Public sitting held on Thursday 14 March 2002, at 10 a.m., at the Peace Palace, President Guillaume presiding

Document Number
094-20020314-ORA-01-00-BI
Document Type
Incidental Proceedings
Number (Press Release, Order, etc)
2002/18
Date of the Document
Bilingual Document File
Bilingual Content

Non-Corrigé
Uncorrected

Cour internationale International Court
de Justice ofJustice

LAHAYE THE HAGUE

Audiencepublique

tenuelejeudi4mars 2002,àIOheures,au PalaisdelaPaix,

sous laprésidencede Guillaume,président,

en Ifaffairede laFrontièreterrestreetmaritimeentrele Camerounet leNigéria
(Camerounc.Nigéria;Guinéeéquatorial(intervenant))

COMPTE RENDU

YEAR2002

Publicsitting

held on Thursday14March 2002,at 10am., at thePeace Palace,

PresidentGuillaumepresiding,

in thecaseconcerningthe LandandMaritimeBoundaty betweenCamerounandNigeria
(Cameroonv. Nigeria: Equatorial Guineaintervening)

VERBATIM RECORDPrésents:M. Guillaume, président
M. Shi,vice-président
MM. Oda
Ranjeva
Herczegh

Fleischhauer
Koroma
Mme Higgins
MM. Parra-Aranguren
Kooijmans
Rezek

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

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

Koroma
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal

Elaraby
Judgesad hoc Mbaye
Ajibola

Registrar CouvreurLe Gouvernementde la Républiquedu Cameroun estreprésenté par :

S.Exc. M. AmadouAli, ministred7Etatchargéde lajustice,gardedes sceaux,

comme agent;

M.Maurice Kamto,doyen de la facultédes sciencesjuridiques et politiquesde l'Universitéde
Yaoundé II, membrede laCommissiondu droit international,avocat au barreaude Paris,

M. PeterY.Ntamark, professeur àla facultédes sciencesjuridiques et politiquesde l'université de
YaoundéII, Barrister-at-Law,membrede171nneT r emple, anciendoyen,

commecoagents,conseilset avocats;

M. Alain Pellet, professeuà l'universitéde Paris X-Nanterre,membre et ancien présidentde la

Commissiondudroit international,

commeagent adjoint, conseilet avocat;

M. Joseph Marie Bipoun Woum, professeur à la facultédes sciencesjuridiques et politiques de
l'universitédeYaoundéII,ancienministre, anciendoyen,

commeconseiller spécialet avocat;

M. Michel Aurillac,ancienministre, conseillerd7Etathonoraire,avocat en retraite,

M.Jean-Pierre Cot,professeurà l'université deParis 1(Panthéon-Sorbonne)a,ncienministre,

M. MauriceMendelson,Q. C.,professeur éméritd ee l'université deLondres,Barrister-at-Law,

M.MalcolmN. Shaw, professeur à la facultéde droit de l'universitéde Leicester, titulairede la
chairesir RobertJennings,Barrister-at-Lm,

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

M.Christian Tomuschat, professeur à l'universitéHumbold de Berlin, ancien membre et ancien
présidentde laCommissiondu droit international,

M. Olivier Corten, professeuàla Facultéde droit del'universitélibrede Bruxelles,

M.DanielKhan, chargéde cours àl'Institutde droit internationalde l'universitéde Munich,

M. Jean-Marc Thouvenin, professeur à l'universitéde Paris X-Nanterre, avocat au barreaude

Paris,société d'avocatsysias,

comme conseilset avocats;The Governmentof theRepublicof Cameroonis represented by:

H.E. Mr.AmadouAli,Minister of Stateresponsiblefor Justice, Keeperofthe Seals,

as Agent;

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

Mr. Peter Y. Ntamark, Professor, Facultyof Lawand Political Science,University of YaoundéII,
Bamster-at-Law, memberofthe Inner Temple,formerDean,

as Co-Agents,CounselandAdvocates;

Mr. Alain Pellet, Professor, Universityof ParisX-Nanterre, member and former Chairman of the
InternationalLawCommission,

as DeputyAgent,Counseland Advocate;

Mr. Joseph-MarieBipoun Woum, Professor,Faculty of Law and Political Science, University of
YaoundéII, formerMinister, formerDean,

as SpecialAdviserand Advocate;

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

Mr. Jean-PierreCot,Professor,UniversityofParis 1(Panthéon-Sorbonne)f ,ormer Minister,

Mr. MauriceMendelson,Q.C.,EmeritusProfessorUniversityof London,Barrister-at-Law,

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

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

Mr. Christian Tomuschat, Professor, Humboldt University of Berlin, former member and
Chairman,InternationalLawCommission,

Mr. OlivierCorten, Professor, Facultyof Law,Universitélibre deBruxelles,

Mr. DanielKhan, Lecturer,InternationalLawInstitute,UniversityofMunich,

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

as CounselandAdvocates;Sir IanSinclair, K.C.M.G., Q.C., Barrister-ut-Law, ancien membre de la Commission du droit
international,

M.EricDiamantis,avocatau barreaude Paris,Moquet, Bordes & Associés,

M.Jean-PierreMignard, avocataubarreaude Paris,sociétéd'avocatL sysias,

M.Joseph Tjop,consultant àla sociétd'avocats Lysias,chercheurau Centrede droit international
deNanterre(CEDIN),UniversitéParisX-Nanterre,

commeconseils;

M.Pierre Semengue, général d'armée,contrôleurgénéradles armées,ancienchef d'état-majordes
armées,

M. James Tataw,général de division,conseiller logistique,ancien chef d'état-majorde l'arméede
terre,

S.Exc.MmeIsabelleBassong, ambassadeur du Cameroun auprès des pays du Benelux et de
l'Unioneuropéenne,

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

S.Exc.M. MartinBelingaEboutou, ambassadeur, représentanp termanent du Cameroun auprèsde

l'organisation desNationsUniesàNew York,

M. Etienne Ateba, ministre-conseiller, chargé d'affaires a.à. l'ambassade du Cameroun,
àLa Haye,

M. Robert Akamba, administrateurcivil principal, chargéde mission au secrétariat géndle la
présidencede la République,

M.Anicet Abanda Atangana, attachéau secrétariat généra dle la présidencede la République,
chargé de courà l'universitédeYaoundéII,

M.Emest BodoAbanda,directeurducadastre,membrede la commissionnationaledesfrontières,

M.OusmaneMey, ancien gouverneurde province,

Le chef SamuelMoka LiffafaEndeley,magistrat honoraire, Barrister-ut-Law,membre du Middle
Temple (Londres),ancien présidentde la chambreadministrativedelaCour suprême,

MeMarc Sassen,avocat et conseiljuridique, sociéPetten,Tideman& Sassen(La Haye),

M.Francis Fai Yengo, ancien gouverneur de province, directeurde l'organisation du territoire,
ministèredel'administration territoriale,

M.Jean Mbenoun,directeur de l'administration centrale au secrétaténéradle la présidencede
laRépublique,Sir Ian Sinclair, K.C.M.G., Q.C., Bamster-at-Law, former member of the International Law
Commission,

Mr.EricDiamantis,Avocat at the ParisBar,Moquet, Bordes & Associés,

Mr.Jean-Pierre Mignard,Avocat attheParisBar,LysiasLawAssociates,

Mr. Joseph Tjop, Consultant to Lysias Law Associates,Researcher at the Centre de droit
international deNanterre(CEDIN), Universityof ParisX-Nantene,

as Counsel;

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

Major-GeneralJames Tataw,LogisticsAdviser,FormerHeadof Staffofthe Amy,

H.E.Ms Isabelle Bassong, Ambassador of Camerootno theBenelux Countriesandto the European
Union,

H.E.Mr.Biloa Tang, AmbassadorofCameroonto France,

H.E. Mr. Martin BelingaEboutou, Ambassador, PermanentRepresentative of Cameroon to the
UnitedNations in NewYork,

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

Mr. Robert Akamba, Principal Civil Adrninistrator, Chade mission, General Secretariatof the
Presidencyof theRepublic,

Mr. AnicetAbandaAtangana, Attaché to the General Secretariatof the Presidency ofthe Republic,
Lecturer,Universityof YaoundéII,

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

Mr. OusmaneMey, former Provincial Governor,

Chief Samuel Moka Liffafa Endeley, Honorary Magistrate, Barrister-at-Lawm , ember of the
Middle Temple (London), former Presidentof the Administrative Chamber of the Supreme
Court,

Maître MarcSassen,Advocate andLegalAdviser,Petten,Tideman & Sassen(TheHague),

Mr.FrancisFai Yengo,formerProvincial Governor, Director,Organisationdu Territoire,Ministry
of Territorial Administration,

Mr. Jean Mbenoun,Director, Central Administration, General Secretarotf the Presidencyof the

Republic,M.Edouard Etoundi, directeur de l'administrationcentrale au secrétariatgénérade la présidence
de la République,

M.RobertTanda,diplomate, ministère desrelationsextérieures

commeconseillers;

M. SamuelBetahSona, ingénieur-géologue, expecro tnsultantdel'organisation des Nations Unies
pour le droitde la mer,

M.Thomson Fitt Takang, chef de service d'administration centrale au secrétariatgénéral de la
présidencede la République,

M.Jean-JacquesKoum, directeurde l'exploration,société nationaledes hydrocarbures (SNH),

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

M.Paul Moby Etia, géographe, directeu dre l'Institutnational decartographie,

M.AndréLoudet,ingénieurcartographe,

M.AndréRoubertou,ingénieurgénéral de l'armement, hydrographe,

commeexperts;

Mme MarieFlorence Kollo-Efon, traducteur interprète principal,

commetraducteurinterprète;

Mlle CélineNegre, chercheurau Centrede droit internationaldeNanterre (CEDIN),Universitéde
ParisX-Nanterre

Mlle SandrineBarbier,chercheurau Centre de droit internationaldeNanterre (CEDIN), Université
deParis X-Nanterre,

M. Richard Penda Keba, professeur certifié d'histoire, cabinedtu ministre de la justice, ancien
proviseurdelycées,

commeassistantsde recherche;

M.Boukar Oumara,

M. Guy RogerEba7a,

M.AristideEsso,

M.Nkende Forbinake,

M.Nfan Bile,Mr. Edouard Etoundi, Director, Central Administration, GenerS alecretariat of the Presidency of
theRepublic,

Mr. RobertTanda,diplomat, MinistryofForeign Affairs,

asAdvisers;

Mr. SamuelBetah Sona,Geological Engineer, Consulting Experttothe UnitedNations forthe Law
ofthe Sea,

Mr. ThomsonFitt Takang, DepartmentHead, Central Administration, General Secretariatof the
Presidencyofthe Republic,

Mr. Jean-JacquesKoum,DirectorofExploration, NationalHydrocarbonsCompany (SNH),

Commander Jean-Pierre Meloupou, Head of AfiicaDivisionat the MinistryofDefence,

Mr.PaulMobyEtia, Geographer, Director,Institut nationalde cartographie,

Mr.André LoudetC , artographicEngineer,

Mr. André Roubertou, Marine Engineer, Hydrographer,

as Experts;

MsMarie Florence Kollo-Efon, Principal Translator-Interpreter,

as Translator-Interpreter;

Ms Céline Negre, Researcher,Centre d'étudesde droit international de Nanterre (CEDIN),
UniversityofParis X-Nanterre,

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

Mr. Richard Penda Keba,Certified Professor of History, cabinet of the Minister of State for
Justice, formerHead ofHigh School,

as ResearchAssistants;

Mr. Boukar Oumara,

Mr.GuyRogerEba7a,

Mr.Aristide Esso,

Mr.Nkende Forbinake,

Mr. NfanBile,M. Eithel Mbocka,

M. OlingaNyozo'o,

commeresponsables de la communication;

Mme RenéeBakker,

Mme Lawrence Polirsztok,

Mme Mireille Jung,

M.Nigel McCollum,

Mme TeteBéatriceEpeti-Kame,

commesecrétairesde la délégation.

Le Gouvernementdela République fédérale duNigériaestreprésenté par :

S. Exc. l'honorableMusa E. Abdullahi, ministred3Etat,ministre de la Justice du Gouvernement
fédéradluNigéria,

commeagent;

Le chef RichardAkinjide SAN, ancien Attorney-General de la Fédérationm , embre du barreau
d'Angleterreetdu pays de Galles, ancienmembre de laCommissiondu droit international,

M. AlhajiAbdullahi Ibrahim SAN, CON, commissairepour les frontières internationales,
commissionnationaledesfrontièresduNigéria, ancien Attorney-Generalde la Fédération,

commecoagents;

MmeNella Andem-Ewa, Attorney-General ectommissaire à lajustice, Etat de CrossRiver,

M. Ian Brownlie, C.B.E., Q.C., membre de la Commission du droit international, membredu
barreau d'Angleterre, membrede l'Institutde droit international,

Sir Arthur Watts, K.C.M.G.,Q.C.,membredu barreau d'Angleterre,membre de l'Institut de droit
international,

M. JamesCrawford, S.C., professeurde droit internationàl'universitéde Cambridge, titulairede
la chaire Whewell,membre des barreaux d'Angleterre et d'Australie, membr dee l'Institut de
droit international,

M. GeorgesAbi-Saab, professeur honoraire à l'Institut universitaire de hautes études
internationalesde Genève,membrede l'Institutde droit international,

M. Alastair Macdonald, géomètre, ancien directeuer170rdnanceSuwey,Grande-Bretagne,

commeconseilset avocats;

M. TimothyH.Daniel,associé,cabinetD.J.Freeman,Solicitors, Cityde Londres,Mr.Eithel Mbocka

Mr.OlingaNyozo'o,

as Media Oficers;

MsRenéBakker,

MsLawrencePolirsztok,

Ms MireilleJung,

Mr.Nigel McCollum,

MsTete BéatriceEpeti-Kame,

as Secretaries.

TheGovernmentoffheFederalRepublicofNigeriaisrepresentedby:

H.E.the HonourableMusa E.Abdullahi, Minister of State for Justiceof the FederalGovemmentof
Nigeria,

asAgent;

ChiefRichard Akinjide SAN, Former Attorney-Generalof the Federation, Memberof the Bar of
EnglandandWales, formerMemberof the International LawCommission,

AlhajiAbdullahiIbrahim SAN,CON, Commissioner, International BoundariesN , ational Boundary
CommissionofNigeria,Former Attorney-General of the Federation,

as Co-Agents;

Mrs.Nella Andem-Ewa, Attorney-General and Commissioner forJustice, CrossRiver State,

Mr. Ian Brownlie,C.B.E., Q.C., Member ofthe International LawCommission, Member of the
EnglishBar,Memberof theInstituteofInternational Law,

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

Mr. James Crawford, S.C., Whewell Professor of International Law, University of Cambridge,
Memberof theEnglish and Australian Bars, Membeo rf the Instituteof InternationalLaw,

Mr. Georges Abi-Saab,Honorary Professor,Graduate Institute of International Studies, Geneva,
Memberof theInstituteof International Law,

Mr.Alastair Macdonald, Land Surveyor, Former Director, OrdnancS eurvey, GreatBritain,

as CounselandAdvocates;

Mr.Timothy H.Daniel, Partner,D. J. Freeman, Solicitors, City London,M. Alan Perry,associé,cabinetD.J. Freeman,Solicitors,Cityde Londres,

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

M. ChristopherHackford,solicitor, cabinetD.J.Freeman,Solicitors,Cityde Londres,

Mme CharlotteBreide, solicitor, cabinetD.J.Freeman,Solicitors,CitydeLondres,

M. Ned Beale,stagiaire,cabinetD.J. Freeman,Solicitors,Cityde Londres,

M. GeoffreyMarston, directeur du département des étudejs uridiques au Sidney Sussex College,
Universitéde Cambridge, membredu barreaud'Angleterreet du Paysde Galles,

M. MaxwellGidado, assistant spécial principal du président pour les affaires juridiques et
constitutionnelles,ancienAttorney-Generalet commissaireàla Justice,Etat d'Adamaoua,

M. A. O.Cukwurah, conseiladjoint, ancien conseilleren matière de frontieres(ASOP) auprèsdu
Royaumedu Lesotho,ancien commissairepour les frontieres inter-Etats,commissionnationale
des frontières,

M. 1.Ayua,membre del'équipejuridiqueduNigéria,

M. K. A.Adabale, directeurpourledroit internationalet ledroitcomparé,ministère delajustice,

M. Jalal Arabi,membrede l'équipejuridiqueduNigéria,

M. GbolaAkinola,membrede l'équipe juridique duNigéra,

M. K. M.Tumsah, assistant spécialdu directeurgénérad le la commissionnationale des frontières
et secrétairede l'équijuridique,

commeconseils;

S. Exc. l'honorableDubemOnyia,ministredYEtatm , inistredes affairesétrangères,

M. AlhajiDahiru Bobbo,directeurgénéralc ,ommissionnationaledes frontières,

M. F. A.Kassim, directeur généradlu servicecartographiquede la Fédération,

M. AlhajiS.M. Diggi, directeurdesfrontièresinternationales, commissionnationaledes frontières,

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

M. AliyiuNasir, assistantspécialduministred'Etat,ministrede la Justice,

commeconseillers:

M. ChrisCarleton,C.B.E.,bureauhydrographiqueduRoyaume-Uni,

M. Dick Gent,bureau hydrographiquedu Royaume-Uni,

M. Clive Schofield,unitéde recherchesur lesfrontièresinternationales,UniversitédeDurham,

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

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

Mr.Christopher Hackford,Solicitor,D.J. Freeman, Solicitors, Cityof London,

MsCharlotte Breide, Solicitor, D..Freeman,Solicitors,City of London,

Mr.Ned Beale,Trainee,D.J. Freeman, Solicitors,City ofLondon,

Dr. GeoffreyMarston,Fellowof Sidney SussexCollege,Universityof Cambridge; Memberof the
Bar of Englandand Wales,

Mr. Maxwell Gidado, Senior Special Assistantt the President(Legal and Constitutional Matters),
FormerAttorney-Generaland Commissioner forJustice,Adamawa State,

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

Mr. 1.Ayua, Member, NigerianLegalTeam,

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

Mr.Jalal Arabi,Member, NigerianLegalTeam,

Mr.GbolaAkinola, Member, Nigerian LegaT l eam,

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

asCounsel:

H.E.the HonourableDubemOnyia,Ministerof Statefor Foreign Affairs,

AlhajiDahiruBobbo, Director-General, National Boundary Commission,

Mr.F. A. Kassim, Surveyor-General of the Federation,

AlhajiS. M.Diggi,Director(International Boundaries), National Boundary Commission,

ColonelA. B.Maitama,Ministry of Defence,

Mr.AliyuNasir,SpecialAssistantto the Minister ofStatefor Justice,

asAdvisers;

Mr. ChrisCarleton,C.B.E.,United KingdomHydrographicOffice,

Mr.Dick Gent,United KingdomHydrographic Office,

Mr. Clive Schofield, International Boundaries Research Unit, Universiofurham,

Mr. ScottB.Edmonds,Directorof CartographicOperations, InternationalMapping Associates,M.RobertC. Rizmtti, cartographe principal,International Mapping Associates,

M. BruceDaniel,International MappingAssociates, .. .

MmeVictoria J. Taylor,International MappingAssociates,

MmeStephanieKimClark,InternationalMappingAssociates,

M.RobinCleverly,Exploration Manager,NPAGroup,

MmeClaire Ainsworth,NPA Group,

comme conseillersscientifiqueset techniques;

M. Mohammed Jibrilla,experten informatique,commission nationaledes frontières,

Mme CoralieAyad, secrétairec ,abinetD. J. Freeman,Solicitors,Cityde Londres,

Mme ClaireGoodacre, secrétairec ,abinetD. J. Freeman,Solicitors,City de Londres,

MmeSarahBickell, secrétairec ,abinetD.J. Freeman,Solicitors,Cityde Londres,

MmeMichelle Burgoine, spécialisteen technologie de l'information, cabinet D. J.Freeman,
Solicitors,CitydeLondres,

commepersonnel administrat$

M. GeoffreyAnika,

M.MauOnowu,

M. Austeen Elewodalu,

M.UsmanMagawata,

commeresponsablesdela communication.

Le Gouvernementde la Républiquede Guinéeéquatoriale,qui est autorisée à intervenirdans
l'instance, est représenéar :

S. Exc. M. RicardoMangueObamaN'Fube, ministre dYEtat,ministre du travail et de la sécurité
sociale,

commeagentetconseil;

S.Exc. M.RubénMayeNsue Mangue, ministre de la justice et des cultes, vice-présidentde la
*
commissionnationaledes frontières,

S.Exc. M. CristobalMafianaElaNchama, ministre des mines et del'énergie,vice-présidentde la
commissionnationaledes frontières,

M.DomingoMbaEsono, directeur national de la société nationale de pétrole de
Guinée équatoriale, membre d lecommission nationaledes frontières,Mr. Robert C.Rizmtti, Senior MappingSpecialist,InternationalMappingAssociates,

Mr. Bruce Daniel, International Mapping Associates,

Ms VictoriaJ. Taylor, International Mapping Associates,

Ms Stephanie Kim Clark, International appingAssociates,

Dr.Robin Cleverly, Exploration ManagerN, PA Group,

Ms ClaireAinsworth, NPAGroup,

asScientificand TechnicalAdvisers;

Mr. Mohammed Jibrilla, Computer Expert, National Boundar Cyommission,

Ms Coralie Ayad, Secretary,D.J. Freeman, Solicitors, Cityof London,

Ms Claire Goodacre, Secretary, DJ. Freeman, Solicitors,City of London,

Ms SarahBickell,Secretary,D.J. Freeman, Solicitors, Cityof London,

Ms MichelleBurgoine,IT Specialist,D.J.Freeman, Solicitors, Cityof London,

asAdministrators,

Mr.Geoffrey Anika,

Mr. MauOnowu,

Mr. Austeen Elewodalu,

Mr.UsmanMagawata,

as Media Offieers.

TheGovernmentof the RepublicofEquatorial Guinea,whichhasbeenpermittedto intervenein
thecase, is representedby:

H.E. Mr.RicardoMangueObamaN'Fube,Ministerof Statefor Laborand Social Security,

asAgent andCounsel;

H.E. Mr. RubénMaye Nsue Mangue, Minister of Justice and Religion, Vice-Presidentof the
National Boundary Commission,

H.E. Mr. CristobalMafiana Ela Nchama, Minister ofMines and Energy, Vice-President of the
National Boundary Commission,

Mr. Domingo Mba Esono, National Director of the Equatorial Guinea National Petroleum

Company, Memberof theNational Boundary Commission,M. AntonioNzambi Nlonga,Attorney-General,

commeconseillers;

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

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

commeconseils et avocats;

Sir DerekBowett,

commeconseilprincipal,

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

commeconseil;

Mme JannetteE. Hasan, membre du cabinet LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
Washington, D.C., membre du barreau du district de Columbia et du barreau de 1'Etatde
Floride,

M. HervéBlatry, membredu cabinetLeBoeuf,Lamb, Greene & MacRae, L.L.P.,Paris, avocàla

Cour,membredubarreau de Paris,

commeexpertsjuridiques;

M. CoalterG. Lathrop,SovereignGeographicInc., Chape1Hill,Caroline duNord,

M. Alexander M. Tait,Equator Graphics,SilverSpring,Maryland,

commeexperts techniques.Mr. AntonioNzambiNlonga, Attorney-General,

asAdvisers;

Mr. Pierre-Marie Dupuy, Professor of Public International Law atthe University of Paris
(Panthéon-Assas) anat the EuropeanUniversity Institutein Florence,

Mr. DavidA. Colson,LeBoeuf, Lamb, Greene & MacRae,L.L.P., Washington,D.C., member of
the California StateBar and Districtof Columbia Bar,

asCounselandAdvocates;

SirDerekBowett,

asSenior Counsel;

Mr. DerekC. Smith, LeBoeuf, Lamb,Greene & MacRae,L.L.P., Washington,D.C.,member of the

Districtof ColumbiaBar and VirginiaState Bar,

asCounsel;

Ms JannetteE. Hasan,LeBoeuf, Lamb,Greene & MacRae, L.L.P., WashingtonD, .C., memberof
the Districtof ColumbiaBar andFlorida StateBar,

Mr. Hervé Blatry, LeBoeuf, Lamb,Greene& MacRae, L.L.P., Paris, Avocàtla Cour, memberof
the ParisBar,

asLegalExperts;

Mr. CoalterG. Lathrop,Sovereign GeographicInc.,Chape1Hill, North Carolina,

Mr. Alexander M. Tait,EquatorGraphics,Silver Spring,Maryland,

as TechnicalExperts. Le PRESIDENT :Veuillez vous asseoir. Laséanceest ouverte. Nous entamons aujourd'hui

le deuxième tourde plaidoiries pourla République Fédérale du NigérJ ie.donne immédiatement

laparole auchef Richard AkinjideSan, coagent de la République Fédérale du Nigéria.

Mr. AKINJIDE:

1. Mr. President, distinguished Members of the Court. It is again my privilegeto address

this honourableand august Courtin openingthe secondroundof oral presentations forthe Federal

Republic of Nigeria. This is a great honourfor me, appearingbefore the most powerful and the

most prestigious courtin the world. 1have been associatedwith this case fiom its outset in

March 1994.

2. Before 1proceed with my presentation 1would like to acknowledge thepresence in court

on my lefi ofHis Majestythe Obong ofCalabarand his Majesty'sQueen,and his seniorEtubul of

Bakassi, who is also Sittingon the left of Her Majesty. To give them their full title, 1state as

follows: HisMajesty Edidem, Professor Nta Elijah Henshaw VI, the Obong of Calabar, Treaty

King, NaturalRuler and GrandPatriarchof theEfiks whereverthey may be,and on His Majesty's

immediate left is Her Majesty Mrs. Grace Henshaw, and immediateltyo the lefi of Her Majestyis

HisRoyal HighnessEtubom,OkonEtimOkon AsuquoIII,who isthe EtinyinAkambaof Bakassi.

3. Mr. President, 1would liketo begin with a comment on some of the remarks madeby

Cameroon'sCo-Agent in his openingof Cameroon'ssecondround presentation. 1will, if1may,

summarize themin English. On the one hand,he criticizes Ourteam for "not playingthe gameat

the public hearings" by repeating matters containedin Nigeria's pleadings. On thother hand,he

said that there were new elements which wouldraise eyebrows. He accusedus of contradictions

and of tryingtoensurethat the Courtdoesnot rule on Cameroon's request. He saidwe claimed to

be consistentbut were inconsistentandthatOurinconsistencies developedthe casein sucha wayas

to bringus closertogetherin certain respects.

4. Mr. President,l1theseremarks leaveme in a state ofsome confusion. Nigeria believesin

givingthe factsto the Courtin an effortto assistthe Courtin reaching adecision. Wehavetriedto

do this in as straightfonvard away as possible and will leaveto the Court the questionof deciding

on the validityof our submissions. Nigeria hasnothingto fearfiom the Court's scrutinyof its case.One strikingfeatureof the oral procedure is that it highlightsthe credibilityof the assertions being

made by eachof the Parties. By credibility, Mr. President,1do not mean relativelyminor matters

such as an incorrect statistic or two- such errors can always be corrected. No, what1 am

referring to is the good faith of the Parties. In this respect it is my sincere belief that the Court,

when it analysesal1thathas been saidand written,will not find Nigeriawanting. Time andagain,

however,Nigeria's advocateshavehad to highlight issues on whichCameroon seemseither to fail

to face up to the truth and inventsnew allegationsor in some cases avoids the truth altogether.1

shall refer to some of these issuesin my presentationtoday: others willbecome apparentduring

the presentationsof my colleagues.

5. It is, however,Cameroonwhich seeksto make outthat Nigeriais a countrywhich cannot

be trusted and fails to keepher word. Nowherewas thismore apparentthan in the closingremarks

of Cameroon'sdistinguishedAgenton Tuesday. He madeit clearthat Cameroonis, in fact,unable

to sit down with Nigeriain the sameroom without third parties being present "to see fair play".

This is a remarkable assertion,Mr.President, and one which has greatly saddenedthe Nigerian

team.

6. It will not haveescapedtheCourt'snoticethat, fortunately,Nigeria's otherneighboursdo

not seem to suffer from the same paranoia. The examples of Nigeria's treaties with Equatorial

Guinea and Sao Tome and Principe give the lie to Cameroon's assertion that Nigeria is an

impossibleneighbour. Yet, Cameroon cannot bearto seethese examplesof Nigeria's willingness

to encourageinternational CO-operation.We are accused of having used threats or worse in order

to bully Ourneighbours into submittingtothesetreaties.

7. Mr.President and Members of the Court, Equatorial Guineawill be able to speak for

herselfduringthe interventionroundnext week. Sao Tomeand Principeis not beforethe Court-

to Cameroon'sapparentregret. Nigeria regretsthat too. IfSaoTome and Principehad been before

the Court shewouldhavebeen ableto tell theCourt how the two countrieshave negotiated oneof

the largestjoint developmentzones inthe world in which resources wilbl e sharedon a60140basis:

that is, 60per cent willgoto Nigeria, with a populationof 120million atleast, and40 per cent will

go to SaoTome andPrincipe whichhas a populationof approximately 120,000. Such generosity

onthe part ofNigeria doesnot sendout the messageof a bullying Stateor a bullying neighbour. 8. In addition to the treaties 1havejust referred to, Mr.President, Nigeria is, as has been

mentioned, negotiating a maritime boundary treaty with her western neighbour, that is, the

Republic of Benin. Whenthe result of those negotiations is seen,Nigeria does not thinkthat she

will be accused of having pressurized her much smaller neighbour into an unfair or inequitable

bargain.

9. As to Nigeria's other boundaries,Nigeria and Benin have a Joint Boundary Commission

which meets on a regular basis and is makingreal progress withresolving issueson theircornmon

boundary. The same goes for Nigeria's northem neighbour,the Republic of Niger. TheNational

Boundary Commissionis tackling these boundaries with al1the benefits of modem technology,

including GPSand satelliteimagery. Mapsthat are being used are at a scaleof 1:50,000and are,

forthe most part,maps producedby DOSand IGN. There are issuesrelatingto villageswhich are

"on the line", yet these issues are being resolved amicably in a constructive atmosphere

unhamperedby fear, despitethe disparityinthe sizesof the respectivepopulations.

10. Mr.President, so where is Cameroon'sproblem? Insteadof Sittingdown withNigeria,

shehas felt it necessaryto come beforethis honourable Courtand involveboth Parties in lengthy

proceedings involvinghuge expenses. At the end of the day, she asks the Court to set up some

kind of arbitration procedureinvolvingthird parties. Mr.President,you willbe hearingmorefiom

my colleaguesconceming these proposals. 1wouldjust like to place on recordthat Nigeriafinds it

extraordinarythat Cameroonseems nownot only to be unable to trust Nigeria but now,also, she

seems unable to tmst the outcome of theseproceedings,at leastin so far as they relateto the land

andmaritimeboundaries.

11. Following theseremarks, 1wouldlike to move on to someof the specific issuesraised in

theseproceedingsand do sonot onlyasamemberofNigeria'slegalteam sincethe inceptionof the

case in March 1994, but alsoas a formerAttorney-Generaland Minister of Justice of the Federal

Republic ofNigeria duringthe last civiliangovemment, that of President ShehuShagari,who was

inpower fiom 1979to 1983.

12. 1 think it is quite true to Say, Mr. President and Members of the Court, that when

President Shagari came to power, Our relations with Our neighbour Carneroon were cordial.

Negotiationsonboundaryissues,manyofwhich were listedbyme duringthe course of thehearingon Nigeria's second preliminary objectio,ere proceedingmuch asthey had alwaysdone. There

were joint committees of technical experts, politicalmeetings and joint confidence-building

measures. Progressmay havebeen relativelyslow, but thisstemmedinpart from thefactthatthere

was no hint of any realtroublealongOurextensivecommonlandboundary.

Bakassi

13. Al1 this changed dramatically in May 1981. The incident of 16May 1981 has been

referredto rightkomthe start of these proceedings. Nigeria,1believe, demonstrated beyondany

reasonable doubt that Cameroonwas the aggressor, yet Cameroon still attempts to paint the

incident in differentcolours. What 1can be sure about, Mr. President,and Membersof the Court,

is the effect it had on PresidentShagari's Govemment. That Governmentwas galvanized. Outof

the blueNigeria had a neighbour, whom shehad previously regardedas friendly, ambushingand

killing members of her armed forces. The outrage in Nigeria was huge: PresidentShagari7s

Cabinet metin urgent session. It was a clear act of provocationon the part of Cameroon which

might have had very serious consequences. But, in the event, Nigeria wasnot provoked. We

decided togive Cameroon the chance toapologize. Cameroon, sensibly, took that chance.But a

marker had been laid down. In my own case, as Ministerof Justice and the Attorney-General1

resolved to probemore deeply into the legalsituation regarding Ourcommon boundary. 1caused

extensive research to be undertaken. That research was still continuing when

PresidentShehu Shagari's Govemmentwas overthrownbythe militaryat the endof 1983.

14. In conducting that research,1 came, in particular, torealize that Cameroon had a

potential claimto Bakassi basedon the 1913Treaty. Atthe sametime, however, 1knew thatthere

was something radically wrong here. Bakassw i as, and so far aswas aware, had always been,

regardedby Nigerians as beingpart of Nigeria. It was inhabitedby Nigerians and was govemed

by Nigerians formingpart of the localgovemment area in that region. There had not, so far as 1

was aware,been a Cameroonian claim toBakassi as such. Over the years that followed,and in

particularduringthe courseof the preparationof Nigeria'swritten pleadin1have becomeaware

of the existenceof one orwo ProtestNotesbut 1can honestlySaythat, at the time1was in office

as Attorney-General,Bakassihadnot, untilMay 1981,beenregarded as aproblem. 15. Mr. President, in retrospectthis seems the more amazing when one considers the

prominencewhich Cameroonhas givento the 1975Maroua Declaration in these proceedings.

16. 1would like, if1may, to give my ownperception of Maroua. In doing so,1shouldSay

that it is,1believe, a perception whichis shared by many Nigerians.The MarouaDeclaration was

made on the 1June 1975. Less than two months later, to be exact in July1975,

General YakubuGowonwas overthrown in a bloodless military coup.

17.Itwas not longbefore Nigerians beganto question the validityof the Maroua Declaration

and, inparticular, GeneralGowon'sabilityunderthe Constitutionto haveboundNigeriato it. You

will hear more on the constitutional positionlater in our presentations. Whatis quite clear,

however, is that in 1978, in the Nigeriancity of Jos, Nigeria had made it absolutely clearto

Cameroon thatshe didnot regard Maroua as being binding upon her.Cameroonhas accepted that

this was theposition.

18. Mr. Presidentand Membersof the Court, 1have to say that there were many practical

reasons for Nigeria not to regard Maroua as a binding instrument, quite apart fiom the

constitutional issues. One glance at the map on the screen andat tab 1of thejudges' folderwill

showthecausesofNigeria's concems.[Graphic1 :map ofCrossRiverIcalabar estuary.]

19. Mr. President,the Court has been shown variations of this map many timesduringthe

course of these proceedings. There arefour majorrivers whichdrain intothe CrossRiver estuary.

There is the Cross River itself, there is the Calabar River, the Kwa River and thereis the Akwa

Yafe River. The estuarygives accessto Calabar,a largeNigerian citywhich was very nearly made

the capital ofNigeria, but Lagos was chosen instead. At CalabarNigeria has a major navalbase.

Nigerian navy vesselsproceed up and down the estuary on a daily basis. The estuary is

approximately20 km wide. Anyvesse1passingup and downthe estuaryis well within gunshotof

eitherbankof the estuary.

20.The implicationsare obvious,Mr. President. CanNigeriaseriouslycontemplate having a

majorpart of her fleetpassing up anddown a narrow stretch ofwater on a regular basis beneath the

guns of Cameroon? It isjust not credibleromapractical,military pointof view.

21. Yet this would be the practical result if the MarouaDeclaration were to be regardedas

conferring sovereigntyover Bakassion Cameroon. 22.Nigeria admitsthat there is,for Cameroon, anaccessproblem asfar as the Akwa Yafe is

concerned. This watercourse forms,for most of itslength,a major landboundary. It wouldseem

obviousthat both Nigeriaand Carneroonshouldhave equalaccess to the river which dividesthem.

In reality,however, themajority of Camerooniantrafficwhich comesup the Cross Riverestuaryis

bound for Calabar. Verylittle Camerooniantraffic,in fact,goes up theAkwa Yafewhich is, in any

event, only navigable for about 50km before reaching the first set of rapids. This is probably

because there is not muchneed for it to do so as Calabar,with al1its markets, is the major local

commercialcentre.

23. Nigeria would have had no objection in principle to access to the Akwa Yafe being

granted to the normalrivertraffic of Cameroonor indeedboats of any other nationality, subjectto

proper controls. 1understandthat the Court in the recent case of Kasikili/SeduduIsland between

Namibia andBotswana recognized,of its own volition,access to the Botswanan southem channel

of the Chobe River by Namibian tourist boats. Nigeriawould have no difficulty with a similar

arrangementgranting accessto the AkwaYafe.

24. 1said earlierthat 1commissioned research intothe legal statusof the Nigeria-Cameroon

boundary. As a result ofmy efforts aconsiderablebodyof documentaryevidence was amassed. 1

was, as 1said, never ableto take the rnattervery rnuchfurther fonvard because of the downfallof

the Government. 1thinkhowever it isworth makingtwopoints here. The first is that, even atthat

early stage, 1 did have cause to look at the earlierTreaties of Protection and 1was stnick by the

same thought that has been articulated so effectivelyby Sir Arthur Watts. As a common-law

lawyer,1was unable to"trace title" fromthe Kings andChiefs to Germany viaGreatBritain. The

Roman doctrine "nemodut quod nonhabet" is a basic concept in every legal system, asfar as 1

know. The second point 1 would like to make is that, with al1 due respect to my learned

predecessor in office asAttorney General,Dr.T. O.Elias, and his statureas a public international

lawyer, 1 have no means of knowing what materialshe had at his disposa1when he wrote that

opinion. A lawyer's opinion is onlyasgood ashisbriefing.

25. Following the military coup at the end of1983,1had effectively to live abroad for the

next ten years or so. Whilst I thought from time to tirne about the Bakassi situation1 was not

aware of outward change. Nigerian citizens continued tolive in peace on Bakassias far as 1 wasaware. No doubtthere continuedto be occasional harassmentby Cameroongendarmes but, in a

way,there wasnothing newinthat. It was well knownthat Cameroon gendarmeswere poorlypaid

and that the Nigerians livingin Bakassi and, indeed, in otherborder regions, were hard working

and,relativelyspeaking,prosperous.

26. Mr. President,one has only to look at thefishing fleetsailing fiom West Atabongto see

thatthese are seriousfishermen- we counted nearly100largecanoes on Ourfield trip in 1997. If

youvisit mainlandAtabong you will seenot onlylarge open ferryboats transfemng peopleto and

fiom the mainlandto the Atabongs on Bakassi - that is WestAtabong and East Atabong- but

also huge quantities of fish being landed and loaded into refiigeratedtrucks to be transported

inland. Fish is,and has always been,an importantstapleintheNigerian diet.

27. By contrast,as 1know fiom having spokento theNigerian fishermenon Ourfield trips,

there is no great activity by Carneroon fishermenalong the Coast. At West Atabong we have

fishermen fiomas far afield as Ghana, Beninand Togo, fishingfreely alongsideNigerians in the

waters in and around Bakassi. Seldom, if ever, do Cameroonfishermen appear. Whenthey do

appearNigeriadoesnot shootthem. Regrettably,that has notbeen the casewithOurneighbours,as

Nigeria's counter-claims have showna,nd by that"neighbour"we mean Cameroon. In any event,

the existence of a peaceful, wellorganized and relatively prosperous community livingnear the

bordersof Nigeria has, over the years, been an irresistible targetfor Cameroonianofficials intent

ontraditionalmethodsof supplementingtheir nodoubtmeagre persona1income.

28. The Courthas seenthe photographs ofBakassiprovided by Nigeria. It has alsoseenthe

short video. The Court will thereforehave some understandingof the topography of the area.

Cameroon's counsel called into questiotnhe descriptionsof Bakassi vegetationgiven byNigeria in

variouspleadings and in her first round speeches. He also called into question the ability of the

areato support the populationclaimed'byNigeria.

29. It is regrettable, but perhaps unsurprising, thatCameroon, although she claimsto

administer theterritory, has not been able to produce any visual evidence of her activiq on

Bakassi, eitherpresent or past. Had Cameroon beenable to see for itself howthe population on

Bakassiis distributed,itwould nothavemadethecommentsthat itdid. 30. Carneroon'scounsel did a rough calculationof the area of Bakassi and came up with

entertaining analogies between Bakassi,the Netherlands and Manhattan. Interestingly,he was

probably closer to the mark with his Manhattananalogy than with the Netherlands, whichhe

described as Europe's mostdensely populated country. One does not have to go very far out of

TheHague, or even within The Hague itself, to seethat houses occupy large sites, many have

gardensand inthecountrythey are fiequentlysurroundedby acresof glasshousesandtuiipfields.

3 1. Mr. Presidentand Membersof the Court, Bakassi isnot like that. The houses,many of

which are built of light materialsuch as cane andpalm leaves, are literallycheek byjowl. It is

difficultoften to tell whereone house endsand thenext house begins. The scarcity of land makes

it necessary to utilizeevery available square metre. If youlook at the Settlementscomprising

houseson stilts, youcan see those housesstretchingfor perhaps 1km or more alongthe riverside

with semed ranks of houses behind. A small exampleof this type of village is shown on screen

now and at tab 2 in the judges' folder [graphic2: stilt village].Each house will contain a

fisherman, his wife or wives and children, grandparentsand perhaps members of the extended

familyas well, inthe Africantradition. Evenon Manhattan theydonot pack people in like that,do

they?

32. Mr.President andMembersof the Court,the same is true of the land utilization on dry

land at places like the Atabongs- that is West Atabong and East Atabong- and at Abana.

Thoseare settlements whichare built on low-lyingsandy promontories. The streets are so narrow

that if you stretchedout both arms you would touchthe buildings on the other side. This is the

realityof the villages nestling inthe mangrovereas.

33. Of course,as one movesnorth,as the Courthas seenfiom the map of Bakassiwhichhas

beenshown so frequently,towns like Archibongareno longerinthe mangrovebelt and thatis why

onesaw extensive areasof greenopen spacesnear theschoolsinthevideo presentation.

34. By the time 1 retumed to Nigeria in late 1993, the situation in Bakassihad.clearly

deterioratedconsiderably. In fact, somuch had it gone bad thatthe Governmentfelt it necessary,

as we know, to send in army detachmentsin orderto protect the local population and inorder to

quel1unrest that had arisen as the resultof the competingclaims of CrossRiver and AkwaIbom

States- both of them inNigeria. In nosensecouldthat be termedan invasion, as Cameroonis sofond of describingit. There had always beenNigerian troops in the area, as the incidentof 1981

demonstrates. The resources were increasedat the end of 1993 because cif'perceivedthreats to

Nigeriansovereigntyover the Bakassi Peninsula.

35. Cameroon'sclaimsto the substantialNigerian populationwhich liveson Bakassiarejust

incomprehensible to Nigeria. Mr. President, as Cameroon has been fondof saying in these

proceedings, she always "offers hospitality" to a substantial Nigerian population in Cameroon.

Why does she want more Nigeriansto join theparty? In particular,why should she want a large

group of Nigerians who clearly feel ver- strongly abouttheir nationality and ties to Nigeria? It

seemsto methat Cameroonwouldonlybe storingup troubleforherself with the people ofBakassi

if shewereto succeedin her claims.

36. Mr. President and Members of the Court, Cameroon, at one point, characterized

Nigeria's so-called "occupation"of Bakassi asbeing motivatedby greed for its minera1resources.

This analysis ignores the tremendous good fortune Nigeria enjoys of the rich hydrocarbon

resourcesto be found in the Niger deltaarea and out to sea wherethe seabed once fomed part of

the samedelta structure. Nigeriarealiy has no need, and commercialcompanies certainlyhave no

desire, to exploit areas on the margin of Mount Cameroonbasalt ridge where oil and gas are

relatively scarceand, what is more, expensiveto extract. The harsh fact is that Bakassi isnot, and

has neverbeen, anarea ofhighprospectivity.

37. We haveseen fiomthe figuresproducedby Cameroon inits final round of pleadings,the

tremendous imbalancein oil reserves between Cameroon andNigeria. This is clearlyunfortunate

for Cameroon. However,evenif any reserves which mightlie under Bakassi were onedaydeemed

to be commerciallyviable, it is hard to imagine that they wouldmake any significantdifferenceto

Cameroon reserves. Any theoreticalgain has to be set againstthe potential disruption of the lives

of manythousandsof Nigeriansin this generation andfor generationsto come.

38. Mr. President,that brings to an end mysubmissionsrelating specifically to Bakassi. 1

would like,however,if 1may,to moveonbrieflyto LakeChad.LakeChad

39. Mr. President and distinguishedMembersofthe Court, Cameroon's claims tothe former

bed of Lake Chadand certain islandsin what currentlyremains of the lake follow a similar pattern

to the claims she has made over Bakassi. As Mr.Brownlie, Q.C.,has so clearly and brilliantly

explained, this isan area over which titlehas yet to be determined. It is, in theeas claimedby

Nigeria, inhabited by a population of farmers and fishermenwho come mainly from Nigeria and

not at al1from Cameroon. When the iegal team visited Darakin 1997 we could not fail to be

impressed by thefact that wewere surroundednot by just a few Nigeriansbut literallyby hundreds

as wewalked towardsthe mainsettlementon the island. As you can see from the photograph now

on screen and at tab3 in thejudges' folder,the Darakcrowds couldbe seen; al1of themNigerians.

[Graphic: Darakcrowds.]

40. Darak is a major populationcentre and it looks to the Nigerian Govemment, both local

and federal,as well as the State Government,for its govemance. This is true of al1the villages

whichwe visitedon Ourtrip across theLakebed. Anyvisitor tothe area will readilyseethat every

village owes its allegiance to Nigeria and,as Ouraccount of the administrationof the area has

shown,it is Nigeriathat looks after the population in terrns of security, healthcare and education,

aswellas collectingtax.

41. Onceagain, Mr. President andMembers of Court, Nigerianever had any causeto doubt

her own sovereigntyover this areauntil it was characterizedas territory whichhad been "illegally

occupied"in Cameroon's protestNote of 11 April 1994. There had, again, beensporadic attempts

by local Cameroonian forcesto raise taxes and even an attempted military occupation. This

military actionby Cameroondoesnot appear to havebeen precededby any diplomatic moves. If

centralgovemment in Cameroon had reallybeen concemedaboutwhat it now claims to be illegal

occupation,one would have expectedto see protests, or,at the very least, the matter being raised

by the Cameroon representativesin the LCBC. Nigeria's legalteam has scouredthe minutes of

LCBCmeetings since the inceptionof the Commissionand those minutes are lodged at the Court

for al1to see. Nowhere in them does Cameroon raise the issue of illegal occupation. On the

contrary, Cameroon's security forces patrol with the Nigerianforces in an evident show of

solidarity in therea. 42. Once again, as with Bakassi, one is at a loss to understand why Cameroon wishes to

absorb this large Nigerian population which is currently being successfully administered from

Nigeriaat no cost to Cameroon. There is,not even, so faras is presentlyknown,the lure of oil in

this particular areaof Lakehad.

43. One is forced also to take note of what is said in the report of the Special Rapporteur

submittedto the UnitedNationsCommissionon HumanRights in November 1999.This document

has been lodged with the Court by Nigeria. The Courtmay have noted inparticular the report of

the lawless situation the Special Rapporteur found especially in Northem Cameroon.

Mr. President, Membersof the Court, 1venture to Saythat private mies operating under local

chiefs are not an attractive prospect for the maintenanceof law and order amongst the Nigerian

populationin Darakand in the surroundingvillages.

Othermatters

44. 1 shall now move on very briefly to the other aspects of this case. Nigeria's eminent

counsel havedemonstratedin a clear, calmway, how Cameroon'sclaims in this case are based on

blusterandunfounded assertion. Theyhaveshown how Cameroon,even in theseproceedings,has

had to backoff when she comesup againstthe harsh realityof the facts. In the memorablewords

of SirArthur Watts,Q.C., onthefinal dayofNigeria's firstroundpresentation:

"Cameroon having abandoned its claim to Tipsan, and having abandoned
individual responsibility claims, and having tried to abandon its request to have the
landboundary specified definitively,and having abandoneda succession of its earlier
maritimeboundary lines,the remnantsof Cameroon's casearelooking rather tattered"
(CR 2002114,p. 31,para. 26).

45.The proposalsmadeby Cameroon'sdistinguishedAgent onTuesday referred tobyme at

the beginningof my speech seemrather to confirmSirArthur'sview ofCameroon'sclaims.

Landboundary

46. 1need not remind the Court that thewhole landboundary issue camebefore the Court,

despite Nigeria's fifth preliminary objection, largely on the basis that there was alleged to be a

disputeover theborder at Tipsan,which nowtums outnotto be so. 47. On our 1997field trip we also visited some locations on the land boundary. We had

hoped to visit Tipsan ourselves but the lengthof thejourney from Yola proved tobe such that we

were only ableto get as far as Toungo, which isabout 24 miles short of Tipsan. The stateof the

roads was so thatfùrtherprogresswould only have resultedin our arrivingat night. We were thus

not able, on that occasion, to take photographs,unlike counsel for Carneroon. However, as the

Court knowsfiom the preliminary objections, we did visit ipand were mistakenby our opponents

for having been a Nigerianraiding Party. We took photographsof the hills surrounding Lipand it

is possible fromthose photographs tosee what complex andremote terrainthis is. As you can see

fiom the photographon screen, andat tab 4 in thejudges' folder, this is rough country. And the

graphicisnow being shown,of the hills beyond Lip [graphic4: Hills beyond Lip]. Mr. President,

it was a two-dayjoumey to Lip and two days back. Al11can Say as a lay person is that, having

seen some of these locations, 1 would hate to see a boundary commission canying out a

demarcationwithout having clear guidance fiomthe delimitationtreaty as to where 1 should start

and finishmydemarcation exercise.

State responsibility

48. Mr. President and Members of the Court, time andagain Cameroon hasasserted that

incidents havetaken place on the border which, onfurther investigation,turn out tobe little more

than what might be termed "cattle rustling". Nigeria comprehensively demolishedthe State

responsibility claims made by Cameroon in its Mernorial and Observations on Nigeria's

Preliminary Objections. She has comprehensively demolished the further claims made in

Cameroon'sReply and she has comprehensively demolishedthe later claims that Cameroonhas

madeby correspondenceand other means.

49.Mr.President,1talked about credibilityat the beginningof this speech. 1dowith respect

submit thatCameroonhasa seriouscredibilityproblernwithregard to theseclaims.

Maritimeboundary

50. 1 do not claim to be a maritime boundary expert. During my period in office as

Attorney-General and the Minister of Justice,1 sat for four years as the leader of the Nigerian

delegationto the Law ofthe Sea Convention negotiating sessionsand 1signedthat treaty as wellasthe Final Act at Montego Bay on behalf of Nigeria. Myunderstanding of Cameroon7sclaims is

that,as presentlyexpressed,theywouldcut into well-establishedNigerian offshoreoilfields. Were

this to be permitted, Mr. President and Members of the Court, Nigeria would presumably face

compensation claims from oil operators running into billions of dollars. This is not something

Nigeria can facewith equanimity. However,we also sawfromProfessor Crawford's presentations

that Cameroon'sclaims do not accordwith any knownpreceptof internationalmaritime boundary

law,so it maybethat Nigerianfears onthis account are unfounded.

Conclusion

51. Mr.President andMembersof the Court,before 1conclude my presentation and inform

the Court how Nigeria proposesto spend the remaining time in this secondround, 1would like,

with respect, to mention that His Majesty the Obong of Calabar, whom 1 introduced at the

beginning of this presentation, will be assisting the Nigerianm with answers to some of the

questionsposedby Judge Kooijmans. The Obongis the GrandPatriarch ofthe Efiks. The loss of

Bakassi would be a serious matter for Nigeria: the loss for the Obong of Calabar would be,

proportionately,of an evengreatermagnitude.

52. Following my presentation, Ian Brownlie, Q.C., will be dealing with Bakassi from

independence. That willcompletethe morningsession.

53. This afternoon,AlastairMacdonaldwill speakagainonthe land boundaryandhe will be

followed by SirArthur Watts,Q.C., alsospeakingon the land boundary and on Bakassi pre1960.

Theafternoon sessionwillfinishwith IanBrownlie, Q.C., speakingon LakeChad.

54. Mr. President and Members of the Court, tomorrowProfessor GeorgesAbi-Saab will

openon Stateresponsibility. Thatsubjectwill againbe takenup by Sir ArthurWatts, Q.C., and he

will be followedby ProfessorJames Crawford,S.C.,on counter-claims. ProfessorsAbi-Saab and

Crawford will then addressthemaritimeboundary,andOurpresentationswillbe broughtto a close

byNigeria's Agent.

Mr. President and Members ofthe Court, thank you for your attention, and1would, with

respect,ask youto cal1uponMr.Brownlie. Thankyou verymuch. The PRESIDENT: Thank you very much. Je passe maintenant la parole au

professeur Ian Brownlie.

Mr. BROWNLIE: Thankyou,Mr.President.

POST-INDEPENDEN BCAEKASSI

1. Mr. President,distinguishedMembers of the Court, it is again a privilege to addressthe

Courtin the secondround. Mr. President, 1have been counsel in more than 30 cases beforethis

Court. No doubt some caseshave moreimportance than others. The more important casesinvolve

major oil resources, or the use of force, for example. The present case is among the more

importanton any scale, and the principalreason is that it concemsthe peoplethe people- of

Bakassi.

2. As the distinguishedAgent of Nigeria pointed out in the first round, this case is seen by

Nigeria as the Bakassicase. Whatevervalue Bakassi may have in resource terms, Bakassi is the

historic homeland of the Efik and Effiat people and is the permanent home- the permanent

home- of 156,000Nigerians. The connectionwithNigeria forms part of the identity ofthe Efik

andEffiat peoples andtheir culture.

3. Against thisbackgroundanychangeof the status quowhichwould leave thepopulationof

Bakassi, as Nigeriannationals of Efik culture, in an alien setting,would be fundarnentally,

andwould be deeplyresented.

4. Mr. President, this case is unique in the Court's caseload in that it concems territory

connected witha particularethnic group, and it is therefore as much about a community as itis

aboutterritory asuch. Andthis essentialfactorplaysa leadingrole in the basis of title relied upon

byNigeria.

5. As 1shalldemonstrate,the Nigerianbasis of title, historicalconsolidation, is particularly

aptin its reflectionof the human factorinthis case.

TheNigerianposition: propositions

6. Mr. President,it will be helpfulto the Cour1re-presentthe key Nigerian position ina

seriesof propositions. 7. First, the claim of Cameroon is treaty-based, exclusively. Cameroon relies uponthe

Treatyof 1913.

8. Second,in the view ofNigeria the Treatyof 1913hasnot been implementedin respectof

Bakassi,and was ineffective toachievethe purported transferof sovereigntyto Germany.

9.Third, in accordance withthis view,Nigeriaretained an original titlein respectofBakassi,

and the title also invokedby Nigeria, historical consolidationof title, has the role of providing a

confirmationofthat original title.

10.Fourth, but Nigeria isalso arguing inthe alternative. Thus, even if itbe supposed that

the Treaty of 1913were effective in relationto Bakassi, in any event, Nigeriahas title onthe basis

of historical consolidationof title as a process which has effected a lawful change in the

treaty-based title.

11.And fifth,it is well recognizedthat a treaty-based title maybe modifiedor displaced by

lawful means. This propositionwould seemto be obvious, butin any case itis confirmedby a

seriesofrespectableauthorities.

12.In an article published in 1957SirGeraldFitzmauricestated thatthe revisionof a treaty

could result fiom practice orconduct: 1referto the British YearBook,Vol. 33 ((1957),p. 203) at

page 225.

13. In a draft article, Article 68, agreed in 1964,the International Law Commission

recognized thatthe modificationof a treaty couldresult fiom subsequent practice. The samedraft

articleappearedasArticle38 inthe finaldraftarticlesof 1966.

14. In the first round1 quoted the opinion of Michel Virallyto the effect that historical

consolidationof title couldproduce a lawfuleffect even if this prevailed over aprior treaty-based

title (Recueildes Cours, Vol. 183(1983-V),pp. 147-148).

15. The opinion of Virally reflects the Award of Judge Huber in theIslandof Palmas case

(RIAA,II, pp. 845etseq.). A keypassage inthe Awardreadsas follows:

"If on the other hand the view is adopted that discovery does not create a
definitive titleof sovereignty, butonly an'inchoate'title, sucha title exists, itis true,
without external manifestation. Howevera,ccordingto the view that has prevailed at
any rate since the 19th century, an inchoate title of discovery mustbe completed
within a reasonable period by the effective occupatioo nf the region claimed tobe

discovered. This principlemust be appliedin the present case,for the reasonsgiven above in regardto the rules determining which ofsuccessive legal systems is to be
applied(the so-calledintertemporal law).Now, no act of occupation nor,exceptas to
arecent period,any exerciseof sovereignty at Palmas by Spain has been alleged. But
even admitting that the Spanish title still existedas inchoate in 1898 and must be
considered asincluded in the cession under Article III ofthe Treaty of Paris, an
inchoate title could not prevail over the continuouasnd peaceful display of authority

by another State; for such display may prevail evenover a prior, definitive title put
forwardby another State." (At p. 846.)

16.In this samegeneral context a title inheritedon the basis of utipossidetisjuris can be

modifiedor displacedby lawfulmeans,suchas acquiescence. 1pointedout beforethat thiswasthe

emphaticview of the Chamber of the Court in the Land,Island and Maritime Frontiercase. The

pertinentpassages will be indicated inthe transcript (paras.67, 80, 81, 169, 176,280, 284, 341,

345,364 and 368).

17.Thus, Mr. President, Membersof the Court, even if,for the sake of argument,the Treaty

of 1913were taken as valid and fully implemented, Nigeria wouldstill have lawful title on the

basis of historical consolidation of title, with particular refereo the post-independenceperiod.

In other words, Nigeria'stitledoesnotnecessarilydependon the legalstatus ofthe Treatyof 1913.

18. 1 take pains to emphasize the freestanding characterof the title by historical

consolidation since the independenceof Nigeria because counsel for Cameroon misreported the

position ofNigeria inthe second round.

19.Thus Professor Shaw statedthat the Nigerian title relatesexclusivelyto the originaltitle

of the Kingsand Chiefsof Old Calabar(CR2002116). This is not the position of Nigeria andthis

has been spelled outon three occasions: in the Counter-Memorial,in the Rejoinder, and again in

my presentationinthefirst round.

20. Professor Shaw also asserted thatthe case for historical consolidationrests exclusively

upon theTreaty of 1884,but againthis is notthe positionofNigeria.The titlebaseduponhistorical

consolidation in the post-independence perioids freestanding and self-sufficient.

The legaloriginsofthe conceptofhistorical consolidationoftitle

21. Atthis stageit is necessaryto recallthe precise legal originsof the conceptof historical

consolidationof title. Nigeria has givena detailed accountof the originsof historical consolidation

of title in the Counter-Memorial, at pages221to 223, andin the Rejoinder, at pages 85to 90. Its

position in the doctrineis well-established. The concepthas been expounded mostthoroughly inthe writings of CharlesDe Visscher, includingthe following: Théories etRealitésen Droit

International Public,first edition, 1953. ThefourthFrench editionwaspublishedin 1970. In 1957

an English editionof the first French editionwas published, in a translation by Professor Corbett.

The second bookis the study entitled Problèmesd'InterprétationJudiciaire en DroitInternational

Public, published in 1967. And thirdly, there watshe monograph entitledLes Effectivitésdu Droit

International Public,publishedin 1967. And itwas, of course,CharlesDe Visscher who didmuch

to makethe termeffectivitécurrent.

22. At thispoint it is worth emphasizingthat the conceptdoes not consistof a new doctrinal

invention,even in 1953. Ratherit has takenthe form of a reflection in the doctrine of thevarious

aspects of the classical decisions,the well-known jurisprudence,on acquisition of titleto temtory.

What CharlesDe Visscher and others were doing in formulating the concept of historical

consolidation was to produce a more preciseand more sophisticated analysis of the process of

adjudicationin such cases,than had previouslyemerged fiomthe doctrine.

23. Thus the concept does not involvea sudden breakin the developments of thelaw or a

casting asideof useful experience. At thesametime, the conceptdoes involve a certain evolution

in legal thinking. This has been recognizedby a former Presidentof this Court. In hismonograph

on The Acquisition of Territory in InternationalLaw, published in 1963,SirRobert Jenningshad

this to say:

"But the idea of historical consolidation is something more than a
terminological reform.It opensthe doorto a mode ofacquiringtitle that is, or at least
may become, subtly different from whatis found inthe old learningabout occupation
and prescription. Prescription,as we have seen, is based upon a peaceable, effective
possession - a possession as of a sovereign extendingover a considerable period.
But such a possession may notbe self-evident ina disputed case. It must, therefore,

be proved,and forthe purposeof thisdemonstration, a greatvariety of evidencesmay
be relevant- particularly the attitude of third States, because repute is always an
important factor in any question concerning rights over land. But the notion of
consolidation introduces something overand above the notion of evidences of
sovereign possession; for these factors of repute, acknowledgementand so on then
become, if1have understood this aright,not merely evidences of a situation apt for

prescription but become themselves decisive ingredients in theprocess of creating
title. Letme remindyou again of thewords [saysJennings]of Professorde Visscher.
Proven use 'is its foundation',but thismerely representsa complex of interests and
relationswhich in themselveshave the effect of attachinga territov or an expanseof
sea to a given State (italics supplied). And again, 'itis these interests and relations,
varying fromone caseto another,andnot the passage ofa fixed term, unknownin any
eventto international law, that aretaken into direct account bythejudge to decidein concreto on the existence or non-existence of a consolidation by historictitle'."
(Emphasisinthe originalunlessotherwise stated; foomotesomitted.) (Atp. 25.)

24. The key point is that "proven use" "merely represents a complex of interests and

relations whichinthemselves havethe effectofattaching aterritory or anexpanseof sea to a given

State". Thisaspectofthe matteris also given prominenceby Jenningsinhis General Course atthe

HagueAcademyin 1967 (Recueil des Cours,Vol.II (1967),p. 421).

25. The acceptance by SirRobert Jennings of the concept and its implications is also

evidenced by the text of the ninth edition of Oppenheim in 1992, edited by Sir Robert and

SirArthur Watts. In a passage which confirmsthe evolutionaryaspectof the concept of historical

consolidation,the editors observe:

"Consolidationof historic titles. Yet continuous and peaceful display is a

complex notionwhen appliedto the flexibleand many-sided relationship of astate to
its territory and in relation toother States. The many and varied factors whichit may
comprise were felicitouslysubsumed by Charles De Visscher under the convenient
rubricof 'consolidationbyhistoric titles'; of whichhe says:

'Proven long use, which is its foundation, merely represents a
complexof interestsand relations which inthemselveshave the effectof
attaching a tenitory or an expanse of sea to a given State. It is these

interests and relations, varying fi-omone case to another, and not the
passage of a fixed term,unknownin any eventto international law,that
are taken into direct account by the judge to decide in concreto on the
existenceor non-existenceof a consolidationbyhistorictitles.'

In an important examination of the criteria applied by tribunals to resolve
territorial disputes, Munkrnan identified inter alia the following: recognition,

acquiescence and preclusion; possession and administration; affiliations of
inhabitants of disputed territory; geographical considerations; economic
considerations; historical considerations.Of these several factors it hasbeen said
that: 'Recognition is the primary way in which the international community has
sought to reconcile illegality or doubt with political reality and the need for
certainty."' (Footnotes omitted.) (9thed., Vol. 1, by Sir Robert Jennings and
SirArthurWatts, 1992,pp. 709-710,para. 272.)

26. And so, Mr. President,historical consolidationof title is the legal basis of Nigeria's

claimto Bakassi. The concept hasbeen familiarto international lawyers for mostof 50 years,and

has attracted the approval of former Members of this Court. Indeed, its leading progenitor,

CharlesDe Visscher,was of course a Member ofthe Court.

27. In face of theigerianclaim counselfor Cameroonhave shown aremarkablereluctance

to discuss the concept or to give a clear indication as to whether they accept it. In the Reply,

however,the applicantState did actually question whetherthe principle of historical consolidationexists, andNigeria duly respondedin the Rejoinderatpages85to 90, citingleading authoritiesand

alsothe First Award in the Arbitration betweenEritrea and Yemen(1998) (ILR,Vol. 114, p. 117,

paras.450-451).

28. Mr.President, Membersof the Court, it has to be asked why Cameroonis so nervous in

face of a well-established concept. 1sit because Cameroon cannot produce the necessaryproof!

Why is it that Cameroonhas failed to respond adequatelyto the evidence,as Professor Mendelson

wouldput it,"piled up" intheNigerianRejoinder?

29. Counsel for Cameroon havesought to solvethe problem in three ways. The first way

wasto ignorehistoricalconsolidationandto discussprescription,whichhasnot beenrelied uponat

any point in the Nigerian pleadings. The second method,and the most popular, was simply to

refuse to respond to Nigeria's evidence. Unfortunately,the Nigerian delegation will leave The

Hague in due course still without knowingwhat the Cameroonianresponseto the evidencemight

be.

30. The third attemptto solve the problemwas to suggest that counsel for Nigeria does not

approveof the concept. Thus,ProfessorCot quotedthe fifthedition ofmytextbookas follows: "it

is probably confusing to overemphasize, and to lump together, this penumbra of equities by

discovering theconcept ofconsolidation" (CR2002115,pp. 33-34,para. 12).

31.This selective quotationwill not do. What the book, Principles of Public International

Law, does is to give a full and appropriatesignificanceto the concept. Thus, under the heading

"Historical Consolidation of Title", there is first a reference to the Anglo-Nonvegian Fisheries

case, whichisthe originofthe doctine. The textthen continuesas follows:

"Charles De Visscher has explained the decision on these lines, and has
proceeded to take the decision as an exarnple of the 'fundamental interest of the
stability of territorial situations from the point of view of order and peace', which
'explainsthe place thatconsolidationby historictitlesholds in internationallaw'. He
[CharlesDe Visscher,that is]continues:

'This consolidation, whichmay have practical importance for
territories not yet finally organized under a State regime as well as for
certain stretches of sea-like bays, is not subject to the conditions
specifically required in other modesof acquiringtemtory. Proven long
use, whichis its foundation, merelyrepresentsa complexof interestsand
relations whichin themselves have theeffectofattaching a territoryor an

expanse of seato a given State."'And the text of my book continues:
.. .
"'Consolidation' differs from prescription, occupation, and recognition, in
De Visscher's doctrine. It is certain that the elements which he calls 'consolidation'

are influential. In the preceding section such elements were examined in relation to
the problems of relative title and the principle of effectiveness. The essence of the
matter is peaceful holding and acquiescence or toleration by other States (but
De Visscher has his own notion of acquiescence). Moreover, special factors,
including economic interests, may be entertained by a court faced with rather
equivocal facts. However, it is probably confusing to overemphasize, and to lump

together, this penumbra of equities by discoveringthe concept of consolidation." And
the last sentence reads: "Apart fiom the concept of consolidation, the role of social,
economic and other 'non-legal' considerations in the application by tribunals of the
more orthodox legal principles is notto be denied." (Foomotes omitted.) (Principles,
5th ed., 1998,pp. 162-163.)

32. This account is identicalwith the account given in the first editionof the book, published

in 1966, at pages 154 to 156. Moreover, 1regret to tell the deiegation on the other side that the

book's treatmentof the subjecthas not discouragedforeignpublishers and these views onhistorical

consolidation are presently available in Portuguese, Russian and Japanese, and will soon be

availablein Chinese and Korean.

33. One other aspect of the matter calls for comment. In so far as counsel for Cameroon

choose to face the music, the view is projected that historical consolidation of title is confined to

effectivités.This is not the case. As Nigeria's previouspleadings have made clear, the concept has

various legal elementsas follows:

(i) The originaltitle ofthe City Statesof Old Calabar.

(ii) The attitude and ethnicaffiliationsof the population ofthe BakassiPeninsula.

(iii) The Efik and Effiattoponymyofthe Bakassitowns andvillages.

(iv) The administration of Bakassi as part of Nigeria in the penod 1913 to the date of

independence.

(v) The exercise of authority overthe towns and clans of Bakassi by traditional rulerseither

based in Calabar or otherwise owing allegianceto Nigeria.

(vi) The exercise ofjurisdiction by customarylaw courts by virtue ofNigerian legislation.

(vii) The long-established settlementof nationals of Nigeria inthe region; and lastly

(viii) Manifestations of sovereigntybyNigeria afier independence in 1960.These elements are examined in detail in the Nigerian Rejoinder, at pages 90 to 175, and a

proportion of these elements were discussed in my first round speech. Mr. President, with your

agreement,that wouldbe a convenientmomentto take the pause café.

The PRESIDENT: Thank you very much, ProfessorBrownlie. La Cour suspend sa séance

pour unedizaine deminutes.

L'audience estsuspenduede II h 20 à II h 30.

Le PRESIDENT: Veuillez vous asseoir. La séanceest reprise et je redonne la parole au

professeurIan Brownlie.

Mr. BROWNLIE : Thankyou verymuch.

The stateof the evidence

34. Mr. President,distinguishedMembers ofthe Court,becauseCameroonfrequentlyavoids

joining issue inthese proceedings, the state of the evidence involves various anomalies. Thus

Cameroon has not troubled to respond adequately to the substantial evidence of effectivités

presentedin the Rejoinderand again, in the firstround. In the secondround ProfessorMendelson

boldly contended thatNigeria had failed todealwith certain peripheralissues whichhe had raised

in the first round. These issues will be dealt with in the appropriate place, but

ProfessorMendelson'scomplaintis in the contextastonishing because,in his secondround speech,

he failedtodeal witha very highproportionofNigeria's first roundpresentation.

35.In particular,ProfessorMendelsondidnot replyto the following:

(a) The demonstrationof the absence ofevidenceof thepeaceful possessionof Cameroonandthe

critiqueof theCameroonianpleadings.

(b) Thedetailed evidencerelatingto the systemofpublicorder in Bakassi.

(c) Theevidence ofthe affiliationsof thepopulationof Bakassi.

(d) Thedetailed evidencerelatingto publiceducation.

(e) Thedetailed evidencerelatingto taxation.

Thedetailed evidencerelatingto publichealth.

36.Mr. President,this listcould easilybe extended.Further evidence confirming the title ofNigeria in relation to the Bakassi Peninsula
37.My next taskis to offerfùrtherevidence confirmingthe title of Nigeria in relation to the

Bakassi Peninsula. The first category offurther evidence is the ethnic relationship between the

people ofthe Bakassivillages andtheNigerianmainland.

38.In the contextof historical consolidation,the editorsof Oppenheimrefer tothe relevance

of the "affiliations ofinhabitantsof disputedtemtory" (Vol.1,pp. 709-710, para. 272).

39.As an aspect of the applicationof the concept of historical consolidationof title to the

social andethnic circumstancesof the Bakassi Peninsula, itis necessaryto examinethe history of

the settlements of theindigenouspeoplesof South-EasternNigeria in the region. This will assistin

understandingthe roleof the Efikand Effiattribes in thepattern ofsettlementand alsothe pattern

of development of localgovemmentadministration in Bakassi.

40.The chieftribes in the region of Old Calabar in the period afier 1700were,and still are,

the Efiks and the Effiat (judges' folder, tab 5). The ethnic map produced in the Rejoinder at

figure 3.1, now on the screen, shows the areas inhabited by these two tribes. Historically the

predominantpeople in the areanorthof Bakassi, in terms ofnumbers andinfluence,were, and still

are, the Efiks, while totheestofthe peninsula,the Effiats predominate.

41. There are extensive oral traditions as to the early migrations of the Efik people before

they came to Old Calabar, and these are discussed in some detail in A. K.Hart, Report of the

Enquiryinto the Dispute overthe Obongshipof Calabar,published in 1964. The Efiks gradually

establishedthemselveson the Coastand becameactive fishermen andtraders, ultimately setting up

somethingof a seabome empire, withCity States up and down the Guinea Coast fromthe Niger

delta to theRio del Rey,and settlements evenbeyond.

42. Many of their towns - Duke Town, Creek Town, HenshawTown, Obutong Town -

were clustered togetherin the heart of the area which became knownas Old Calabar. This area

included otherEfik settlements suchas Arsibon'sTown,now Archibong,near thenorthem edge of

the Bakassi Peninsula. The modem TomShot Island, on the western side of the Cross River

estuary, and Jamestown are traditionally Effiat. Jamestown is situated just to the north of

Tom Shotand was formerly knownas Tom Shot Town. The Chiefof the town wasJamesBassey

and hencethe townbecameknownas Jamestown. 43. The Efiks of this unique polity weregovemed by a patriarchal "House" system, under

which each ofthe abovecommunities was headed byits ownKing or Chief;electedby that House.

The mling oligarchy was united by the highly organizedSociety already referredto in these

proceedings,the Ekpe Society, which playedan importantpart in the religious and civil lifeofthe

Efik polity andis still important today. The local activitiesof the Ekpe Society centre on the

Palaver House. Al1 the major towns of the area have a shrine known as the Palaver House,

including Calabar, Jamestown, Ikot Nakanda, Archibong,Abana and West Atabong Cjudges'

folder,tab 6).

44. The Effiat people have certain culturaland socialtraits in common withthe Efiks. In

particular,bothtribes use Ekpe asa means of social administration.The main EffiatEkpe Palaver

House, and seatof the Effiat clan head, is at Jamestownin Akwa Ibom State. The people of the

southern Bakassi villagesregard this as their ancestral centre and there is still much interaction

between the people living on both sides of the Cross Riverestuary. The Effiats are nonetheless

distinct fiomthe Efiks. Theyoriginally inhabitedthe riverineareas to the Westof the Cross River

estuary. Becoming principally fishermen,they migrated across the estuary to set up fishing

settlementson the creeks of Bakassi, which overthe last 100years have increasedin number and

becomepermanent. ThesesettlementsincludeAbanaand Eastand West Atabong.

45. As the populationon mainlandNigeriagrew, fishermen and farmers fromthe areasouth

of Calabar, around Ikangand IkotNakanda, moved across theAkpa Yafe in increasing numbers.

They settled in the existingvillages of Archibongand Akwa,and created new settlements such as

Ine Akpa Ikang, Mbenmong and Nwanyo. Villages werenamed after the founders or after the

place of origin of the first settlerThe word "Ine" in Efik means fishing settlement. Hence Ine

Akpa Ikang and Ine Ikang were both fishing villages narned after settlers fiom Ikang, and Ine

Effiom isafishingvillagefoundedbythehead ofthe Effiom familyCjudges'folder,tab 7).

46. TheearliestEfiksettlementsin the regionwere sitedfor the most part atthe northemend

of Bakassi. Arsibon's Town, nowArchibong,was referredto as early as 1786 in AnteraDuke's

diary. Itwasrepopulatedby PrinceAsibong EdemIII, a descendant ofDuke Ephraim ofCalabar,

ashis own family colony, inthe early partof the nineteenth century. 47. Thesouthempart of Bakassi,on the otherhand, was mainly settled bythe inhabitantsof

villagesWestof the CrossRiver estuarywho crossedfiom their traditionalhomelandaround Eket,

Oron and Jamestown and founded settlementson Bakassi as bases for seasonal fishing activity.

Abana,for instance, was situated on land which wasgiven by King Orok BasseyDuke to histwo

brothers-in-law,NtuenUmo and Ebe, who migrated fiom EsukMba (present-day Akwa Ibom),

over 100years ago. Abana became the main centre of what colonialists referred to as the Fish

Towns. Thecolonial authorities triedto establisha native court inAbana,but this wasrejectedby

the people who pointed outthat they already had a native court in Jamestown. The practice grew

up of naming these newly-foundedsettlementson Bakassi afterthe Effiat familieswho used them

as a fishing base,such as Ine Atayo, which was named after the Atayo family who founded the

village. Sometimes the founder's namewas used, sometimes thename of thetown fiomwhichhe

came.

48. WestAtabong derives its name fiom the substantial settlementof Atabong Beachon the

mainland. Atabong in Effiat means "place ofcane'?and the village of WestAtabong on Bakassi

was built with cane grown in and around AtabongBeach on the mainland. Atabong Beachhas a

thriving fishmarket at which Bakassifishermen sel1some of their catch. It is a roadhead from

which Bakassifish is transportedal1over Nigeria. As another example, Utanmeans "sand"; thus

IneUtan meansfishing villagebuilton sand. It isthis pattern of settlementand namingof villages

which accounts forthe fact that placenames on Bakassiare linked with thenames of settlements

lying furtherto the Westand north-west,but not to the east or south-east. A list of settlementson

Bakassi togetherwith atranslation oftheirnamesand detailsof their founders appears inthe tables

atthe end ofChapter3 ofthe Counter-Memorial.

49. Set out at page 98of theRejoinderis a table of specifically Effiatvillages in Mbo Local

Govemment Area,in Akwa Ibom state,and their affiliated villages on Bakassi. It also Statesthe

names of the founding fathers of these affiliated villages. This informationwas provided by the

current Effiat clan head, ObongOkon EffiongEtifit, and the Vice-Chairman of Mbo Local

GovemmentArea, AsuquoOkonBassey.

50. The names and affiliationslisted clearly do not derive fiom any settlement, familyor

other association with Cameroon. 51. It is clearthat the settlementofthe villages on Bakassiby Nigeriannationalsof the Efik

and Effiat tribes has been a steady process over the course ofthe last century. This pattern of

settlement has beenreflected in the ever increasing level of administrationover the villages and

their populations.

Internai Nigerian state rivairy in respectof Bakassi

52. Further evidence of the affiliationsof the inhabitantsof the Bakassi Peninsulawith the

peoples and political constituencies ofthe Nigerianmainlandis to be found in a recentepisode of

interna1rivalrybetween twoofthe federalstatesofNigeria in respectof Bakassi.

53. The background is as follows. The northem villages on Bakassi have always been

administered by adifferent local authority to those in the south, but both were withinthe same

subregionof Nigeria. After the division of Cross River stateinto two smallerstates, Akwa Ibom

and Cross River in 1987, the villages were administeredby different local authorities in two

separate Nigerian states. Akpabuyo Local Government Area inCross River state administered

those villages situated in thenorth of the peninsula andEffiat/Mbo Local GovemmentArea and

Okobo Local Govemment Area in AkwaIbom state administered those villages situatedin the

southof the peninsula. 1 refernowto tab 8in thejudges' folder.

54. As a result of this division of authority, there arosesome confusion over which local

authority shouldadministertheBakassi Peninsulaas a whole. Both statesclaimed that the Bakassi

Peninsulawas withinits sphereof administration for a number ot fraditional, cultural andeconomic

reasons. The military administrators of the two states were both increasingly involvedin

promotingthe Nigerianpresenceon Bakassithroughstateadministrativeactivities.

55. The rivalry betweenthe statescontinued throughto 1996,when the States (Creation and

Transitional Provisions) Decree 1996 (Counter-Memorial ofNigeria, Ann. NC-M202) was

promulgated. This Decree created Bakassi Local GovemmentArea, with its headquarters at

Abana, as part of Cross River state. This has gone some way towards resolving the intemal

Nigerian confusionas to which state has the rightful authority over the whole of the Bakassi

Peninsula. 56. In 1999the issues outstanding betweenCross River state and Akwa Ibom state becarne

the subject of proceedings in the Supreme Court of Nigeria (Suit No. SCl12411999)between

Attorney-General of Cross River state and the Attorney-Generalof Akwa Ibom state and five

others. This major litigation can only serve to emphasize the depth of concem relating to the

region of Bakassion thepart of important Nigerianpolitical constituencies. Recently a Presidential

Commissionhasbeen establishedto examine the issueand hasdelivereda firstreport.

57. These political developments within Nigeria inevitably highligh te link between the

affairsof the Bakassi Peninsulaand theintemalpolitics of the neighbouringareas of Nigeria.

The enhancementof public order within theBakassi regionby Nigerian securityforces in
December1993

58. The administrationof the Bakassi Peninsula faced several major challenges inthe late

1980s and early 1990s and it is necessary to examine the responses of Nigeria as a part of the

evidenceof Nigerian exerciseof administrative authority and sovereigntintheregion.

59. The Govemmentof Nigeria has alreadyaffirmed that there has always been a Nigenan

militarypresenceinthe Bakassi Peninsula. In additiont,he Nigeriannavy has a base at Jamestown,

on the mainland, from whichpatrols aresent to thecreeks and coasts of the Bakassi Peninsula. In

spite of the presenceof Nigerian forces, incursionsby Cameroonian agents occurred from time to

time which wentundetectedbecause of the relativelyremote character of theregion and the cover

provided by the mangrove swampsand creeks. These incursions werethe subject of repeated

complaintby Nigerian communities, andsomeof these are referredto in the first round. By 1993,

a further threat topublicorder had emerged in the form of a territorialrivalry between thetwo

Nigerianstatesinrespect of the peninsula,to which1havejust referred.

60. On 31December 1993,the Govemmentof Nigeria sent security forces to the Nigerian

villages of Abana and Atabong on the BakassiPeninsula. The purpose of this operation was

described in the letter dated 4 March 1994from theNigerian Govemmentto the President of the

Security Council,thus:

"1 wish, on the instructionsof my Govemment to refer to the letter dated
28 February1994, addressed to youby the Permanent Representativeof Cameroon
(S/1994/228), and to convey to you the following information. On
31 December1993,Nigerian troops weredispatched tothe Nigerian fishing villages of Abana and Atabong on the Nigerian Bakassi Peninsulain order to avert a violent
clash between those who lay claim to the settlements fromtwo Nigerian States,
namely theAkwa Ibom State andthe Cross River State. The pre-emptive actionhad
the desired effect.However, followingthe concem expressed by the Cameroonian
Govemmenton theNigerian troops' movement, 1visited Yaoundé onthe instructions

of my Head of State, Gen. SaniAbacha,to explain to President PaulBiya the reason
forthe Nigerian move. Early in 1994,the Cameroonian Foreign Ministeralso visited
Abuja with a messageto the Nigerian Head ofState fromPresidentBiya. Both sides
pledged to resolve the issues peacefully." (Counter-Memorialof Nigeria,
Ann.NC-M347.)

61. The same concem was expressed in a letter dated 20 April from the Nigerian High

Commission in London to the Foreign and Commonwealth Office and to al1 the diplomatic

missions accredited to the Court of St. James and to al1 intemational organizations with

headquarters in London (Rejoinder of Nigeria, Ann.NR 29, also Preliminary Objectionsof

Nigeria,Ann. NP0 80).

62. The background to these statementsof a special security problemis provided by the

intemalrivalry between thetwo statesofthe FederalRepublicof Nigeriainrespect of Bakassi, and

1havealreadyexamined thisaspect.

63. However,there was another serioussource ofconcem lyingbehind the measurestaken.

TheClanChiefsof the groupsof villagesinthe Bakassi Peninsula confirm thatduring andafterthe

civil war, from 1970 onwards, the Cameroonian gendarmes consistentlycarried out acts of

harassment in the Bakassi region. The particularsof these acts of harassment are set forth in

Nigerian Counter-Memorial ap tages 267to 269 (paras. 10.157-10.161).

64. This harassment continued episodically until1993. In a Note dated 26 April 1993the

GovernmentofNigeria protested in the following terms:

"The Embassy of the FederalRepublic of Nigeria presents its complimentsto
the Ministryof ExtemalRelationsof the Republicof Cameroonand has the honourto
bring to the attentionof the esteemed Ministry, reports received that Cameroonian

Gendarmes have been harassing Nigerian citizens livingin the disputed areas of
Bakassi Peninsula. Onthe 26thFebruary1993 at Abana in Mbo Local Govemment
Area of Akwa Ibom State, about one hundred gendarmes invadedthe Fishing
Settlements inthe area and harassed and terrorised the Nigerian inhabitants. The
Embassy wishes to point out that these incessant harassmentsdo not augur well for
Ourbilateral relationsand wouldlikethe Ministryto cal1therelevanthostgovemment

law enforcementagentsto order. This matteris creatinggreat anxiety and concemin
Nigeria and the Embassy will therefore want the Ministryto take necessary steps to
arrestthe situation for themutualbenefits of both countries."(Ann.NC-M 356.)

65. Thispattern of harassmentandthe atrocities committedby Camerooniangendarmesand

soldierswere the subject of complaintin the letter of the NigerianGovemmentto the Presidentofthe SecurityCouncil dated4 Marchto which1have alreadyreferred (Ann. NC-M347). This letter

refers to six serious recorded incidents in 1991, six in 1992, and 13 up to September1993.

Referencesto acts of harassment,lunder andmurder alsoappear in the letter dated20 April 1994

f?omthe Nigerian High Commissionin London(see Ann.NR 29).

66.The patternof repression which developed aftetrhe end of theNigerian civilwar canbe

understood by referenceto the report presentedto the Govemor of Cross River state dated

15April 1988 (AM. NR30). Entitled "Report of Persistent Molestations and Intimidation of

AtabongPeople byCamerounGendarmes",the documentincludesthefollowingpassages:

"1. During Nigerian Civil War,the 3rd Marine Command Divisionled by
Brigadier Benjamin Adekunle establishea Militarybase at Atabong Commanded by
the late Major Isaac Adaka Boro and CamerounGendarmes dared not trespass into
Nigeriantemtory. Afterthe withdrawalof MajorBoro and his men from Atabong on

the 10thMarch 1968, Cameroun Gendarmea smved Atabong onthe 19thMarch 1968.
Sincethen Atabongpeople and indeed theentire residents of Bakassi Peninsulahave
had nopeace.

[Seejudges' folder,tab 9.1

3. ECONOMC BLOCIUGE: Cameroun Gendarmes are now forcing

indigeneseof Atabong,Abana,Edem Abasi,Ine Odiong,Ine Atayoand IneAkpak,al1
residentsof Bakassi Peninsulato stop comingto Nigeriato selltheir fish, crayfishand
shrimps but ratherto take themto the Camerounand sell them thereby strangulating
Nigeriaeconomically. Theyalso do everythingpossibleto intimidateOurpeople from
tradingwith Ourlegal tender, thenaira notes in preferenceto the CFA Franc. They
evengo to theextent of seizingnaira notes fromOurpeople andbuming themin fire.
Al1 these actions of Cameroun Gendarmes amount to economic blockade and

strangulation,hencethe scarcityof fishand crayfishin Ourmarkets.

5. MOLESTATIONS,BEATINGS, RAPINGS AND KILLINGS: Cameroun
Gendarmes havea field day molesting,beating, raping and killing Ourpeople. One
Mr. Etim Adem Okon of Atabong was beaten to deathby Cameroun Gendarmes in
1969. On 16thJanuary 1973,one Mr. Mbuk Serekewas beatento the point of death

by Cameroun Gendarmes and was unconscious for three days. Recently, one
Mr. Etim EffiongEkop was severely beatenby CamerounGendarmes tothe point of
death. As at thetime of writing this report, Mr.EtimEffiong Ekop was in a state of
coma. Five Nigerian soldierswere brutally murderedby Cameroun Gendarmes inthe
same area. Two fishermen were cold-bloodedly murdered in that same area by
CamerounGendarmes.

We, the people of the area, have consistently protestedvehemently against

Cameroun atrocitiesandvandalism to the FederalGovemmentofNigeria."

And thenthere is a conclusion. "6. CONCLUSION: Nigerians in Bakassi Peninsulaand indeedthe Atabongs
have suffered untoldhardship in the hands of CamerounGendarmesand the hardship
is weighing veryheavily onus. We do not want to be govemedby therepressiveand
despotic Cameroun Govemment which rules with high-handedness. There is
absolutelyno fieedom of speech, fieedom of expression,fieedom of associationnor
fieedom ofmovementwhich we enjoy inNigeria. Wearetherefore appealingto you,

Sir, to prevail on thePresident andthe ArmedForces RulingCouncilto intervene and
redeemus fromtheseCamerounvandals."

67. This reportis in fact an appealto the Govemor of CrossRiver statefiom the traditional

leader of the community,Chief OkonEtim OkonAsuquo, amemberof the Council of Etubomsin

Calabar, and head of the Atai Ema clan of West Atabong. The initiativesaken by the Nigerian

forces in 1993were a responseto suchappeals. Petitions fiom communities on Bakassihave been

made on various occasions since May 1968: and some of thesewere exarninedin my first round

speech.

68. It is relevant to remind the Court that Nigerian police andsecuriv forces had been

involved on various occasions since independencein the maintenanceof public order in Bakassi

(see Counter-Memorial of Nigeria, paras. 10.59 et seq.,and paras. 25.8 et seq.). It has been

necessary for the Nigerian armed forcesto respond,on the basis of self-defence,to incursionsby

Cameroon armed forces.This has beenrecognizedby the CameroonGovemment,for example,in

its intemal information bulletin in relation to incidents in 1984- 1 refer to AnnexMC 269

(p.2223) of the Memorial of Cameroon. Intemal Cameroonian documentsalso refer to the

presenceofNigerianmarines atAbanain 1990andin 1993(seeAnn. MC 332).

TheCameroonianviewof the administrativestatusquo

69. Further confirmation of the weakness of the Cameroonian title based uponan alleged

possession of Bakassisince the time of Independence can be found in Cameroonian official

sources.

70. By the 1980sCameroon'sattemptsto displace the Nigerian statusquo in the regionhad

producedvery exiguousresults. The evidenceof this appearsinthe officia1archivesof Cameroon.

The Court may recall that inmy first round speech 1referred to the PrefectoralOrder of 1975by

which Cameroon soughtto replacethe existing Efikplace names(CR 200219).

71.Eleven years latera Cameroonianofficia1makes the followingcomplaintin a letterdated

4 November 1986: "As it concemsyour District, manyof the fishingSettlementshave been given
new names but scarcely arethe new namesbeing usedby the Aliens and evensome
Cameroonianssettlingtherein.

It would also appear that some new settlements havebeen made or discovered
that have not been given new names yet, for example, Ine Akariba, reference your
letterof 11 October1983(letterNo. G.40.05.I/ID/45/293).

This endorsement is therefore for your information and necessaryaction.
Please,render to thisoffice anaccount ofyouraction." (Ann. N-CM224.)

72. 1 move on to examine a report of a development committee which met on

15October 1988 to examineissues relating topartsof Bakassi (Ann.RC 180). The prefaceto the

Minutes record that the delay in holding the session "was due to the absence of maritime

transport..."

73. The minutes of the meeting include a briefingby a Cameroonian officia1 on the

considerableinadequacies of the infrastructurein relation to housing, social services, health and

othermatters.

74. That, Mr. President, was in 1988. My third example is an officia1 Cameroonian

document of 1992 (Ann.NC-M 186). The document is dated 21 January 1992 and reads as

follows:

"By a radiomessage under the above reference, the Head of the Provincial

Serviceof the National Security Organisationin the South-West,at BUEA, reports to
you onthe situationat the JABANEfishery.

Accordingto this message,the Community School, openedand directedby the
Local of JABANE (Cameroun),receives subventions from AKPABUYO LOCAL
GOVERNMENT, theStateCommuneof AKWA-BOMIN NIGERIA. Initially itwas
built of temporarymaterials and then in the process of NIGERIA. The situation

remainsas follows:

The Post considers that this situation should be brought to the attention of
MINEDUC of MINAT and of the Secretary General at the Presidency of the
Republic."

75. This documentspeaks for itself. It calls for comparisonwith documentRC 180, which

refers in 1988to the "poor enrolmentin the lone primary school at Idabato". Mr. President, the

1992 document confirmsthe general picture which is that, 30 years afier the independence of

Cameroon andthe alleged transitionto Cameroonian sovereignty, the system of public education

was dominatedby Nigerianpublic authorities.The nationalityofthe inhabitants ofBakassi asan elementin title by historicalconsolidation
oftitle

76. As Nigeriapointed outin the Counter-Memorial,in the formationoftitle by aprocess of

historical consolidation therean be no doubt that the existenceof long-established Settlements of

the nationals of theclaimant Stateplays a significant role. It is helpful in thisrespect to recall the

viewsof Sir GeraldFitzmaurice expressedin his Hague lecturesin 1957:

"The element of racial or national affinity betweenthe population of the
claimantStateand the inhabitants ofthe temtory claimed,can never initself be a legal
ground of title. As withhistorical factors,it might assist in supportinga claim based
on other grounds, oras an evidential factor- for instanceit might assist in showing
that certain acts were carried out animo occupandi with the intention of asserting
sovereignty,but, especiallyif the territory is,or has passedinto the effective controlof
another State, affinitiesof race or country can never be a substitute for effective

control, or for continuity,or in themselves give title." And Fitzmaurice continues:
"Dzfferentconsiderationsarise whereit is not merely a question of racialor national
afinity, butof actual nationalsof the claimantState,for, ifsettlers in a territory have
a certain nationali@ that may be an element (though not necessarily a conclusive
one) in showing the existenceof effective control by theirparent State." (Recueil des
Cours,HagueAcademy,Vol. 92 (1957,II), p. 149; emphasisadded.)

77. The settlement of nationals has been treatedas relevant,though byno means decisive,in

thejurisprudenceof international tribunals. In the Guatemala-HondurasBoundary Arbitrationthe

Special Tribunalwas required to determine the line based onthe uti possidetis of 1821. The

Tribunalwas expressly authorizedto modifythe utipossidetis line to take into account "interests"

acquired by eitherparty beyondthat line. The Tribunal consequently assumed an impliedpower to

take account of interests derivedfi-omactualpossession, including settlement.In the words of the

Tribunal:

"The criteria to be applied by the Tribunal in the exercise of this authority are
plainly indicated. It isnot the functionof the Tribunal to fix territoriallimits in view
of what might be an appropriate division ofthe tenitory merely with reference to
geographical features or potential advantagesof a military or economic character,
apart fiom the historical facts of development. The Treaty cannotbe construed as
authorisingthe Tribunalto establish a definitive boundaryaccording to an idealistic

conception, without regard to the settlement of the territory and existing equities
created by the enterprise of the respective Parties. So far as may be found to be
consistent with these equities, the geographical featuresof the territory indicating
natural boundariesmaybe considered." (Guatemala-Honduras Boundary Arbitration
(1933); ILR,Vol. 7,p. 122; emphasisadded.)

78. 1 tum now to the Land, Island and MaritimeFrontier Dispute. The followingpassage

fiomthe Judgmentofthe Chamberis illustrativeofthe acceptanceby the Charnberof therelevance

of evidence of settlement: "Tuming now to the evidenceof effectivitéssubmittedby Honduras, there is
first some evidence of diplomatic correspondence. .. [and then there is some
irrelevant material and then it goes on]. Secondly, considerable material was
presented as an annex to the HonduranReply toshow that Hondurasalso can rely on
arguments of a human kind, that thereare 'humansettlements'of Honduran nationals
in the disputedareas in al1sUcsectors, and that variousjudicial and other authorities
of Hondurashave exercisedand are exercising theirfunctionsin those areas." (I.C.J.

Reports 1992,p. 471,para. 180; emphasis added.)
79. A similar formulation appears later in the Judgment (I.C.J. Reports 1992, p. 516,

para.265).

80. In the contextof historical consolidation, theexistence oflong-established settlemeofs

nationalsmust haveconsiderableprobativevalue.

Theroleof acquiescenceandrecognition inrelationto historicalconsolidationof title

81. At this point, Mr. President,it is necessary toturn to the questionsof acquiescence and

recognition in the context of historical consolidationof title. The argument of Professor

Mendelsonin thefirst round wasbased upon the assertionthat the conduct ofthe Consuls-General

of Nigeria constituted acceptanceor recognition of Carnerooniantitle (CR200215,pp. 20-24,

paras. 9-16).

82. Professor Mendelson insiststhat Cameroon "has not argued thatthe consuls had the

powerto grant recognitionof Carnerooniantitle to territory" (CR200215,p. 24, para. 16). Counsel

for Cameroon then repeats the same argument thinly disguised as an alleged "administrative

practice"arisingfromthe conductof officialsof both States. But,Mr.President,the reformulation

simply restates theproblem.

83. As a matter of international law the Cameroonian argument lacks foundations. The

activities relied upon involved the actionsof a low-ranking officialwhich were unrelated to the

issue of sovereignty. Consularofficials are not mandatedto deal with issuesof title to territory.

The general characterof the duties of consularofficersis described ina passage fiom the classic

Hall approved by Dr. ClivePany, the distinguished editorof the British Digest of International

Law, as follows:

"Consuls are persons appointed bya state to reside in foreign countries, and
permitted bythe Government of the latterto reside,for thepurposepartly of watching
over the interestsof the subjectsofthe statebywhich theyareappointed,and partlyof

doing certainacts on its behalf whichare importantto it orto its subjects,but to which
the foreign country is indifferent,it being eitherunaffectedby them, or affected only in a remote and indirect manner. Most of the dutiesof consulsare of the latter kind."
(Hall,International Law (4thed., 1895),pp. 330-331 .)

84.The authoritative treatiseby PatrickDaillier and Alain Pellet describesconsulardutiesin

essentiallysimilar terms (DroitInternational Public,6th ed., 1999,pp. 737-738). As these authors

point out: "Les consuls et lespostes consulaires ne sontpas chargésd'un rôle de représentation
s

politique. Leursfonctions revêtenu tn caractèrepurement administratif"

85. This formulation by ProfessorsDaillier and Pellet places emphasis on the purely

administrativenature of consular functions. The functionsof the Consul-General consist only of

routine administrativeacts which are completely divorced from the issues of boundaries. In the

present case the consular officers had no authority, expressor implied, to make assessmentsof

questionsofsovereignty.

86.The Cameroon Reply (p. 3 19, para.5.264) refersto a visit by theNigerian Ambassador

to West Atabong in 1986. The only documentcited in this respect (Ann.RC 149) is an itinerary

for the tourprepared by the staff ofthe Consul-Generalin Buea. There is no evidencethat a visit

to West Atabongactually took placeand no indicationofthe sourceof the itinerary.

87. But, Mr. President, atthis point it is necessary to step back from the Cameroonian

argument relating to the Consuls-General. As we have seen, it is an argument based upon the

concept ofrecognitionby conduct. As such,itmustbe placed within the generalcontextof the title

invoked by Nigeria, that is, historical consolidationof title. In Nigeria's submission such title

cannot be short-circuited by referenceto specific episodesof inconsistent conduct,and this more

especially when the overall evidentialpicture contradicts the inconsistent conduct. Counsel for

Cameroon invoked the Temple of Preah Vihear case (see CR 200215,p. 19, para. 16) and the

principleofrecognitionby conduct.

88.In relation to the argument related to Consuls-General, resortto principles analogousto

recognition or estoppel should in principle be treated with extreme caution. It is one thing to

determinethe title to the uninhabitedsite of anhistorictemple, when the evidenceof Stateactivity

in that casewas exiguous,onthe basisof recognitionor acceptance, but quiteanotherto applysuch

a principleto an area with a permanent population, and a long-establishee dthnic identity, more

especiallywhen there isconsiderable evidenceof Stateactivities. 89. It was Charles De Visscher who pointedto the modifiedrole which recognition playsin

the context of historical consolidation. 1 refer to the English edition of his classical work,

published in 1957,atpages 200to 201:

"Proven long use, which is its foundation, merelyrepresents a complex of
interestsand relations whichin themselves have theeffect of attaching a territory or an

expanse of sea to a given State. It is these interests and relations, varying fiom one
case to another, and not the passage of a fixed term, unknown in any event to
international law,that aretaken into direct account by thejudge to decide in concreto
on the existenceor non-existence of a consolidation byhistorictitles.

In this respect such consolidation differs from acquisitive prescription properly
so called, as also in the fact that it can apply to territories thatcould not be proved to

have belonged formerly to another State. It differs fiom occupation in that it can be
admitted in relation to certain parts of the sea as well as on land. Finally, it is
distinguished from international recognition- and this is the point of most practical
importance- by the fact that it can be held to be accomplished not only by
acquiescence properly so called, acquiescence in which the time factor can have no

part, but more easily by a sufficiently prolonged absenceof opposition either, in the
case of land, on the part of States interestedin disputing possession or, in maritime
waters, on the part of the generality of States." (Theory and Realiy in Public
InternationalLaw, 1957,pp. 200-201 ;footnotes omitted.)

90. In the present case the alleged effect of the actions of the Consuls-General must beset

off against the generalpattem of Cameroonian acquiescence,the evidence for which 1presented in

the first round.

Alternative formulationsof theclaimto titleto Bakassi

91. Nigeria's claim has been based upon historicalconsolidation of title as a generally

recognized legal principle. At the same time the claim could be given other legal forms which

would havesimilar if not identical legal effectsto those of historical consolidation.

92. A fairly obvious alternative formulation would be thecontinuous and peaceful display of

Nigerian sovereignty, together with the acquiescence by Cameroon in Nigerian sovereignty over

the Bakassi Peninsula. This is essentially thebasis of the decision of Judge Huber in the Island of

Palmas case(RIAA,II,p. 831).

93. In a number of well-known cases, the Court concemed has had to balance up the

"manifestations of sovereignty" and produce a determination basedupon the competing activities

of the claimant States. This was essentially the approach of the Court in the

Minquiersand Ecrehoscase (I.C.J.Reports 1953,p. 47). In this Judgment the Court expressedtheopinion that: "What is of decisive importance,in the opinion of the Court, is ... the evidence

which relates directlyto the possessionof theEcrehos andMinquiers groups.".(Ibid.,p. 57.)

94. And in the same Judgment the Court stated that its task was "to appraisethe relative i

strengthof the opposingclaims [ofthe Parties] overthe Ecrehos . .."(ibid.,p. 67).
i

Somespecific rebuttals
95. Mr. President, distinguished Membero sf the Court,my next task is to respondto certain

specificassertionsmadeon behalf of Camerooninthe second round.

96. In his secondround speech Professor Mendelson madea series of assertions relatingto

an alleged Nigerian acknowledgmentof Cameroon's title (CR2002116,pp. 38 et seq.). In an

exercisein forensicoptimism Professor Mendelson,in the firstparagraph of his argument, reveals

its weak legal foundations.

97. In the firstplace counsel uses acknowledgmentto include recognition and acquiescence.

But, Mr. President, there isno such legal categoryas acknowledgment. Secondly,recognitionis a

publicprocess and Cameroon relies upon severalepisodesinvolvingintemal documents.

98. Counsel for Cameroonalso asserts that any acknowledgment by Nigeria would

definitivelyrule out any question of Nigerian title. This reasoning lacksany legal underpinnings.

There is no attempt to establish the legal context,which is, the Nigerian claimon the basis of

historical consolidationof title. Nigeriadoesnot claim on thebasis of effectivitésin isolationfiom

al1the other evidence.

99. In any event, ifwe are to trade in real,publicly made,acknowledgments, the Court will

no doubt take note of ProfessorMendelson's acknowledgment in the first round thatNigeria had

produced more evidence of possession and title than Cameroon. It is there in the record, it was

made in face of the Court, and it was made by counsel having therequisite authority, withthe

Agentof CameroonSittingbeside him.

100. 1 tum now to the more specific points made by Professor Mendelson. His first

reference to an alleged acknowledgment involves Nigeria's diplomatic Note of 27March 1962.

This episode will beexaminedby my fiiend Professor Crawford tomorrow morninga ,nd 1 shall not

dealwith it. 101. Professor Crawfordwill alsodeal with ProfessorMendelson'sreference to thegranting

of hydrocarbon licences(CR2002116,pp. 39-40,paras. 17-18).

102. The next item invoked by counsel for Cameroon was the actions of the Nigerian

Consuls-General(CR2002116,pp. 40-41, para.19). 1have already examinedthis subject in this

speech.

103.However,there is one additional point. In the Gulfof Mainecasethe Courtexpressed

views onthe legal aspectsof activitiesby low-level officials.The Courtsaid:

"The Chamber considers that the terms of the 'Hoffman letter' cannot be
invoked against the United States Govemment. It is true that Mr.Hofhan's
reservation, that he was not authorizedto commit theUnited States, only concemed
the location ofa median line; theuse of a medianline as a method of delimitationdid
not seem to bein issue,but there isnothingto show that thatmethodhadbeen adopted
at govemment level. Mr. Hoffman,like his Canadiancounterpart,was acting within

the limits of his technical responsibilities andnot seem aware that the questionof
principle which the subjectof the correspondence mightimply had not been settled,
and that thetechnical arrangementshe was tomake with his Canadiancorrespondents
should not prejudge his country's position insubsequent negotiations between
govemments. This situation, however, being a matter of United States interna1
administration,does not authorizeCanada to rely on the contents of a letter fiom an
officia1of the Bureauof Land Managementof the Departmentof the Interior, which

concems a technical matter, as though it werean official declaration of the United
States Govemment on that country's international maritime boundaries." (I.C.J.
Reports 1984,p. 307,para. 139.)

104. In my submission thereis a strong analogy with theactivities of the Consuls-General

carrying out their administrative taskswithout any awareness that their actions couldprejudice

major issuesof principlependingbetweenthe two Govemments.

105. 1come now tothe Elias letter,which was invoked by ProfessorMendelsonin his first

round speech (CR200215,pp. 24-25, paras. 17-20). Inthe second round counsel for Cameroon

told theCourtthatthe Eliasletterwasof "the greatestsignificance"(CR 200211 6, p. 41,para. 20).

106. Mr. President, 1 knew President Elias well and he was a good fiiend of

PresidentWaldockwhowas my mentor. Chief RichardAkinjidepaid tributeto Eliasthismoming.

It isnotPresidentElias'sreputation whichis in issue. The issueis the evidentialsignificanceof his

letter. Counsel for Cameroon considersthat it "speaksfor itself". And so itdoes. It wasa piece of

confidentialadvice, formingpart of the Nigerian Govemmentprocess. It was leakedto the press,

or fellintothe handsofthe press, and thus appearsnow inthe Cameroonian pleadings. 107.Counselfor Cameroonnow producesthis as evidenceof recognitionand acquiescence.

But the letter did not form part ofany public transaction or ofany correspondence with Cameroon.

It cannotquali@as evidence ofrecognitionandacquiescence.

108. Mr.President, asChief Richard Akinjidehas pointed out,the contextand legalvalue of

such a document must be related to the totality of the evidence and legal argument presently

available. It would be inappropriate, indeed,it would be grotesque, if such an intemal opinion

were to be held to preclude the public position of Nigeria or theposition of the Court in these

proceedings.

109. And in this general context, it is not surprising thatthe distinguishedTribunal inthe

First Phase of theRed Sea Islands Arbitration, refusedto acceptevidence in the form ofinterna1

documents. Inthewords of theTribunal:

"The former interestin these islandsof Great Britain,Italy and to a lesserextent
of France and the Netherlands, isan important elementof the historical materials

presented to the Court by the Parties, not leastbecause they have had access to the
archives ofthe time, and especially toearly papers of the British Govemmentsof the
time. Much of this material is interestingand helpful. One general caveat needs,
however, tobe made. Some of this material is in the form of interna1memoranda,
fiom within the archives of the British Foreign Office, as it then was, and also
sometimes ofthe Italian Foreign Office.

TheTribunal has been mindful thatthese intemalmemorandadonot necessarily

represent theview or policyof any govemment, and maybe no more thanthe persona1
view that onecivil servantfelt movedto expressto anotherparticular civil servantat
that moment: it is not alwayseasy to disentanglethe personality elementsfiom what
were, after all, intemal, private and confidential memorandaat the time they were
made." (Award,9 October1998,para.94.)

110. In conclusion, 1 would emphasizethe legal absurdity,the forensic distortion, which

would result in according any legal significance to the Elias letter alongside the substantial

evidenceofNigeriantitle which isnow availableto the Court.

111. 1move now to the letter fiom Mr. K. B. Olukolu, ofthe Nigerian Ministryof Justice,

dated 6 June 1985,invoked by Professor Mendelsonin the secondround (CR2002116,pp.41-42,

paras. 21-25).

112. This letter appears to have been prepared by a low-level officia1in the Ministry of

Justice at a time when there was no Attorney-Generalin office. Mr. Olukolu was an AssistantDirector in the International and ComparativeLaw Department of the Ministry of Justice. In any

eventthe actual provenance ofthe documentremains unknown.

113.Mr. President, al1the legal considerations which appliedto the Elias letter apply to the

Olukolu letter. The fact that Mr. Olukolu was more junior than President Elias can make no

differenceto the legalappreciation which iscalled for.

114. And, of course, the same considerations apply to the other document apparently

emanating fiom the Ministry of Justice invoked by Professor Mendelson, which is dated

6 June 1986 (Mernorial of Cameroon, Ann.MC 279). The provenance of this document is also

unknown.

115. In conclusion, onthe legal significanceofthese three intemal documents relied on by

Cameroon, 1would once more recallthe viewexpressed bythe Chamberof the Court in theGulfof

Maine case. If the Chamber did not considerthat the Hoffman letter could be invoked againstthe

United States Government in the context of a correspondence between the United States and

Canada, how can Cameroon expectthe Court to give any legal effect to documents which were

intemal and, by theirvery nature, confidential.

116. It is also to be borne in mind that such Ministry documents are subject to State

immunity .

117.The next subject referredto by Professor Mendelson wasmap evidence. In his second

round speech, counselwas respondingto passages inmy first round speech (CR200219, pp.47-49,

paras. 143-154). Professor Mendelsonwas careful, firstof all, to pick out only a small proportion

of the points which1 had made. Secondly, he avoidedcomment on al1the points of legal substance

(CR 2002116,pp. 43-44, para. 26). As a result counsel for Cameroon failed to comment on the

followingissues:

- first,the relation of maps to the actual basis of title relied upon by Nigeria, namely, historical

consolidationoftitle;

- second,the relation between maps and the administrativeand socialstatus quo on the ground;

- third, the relevance of judicial precedents concerningmap evidence, some ofthem emanating

fromthis Court;

- fourth,the significanceof compiledmaps;- fifih,the expert provenanceorothenviseofthemaps; andlastly,

- the legal significance of the entries in the Gazetteer published by the Nigerian Director of

FederalSurveys in 1965.

118. Mr. President, counsel for Cameroon has not replied to the legal substance of my
1
assessmentof the relevanceof the evidenceintheseproceedings. In particular,likehis colleagues,

he finds itimpossibleto relatehis observationstothe actualbasis of titlerelied on byNigeria.

ThepopulationoftheBakassi Peninsula

119.Our distinguishedopponentsdonothave a veryprecise knowledgeof the geographyof

the Bakassi region, as Nigeria demonstratedto the Court in the first round. The figure for the

populationof Bakassi offeredby Cameroonis4,046persons(CR 2002115, p.26, para.28).

120.Nigeria doesnot findthis figurecredible. Inanyevent, it isnot always easyto produce

figures which relate exactly to the area of Bakassi and do not either include other areas or,

alternatively,exclude areas of Bakassi. At the time when the Rejoinder was prepared Nigeria

produced anapproximateandinterimfigureofapproximately100,000.

121.In the periodleadingup to the oralhearingstheNigerian teammade a calculationbased

upon dataprovided by the National Population Commissionof Nigeria. These figures relate to a

detailed list of villages and the assessmentsof which clan areas fell within Bakassi. The total

figure which emerged from the data was 156,000, the figure presented to the Court in these

proceedings.

122.After a further check on the figuresrelating to clan areas, Nigeria is confidentthat the

figure of 156,000is reliable. This figure is basedupon the six clans areason Bakassiand theseare

referredto in theRejoinder.

123.It is ironical that Cameroonhas seenfitto makesuch an issueofthe population. Onthe

basis of Nigeria's knowledge of Bakassi, which is extensive, the Cameroonianfigure of 4,046

appears ludicrous. Mr. President, the figuresare one thing, the legally relevant factors arequite
-
another. The legally relevantfactorsare as follows: Firstly,the populationis substantialand it is

Nigerian, not Cameroonian. Counselfor Cameroonhave concededthis. Secondly,the population

ispermanent. And thirdly,the clanand ethniclinksarewiththe Nigerianmainland.Thetreatmentofeffectivb itCéameroon
124. Mr. President,as 1 near the end of my speech, 1 find it necessary to return to the

question of efectivités. It is, of course, the prerogative ofthe applicant State to decide on her

strategy and tactics. But,there arecertain limitsto this prerogative, andonehlimit is the duty

toprovideassistance tothe Court.

125.Cameroon,in the personof its counsel,has essentiallyrefusedto examinethe evidence

of efectivités. This evidencewas admitted to be substantial.It was the product of a great deal of

hard work by distinguished Nigerianofficiais, includingAlhajiDahiru Bobbo, Director-Generalof

the National Boundary Commission and Mrs.Nella Andem-Ewa, the Attorney-Generalof Cross

River state. The Nigerian Government receivedthe assistanceof a distinguished firm of London

solicitors, D.. Freeman,who are experiencedin boundarymatters and helped the winningsidein

the last boundary casein whichtheywere involved.

126.Theresults ofthe effort madeby Nigeriato assist theCourtby providing evidence were

impressive. And whatwas the responseof Cameroon? Theresponse wasin three forms. The first

formwas anunattractive dismissivenessand a flippancywhichwas wholly inappropriate.

127.The secondresponse wasto find technical excusesfor not dealing withthe efectivités.

Thus, in the first roundProfessor Mendelsonargued that because Cameroon had titleon the basis

of utipossidetisjuris, therefore efectivitéscouldonly have a confirmatoryrole (CR200214,p. 35,

para. 1). Thisdoes not follow, becauseuti possidetis does not block the Nigerian positionbased

upon lawfulchange. In the same speech otherexcuses are produced,such as the curious argument

that the effectivitéswould not qualiQ in case of prescription, whichhas not been invoked by

Nigeria.

128.And, Mr. President,if Cameroon isrelying on uti possidetis or the 1913Treaty, why

could not Cameroon relyupon evidenceof effectivitésin the mode of confirmationof title? This

would have beenthe naturalresponse. Why wasthis not done? Was itbecause the evidenceofthe

requisiteeffectivitéswassimply notavailable?

129.The third formof responsewas to ignore the evidenceof effectivités. The evidenceof

Nigerian presencewas ignored in theCameroonReply, and in the firstround speechesand, finallyby Professor Mendelson in the second round. Can1 remind the Court what he said in the first

round:

"Nevertheless, inits Rejoinder, Nigeriahas persisted in ignoringthe very real
legal objectionswhich Cameroon hasmade to itsapproach,and has insisted on piling
up examples of its alleged effectivités in order to bolster its spurious claim to
sovereignty over the Bakassi Peninsula by means of its so-called 'historic

consolidationof title'. 1shall thereforesubmitto you thatthe legal frarnework within
which Nigeria seeksto situate its effectivités(and those of Cameroon) is tendentious
and misleading; and further, that the factsrelied upon by Nigeria do not have the
significancewhich it seeks to attachto them. The reliability of at least some of the
evidenceadduced byNigeria is also opento question, but itis unnecessaryto go into
that furthernow, evenif time allowed."

And later on inhis speech,hesays:

"and, wefûrther submitthat theseCameroonianeffectivitésare morethan sufficient to
counter Ouropponents' claim that Cameroon acquiesceid n the exercise of sovereign
authority by Nigeria. 1 shall not repeat the evidence of Cameroonian effectivitésin
exhaustive detail [hesays] inthe limitedtime 1 have: many instances arefound in the
Memorial,and especiallyintheReply." (CR200214, p.36,para. 2.)

Well,he did havefurthertime inthe second round. But nothingmuch happened.

130. Al1referenceto specificswas still avoided. Nigeriahad presenteda detailed critique of

the Cameroonianevidence in the first round (CR200219). DidProfessor Mendelsonfindtime to

dealwith specificsin the secondround? Unfortunately not.Thus,no examinationof the evidence

wasattempted eitherin thefirst orthe second round(CR 2002116,pp. 45-51).

Thepredominance ofthe evidenceof Nigeriantitle on the Basis of historicalconsolidation of
title

131. Mr.President, my argument relates tothe evidence of Nigerianpresence in Bakassi

since independence. If 1 can remind the Court,the elements which constitute the process of

historical consolidation of titlein relationto the BakassiPeninsulaare as follows:

Theoriginal titleof the City Statesof OldCalabar.
(i)

(ii) Theattitude andethnic affiliations of the populationofthe BakassiPeninsula.

(iii) TheEfikand Effiat toponymy ofthe Bakassi townsand villages.
u
(iv) The administration of Bakassi as part of Nigeria in the period 1913 to the date of

independence.

(v) The exercise of authority over the towns and clans of Bakassi by traditional Rulers

eitherbased in Calabaror otherwise owing allegiance to Nigeria. (vi) The exercise ofjurisdiction by customary law courtsby virtue ofNigerian legislation.

(vii) The long-established settlementof nationalsof Nigeria inthe region; and lastly

(viii) Manifestationsof sovereignty by Nigeriaafter independencein 1960.

132. The original title of the City States of Old Calabar is not a necessary condition of title

but it has a confirmatory role. And the same appliesto the evidence concerningthe position inthe

period 1913until independence.

133. Cameroon has not challenged the evidence produced by Nigeria in respect of the

different elements presented above. The evidence of eflectivités has not been effectively

challenged and it will not help Cameroon to argue that this evidence is to be set aside, simply

because Cameroon does not care to recognize the legal status of title on the basis of historical

consolidation. This standing aside from Nigeria's basisof claim is a forensicrisk which Cameroon

has chosen totake.

134. In relation to efectivitésthe pleadings of Cameroon in fact showa radical change of

legal approach. Inthe Mernorial, andalso in the Reply, theGovemment of Carneroon recognized

the legal relevance of effectivités. However, subsequent to the appearance of the Nigerian

Rejoinder, the policy underwent a major change. Accordingly, in the oral hearings counsel for

Cameroon contended, albeit in somewhat obscure language,that for various reasons the evidence

ofNigerian effectivités was legally irrelevant.

135.The evidence overallproduces a predominance ofNigerian administrationin the region,

coupled with evidence of the ethnic and social connections withthe mainland of Nigeria and the

existence afier independence of a Nigerian administrative andsocial status quo which eventually

Cameroon soughtto disturbby variousmeans, includingthe use of force.

136.Mr.President, what is important is the predominance of evidence favourable to Nigeria

andthe failureof Cameroonto challengethe legalstatus of the various categoriesof evidence.

137. It is significant that Carneroon reliesupon items of evidence which are not only

problematical in themselves, but, in evidential terms, peripheral. The necessary result is the

validation of the title by historical consolidationonthe basis of the predominant evidence.

138. And Mr. President, even if,arguendo, the issues relied on heavily by Cameroon, such

asMaroua, orthe map evidence, wereto be resolved, as isolated issues, in favour of Cameroon, thepredominantevidence would still stand in support of Nigeriantitle. It would be illogical in the

extremeto circumvent the major elementsof the evidenceby reference to issues whichare both

peripheraland which, inthe caseof Maroua,are legallyproblematical.

Conclusions

139.In conclusionit is submitted thatNigeria hastitle overBakassi onthe basis ofhistorical

consolidation of titlein theiod sincethe independenceofNigeria, either onthe assumption that

the 1913Treaty was not implementedor, in the alternative, thatthe Treaty was implemented but

was subjectto a process of lawful change constitutedby the process of historical consolidationof

title.Mr. President, that concludesmy presentation this morning. 1would like to thank you and

your colleaguesonce againfor your patience.

The PRESIDENT: Thank you very much, Professor Brownlie. Ceci met un terme

effectivementà la séancede ce matin. La Cour reprendra sestravaux cet après-midià 15heures.

Laséanceest levée.

L'audienceest levéeà 13heures.

Document Long Title

Public sitting held on Thursday 14 March 2002, at 10 a.m., at the Peace Palace, President Guillaume presiding

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