as well as

straightfonvarddemarcationfunctions.

- Third, and by no means least, who is going to finance this organ? The Secretary-General's

Trust Fund is unlikely to be able to meet what will clearlybe very considerable costs,and 1

imaginethatthere areother moreurgent calls onthe Court'sbudgetaryresources.

22. It is apparent that Cameroon's proposa1is as il1conceived as it is inappropriate for

adoption as part of the Court's judgment in this case. Nigeria does not wish, however, to be

entirely negative about what the Hon.Agent for Cameroon said on Tuesday. For Nigeria

understands what lies behind Cameroon's proposal, and sympathizeswith the position in which

Cameroonnowfinds itself.

23. Cameroonhas nowmade it absolutelyclear that it acknowledgesthat someatleast ofthe

22 defective oruncertain delimitationswhichNigeria has raiseddo indeedraise genuineproblems.

That is a welcome admission, confirminghints which had already appeared inthe pleadings of

several of Cameroon'scounsel. And Cameroonis happy for the Court to deal with such of the

22 delimitation problems as it feels able to. Nigeria welcomes that: it is no more th& what

Nigeria hassought fromtheCourt al1along. 24. Cameroon goes on to explain that its "unique souci est que la frontière soit précisée

définitivement3'.Mr. President, that phrase has a familiar ring. What started off in Cameroon's

Additional Application as "préciser définiti~ement"~~ has now become- well, 'brécisée

définitivement". Wheels seldom tum full circle with such precision and elegance! Of course,

Nigeria shares Cameroon7sconcern that the boundary shouldbe specified definitively: that has

beenNigeria's concern al1along- a consistencywhich counselfor Cameroon derided39but which

it might have been to his benefit to have emulated.

25. Nigeria has supported its consistent position with al1 the necessary argument and

cartographic evidence. That evidence has included the appropriate maps, fiom whatever was the

best available source. Nigeria had used, principally,the 1:50,000series of maps produced between

1965 and 1969by the Directorate of Overseas Survey, and the maps at the sarne scale prepared by

the French Institut Géographique Nationalin the 1960s. Nigeria has patiently and carefully

explained the delimitation problemswhich have arisen, and has submitted what Nigeria suggests

would be the appropriate interpretation to be given to the defective delimitations. Faced withal1

this material, Cameroon has, by its own free choice, done nothing to help the Court resolve the

problems which were inherent in Cameroon's original requestto the Court to specifi definitively

the land boundary.

26. It is, of course, Cameroon'sright to chooseto let itscase go by default. But when it was

Cameroon which seisedthe Court with its requestto determine the land boundary with exactitude,

and when Nigeria has placedal1the necessary cartographicmaterial and legal argument before the

Court to enable it to reach clear decisions onthe correct interpretationof the boundary instrument,

then it seems only right that Cameroonshould notbe permitted to divertthe Court fiom completing

thetask which Cameroongave it.

27. In short, Nigeria agrees with Cameroonthat the Court should deal with the 22 defective

or uncertain delimitations,and, of course, the Court's judgment will bebinding for Nigeria, as for

Cameroon. Moreover Nigeria believes- apparently, unlike Cameroon- that the Court already

3 7 ~2002117,p. 65, para. 5 (Mr. Karnto).

38~dditionalApplication, parm. 17
"CR 2002115, pp.19-20,paras.4-8 (Mr. Pellet).has before it ample materialon the basis of which to reach such a decisionon each and every one

of the 22 problem delimitations. TheCourt accordinglycan and should, in Nigeria's respectful

submission,proceedto dealwith al1ofthem onthe basis of thematerial beforeit, and decidethose

issuesinthe mannerrequestedby Nigeria.

28. Mr.President and Members of the Court, let me turn to another matter. At the

conclusion of the first round of the oral pleadings, JudgeFleischhauer asked two interrelated

questionsof bothParties. And these were,

"How was the land boundary inthose specifiedareas in whichNigeria contests
the correcmess of the delimitation, in practice handled both before and afier
independence? In particular, wherehas the course of theboundary inthose areasbeen
treated asrunning?'

29. In order to providea full and careful answerto JudgeFleischhauer's questionsNigeria

will, as1am surethe Court will understand, require enquiries tobe made withthe localauthorities

in al1the locations in question. Al1Nigeria's pleadings, bothwritten and oral, regardingthe land

boundary havebeen based heavily on, and have benefited greatly fiom, the extensiveresearch

carried outby the various authoritiesinNigeria, particularly theNational Boundaries Commission,

and Nigeria will again ensurethat they make the further researches whichare necessary in order

fullyto ansver Judge Fleischhauer's questions.

30. But it rnay nevertheless beof assistance to the Court if, evennow, 1 offer a brief

prelimina~ response to those questions, even though it will have to be subject to whatever

Nigeria's subsequentresearches may reveal.

3 1.As the Court willrecall, Nigeria has drawnattentionto 22 locationsat which questions

arise regarding the delimitation of the land boundary as described in the Thomson-Marchand

Declaration or the1946 Orderin Council. But those22 were of two kinds. Thirteen ofthem were

locations at whichNigeria itself discerned defectsin the very terms of the delimitation,that is in

the delimitationas such.

32. The other nine locations weredifferent. They were locationswhere, so far asNigeria is

concemed,the delimitationisboth clearand adequate. It is onlybecause Cameroonhas adopted a

position which departs fiom the clear and adequate delimitationin the relevant instrument, that

Nigeria has drawn attention tothe nine locationsin question. Inrespect of themNigeria has simplyasked the Court to confirm that the relevant languageof the boundary instruments does indeed

delimitthe boundary,and to requireCameroonto actconsistentlywith thatdelimitation.

33. The distinctionbetween these two categoriesof locationswill be reflected in Nigeria's

eventual written response to JudgeFleischhauer's question- which Nigeria will, of course,

submitby 4 April,as the Courthas requested.

34. During the first round of these oral pleadings, Nigeria,after its treatment of the land

boundary,
added an explanation of where the boundary ran in the area where the 1913

Anglo-German Treaty ceased to be an effective boundary delimitation because of the defective

"Bakassi provisions" of that Treaty. Nigeria descnbed that line- a customary line, given the

absenceof an effectivetreaty line - in its ~ejoinder~'and duringthese hearings lastweek4'. That

line isshown onthemap which isnow onthe screen,and attab 21in thejudges7folder.

35. Cameroon's responseto that line was very ~imited~~C . ounsel for Cameroon madejust

fourpoints. The line was, he said, not a treaty line. True: but thatdoes not mean that there is no

boundary. There is no rule of internationallaw requiring that boundariescan only be established

by treaty. Manyboundaries are not set out in treaties. In the absenceof a treaty, a boundarywill

be a customaryboundary, and thatis a perfectlyfamiliarnotionininternationallawandpractice.

36. Second, counsel said that there was no administrative document establishing the

boundary. No, there is not- and nor doesthere haveto be. Indeed,that is often the essenceof a

customaryboundary.

37. Third, counsel said that there was no basis for the customary boundary asserted by

Nigeria. Again, he is wrong. The boundary hastwo elements- first acrossthe land betweenthe

AkpaYafe andthe head of the Rio delRey, and seconddown theRio delRey and out to sea. The

basis for the landboundary lies in the territorialextent of thejurisdiction and power of the Kings

and Chiefs of Old Calabar. Theirjurisdiction and powers extendedto the region coloured redon

the map now on the screen, and attab 22 in thejudges' folder- a map which the Court saw last

40~ejoinderofNigeria,pp.289-293,para11.7-11.19.

4 ' ~200211 1, p.59-62,paras.67-80(SirArthurWatts).
4 2 ~2002115,p.23, para. 19(Mr.Pellet).week. The Court will notice the equivalence between thenorthem extremity ofthat area andthe

boundarynow assertedby Nigeria.

38. As for the boundaryin the Rio del Rey, its basis lies both in the territorialimitsof the

Kings and Chiefs of Old Calabar,and in the clear recognition,in suchAnglo-German agreements

as actually entered into force,of the Rio del Rey as both the dividing line between British and

German spheres of interest,and as the westward limitof German territorial expansion43.One of

those agreementsalsodefinedthelocation ofthehead ofthe Rio del~e~~~.

39.Sothere is a whollyadequatebasisfor both elementsofthe customaryboundaryasserted

by Nigeria.

40. While that map is still on the screen,let mejust deal with a pointmade by another of

Cameroon'scounsel. He pointedout that thered area went as far as the River Ndian. Didthatnot

mean, he asked, thatNigeria wasnow claimingthe wholetemtory as far as theNdian, that is,well

beyond theRio delRey? And ifthat was notthe case,then why not? Mr. President,the answeris

simple. That map indicatedthe extent of the powers and jurisdiction of the Kings andChiefs of

Old Calabaras they were beforethe 1884Treatyof Protection,as was made clear duringNigeria's

oral presentation lastweek4'. As was alsomade clear at that sametime, the British Consulin his

report back to London in 1890stated that theKings and Chiefs had themselves retired fi-omtheir

more easterly territories. Thereisnothing mysterious about itat all.

41. To go backto the fourpoints made incriticismof Nigeria's overlandboundarybetween

the AkpaYafe and thehead ofthe Rio del Rey, counsel'sfinal point wasthat he could not findthe

various natural features whichNigeria used for its boundary line,and he even doubted whether

they existed. On thescreennow,and at tab 23in thejudges' folder,is a map onwhich thevarious

creeks and streamsreferred toby Nigeria can clearly be seen- Archibong Creek, its tributary

flowingin fromthe south,andIkankanCreek,leadingtothe headoftheRio delRey.

42. It is worthnoting thatNigeria setout its boundaryin this areain its Reply, andit is only

this week, in a hurried,one paragraph, commentin its second round of pleadings,that Cameroon

4 3 ~200218,pp.51-53,paras.55-63 (SirArthurWatts).
"CR 2002111,p.61,para.77(Sir ArthurWatts).

45CR 200218,p.77,para8 (SirArthur Watts).seeks to provide some response. It is a feeble response,despite al1the time which Cameroonhas

had to prepare it.

43. Mr.Presidentand Members ofthe Court,having beguninthis way aconsiderationof the

situation of Bakassi,this is a convenient starting point atwhich to consider Cameroon'sarguments

seeking to refute Nigeria's arguments aboutthe Protectorate andthe 1913Treaty and thereby to

denyNigeria's titleto Bakassi.

44. Counsel for Cameroonmade, 1think,fourprincipal points. His first wasa denialthat the

Kings and Chiefs of Old Calabar possessed internationalpersonality capable of sustaining

territorial title. His argumentsfor doing so were varied. He suggestedthat they were merelyCity

States which were in a loose federation, and that this showedthat they were not independent

international persons46.But he seemed tobe lookingat this communitythrough early twenty-first

century eyes, ratherthan with a perspective more contemporarywith the circumstances in

question- that is a more inter-temporal perspective. We are not dealing with a State seeking

admission to the United Nations, but with an entity the looseness and informality of whose

structures was typicalof muchof Africa- and also otherparts of the world, includingAsia - at

the period in question. The ideaof a "loose federation" may not fittidily into modem notions of

international personalityand statehood, butthere was nothingextraordinaryabout it in Africanand

late nineteenth centuryterms.

45. Counsel, inreaching his conclusions aboutthe supposedlack of international personality

of the Kings andChiefs of Old Calabar, seems to have failed to draw the right conclusionsfiom

this Court's Advisory Opinionin the WesternSahara case4'. The Court was dealing with the

situation existingin 1884- by coincidence the very year of the Treaty of Protection which is

relevant in the present case. The Court's conclusion wasthat at that time "Western Saharawas

inhabitedby peopleswhich, ifnomadic,were sociallyand politicallyorganizedin tribes andunder

chiefs competent to represent them."48 It was on that basis that the Court concluded that the

territory inhabitedby those tribes wasnot terra nullius,that is,that they had in internationallaw a

4 6 2002116,p.21, para12(Mr.Shaw).
47
I.C.J.Reports1975, p. 12.
48~bid.p,. 39,para.81.title to their lands which others couldonly acquire derivatively fiomthem. The degree of social

and political organization, and temtorial stability, possessed by the Kings and Chiefs of Old

Calabar far exceeded that of the nomadictribes which the Court was then concemed with. Their

internationallegalcapacityto hold titleto territory is an aforticase.

46.Counsel'sfùrtherpoint thatno Staterecognizedthe internationalpersonalityof the Kings

and Chiefs of Old Calabar ignores, again, that we are talking of the late nineteenth centuy, not

today. Recognition was not conceived of then as an essential prerequisite of international

personality. The Court madeno mentionof theneed forrecognitionin the WesterS nahara case. It

was a questionwhich, in any event, would onlyhave arisenif and when other Stateshad a need to

take some intemationally relevant step in their dealings with the community in question. And

when they did need to deal with it, they did not hesitate to do-soby, for example,appointing a

consul to the area, whichGreat Britaindid as far back as 184949,nd by concludingtreaties, which

both Franceand GreatBritain did50.Treaty making cannotbe as lightly dismissedas counsel for

Cameroon sought to do: treaty-making capacity is a critical element in the possession of

international personality, and concluding major bilateraltreaties has long been accepted as an

occasionfornecessarilyimplyingrecognition.

47. Counsel then said that it wasfar fiom clearhow and when andby what meansthe Kings

and Chiefs of Old Calabar had transmutedinto the present-day Nigeria. Apart from cautioning

against taking too formalistic a view of matters which are often, and were particularly over

100years ago, the resultof gradua1andincrementalevolution,perhaps 1 might leavethe response

to counse17spoint tothepreliminaryanswer which 1shallgive in a momentto the questions putby

Judge Kooijmans.

48. Counsel for Cameroon's second main point was as insubstantial as his first. He

questionedthe territorialextent of thedomainsof the Kingsand Chiefsof Old Calabar. He showed

again themapNigeria had shown,butfailedto put it in itscorrecttemporalcontext. 1have already

referred to this map: it is on the screengain now, and at tab 22 in thejudges7 folder. Counsel

suggestedthat it showedthat Nigeriaoughtnow to be claimingland as far east as theRiver Ndian.

49
Counter-MernorialofNigeria,p. 74,para.5.14.
''CR200218,p. 43, paras.22-23 (SirArthurWatts).As 1 have already said, it is clear that the Kings and Chiefs had themselves relinquished their

claimsto theirmore easterlylands,which,of course,they wereperfectly entitledto do. There is no

mysteryabout it; and it involvedno exercise by GreatBritain of any purported legalpower. But

that was the onlypoint thatcounsel made. He saidnothing to suggestthat thered areaon the map

didnot in factrepresenttheterritorialextentof the Kings andChiefs'domains.

Mr. President,my nextpoint concems theTreatyof Protection of 1884and it may go on for

a littlewhile.1am happyto cany but ifthis wouldbe a convenientmoment fora break,that would

alsosuitmeverywell.

The PRESIDENT: If it's convenientfor you as 1said earlier, it is convenient forthe Court.

La Courva doncsuspendreune dizainede minutes.

L'audienceestsuspenduede 16 h 15 à 16 h25.

Le PRESIDENT : Veuillez vous asseoir. La séanceest reprise et je donne la parole à

sir Arthur Watts.

Sir Arthur WATTS: Thank you, Mr. President. Beforethe break, 1was considering four

main points which had been made by Carneroon. First of all, concerning the international

personalityof the Kings andChiefs of Old Calabar,andthen the territorial extent of their domains.

So, letme, if1may, now continue.

49. Counsel for Cameroon,having failed to show that theKings and Chiefs of Old Calabar

lacked international personality, and having failed to show- or even argue- that Bakassi was

not within theirtemtorial jurisdiction and authority,the- as his third main point- tunied his

attentionto theTreaty ofProtectionof 1884. Letmejust make sixpoints byway of briefreply.

- ~irst, counsel argued that the provisions of domesticlaw relating to the distinctionbetween a

colony and a protectoratewere irrelevant. That is entirely wrong. The fact is that it is very

relevant thatBritish legislativeaction,right fiomthe beginning and up to 1960 dealt with the

Nigeria Protectorate as something affecting aoreign country, withinwhich GreatBritain had acquired authoritybyvirtueof a treaty, and GreatBritainwas not dealingwith it as a colony5'.

Itis also importantthatthe British Governrnentwas absolutelyclearthat thatwas its intention:

the record, set out in Nigeria's ~ounter-~emorial~~and including statements by British

ministers (includingthe LordChancellor, LordSelbome), is absolutely clear that Britain was

definitely not wanting to acquire a colony and was only wanting instead,to acquire a limited

protectorate.

- Second, counsel then delivered anotherinteresting lecture, of a wholly general kind, about

whathe saidwere the characteristicsofprotectorates. He talked,for example,of protectorates

"mutating" into colonies, so that the Protecting State acquired sovereignty. Al1 very

interesting- but besidethe point. In relation to this particular Protectorateit was, as1have

just said, abundantlyclear that Great Britain hadno intention whatsoeverof acquiring another

colony, and nothing it did - neither the terms of the Treaty of Protection which it concluded,

nor the terms of its domesticlegislationby which it exercisedthe rights which the Treaty had

givenit - indicatedothenvise.

- Third, counsel did not deal only with interesting, but ultimately irrelevant, generalities.

Carneroondid- at last,but only onthepenultimateday of itspleadings in this case- look at

the actual terrnsof the Treaty of Protection. He took us through the terms of ArticlesIII, IV

andV, and showed thatthey gave GreatBritain quite extensivepowers. So they did- but al1

of them were limited to matters of interna1affairs. And even the last point he made- that

appealswent tothe British Govemment - underlined the protectorate character ofthe Treaty,

for the appeals went to Her Majesty's Secretary of State for Foreign Affairs- that is, the

Secretaryof State who dealtwithforeign countries,not the Ministerfor the Colonies as would

havebeen appropriatefora colony.

- Fourth,but whatwas trulyastonishingaboutcounsel'sexaminationof the Treaty of Protection

was that he said not a wordabout the meaningof the two Articles- the only two Articles -

which set outthe terms of the international protection which is at the heart bothof the Treaty

and of Nigeria's Protectorate status. The only Articles which set out the intemationally

S'~ounter-~ernorialofNigeria,pp. 117-122,paras.6.72-6.80.
S2~bid,p. 101-106,paras.6.45-6.57. relevant protectorateterms of this particularTreaty of Protection are passed over in silence!

Cameroon thus ignores the requirementlaid down in the case concerningNationaliiyDecrees

Issued in Tunisand ~orocco~~that theposition of each protectoratedepends on the particular

terms of its own treaty of protection. Cameroonthus also has no answer to Nigeria's

submissionthat, if the far more extensive rightsgiven to France by the Treaty of Fez did not

prevent Morocco from being regardedby both France and the Court as continuing to possess

internationalpersonality54t,hen it mustgo without saying that the internationalpersonalityof

the Kings andChiefsof Old Calabarcontinued. Cameroon's silenceon Articles1and IIof the

1884Treaty is a matter of great astonishment onNigeria's part- but also gratification,

Mr.President, sinceit meansthat Nigeria'sview ofthose Articles- a view expressedas long

ago as May 1999in Nigeria's ~ounter-~emorial~~ - remains unchallenged. Nigeria trusts

thatthe Courtwilltake duenote ofthat fact.

50.Finally,Mr.PresidentandMembersof the Court, counsel,as his next point,turnedto the

1913Treaty. May 1first remind the Court of the question which 1posed many times last week:

Who gave Great Britainthe power to give away Bakassi to Germany? And how? And when?

That was,and wasintendedto be, a challengeto Cameroon. And Cameroonhas simplyrefusedto

answer; ithas no answer. It avoided,as 1havejust shown, any discussionwhatsoeverof the only

provisions in the Treaty of Protection which affect theissue. Instead Cameroon argued only that

the Nigeria Protectoratewas really a colony, eventhough nothing in the Treaty of Protectioncan

possibly lead to that conclusion, and even though such was expressly not the intention of the

British Government,and eventhough British legislation right throughto independencein 1960was

flatly contrary to any such thesis. Nigeria's answerto the question, who gave Great Britain the

power to give awayBakassi? and when?,was clearly stated last week- "nobody", and "never".

Cameroonhas scarcely eventriedto provideany otheranswer.

53~.~.~.~S,eriesB, N4,p. 27.

54~ightsof Nationals of the United States ofAmerica in Morocco, Judgment, I.C.J. Reports 1952, p. 185;
CR200218,p. 49, par44 (Sir Arthur Watts).
55~ounter-~emorialofNigeria, pp.10911,paras. 6.63-6.65. 51.As one final point onthe 1913Treaty,1shouldliketo Sayjust a fewwords inresponseto

counsel for Cameroon's remarks about the severance of ArticlesXVIII to XXII of that Treaty.

There arethree pointswhich counsel madeto which 1shouldlikebrieflyto respond.

52.First, he asserted that theseveranceof those Articles couldnot be countenancedbecause
*
it was contrary to what he regarded as principles of indivisibilityand completeness- principles

which, it was suggested, were particularly applicable to boundary treaties. Yet the Viema

Convention on the Lawof Treaties,whichtook account ofthe specialposition of boundarytreaties

in Article62, added no such qualificationto Article44, paragraph 3 of which expressly allowsthe

severanceof treaty provisions.

53. Second, counsel assertedthat Articles XVIII to XXII could not be removed fiom the

Treaty, because it would undermine theremaining boundary provisions. But nowhere did he

actually examine those remaining provisions, or try to show that Articles1 to XVII and

ArticlesXXIII to XXX could not continueto apply, even in the absenceof the defective "Bakassi

provisions".

54.Third, counselchose once moreto characterizeNigeria's attitude as oneof "pickingand

choosing", as if Nigeria were on some arbitrary basis selecting to retain the Articles giving

advantages for Nigeria but rejecting those seen as prejudicial. But there is nothing arbitrary in

Nigeria's position: Articles XXVIIIto XXII are tainted by a fundamental legal defect, and

therefore cannot be legally effective. Thatdoesnot applyto the otherArticles. And nor is itright

to regard the other non-defective Articles as in some way especially advantageous for Nigeria:

both States benefit equallyfiom theirprovisions.

55. Mr. President, Membersof the Court, inaddition to responding to the points made by

Cameroon in its second round, Nigeria would like to take this opportunity to give at least a

preliminary responseto the questionsput toNigeria by Judge Kooijmansand Judge Elaraby. Their

questions related to the argument about Bakassi, so they come naturally at this point in my

pleading. $

56.1Saythatthis responsewill be "preliminary"because it is apparentthat a full answerwill

require some research,and ithasnot beenpossibleto completethisinthe time available sincethesequestionswere put at the end of lastweek. What 1 Saynow is, therefore, inevitablysubject to the

fullerwritten answerwhich Nigeriawill supply by4 April.

57. JudgeKooijmans'sfirsttwo questions concemedthe extentof any consultationwith the

Kings and Chiefs of Old Calabarin the years followingthe conclusionof the Treaty of Protection

of 1884. Before making a brief comment upon eachof his questions, there are two background

points to be made.

58. The first is that dealings with the Kings and Chiefs of Old Calabar will almost

exclusivelyhave taken place locally,in what for convenience1will continue to referto as Nigeria,

even though thatit not strictlyccuratefor the earlierpart of the period. Anyrecords relating,for

example,to take JudgeKooijmans'sfirst question,to occasionswhenthe Kings andChiefs of Old

Calabaras a separateentity had forma1contactswiththeprotectingStateafter the conclusionofthe

Treaty ofProtection,will have originallybeenprepared, producedandheld locally.

59. That meansthat they willat first have beenin Old Calabar,which in due course became

the modem town of Calabar, orthenin Lagos- for althoughLagosand its immediatesurrounding

area was itselfa colonyand was thus always constitutionallydistinct fromthe Protectorate,it was,

afier about 1906,the centre of Britishadministrationfor the whole of Nigeria. British practice

regarding its administrationof itsoverseasterritorieswasgenerallynot to transfercomplete setsof

local recordsback toLondon - eitherat the time or later,for exampleat the timeof independence.

If something was sufficiently importantfor the local Govemor formally to send a report back to

London. then there is a probabiliv that that report will have survived in the Foreign Office or

Colonial Officearchiveswhicharenow in thePublic RecordOfficeatKew.

60. hlost Britishrecords ofmeetingsbetween Britishofficials and the localpeople would in

any event have meritedno more thanpreservationin Calabaror Lagos. They would,in the normal

case, be kept for onlya limitedtime- perhaps severalyears,but certainlynot for several decades.

As for records whichmay havebeenmade by the KingsandChiefsthemselves,they areunlikelyto

have been as bureaucratically-mindedas British officialswere, and such written records as they

may have madeof their dealingswiththe British are perhapseven moreunlikely to havebeenkept

by them for very long,if at all. 61. The secondbackground point 1wouldmake is thatthe Kings and Chiefsof Old Calabar

were not, as Nigeria pointed out in its Counter-Memorial,a simpleunitary entity. They were,as

there described, somethinglike whattoday we might classi@as a loose federation. Therewere a

number of Kings and Chiefs, having in commonthe fact thatthey had their territorial base in and

around the area of Old Calabar, and acting more and more, in an evolutionary process whichis

quite common, under the paramountcy of one of their number, and in this case the ruler of Old

Calabar. Over time the primacy of Old Calabar was transformed into the Obongship of Old

Calabar,and now ofCalabar. The significantdateappearsto be 1902,at which timethe Kingsand

Chiefs agreed on a system whereby the senior among them was chosen, in rotation, to be the

Obong - a title which, inthe Efiklanguage,isequivalentto King.

62.Thus when,in 1884,they neededto constitute asingleunit in order to bethe one partyto

a Treatyof Protection to which GreatBritainwasthe otherparty,they acted togetheras a unit. As

Nigeria showed during the first rounds6,in concluding that Treaty steps were taken expressly to

bring within itsambita number of local Kingsand Chiefswhowere subjectto thejurisdictionand

authority of the Kings and Chiefs of Old Calabar. But whereit was more appropriatefor one or

moreof their numberto act on their own in theirdealings withother States,they didso: they acted

as a unit, or as theireparate constituentunits, as circumstancesdictated. The federationwas both

loose andinformal,but it was nevertheless real- it was, in the words of the Courtin the Western

Sahara Advisory opinion5', a"social and political organization"of the local communities. It has

been acknowledgedthat the conclusion bylocal nilers of treaties of protection, like that of 1884,

"constitutesa recognitionof personality bothofthe ruler andof the people con~erned"~~.

63. Against that background let me address, in a preliminary way, the questions put by

JudgeKooijmans. The first question asked"how oflen and on what kind of occasionsthe Kings

and Chiefsof Old Calabaras a separateentity hadforma1contactswiththe ProtectingPowerafter

the conclusion of the 1884 Treaty of Protection". Subject to one incident which 1shall note in a

moment,Nigeria has atpresent no information either way onthis question. Nigeriacanneither Say

5 6 200218, p45,para. 30 (Sir ArthurWatts); alsoCounter-Mernorialof Nigeria, pp. 93-94,para.6.33.
57~.C.Reports1975,p. 39, pa80.

"~haw, Title to Territoty in Africa: InternationalLegal Issues (1986), p. 37: quoted at Counter-Mernorialof
Nigeria,p. 88, para. 6.20.that no suchmeetings evertook place,or that theydid takeplace. So far asis known atthe present

time, the recordswhich would enablethe questionto be answered probablyno longer exist, either

inLondon,or in Calabaror Lagos, or inthe National ArchivesofNigeria inEnuguorIbadan,

64. The one incident which1would mentionis the visitto London in 1913of certain Kings

and Chiefs ofOld calabars9. In thatyear theymadevery strong representations inCalabarat what

they saw as a British proposa1to amend the system of indigenous land tenure applicable in

South-EasternNigeria (an area which, of course,includes Bakassi). The Kings and Chiefs senta

representativedelegation to Londonto pursue the question- no small matter at that time. They

gave evidenceto the ParliarnentaryCommitteeestablished toexamine the landtenurequestion,and

a question wasasked ontheir behalfin Parliament. The delegation wassent by Eyo HonestyVIII,

Obong of Calabar, together with hisCouncil of Etuboms. The delegation consistedof some

20members: the two leading membersof the delegation werePrince BasseyDuke EphraimIX (a

member of the Native Council of Calabar and a son of the late King Duke) and

PrinceJamesEyo Ita VII, Chiefof Creek Town and agrandsonof KingEyo.

65. Judge Kooijmans'ssecond question was whether the Kingsand Chiefs of Old Calabar

were "consulted when the Protecting Power in 1885 incorporated theirtemtory in the British

Protectorate of the Niger Districts. .. which in turn had become part of the Protectorate of

SouthemNigeria when the1913Anglo-GennanTreaty was concluded". If the answerwas "no",

Judge Kooijmanswantedto know why they were not consulted; and if the answerwas "yes" he

wanted toknow what their reaction wasand whetherit was containedina formaldocument.

66.Again,this is amatter aboutwhich Nigeria, at presenthasno informationeitherway. So

far as is known at the present time,the records which would enable the questionto be answered

probably nolonger exist,either in London, or in Calabar or Lagos, or in the National Archivesof

Nigeria in Enugu or Ibadan. It seemslikely that itill proveimpossibleto Saywith any certainty,

supported by documentary evidence,that the Kings and Chiefs were not consulted,or that they

were and theiranswer was such andsuch.

59~ounter-~ernorialofNigeria, p. 179,pa(5)..3 67.To that 1would only add thatunder English law therewas no requirement thatthe rulers

of theProtectorate territorieshad to be consultedbeforea Proclamationcouldbe made unifyingin

one Protectorate the various individual British Protectorates existing in Nigeria at the time.

Consequentlytherewas noneed in Englishlaw fortheProclamationto recitethat suchconsultation
*
had taken place, and accordingly,if it had indeed takenplace, itwas not the kind of matterwhich

wouldnecessarilyhave hadto be fomally reported backto London.

68. Judge Kooijmans'sthird questionwas whetherthe "incorporation [ofthe territoryof the

Kingsand Chiefs of Old Calabar into the British Protectorate ofthe Niger Districts] bringsto an

end the purported international personalityof the Kings and Chiefs of Old Calabar as a separate

entity",and "if not, when didit ceaseto exist?"

69. The present, preliminary, answer to the main body of the question is "no". The

unificationof certain protectorate territoriesdid not resultin the instant international disappearance

of theKings and Chiefs of Old Calabar. While for Britishadministrativepurposesthere may have

been - indeed, presumablywas- conveniencein treating al1the protectorate territoriesas one,

this is not the same as saying that the protected communities legally lost their distinct legal

personalities. Those distinct personalitiesremained,subjectto the rights andobligations set outin

their respectivetreatiesof protection.

70. The continuationin law of thosetreaties ofprotection,and thus of the original parties to

themandtheir successorsintitle, was a notable featureofthe British legislationright uptothe time

of independence. As Nigeria has shown in its ~ounter-~emorial~~,British legislative actionin

relation to Nigeria always,right through to independencein 1960, distinguished carefullyand

consistently between the colony of Lagos, and the Protectorate of Nigeria. The Nigerian

Protectorate was dealt with under the terms of the Foreign Jurisdiction~cts~',which permitted

Ordersin Council to be madewhere the British Crownhad acquired power and jurisdiction in a

foreigncountry"by Treaty, Capitulation,Grant, Usage,Sufferance,and otherlawfulmeans".

71. In relation to the Nigerian Protectoratethis enactment was applied in a succession of

Orders in Council, and they included a definition of the term "treaty" forthe purposes of the

60~.107,para.6.58; pp. 117-118,para. 6.72; pp. 121-122,paras. 6.79-6.80.
61~ounter-~emorialofNigeria, 118-122,paras. 6.73-6.80.Orders. It was, so faras relevant, that the termtreaty "includes any treaty, convention,agreement

or arrangement,made onbehalf of [theCrown]with ...anyNativetribe, people,chief, orkingv6'.

72.That definitionclearly coversthe 1884Treatyof Protection with the Kings andChiefsof

Old Calabar. Moreover, the Orders in Council typically includeda statement that the rights

securedto the protectedcommunityby anytreaties or agreementscould not be derogated from by

ordinances,and that "al1such treaties and agreements shallbe and remain operative and in force,

and al1pledges and undertakingstherein containedshallremain mutually bindingon al1partiesto

the ~ame"~~.

73. This formula continued to be used in the Protectorate Orders in Council right up to

independencein 1960. It confirmsthat the Treaty'slegal existence only cameto an end with the

attainment of independencein 1960.

74. What happened to the international legal personality of the Kings and Chiefs of Old

Calabarafter 1885-the date whentheir temtories weremerged withother protectorate temtories

for British administrative purposes- is not a question susceptible of a clear-cut answer. Like

much of the constitutional and international development of the British Empire in the late

nineteenth century and the first half of the twentieth century, the matter was one of gradual

evolution. The emergenceto full internationalindependence of, for example Australia, Canada,

India,New Zealand, was a slow process, and it is difficultto pinpoint any one event by which in

each casethat processcould be said to have been completed: it was at the time a matter of much

debate.

75.And so toowith Old Calabar. Two processeswere at work. First, there was a gradual

emergenceof a singleNigerian entity. The firsttime thatthe term "Nigeria" was used in forma1

Britishlegal instrumentsappears to have been intwo Ordersin Council madein 189964,probably

as a conglomeratename invented for administrativepurposes. From then on "Nigeria" gradually

became the dominant concept, and came for many purposes- but not necessarily all- to

constitutethe legalpersonwhich wasthe subjectof theProtectorate.

62~hefull text isat Counter-Mernorialof Nigeria,p. 165,para.8.46, andat Anns. NC-M 44and 53.

63~ounter-~emorialof Nigeria, pp. 165-166,para.8.47.
"Counter-Mernorial of Nigeria, pp. 113-114,para.6.68 (5). 76.Thesecond processwhichwas atworkwas thetransformationofthe Kings and Chiefsof

Old Calabarinto the Obongshipof Calabar. Thepattern of local rulers, however, wasnever ended.

Whether as the entity "Kings and Chiefs of Old Calabar", or as individual Kings and Chiefs as

constituent components of that entity, or as the Obongs of Calabar, the authority of those local

rulers has beencontinuous, and still continuesto this day. The authority ofthe traditionalrulersis

still aignificantpart oflocal govemmentauthoritytoday.

77. At what stagewithin this process of evolutionthey can be said to have ceasedto enjoy

international personality cannotbe precisely determined. They presumably ceased to have it in

1960, when Nigeria became therecognized independent State in respect of their territoies. At

least for some purposes it would appear to havecontinued,at least untilthen. Certainly,up to that

date the Protecting State, the United Kingdom,regarded their treaties- including theTreaty of

Protectionof 1884 - asstill "operativeand inforce".

78. This Court, and its predecessor, in the cases concerning Nationalig Decrees Issued in

Tunis and ~orocco~~,Rights of Nationals of the United States of America in ~orocco~~,and

Western sahara6', set certain standards and reached certain conclusions as to the international

personality of various emerging entities. By comparison withthe particularsituations with which

the Court was dealing in those cases - the nomadic tribal Society in Western Sahara, and the

protectoratesin the other two cases- there seemsno roomfor doubtthat the Kings and Chiefsof

Old Calabar had international personality at the time of the conclusion of the 1884 Treaty of

Protection - indeed their conclusionof the Treatywas itselfa manifestationof that personality -

and they didnot lose it by virtue of that Treaty,and that that personality continuedto survivethe

various changeswhich ensuedinthe followingyears, untilindependencein 1960.

79. It will be apparent,Mr.President andMembersof the Court, that the foregoinganswers

to Judge Kooijmans's three questions can only be preliminary answers,as 1 said at the outset.

Much of the ground to be covered in preparing full answers will require further research-

particularly in Nigeria. The Nigerian tearn have already contributed an enormous amount to the

65~.~.~J.,Series B,No. 4.

661.~.~Reports 1952.
67~.~.Reports 1975.preparation of Nigeria's case,for which 1and my fellow counsel have been enormously grateful.

They have already set in hand the necessary furtherresearch, in the hope that Nigeria can answer

more definitively than 1have beenable to the three questionsput to us by JudgeKooijmans. This

we will doby4 April, as the Courthas requested.

80. Mr.President and Members of the Court, let me now tryto offer again at least a

preliminaryanswerto the question putto Nigeria byJudgeElaraby. He noted thereferencesmade

to the legal régime establishedby the League of Nations Mandate and the United Nations

Trusteeship, and then asked whether it would "be possible to elaborate further and provide the

Courtwithadditionalcommentsonthe relevanceof the boundariesthat existed duringthat period".

81.Itmayhelp the Courtif atthis point 1remind the Court,with the aid of somegraphies,of

theway in whichthe boundarybetweenNigeria and Cameroon hasdeveloped.

82. Afterthe conclusionof the two Protectorate Treatiesin 1884 between,on the one hand,

GreatBritain and the Kings and Chiefs of Old Calabar and, on the other, Germany and

Kings Akwa and Bell, Great Britain and Germany concluded a number of treaties fixing the

boundarybetweentheir respectivetemtories. By the time the First World War brokeout in 1914,

this Anglo-Germantreaty boundaryran from Lake Chad in the north to a point on the Akpa Yafe

just north ofthe BakassiPeninsula. This treaty line is depictedon the map now onthe screen,and

attab 24 inthejudges' folder.

83. With the outbreak of the War, British, French and Belgianforces occupiedthe German

tenitory of Kamerun. That occupation was completed by 1916, and the administration of the

territory was taken on by Great Britainand France. Franco-Britishnegotiations then took place

between M.Picot for France and Strachey for the United Kingdom regarding the provisional

administrationof Kamerun, includingthe depiction on a map of a line of division between their

respective areas of administration6'. The two Govemments, by an Exchange of Notes of 3 and

4 March 1916,accepted the lines drawn on themap signed bythe two negotiators. However, the

original of this map has not been foundby either Party. Thereforethe actual courseof this lineis

%ee Counter-Mernorialof Nigeria,p.488, para. 18.30.not known. In any event, wherever it ran, it was superseded in 1919by a further Anglo-French

agreement.

84. With the end of the War in 1918,Germany relinquished itstitle to the formerGerman

territory ofKamerun by Articles 118and 119 of the Treaty ofVersailles 191969. It is common

ground between the Parties that the German possession of Kamerun was one of the German

overseaspossessions coveredby theseArticles.

85. As part of the provisional arrangements madeby the Principal Allied and Associated

Powers, German Kamerun continued to be administered under the authority of the British and

French Governments. On 10July 1919the UnitedKingdomand France signed a"Franco-British

~eclaration"~~. This document is generally referred toas the Milner-Simon Declaration,those

being thenamesof the Britishand FrenchMinisterswho signedit.

86. The Milner-Simon Declaration describedthe land boundary from LakeChad- at the

mouth of the Ebedji - to the Atlantic- to seaward ofthejunction of the Matumal and Victoria

Creeks, in effect at the mouth of the Cameroon River. This boundary thus formed the eastem

boundary of the British area of Cameroons, and the western boundary of the French area of

Cameroons. It is illustratedon the mapnowon the screen,andattab 25 inthejudges' folder.

87. In 1922 the Franco-British transitional administrationwas converted into their

administration of their respectivereas of Cameroons asthe Mandatory Powers. Article 1 of the

Mandateforthe British Cameroons describedthe territorial scopeof that Mandatein the following

terms: "The territory for which a Mandate is conferreduponHis BritannicMajesty comprisesthat

part of the Cameroonswhich lies to thewestof the linelaid downin the Declaration signedon the

10thJuly 1919, of which a copy is annexed hereto." That Declaration was, of course, the

Milner-SimonDeclaration.

88. This description, in Article 1 of the Mandate, set out, by its reference to the

Milner-Simon Declaration, only the eastern boundaryof the British Cameroons. The northem,

southern and western boundaries wereleft as covered simplyby the reference to "that part of the

Cameroons": Le., if a temtory was part ofthe Cameroons,and if it lay to the Westof the line set

69~ounter-~emorialofNigeria,Vol.V,Ann.NC-M49, p.476.
70~ounter-~emorialofNigeria, pp. 488-490, par1-18.33; Ann.NC-M 50.out in the Milner-Simon Declaration,then it was covered by the Mandate and was part of the

BritishCameroons.

89. Consequently,the boundariesof the British mandatedterritory of the Cameroons were

essentially thesame as thosewhichdetemined the areaunder British transitional administrationby

virtueof the Milner-Simon Declaration,and as shownon the map still on the screen. That is,

- the northem boundarywasthe boundaryoftheformerKamerunfacingLakeChad,

- the southern boundary wasthe coastline (together with its territorial sea) of the former

Kamerunfacingthe Gulfof Guinea,and

- the western boundary was the boundary between the Nigeria Protectorate and the former

Kamerun,as describedin variousAnglo-Germantreaties.

90. In short, the languageof the territorial definitionin Article 1 of the Mandate for the

British Cameroons (and its mirror image in the Mandate for the French Cameroons) begs the

question whetherany particular piece of territory wasor was not "part of the Cameroons".This

question is, of course, of particular relevance to the position of the Bakassi Peninsula, forthe

reasons of which the Court willbe well aware, and which are fully set out in Nigeria's written

pleadings andoral arguments.

91. No forma1change wasmade to the terms of Article 1 of the Mandate for either the

Britishor French Cameroonsduring the continuanceof the Mandate. However,the Govemor of

Nigeria,Sir GraemeThomson, andthe Governorofthe French Cameroons,M.Paul Marchand,put

in hand arrangements for further specieing the boundary between the British and French

Cameroons and the result of their work was a further "Declaration .. .defining the Boundary

between Britishand French ~ameroons"", signed by them, but not dated- although it would

appear to have been signed in 1929. This Declarationis referred to as the Thomson-Marchand

Declaration. It describes the whole Anglo-French boundary,from LakeChad to the sea at, in

effect,the mouth of the Cameroon River. The Declaration wasapproved by the two Governments

in an Exchange of Notes of 9 January 1931~~. The Thomson-Marchand Declaration merely

"~nn. NC-M 54, p. 4.
72~nn.NC-M 54.attemptedto set out the Milner-SimonDeclaration in somewhat greater detail. The course of the

boundary,accordingly,wasunchanged,andremainedasshownonthe map stillon the screen.

92. In 1946,after the Second WorldWar had endedand in preparationfor the forthcoming

arrangementsfor UnitedNations Trusteeship,the United Kingdommade new arrangementsforthe
r
administration and governmentof the British Cameroons. These involved dividing the mandated

area intoa northern part anda southernpart. The dividingline between the northern and southem

partsofthe Britishmandated area of Cameroonswas setout in the Second Scheduleto the Nigeria

(Protectorate and Cameroons) Order in CounciI 1946~~- that is the "1946 Order" to which

referencewas made inthe landboundary partof the oralhearings. This administrativechangewas

solelyconcernedwith the interna1administrativelineofdivision, and did not at that time affectthe

extemal boundaries of the mandated area, in particular the boundary with French Cameroons,

which continued as before. Nevertheless, it resulted in an east-west division of the British

Cameroons inthe mannershown onthemapnow onthe screen and attab 26of thejudges' folder.

93. Essentially the same boundanes applied throughout the Trusteeship period. The

Trusteeship Agreement for the British Cameroons came into force on 13December 1946~~.It

definedthe territory to which it applied in terms equivalentto those adopted in Article1 of the

Mandate. Article 1 of the Trusteeship Agreement, however, in addition to refemng to the

Milner-SimonDeclaration, also describedthe boundary by reference to the Thomson-Marchand

Declaration. And 1 would here just note that, since the eastern boundary of the British Trust

Territoryoupht to be identicalwith the western boundaryof the French Trust Temtory, there is a

discrepancy between Article 1of each of the Trusteeship Agreements inthat, somewhatcuriously,

the FrenchAgreement doesnot containanyreferenceto the Thomson-Marchand~eclaration'~

94.Anyway,as with theMandate,Article 1oftheTrusteeshipAgreement,by itsreferenceto

the Milner-SimonDeclaration and the Thomson-MarchandDeclaration, only defined the eastern
i
boundaryof the British Cameroons. The northern, southernand western boundaries were left as

coveredsimply by the referenceto the phrase "that part of the Cameroons": in otherwords, if a

73~nn.NC-M 55.
74Ann.NC-M 56.

"~ee Counter-Mernorial ofNigeria, pp. 543aras. 19.68-19.70.territorywas partof the Cameroons, and ifit lay to theWestof theline set out inthe Milner-Simon

and Thomson-MarchandDeclarations,then it was covered by the Trusteeship Agreement. This

therefore continued, in effectt,o beg the questionwhether any particularpiece of tenitory was or

was not "part of the Cameroons" - a question,as 1Say,of particular relevanceto the positionof

theBakassi Peninsula,as already explained.

95. With the attainmentof independenceby Nigeria and Carneroonin 1960, a referendum

was held in the British Cameroons to determinewhether the population wanted to be part of

Nigeria or part ofCameroon. The Northem Carneroonsvoted to be part of Nigeria, and Southem

Cameroons voted to be part of Carneroon. This resulted in the boundary being constitutedas

shownon the mapnow on the screen andat tab 27 in thejudges' folder. And that is theboundary

today.

96. Since throughout the Mandate and Trusteeship periods the western boundary of the

territory was only describedby reference to the phrase "part of the Cameroons", it follows that

throughoutthatperiodthe questionof Bakassi'sstatus,whether asformally part of the Protectorate

or as part of the mandated, andlater trust,temtory depends uponthe answerto the prior question

whether Bakassiwas part of the German possessionof Kamerunin 1914- a question whichin

tum depends upon the proper constructionof the Anglo-GermanTreaty of March 1913. And for

the reasons which Nigeria has set out in some detail, the answerto that question has to be that

GreatBritain hadno right orpowerby that 1913Treatyto give away Bakassito Germany.

97. It followsthat the boundariesof those territories which came within the Mandate and

Trusteeship systems were, when those régimes cameto an end, precisely what they were at the

beginning, thatis in 1922. This conclusionis inescapable sinceit is accepted law that under the

Mandate and Trusteeship régimesthe Mandatory States and Administering Authorities under

TrusteeshipAgreements didnothave sovereignty overthe territoriesunder their administration. In

particular, they didnot havethepower unilaterally toalter the territories'boundariesithersoas to

increase the limits of the territories so as to diminish them. Since in relation to the Bakassi

Peninsula there wasno approvalgiven bythe Leagueor UnitedNations supervisoryorgans forany

transfer of territory,the Bakassi Peninsulahad thesameterritorialstatus in 1960as it had in 1922.

Since,as Nigeria has shown, Bakassicould not, at anytime previously, havebeen given awaybyGreat Britain to Germany, it must still at that time have been part of the Protectorate territory

govemed by the 1884Treaty of Protection, a status which it continuedto possess until Nigeria's

attainmentof independence in 1960.

98. 1 hope, Mr.President, that that preliminaryanswer will be of some assistance to the

Court. And as 1 have said, Nigeria will submit a fuller and more considered responseto

Judge Elaraby's question- and to those of JudgeKooijmans and Judge Fleischhauer- in

writing,by 4 April, asrequestedby the Court.

99. Mr. President,thatrings me to the end of this pleading. 1am gratefulto the Courtfor

its attention. Could1ask you now to cal1upon Mr. Brownlie to continue Nigeria's secondround

pleading. Thankyouverymuch.

Le PRESIDENT : Je vous remercie, sir Arthur. Je donne maintenant la parole au

professeurIan Brownlie.

Mr. BROWNLIE :Thankyou, Mr.President.

LAKE CHAD

1.Mr. President, distinguishedMembersof the Court. Inthe second round 1need to retum

to the podium to respondto certain points made by counselfor Cameroon relatingto Lake Chad.

This response will berelativelybrief becausecounselfor Cameroon didnot dwellfor very longon

the issuesspecifically relatedto Lakehadas opposed to more generalissues concemingthe land

boundaryand relatedinstruments.

2. As a preliminarymatter, Camerooncontinuesto assert that modification of a treaty-based

boundq can only take place with the consentof both parties. Nigeria does not agree with this

view ofthe law.

3. As afurtherpreliminarypoint, my distinguishedopponenttakes issue withthe description
*
of the Exchange of Notes of 1931 as programmatic. But, Mr. President, so it was (CR2002/15,

p. 36, para. 22). The Thomson-Marchand Declarationwas not self-executing and a boundary

commissionwas necessary. These arrangements didnot result in any delimitation on Lake Chad

and after the independenceof Nigeria and Cameroon theLake Chad Basin Commissionput new

arrangements in place. 4. Cameroon,both in the Reply and in the second round, contends that Nigeria is seeking to

reopen issues which were resolved by the Judgrnent on Preliminary Objections (CR 2002/15,

pp. 35-36, para. 20).

5. This contention on the part of Cameroon, in my submission, is based upon a

misunderstanding and can be disposed of quite briefly. In the part of the Judgment to which

Cameroon refers, the relevant passages (I.C.J. Reports 1998,pp. 307-309, paras. 70-72) conclude

with the Court pointing out that the issues relating to the powers of the LCBC and the legal

consequencesof the pertinent proceedings of theLCBC were issues reserved for the Merits phase.

In the words of the Court:

"It is not for the Court at this stage tole upon these opposing arguments. It
need onlynote thatNigeria cannot assertboth that the demarcationprocedure initiated
within the Lake Chad Commission was not completed and that, at the same time, that
procedure renderedCameroon's submissionsmoot. There is thus no reason ofjudicial

propriety which should make the Court decline to rule on the merits of those
submissions." (P.309, para. 72.)

6. In response to the Nigerian view relating to the Exchange of Letters of 1931 and the

history of delimitation anddemarcation on LakeChad, ProfessorCot takesthe positionthat in 1931

the Lake was full of water and that, in consequence, demarcation was physically impossible

(CR 2002115,pp. 36-37, para.23).

7. Mr.President, Nigeria appreciates Professor Cot's sense of humour but, if 1may Sayso,

his argument does not holdwater. The LCBC programme of delimitation and demarcation wasnot

related to the presence orabsence of water in the Lake, and there is no reason to believe that the

Anglo-French programmeof delimitation of 1931was conditioned by theexistence of a dry lake.

8. Nigeria is familiarwith conditions in LakeChad. Several members of the Nigerian team

have visited the region. Even when water is present, it is very shallow. And the delimitation of

international lakes is a familiar political fact: 1refer to Pondaven, LesLacs-Frontière, published

by Pedone in 1972,witha preface by Charles Rousseau.

9. Counsel for Cameroon entersinto a discussion of the eflectivitésinvoked by Nigeria in

support of her claimtothe villages (CR 2002/15,pp. 37-38, paras. 24-25).

10.Professor Cot insists that the Nigerian villages in question wouldhave been under water,

permanently, or at least seasonally, in 1960, one of the datesreferred to in the Nigerian evidence.As with his other points relating to water, counsel for Cameroon is mistaken. The villages in

question were initially created on islands which appeared when the water level decreased.

Villages,suchasKatti Kime,now exist onthe dry bed of the Lakebut were formerlyonislands.

11. As in the case of Bakassi, so inthe case of LakeChad,there is no detailed commenton

the Nigerian evidence. Intheresult the Nigerianevidence can be reaffirmed, and wemustassume

that Professor Cot has not seriously challenged either the competence or the good faith of

Christopher Hackfordand Clive Schofield,who prepared the reports, or those who evaluatedtheir

work.

12. Counsel for Cameroon asserts that counsel for Nigeria admits that Cameroon

administered the villages prior to 1987 (CR2002112, p. 49, para. 141). Consequently, it is

suggested,therecould be nolong usage (CR2002115,p. 37,para.25). However,whatwassaid on

behalfof Nigeriawas as follows:

"The evidence presentedin theReply on behalf of Cameroonhas serious flaws.
In the first place the evidence is confined to the years 1982 to 1988, with certain

exceptions. The evidenceof Nigerianactivities covers a substantiallylongerperiod."

13. Nigeria has presented substantialevidence relating to the period prior to 1982,to the

years 1982 to 1988,and alsoto the periodafter 1988. Once again, Cameroonavoids any detailed

examinationoftheNigerian evidenceof efectivités.

14. In thepresent context,it is suggestedby Professor Cotthat the Nigenan presencein the

Lake did not involvea "long-establishedusage". But there isno fixed time-limit forthe processof

historical consolidation. As the literature on the subject makes clear, historical consolidationis

distinctfiom prescription.

15.If1 canquote CharlesDe Visscheronce more:

"Proven long use, which is its foundation, merely represents a complex of
interestsandrelationswhich in themselveshave the effectof attaching atemtory oran
expanse of sea to a given State. It is these interests and relations, varying fiom one b
case to another, and not the passage of a fixed term, unknown in any event to
international law,that are taken intodirect accountby thejudge to decide in concret0
on the existenceornon-existenceofa consolidationby historictitles."

16. At least counsel for Cameroon cannot discount the literature of international law by

asserting thatatthematerialtime it was subjectto flooding. 17. Counselfor Cameroon acceptsthat many of the inhabitantsof the villages come fiom

Nigeria, but allegedthat until 1987 they carriedout their activities under the laws of Cameroon

(CR2002115, p. 38, para. 26).

18.Nigeriadenies that the lawsof Cameroonapplied until 1987. Inthe same passage of his

speech, counsel for Cameroon makes certain points about ethnicity. Nigeria did not, of course,

claimthat al1Hausa or Kanuriare Nigerian. Nigeriapointed out that the residents ofthe villages

come from Nigerian tribes, of which the Hausa and Kanuri form the major components (see

CR2002112, p.36,para. 70).

19. Finally, Cameroon repeatsher position onacquiescence (CR 20024 1,p. 38, para. 27).

TheParties havenot changedtheir positions on thisissue andNigeria would respectfully refer the

Court to the pertinent first round speech(CR2002112,pp. 50-54, paras. 151-168). In particular

Cameroon admitsthat it didnotprotestthe Nigerianpresenceinthe villages until 1994.

20. Mr. President,in concluding,affirm theposition ofNigeria in relationto Lake Chadas

explainedat lengthin my first round speechon thesubject.referto CR 2002112,pp. 18to 55.

21. 1also wish to acknowledgethe assistance1 have received fi-omChristopher Hackford,

DavidLerer andClive Schofield.

hlr. President, that completesOurpresentation for today1 would thank the Court for its

usualpatience andcourtesy. My fi-iendand colleague ProfessorAbi-Saabwill ask forthe podium

tomorrowmorning.

Le PRESIDENT : Je vous remercie, Monsieurle professeur Brownlie. Cecimet donc un

terme à ia séancede cet après-midi. LaCour se réuniraànouveau demainmatin à 10heures. La

séanceest levée.

L'audienceestlevée à 17 h 45.